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SemGroup alarms came early
Court documents show that many warning flags were raised in the year prior to bankruptcy.
Documents show many warning flags were raised in the year before the bankruptcy filing by the company, headquartered at 61st Street and Yale Avenue. TOM GILBERT/Tulsa World file
By ROD WALTON World Staff Writer
Published:
4/25/2009 2:23 AM
Last Modified: 4/25/2009 3:11 AM
Complete coverage:
Read all the stories and documents related to the SemGroup collapse.
Some SemGroup LP insiders claim that they did not realize the devastating impact of the company's futures trading losses until it was too late, but outsiders raised plenty of warning flags in the year prior to bankruptcy last year, according to a Tulsa World analysis of court documents.
The exhibits, mainly e-mails, charts and other correspondence, were filed as part of U.S. examiner's report released last week in Delaware bankruptcy court. Former FBI Director Louis Freeh's group's four-month probe found that co-founders Tom Kivisto and Greg Wallace, among others, allegedly mismanaged the company, violated or ignored their own rules against risky transactions and may have mislead creditors.
Going naked
Prudential Bache Commodities' trading group, which worked with SemGroup on oil futures transactions, began reviewing its client's practices on March 19, 2008, due to overall volatility in the market. By April, Prudential Bache's managing director for futures trading Chris Damilatis was questioning Kivisto about certain practices such as selling "naked" options, which were futures transactions not matched by actual physical inventory of oil.
"Our primary concern is the naked selling of short options," Damilatis wrote on May 8, more than two months before the bankruptcy
filing. Short options meant that SemGroup was trading on the belief that oil prices would fall from the current levels.
View the Inventory vs. Trading exhibit.
SemGroup's own risk-management policy prohibited the sale of naked options, he added.
"The positions currently on with Prudential clearly indicate a large naked option position," Damilatis wrote.
View the Prudential email to Kivisto.
Charts filed in the U.S. examiner's probe indicated that SemGroup's trading positions were consistently 5 million to nearly 20 million barrels of oil above what the company actually had in inventory. SemGroup also violated its stop-loss limits dozens of times in 2007 and 2008, according to the exhibits.
View the trading limit violations exhibit.
More than it bargained for
Going over the limit was apparently nothing new in Kivisto's trading experience, according to allegations in the investigation. The stop-loss limits did not curtail risks in a boldly "short" trading strategy that went from $1 billion in mark-to-market losses in January 2007 to nearly $3 billion by June 2008, records show.
ConAgra's commodity trading partnership with SemGroup raised other concerns even earlier than Prudential Bache. In a March 26, 2007, e-mail by Kivisto to administrative assistant Sharon Pens and company trader Mia Oven, he noted ConAgra's desire not to be out more than $75 million in options.
"Right now, for the months May '07 forward, they believe we have collected $127,000,000 in premiums," Kivisto e-mailed Pens and Oven. "This is obviously $52 million over their self-imposed limits."
View the Kivisto email.
Pens, a longtime assistant to Kivisto, was escorted out of SemGroup offices on the same day as Kivisto in July 2008. Kivisto was placed on administrative leave and later fired, allegedly owing his former company more than $300 million on trading losses incurred by his personal company, Westback Purchasing Co.
Kivisto allegedly hired Oven and another inexperienced trader, Jim Coen, to keep control of his secretive options strategy, according to the examiner's report. Oven, who allegedly had an "intimate relationship" with Kivisto earlier in the decade, the examiner wrote, received a $1.5 million bonus in 2007. Oven, through her attorney, has denied any improper relationship with Kivisto.
Peppered by questions
Moody's Investor Service analyst Andrew Oram wrote a report on July 17, 2008 — the day that news broke of SemGroup's financial problems — downgrading the company's bond rating due to its debt load. Months earlier, Oram was peppering top executives about why he had been removed from the SemGroup link for reports and had not received a monthly data package since the November report.
In early June, Oram e-mailed SemGroup officials about industry rumors that the company was on "the wrong side of a bad trade" the previous week. Oil futures prices were rising beyond $100 per barrel and would peak at a record $147 in July.
View Moody’s email to Kivisto.
