Did Overstock.com CEO Patrick Byrne cook the company's numbers and mislead investors? (Part 3 - The end game)

Blog series: Did Overstock.com CEO Patrick Byrne cook the company's numbers and mislead investors?

In the first two parts, I detailed Overstock.com and its management's inconsistent, conflicting, contradictory, and deceitful disclosures in its financial reporting.

In part 1, I detailed how Patrick Byrne backtracked and used in his own words, a "a phony accounting standard--pro forma," the reduction of inventory reserves, and the reversal of previously booked nonrecurring expenses to hype up Overstock.com financial performance for the second quarter of fiscal year 2007. Without, the use of that "phony accounting standard--pro forma," Overstock.com's hyped up turn around would have all but disappeared. In addition, I detailed how the reduction in inventory reserves in the second quarter of fiscal year 2007, wiped away Overstock.com's entire improvement in operating income.

In part 2 of this series, I detailed the possible manipulation of earnings by Overstock.com using a technique, known as "managing earnings," that involves manipulating inventory reserves. I detailed how statements by Overstock.com about inventory and reserves are inconsistent and contradictory and as a result point to the possible manipulation of earnings.

In Part 3, we get to the end game. I discuss why Overstock.com's two inconsistent, conflicting, and contradictory stories cannot coexist. I ask Overstock.com, Patrick Byrne, the Board of Directors, and Clay Corbus and Joseph J. Tabacco Jr. (Audit Committee members) to respond to the questions and issues I have raised.

Before I get to the end game, let's review certain facts from my previous blog item

In the first quarter of fiscal year 2006, Patrick Byrne had a "game plan." He "knew that things were going to get very ugly" at Overstock.com. He knew that "the company was going to have take medicine but that we could come out of it a far better company, and that medicine was going to be in the form of some expenses, it was going to be in the form of dumping a bunch of inventory." Patrick Byrne waited almost an entire year to tell investors that he "knew things were going to get very ugly" and that "it was going to be in the form of dumping a bunch of inventory."

During fiscal year 2006, as Overstock.com's inventory levels, Patrick Byrne and Jason C. Lindsey repeatedly played down any concerns about the pending nightmare that awaited Overstock.com.

April 28, 2006: Earnings conference call for the first quarter of fiscal year 2006

With a disaster looming, Patrick Byrne played down concerns over junk inventory by claiming that they were over:

...we've come out of it now, but we did mark things down in order to flush things through. So that hurt our margins a bit. [Emphasis added.]

 July 28, 2006: earnings conference call for the second quarter of fiscal year 2006

Obviously, Overstock.com did not "come out of it" since it still had more junk inventory to sell. Jason C. Lindsey had discussed the progress of Overstock.com's reduction of inventory levels:

So far, it has sold okay. We are getting rid of it and it does not look like we have - obviously, we are more than adequately reserved, I think, for all of it, but just as far as having sold the last of it, so that there is no more drag on margins, we definitely want to have that happen by the end of the year. [Emphasis added].

November 6, 2006: earnings conference call for the third quarter of fiscal year 2006

Obviously, Overstock.com was not "more than adequately reserved...so that there is no more drag on margins." Patrick Byrne sang a different tune about gross margins and gave a small indication of the fourth quarter disaster that lay ahead:

I am going to put some meat on that, because we think that we can dramatically reduce inventory from here. But to move that amount of inventory, core inventory, we are giving great deals, better than -- well, we are giving great deals and clearing a whole bunch of stuff out, so we will end with extremely fresh inventory and a much smaller amount than you have ever seen us run with as a fraction of sales....

But to do that, to clean out every nook and cranny in the warehouse, is going to require clearance prices on it, so that is why the margins are going to hurt. [Emphasis added.]

Jason C. Lindsey chimed in claiming:

There is $10 million to $20 million worth of stuff in our warehouse now that we do not ever want to have in our warehouse again. We are clearing it out nicely.

Fourth quarter of fiscal year 2006 financial results

Financial results during the fourth quarter of fiscal year 2006 did get quite ugly, in fact very ugly. Revenue had dropped about 6% to $294 million from $315.0 million versus the comparable second quarter of fiscal year 2005. Gross profit margins dropped to 9.3% from 14.0% and net losses continued to grow to $45.6 million from $6.3 million.

During the fourth quarter of fiscal year 2006, as Overstock.com's gross inventories (before reserves) declined from about $73.3 million at the end of the third quarter to about $26.9 million, while inventory reserves rose from about $4.5 million to $6.6 million. The percentage of inventory reserves to gross inventory rose dramatically from 6.14% to 24.52%, or almost a 300% relative increase in reserves.

February 5, 2007: earnings conference call for the fourth quarter of fiscal year 2006

During the fourth quarter earnings conference call, Jason C. Lindsey, Overstock.com's Chief Operating Officer, made the following statements, relating to inventories and gross margins:

We took all that to heart in the fourth quarter and although the fourth quarter results are very bad, and I admit they are very bad, they were bad on purpose. In other words, we used the fourth quarter to get rid of all the slow-moving inventory. I am quite pleased with the inventory balances we have now.

...I am pleased that the fourth quarter is now over. We have sold it. Our inventory turns are much higher. Our margins are much higher and it really does feel like we have made a lot of progress there. [Emphasis added.]

The end game

Let's examine some financial information.

During fiscal year 2006, Overstock.com had in fact dumped a bunch of inventory. Gross inventory levels (before reserves) started the year at about $98.5 million and dropped to about $26.9 million by the end of the year, about a $71.6 million drop in inventory. Inventory reserves rose from about $5.2 million at the beginning of the year to about $6.6 million at the end of the year. On a relative basis, inventory reserves went up a staggering 361% from about 5.3% of gross inventory at the beginning of the year to 24.5% of inventory at the end of the year.

Now let's examine the results starting with the first full quarter after Patrick Byrne's undisclosed knowledge that things were going to get "very ugly." From the end of the first quarter of fiscal year 2006 to the last quarter of the fiscal year, Overstock.com's gross inventory (before reserves) dropped by 57.8 million from $84.7 million to about $26.9 million. Inventory reserves rose from about $3.3 million at the end of the first quarter to about $6.6 million at the end of the year. On a relative basis, inventory reserves went up a staggering 529% from about 3.9% of gross inventory at the beginning of the year to 24.5% of inventory at the end of the year.

So Overstock.com's inventory did indeed drop. However, despite the massive drop in inventories, it seems that no progress was made in reducing the level of junk inventory. On either a dollar value basis, or more accurately, on a relative percentage basis, the level of junk inventory had in fact increased.

Overstock.com cannot have two opposing versions of the truth exist simultaneously. If the company's inventory reserves were accurately stated at the end of the fiscal year at $6.6 million, than no progress was made in reducing the level of junk inventory. If Overstock.com made progress in reducing junk inventory, how can the company report such huge reserves at the end of the fourth quarter?

During the year Overstock.com had claimed that the drag on gross margins was a result of selling junk merchandise. At the end of the year, the company claimed that it was pleased with the significant progress it made in reducing junk inventory. If that is true, why was record inventory reserves booked at the end of the fiscal year? If those inventory reserves were accurate, how can their other statements be true?

Excessive inventory reserves in the fourth quarter of fiscal year 2006 would help Overstock.com produce improving financial results in fiscal year 2007. In addition, excessive inventory reserves in the fourth quarter would help Overstock.com cover-up misstatements of inventory reserves in previous quarters.

I have sent all three of my blog posts in this series to Patrick Byrne, Overstock.com's Board of Directors, and separately to Clay Corbus and Joseph J. Tabacco Jr (Audit Committee members). I have asked them to respond to the questions and issues that I have raised. In addition, the Securities and Exchange Commission was Cc'd on the email.

I await their answers.

The ball is in their court.

Written by,

Sam E. Antar (former Crazy Eddie CFO & convicted felon)

Other blogs covering this issue:

September 1, 2007: Mar's Everything - Lies everywhere by Mar

August 27, 2007: Tracy Coenen - Overstock.com cooking the books?

August 27, 2007: Gary Weiss - Patrick Byrne Goes Speechless over Managed Earnings

Did Overstock.com CEO Patrick Byrne cook the company's numbers and mislead investors? (Part 2)

At my very first accounting class at Bernard M. Baruch College, I was taught by the great distinguished Professor Abraham Briloff, that "accounting is the language of business." Professor Briloff saw CPAs as the guardians of capitalism against the cancer of white collar crime. However, as Crazy Eddie's paid for my education and gave me a full time salary off the books as I attended college, my goal was to be part of the brutal cancer of white collar crime that infects our great capitalist system.

White collar crime is a crime of persuasion. Often, the white collar criminal uses "the language of business" to persuade investors to buy their company's stock at an inflated values. At college, we had many debates about the essence of accounting. Is accounting an art or a science? For the white collar criminal, there is no debate: accounting is a work of art to be crafted.

Patrick Byrne's continued hyping of Overstock.com and deceit by using "the language of business" as an instrument of persuasion is nothing new. His deceptions follow the same pattern, time and time again: accentuate the positive, deflect from the negative, and minimize any concerns, and then raise capital to finance his money losing machine.

