Is Overstock.com Shopping for an Audit Opinion?

Updated

Overstock.com (NASDAQ: OSTK) just hired KPMG as its auditors to replace Grant Thornton who was recently fired by the company, despite previous assurances by CEO Patrick M. Byrne (photo on right) and company President Jonathan E. Johnson that they would not hire new auditors until after the Securities and Exchange Commission Division of Corporation Finance completed its review of certain financial reporting irregularities.

Both the SEC Enforcement Division and Division of Corporation Finance started investigating Overstock.com after I alerted them that the company violated Generally Accepted Accounting Principles (GAAP) by improperly establishing what is known as "cookie jar" reserves to inflate its financial performance starting in Q4 2008. Afterwards, Overstock.com fired Grant Thornton as the company's auditors and publicly vilified them when they recommended another restatement of the company's financial reports, just as I previously called for in my blog. The company filed an "unreviewed" Q3 2009 10-Q and CEO Patrick Byrne and CFO Steve Chesnut did not sign required Sarbanes-Oxley certifications. NASDAQ sent Overstock.com a letter warning the company of a possible de-listing. NASDAQ recently granted Overstock.com an extension to comply with its listing requirements.

Patrick Byrne and Jonathan Johnson went back on their promise that they would not shop for an audit opinion. Both Byrne and Johnson previously told investors that Overstock.com would wait until after the SEC Division of Corporation Finance completed its review of the company's financial disclosures. See quotes from transcript below:

Willis Taylor - Gagnon Securities - Analyst: Since you've dismissed your auditor for a very specific accounting choice, when you go to select a new auditor, how do you prevent yourself from being accused of opinion shopping?

Jonathan Johnson - Overstock.com - President: That's a great question, Louis, and that's part of the reason that we've decided not to select a new auditor until this -- until we resolve this issue with the SEC.

We do not want to be accused of opinion shopping. We'd like the SEC to help us figure out -- we'd like them to say we've done it the right way or we've done it the wrong way. Once they say one of those two, we don't need to opinion shop.

Patrick Byrne - Overstock.com - Chairman and CEO: But, so, I would even say to the point that when people have contacted us, we have discouraged any communication on the grounds that we got -- for just that reason -- well, I have the -- no matter who we talk to now, then whoever we ultimately pick, people are going to say, well, you did this because you opinion shop.

So we're really not having discussions with anybody. It's nice to get phone calls, but we're not talking to anybody until we get through this just to prevent -- just as a prophylactic measure.

Thank you, Willis. Did you have another question?

KPMG is taking a client with no management integrity as is well advised to study SAS No. 99 about "Consideration of Fraud in a Financial Statement Audit" regarding the unethical "tone at the top" set by Overstock.com's unprincipled management team.

Every single initial financial report for every reporting period issued by Overstock.com has failed to comply with GAAP and other SEC disclosure rules since the company's inception. Overstock.com has restated its financial reports two times in the last three years and now is trying to avoid a third restatement of financial reports resulting from its improper use of "cookie jar" reserves to inflate its financial performance from Q4 2008 to Q3 2009.

Overstock.com has engaged in a vicious campaign to stalk, harass, and intimidate its critics. Judd Bagley, a creepy cyberstalker hired by Patrick Byrne, recently violated Facebook's Statement of Rights and Responsibilities and deceptively posed as "Larry Bergman" in an effort to gather personal information and spy on Patrick Byrne's critics, including me.

Altogether, Judd Bagley posted on DeepCapture.com (a blog funded by Patrick Byrne and heavily promoted on Overstock.com's web site) an enemies list including the names of 7,483 "Facebook friends" of Patrick Byrne's critics. That enemies list included spouses, minor children, and other people that have nothing to do with Overstock.com, Patrick Byrne, or Byrne's delusional short selling conspiracy theories.

Judd Bagley, posing as an imposter, even tried to "Facebook friend" minor children! The nauseating Bagley even encouraged readers to dig into the backgrounds of family members of Byrne's critics, even their minor children, too.

Investigative reporter and blogger Gary Weiss's discovered the pretexting scam by Overstock.com. Barry Ritholtz, another stalking victim of the company, has called for a boycott of Overstock.com in his widely followed blog (107,000 subscribers).

