Insys Therapeutics: drug dealers and the Feds. Can the business survive?

Insys Therapeutics (INSY:NASDAQ) is a seller of marijuana based anti-nausea drugs and super-strong opiates (Fentanyl) and nothing much else. Nothing has anything that resembles strong patent protection and their version of sublingual Fentanyl is a relatively new comer to the opiate scene - having only been on the market since early 2013.

Remarkably the market cap is over $1 billion. Here is a description from the last 10K. 

We are a commercial-stage specialty pharmaceutical company that develops and commercializes innovative supportive care products. We have two marketed products: Subsys, a proprietary sublingual fentanyl spray for breakthrough cancer pain, or BTCP, in opioid-tolerant patients and Dronabinol SG Capsule, a generic equivalent to Marinol (dronabinol), an approved second-line treatment of chemotherapy-induced nausea and vomiting, or CINV, and anorexia associated with weight loss in patients with AIDS. We market Subsys through an incentive-based sales model.

Drobinol is just marijuana extract. Subsys is a sublingual spray version of fentanyl - an opiate stronger than but shorter acting than heroin whose only legitimate use is to treat pain so sharp the morphine doesn't cut it.

Subsys - by far their important product - is a me-too product. It is - as the form 10K stated - the fourth Transmucosal Immediate Release Fentanyl (TIRF) product released in recent years. However very rapidly gained sales - indeed far more rapidly than any Fentanyl ever. Again to quote the 10K.

We launched Subsys as a commercial product in March 2012. Subsys is the fourth new branded product in the TIRF market over the last four years. Within the first four weeks of product launch, Subsys realized greater market share than the previous three branded products combined at their respective peak market penetration levels to date according to Source Healthcare Analytics. In December 2013, Subsys was the most prescribed branded TIRF product with 28.3% market share on a prescription basis according to Source Healthcare Analytics. Through our ongoing commercial initiatives, we believe we can continue to grow our market share and net revenue for Subsys. According to Source Healthcare Analytics, in 2013, TIRF products generated $421.2 million in annual U.S. product sales. The physician prescriber base for TIRF products is concentrated with approximately 1,850 physicians writing 90% of all TIRF product prescriptions in 2013, according to Source Healthcare Analytics. As a result, our commercial organization is able to promote Subsys using a highly targeted approach designed to maximize impact with physicians.

Now given that there is not a huge difference between TIRF products it is remarkable that Subsys immediately became the dominant TIRF product with a greater share than the three previous leaders combined. It is not entirely obvious how they did that.

But the key was quoted above - and I underlined it just to make sure you noticed. Insys markets Subsys through "an incentive-based sales model".

Its a little hard to work out what that actually means - but it is the key risk in this business. The 10-K only says this:

We market Subsys through our U.S.-based, field sales force focused on supportive care physicians. We utilize an incentive-based sales model that employs a pay structure where a significant component of the compensation paid to sales representatives is in the form of potential bonuses based on sales performance.

This is not well-described in the form 10-K. They state several times that the sales approach is similar to one used at Sciele Pharma - a company that management were previously associated with. Again to quote:

We commercialize Subsys through a cost-efficient commercial organization utilizing an incentive-based sales model similar to that employed by Sciele Pharma and other companies previously led by members of our board of directors, including our founder and Executive Chairman. We intend to market Dronabinol Oral Solution and other proprietary supportive care products, if approved, using the same approach and our commercial organization. 

Beyond that - and a description of the size of the marketing force - the marketing scheme is not well described. Here is the description of the size and extent of the marketing force. 

As of December 31, 2013, we had 145 full-time sales and marketing personnel. We expect the number of our sales and marketing personnel to increase as we seek to continue to increase our existing product sales and as any subsequently approved products are commercialized. We expect our sales and marketing expenses, along with our research and development expenses, to be our largest categories of operating expenses for the foreseeable future. In addition, because we use an incentive-based compensation model for our sales professionals, we expect our sales and marketing expenses to fluctuate from period to period based on changes in Subsys net revenue. Specifically, we expect our sales and marketing expenses to increase in 2014 to the extent that expected increases in Subsys net revenue are realized.

So, what have we got?

A me-too drug - another sublingual Fentanyl - but with a marketing incentive scheme that works and that encourages people to sign up.

