Open Letter to the Securities and Exchange Commission (Part 4): Patrick Byrne Ignores Real Issues As He Vilifies Grant Thornton
To the Securities and Exchange Commission:
Recently, Overstock.com (NASDAQ: OSTK) CEO Patrick M. Byrne has engaged in a vile public denunciation against Grant Thornton, the company's former auditors. On November 24, 2009, Overstock.com issued a press release disputing allegations by Grant Thornton that it did not approve the company recognizing the Q1 2009 recovery of a 2008 $785,000 overpayment to a fulfillment partner as income in 2009. Embittered CEO Patrick Byrne told the Salt Lake Tribune:
We refuse to knuckle under the SEC's and Grant Thornton's insistence that we abandon generally accepted accounting principles.
I am not surprised by Patrick Byrne's desperate lies given that every single financial report issued by the company since its inception has at least initially failed to comply with Generally Accepted Accounting Principles (GAAP) and SEC disclosure rules. Patrick Byrne, former CFO David Chidester, and present CFO Steve Chesnut have all signed Sarbanes-Oxley certifications that later turned out to be false. Likewise, every audited financial report certified by Grant Thornton's predecessor auditor PricewaterhouseCoopers (PWC), at least initially turned out to flawed. Instead complying with GAAP and SEC disclosure rules, the company vilifies regulators like the SEC, its critics such as myself, others, and now Grant Thornton.
No matter what excuse Overstock.com makes up to defend its 2008 financial reporting, SEC Staff Accounting Bulletin No. 99 on Materiality makes it clear that:
Registrants and auditors also should consider the effect of misstatements from prior periods on the current financial statements.
Despite pressure from its former client Overstock.com, Grant Thornton appropriately recommended that Overstock.com restate its 2009 financial reports because an accounting error originating in 2008 materially overstated the company's financial performance in Q1 2009. Instead, Overstock.com fired Grant Thornton, rather than restate its financial reports to comply with GAAP. Grant Thornton, unlike Overstock.com has acted responsibly based on new information it obtained during the course of a probe by the SEC Division of Corporation Finance.
The other main issue is that Overstock.com improperly moved income earned from underbilled fulfillment partners in prior reporting periods (Q3 2008 and before) to future reporting periods (Q4 2008 and later). In effect, Overstock.com established a "cookie jar" reserve to materially overstate its financial performance in future reporting periods in violation GAAP and SEC disclosure rules.
In my fourth open letter, I will discuss the current relevant issues and as usual I may have to repeat past issues to adequately explain what is going on now.
Note: Enclosed are links to my first, second, and third open letters to the SEC. Each letter is based on Overstock.com's deliberately vague, incoherent, and inconsistent, and often contradictory disclosures at the time each one was issued.
Background: Where this all started
In October 2008, Overstock.com restated its financial reports from Q1 2003 to Q2 2008 due to customer refund and credit errors. It was the second time in two years that Overstock.com restated its financial reports due to GAAP violations. In fact, financial reports from Q1 2003 to Q3 2005 were restated twice: in 2006 due to inventory accounting errors and in 2008 due to customer refund and credit errors.
However, the October 2008 restatement did not include corrections arising from underbilled offsetting costs and reimbursements that were already earned from its fulfillment partners during those same corresponding periods, less a reasonable estimate of uncollectable amounts. In other words, Overstock.com should have gone back and corrected or restated its financial reports to reflect income already earned from offsetting costs and reimbursements due from its fulfillment partners, less a reasonable estimate for uncollectable amounts. (See SFAS No. 154 and SFAS No 5 paragraph 1, 2, 8 and 23). It didn’t.
Instead, Overstock.com improperly deferred income that it earned but underbilled its fulfillment partners during prior reporting periods (Q3 2008 and before) to by moving such income to future reporting periods (Q4 2008, Q1 2009, Q2 2009, and Q3 2009). In other words, Overstock.com took income that should have been reported in prior reporting periods (Q3 2008 and before) and moved it to future reporting periods (Q4 2008 and later) to materially overstate its financial performance in those later reporting periods (Q4 2008 $1.8 million, Q1 2009 $0.453 million, Q2 2009 $87k, Q3 2009 $40k).
In effect, Overstock.com improperly created a cookie jar reserve to materially inflate future earnings or reduce future losses. Overstock.com ridiculously claimed that the collection of the entire amount of its underbillings (every single penny) “was not assured” and instead falsely claimed that a gain contingency existed rather than make a reasonable estimate of uncollectable amounts as required under SFAS No. 5. Therefore, Overstock.com improperly recognized income from underbilled fulfillment partners as amounts due to the company were collected on a non-GAAP cash basis, rather when they were earned under accrual accounting or GAAP. (Note: I recommend reading forensic accountant and author Tracy Coenen's blog for an explanation of how cookie jar reserves work.)