In Going Concern, Caleb Newquist wrote:

Sorry, dear reader but apparently the high profile cat fight between the company and Grant Thornton wasn’t enough to scare KPMG off. Not even the very public revelation of Patsy’s creepy-ass stalking of Overstock critics in the financial media and blogosphere caused the KPMG partners in SLC to turn this client down.

Oh, and not to mention a management team who thought that filing unreviewed 10-Q was the best course of action.

While Adrienne Gonzalez, another widely read accounting blogger, was even more blunt in her criticism of KPMG:

F..cking KPMG. Come on, you can do better than this.

She added:

KPMG just sold its ass up the river.

Hopefully, KPMG (see explanatory note below) has learned from its improper establishment of "cookie jar" reserves that aided the Crazy Eddie fraud in 1986 (See my whitecollarfraud.com Crazy Eddie Fraud page and section entitled, "Too much earnings inflation in fiscal year 1986"). However, KPMG did not seem to learn anything about taking clients like Crazy Eddie that lack management integrity.

Gary Weiss noted:

Hey, somebody had to get the job eventually. Bernie Madoff's auditor is unavailable, so Byrne chose the next best thing -- the auditor who, as Sam points out, let Crazy Eddie get away with murder.

KPMG's audit crew was a fun bunch to hang with, back in the day. During the Crazy Eddie investigation, I was once asked by the SEC if I got the audit partner "laid, relayed, and parlayed."

KPMG is well advised to read my open letters to the SEC (please note that each letter is based on Overstock.com's deliberately vague, incoherent, and inconsistent, and often contradictory disclosures at the time each one was issued):

08/05/09: Open Letter to the Securities and Exchange Commission: Stop Overstock.com GAAP Violations Now!

11/22/09: Open Letter to the Securities and Exchange Commission Part 2: New Information on Overstock.com's GAAP and SEC Disclosure Violations

11/23/09: Open Letter to the Securities and Exchange Commission Part 3: Overstock.com Lied About Grant Thornton and Concealed Error

11/26/09: Open Letter to the Securities and Exchange Commission Part 4: Patrick Byrne Ignores Real Issues As He Vilifies Grant Thornton

12/14/09: Open Letter to the Securities and Exchange Commission (Part 5): Issuer Retaliation Complaint Against Overstock.com

Explanatory Note: Initially, Main Hurdman was Crazy Eddie's auditors until they merged with Peat Marwick Mitchell to become Peat Marwick Main. After another merger, Peat Marwick Main became known as KPMG.

Written by,

Sam E. Antar


Disclosure:

I am a convicted felon and a former CPA. As the criminal CFO of Crazy Eddie, I helped Eddie Antar and other members of his family mastermind one of the largest securities frauds uncovered during the 1980's. If it weren't for the efforts of the FBI, SEC, Postal Inspector's Office, and class action plaintiff's lawyers who investigated, prosecuted, and sued me, I would still be the criminal CFO of Crazy Eddie today.

I do not own Overstock.com securities short or long. My research on Overstock.com and in particular its lying CEO Patrick Byrne is a freebie for securities regulators and the public in order to help me get into heaven, though I doubt that I will ever get there anyway. I will probably end up joining corporate miscreants such as Patrick Byrne in hell. In any case, exposing corporate crooks is a lot of fun for a forcibly "retired" crook like me and analyzing Overstock.com's financial reporting is a forensic accountant's wet dream.

KMPG has sponsored at least two of my uncompensated fraud lectures at certain universities.

Open Letter to the Securities and Exchange Commission (Part 5): Issuer Retaliation Complaint Against Overstock.com

To the Securities and Exchange Commission:

Last week Overstock.com (NASDAQ: OSTK) CEO Patrick M. Byrne ordered his paid internet stalker Judd Bagley to post an enemies list that included the "Facebook friends" of his critics on the DeepCapture.com web site, which has received both direct and indirect funding from the company and Byrne. As I will describe below, Overstock.com uses DeepCapture.com as a vehicle to viciously vilify and intimidate critics of the company and Patrick Byrne.

Recently, the Securities and Exchange Commission started investigating Overstock.com's improper use of "cookie jar" reserves to inflate the company's financial performance starting in Q4 2008 as well as other financial reporting violations, as a result of reporting in this blog. I urge you to also investigate Overstock.com's vicious corporate sponsored retaliation and intimidation campaign against company critics such as myself.