One way is that - like Galena - the company offers free samples. I have cut and paste the offer below:

But the main differentiation for this company is the "incentive-based pay structure" whereby "a significant component of the compensation paid to sales representatives is in the form of potential bonuses based on sales performance". 

Oh, of course the drug is wildly addictive and makes you massively high.

There is one more thing that makes this drug particularly susceptible to rapid but ultimately undesirable growth. I will leave that to later in this post.

This is kind of special - its a business model almost designed for something to go wrong - very wrong.

Very wrong of course is off-label selling and diversion to drug addicts. Worse still is the systematic creation of drug addicts by your sales force who are paid by incentives.

The beginning of the unravelling

On Friday in the late afternoon Insys stock rapidly dropped about 20 percent on no apparent news. Twitter had the story though - a story in a Michigan local paper about a doctor being arrested for allegedly defrauding medicare. 

The money quotes in the paper:

Medicare paid Awerbuch [the allegedly corrupt doctor] $6.9 million from Jan. 1, 2009, through Feb. 6, 2014, for Subsys he prescribed. The next highest amount a U.S. prescriber received was $1.6 million. 

"Awerbuch is responsible for approximately 20.3 percent of the Subsys prescribed to Medicare beneficiaries nationwide during this time," the affidavit stated. 

He wrote 1,283 prescriptions for the drug in five years, while the next closest prescriber wrote 203 prescriptions, the complaint stated.

Now there are something wrong with these dates - because Subsys was only marketed from March 2012 - but - if the paper is to be believed - a single doctor was responsible for over 20 percent of all Medicare Subsys prescriptions. And that doctor is not going to be prescribing any more.

This doctor took to prescribing Subsys very freely and if the story is to be believed contrary to the black-label warnings. He also allegedly defrauded private health care companies - so he is responsible for more of the sales. Allegedly the doctor also prescribed Subsys to the police officer. To quote:

On one visit, an undercover officer asked for a Vicodin prescription and attempted to bribe Awerbuch for the drug with $1,000. The officer told Awerbuch he would sell the drug to coworkers. 

Awerbuch refused the bribe and asked the officer not to sell Vidodin again. He also asked if the officer was a Drug Enforcement Administration for FBI agent. The officer said he was not, and Awerbuch issued him the Vicodin prescription. 

During a later visit, Awerbuch proscribed Subsys to the officer even though the officer had not been diagnosed with cancer.

The affidavit also talks about the doctor giving the "free 30 day trial" to people who are not cancer patients.

Increasing doses

Just in passing the affidavit mentions prescriptions to individual patients. They go up very rapidly consistent with addiction. If you want the bull case for the company that is it. Rapid growth based on addiction.

Diversion

It doesn't take long prowling the internet to work out that there are other issues with Subsys. I am not going to lead you through the underground of drug-diversion websites - but it is not hard on the web to find people who have taken this drug intravenously and some of them report getting distributors to give them the thirty day free samples. Moreover - and this really is an issue - this is a sublingual spray - that is a liquid. The other forms of the drug (lollipops, rice-paper tabs etc) are not liquids. [However if you want a guide to extracting Fentanyl from patches look here... Never underestimate the ingenuity of an addict needing hit.]

It is much easier for a narcotics user to prepare a sterile liquid for IV use than a medicated lollipop. I have a pet suspicion - not proven - that one reason for the very rapid uptake of the spray version is that it is much more suitable for diversion.

Do the Feds close the company?

I am never fond of short-cases where the short seller is reliant on the government to close a business for them (see Herbalife). However this seems as good a candidate as any for government closure.

We have 

(a) easily detectable diversion [indeed we have the prescription of the drug to a police officer without cancer and who previously said that he planned to sell narcotics to his work colleagues],
(b) a drug that seems designed for diversion,
(c) an incentive system for sales people that encourages them to make sales regardless and who - because of their incentives - may be tempted to sell off label,
(d) a single doctor who prescribes a double-digit percentage of the Medicare total for the drug and who is currently under indictment.

Finally we have (e) a drug with perfectly good substitutes such that the loss of the company marketing the drug will mean no real loss to society or patients.  

It seems like an okay short to me. At the minimum the Feds will investigate the sales practices and their link to the Michigan doctor. After all there was someone who was working with patients to get refund approval on many of these prescriptions and there was a salesperson paid a big incentive bonus for these sales.

Oh, and the company is trading at a big multiple of sales and of earnings.

