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Stephen Hall, a former associate at Portland, Ore.’s Stoel Rives, and former Brobeck, Phleger & Harrison partner Gary Fergus testified before Congress on Wednesday about the now infamous “smoking gun” memo that outlined Enron Corp.’s shady energy trading practices. Addressed to Enron Assistant General Counsel Richard Sanders, Hall’s Dec. 6, 2000, memo details manipulative, most likely illegal practices that carried nicknames like “Death Star” and “Get Shorty.” A second, nearly identical memo was drafted Dec. 8. Sanders testified Wednesday that he quickly ordered the practices stopped, even though he “was not confident that [Hall's memo] completely or accurately described many aspects of the trading practices.” Indeed, it appears that Sanders or someone else at Enron wanted a second opinion — a more benevolent second opinion. For that service, the company turned to San Francisco-based Brobeck partner Fergus. Fergus, who has since left Brobeck, delivered an undated, draft memo to Sanders that offers a far different perspective from Stoel Rives (Read excerptsfrom both). Where Stoel Rives bluntly describes Enron traders using “the oldest trick in the books” and creating “the appearance of congestion through the deliberate overstatement of loads,” Brobeck sees “an incredibly complex and dynamic market” where “weather, supply shortages” and unspecified market conditions seemed to have more impact on prices than suspect trading practices. The Brobeck memo, which begins by acknowledging the “various investigations and litigation actually and potentially facing [Enron Power Marketing Inc.],” describes the Stoel Rives documents as the “preliminary memoranda” and opines that their conclusions “cannot be supported by the facts and evidence which are now known.” Fergus testified Wednesday that the memo was never completed because other events overtook the litigation before he could resolve various factual conflicts. Read excerpts of the memos: Hired Guns

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