Overstock.com's Board of Directors have breached their fiduciary duty to investors by failing to act on violations of the company's Code of Business Conduct and Ethics by Patrick Byrne and others acting at his direction. Therefore, Patrick Byrne was given an implicit waiver from the company's code of ethics which was not reported as required on form 8-K.

Overstock.com enemies list

Judd Bagley violated Facebook's Statement of Rights and Responsibilities and deceptively posed as "Larry Bergman" in an effort to gather personal information and spy on Patrick Byrne's critics, including me (See Item 3 Safety and Item 4 Registration and Security).

Altogether, Judd Bagley posted on DeepCapture.com the names of 7,483 "Facebook friends" of Patrick Byrne's critics and that list included spouses, minor children, and other people that have nothing to do with Overstock.com, Patrick Byrne, or Byrne's delusional short selling conspiracy theories. Judd Bagley, posing as an imposter, even tried to "Facebook friend" minor children!

Note: For additional details, please read Gary Weiss blog, Tracy Coenen's Fraud Files blog, Joe Weisenthal's Business Insider blog, Felix Salmon's Reuters blog, and Barry Ritholtz's The Big Picture blog.

For example, below is an exchange between Bagley and I that was posted in the comments section of Joe Weisenthal's Business Insider blog.

Sam Antar to Judd Bagley:

According to the Deep Capture website, the following is claimed:

"The Deep Capture website was created to bypass the 'captured' institutions that mediate our nation’s discourse. It was initially funded by Patrick Byrne, CEO of Overstock.com, but it is not part of Overstock. It functions as a separate, limited liability media company, whose co-owners and managers are Judd Bagley, Evren Karpak, and Mark Mitchell."

Your website states that Patrick Byrne provided the initial funding for Deep Capture, but it claims that there is no connection between the Overstock.com and Deep Capture. Yet, Patrick Byrne recently made two blogs posts on Deep Capture and published my emails to him asking to participate in Overstock.com’s recent November 3 and 18 conference calls to ask critical questions about financial reporting violations by the company.

What does the subject of my participation in Overstock.com’s November 3 and 18 conference calls to ask questions about the subject of GAAP and SEC disclosure violations by Overstock.com have to do with Deep Capture’s editorial policy?

Is it your contention that money from Patrick Byrne and/or entities controlled by him are not the source of the salary that you and your fellow employees of Deep Capture receive? If not, who is the source of that funding?

After I did not receive a response from Bagley, I posted the following comment:

Patrick Byrne now admits that Judd Bagley used an assumed name aka Larry Bergman on Facebook:

"DeepCapture investigative reporter Judd Bagley used an assumed name to infiltrate their Facebook network...."

What's even more disgusting is the fact that Bagley tried to FB friend my children, too. Bagley succeeded in becoming Facebook friends with other friends of mine that have nothing to do with issues concerning Overstock.com, short selling, hedge funds, etc.

Finally, Judd Bagley responded and showed his callous indifference to adding the names of my children to Overstock.com's enemies list:

Hey Sam, your "kids" are like 30 years old. Time to cut the apron strings, don't you think.

I responded to Judd Bagley:

Judd Bagley:

My children are actually in their 20s. As their father, I unconditionally love them and will protect them from you, Patrick Byrne, and others no matter what their ages are.

In addition, you also posted the names of my minor nieces and nephews on your enemies list. What do my minor nieces and nephews have anything to do with Overstock.com, hedge funds, naked short selling etc?

You attempted to interfere with my matrimonial litigation by threatening me to settle it. You even contacted by ex-spouse. According to her, she rebuffed you.

You used your false Larry Bergman Facebook identity to invade the privacy of other Facebook friends of mine who have nothing to do Overstock.com, hedge funds, naked short selling etc.

So please stop your charade. You are fooling no one, except your cool aid drinkers.

As you know, Overstock.com, Patrick Byrne, and its other officers are under investigation by the Securities and Exchange Commission, as a result of my reporting GAAP and other SEC disclosure violations by the company to the SEC. Overstock.com CEO Patrick Byrne provided the initial funding for Deep Capture LLC and you are a managing partner of that entity.