John

Disclosure: unsurprisingly I am short. However I worry about shorting addictive products generally. So take that with a grain of salt.

Further explanation re Gulfports quarterly guidance

Someone, remarkably, as a response to the last post argued that Gulfport's quarter looked quite good and wondered what I was seeing that made me so bearish on the stock.

General observation: it has been widely observed that the single best measure of an oil and gas company management is their finding and development costs. Warren Buffett has made this observation many times.

Here - from fairly recently - 26 February this year - is their guidance for production and capital expenditures for this year.

2014 Guidance

Gulfport continues to estimate full year 2014 production to be in the range of 50,000 BOEPD to 60,000 BOEPD. Capital expenditures for exploration and production activities in 2014 are estimated to be in the range of $675 million to $725 million. Additionally, Gulfport anticipates spending approximately $225 million to $275 million on leasehold acquisitions in the Utica Shale during 2014.

GULFPORT ENERGY CORPORATION

COMPANY GUIDANCE

		Year Ending
		12/31/2014
Forecasted Production (BOE per day)
Utica		44,500 - 54,500
South Louisiana		~5,500
Average Daily Oil Equivalent		50,000 - 60,000
Total Equivalent - MMBOE		18.25 - 21.90
Projected Cash Operating Costs per BOE
Lease Operating Expense - $/BOE		$2.00 - $3.00
Transportation, Processing & Marketing - $/BOE		$2.50 - $3.50
Production Taxes - % of Revenue		4% - 6%
General and Administrative - $/BOE		$1.25 - $2.25
Interest - $MM/Quarter		$4.0 - $4.5
Depreciation, Depletion and Amortization per BOE		$21.00 - $24.00
Budgeted Capital Expenditures - In Millions:
Utica		$594 - $634
Southern Louisiana		$66 - $71
Grizzly		$15 - $20
Total Budgeted E&P Capital Expenditures		$675 - $725
Budgeted Leasehold Expenditures - In Millions:		$225 - $275

Quick summary: they intended to spend $675 to $725 million in capital expenditures and by year end their flow rates would be 50-60 thousand barrels per day.

From yesterday here is their guidance:

2014 Guidance

Gulfport currently estimates full year 2014 average daily production to be in the range of 37,000 BOEPD to 42,000 BOEPD. Capital expenditures for exploration and production activities in 2014 are estimated to be in the range of $715 million to $767 million. Additionally, Gulfport anticipates spending approximately $375 million to $425 million on leasehold acquisitions in the Utica Shale during 2014.

GULFPORT ENERGY CORPORATION

COMPANY GUIDANCE

		Year Ending
		12/31/2014
Forecasted Production (BOE per day)
Utica		31,500 - 36,500
South Louisiana		~5,500
Average Daily Oil Equivalent		37,000 - 42,000
Total Equivalent - MMBOE		13.51 - 15.33
Projected Cash Operating Costs per BOE
Lease Operating Expense - $/BOE		$3.50 - $4.50
Transportation, Processing & Marketing - $/BOE		$3.50 - $4.00
Production Taxes - % of Revenue		4% - 6%
General and Administrative - $/BOE		$1.50 - $2.50
Interest - $MM/Quarter		$4.0 - $4.5
Depreciation, Depletion and Amortization per BOE		$21.00 - $24.00
Budgeted Capital Expenditures - In Millions:
Utica		$634 - $676
Southern Louisiana		$66 - $71
Grizzly		$15 - $20
Total Budgeted E&P Capital Expenditures		$715 - $767
Budgeted Leasehold Expenditures - In Millions:		$375 - $425

We now intend to spend more - $715 to $767 million - that is more - and we intend to produce only 37-42 thousand barrels per day - substantially less.

They also plan to spend more on buying additional leasehold. Historically they have purchased all this leasehold from related parties.

So far the company has had many capital raises based on considerably more bullish guidance.

A considerable amount of the money raised has wound up in the hands of Gulfport's related parties as per the related party statement quoted below.

Are you comfortable?




John


===========================

Related Party Transactions and Relationships

We contract with Athena Construction, L.L.C., or Athena, to provide barge services in our West Cote Blanche Bay and Hackberry fields located along the Louisiana Gulf Coast. During 2013, we paid Athena $5.2 million and owed an additional $1.0 million for such services at December 31, 2013.

