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It's easy to imagine that illegal insider trading is mostly a game played by slick bad guys or aggressive traders who sometimes cross the line.
The story that federal prosecutors tell in the recent indictment of former Life Time Fitness Vice President Shane Fleming and eight others is a lot different. What's striking is the very ordinariness of the people involved. They include a mortgage broker, a Realtor and an employee of a real estate development company.
The indictment describes them as such novices at this sort of thing that they had to phone up brokerage firms just to ask how listed stock options worked. It's a cautionary tale, if proved in court, about how quick profits can easily tempt unsophisticated people to break the law.
Fleming in early 2015 worked at Life Time, a health and fitness industry leader with revenue in its last full year as a public company of $1.29 billion. The stock of the Chanhassen-based company traded on the New York Stock Exchange.
Unbeknown to the market, though, Life Time in the summer of 2014 had received an unsolicited letter proposing an acquisition, kicking off a process that resulted in the company eventually getting acquired by private equity investors.
Fleming, now 54, was described in the federal indictment as a vice president in sales. His attorney, with the firm Perkins Coie in Arizona, declined to comment on the indictment and related SEC charges. What we know, however, is that he wasn't one of the top executive officers of the company, so he wouldn't likely have been at the negotiating table with partners of a private equity fund.
As alleged in the federal documents, Fleming only found out that a potential going-private transaction was in the works in February 2015. Prosecutors say he was also warned he had a duty to not say anything about the acquisition and to not trade on the information. Instead, the federal authorities say, he shared the news with an old friend and partner in an online advertising business, identified in the indictment as Bret Beshey.
Beshey, who did not yet have legal counsel named in federal court filings, allegedly shared the information with his girlfriend. She in turn had an old friend going back to the 1980s, now self-employed in the garbage removal business in western New York. This old friend was soon in the loop as well, according to the indictment, being assured that the information had come straight from an executive at Life Time.
What's interesting about the story, as alleged in the federal documents, is that these people were not sophisticated securities traders. They didn't know for sure how to go about making a lot of money in a hurry even with the knowledge that Life Time was about to be taken over.
The SEC complaint quoted from a call Beshey placed to a brokerage firm about buying some call options in advance of a company takeover that included, in part, his simple plea for an explanation.
Here's a snippet of this phone call included in the SEC's document: "If you are trading, and I've heard of … companies that are trading and eventually they sometimes are bought and they go private and the company will buy out all of the existing stock that is outstanding, you know. So how does that work? Like, say for example if I had, if I had just bought options on a stock …"
Few of us sound like speech tournament champions in phone recordings, but the gist of what the SEC described was Beshey wondering whether a call option would be worth much when the company got bought. And yes, it would be.
This was too good of a scheme to keep quiet, and one of the people Beshey allegedly tipped, a real estate agent in suburban Chicago, allegedly tipped a mortgage broker and three others — all described as his friends.
A call option is the right, but not the obligation, to buy shares at a specific price. If Life Time stock is trading at $57 per share, these options can be bought pretty cheaply, because who would want to own the right to buy at $65?
News of Life Time's deal did finally leak, as the Wall Street Journal in early March 2015 reported that two private equity firms were near a deal. The stock price soared, reaching more than $69 per share. The trades described in the indictment, generally for options that granted the right to buy at $60 or $65 per share, suddenly looked awfully shrewd. It wasn't long before the formal announcement finally came: a deal at $72.10 per share.
Altogether, as alleged in the SEC suit, the defendants cleared about $867,000.
Then, the prosecutors say, it came time to send some profits up the chain to pay for the tip. One of those debts, as alleged in a federal document, got settled with delivery of "at least 10 pounds of marijuana." At the top of the chain was Shane Fleming, who was paid "approximately $10,000 in cash for sharing the inside information about Life Time," as alleged in the SEC complaint. That was it, just $10,000 for a midcareer executive in sales.
The allegations in the Life Time case are a reminder for anyone of the risks in trading on insider tips. Even if you work miles from the world of securities trading, one of the many people you encounter walking through life may call up with a seemingly can't-lose tip. They know someone who knows someone, they may say, and have heard that a company is about to make an announcement that is certain to move the stock.
Don't let them get even halfway through the pitch before you hang up.
lee.schafer@startribune.com 612-673-4302