Your complicity with Patrick Byrne in retaliating against a whistleblower makes you a willing participant in helping Overstock.com defraud investors by trying to intimidate me into silence about the false and misleading financial disclosures by Overstock.com and its management.

Somehow, you don’t seem to care about the legal risk you have brought upon yourself.

In any case, I refuse to back down from exposing GAAP and SEC disclosure violations by Overstock.com and its management team and I will not be intimidated into silence by paid stalkers like you.

Sam E. Antar (convicted felon, former CPA, former Crazy Eddie CFO, and proud member of Patrick Byrne's enemies list)

After broad condemnation by other bloggers, Patrick Byrne trimmed down his enemies list to 1,689 names. However, the name of my oldest son still remains on that list (as of this posting).

Overstock.com's intimate relationship with Deep Capture

Deep Capture claims that:

The Deep Capture website was created to bypass the “captured” institutions that mediate our nation’s discourse. It was initially funded by Patrick Byrne, CEO of Overstock.com, but it is not part of Overstock. It functions as a separate, limited liability media company, whose co-owners and managers are Judd Bagley, Evren Karpak, and Mark Mitchell.

Both Bagley and Karpak are so-called former Overstock.com employees. Mark Mitchell is a washed up former Columbia Journalism Review reporter who left CJR after his lapses of their journalistic ethics.

Overstock.com's web site heavily promotes DeepCapture.com, Patrick Byrne claims to be a "journalist" working for Deep Capture, and Deep Capture receives commissions from customers who purchase merchandise from Overstock.com through referrals from its website to the company.

The Society of Society of American Business Editors calls Deep Capture a "corporate public relations" entity

The Society of Society of American Business Editors and Writers denied Deep Capture membership to its organization because Patrick Byrne's activities as a self-proclaimed "journalist" and "those of DeepCapture seem closer to corporate public relations." See the email below posted by Byrne on DeepCapture.com (Click on image to enlarge):

Patrick Byrne post my emails asking to participate in various Overstock.com conference calls on DeepCapture.com

On October 31, I sent Patrick Byrne an email and asked to participate in Overstock.com’s Q3 2009 earnings call, so I could ask questions about Overstock.com's violations of GAAP and other SEC disclosure rules. In response, Patrick Byrne responded with an angry anti-Semitic diatribe, called me a “gonif” (Hebrew/Yiddish word for thief), and posted my email on his Deep Capture blog, despite previous claims that Deep Capture is unrelated to Overstock.com (See Gary Weiss blog for more details).

On November 18, I sent Patrick Byrne another email asking to participate in Overstock.com's Q3 2009 conference call where it was going to discuss its filing of an "unreviewed" 10-Q. Again, Byrne posted my email on his Deep Capture blog and again referred to me as a "gonif."

If Deep Capture is "not part of Overstock" as it claims, why did Patrick Byrne post my emails asking to participate in various Overstock.com conference calls and personally attack me with anti-Semitic slurs?

Judd Bagley has refused to answer my emailed questions (cc'd to the SEC) asking him as a "Managing Partner" whether or not and he or others approve Patrick Byrne's blog posts prior to publication on DeepCapture.com. In addition, Judd Bagley has refused to answer questions about whether or not Deep Capture has a "conflict of interest" policy and if he approves of Patrick Byrne calling his critics, who happen to be Jewish like me and Gary Weiss, "gonifs."

Why is Judd Bagley so afraid to answer such questions about Patrick Byrne's activities at Deep Capture? Apparently, Judd Bagley does not want to answer any questions because it is not in his interests or the interests of his real employers, Overstock.com and Patrick Byrne.

Certain other retaliatory actions by Judd Bagley on behalf of Patrick Byrne

In 2007, Judd Bagley colluded with his trusted friend Edward Manfredonia to spread vile anti-Semitic trash talk (download) about Conde Nast contributing editor Gary Weiss and I on his antisocialmedia.net blog. Manfredonia once wrote the International Herald Tribune, “Don’t judge the Nazi’s too harshly.” He has sued Gary Weiss, the Securities and Exchange Commission, and Yahoo claiming among other things delusional criminal conspiracies singling out Jews, in particular. All of those cases were thrown out of court.