If Overstock.com would have properly followed GAAP and restated its previous financial reports as required, in Q4 2008 the company would have: (1) reported a net loss instead of a net profit, (2) reported sixteen consecutive losses instead of 15 consecutive losses, and (3) failed to meet mean analysts’ consensus expectations for earnings per share. Any one of the above three materiality yardsticks triggers a restatement of prior year's effected financial reports under SEC Staff Accounting Bulletin No. 99.
Overstock.com and SEC was alerted about GAAP violations
In February 2009, I alerted by the Securities and Exchange Commission and Overstock.com about the company’s improper use of a cookie jar reserve to inflate its financial performance in future reporting periods. While Overstock.com continues to stubbornly refuse to restate its financial report to comply with GAAP, both the SEC Enforcement Division and the Division of Corporation Finance have started parallel probes of the company.
Overstock.com’s failure to disclose the 2008 $785,000 overpayment to a fulfillment partner in financial reports and possible concealment from Grant Thornton
While Overstock.com disclosed underbilling its fulfillment partners in subsequent financial reports (2008 10-K report, 2008 10-K/A report, Q1 2009 10-Q report, and Q2 2009 10-Q report), the company made no disclosure about overpaying a fulfillment partner $785,000 in 2008, its recovery of that amount in Q1 2009, and its recognition of income when it was recovered in Q1 2009.
In its Q1 2009 10-Q, Overstock.com originally disclosed that:
In the first quarter of 2009, we reduced total cost of goods sold by $1.9 million for billing recoveries from partners who were underbilled in 2008 for certain fees and charges that they were contractually obligated to pay, and a refund due of overbillings by a freight carrier for charges from the fourth quarter of 2008.
Note: Bold print and italics added by me.
Overstock.com's Q1 2009 10-Q report made no mention of the 2009 recovery of a 2008 overpayment to a fulfillment partner being included as income in that quarter. The company only mentioned "billing recoveries from partners who were underbilled in 2008" and "a refund due of overbillings by a freight carrier."
Questioning by SEC Division of Corporation Finance exposed hidden overpayment
It turns out that in its “unreviewed” Q3 2009 10-Q report, Overstock.com for the first time disclosed that the company overpaid a fulfillment partner in 2008 and recognized the recovery of such amount as income in Q1 2009. Overstock.com’s disclosure of the 2008 $785,000 overpayment to its fulfillment partner only came after SEC Division of Corporation Finance started asking very specific questions about the company’s financial disclosures. See below:
On October 1, 2009, the Company received a comment letter from the Division of Corporation Finance of the SEC regarding the Company’s 2008 Form 10-K/A and June 30, 2009 Form 10-Q. The Company responsed to the comment letter to the SEC on October 16, 2009 and October 21, 2009. The SEC reviewed the Company’s responses and on November 3, 2009 the SEC responded with a follow-up comment letter which requested additional information or clarification regarding, among other matters, a fulfillment partner overpayment (for which $785,000 was recognized as income in 2009 as it was received), fulfillment partner under billings (for which $580,000 was recognized as income in 2009 as it was received), overbillings by a freight carrier in 2008 (for which $301,000 was recognized in income in 2009 when the refunds were received) and an adjustment related to redeemable shares of the Company’s common stock (for which $705,000 was reclassified in 2009 from stockholder’s equity to redeemable common stock).
Note: Bold print and italics added by me.
In a follow-up Q3 2009 8-K report (paragraph 7) Overstock.com clarified that the $1.9 million it collected from underbilled fulfillment partners also included the recovery of an overpayment to a fulfillment partner in the amount of $785,000, contrary to its prior Q1 2009 10-Q disclosure:
In late Q1 2009, we received $785,000 relating to the partner overpayment discussed in point 1 above (even though the other issue with that partner remained unresolved). Thus, we recognized $785,000 in our 2009 Q1 Form 10-Q financials, which Grant Thornton reviewed as our auditors. In addition we highlighted $1.9 million (of which the $785,000 was a part) attributable to the collected overpayment, certain partner under-billing collections, and a freight carrier’s refund of overcharges in one-time, non-recurring income in that quarter’s earnings release, earnings conference call and Form 10-Q.
Note: Bold print and italics added by me.
Therefore, the Q1 2009 10-Q made no mention of any 2009 recovery of a 2008 overpayment to a fulfillment partner and the recognition of income in that quarter for that recovery. Overstock.com first disclosed the overpayment to a fulfillment partner only after the SEC Division of Corporation Finance questioned Overstock.com's financial disclosures.
