On October 24, 2008, we disclosed certain accounting errors and announced our intent to restate certain of our financial statements and other information to correct these errors (see Note 3 to the consolidated financial statements contained in Part I, Item 1 “Financial Statements (Unaudited) (Restated)”). As a result of these errors, we may become subject to litigation and regulatory action. Although we would vigorously defend against any such actions, there can be no assurance that we would prevail. An award of damages in such suit or a regulatory penalty imposed as a result of regulatory action could be substantial and harm our business. The financial costs and the dedication of the time of management to defend such actions could also harm us financially and disrupt our business. (Emphasis added.)As I detailed in a previous blog post, on October 24, 2008, Overstock.com surprised investors and reported that it was restating all financial reports dating back to 2003, due to a newly disclosed accounting error relating to customer refunds and credits. The company disclosed that all previous financial reports issued from 2003 to Q2 2008 “should no longer be relied upon.”
In Overstock.com's latest 10-Q report released today, the company revealed:
...the CEO (principal executive officer) and Senior Vice President, Finance (principal financial officer) each concluded that the control deficiency previously described constituted a material weakness in the Company’s system of internal control over financial reporting as of September 30, 2008.
...management, including our CEO (principal executive officer) and Senior Vice President, Finance (principal financial officer), has revised its earlier assessment and has now concluded that our disclosure controls and procedures were not effective as of December 31, 2007 or during the interim periods ending September 30, 2008 in reaching a reasonable level of assurance that information required to be in our reports filed or submitted under the Exchange Act was properly recorded, processed, summarized, and reported within the time periods specified in the Commission’s rules and forms. (Emphasis added.)
Therefore, Overstock.com disclosed that it did not maintain a straight set of books due to a "material weakness" in internal controls.
The latest customer refund and credit accounting errors follow a string of material accounting errors that have plagued Overstock.com throughout its history. Earlier this year, the Securities and Exchange Commission discovered that Overstock.com intentionally did not report revenues in compliance with GAAP, since its inception. In February 2006, the company disclosed inventory accounting errors for fiscal years 2002 to 2005.
According to a Fortune magazine article way back in February 2000:
Overstock.com came to Byrne's attention last spring when its founder approached High Plains for capital. "The financials were a joke," says High Plains CFO John Pettway. (Emphasis added.)However, Overstock.com's financial reports remained a "joke," as evidenced by its string of material accounting errors and willful non-compliance with SEC Regulation G in reporting a non-compliant EBITDA.
Starting in November 2007, this blog was the first to expose Overstock.com’s willful violations of SEC Regulation G governing non-GAAP disclosures, such as EBITDA. As a result of Overstock.com's violations of Regulation G, the company materially overstated its non-compliant EBITDA in financial reports from Q2 2007 to Q2 2008, including comparable non-compliant EBITDA numbers for each period. Overstock.com reconciled its non-compliant EBITDA to operating loss, rather than net loss (the most directly comparable GAAP measure required under SEC Regulation G), and improperly removed stock-based compensation costs from its non-compliant reported EBITDA.
Beginning in November 2007 to just last week, I informed Overstock.com Audit Committee member Joseph J. Tabacco Jr, via several emails, Cc'd to the SEC, about the company's non-compliant EBITDA disclosures, but management led by CEO Patrick Byrne, stubbornly refused to change its non-compliant EBITDA disclosures, until today. When Overstock.com originally disclosed that it was restating its financial reports dating back to 2003 in its October 24 press release and subsequent Q3 2008 earnings call, my blog noted that the company continued to report a non-compliant EBITDA in its Q3 2008 earnings report. During the Q3 2008 earnings call, both CEO Patrick Byrne and company President Jonathan Johnson, responding to questions posted in my blog a day earlier, flat out denied that Overstock.com violated Regulation G. Patrick Byrne told investors:
The claim that EBITDA is not compliant with SEC definition is nonsense. (Emphasis added.)
In my next blog post, I detailed how Overstock.com's recently announced accounting errors for customers refunds and credits caused further material overstatements of the company's non-compliant EBITDA disclosures.
Shortly afterwards, I emailed Overstock.com's Board of Directors, CEO Patrick Byrne, and Audit Committee member Joseph J. Tabacco Jr. to alert them about the company's continuing non-compliance with Regulation G in reporting EBITDA.
Overstock.com CEO Patrick Byrne responded with callous indifference, writing me:
I usually have my secretary handle these kinds of letters. Would you like her email?
However, cooler heads at the company, likely led by Audit Committee member Joseph J. Tabacco Jr., prevailed over Patrick Byrne and Jonathan Johnson. Now, in Overstock.com's latest 10-Q for Q3 2008 released today, the company renamed its non-compliant EBITDA disclosure to “Adjusted EBITDA” and it reconciles "Adjusted EBITDA" to net loss, rather than operating loss, the most directly comparable GAAP measure required under Regulation G. By renaming its non-compliant EBITDA disclosure as “Adjusted EBITDA,” the company can now properly eliminate stock-based compensation costs and losses from discontinued operations from “Adjusted EBITDA.”
Journalists, bloggers, and others who dared to expose misdeeds by Overstock.com's unprincipled management team have faced a vicious retaliatory smear campaign orchestrated by CEO Patrick Byrne with the collusion of his paid shills: cyberstalker Judd Bagley, Mark Mitchell (former Columbia Journalism Review reporter who left CJR under mysterious circumstances), and message board trolls Dave Patch and Evren Karpak.
Journalists Gary Weiss, Herb Greenberg, Joe Nocera, Floyd Norris, Roddy Boyd, Carol Remond, Bethany McLean, Seth Jayson, bloggers Jeff Matthews, Zac Bissonnette and Tracy Coenen, and others have faced reprisals in the form of despicable smears and outright lies spewed by Byrne and his paid cronies.
In addition, independent research firm Gradient Analytics and short seller Copper River Management were subjected to meritless litigation from Overstock.com, on top of the smear campaign orchestrated by CEO Patrick Byrne. Gradient, whose early work first exposed deceptive financial reporting of revenues by Overstock.com, recently settled with the company, while the litigation against Copper River continues on. Overstock.com's latest disclosures about accounting errors and restatements of financial reports, puts its litigation prospects with Copper River in severe jeopardy.
Patrick Byrne even recruited the current Attorney General of the state of Utah Mark Shurtleff, with a $5,000 payment, to discredit me in an effort to get me to back off from covering Overstock.com in my blog. Byrne's collusion with Shurtleff was exposed in tape recorded conversations by me with members of Shurtleff's office.
I call on the Securities and Exchange Commission to start an enforcement action and the Justice Department to conduct a criminal investigation into the vicious retaliatory smear campaign orchestrated by CEO Patrick Byrne in an effort to prevent critics from exposing the false and misleading reports and disclosures by Overstock.com and its unprincipled management team.
To be continued....
Sam E. Antar (former Crazy Eddie CFO and a convicted felon)
Disclosure: Not short or long Overstock.com.