Later that year, Patrick Byrne even bribed Utah Attorney General Mark Shurtleff to write a letter (issued as a press release and still posted on Overstock.com’s web site) defaming me by claiming that I made certain agreements that I never made with Shurtleff's office. I went to Utah at my own expense and took no fees to train Shurtleff’s staff on combating white collar crime. However, taped transcripts of phone conversations with Chief Deputy Attorney General Kirk Torgensen and Deputy Attorney General Richard Hamp revealed Byrne’s scheme with Shurtleff to defame and discredit me (Details here).

In April 2009, Judd Bagley threatened me to settle my matrimonial litigation with my ex-spouse and told me to, "settle the suit...give her whatever she wants. Because if it goes to trial, I'll probably attend."

Overstock.com's financial reporting violations

Every initial financial report issued by Overstock.com for every reporting period since the company's inception has violated Generally Accepted Accounting Principles (GAAP) and SEC disclosure rules. The company has restated its financial reports two times in the last three years due to such GAAP and SEC disclosure violations and is now desperately trying to avoid a third restatement of its financial reports.

The SEC started investigating Overstock.com after I alerted them to new GAAP violations by the company. Afterwards, Overstock.com fired Grant Thornton as the company's auditors and publicly vilified them when they recommended another restatement of the company's financial reports, just as I previously called for in my blog. The company filed an "unreviewed" Q3 2009 10-Q and CEO Patrick Byrne and CFO Steve Chesnut did not sign required Sarbanes-Oxley certifications. NASDAQ sent Overstock.com a letter warning the company of a possible de-listing.

A clear case of scienter

Here you have a clear case of scienter for a rule 10b-5 violation based on Overstock.com’s unwillingness to restate its financial reports and instead retaliate against its critics by such as myself.
Conclusion

Your failure to act on blatant issuer retaliation by Overstock.com will encourage even more dishonest companies to retaliate against their critics and result in significant losses to investors.

Respectfully,

Sam E. Antar

Other open letters to the SEC (please note that each letter is based on Overstock.com's deliberately vague, incoherent, and inconsistent, and often contradictory disclosures at the time each one was issued):

08/05/09: Open Letter to the Securities and Exchange Commission: Stop Overstock.com GAAP Violations Now!

11/22/09: Open Letter to the Securities and Exchange Commission Part 2: New Information on Overstock.com's GAAP and SEC Disclosure Violations

11/23/09: Open Letter to the Securities and Exchange Commission Part 3: Overstock.com Lied About Grant Thornton and Concealed Error

11/26/09: Open Letter to the Securities and Exchange Commission Part 4: Patrick Byrne Ignores Real Issues As He Vilifies Grant Thornton

Other documents submitted via email:

Overstock.com's enemies list containing 7,483 names including minor children

Overstock.com's enemies list containing 1,689 names which still includes my oldest son's name.

Disclosure:

I am a convicted felon and a former CPA. As the criminal CFO of Crazy Eddie, I helped Eddie Antar and other members of his family mastermind one of the largest securities frauds uncovered during the 1980's. If it weren't for the efforts of the FBI, SEC, Postal Inspector's Office, and class action plaintiff's lawyers who investigated, prosecuted, and sued me, I would still be the criminal CFO of Crazy Eddie today.

I do not own Overstock.com securities short or long. My research on Overstock.com and in particular its lying CEO Patrick Byrne is a freebie for securities regulators and the public in order to help me get into heaven, though I doubt that I will ever get there anyway. I will probably end up joining corporate miscreants such as Patrick Byrne in hell. In any case, exposing corporate crooks is a lot of fun for a forcibly "retired" crook like me and analyzing Overstock.com's financial reporting is a forensic accountant's wet dream.

Overstock.com and Patrick Byrne Have an Enemies List That Includes Friends and Family Members of Critics

Updated:

If you are a critic of Overstock.com (NASDAQ: OSTK) beware that CEO Patrick M. Byrne and his paid stalker Judd Bagley wants to know all about your friends, acquaintances, and family members on Facebook in a desperate effort to intimidate you into silence. According to Barry Ritholtz:

Here is something weird, and a little creepy: The freakshow that is DeepCapture.com seems to have grabbed all of the Facebook friends of anyone who has ever: a) written anything positive about short selling or 2) said anything negative about Overstock.com.....