Caliber Development Company, LLC, or Caliber, provides building maintenance services for our headquarters in Oklahoma City, Oklahoma. We also lease office space from Caliber. During 2013, we paid Caliber $175,000 and owed $43,000 as of December 31, 2013.

We own a 24.9999% interest in Grizzly Oil Sands ULC, or Grizzly, a Canadian unlimited liability company, through our wholly owned subsidiary Grizzly Holdings, Inc. The remaining interests in Grizzly are owned by Grizzly Oils Sands Inc. As of December 31, 2013, Grizzly had approximately 830,000 acres under lease in the Athabasca and Peace River oil sands regions located in the Alberta Province near Fort McMurray. On October 5, 2012, we entered into an agreement with Grizzly in which we committed to make monthly payments from October 2012 to May 2013 in the aggregate amount of approximately $8.5 million to fund our proportionate share of the construction and development costs of the Algar Lake facility. We also agreed to fund our proportionate share of any unfunded cost overruns in excess of $2.0 million. During 2013, we paid an aggregate of $33.9 million under this agreement and in cash calls.

We have a 25% ownership interest in Muskie Proppant LLC, or Muskie (formerly known as Muskie Holdings LLC). Muskie processes and sells sand for use in hydraulic fracturing by the oil and natural gas industry and holds certain assets, real estate and rights in a lease covering land in Wisconsin that is prospective for mining oil and natural gas fracture grade sand. During the year ended December 31, 2013, we paid $2.2 million in cash calls, increasing our total net investment in Muskie to $7.5 million. We also entered into a loan agreement with Muskie effective July 1, 2013, under which we have loaned Muskie $0.9 million. Interest accrues at the prime rate plus 2.5%. The loan has a maturity date of July 31, 2014. At December 31, 2013, the outstanding balance of the loan was $0.9 million.

During 2011, we invested in Bison Drilling and Field Services LLC, or Bison. Bison owns and operates drilling rigs. During the year ended December 31, 2013, we paid $2.3 million in cash calls. We entered into a loan agreement with Bison effective May 15, 2012, under which Bison may borrow funds from us. Interest accrues at LIBOR plus 0.28% or 8%, whichever is lower, and is to be paid on a paid-in-kind basis by increasing the outstanding balance of the loan. The loan has a maturity date of January 31, 2015. We loaned Bison $1.6 million during the first nine months of 2012, all of which was repaid by Bison during the third quarter of 2012. We have made no loans to Bison since that time.

During the first quarter of 2012, we, Windsor Ohio LLC, or Windsor Ohio, and Rhino Energy LLC formed Timber Wolf Terminals LLC, or Timber Wolf. We currently have a 50% interest in Timber Wolf and paid $0.1 million in cash calls during 2013. Timber Wolf was formed to operate a crude/condensate terminal and a sand transloading facility in Ohio.

During the first quarter of 2012, we purchased a 22.5% ownership interest in Windsor Midstream LLC, or Midstream, at a cost of $7.0 million. Midstream owns a 28.4% interest in Coronado Midstream LLC (formerly known as MidMar Gas LLC), a gas processing plant in West Texas. During the year ended December 31, 2013, we paid an immaterial amount in net cash calls.

During the second quarter of 2012, we and Windsor Ohio formed Blackhawk Midstream LLC, or Blackhawk. We are the manager of Blackhawk and have a 50% ownership interest. Blackhawk coordinates gathering, compression, processing and marketing activities for us in connection with the development of our Utica Shale acreage. During the year ended December 31, 2013, we paid $0.7 million in cash calls to Blackhawk. On January 28, 2014, Blackhawk closed on the sale of its equity interest in Ohio Gathering Company, LLC and Ohio Condensate Company, LLC for a purchase price of $190.0 million, of which $14.3 million was placed in escrow. We received $84.8 million in net proceeds from this transaction.

Panther Drilling Systems, LLC, or Panther, performs directional drilling services for the Company. During the year ended December 31, 2013, we were billed $12.6 million for these services and, at December 31, 2013, we owed Panther approximately $1.8 million.

Redback Directional Services, LLC, or Redback, provides coil tubing and flow back services for the Company. Redback billed us $0.1 million for these services during the year ended December 31, 2013, and no amounts were owed to Redback at December 31, 2013.