Reasonable questions to ask are:
Why didn't Overstock.com disclose the overpayment to the fulfillment partner
What was the company trying to hide?
The only reason why Overstock.com disclosed the overpayment is because the SEC Division of Corporation Finance made inquiries about the company's financial disclosures.
Grant Thornton alleges that they did not know about 2008 overpayment to fulfillment partner
Grant Thornton alleges that they did not know about the 2008 overpayment, 2009 subsequent recovery of such overpayment, and Overstock.com’s reporting of that recovery as income in Q1 2009 until October 2009, while they was assisting Overstock.com in responding to questions from the SEC Division of Corporation Finance. See below:
We disagree with the Company’s statement in paragraph 7 “that upon further consultation and review within the firm, Grant Thornton revised its earlier position” regarding the previously filed 2009 interim financial statements. This statement is not accurate. The Company brought the overpayment to a fulfillment partner to Grant Thornton’s attention in October. After additional discussions with the Company, the predecessor auditor and receipt of additional documentation from the Company we determined that the Company’s position as to the accounting treatment for the overpayment to a fulfillment partner was in error. Further the Company’s statement does not address the fact that the consultation noted in paragraph 5 was in relation to the ongoing incomplete review of the September 30, 2009 interim financial statements.
We have also read Item 4.02 of Form 8-K of Overstock.com, Inc. (“the Company”) dated November 16, 2009 and disagree with the statements concerning our Firm contained therein. During the course of our incomplete review of the Company’s September 30, 2009 financial statements, we advised the Company that disclosure should be made to prevent future reliance on its March 31, 2009 and June 30, 2009 financial statements. We advised the company to make the disclosure because we became aware that material modifications should be made to the previously filed 2009 interim financial statements to conform with US GAAP. Such modifications are necessary due to the Company having reduced its cost of goods sold in the first quarter of 2009 by receipt of a refund of an overpayment to a fulfillment partner. Further, the Company had additional items which we discussed that were still unresolved at the time we were dismissed, that could have a material impact on the first and second quarter financial statements for 2009. These items are identified by the Company in Paragraph 5 in item 4.01 of the Company’s Form 8-K.
Note: Bold print and italics added by me.
Therefore, Grant Thornton is implying that Overstock.com concealed the transaction from them or otherwise misled them during their review of the Q1 2009 10-Q and Q2 2009 10-Q. It sounds plausible, given Overstock.com’s failure to disclose the overpayment in its 2008 10-K report, 2008 10-K/A, Q1 2009 10-Q report, and Q2 2009 10-Q report.
Overstock.com claims that Grant Thornton had prior knowledge of the 2008 overpayment to the fulfillment partner and raised no objection to its accounting practices until October 2009
Patrick Byrne claimed that Grant Thornton had previously reviewed their accounting for the 2009 recovery of the 2008 overpayment and had no issue with reporting it as income in the company’s Q1 2009 10-Q reports:
On several occasions Grant Thornton discussed with and provided guidance on the accounting for the $785,000 fulfillment partner overpayment during and prior to October in the following respects:
a. Before Grant Thornton accepted our audit engagement in Q1 2009, it reviewed our filed 2008 Form 10-K and told us it was comfortable with our past accounting practices.
b. As our auditors, Grant Thornton reviewed our prior auditor’s 2008 Form 10-K audit work papers. Grant Thornton did not question or object to our accounting for the overpayment recovery at that time.
c. As our auditors, Grant Thornton reviewed our Q1 and Q2 2009 financial statements before we filed Form 10-Q’s for those quarters. At no time during those reviews did Grant Thornton question or object to our accounting for the overpayment recovery.
In addition Patrick Byrne claimed that later on in October 2009, Grant Thornton changed its position on the accounting for the Q1 2009 recognition of income from the recovery of a 2008 overpayment to a fulfillment partner:
d. On October 13, 2009, Grant Thornton reviewed the correspondence from our fulfillment partner and the events around the overpayment. Prior to our submission of our October 16 and 21 responses to an SEC comment letter that discussed the accounting for the overpayment recovery, Grant Thornton reviewed, edited and approved those responses, which included our accounting treatment for the overpayment recovery. Our local Grant Thornton engagement partner, Tom Eldredge, told us on October 14 that the local Grant Thornton engagement team had held conference calls within Grant Thornton to review our accounting treatment for the overpayment recovery, and that these conference calls extended to the regional and national offices. Mr. Eldredge told us that, after his review with the regional and national offices, “in light of the circumstances at the time and given the judgment utilized by Overstock, Grant Thornton had determined that our accounting treatment for this overpayment recovery was not unreasonable.”