In part 1 of my series of blog posts entitled, "Did Overstock.com CEO Patrick Byrne cook the company's numbers and mislead investors?" I detailed how Patrick Byrne backtracked and used in his own words, a "a phony accounting standard--pro forma," the reduction of inventory reserves, and the reversal of previously booked nonrecurring expenses to hype up Overstock.com financial performance for the second quarter of fiscal year 2007. Without, the use of that "phony accounting standard--pro forma," Overstock.com's hyped up turn around would have all but disappeared. In addition, I detailed how the reduction in inventory reserves in the second quarter of fiscal year 2007, wiped away Overstock.com's entire improvement in operating income.

In part 2 of this series, I will detail the possible manipulation of earnings by Overstock.com using a technique, known as "managing earnings," that involves manipulating inventory reserves. I will detail how statements by Overstock.com about inventory and reserves are inconsistent and contradictory and as a result point to the possible manipulation of earnings.

Patrick Byrne had an unrevealed game plan in the first quarter of fiscal year 2006

Sometime during the first quarter of fiscal year 2006, Patrick Byrne knew that things would be really ugly at Overstock.com. He had a game plan to handle the crises. However, he kept things quiet until about a year later. Then, on April 25, 2007, during the first quarter fiscal year 2007 earnings conference call, Patrick Byrne would make the following startling admission:

We had our game plan. Really, we had our game plan as of Q1 last year [2006] of what was going to have to happen.

We knew things were going to get really ugly and the company was going to have take medicine but that we could come out of it a far better company, and that medicine was going to be in the form of some expenses, it was going to be in the form of dumping a bunch of inventory as we figured out really how to take our inventory management to the next level -- all kinds of things. We knew it was going to get ugly. Maybe not as ugly as it got but we thought we would come out in the first quarter smelling like a rose operationally and this is exactly what we -- what I at least thought was going to happen in the first quarter. [Emphasis added.]

Instead of coming clean with investors, Patrick Byrne was too busy hyping the future prospects of Overstock.com. For example, on March 1, 2006, appearing on CNBC, Patrick Byrne sounded optimistic about Overstock.com's prospects for the balance of the 2006 fiscal year as he made the following comments:

Our cash is just fine.

We'll be able to make it through this year comfortably.

Through the year we should have a nice positive cash flow.

We should be EBITDA positive this year.

Five days later, on March 6, 2006, Patrick Byrne was interviewed by Greg Sandoval for an article entitled "Newsmaker: CEO in the Hot Seat" published by c/net news.com:

We have a plan this year that we should cross the billion-dollar mark....

This year, with a little luck, we should be an EBITDA-profitable year, so I'm kind of comfortable with that.

Patrick Byrne's performance has not matched his hype

Hyping Overstock.com's financial prospects only to later disappoint investors is nothing new for Patrick Byrne. Overstock.com's revenue for fiscal year 2006 ended up about $200 million short, at about $796 million. Its EBITDA ended up way off the mark too, at around negative $65 million. There was no "nice positive cash flow" for Overstock.com in fiscal year 2006 as operating cash flow ended the year at about negative $26 million. Overstock.com required cash infusions of over $50 million from two equity offerings during the year, so it "it not make it through" the year "comfortably."

First Quarter of Fiscal Year 2006

Despite Patrick Byrne's previous claims on CNBC and c/net news that Overstock.com would be "EBITDA positive" better in 2006, the company reported dismal results in the first quarter of the 2006 fiscal year. While revenue had increased about 9% to $180.2 million from $165.9 million versus the comparable first quarter of fiscal year 2005. Gross profit margins dropped to 14% from 14.9% and net losses more than tripled to $15.9 million from $4.3 million.

On April 28, 2006, during the first quarter earnings conference call, Doug Anmuth, from Lehman Brothers asked Patrick Byrne about his previous statements about achieving positive EBITDA:

...you gave a pretty rough outlook in terms of your claim that you could do break-even or better EBITDA and operating cash flow for the year. Do those numbers still hold?

Despite the fact that losses tripled in the first quarter, meaning that Overstock.com would have to make up a lot of lost ground to achieve "break-even or better EBITDA and operating cash flow" for the entire year, Patrick Byrne still claimed EBITDA would be break even or better:

As far as break-even on an EBITDA basis, definitely. It would be hard for us to break even on a GAAP basis, but with $35 million of depreciation and amortization, having that back into the -- I would imagine yes, we should break even or better. [Emphasis added.]

With massive losses in the first quarter and the knowledge that that "things were going to get really ugly and that the company was going to have to take medicine...in the form of dumping a bunch of inventory" how could Patrick Byrne still claim that Overstock.com would "definitely" end up the year at "break even or better" on an EBITDA basis?

Was it a delusional fantasy, hype, or plain old stupidity?

Gross inventories (before reserves) declined from about $98.5 million at the end of the fourth quarter of fiscal year 2005 to about $84.7 million at the end of the first quarter of fiscal year 2006. Inventory reserves dropped during the first quarter from about 5.32% of gross inventory to about 3.90%, for about a 27% reduction in relative reserves. Overstock.com's reduction in inventory reserves added about a full percent to gross margins. Had there not been a reduction in such reserves, Overstock.com's gross margin decline from 2006 to 2005 would have doubled from about 0.9% to 1.9%.

During the conference call, Overstock.com's management remained silent about the material impact of the reduction of reserves on gross margins.

Patrick Byrne hyped Overstock.com's future gross margin prospects by appearing optimistic, claiming that such gross margins would improve by at least 2% to 3% after a stable second quarter:

Our gross margin I think is going to be stable for the second quarter, as we keep making these changes, but I gave you the reasons why I think there's 200 or 300 basis points. I ultimately think this is a 17% or 18% gross margin business, and I think we can get there in the near future. In the fourth quarter, certainly a number around 17%. [Emphasis added.]

Like the billion dollars in annual revenue that never happened, the positive EBITDA that was never achieved, none of Patrick Byrne's hyped up guidance on future gross margins for 2006 were ever achieved, too. They declined dismally during the remainder of the fiscal year.

Patrick Byrne went on to claim how sophisticated Overstock.com systems were in monitoring Overstock.com's inventories and squeezing out every last dollar of profit:

One of the first things that they have done that's been very powerful is they let us do much more sophisticated inventory analysis, and we just really think we should be able to squeeze a lot out of our inventory. [Emphasis added.]

Therefore, Patrick Byrne had the knowledge and the means to understand the extent of Overstock.com's substantial inventory problems but instead let inventory reserves drop in the first quarter.

Patrick Byrne was questioned about a 3% drop in gross margins on its direct revenue category compared with the previous year:

Scott Devitt - Stifel Nicolaus: Just a follow-up on the direct gross margin. It was down 300 basis points, and I think, Patrick, in the letter you noted warehouse costs as being one explanation. I'm wondering, because the inventory level was high coming out of 4Q, what component of that was pricing just to drain inventory levels as well.

Patrick Byrne: There's definitely a piece of that in the first quarter, and there will be a piece of that in the first part of the second quarter, although we've come out of it now, but we did mark things down in order to flush things through. So that hurt our margins a bit. [Emphasis added.]

Did Overstock.com really "come out of it now" and was the junk inventory flushed out?

It seemed from Overstock.com's large reduction of inventory reserves, that some of its junk inventory was flushed out. However, inventory reserve levels as a percentage of gross inventories were still 50% higher than in the previous fiscal year's quarter (about 3.90% vs. 2.59%). Despite, Patrick Byrne's statement claiming "we've come out of it now" it seemed the Overstock.com had more inventory to flush out than he led everyone to believe. Inventory reserve levels were higher compared to last year's quarter. In addition, he did not share with anyone yet that "things were going to get really ugly and the company was going to have to take medicine...in the form of dumping a bunch of inventory."

Armed with the knowledge that things were going to get "really ugly" regarding Overstock.com's inventories and "very powerful" systems that permitted "much more sophisticated" analysis, we have to ask why did Overstock.com reduce its inventory reserves in the first quarter knowing it had to "dump a bunch of inventory?"

Apparently, Patrick Byrne was trying to hype up Overstock.com's prospects by still claiming that EBITDA would be break-even or positive. The reduction in inventory reserves cut in half the decrease in gross margins during the quarter.

Was Patrick Byrne attempting to play down concerns over inventory and gross margins?

Did Overstock.com need a cash infusion despite Patrick Byrne's claim on CNC about 7 weeks earlier that the company will "be able to make it through this year comfortably" and that it should have a "nice positive" cash flow?

During the first quarter earnings conference call, David Chidester discussed cash flows:

...operating cash flows during the quarter were an outflow of $73 million and free cash flows were an outflow of $80 million. [Emphasis added]

Obviously, Overstock.com was bleeding cash fast despite Patrick Byrne's statements on CNBC on March 1, 2006 that:

Our cash is just fine.

We'll be able to make it through this year comfortably.

Through the year we should have a nice positive cash flow. [Emphasis added.]

