The government said today that A. H. Robins Co. improperly spent about $20 million after filing for voluntary bankruptcy -- nearly triple the original estimate of $7 million.
In a report to the bankruptcy court, Assistant U.S. Attorneys S. David Schiller and Robert W. Jaspen referred to some of the payments to Robins officials as "a raid on the treasury by insiders" and said those responsible cannot be trusted to run the company while it is in bankruptcy.
The government's 95-page factual statement, which will be filed in U.S. District Court Wednesday, is sharply critical of some Robins officers, including Senior Financial Officer G. E. R. Stiles and Vice President and former general counsel William A. Forrest Jr.
The statement summarizes the government's evidence for a motion asking Judge Robert R. Merhige Jr. to name a trustee to run the company and to hold it in contempt for violations of a consent order signed last Aug. 23, two days after Robins went into bankruptcy.
Schiller and Jaspen prepared the statement after taking about 3,200 pages of depositions from three dozen Robins directors, officers, managers and employes to try to determine who had authorized the improper payments.
The testimony will figure heavily in a hearing that will begin Thursday on the trustee and contempt motion.
Schiller filed the motion March 12, saying Robins paid an estimated $7 million to selected creditors in what he termed "willful and knowing" violation of the consent order.
The bulk of the increase in improper payments disclosed in the factual statement involves transactions between Robins and its 12 subsidiaries after the bankruptcy filing. Depending on the testimony, $12 million to $15 million was transferred by Robins, in the form of tax-loss benefits, to its subsidiaries that were not part of the bankruptcy proceedings.
A major portion of the evidence relates to more than $2 million in deferred bonuses paid out after the bankruptcy to present and former executives and directors under the Key Executive Compensation Plan (KECP). The plan did not allow anyone who had deferred compensation to receive the money before retiring or leaving the company.
The government's statement said the testimony showed that Murphy, Weir & Butler, the special bankruptcy counsel retained by Robins, had advised Robins officials before the Aug. 21 filing that KECP payments could not be made without court approval.
On Nov. 18, however, Forrest wrote a memo to Stiles claiming that Penn Ayers Butler, a member of the firm, had advised them that the payments could be made without court permission. Three days later, the company made KECP payments of about $1.2 million.
"At best," the Forrest memo "does not accurately reflect what occurred at the . . . meeting," Schiller and Jaspen wrote. "At worst, the Nov. 18 memo and the testimony in support of it are total fabrications." The testimony was given by Forrest and Stiles.
In addition, Butler contends "that the meeting did not occur, he did not give the advice reflected in that meeting," and that, after Schiller filed the trustee-and-contempt motion, Butler "was pressured by Forrest 'to lie' concerning the Nov. 18 memo, meeting and advice," the assistant U.S. attorneys said.
The company made an additional $525,905 in KECP payments in January and February, including $250,404 to director and former president William L. Zimmer III on Feb. 25. "The board of directors was fully aware that these payments were being made" because they were discussed at a meeting two days after the Zimmer payment, the factual statement said. But it added that neither Zimmer -- who also was chairman of the board's executive compensation committee -- nor any other director mentioned the payment at the board meeting.
"This sequence of events constitutes a raid on the corporate treasury by insiders which can never be tolerated, nor can those who participated in or orchestrated the raid be trusted to properly and lawfully manage the [bankrupt Robins] estate in the future," Schiller and Jaspen said.
Another major aspect of the government's statement involved what it termed a "frenzy of payments [to senior executives] in the six-week period immediately preceding the bankruptcy." The amount paid out, $1.2 million, was 10 percent of Robins' "total available cash reserves," the government said.
Stiles, who ran the KECP, "testified that, during the spring of 1985, he received a number of inquiries from . . . participants as to whether they could obtain their deferred bonus money prior to either retirement or termination," the statement said. "None of the individuals identified by Stiles as calling him in the spring who had been deposed have acknowledged calling Stiles in the spring regarding KEC money."
The payment "frenzy" began on May 24, 1985, when Senior Vice President John L. Burke requested a $364,550 KECP payment. "Burke requested his KECP funds immediately after attending a financial review meeting at which the dwindling cash reserves were discussed," the government said. The board compensation committee -- Chairman Zimmer and directors Steuart Shumate and George E. Thomas -- approved the payment, which was made June 25.
The government statement said that at a May 22, 1985, briefing attended by Forrest, Stiles, Executive Vice President Robert G. Watts and Vice President and Treasurer H. Carlton Townes, bankruptcy attorneys from the Atlanta law firm of King & Spaulding said specifically that the deferred bonus payments to "insiders," if made, "might have to be paid back to the company as preferential transfers. The full A. H. Robins company board of directors was given an identical briefing on June 13 by counsel from King & Spaulding."
In another example of alleged improper bankruptcy payments, Schiller and Jaspen sharply criticized a $15,000 settlement of a racial discrimination employment case because the terms were "indistinguishable" from the terms of Dalkon Shield settlements that were also partially completed at the time of the bankruptcy filing but have been held up. Robins has strenuosuly opposed completion of the shield settlements.
Robins lawyer Oliver Norrell testified he "was positive" that completion of the settlement had been authorized by outside counsel C. Cotesworth Pinckney. After the deposition, Norrell filed an affidavit saying the authorization had come from his superior, Forrest, not Pinckney.
Another alleged consent-order violation involves a Robins pledge of $78,895 to the United Way of Greater Richmond that was paid in December by Elkins-Sinn Inc, a Robins subsidiary based in Cherry Hill, N.J.
"ESI has been operated as [a] private slush fund" by president E. Claiborne Robins Jr., Watts, Stiles and Forrest, the government alleges. The statement points out that the president had said six days after the bankuptcy, "when we use the term, 'business as usual,' we mean it."
No one involved "can identify who decided to make the contribution," the government said. But following disclosure of ECI's role, Chairman E. Claiborne Robins, the president's father, made a contribution to the United Way in an amount sufficient to enable it to return ESI's donation, the statement said. How and why one particular charity benefited, and did so through ESI, remains unexplained.
The govermment cited another episode in which an employe of the Robins subsidiary in South Africa used that country's currency to pay a company debt with the understanding that he would be reimbursed in U.S. currency after leaving South Africa. "The reason and purpose of this transaction was to circumvent the currency exchange laws of South Africa," Schiller and Jaspen said.