Effective April 1, 2010, we entered into an area of mutual interest agreement with Windsor Niobrara LLC, or Windsor Niobrara, to jointly acquire oil and gas leases in Northwest Colorado for the purpose of exploring, exploiting and producing oil and gas from the Niobrara Formation. The agreement provides that each party must offer the other party the right to participate in such acquisitions on a 50/50 basis. The parties also agreed, subject to certain exceptions, to share third-party costs and expenses in proportion to their respective participating interests and pay certain other fees as provided in the agreement. In connection with this agreement, we and Windsor Niobrara also entered into a development agreement, effective as of April 1, 2010, pursuant to which we and Windsor Niobrara agreed to jointly develop the contract area, and we agreed to act as the operator under the terms of a joint operating agreement. As operator, we are responsible for daily operations, monthly operation billings and monthly revenue disbursements for these properties. For the year ended December 31, 2013, we billed Windsor Niobrara $0.9 million and, at December 31, 2013, Windsor Niobrara owed us an immaterial amount for these services.

Windsor Ohio participated with us in the acquisition of certain leasehold interests in acreage located in the Utica Shale in Ohio. We are the operator of this acreage in the Utica Shale. As operator, we are responsible for daily operations, monthly operation billings and monthly revenue disbursements for these properties. For the year ended December 31, 2013, we billed Windsor Ohio approximately $73.4 million for these services. At December 31, 2013, Windsor Ohio owed us approximately $1.6 million for these services.

In February 2013, we entered into a purchase and sale agreement with Windsor Ohio pursuant to which Windsor Ohio agreed to sell to us approximately 22,000 net acres representing 100% of its right, title and interest in and to certain leasehold interests in the Utica Shale in Eastern Ohio for approximately $220.4 million, subject to certain adjustments. This transaction, which closed on February 15, 2013, excluded Windsor Ohio’s interest in 14 existing wells and 16 proposed future wells together with certain acreage surrounding those wells. Through this transaction, we acquired an additional approximately 16.2% interest in our Utica Shale leases, increasing our working interest in the acreage to 93.8%. All of the acreage included in this transaction was nonproducing at the time of the acquisition and we are the operator of all of this acreage, subject to existing development and operating agreements between the parties. Pending the completion of title review after the closing, approximately $33.6 million of the purchase price was placed in an escrow account. In May 2013, the escrow accounts for both this acquisition and a prior acquisition with Windsor Ohio that was completed in December 2012 were terminated, and an aggregate of $10.0 million was returned to us. The $77.5 million balance of the escrow accounts was disbursed to Windsor Ohio based on the results of title review. The transaction was approved by a special committee of our board of directors, which engaged independent counsel and financial advisors to assist with its review.

Mr. Mike Liddell, our former Chairman of the Board and one of our named executive officers during 2013, is the operating member and/or an officer of each of Windsor Niobrara, Windsor Ohio, Windsor Midstream, Athena, Panther, Redback, Timber Wolf, Bison and Caliber and holds a 10% participation interest in Windsor Ohio and a direct or indirect contingent participation or profits interest ranging from 2.5% to 10.0% in Windsor Niobrara, Athena, Redback, Caliber, Windsor Midsteam, Muskie, Bison, Panther and Grizzly Oil Sands Inc., none of which interests are dilutive to the interests, if any, that we hold in such entities.

Gulfport Energy's (GPOR) guidance

Dear Investor (sucker):

We will be producing far less oil…but only after spending far more of your dollars (that you kindly provided for us in that last stock offering that we consummated on the original unrealistic but safe-harbor-protected assumptions.) 

Sorry to disappoint, but thanks a billion (or two).

Sincerely

Ye Oklahoma City Boys

Link: First Quarter results

Just how weak are Bill Ackman's examples?

Bill Ackman's ad nauseum attack on Herbalife has become a parody of itself. It has been widely acknowledge that Bill Ackman has had problems finding victims. He got the Nevada Attorney General interested but she told consumer activists that she was not going ahead without victims.