During the earnings conference call, Patrick Byrne attempted to play down the issue of burning cash flows:

Liquidity -- I know folks are talking about liquidity. I don’t see -- I’m always more comfortable doing barrel rolls close to the ground than my passengers. I don’t see us as having liquidity crises.

Just days later, on May 3, 2007, Overstock.com got a badly needed cash infusion $25 million, despite Patrick Byrne's previous comments. Overstock.com's Prospectus Supplement stated under the "Use of Proceeds" section:

Unless otherwise indicated in any prospectus supplement, the net proceeds from the sale of securities offered by this prospectus will be used for general corporate purposes and working capital, including sales and marketing activities and inventory purchases. In addition, we may use a portion of the net proceeds to acquire complementary technologies or businesses. However, we currently have no commitments or agreements and are not involved in any negotiations with respect to any such transactions [Emphasis added.]

Delays in disclosures followed by later admissions is nothing new for Patrick Byrne


On May 9, 2006, the Securities and Exchange Commission began a formal investigation of Overstock.com. While Patrick Byrne belatedly revealed on August 12, 2005 that an informal SEC inquiry had begun months earlier in February 2005, Overstock.com made no mention of the informal inquiry in its reports filed with the SEC. After the formal investigation by the SEC was disclosed, Overstock.com 's pending infusion of about $16 million in stock equity was canceled.

On May 17, 2006, Patrick Byrne received a personal subpoena from the SEC as part of its probe of Overstock.com. It was not until almost an entire year later, that Overstock.com finally disclosed Byrne's personal subpoena from the SEC in its 10-Q that was released on May 9, 2007. Months later, on August 10, 2007, after previous denials that an embittered Patrick Byrne finally revealed that he is the target of an ongoing investigation by the Securities and Exchange Commission and claimed that high level government employees at the SEC were corrupt.

Second Quarter of Fiscal Year 2006

Despite Patrick Byrne's previous claims on March 1 on CNBC, on March 6 in c/net news, and on April 28 that Overstock.com would be "EBITDA positive" or better in 2006, the company reported worsening results in the second quarter of fiscal year 2006.

With the filing of Overstock.com's 10-Q for the second quarter, it became apparent how Overstock.com's dismal cash flow situation was worsening despite Patrick Byrne's comment during the first quarter earnings conference call on April 28, 2006 saying, "I don’t see us as having liquidity crises." On June 30, 2006 Overstock.com's cash balance dropped to $45.7 million from $51.8 million on March 31, 2006 despite receiving a cash infusion of $25 million from selling common stock on May 3, 2006.

Operating cash flow for the quarter was negative $6.2 million and free cash flow was negative $12 million.

While revenue had increased about 6% to $160.0 million from $150.6 million versus the comparable second quarter of fiscal year 2005. Gross profit margins dropped to 14.4% from 15.1% and net losses increased to a staggering $15.8 million from $2.0 million.

However, during the previous first quarter conference call Patrick Byrne had claimed:

Our gross margin I think is going to be stable for the second quarter.... [Emphasis added.]

Patrick Byrne's previous claim that gross margins would be "stable for the second quarter" is contradicted by admission about a year later, on April 28, 2007, that he had a "game plan" in the first quarter. He "knew things were going to get really ugly" and that the company was going to have take medicine...the form of dumping a bunch of inventory."

Gross inventories (before reserves) declined from about $84.7 million at the end of the first quarter of fiscal year 2006 to about $78.2 million at the end of the second quarter. However, inventory reserves rose during the second quarter from about 3.90% of gross inventory to about 4.35%, for almost a 12% increase in relative reserves.

Previously, Patrick Byrne had claimed during the first quarter earnings conference call that Overstock.com's inventory issues were over despite his undisclosed plan the "dump" inventory at very low prices:

...we've come out of it now, but we did mark things down in order to flush things through.

Now, in the second quarter, inventory reserves increased about 11% on a relative basis. We need to ask, did Overstock.com begin at that time a gradual bump up reserves again to regain lost ground from previously understating inventory reserves?

Was the bump up in inventory reserves a reaction to the SEC formal investigation of Overstock.com that began on May 9, 2006? The SEC had subpoenaed a broad range of documents about Overstock.com's financial disclosures and accounting policies.

Patrick Byrne knew that things were "ugly" and had a plan to "dump" inventories. He had claimed that Overstock.com was finished with its inventory problems in the first quarter. Now, Patrick Byrne apparently needed to make up for previous understatements of inventory reserves. After all, Overstock.com had already raised new equity and the SEC closing was focusing on Byrne.

During the second quarter fiscal year 2006, earnings conference call, Jason C. Lindsey assured investors that inventory was "more than adequately reserved" and that as a result there will be "no more drag on margins":

You have seen there is a drag on margins in the first and second quarter from selling this stuff. So far, it has sold okay. We are getting rid of it and it does not look like we have - obviously, we are more than adequately reserved, I think, for all of it, but just as far as having sold the last of it, so that there is no more drag on margins, we definitely want to have that happen by the end of the year. [Emphasis added.]

However, despite Jason C. Lindsey's statement (above) that "we are more than adequately reserved...so that there is no more drag on margins," during the next two quarters of fiscal year 2006, Overstock.com's gross margins markedly declined as inventory reserves significantly increased.

Third Quarter of Fiscal Year 2006

During the third quarter of fiscal year 2006, revenues dropped about 6% to $158.7 million from $169.3 million versus the comparable third quarter of fiscal year 2006. Gross profit margins declined to 14.5% from 15.7%.

However, in the previous second quarter conference call, Jason C. Lindsey had claimed:

...there is no more drag on margins....

Gross inventories (before reserves) declined from about $78.2 million at the end of the second quarter of fiscal year 2006 to about $73.3 at the end of the third quarter. However, inventory reserves rose during the third quarter from about 4.35% of gross inventory to about 6.14%, for almost a 41% increase in relative reserves.

However, in the previous second quarter conference call, Jason C. Lindsey had claimed:

...obviously, we are more than adequately reserved...

On November 6, 2006, during the third quarter earnings conference call Patrick Byrne sang a different tune about gross margins. Discussing the declining trend of gross margins on at Overstock.com, Patrick Byrne stated:

I am going to put some meat on that, because we think that we can dramatically reduce inventory from here. But to move that amount of inventory, core inventory, we are giving great deals, better than -- well, we are giving great deals and clearing a whole bunch of stuff out, so we will end with extremely fresh inventory and a much smaller amount than you have ever seen us run with as a fraction of sales....

But to do that, to clean out every nook and cranny in the warehouse, is going to require clearance prices on it, so that is why the margins are going to hurt. [Emphasis added.]

Later, during the third quarter earnings conference call, there was the following question and answer:

Frank Gristina - Avondale Partners: What kind of margins when you are liquidating are you getting...?

Jason C. Lindsey - Unfortunately, they are kind of all over the board. There is $10 million to $20 million worth of stuff in our warehouse now that we do not ever want to have in our warehouse again. We are clearing it out nicely.

With "$10 million to $20 million" in junk inventory needing to be liquidated, Jason C. Lindsey was obviously playing down the extent of losses by balancing the negative and the positive. He said:

Some of the stuff is negative and some of the stuff is fairly profitable. We just do not want to be in that category anymore for a lot of reasons. [Emphasis added.]

Despite the talk of reduced gross margins during the third quarter earnings conference call, there was no discussion as to the adequacy of inventory reserve levels despite Lindsay's statements in the previous quarter's conference call that Overstock.com's inventories were "more than adequately reserved."

During next quarter, not only would gross margins dramatically decline, but there would be an almost four-fold increase in relative inventory reserves.

With the third quarter conference call disclosure that Overstock.com was "giving great deals and clearing a whole bunch of stuff out" we need to ask, did management realistically value its inventory at the end of the third quarter at the lower of cost or market as required under GAAP?

Did Overstock.com understate its inventory reserves and overstate inventories at the end of the third quarter of fiscal year 2006? Did Overstock.com purposely delay taking reserves on its inventory until after it received a cash infusion by raising new equity?

Net losses for the third quarter about doubled to $24.5 million from $12.4 million from the previous year's quarter.

While net cash from operating activities was a paltry $806 thousand, free cash flow was negative $7 million. Overstock.com's cash balance continued to drop from $45.7 on June 30, 2006 to $39.4 million.

On November 6, 2006, Overstock.com's third quarter press release, Patrick Byrne claimed:

We experience our annual cash nadir in early November, and then see a steady inflow of cash through the remainder of Q4.

Despite, Patrick Byrne's comments in the press release, about five weeks later, on December 15, 2006, Overstock.com raised over $35 million in new equity in a common stock offering.

Fourth Quarter of Fiscal Year 2006

The fourth quarter of fiscal year 2006 was a nightmare for Overstock.com. Revenue had dropped about 6% to $294 million from $315.0 million versus the comparable second quarter of fiscal year 2005. Gross profit margins dropped to 9.3% from 14.0% and net losses continued to grow to $45.6 million from $6.3 million.

However, during the previous second quarter conference call, Patrick Byrne had claimed:

I ultimately think this is a 17% or 18% gross margin business, and I think we can get there in the near future. In the fourth quarter, certainly a number around 17%. [Emphasis added.]