"I need to know what the surge has done to your ability to find the surge in working capital and margin calls," Oram asked on June 9. "Would prefer not to have to put out a cautionary press release so it would be good to put dimensions on the problem."
SemGroup executive Michael Brochetti forwarded the Oram e-mail to Kivisto, Oven and fellow trader Jim Coen. "Don't know what he is talking about," Brochetti commented in the forward.
Oram was not the only one becoming more curious about SemGroup's trading issues and their impact on cash flow. Magellan Midstream Partners' vice president of finance, Jeff Holman, noted in spring 2008 that his Tulsa-based refined products' terminal and pipeline company also had started reviewing SemGroup's financial status.
Magellan was worried about its business partners' negative cash flow from operations, Holman wrote in a May 8 e-mail to his SemGroup counterpart, Don Spaugy. He had more questions eight days later.
"I'm not sure I understand how unrealized derivative losses can affect revenues and would like to understand that a little better," Holman wrote in his May 16 e-mail. "But to me the biggest question is still how to get comfortable with the overall negative cash from ops."
View the Magellan emails.
The margin calls on those trading losses eventually sapped all of SemGroup's available cash. On May 6, two days before Holman raised his concerns, finance vice president Terry Ronan e-mailed Wallace, the chief financial officer, with news that crude futures rose another $2 that day and margin calls would further deplete the cash flow.
Ronan, hired only two months earlier and destined to replace Kivisto as CEO in July, told his then-boss Wallace that he was "working to get the best estimate of where we are," according to a copy of the May 6 e-mail. "I recommend that we start making phone calls or risk being underwater by Friday."
View the Ronan email.
The U.S. examiner alleged that hundred of millions in those SemGroup paper losses may have been moved to books of various units within the complex corporate structure. SemEuro Supply Ltd. endured one such alleged accounting hit, according to court documents.
SemEuro Supply director John Spencer sent Wallace a June 17 e-mail pointing out that the overseas unit's mark-to-market loss went from $58.5 million in December 2007 to $141 million in May 2008. By best account, Spencer noted that $125 million of that was due to Tulsa activities.
"You are no doubt aware that these figures have attracted the attention of our syndicated bankers here," Spencer reminded Wallace. "On the face of it, this outstanding liability on SemEuro Supply's books has the potential to render the company insolvent."
Spencer was not content to leave it unresolved, according to his June 17 communique with Wallace. "I have important legal duties not to recklessly allow the company to trade itself into insolvency."
View the Spencer email to Wallace.
The U.S. examiner's report indicated that the trades were removed from SemEuro's books.
Unable to keep paying its margin calls on the New York Mercantile Exchange, SemGroup transferred its unrealized trading losses, totaling at least $2.4 billion, to Barclay's financial firm on July 14, eight days before the bankruptcy filing. The move converted the running account into finalized losses on SemGroup's books and inspired creditors to close in, according to reports.
And in the end
Kivisto was gone by July 18, while Wallace took disability leave and never returned to the company. Kevin Foxx, who is accused of having conflicts of interest with office-related investments and reportedly told investigators that the SemGroup officials simply believed "Tom will fix it," resigned his company position on July 21 but kept the CEO role with publicly traded subsidiary SemGroup Energy Partners LP.
View the exhibit.
SemGroup Treasurer Brent Cooper already had resigned his position four days before Foxx sent his letter. Cooper, whom the examiner alleges to be a confidant of Kivisto and Wallace, guided much of the borrowing base reports sent to creditors, according to the investigation.
His regular mark-to-market and position reports often indicated losses on crude oil and gas futures trades, but Cooper finished each account by noting "all restricted persons have operated within the guidelines of the company's risk management policy," according to the exhibits. The U.S. examiner would eventually disagree.
On July 17, the day that SemGroup's collapse went from office e-mails to news headlines, Cooper informed colleagues Kivisto, Wallace and Foxx that he was going on disability leave.
"My health has deteriorated to the point that I cannot function at work," his e-mail read. "The company will be better served if I discontinue my role. I will always be available to answer questions."
View the Brent Cooper email.