Ackman's websites however are truly strained. Here is a section from his profile of distributor Michael Burton. I am quoting verbatim:


The Burtons’ businesses do considerable damage to consumers.  Consumer complaints regarding Global Home Business Systems, for example, are particularly revealing:

• One complaint, from an individual who purchased the GHBS “starter pack” in order to “become part of the Herbalife Company,” cites the extreme difficulty of connecting with a GHBS employee who was supposed to assist in setting up that individual’s Herbalife business.  The complaint notes that it had been one month of “phone tag” and cancellations without any contact from the GHBS employee, despite the fact that “[GHBS] claim[s] that the whole program is up and running within 2 weeks.”  See http://www.ripoffreport.com/r/Global-Home-Business-Systems-HerbalifeElaine-Depinto/internet/Global-Home-Business-Systems-Herbalife-Elaine-Depinto-company-rip-off-complete-waste-of-453259.
• Another complaint  from a GHBS customer notes that “they told me that to weed out the peoiple [sic] that really wanted to work they were charging $9.95 shipping for the video.  [A]nd when you get the DVD I viewed the DVD and there was noting [sic] there to help me start a buisness [sic] [in] Los Angles California.”  See http://www.ripoffreport.com/r/global-home-business-systems/los-angles-california-/global-home-business-systems-they-told-me-that-to-weed-out-the-peoiple-that-really-wanted-462221.

End quote:

Please read these links. In the first one the person has been ripped off for $9.95 - and not $9.95 he paid to Herbalife. The $9.95 was paid to Burton.

In the second link it was $50 - but there is considerably less documentation.

This constitutes, and I am quoting Ackman's site again: "considerable damage to consumers".

Seriously - this is the strength of material on which he has bet his reputation and the existence of Pershing Square. I have a staff member who I recruited from America and whom Verizon Wireless charged $15 for data consumed after he had left the country. On this basis I encourage a billion dollar bet against Verizon...

By contrast, every distributor in Ackman's documentary lost serious amounts of money - but the money lost was not lost to Herbalife. It was lost to distributors Herbalife has now sacked. It seems -- that at least with respect to the material in the documentary Ackman is fighting yesteryear's battles.





John

Passed out and fully plastered: a comment on free drugs in America

I have never really looked at Allergan but was horrified to find a rewards program for using Botox (a toxin derived from botulism and which makes your skin taught by killing anything that causes wrinkles). Yes, take your Botox injections and earn 200 points... trade your points for free drugs. Downstream cosmetic surgeons can also sign you up for the "Brilliant Distinctions" program and presumably they earn referral fees.

Along with free Fentanyl - something more widespread than the I originally thought, you can be passed out and fully plastered in America. Your chance to look like Chairman Mao under the glass, glazed eyes, skin stretched taut.

John

The Better Business Bureau does not agree with Bill Ackman on Herbalife

Here is a screenshot of the page from the Better Business Bureau on Herbalife:

Yes, that is an A+ rating.

The alert is for pending government investigations (something that has been in the press lately).

The text is as follows:


BBB Accreditation
A BBB Accredited Business since 04/19/1990

BBB has determined that Herbalife International of America, Inc. meets BBB accreditation standards, which include a commitment to make a good faith effort to resolve any consumer complaints. BBB Accredited Businesses pay a fee for accreditation review/monitoring and for support of BBB services to the public.

BBB accreditation does not mean that the business' products or services have been evaluated or endorsed by BBB, or that BBB has made a determination as to the business' product quality or competency in performing services.

Reason for Rating

BBB rating is based on 16 factors. Get the details about the factors considered.

Factors that raised Herbalife International of America, Inc.'s rating include:

Length of time business has been operating.
Complaint volume filed with BBB for business of this size.
Response to 8 complaint(s) filed against business.
Resolution of complaint(s) filed against business.
BBB has sufficient background information on this business.
- See more at: http://www.bbb.org/sanjose/business-reviews/multi-level-selling-companies/herbalife-international-of-america-in-los-angeles-ca-20585#sthash.yOlIBr6k.dpuf


I have seldom seen a position where the New York intelligentsia and the facts on the ground disagree so strongly.




John

What if anything is civil insider trading?

The SEC today laid civil insider trading charges against a BP executive who (they allege) had information about the magnitude of the Deepwater Horizon oil spill before that information was public.

They allege that:

On April 29 and 30, 2010, while in possession of this material, nonpublic information, and in breach of duties owed to BP and its shareholders, Seilhan caused to be sold his and his family’s entire $1 million portfolio of BP securities. Specifically, Defendant caused to be sold his and his family’s holdings in the BP Stock Fund, a fund consisting almost entirely of BP American Depository Shares (“ADSs”), held in Defendant’s and his family’s retirement accounts at BP. In addition, Defendant exercised three different sets of options to purchase BP ADSs and immediately sold the underlying shares. 