For those of you who are unaware of what DeepCapture is, the name suggests that the short sellers have “Captured” the press. Deep Capture is a work of Patrick Byrne, founder of Overstock.com.

For those of you who are unaware of what DeepCapture is, the name suggests that the short sellers have “Captured” the press. Deep Capture is a work of Patrick Byrne, founder of Overstock.com.

DeepCapture.com is a web site financed by Patrick Byrne and its managing partner is Judd Bagley. Byrne claims to moonlight as a reporter for Deep Capture.

Rest assured that I will continue to expose frauds committed by Patrick Byrne and assist the Securities and Exchange Commission in its investigation of the company despite Byrne's attempts to intimidate and stalk me, my family members, and friends.

Obviously, Patrick Byrne is in a deep panic. Every initial financial report issued by Overstock.com for every reporting period since the company's inception has violated Generally Accepted Accounting Principles (GAAP) and SEC disclosure rules. The company has restated its financial reports two times in the last three years due to such GAAP and SEC disclosure violations. The SEC is investigating Overstock.com after I alerted them about new GAAP violations by the company. Afterwards, Overstock.com fired Grant Thornton as the company's auditors when they recommended another restatement of the company's financial reports, as I previously recommended in my blog. The company filed an "unreviewed" Q3 2009 10-Q and CEO Patrick Byrne and CFO Steve Chesnut did not sign required Sarbanes-Oxley certifications. NASDAQ sent Overstock.com a letter warning the company of a possible de-listing.

Update:

In my particular case, I have two Facebook profiles: a public profile and a private one. Apparently, Patrick Byrne had somebody hack into my private profile which lists friends, acquaintances, family members, friends of my children, and others. Altogether, Patrick Byrne's enemies list has 7,483 names!

Since Patrick Byrne is so obsessed with me I've relaxed my privacy settings on Facebook to help him along. Memo to Byrne: I am not afraid of you.

Update 2:

After broad condemnation by other bloggers, Patrick Byrne trimmed down his enemies list to 1,689 names. See other blogs:

December 10, 2009: Gary Weiss Blog - Patrick Byrne Update: Hacking into Facebook to Compile an Enemies List by Gary Weiss

December 10, 2009: Dag Blog - Patrick Byrne and Overstock.com go Nixonian with Enemies List by William K . Wolfrum

December 10, 2009: Business Insider - Did Patrick Byrne Hack Into Private Facebook Pages As Part Of His Journalist Intimidation Scheme? by Joe Weisenthal

December 10, 2009: Barron's Tech Trader Daily - Overstock’s Byrne Publishes Facebook Ties of Journalists, Fund Managers by Eric Savitz


Written by:

Sam E. Antar

Other relevant blog posts:

08/05/09: Open Letter to the Securities and Exchange Commission: Stop Overstock.com GAAP Violations Now!

11/22/09: Open Letter to the Securities and Exchange Commission Part 2: New Information on Overstock.com's GAAP and SEC Disclosure Violations

11/23/09: Open Letter to the Securities and Exchange Commission Part 3: Overstock.com Lied About Grant Thornton and Concealed Error

11/26/09: Open Letter to the Securities and Exchange Commission Part 4: Patrick Byrne Ignores Real Issues As He Vilifies Grant Thornton

Disclosure:

I am a convicted felon and a former CPA. As the criminal CFO of Crazy Eddie, I helped Eddie Antar and other members of his family mastermind one of the largest securities frauds uncovered during the 1980's. If it weren't for the efforts of the FBI, SEC, Postal Inspector's Office, and class action plaintiff's lawyers who investigated, prosecuted, and sued me, I would still be the criminal CFO of Crazy Eddie today.

I do not own Overstock.com securities short or long. My research on Overstock.com and in particular its lying CEO Patrick Byrne is a freebie for securities regulators and the public in order to help me get into heaven, though I doubt that I will ever get there anyway. I will probably end up joining corporate miscreants such as Patrick Byrne in hell. In any case, exposing corporate crooks is a lot of fun for a forcibly "retired" crook like me and analyzing Overstock.com's financial reporting is a forensic accountant's wet dream.