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Feature
Continued from page 4
Published: April 25, 1996That isn't to say the regulators won't have a merry task proving Hurwitz's control of United Savings to a judge and jury. One of the primary problems with proving any accusation or case against Hurwitz is the highly complex structure of Maxxam, a holding company with subsidiary components controlled by interlocking, over-lapping managers and boards of directors. Sometimes, several wholly owned subsidiaries lie between actual moneymaking assets and the parent company, and each group may have a separate layer of financing and collateral. The advantage to this setup is that each company in the pyramid can claim to function on its own; it also makes it particularly difficult to trace which company has which assets and which debts.
A glance at Maxxam's corporate organization chart reminds you of a set of those Russian nesting dolls where, when you take one doll apart, there's another doll inside, and then another and another. Except in Maxxam's case, all the dolls have Hurwitz's face.
"These types of structures are done intentionally, to shield people like Hurwitz from being too closely scrutinized," says Michael Hoffman, director of Bentley College's Center for Business Ethics, located near Boston. "Trying to figure out who owns what and who owes the debts, with so many holding companies and subsidiaries E it is very hard to know where to hit."
Allan Sloan, a Newsweek columnist who has followed Hurwitz for more than a decade, agrees that Hurwitz's elaborate corporate structure is no accident. "You've got to watch what he is doing very closely because his deals are very complicated. He'll lose you in the complexities."
Hurwitz also tends to create single-purpose subsidiaries, which spring up with the frequency of mushrooms after a rain. Sometimes these companies go away after their purpose has been fulfilled. Sometimes, the newly formed entities serve to isolate particular assets from related debts and creditors, so Hurwitz has a better chance of hanging onto them if trouble comes.
For instance, Pacific Lumber was dramatically if quietly restructured after the takeover into three separate companies: One, Pacific Lumber Co., holds title to the land occupied by the company town of Scotia, its sawmills and other operating enterprises. Another, Scotia Pacific Holding Co., carries Pacific Lumber's takeover debt and holds title to essentially all the commercial forests where logging takes place. And a little-mentioned third company, Salmon Creek Corp., holds --debt free -- the deed to the Headwaters Forest, the holy of holies for environmentalists who are trying to wrest it away from Hurwitz.
Beyond charges of reciprocal business dealings with Milken, both the FDIC and OTS accuse Hurwitz of masterminding United Savings' violation of something called the "net worth maintenance agreement," an obscure clause that was applied to United Savings as part of a deal to merge it in 1983 with another thrift that was already under Hurwitz's partial control.
Basically, the clause is a promise by United Savings to keep on hand an adequate financial cushion to protect depositors against losses. The feds say UFG agreed to kick in additional capital if United Savings' financial cushion ever sank below a particular level, specifically $242 million. But the feds say none of the Hurwitz entities ever chipped in a dime to United Savings, even when the thrift's desperate financial condition was unmistakable.
"Notwithstanding this knowledge, Hurwitz failed to report (to regulators) the true net worth of United Savings, continued to take actions that aggravated United Savings' losses and further decreased its net worth," the FDIC suit charges.
When it comes to the net worth maintenance agreement, Hurwitz has played a coy, legalistic game, arguing that the clause does not pertain to him or UFG because he never signed papers the feds sent over to him on the subject. But Hurwitz and his colleagues obviously are taking the allegation seriously, as they spent 12 pages responding to the net worth maintenance charge in their official answer to the OTS action. Among their responses: "We deny that Maxxam or Federated was obligated to infuse any assets into United Savings for any reason. We deny that Hurwitz or Munitz had an obligation to direct Maxxam to pay a non-existent obligation. In fact, as directors and officers of Maxxam, their obligation would be to ensure that Maxxam does not honor meritless claims."
Spokesman Irelan is equally adamant on the subject. "Neither Maxxam nor Charles ever signed any commitment to maintain the net worth of the S&L. He didn't, never. You may see something that UFG -- before it was acquired by Maxxam -- had signed a net worth maintenance agreement. When that was discovered, the regulators came to us and wanted us to sign to maintain the net worth, and we said, 'No. We won't.' "
Both federal suits also contend that Hurwitz and his associates were able to keep their game for as long as they did because they cooked United's books and then lied to regulators about it. In their joint response to the OTS, Hurwitz and his co-defendants insist that they never lied. But they do make an interesting attempt to shift the blame to the thrift's accountants, as if to suggest, "If we were keeping bogus books, why didn't the bean counters call us on it?" Well, the feds counter, we think you were lying to your accountants, too.
"To 'keep the doors open,' to forestall regulatory intervention and to insulate UFG, MCO and Federated from the need to make capital contributions to United Savings, Hurwitz and his colleagues covered up the true state of the association by a pattern of deceptive financial reporting and balance sheet manipulation," the FDIC charges. "The effect was to keep United Savings operating despite its desperate condition E. Moreover, by failing to honor UFG, MCO and Federated's net worth maintenance obligation, significant wealth was preserved by Hurwitz and his colleagues for distribution to themselves or for other investment purposes." In any case, when regulators seized United Savings on December 30, 1988, the thrift's net worth was a negative $261 million -- about $500 million less than it was supposed to have on hand under its net worth maintenance agreement.
Besides violating the net worth maintenance agreement and engaging in a quid pro quo with Drexel, both federal agencies charge Hurwitz and his associates with numerous unsafe business practices. The FDIC zeros in on United's junk bond portfolio, while the OTS homes in on the thrift's real estate lending practices. For good measure, the OTS action also charges Hurwitz and the other defendants with unsound compensation practices that cost United millions it didn't have to spare.
The FDIC takes particular exception to a loss-plagued collection of mortgage-backed securities, which were essentially sophisticated bets on the direction of interest rates. It was called "Joe's Portfolio" after Joe Phillips, the thrift's junk bond analyst, but it might as well have been dubbed the "Runaway Train." The portfolio managed the neat trick of losing a bundle as interest rates plunged from 10 percent to 7 percent in the three months ending in January 1986, and then losing millions more when interest rates roared back up to 10 percent in the spring of 1987. The feds say "Joe" may have been in charge of the trading, but his superiors were to blame for not jerking him back in line and terminating the portfolio after the size of the losses became apparent. (Phillips could not be located for this story and is not a defendant in either suit.) For instance, in one eight-week period of late 1986, Joe's Portfolio lost $23.7 million. By the time the final gong sounded, United and a related mortgage subsidiary had lost more than $275 million trading these ill-considered securities.