However, despite Patrick Byrne's claim that gross margins during the fourth quarter of 2006 would "certainly" be around 17%, it ended up at 9.3%.

For the entire fiscal year, sales ended at $796.4 million (before certain adjustments were made after the press release was issued in the 10-K), far short of the $1 billion and more in revenues touted by Byrne on March 6 and April 28, 2006. EBITDA for the fiscal year ended up at around negative $65 million, far below the "break-even" or better amount previously hyped by Byrne.

During the fourth quarter of fiscal year 2006, as Overstock.com's gross inventories (before reserves) declined from about $73.3 million at the end of the third quarter to about $26.9 million, while inventory reserves rose from about $4.5 million to $6.585 million. The percentage of inventory reserves to gross inventory rose dramatically from 6.14% to 24.52%, or almost a 300% relative increase in reserves.

During the fourth quarter earnings conference call, Jason C. Lindsey, Overstock.com's Chief Operating Officer, made the following statements, relating to inventories and gross margins:

We took all that to heart in the fourth quarter and although the fourth quarter results are very bad, and I admit they are very bad, they were bad on purpose. In other words, we used the fourth quarter to get rid of all the slow-moving inventory. I am quite pleased with the inventory balances we have now.

...I am pleased that the fourth quarter is now over. We have sold it. [Emphasis added.]

During the previous quarter's conference call, Jason C. Lindsey had claimed that there was "$10 million to $20 million worth of stuff in our warehouse now that we do not ever want to have in our warehouse again" and that Overstock.com was "clearing it out nicely." Now he claimed that they sold the crap.

Later, in its 10-K report released for the fiscal year ended December 31, 2006, Overstock.com elaborated further:

We consciously and aggressively discounted older inventory during the fourth quarter, and as a result, our direct gross margins were negatively impacted. However, we did this to significantly clean and reduce our inventory in an effort to reduce the overall SKU (stock keeping unit) count on our website and to refine our product selection to categories that turn faster and have higher profitability. [Emphasis added.]

If the crappiest inventory was not around at the end of the fourth quarter, we would have to ask, why did Overstock.com book huge inventory reserves after claiming to have dumped their crappiest inventory?

Was Overstock.com possibly overstating inventory reserves at the end of the fourth quarter after understating such reserves at the end of the third quarter? Could it be that Overstock.com took advantage of an already catastrophic quarter to book added inventory reserves? By booking excess inventory reserves in the fourth quarter, it could increase future gross margins.

During the fourth quarter conference call, Jason C. Lindsey had claimed that Overstock.com had gotten "rid of all the slow-moving inventory" and "sold it" during the fourth quarter. If so, why were inventory reserves at all time highs?

For the fourth quarter of fiscal year 2006, Overstock.com reported negative gross margins of about $3.6 million on its direct revenues while gross margins dropped on its fulfillment partner revenues. My calculations indicate that Overstock.com lost about $7 million from liquidating about $40 million in inventory during the fourth quarter. If only "$10 million to $20 million" of the liquidated inventories were considered junk, as claimed by Lindsey in the previous quarter, Overstock.com would have taken even greater dollar losses on its liquidated inventory.

Did Overstock.com appropriately value its inventory at the lower of cost or market value at the end of the previous third quarter?

Did Overstock.com delay the recognition of possible additional required inventory reserves until after it raised new equity in its common stock offering on December 15, 2006?

In addition, on December 31, 2006, Overstock.com took charges of about $5.7 million for restructuring expenses and about $6.9 million for losses from discontinued operations.

The company was experiencing massive losses and increased negative cash flows going into the fourth quarter.

April 25, 2007: First Quarter Fiscal Year 2007 Conference Call

Patrick Byrne finally admitted that as of the first quarter of the previous fiscal year, he had a "game plan...of what was going to have to happen." He knew things were going to get really ugly and the company was going to have take medicine... in the form of dumping a bunch of inventory."

Let's analyze pattern of Overstock.com's inventory reserves.

At the end of the last quarter of fiscal year 2005, inventory reserves were about 5.32%. At the end of the first quarter of fiscal year 2006, inventory reserves dropped to 3.90% of gross inventory. By the end of the second quarter of fiscal year 2006, inventory reserves grew gradually to about 4.35% of gross inventory. For the third quarter of fiscal year 2006, inventory reserves grew to about 6.14% of gross inventory and in the last quarter of fiscal year 2006 inventory reserves massively grew to about 24.5% of gross inventory.


Considering the growth of inventory reserves relative to gross inventory during fiscal year 2006, it seems based on Patrick Byrne's statement (above) that Overstock.com took its sweet time to increase inventory reserves to appropriate levels.

During the first quarter fiscal year 2007 earnings conference call, Jason C. Lindsey continued to explain the liquidation of Overstock.com's crappiest inventory for the previous fiscal year's fourth quarter:

....another dynamic that is going on is as we liquidated all of our slow-moving inventory and things that did not meet our metrics last year, we really sold everything and got our inventory extremely fresh. [Emphasis added.]

The reasonable question remains that if Overstock.com liquidated all of its "slow-moving inventory" during the fourth quarter of fiscal year 2006 as stated above by Jason C. Lindsey, why was there a need for an inventory reserve of about 24.5% of gross inventory?

In addition, during the previous fourth quarter earnings conference call quarter earnings conference call, Jason C. Lindsey had also claimed that:

...we used the fourth quarter to get rid of all the slow-moving inventory.

However, later in the first quarter conference call, Jason C. Lindsey, backtracked and contradicted his earlier statement that Overstock.com "liquidated all our slower moving inventory...we really sold everything" by saying:

Now, one thing that we didn't sell was kind of all of our spring garden patio type of stuff....

So we do still have several million dollars worth of stuff that we call our excess inventory from last year that we didn't liquidate that we are going to be liquidating now and even into the beginning of the third quarter. Although we reserved against that and do feel like we have an adequate reserve and that we will be forced to -- and we will release that reserve some as we sell that stuff. I am just not sure exactly the clearing price of all that. [Emphasis added.]

Hey, remember what Jason C. Lindsey said previously on July 28, 2006 about adequate inventory reserves? Overstock.com later booked huge increases in inventory reserve amounts in the next three quarters. Do you trust Mr. Lindsey's reserve estimates?

Patrick Byrne would elaborate further:

But the one set of things he didn't do was the millions of dollars of that furniture, wrought-iron furniture, you can't sell it at Christmas. But we do have -- a big chunk of our inventory is still that and when that disappears over the next two months, three months, that is a significant chunk of our inventory and Jason has taken a very healthy reserve against all of that inventory. [Emphasis added.] 

I note that Jason C. Lindsey in previously describing (above) the previous third quarter fiscal year 2006 results had claimed that:

There is $10 million to $20 million worth of stuff in our warehouse now that we do not ever want to have in our warehouse again. We are clearing it out nicely.

 At the end of the third quarter of fiscal year 2006, with gross inventory at about $73.3 million (before reserves), Overstock.com's inventory reserves were about $4.5 million or about 6.1% of gross inventory. As stated above, Jason C. Lindsey claimed that there was "$10 to $20 million worth" of excess inventory at the end of the third quarter for fiscal year 2006.

Now, at the end of the first quarter of fiscal year 2007, with "several million in worth of...excess inventory," (which would seem to imply less excess inventory than at the third quarter of fiscal year 2006), Overstock.com had gross inventory (before reserves) of about $23.2 million and inventory reserves of $6.5 million or about 28.1% of gross inventory.

Therefore, with apparently less junk inventory in first quarter of fiscal year 2007, Overstock.com had booked over 350% more relative reserves than the previous third quarter of fiscal year 2006. After all, Patrick Byrne was now claiming to have "very healthy" inventory reserves.

So, I ask you: Is Overstock.com engaged in a practice known as "earnings management" by manipulating its inventory reserves?

Did Patrick Byrne hype Overstock.com's prospects like a penny stock promoter?

If Overstock.com did not engage in any malfeasance, is Patrick Byrne an incompetent CEO with delusional fantasies about Overstock.com's future financial performance?

Is Patrick Byrne just an out and out liar?

Part 3 of my blog series, "Did Overstock.com CEO Patrick Byrne cook the company's numbers and mislead investors?" coming soon.

Written by:

Sam E. Antar (former Crazy Eddie CFO & convicted felon)

Other blogs covering this issue:

Tracy Coenen: Earnings management at Overstock.com?

Gary Weiss: Did Overstock.com Cook the Books?

Did Overstock.com CEO Patrick Byrne cook the company's numbers and mislead investors? (Part 1)

Part 1:

As a cold blooded, heartless, ruthless, and soulless career criminal during my Crazy Eddie days, I learned to always accentuate the positive and deflect from the negative in my dealings with Wall Street. I hardly ever faced an effective questioner whether the person was a Wall Street analyst, investment banker, or auditor. Rarely was I asked good follow up questions.

During Overstock.com's recent earnings conference call for the second quarter of fiscal year 2007, Overstock.com's management gave a hyped up explanation of the company's so-called turnaround. The representations of Overstock.com's management went unchallenged and important questions were not asked. I guess that not much has changed since my criminal days at Crazy Eddie.