This was nine to ten days after the explosion and Deepwater Horizon was already on the front page.

The main argument for the story was that when he sold the "official" leakage rate was about 5,000 barrels of oil per day. This was adjusted upwards eventually to over 50,000 barrels per day and the defendant knew that the real flow rate was higher than the publicly stated flow rate.

Here is what the WSJ story said a day before the share sales:

Vast swaths of reddish brown were visible Monday afternoon from a Coast Guard helicopter hovering 400 feet above the drilling site, where the small armada of ships hired by BP worked to collect the oil. A few miles away, a C-130 airplane released chemicals to disperse the long column of oil. A lighter sheen seemed to stretch to the horizon. 

Wildlife is already starting to be affected, and three sperm whales have been spotted in the area that is covered by an oily sheen. 

Cleanup crews from Louisiana to Florida are setting up booms intended to block as much oil as possible from coming ashore, said Steve Benz, chief executive of Marine Spill Response Corp., an industry-funded nonprofit company that cleans up spills. The crews are also preparing to clean up any oil that does come ashore.

Investors are growing worried about the rising costs associated with shutting off the well and cleaning up the spill. BP's American depository shares fell 3.3% to $57.91 in 4 p.m. Monday New York Stock Exchange composite trading, as other large oil companies rose in value.

The public information seemed at the time more-than-a-bit dire. Here is a picture from the WSJ of the size of the oil spill the day before the BP executive sold his shares:

The spill stretched about 100 miles and I suspect simple maths might have told you the spill was fairly large.

The share sales happened nine and ten days after the oil spill - and when - and I remember it at the time - BP completely dominated the financial blogosphere.

I am struggling here to see what the case might be. This is a civil case. If it were a criminal case I would have a very hard time convicting. The executive was - like many executives - overweight his company's shares and saw his career and financial wealth dissolving. He waited until the WSJ had a fairly accurate picture of the problem and then sold his shares.

As far as I can see civil insider trading is when the case is too weak for Preet Bharara and the SEC doesn't want to seem useless. In other words it is when the government ruins someones life without enough evidence for a criminal conviction.

This is - or at least should be - a criminal case. Or it should be dropped. I would go for dropped but the SEC might have better information than me. But in that case they should be convincing Mr Bharara and I would be all-in-favour of the Attorney trying the case.




John

It should be noted the case was settled. I was not the only person who viewed the case as weak and the government as heavy-handed.

That said - its probably a good policy if you are an employee of Goldman Sachs to sell ONLY on the day after earnings are announced. There is a strong case for being purer than the driven snow. After all, the government employee who is going to prosecute you makes MUCH less money than any mid-level Goldman Sachs employee.

J

I am in the New York Post

There is an article in the New York Post about me.

Here it is.

http://nypost.com/2014/04/16/ackman-adversary-john-hempton-falls-off-herba-cliff/

Enjoy.

John

Dissenting proxies

I have absolutely no idea of the issues involved at Harvard Illinois Bancorp - but they led to one of the funnier dissenting proxies I have ever seen.

I will save you the bother of reading. The introduction is as follows:

Dear Fellow Shareholder,

Below is a picture taken at last year’s annual shareholder meeting of our Bank’s Chairman.  None of the other board members bothered to wake him up.

Photo taken at annual meeting on May 23, 2013 at 2:54 pm.

If you, like me, believe it’s time to bring a fresh influence to our Bank’s board of directors, please vote the GREEN proxy card for Mark Saladin.

Priceless.




John

Charlotte: an old meeting with Bank of America

I finally got out of the hotel and walked around the street of Charlotte a little. Still sick, just less sick than this morning.

The sun was out. The weather was perfect. The blossom pink on the trees and everything so clean.

--

Last time I was here was I think in 2002 and it was a brief visit. I met with the investor relations departments of Duke Energy, First Union (!) and Bank of America. It was the BofA visit that defined the trip.

I spent half an hour trying to tease out what an ugly credit cycle looked like for them and in exasperation they gave up. They said (and you can probably work out the date by the numbers which seem so small now)...

We have 36 billion dollars in revenue. 18 billion in costs and 4 billion in credit costs. Surely it is more important to watch where the 36 and the 18 go than to focus on the 4. 

The world in Charlotte is so clean.




John