With Aspirity Energy bankruptcy paying little, investors criticize former owner, bankruptcy trustee

Two years after Aspirity Energy filed for bankruptcy, the U.S. trustee in charge of liquidating the failed Minneapolis energy company had owner Tim Krieger on a witness stand — under oath.

But over the course of a nearly three-hour examination, Krieger frustrated the veteran bankruptcy lawyer at nearly every turn. Citing his Fifth Amendment right not to incriminate himself in any criminal acts, Krieger refused to answer more than 300 questions, according to a transcript of the court-approved interview.

The former national wrestling champion from Iowa State refused to provide any details on his 30-year career as a commodities trader. He declined to describe his role in a corporate restructuring that allowed him to allegedly strip Aspirity of more than $20 million in assets.

And he wouldn't shed any light on why he allegedly transferred millions of dollars in cash to himself, his friends and other company insiders, the transcript shows.

A year later, trustee Randall Seaver threw in the towel. In August 2020, he agreed to dismiss his claims of fraud against Krieger in exchange for $725,000, saying further litigation would likely be fruitless because Krieger "has few remaining assets," court records show. Bankruptcy court Judge Kathleen Sanberg approved the settlement a month later.

Now, Seaver is moving to make sure none of that money flows to Aspirity's investors. In late December, he filed motions objecting to $11 million in claims filed by more than 200 investors, saying there isn't enough money left to pay them a cent.

Instead, the bulk of the settlement proceeds will go to lawyers who worked on behalf of the bankrupt company for the past four years, court records show.

"I think the settlement was bogus," said Samuel Edison, a California investor who lost $105,000. "Randall Seaver didn't protect the noteholders at all. He openly said he didn't have enough money to do a proper forensic accounting, so he accepted Krieger's representations of his financial status."

Seaver declined to discuss the case. In a written response to questions, Matthew Burton, one of Seaver's attorneys, noted that hiring a forensic accountant would have been "expensive" and would have "reduced the distribution available to creditors." He also noted that Seaver hired attorneys who are "well-versed at conducting forensic discovery."

Krieger also declined to be interviewed directly. He wrote lengthy, profanity-laced answers to questions from the Star Tribune over e-mail.

In them, he repeatedly denied wrongdoing and blamed most of Aspirity's troubles on former company executives.

"I didn't take $18 million out of the business when it was on the verge of going out of business," he said. "All distributions were proper."

"Why would I want to loot or destroy a company that I made so much money on? That I worked so hard on? " Krieger said. "The truth is I loved that company and did everything I could to save it. I sold virtually all my assets and put in almost everything I had trying to save it."

The investors who lost out aim their fire at both Krieger and the team, led by Seaver, brought on to work out the debt.

Burton and the other attorneys altogether will be paid at least $410,057 for their work on the case. Terry Gerth, an investor whose family lost more than $360,000 in Aspirity, said he decided not to hire his own forensic accountants to investigate Krieger after finding out it would cost $25,000 to $50,000.

"Seaver seemed to drop the ball," Gerth said.

Barbara Young blamed the death of her longtime partner, James Kelley, on Aspirity's collapse. Young and Kelley lost $559,000, more than any other investor who has filed a claim, bankruptcy records show.

Krieger noted that Aspirity warned people that they could lose everything by investing in the firm's unsecured subordinated notes, a small-scale form of junk bonds. Krieger said the company even returned $1 million to investors shortly before the board voted to close the troubled firm in 2017.

"I'm sorry they lost their money, but nobody lost more than me," Krieger said.

Krieger blamed most of Aspirity's problems on the company's decision to move primarily into the retail electricity business in 2015. In its first decade, Krieger said, the company lost money just once. He said he earned $1 million to $6 million a year through 2016, while the company posted gross profits of as much as $40 million annually.

But the company stumbled when it moved into the retail side of the business, selling power to homeowners in deregulated states. The company lost $4.7 million in 2015 and another $12.9 million the following year, when its revenues reached just $13.5 million.

The company's deteriorating finances led its auditors to issue a "going concern" warning in 2016. Some investors are now suing the auditors for not ringing the alarm bells sooner. In a class-action lawsuit filed last year against Baker Tilly and Deloitte LLP, investors claim the auditors aided and abetted the fraud.

"As a public company, we had to do yearly and quarterly audits by these well-known, well-respected and incredibly expensive firms," wrote Krieger, noting the firm sometimes spent more than $1 million a year on audit fees. "So how did a dumb kid from Iowa (me) outsmart and outwit the SEC, Baker Tilly, Deloitte, the bankruptcy trustee for the state of Minnesota and all those investors? ... I am either an incredibly deceitful mastermind ... or I'm innocent. Which do you think it is?"

In his responses to the Star Tribune's questions, Krieger said he sold his $1.1 million oceanfront home north of Seattle, plus a $295,000 diamond and other assets, as he "desperately" tried to save Aspirity. Corporate records show he made capital contributions totaling $500,000 as the business was tanking.

But the trustee's lawsuit said Krieger transferred out more than $20 million in corporate assets, including moving $3.5 million into his personal bank account and another $516,000 to his former wife. Seaver said the withdrawals wiped out Aspirity's cash reserves, making it impossible for the company to pay its debts.

Using personal and corporate bank records, Seaver documented nearly $10 million in unexplained transfers between 2015 and 2017, court records show. Among the recipients are several of Krieger's longtime friends and business associates.

Seaver said Krieger used the money to fund his "exceedingly lavish lifestyle" and to "conceal and remove" the funds from the reach of his creditors.

Considering the trustee's allegations, many investors don't understand why Krieger has not been criminally charged for his actions. Several investors said they complained to Minnesota Attorney General Keith Ellison only to be referred to other agencies, including the U.S. Securities and Exchange Commission and the U.S. Department of Justice.

"Krieger was not held accountable," said Edward Shoop, a Vermont investor who tried to get the Attorney General's Office to bring a case against Krieger for fraud after losing $13,000. "He didn't go to jail. Nobody held his feet to the fire."

Though the Minnesota Attorney General's Office has prosecuted white-collar crimes in the past, the office now focuses on violent crime after a series of budget cuts reduced the number of prosecutors.

"What happened to these investors is unfortunate," said John Stiles, a spokesman for Ellison. "The Attorney General's office does not have criminal jurisdiction over this case, which our office consistently explained to the investors ... Because the federal government has criminal enforcement authority over alleged cases of securities and investor fraud, especially for interstate cases like this one where investors reside in multiple states, this case may be ripe for a potential federal criminal prosecution."