Cooper, however, refused to answer the U.S. examiner's questions, according to the report. Kivisto and Wallace also invoked their Fifth Amendment rights against self-incrimination.
Kivisto, typically laconic or wordless in most of the e-mails found among the examiner's exhibits, apparently felt moved to offer a few parting words to his longtime colleague.
"You are the best," Kivisto e-mailed Cooper.
Rod Walton 581-8457
rod.walton@tulsaworld.com
By ROD WALTON World Staff Writer
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Some reader comments for this story were copied from "
SemGroup warning signs appeared as early as 2007, court documents indicate
," which was published on 4/24/2009.
Report Comment
Arbythree
, Tulsa (4/24/2009 1:56:09 PM)
And it goes on and on and on. When is the trial?
Report Comment
LocalBoy
, B.A. (4/24/2009 2:58:40 PM)
When do all the suppliers and employees that never got paid what they were owed get to drag these guys out of their out of their over-sized mansions and start auctioning off the exotic cars?
NOT SOON ENOUGH!
Report Comment
GETAGRIP
, (4/24/2009 3:07:18 PM)
If SEM could of held on for 2 more weeks last July when oil dropped they would of had it made.
Word is Goldman Sacks stacked the deck for their failure. I don't understand what would be their motivation.
Report Comment
Mike S
, Tulsa (4/24/2009 3:35:59 PM)
"ooh, semgroup is such a wonderful corporate citizen" "ooh, look at the great things semgroup is doing for Tulsa"
Thanks for the black eye Semgroup. Now if you don't mind, why don't you go tarnish some other city's image now?
Report Comment
Cooldaddy
, Broken Arrow (4/24/2009 4:39:03 PM)
I don't care what anyone says. My take on SemGroup is that management led to their demise. Crooks.
Report Comment
VoteNo
, Tulsa (4/24/2009 5:35:24 PM)
Of course they knew! They had a stealth lay off in November '07 and started tightening controls on spending around that same time. Everyone just kept hoping their Wunderkind would pull off a miracle and make it all right somehow.
The folks that got let go in November '07 had a REALLY tough time getting new jobs. Potential employers didn't believe that they had really been laid off from SemGroup, aka - The Best Company Ever.
It didn't take a four month investigation for anyone that worked there to know that something had gone very wrong.
Report Comment
O&Gtrader
, ft. worth (4/24/2009 5:53:16 PM)
GETAGRIP: Are you suggesting it's OK to continue to lose up to $2.4 billion of company money (basically all of it) and allegedly have to sell off parts of it for margin calls just to prove you're smarter than the oil markets? Even Ronan knows to "never run out of money".
That is why CEOs of energy companies should never, ever, ever, ever, ever trade oil futures if they also dictate cash flow instructions. It truly is against the rules. Now you can see why.
I wonder if SGLP was taken private to raise margin call money? I used to trade through PruBache's New York office and they really get into the management of your trading business.
I suspect that SemGroup wasn't in a big trading hole with them. PruBache wouldn't allow it from my point of view. I wouldn't be surprised to learn that TK could have run away from inquisitive, well managed futures brokers and opened other futures accounts when he came under broker scrutiny as the losses mounted.
Report Comment
human1
, Tulsa (4/24/2009 9:01:49 PM)
And we have women in prison in Oklahoma for bounced checks under $500.00.
It just seems to pay to be an alledged white collar crook, it's capitism at its best!
I wonder if these people gave compaign funds to Mr. Ritz who pushed for the 10 commandment statue, and if they all went to church together!
Report Comment
justiceawaits
, Claremore (4/25/2009 7:50:25 AM)
If he gets in prison what he gave to others, Tommy will be Tammy by the time he/she gets out.
Report Comment
Graychin
, Eucha (4/25/2009 9:19:02 AM)
Tom Kivisto has turned out to be the latest in a long string of Tulsa business "geniuses" who turned out to be much less than he appeared to be.
Remember Bill Bartmann?
Report Comment
O&Gtrader
, ft. worth (4/25/2009 10:32:21 AM)
First, thanks to the folk at TW for producing and publishing excellent synopses of what happened at SemGroup.
