The former Merrill Lynch ( MER) investment banker who refused to testify before a congressional committee looking into the Enron mess also isn't talking to investigators from the New York Stock Exchange. In fact, the NYSE filed formal charges earlier this month against Robert Furst for refusing to appear and provide testimony to investigators from the NYSE's Division of Enforcement. The charges could lead to Furst, who left Merrill in January, being barred from working in the securities business. The NYSE filed the charges against Furst just two weeks after he invoked his constitutional right against self-incrimination before the Senate Permanent Subcommittee on Investigation. Also refusing to testify before the panel was Schuyler Tilney, another Merrill investment banker, who has been placed on an administrative leave from Merrill. Furst and Tilney both worked in Merrill's energy investment banking group based in Texas. Furst reportedly is the brother of Jack Furst, the well-known corporate buyout executive with Hicks Muse Tate & Furst. Ira Lee Sorkin, the prominent white-collar criminal defense lawyer who is representing Furst, declined to comment. The filing of the NYSE charges was reported Aug. 12 to the National Association of Securities Dealers' Central Registration Depository, a database that keeps track of regulatory actions and investor complaints filed against registered brokers and investment bankers. The CRD filing doesn't explain why NYSE investigators wanted to talk to Furst, except to say that the inquiry concerns "matters that occurred prior to the termination of his status" at Merrill. Furst worked at Merrill for nearly three years before leaving in 2002.
A Merrill spokesman declined to comment. In a recent filing with the Securities and Exchange Commission, Merrill revealed that although it has provided information to federal prosecutors looking into the collapse of Enron, the firm "is not a target or a subject of its investigation of Enron-related matters." The Senate hearing in July focused on Merrill's $7 million investment in an off balance sheet company that purchased three Nigerian power barges from Enron. The senators on the panel claim that the deal, in which Merrill ultimately recorded a $775,000 profit, enabled Enron to pad its earnings by some $12 million in 1999. Sen. Carl Levin (D., Mich.), the committee's chairman, called the barge deal an "accounting sham," an accusation that Merrill has disputed. During the hearings, the panel produced a number of internal Merrill memos and emails showing that Furst and Tilney had been involved in arranging the barge transaction. In one memo, dated Dec. 21, 1999, Furst writes to Tilney and several other Merrill bankers recommending that the firm go ahead with the deal. "Enron is a top client to Merrill Lynch," said Furst in the memo. "Enron views the ability to participate in transactions like this as a way to differentiate ML from the pack and add significant value." At the same time the barge deal was taking shape, Andrew Fastow, Enron's former chief financial officer, retained Merrill to recruit investors for the now-infamous LJM2 partnership. LJM2, which played a critical role in Enron's strategy of moving ailing assets and big debts off its corporate balance sheet, began as a $394 million fund that attracted a who's who of Wall Street institutions, including J.P. Morgan Chase, Citigroup and Credit Suisse First Boston. About 100 Merrill executives invested $16 million of their own money into LJM2, while Merrill invested another $5 million. Last week the Department of Justice's Enron Task Force scored its biggest victory yet in the criminal investigation when former Enron executive Michael Kopper pleaded guilty to fraud and conspiracy charges. Kopper was Fastow's right-hand man in running LJM2 and several other partnerships, which prosecutors allege were used by Kopper and Fastow to generate millions in illicit profits.