As I listened to Patrick Byrne's delusional rants during the conference call, I was reminded of the movie, "The Silence of the Lambs." Well, Patrick Byrne frequently uses the alias Hannibal on internet message boards. His silent lambs were the Wall Street analysts that attended the earnings (or rather lack of earnings) conference call.

As investigative reporter and blogger Gary Weiss noted, during the conference call, Patrick Byrne was so bored that he posted a message on InvestorVillage thanking his antisocialmedia.net smear web site contributor, Overstock.com shareholder, and proud corporate shill, Evren Karpak.

After the conference call, the Overstock.com spin machine, led, Evren Karpak, rallied the troops on internet message boards, posted glowing assessments of the company, and roundly smeared Byrne's perceived enemies. Judd Bagley, the cyberstalking Director of Communications at Overstock.com and administrator of its antisocialmedia.net smear web site, recommended various stock pumping posts by Evren Karpak, on the InvestorVillage message board, using his alias De Daumier-Smith. Here is a link to posts on InvestorVillage that were recommended by Judd Bagley.

The day before the conference call, Overstock.com's (OSTK) stock closed at $17.61 per share. In the days that followed, the stock climbed above $20 per share.

Patrick Byrne claims turnaround in second quarter of fiscal year 2007 and cites non-GAAP "adjusted" EBITDA

Patrick Byrne, who recently and belatedly admitted to being a target of a continuing Securities and Exchange Commission probe into his activities and Overstock.com, has claimed that company's financial performance has markedly turned around in its most recent quarter. Recently, in Form 8-K filed with the Securities and Exchange Commission, Patrick Byrne claimed:

During Q2 we generated $14.9 million positive operating cash flow and $2.0 million positive EBITDA, excluding restructuring costs ("EBITDA excluding restructuring costs" is a non-GAAP number: see the reconciliation to operating income in the "Key financial and operating metrics" section below). Additionally, we generated $9.4 million positive trailing 12-month ("TTM") operating cash flow. Our Q2 gross margins of 17.7% were a historical best for us. At this year's start I suggested keeping an eye on contribution metrics (gross profits minus sales and marketing expenses): in Q2 our contribution margin was 12.3% (another record for us), and contribution profit grew 76% versus Q2 2006. [Emphasis added.]

Let's carefully examine the disclosures in Overstock.com's recent 10-Q filed after the conference call

A close examination of Overstock.com's financial disclosures paints a starkly different picture than Patrick Byrne's hyped up improvement of Overstock.com's financial results.

Overstock.com's recent 10-Q for the second quarter ended June 30, 2007 presented the following table in computing EBITDA and its non-GAAP adjusted EBITDA (click on image to enlarge):

Consider the effects of changes in inventory reserves

According to Overstock.com's 10-Q:

We write down our inventory for estimated obsolescence or damage equal to the difference between the cost of inventory and the estimated market value based upon assumptions about future demand and market conditions. If actual market conditions are less favorable than those projected by management, additional inventory write-downs may be required. Once established, the original cost of the inventory less the related inventory reserve represents the new cost basis of such products. Reversal of these reserves is recognized only when the related inventory has been sold or scrapped. [Emphasis added.]

Therefore, adjustments made under Generally Accepted Accounting Principles to reduce inventory values below cost to market value in prior periods have the effect of increasing gross margins in future periods. While a company properly follows GAAP by taking immediate write-downs of reduced inventory values, the side effect is that margins in future periods are increased as the junk inventory is sold.

In other words, by recognizing your inventory screw ups immediately under GAAP, you increase your profits in future periods.

Let's review the following simplified example:

In the first quarter, a company buys merchandise for $120, its books and records will reflect $120 of inventory.

In the second quarter, the company, under GAAP, reduces the value of its merchandise by increasing inventory reserves by $50 to reflect diminished future demand and market conditions. Therefore, in the second quarter, the company reduces its gross margins by $50. The net inventory book value on its balance sheet is reduced to $70 (original cost $120 less $50 inventory reserves).

In the third quarter, the company sells the merchandise for $90. Since the net value book value of the merchandise was previously reduced to $70, (as a result of taking a $50 reserve against its original purchase price of $120 in a previous quarter), the company recognizes gross margins of $20 (Sales $90 minus net book value $70).

The company, under GAAP, had gross margins of $20 in third quarter after selling the previously written down inventory. It would seem on its face to be an improvement over the reduction of gross margins by $50 in the second quarter resulting from the inventory write down. However, in reality the company lost $30 on its merchandise. The original cost of the merchandise was $120 and they sold it for $90.

Therefore, taking inventory reserves increases future gross margins. Increased future gross margins resulting from taking inventory reserves in previous periods does not necessarily reflect an underlying improvement in economic performance. As a company sells such inventory in future accounting periods, it simply reduces inventory reserves taken in previous accounting periods and recognizes additional gross margins.

At the end of Overstock.com's first quarter of fiscal year 2007, inventory reserves totaled about $6.5 million or a whopping 28.1% of the gross inventory of about $23.2 million. Had that entire inventory from the first quarter been liquidated during the second quarter at its original cost basis, Overstock.com would have had record gross margins of 28.1% or $6.5 million before certain allocations to cost of goods sold.

In the second quarter of fiscal year 2007, Overstock.com’s gross inventory (before reserves) dropped from about $23.2 million at the end of the first quarter to about $19.2 million at the end of the second quarter. There was a sizable drop in inventory reserves from about $6.5 million at the beginning of the quarter to about $3.8 million at the end of the quarter. The percentage of inventory reserves to gross inventory declined from about 28.1% to about 19.8%, a level still significantly above every period prior to the last quarter of fiscal year 2006.

Despite Overstock.com's massive increases in inventory reserves in previous quarters and now a substantial reduction of those reserves during the current quarter, no one asked any questions about the impact of the company's reduction of inventory reserves on gross margins, operating losses, and EBITDA. Overstock.com was not volunteering any information.

Overstock.com played up the improvement in its gross margins as signs of a major turn around without explaining the effects of its reduction of inventory reserves on increased gross margins, reduced operating losses, and improved EBITDA.

In fact, Overstock.com's reduction of inventory reserves in the second quarter was about $2.7 million. The company's operating losses dropped by about $2 million from the same quarter of the previous fiscal year. Therefore, Overstock.com's entire reduction in operating losses for the second quarter of fiscal year 2007 can be attributed to its reduction in inventory reserves.

Surely, Patrick Byrne, who used conveniently used pro forma adjusted non-GAAP numbers to hype Overstock.com's purported turn around, could have explained how book keeping entries involving inventory reserves produced increased gross margins.

In addition, we cannot discount the possibility that inventory reserves booked by Overstock.com in previous quarters and in the current quarter is accurate.

Award winning forensic accounting expert, Tracy Coenen, examined the possibility of inventory reserve manipulation by Overstock.com. The company has on occasion made sporadic disclosures about the effects of taking excessive reserves or understating reserves:

If we underestimate our reserves or allowances our gross margins, and net income, if any, will be overstated (or our net loss, if any, will be understated). Contrarily, if we overstate our reserves or allowances, our gross margins and net income, if any, will be understated (or our net loss, if any, will be overstated). [Emphasis added.]

Therefore, if Overstock.com took excessive adjustments on inventory to reduce its value below market in prior periods, gross margins would be inflated in future periods. Likewise, if a company understates reserves, it inflates gross margins during the current period and reduces gross margins in future periods.

We do know that Overstock.com has made inconsistent and contradictory disclosures in the past about it inventory reserves and gross margins, which is the subject of part 2 of this blog post. In addition, we know that Patrick Byrne is the target of a Securities and Exchange Commission probe into financial disclosures and other issues at Overstock.com.

We don't know the extent to which the reduction of inventory reserves during the second quarter of fiscal year 2007 resulted from the reversal of previous adjustments to market value or the reduction of previous excessive reserves. However, we do know that the reduction of inventory reserves during Overstock.com's current quarter reflects the reversal of previously booked adjustments (whether or not excessive), which increased gross margins, and does not necessarily represent an underlying economic improvement.

The resulting increase in gross margins from any reversal of inventory reserves increases operating income and EBITDA. During the second quarter of fiscal year 2007, Overstock.com reduced its inventory reserves by $2.7 million which resulted in an increase in gross margins, reduction in operating losses, and improvement in EBITDA of the same amount.

Consider the effects of a reversal in structuring expenses from a prior period

According to Overstock.com's 10-Q for the second quarter of fiscal year 2007, released after the earnings conference call:

During the second quarter of 2007, the Company reached an agreement to terminate the Indiana warehouse facilities lease in its entirety effective August 15, 2007 for $1.9 million, resulting in a reversal of restructuring expense of approximately $1.0 million.

The "reversal of restructuring expense of approximately $1.0 million" resulted in increasing Overstock.com's pro forma aka "adjusted" EBITDA by $1 million.