It sounds like the only division head with a sense of financial responsibility was Mr. Spencer in Europe who discovered a mark-to-market trading loss placed on his book of business: "Spencer was not content to leave it unresolved, according to his June 17 communique with Wallace. "I have important legal duties not to recklessly allow the company to trade itself into insolvency."
All the execs at SemGroup had the exact same responsibility.
Also, as an aside, it was sort of stunning to read about Conagra's "trading venture" with SemGroup. Conagra is a very conservative commodities company with a legacy of commodity trading experience. Unless they got their money out of the deal, I imagine Conagra will be looking for a new employee at some point as a result of the SemGroup/Conagra venture.
Report Comment
Incredulous
, (4/25/2009 10:39:31 AM)
Where is Drew? Yes Oklahoma petty crimes are punished by harsh sentences but major crimes are not. Is this the good old boy network in place? It would seem that Oklahoma has no laws to be broken by this theft/fraud. What about Glenn Coffee? hasn't he violated the 20 strikes and your out law?
Report Comment
eddieo
, Tulsa (4/25/2009 12:01:57 PM)
It just shows the caliber some people are... not much in my book. Live a lie and "die" by the truth. I hope Mr. K realises the impact his lack of judgement and greed had on people in Tulsa and other places. How much is enough? To what ends will someone go to make it? Obviously, it was all about him. If something looks too good to be true... it normally is. I had the same experience working for the Nanci Corporation in the 90s. I was young and dumb... boy, have I grown up and gotten wise in my "old" age!
Report Comment
Arbythree
, Tulsa (4/25/2009 1:11:53 PM)
Good point Incredulous.
Report Comment
Graychin
, Eucha (4/25/2009 5:38:18 PM)
The Feds are all over this. If Drew Edmondson piled on, you would accuse him of grandstanding.
Report Comment
Beagle
, (4/25/2009 9:04:54 PM)
Get-a-grip: What was the motivation of the counter-parties? Just watch these episodes of "The Sopranos" from season 2:"The Happy Wanderer" and "Bust Out." Here's the key - David Scatino = TK, His sporting goods store = assets of SEM, The Executive Card Game = Oil Futures Trading.
Report Comment
O&Gtrader
, ft. worth (4/26/2009 10:20:51 AM)
Here's an interesting tidbit: I know an investment banker in Chicago who sells energy commodity derivative hedging structures to producers and end-users of energy commodities. He has made copies of Freeh's pdf report on SemGroup and is sending it to all his clients. He wants his clients to compare what happened "risk-wise" at Semgroup with their own internal risk management procedures. As a result, it is possible that many energy based jobs will be saved somewhere.
Report Comment
black gold
, (4/28/2009 10:35:14 PM)
To O&G Trader: There were others at Sem in management roles who were suspicious about the finances. Some had asked for financial reports so they could obtain bonding, forecast next year's budgets, etc. The reports were not forthcoming but the response from the boys at the top was that the reports were on the way. Some very good people who had some clue about what was going on were shown the door in late '07 and early '08. Their replacements probably never got up to speed before the walls closed in.
Report Comment
O&Gtrader
, ft. worth (5/1/2009 11:21:27 AM)
black gold: I am sorry I am late responding to your post. Very interesting comment you made. Someone ratted out SemGroup's bad option trade position (the "wrong side" comment in the pdf) to Moody's in 2007 according to the Freeh report. It might have been one of those departed folk. Or, it could have been Blackstone since Blackstone ratted out the optiontrades to RBZ FInancial according to what the TW printed.
I wish I could wager money on one thing: I bet that Foxx or Wallace went to TK at some point and said "Let's get out of the trades and start over.." and I bet the response was, "OK, but YOU are going to make ME take a huge loss....." thus tranferring the "losing money" responsibility to another exec. It is so common to hear that in the energy trading industry. I heard it quoted on a natural gas basis trade back in 2005 or so. The trader was down a couple hundred thousand and at the extent of his approved risk per trade on the basis trade and the risk manager told him to get out of the trade. Trader says, "OK, but you are going to make me take a $200,000 loss..." Like the loss was the risk manager's fault.
Risk manager said, "That's my job. Do it." And it was done. And that company is still in business today with all its employees.
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