Koch Industries: A 'crown jewel' of America's 4th wealthiest woman
For the past six years, Elaine Tettemer Marshall, the fourth-richest woman in the United States, has avoided the spotlight that ordinarily accompanies great wealth.
The 70-year-old Dallas resident controls almost 15 percent of Koch Industries Inc., the second-largest closely held company in the United States. Her stake in the Wichita, Kan.-based industrial conglomerate, which generates annual sales of $110 billion, is worth more than $12.7 billion, according to the Bloomberg Billionaires Index, which has expanded to 100 names. Her father in law once referred to the investment as "the crown jewels."
The only American women richer are Wal-Mart Stores Inc. heiresses Alice and Christy Walton, and 71-year-old candy scion Jacqueline Mars.
Marshall, who gained control of the Koch stake after the 2006 death of her husband, E. Pierce Marshall, has never appeared on an international wealth ranking, although her estate has been at the center of two U.S. Supreme Court cases involving her mother-in-law, the late celebrity Anna Nicole Smith.
"The Marshalls have never been a lightning rod, because they've never been in the public view financially," said Richard Lieb, a research professor of bankruptcy law at St. John's University School of Law in Jamaica, Queens, who filed briefs to the Supreme Court with his students when the cases were being heard. "No one went after them to find out what their evil deeds were, if any."
Marshall's ability to stay out of the limelight stands in contrast to her father-in-law, J. Howard Marshall, who had been a Koch shareholder for more than two decades and created a spectacle with his 1994 marriage to Smith, then a 26-year-old Playboy model, whom he wed at age 89. Since then, the Marshall fortune has been in a near-constant state of turmoil.
In April 1995, four months before Howard Marshall's death, Smith sued his son, Pierce, in Harris County, Texas, probate court, accusing him of interfering with his father's ability to provide her spousal support. The lawsuit was the first in a stream of legal cases that led to a 16-year battle between Smith and Pierce Marshall, the end of which neither would live to see. Marshall succumbed to an infection in 2006 at age 67; Smith died of a drug overdose at age 39 in a Florida hotel in 2007.
David Margulies, a spokesman for Elaine Marshall, said she declined to comment for this account. "Mrs. Marshall does not own any Koch stock in her name," he said in an email. "The late E. Pierce Marshall and J. Howard Marshall II consistently stated that their family's assets were vastly overvalued."
Fredric Spar of Kekst & Co., a spokesman for Charles and David Koch, said the company's majority shareholders declined to comment. Each Koch brother has a net worth of $37.8 billion, according to the index, where Marshall ranks 69th. The collective net worth of the 100 richest people in the world is $1.9 trillion as of the market close Sept. 14.
The partnership between the Koch and Marshall families began in 1959, when Koch Industries founder Fred C. Koch acquired a 35 percent stake in Great Northern Oil Co., a Minnesota-based refinery co-founded by Howard Marshall, for about $5 million in cash. A decade later, Koch's second-oldest son, Charles, offered to swap the rest of Marshall's stake in Great Northern for Koch Industries shares.
"He took stock rather than cash -- and held on to it," said Robert L. Bradley Jr., editor of Howard Marshall's autobiography, "Done in Oil," in an email. "The stock appreciated into something very, very large."
In 1974, at the wedding reception of his oldest son, J. Howard Marshall III, the elder Marshall gave each of his two sons 4 percent of Koch Industries voting stock, telling them, "Boys, these are the crown jewels, take care of them," according to documents filed by the U.S. District Court for California's Central District in Santa Ana in 2002.
Those jewels played a crucial role in an attempted boardroom coup six years later, when two of Charles Koch's brothers tried to oust him as chief executive. With some cousins and several allies, Bill Koch and Frederick Koch controlled about 48 percent of the votes, and turned to Howard Marshall's sons to gain the majority needed to displace Charles. Howard III sided with the dissident brothers; his younger brother, Pierce, rejected their plea.
His loyalty tied to Charles Koch, Howard Marshall thwarted the coup by buying back his oldest son's voting stock for $8 million. According to court documents, Marshall subsequently disinherited Howard III, considering the $8 million payment "an early inheritance."
Howard III contested his father's will in Harris County probate court in 1995. Pierce Marshall, who was left in charge of his father's estate following his death, countersued, claiming his older brother committed fraud when he sold his Koch Industries voting stock back to their father at an inflated price.
The court sided with the estate. According to the verdict, rendered in 2001, Howard III had engaged in fraud by stating a claim to his father's inheritance, and was ordered to pay about $11 million to various Marshall family trusts. Howard Marshall III and his wife, Ilene, filed for bankruptcy in Los Angeles in 2002.
While dueling with his brother, Pierce Marshall was also fending off charges from his late father's wife, Anna Nicole Smith, who filed for bankruptcy in 1996.
During the bankruptcy proceedings, the former stripper -- her given name was Vickie Lynn Hogan -- claimed her late husband had intended to set up a trust in her benefit. The trust was to have contained a sum equal to half of the increased value of Marshall's assets during their marriage. Pierce Marshall, Smith claimed, illegally interfered with the trust's creation.
In 2000, the U.S. Bankruptcy Court for California's Central District in Los Angeles awarded Smith about $475 million in damages, determining that Pierce Marshall had "deprived her of her expectancy of a substantial inter vivos gift from her deceased husband J. Howard."