Consider the effects of both the reduction of inventory reserves and reversal of restructuring expenses on Overstock.com reported turnaround

Examine the table below which includes the effects of both the reduction of inventory reserves and reversal of restructuring expenses (click on image to enlarge):

Taking into account the reduction of inventory reserves and reversal of restructuring costs during the second quarter of fiscal year 2007, Overstock.com's EBITDA improvement mostly disappears and its EBITDA and pro forma aka "adjusted" EBITDA becomes a negative amount. Overstock.com simply adds back allegedly "nonrecurring" expenses, but fails to deduct certain one time benefits.

As a minimum, Overstock.com should have disclosed the nature of the material contribution resulting from the reduction of its inventory reserves in reducing operating losses and improving EBITDA in the MD & A section of its 10-Q for the second quarter of fiscal year 2007. In addition, it should have prominently highlighted the material effect of its reversal of previous restructuring charges in its pro forma aka "adjusted" EBITDA.

Despite the use of pro forma aka "adjusted" EBITDA by Overstock.com during the current quarter, Patrick Byrne contradicts his earlier statements about EBITDA and pro forma accounting

On March 6, 2006, Patrick Byrne was interviewed by Greg Sandoval for an article entitled "Newsmaker: CEO in the Hot Seat" published by c/net news.com:

What are Overstock's problems right now, and when will the company be profitable?

Byrne:

I don't know. We have a plan this year that we should cross the billion-dollar mark. Put it this way: Amazon, at our stage, was losing $1.2 million a year in operations. It made up a phony accounting standard--pro forma. And when it reached pro forma breakeven, Wall Street set off fireworks.

When it reached EBITDA (earnings before interest, tax, depreciation and amortization) breakeven, Wall Street wanted to declare it a national holiday. I've never used pro forma in my life. We've had some GAAP (generally accepted accounting principles) profitable quarters, plenty of operating profit and EBITDA profitable quarters. This year, with a little luck, we should be an EBITDA-profitable year, so I'm kind of comfortable with that. [Emphasis added.]

I guess Patrick Byrne uses EBITDA when it is to his advantage to hype Overstock.com's financial performance. He uses a non-GAAP pro forma aka "adjusted" EBITDA to promote the company while ignoring the effects of reductions in inventory reserves and reversals of previously booked and so called "nonrecurring" expenses.

Overstock.com never came close to crossing the "billion-dollar mark" for fiscal year 2006. Its revenues ended up at about $796 million for the fiscal year. Despite Patrick Byrne being "comfortable" with "an EBITA-profitable" year for fiscal year 2006, Overstock.com EBITDA fell far off the mark. I guess Patrick Byrne needed more than a "little luck."

In addition, Overstock.com's use of EBITDA and pro forma aka "adjusted" EBITDA during the 2nd quarter of fiscal year 2007 ignores the underlying quality of current reported earnings. Patrick Byrne hypocritically uses "a phony accounting standard--pro forma" when it pleases him.

So, whose non-GAAP pro forma aka "adjusted" numbers are more meaningful, the delusional paranoid Patrick Byrne, who is a target of a federal investigation, or this convicted felon and former CPA? When a public company uses non-GAAP pro forma numbers to hype up its results, there is always a slippery slope as to what to include and not include in its calculations.

About two years earlier, in the second quarter fiscal year 2005 Form 8-K, Patrick Byrne chided other companies for their propensity to report one-time charges and their focus on EBITDA:

I worked at First Manhattan in the early 1990's. One of the first lessons I was taught was to watch out for companies with "one-time" charges, for rarely, if ever, did they turn out to be truly, "one-time." Subsequent experience confirmed this. Of course, the world had not really discovered "restructuring charges," let alone the mantra of "pro forma accounting" that the Internet would later spawn ("EBE: Earnings Before Expenses," as one wag put it). I was similarly discouraged from calculating EBITDA ("That cash either counts the day it went out the door when you bought that ice machine, or as it depreciated, and GAAP depreciation turns out to be a pretty good approximation of how equipment really depreciates," I was told).

The common failure of these variations is, it seems to me, this: they start by showing a way to look at a financial statement excluding certain events, but lead people to pretend that those events are not real. "EBITDA" might be a useful step in projecting the future cash needs of a business, but it misleads people into thinking that "depreciation" is not a real expense. Similarly, "restructuring" and "one-time" charges may in fact be only one-time charges, but that does not make them "not real" (and they usually turn out not to be "one-time" anyway). [Emphasis added.]

However, in Overstock.com's 8-K for the second quarter of fiscal year 2007, Patrick Byrne is now defending the company's use of EBITDA and pro forma aka "adjusted" EBITDA despite his previous statements deriding its usage by other companies. The 8-K went on to say:

During Q2 we generated $14.9 million positive operating cash flow and $2.0 million positive EBITDA, excluding restructuring costs ("EBITDA excluding restructuring costs" is a non-GAAP number....

EBITDA excluding restructuring costs (non-GAAP) - EBITDA excluding restructuring costs for the three months ended June 30, 2006 and 2007 was $(7.5) million and $2.0 million, respectively. For the six months ended June 30, 2006 and 2007, EBITDA excluding restructuring costs was $(14.0) million and $(146K), respectively. Restructuring costs primarily represent efforts to reduce our overall expense structure through the consolidation of our corporate office, data centers and warehouse facilities. Therefore, we believe that discussing EBITDA excluding restructuring costs provides useful information to investors because it is a representation of cash generated from the operations of the business if the company had not originally incurred these costs. [Emphasis added]

During the second quarter fiscal year 2007 conference call Jason C. Lindsey defended the Overstock.com's use of "adjusted" EBITDA and implied Overstock.com was profitable:

If you believe EBITDA is profitable and you believe that the restructuring charges really are one-time, or they are not recurring and that's your definition of pro forma then we were $2 million profitable this quarter.

During the second quarter fiscal year 2007 conference call, Patrick Byrne went on to hype the EBITDA metric that he previously derided and imply profitability, too:

We've recovered and we're actually EBITDA positive in the ... second quarter.

The problem is that Overstock.com has continuously reported ‘one-time’ items in the current fiscal year and previous two fiscal years leading any reasonable person to conclude that its costs relating to restructuring and discontinued operations has been anything but “nonrecurring.”

Worst yet, is that Overstock.com’s purportedly “nonrecurring” charges have been increasing at an increasing rate. For example for fiscal year 2005, so-called “nonrecurring” charges for discontinued operations totaled about $2.5 million. For fiscal year 2006, “nonrecurring charges” from discontinued operations totaled about $6.9 and restructuring charges totaled about $5.7 million. During the first six months of fiscal year 2007, Overstock.com’s “nonrecurring” charges for discontinued operations totaled about $3.9 million and restructuring charges totaled about $12.3 million.

The company has continuously engaged in highly speculative and money losing ventures that continue to this day. Overstock.com has gone through frequent and continuous changes in its operating structure which has led to consistent charges for restructuring and discontinued operations as cited above. Such speculative ventures have included OverstockB2B, collaborative filtering, m-commerce, Travel, Auctions, and Design Your Own Jewelry. All of these speculative ventures have produced losses and consumed significant amounts of shareholder capital. Newer speculative ventures such as Omuse have not produced any profits. Despite previous statements by Overstock.com, Omuse has yet to come out of beta.

It is highly misleading for Overstock.com management to make profitability assertions based on a non-GAAP measure such as EBITDA excluding restructuring charges. In addition, the reduction of inventory reserves and reversal of previous so called “nonrecurring” restructuring charges had a material impact on EBITDA and proforma aka “adjusted” EBITDA whose effect went undisclosed in Overstock.com’s calculations and disclosures.

Next in part 2:

I analyze certain disclosures by Overstock.com and statements by management about gross profits margins, inventories, and inventory reserves and raised the question as to whether the company is using inventory reserves to manage earnings.

Written by:

Sam E. Antar (former Crazy Eddie CFO & convicted felon)

Patrick Byrne, CEO of Overstock.com, Admits to Being Target of Government Probe

Last Friday, Patrick Byrne, CEO of Overstock.com, finally admitted in his "Take 5 with Patrick" blog, hosted on Overstock.com's web site, that he is in fact the target of a federal investigation despite previous statements by him denying that he was the focus of a Securities and Exchange Commission probe.

Note: According to Patrick Byrne's blog, his latest blog post has been edited over 20 times. I am quoting from an earlier version (5th edit) of Patrick Byrne's remarks. Download a copy of Patrick Byrne's earlier draft blog remarks here.

In his long rambling blog post filled with accusations of government corruption, Patrick Byrne expressed frustration that the Securities and Exchange Commission does not believe his delusional paranoid fantasies about a massive coordinated financial conspiracy against our capital markets. Two years ago, Byrne claimed that a person, whom he is yet to personally identify, known as the Sith Lord, was masterminding a massive scheme to wreck havoc on our financial system and his company. In Patrick Byrne's paranoid world, if a person does not believe his whacked out paranoid fantasies and delusional conspiracy theories, they must be corrupt.

Patrick Byrne called the Securities and Exchange Commission a "captured regulator" and a "corrupt Sheriff" that "turns a blind eye to thuggery." An angry, spiteful, and delusional Patrick Byrne wrote:

SEC Commission Annette Nazareth, who has a vested interest (through marriage) in continuing the cover-up, was quoted as being dismissive of my claims (though they were already supported by hard, uncontestable data, much of it in published economic research). SEC Commission Campos also personally opposed me, telling an associate of mine in a public forum, "Imperfect regulation does not justify vigilantism by Patrick Byrne or Overstock.com." [Emphasis added.]

He smeared Senator Richard Shelby of Alabama calling him, "an utterly despicable politician" and accused Senators Chuck Grassley and Arlen Specter of giving in to "irresistible forces of fraud and money."

In a previous post on my blog entitled, "Did Patrick Byrne, CEO of Overstock.com, deliver a Trojan horse to the Securities and Exchange Commission?," I detailed how Patrick Byrne orchestrated a Securities and Exchange Commission investigation of Gradient Analytics, an independent research firm and its client Rocker Partners. Gradient had written reports critical of Overstock.com's accounting policies, financial disclosures, corporate governance, and business model.

Byrne had claimed that three former Gradient employees could prove allegations of collusion between Rocker Partners, a short seller, and Gradient Analytics to write reports disparaging Overstock.com. In a post on the Motley Fool message board, using his alias Hannibal100, Byrne had claimed that the three former Gradient employees are "extremely credible, stand up guys."

After finding that the accusations of three former Gradient employees were not credible, the Securities and Exchange Commission decided to drop its investigation of Gradient. The Securities and Exchange Commission continues to pursue a formal investigation of Patrick Byrne, who delivered a Trojan horse diversion to them.

In last Friday's post on his "Take 5 with Patrick" blog, Patrick Byrne, expressing frustration with the SEC, wrote:

I pushed hard on the SEC but drew no response other than becoming the target of a federal investigation.

Patrick Byrne's disclosures about the Securities and Exchange Commission investigation of Overstock.com and him have been, to say the least, deceptive and contradictory.


According to a Dow Jones News Wire article published on August 12, 2005, entitled, "Overstock Faces SEC Probe, Details Short-Selling Lawsuit," (subscription required) by Carol S. Remond, Patrick Byrne had disclosed at a conference call that the Securities and Exchange Commission had begun an informal inquiry of Overstock.com about six months earlier in February 2005. He claimed that the "SEC was pushed into starting an inquiry into his company."

However, despite Patrick Byrne's statement about an informal Securities and Exchange Commission inquiry of Overstock.com, the company made no disclosure of such an inquiry in its filings to the SEC until after a formal government investigation of Overstock.com was launched on May 9, 2006. The SEC subpoenaed a broad range of documents from Overstock.com, including all documents relating to the company's accounting policies and financial disclosures.

After the Securities and Exchange Commission launched its formal investigation of Overstock.com, Patrick Byrne claimed to be the first CEO in history to celebrate receiving an SEC subpoena. He continued to claim that there was a conspiracy was behind the now formal SEC investigation of his company:

I may be the first CEO in history to celebrate receiving an SEC subpoena. Some of the requests suggest the whispering of the blackguards, but I remain unconcerned about their hokum.

However, Overstock.com's web site implied that Overstock.com and Patrick Byrne were not the focus of the SEC investigation by claiming that, "The SEC is conducting an investigation on Overstock.com," rather than stating that the Securities and Exchange Commission is conducting an investigation of Overstock.com. (Emphasis added.].

By not changing the wording of its description of the SEC investigation, Overstock.com's web site, even today, continues to imply that both the company and Byrne are not the focus of a Securities and Exchange Commission investigation.

Nine days after Patrick Byrne had claimed to celebrate his company receiving a Securities and Exchange Commission subpoena, on May 17, 2006, Byrne received a personal subpoena from the Securities and Exchange Commission. However, Overstock.com and Patrick Byrne delayed the disclosure of Byrne's personal SEC subpoena for almost an entire year.

After Patrick Byrne's personal SEC subpoena was disclosed in Overstock.com's 10-Q on May 9, 2007, almost a year after he received it, Byrne claimed that he and Overstock.com are not the focus of the SEC investigation. On May 10, 2007, in his "Take 5 with Patrick" blog, hosted on Overstock.com's web site, Byrne claimed:

Here is the punch-line: as a matter of law I must tread carefully here, but I can say that the heart of the investigation is not, I would suggest, Overstock-centric, but rather, concerns itself with a strange set of relationships among ..... Well, let me just say that the irony here is just delicious. [Emphasis added.]

Two days later, in a post (message number 7271) on InvestorVillage under his alias Hannibal, Patrick Byrne continued to claim that he and Overstock.com are not the focus of a Securities and Exchange Commission investigation:

...I received another [subpoena] addressed to me as a person, though it was a small fraction as long as the first, covered sub-issues of the first, as well as issues related to a broader investigation that is not about me or Overstock at all. As though there is a world of difference between a subpoena addressed to our corporate lawyer asking for our CEO's materials, and one addressed to me at our corporate address: I hate to disappoint, but that distinction is such a fine one it did not occur to me it was worthy of a second press release. The funny part is how it still has not dawnede on the miscreants that a fair bit of the material being requested by the SEC concerns THEM, not me or Overstock. [Emphasis added.]

In light of Patrick Byrne's contradictory statements about the SEC investigation of Overstock.com and him, a reasonable person may conclude that Byrne is an out and out liar.

After admitting that he is the target of a government investigation and viciously attacking various government officials, Patrick Byrne stated in his blog:

PS Regarding the federal investigtion: I have no beef with it, actually. Everything I have done has always been legal and ethical, but I do recognize that it has been irregular and, coloring outside the lines as far as I have, I do not begrudge the federal attention I ahve received. In addition, I have no desire to express disrespect for, or hurt the feelings of, those hundreds of honest, hard-working government employees who come to work each day wanting to do a good job regulating the capital market. It is simply the case that I think a fair share of their bosses, the brass at the SEC, have been corrupted in one way or another. The departure of the OIG, and especially Annette Nazareth, is a first step in fixing this most vital of regulatory bodies. [Emphasis added.]

In Patrick Byrne's delusional and paranoid world, leading a campaign of intimidation, harassment, threats, litigation, anti-Semitism, blackmail, deceit, lies, and smears in an effort to silence his critics is legal and ethical.

Patrick Byrne ignores the fact that his behavior is subject to Overstock.com's Code of Business Conduct and Ethics and SEC rules which require disclosure of his violations of the company's code of ethics. So far, Overstock.com has failed to appropriately disclose Patrick Byrne's blatant violations of Overstock.com's Code of Business Conduct and Ethics in violation of SEC disclosure requirements.

Investigative journalist, Gary Weiss, a frequent target of Patrick Byrne's vindictive smear campaign, who broke the news of Byrne's latest admission, wrote in his blog:

I guess "irregular" is Byrne-speak for stuff like hiring a full-time cyberstalker [Judd Bagley, Director of Communications at Overstock.com], not disclosing an SEC subpoena for a year, saying that the company was in an OK cash position and then raising money through selling stock, setting up an astroturf website to attack his enemies, and a bunch of other sliminess that has been chronicled in the media. [Emphasis added.]

With Patrick Byrne now acknowledging that he is the target of a federal probe into his activities, it remains to be seen whether he will keep his top henchman, Judd Bagley, at Overstock.com. Will Patrick Byrne seek to distance himself from his cyberstalker pal, Judd Bagley? Does Judd Bagley know too much about Patrick Byrne's smear campaign? If Patrick Byrne fires Judd Bagley, Bagley may turn on Byrne and cooperate with the government investigators.

It appears that Patrick Byrne may end up like a hog in a cage.

Written by,

Sam E. Antar (former Crazy Eddie CFO & convicted felon)

Does Overstock.com's Audit Committee have its head in the sand regarding Patrick Byrne?

Yesterday, Overstock.com's Audit Committee approved a waiver from the company's Code of Business Conduct and Ethics. According to Form 8-K filed with the Securities and Exchange Commission:

On August 2, 2007, the Audit Committee and Board of Directors of Overstock.com, Inc. (the "Company") waived the potential application of the Company's Code of Business Conduct and Ethics to a personal loan Patrick M. Byrne, the Chairman of the Board and Chief Executive Officer of the Company, proposes to make to Stormy Simon, the Senior Vice President, Branding and Customer Care of the Company. The proposed loan, of up to $1.5 million from Dr. Byrne's personal funds, would not involve the Company or any Company funds.

However, the Overstock.com still continues to engage in selective enforcement of its Code of Business Conduct and Ethics as it relates to many activities of Patrick Byrne (CEO) and Judd Bagley (Director of Communications).

My blog, Gary Weiss, Tracy Coenen, the O-Smear blog, and many others have detailed the vile, malicious, disgusting, and despicable behavior of Patrick Byrne and his main henchman, Judd Bagley. Patrick Byrne has led a campaign of intimidation, harassment, threats, litigation, anti-Semitism, blackmail, deceit, lies, and smears in an effort to silence his critics.