The court based the award on the testimony of Smith's expert witness, who offered three valuation methods for Howard Marshall's stake in Koch Industries. The court found that "the most appropriate measure" estimated the stake's value had grown from $741 million at the time of Smith and Marshall's marriage to more than $1.6 billion in 1999.
Pierce Marshall, who had long disputed that his shares in Koch Industries were worth billions of dollars, appealed the decision. In 2002, the District Court lowered the bankruptcy court's verdict to $89 million.
This time the court considered four different valuation methodologies, and based its verdict on the book value gain of Howard Marshall's stake in Koch from 1994 to 1995, as recorded in two credit approval presentations to Texas Commerce Bank. The stake was worth $780 million at the end of 1995, according to the court.
All for naught
Smith never got a dollar. The Harris County probate court, where she had filed her first lawsuit against Pierce Marshall, ruled in 2001 that she had no valid claim to the estate.
In 2006, the U.S. Supreme Court heard arguments on Smith's case on the issue of federal jurisdiction over probate matters. The Court ruled in favor of the Smith estate and remanded the case to California's Central District Court, which reaffirmed its earlier verdict in favor of Smith. The San Francisco-based Ninth U.S. Circuit Court of Appeals overturned the District Court in 2010, as it had in 2004.
Five years after its first ruling, the Supreme Court again took up Smith's case, this time on another jurisdiction question. In its decision, the court upheld the ruling from the 9th Circuit Court, which stated that the California-based bankruptcy court lacked the constitutional authority to award Smith a claim over the Texas-based Marshall estate.
After the first Supreme Court decision in 2006, Pierce Marshall transferred his Koch stake, held by a company called Trof Inc., into a Grantor retained annuity trust, named Staurolite. Marshall owned all of Trof, according to the 2002 District Court ruling. Trof held 14.6 percent of Koch Industries, according to a 2001 application to the Federal Communications Commission, which was submitted by a company in which a Koch subsidiary held an interest.
Pierce Marshall was listed as Staurolite's grantor and Elaine as the trustee, according to the trust agreement. Pierce also created his will at that time, leaving the majority of his estate to Elaine and appointing her as executor. In his will, Pierce Marshall directed that, upon his death, all of his interest in the Staurolite GRAT be transferred to the EPM Marital Income Trust, of which Elaine Marshall is the trustee. He died six weeks after signing his will.
In a brief submitted to the Supreme Court in March 2009, Howard K. Stern, the executor of the Anna Nicole Smith estate, accused the late Pierce Marshall of moving the family's most valuable asset -- Koch Industries stock -- outside of his estate.
Elaine Marshall responded in a court declaration that the creation of the will and GRAT was the result of "18 months of planning, reparation and drafting," and "not caused by the Supreme Court's decision" that granted jurisdiction to the District Court in 2006 over Smith's claim.
Just say, it's in the trust
"The whole advantage of a GRAT is passing appreciated property to your family members without a gift tax," said Robert Willens, an independent tax adviser based in Manhattan. "You can say with a straight face, if you're called on to disclose your assets, that you no longer own the stock that you've put into the trust. All you have is this amorphous annuity interest."
Elaine Marshall didn't list the GRAT as part of his estate, according to an inventory of Pierce Marshall's estate assets, submitted to the Supreme Court in 2009. The estate's most valuable asset listed in the inventory was Telomere Llc, which represented more than $115 million of the estate's reported $125 million value.
Marshall is one of nine Koch Industries board members. She is credited with the family's Koch stake because of her control over the EPM Marital Income Trust.
In December 2009, Harvey A. Malyn, an Austin-based tax attorney with the U.S. Internal Revenue Service, summoned Edwin K. Hunter and T. Glynn Blazier, tax lawyers for the Pierce Marshall estate. Malyn requested Hunter and Blazier to produce a list of records and data to ascertain the "correctness" of Pierce Marshall's estate tax, according to IRS documents. Hunter had advised Pierce Marshall on the drafting of his will, and the establishment of the Staurolite GRAT, according to a March 2009 court declaration.
In response, Elaine Marshall filed a petition to quash the IRS summons. The IRS subsequently withdrew the summons to Hunter and Blazier, and Marshall dropped the petition in February 2010. Julianne Breitbeil, a spokeswoman for the IRS, couldn't comment on the matter because privacy laws prohibit her from discussing individual tax cases.
Hunter and Blazier didn't respond to requests seeking comment.
A Freedom of Information Act request to the U.S. Treasury Department made by Bloomberg News for more of the correspondence between Elaine Marshall, Hunter and Blazier and the IRS was denied Aug. 16, 2012, because tax records are confidential.
"Going to court defeats the whole purpose of having these trusts, which are hidden from the public," said Will Hardee, senior vice president at Royal Bank of Canada's Wealth Management office in Houston.
The 16-year fight over the Marshall fortune led Supreme Court Chief Justice John G. Roberts to compare the case in his 2011 majority opinion to Charles Dickens's "Bleak House," the 19th century novel that describes a complex and long-standing family lawsuit involving a large inheritance.
"What's the most valuable thing you have and it's not money? It's time," said Hardee. "All the money in the world won't give them back lost time."