Both Patrick Byrne and Judd Bagley's actions, as detailed in this blog and elsewhere, are clear violations of Overstock.com's Code of Business Conduct and Ethics. Since Overstock.com has not granted Patrick Byrne or Judd Bagley a waiver (which must be disclosed in Form 8-K) from its Code of Business Conduct and Ethics to carry out such tactics, than the failure by the company to take such action constitutes an "implicit waiver" which must also be disclosed.
Since Overstock.com's web site, links to this convicted felon's web site to provide a download of the company's Code of Business Conduct and Ethics, you may get a copy here.

Do Overstock.com's Audit Committee members Allison H. Abraham, Clay Corbus, and Joseph J. Tabacco and its General Counsel, Jonathan Johnson, have their head in the sand like an Ostrich?

Maybe, Overstock.com's Audit Committee and General Counsel should read a recent Tenth Circuit decision concerning D & O policy rescission in the D & O Diary Blog.

Written by:

Sam E. Antar (former Crazy Eddie CFO & convicted felon)

Other blogs covering this latest latest Overstock.com craziness:

Gary Weiss - Bulletin: Overstock.com Has a 'Code of Ethics'

Judd Bagley, Director of Communications at Overstock.com, stalks a teenage blogger

Update articles: Overstock.com Hatchet Man Judd Bagley's Downward Spiral: Junkie, Confessed Criminal, Admitted Adulterer by Sam Antar (here), and Closing the File on a Criminal and Junkie Named Judd Bagley by Gary Weiss (here)

Ever intent on hunting down the perceived enemies of his despicable boss Patrick Byrne (CEO of Overstock.com), noted cyber stalker Judd Bagley, Director of Communications at Overstock.com, recently focused his wrath on 19 year old teenage blogger, Zac Bissonnette.

On Friday morning at 2:26 AM (local Utah time), in an unsigned post on Yahoo, using the anonymous alias, "Edward Bankey," Judd Bagley threatened teenager Zac Bissonnette that he would be the subject of an upcoming post on Overstock.com's antisocialmedia.net smear web site. The antisocialmedia.net smear web site, which was once anonymously run by Bagley for Byrne, until Roddy Boyd exposed him as being behind it, has previously published anti-Semitic slurs, physical threats, lies, distortions, other smears directed at critics of his boss, Patrick Byrne.

In his unsigned and anonymous Yahoo post, Bagley wrote:

You're a real little self-promoter, aren't you, Zac?
http: //search.messages.yahoo.com/search?....
You're also the subject of the next installment of AntiSocialMedia.net.
And no, you don't get to borrow my car this weekend. Now get back in school.

Judd Bagley was irritated that teenager, Zac Bissonnette, had promoted his new blog on Yahoo under the alias "jews4kapler." Judd Bagley has previously promoted antisocialmedia.net and his other web sites using various anonymous aliases, too.

Previously, Zac Bissonnette, who writes a blog on AOL Money and Finance, had started a new blog, Hedge Funnies, that pokes fun and satirizes various business figures, including Rupert Murdoch and Donald Trump.

In two recent blog items entitled, "Patrick Byrne unveils irrefutable proof of naked short selling" and "CNBC debuts new show: Are You More Insane Than Pat Byrne?" Bissonnette poked fun at both Patrick Byrne and Judd Bagley. Murdoch and Trump don't at all seem to be pissed off.

However, in Patrick Byrne's delusional paranoid world, any criticism or fun poked at him is usually met with severe reprisals from law suits to blackmail, anti-Semitic comments, physical and economic threats, and smears.

I had sent an e-mail to Clay Corbus and Joseph J. Tabacco Jr, both Overstock.com Audit Committee members, and Cc'd certain persons at the Securities and Exchange Commission:

Last night, using an unsigned anonymous alias, Judd Bagley (Director of Communications at Overstock.com) threatened a 19 year blogger about an apparently upcoming post on antisocialmedia.net and violated the company's Code of Business Conduct and Ethics....

I included a copy of Bagley's threat to Bissonnette on Yahoo in the e-mail.

Meanwhile, the 19 year old Zac Bissonnette did not back down from Patrick Byrne's henchman, Judd Bagley. On Friday afternoon, in a blog item entitled, "Overstock.com's other resident creep comes after Hedge Funnies" Bissonnette poked more fun and in a satire at Bagley's latest charade:

Well loyal readers (and by that I mean mom and dad), it's happened far more quickly than we ever could have ever hoped, but Hedge Funnies has made an enemy in the corporate world, that is if you include OSTK as part of the corporate world - most members of the corporate world are more focused on making money than doing internet exposes on 19-year olds....

In addition, Bissonnette challenged Bagley to publish his threatened expose:

Too clever, Mr. Bagley!

You figured out my age, although I tried to hide it with my email address - TeenMoney...

Hedge Funnies looks forward to Mr. Bagley's expose.

Our only regret is that AntiSocialMedia.net doesn't get more traffic....

Best always, Lil’ Sith Lord

Apparently, Clay Corbus and Joseph J. Tabacco Jr either stood idly by or were unable to reign in Patrick Byrne's henchman Judd Bagley. Bagley would not take any nonsense from a teenager that poked fun at his boss, Patrick Byrne and him. Unlike, Forbes reporter, Bethany McLean, whom Byrne once sent an e-mail accusing her of "Giving Goldman traders blowjobs," Bagley tried to attack Zac Bissonnette's educational credentials and called him names.

On Friday evening, according to a Yahoo post by Zac Bissonnette, Judd Bagley tried a different approach as he went on to pursue and threaten and call Bissonnette names. Using another anonymous alias, "WordBizzle" on the Wikipedia page for Bissonnette's former high school, Bagley wrote:

Zac "The Hack" Bissonnette

Sorry, Z. When one chooses Gary Weiss as a hero, and one acts like Gary Weiss, one gets the Gary Weiss treatment.

You'd best straighten up while you're young. And you should also consider getting a high school diploma. It'll open doors.

Now, go get SlimVirgin [Note: this is another Bagley perceived enemy] to take over from here.

You're out of your league. --WordBizzle 05:58, 3 August 2007 (UTC)

While, I don't know anything about Zac Bissonnette's high school diploma, I can tell you that he will be a freshman at Umass Amerherst's Honors College in the fall.

If the past is a pattern, the "Gary Weiss treatment" that Bagley refers to above, may mean physical threats, anti-Semitic slurs, lies, distortions, blackmail, and smears posted on antisocialmedia.net and various message boards by Bagley or his cronies.

Zac Bissonnette responded to Judd Bagley's latest Wikipedia post and wrote back:

Ladies and Gentleman, the Nauseating Judd Bagley...

Judd, I'm sorry I made fun of the toilet-bowl you work for -- OVERSTOCK.COM. But relax it was just a joke. Trust me, there are plenty of people trashing your company with rational substantive arguments. So many in fact, that I haven't even bothered. We picked you as a target for Hedgefunnies.com because we knew you would come after us. You did, and we have had very nice traffic in our first few days. Thanks Judd! The rational arguments I haven't really wasted my time with: Exhibit A: OSTK has an accumulated deficit of over 220 MILLION dollars, and continues to lose money amid declining sales. No need to go and be a creepy cyber-stalker. But please do come after me. Wall Street will CRACK UP when they find out you are going after a 19-year old blogger. And please don't come visit me in the fall at Umass Amherst. Please keep your creepiness limited to the internet.

Perhaps, Judd Bagley has a particular hard-on for Zac Bissonnette, since Zac had written about my previous criminal conduct in his AOL Money and Finance blog: Website of the Day: WhiteCollarFraud.com and Interview with a Reformed Fraudster. Maybe, Bagley thinks I bought this kid an iPod to write about my vile sins.

I guess that every person who comes into contact with me has the potential of being falsely implicated in Patrick Byrne's delusional "Sith Lord" conspiracy. So I guess that I have a duty to tell everyone to stay away from me.

Well let's wait and see what kind of delusional conspiracy Bagley can construct involving Zac Bissonnette and I. In the meantime, Zac Bissonnette remained unafraid of the delusional and nauseating cyber stalker, Judd Bagley. On Saturday afternoon he posted a new satire about Judd Bagley, entitled, "President Bush hires Judd Bagley to hunt down Bin Laden." However, Bush still has not found Bin Laden and Byrne has not still refuses to name his alleged Sith Lord. At least we know that there is a real Bin Laden out there. Byrne's Sith Lord is part of a delusional fantasy.

To borrow a phrase from Herb Greenberg, another target of Byrne's smears, the beat goes on....

In the mean time, to Zac Bissonnette, welcome to the world of Patrick Byrne's delusional paranoid fantasies.

In my previous blog post, I wrote to Patrick Byrne:

You should resign from Overstock.com, admit your sins to the government investigators, apologize for your evil actions, and seek help from a psychiatrist. Otherwise, you may end up like a hog in cage.

I say to Judd Bagley, if you continue this nauseating behavior, you may end up like a lab monkey in a cage.

Written by:

Sam E. Antar (former Crazy Eddie CFO and convicted felon)

Other blogs covering this ongoing saga:

Tracy Coenen - Overstock.com Director of Communications Judd Bagley threatens teenage blogger 

Tracy Coenen - More on Overstock.com stalking teenage blogger

Gary Weiss: Overstock.com Hits New Low: Targets Teenage Boy

Pragmatism Refreshed - Overstock: Pathetic