However, Grant Thornton says that they never agreed with Overstock.com's improper accounting and wanted the company to restate its Q1 2009 10-Q and Q2 2009 10-Q reports because the overpayment was in 2008 and the recovery of that overpayment should not be reported as income in 2009. If Overstock.com concealed the transaction from Grant Thornton, its review of prior financial reports was based on the omission of material financial information by the company.
While Grant Thornton did not officially take a position that the 2008 financial reports must be restated, since its predecessor PricewaterhouseCoopers audited them, the restatement of the 2009 financial reports can only be accomplished by the restatement of the 2008 reports to correct the overpayment error.
Overstock.com’s stubborn failure to restate its financial reports to correct accounting errors as required by GAAP
The SEC has made its position clear in various successful legal actions that “GAAP do(es) not allow for the deferral of accounting adjustments arising from a change in estimate or the correction of an error." Source: Cease and Desist order issued In the matter of Carl M. Apel, Administrative Proceeding in the Matter of Sun Communities Inc. and Sun Communities Operating Limited Partnership, and Cease and Desist Order Issued in the Matter of National Steel Corporation). However, Overstock.com is in fact deferring various “accounting adjustments arising from…the correction of an error” and violating GAAP.
In October 2009, Grant Thornton ultimately told Overstock.com that its Q1 2009 recognition of income from the recovery of a 2008 overpayment to a fulfillment partner violated GAAP and that the company must restate its prior financial reports to correct that error.
On November 13, Overstock.com fired Grant Thornton, rather than restate its financial reports as recommended by them and filed an “unreviewed” Q3 2009 10-Q report. However, CEO Patrick Byrne and CFO Steve Chesnut chickened out and did not certify those reports as required under Sarbanes-Oxley Sections 302 and 906. Afterwards, NASDAQ sent Overstock.com a letter warning the company of possible delisting of the company.
What really matters
What really matters is that during the course of assisting Overstock.com in answering questions from the SEC Division of Corporation Finance, Grant Thornton came upon additional information that appropriately led them to recommend the restatement of 2009 financial reports, which in turn meant the restatement of 2008 reports (See SAS 1 AU 560 and AU 561).
Even if Grant Thornton previously knew about the 2008 overpayment to a fulfillment partner and the reporting of the 2009 recovery of that overpayment as income in 2009, they are allowed to change their minds. Grant Thornton responsibly and appropriately recommended to Overstock.com that the company must restate its financial reports after obtaining new information during the course of the SEC Division of Corporation Finance probe of the company's financial disclosures. Grant Thornton valiantly did not give into pressure from its client Overstock.com and should be commended for not backing down from Byrne's bullying.
Patrick Byrne defended Overstock.com's 2008 financial reports with the following excuse:
Weighing all the facts and circumstances at the time, we decided it would be a mistake to book this overpayment as an asset as of December 31, 2008, deciding instead to recognize the sums as we recovered the money, that is, we thought the conservative position was the correct position.
However, according the SEC Staff Accounting Bulletin No. 99 on Materiality:
Registrants and auditors also should consider the effect of misstatements from prior periods on the current financial statements.
In this particular case, Grant Thornton appropriately concluded that accounting errors from 2008 were materially overstating Overstock.com's financial performance in 2009 by shifting income properly reported in 2008 to 2009.
Improper accounting for underbillings to fulfillment partners
The much larger issue getting lost in Overstock.com's bitter dispute with Grant Thornton is the company's improper accounting from underbilling its fulfillment partners before Q4 2008. Separate and apart from the overpayment issue, Overstock.com failed restate its financial reports to properly reflect when those underbillings were actually earned, less a reasonable estimate for uncollectable amounts.
As I detailed above, on October 24, 2008 Overstock.com announced that it discovered customer refund and credit errors and restated its financial reports from Q1 2003 to Q2 2008 to correct those errors. However, the October 2008 restatement did not include offsetting corrections arising from underbilled offsetting costs and reimbursements that were already earned from its fulfillment partners during those same corresponding periods, less a reasonable estimate of uncollectable amounts. Overstock.com falsely claimed that a “gain contingency” existed by ridiculously claiming that the collection of the entire amount of that underbilling “was not assured” rather than make a reasonable estimate of uncollectable amounts as required by GAAP.
In its “unreviewed” Q3 2009 10-Q report Overstock.com later disclosed that it underbilled fulfillment partners $2.8 million in 2007 and $2.7 million in approximately the first nine months of 2008. Overstock.com originally announced the accounting error on October 24, 2008 and during that same quarter (Q4 2008 or from October 1 to December 31), the company quickly collected $1.8 million of $2.7 million underbilled amounts due from fulfillment partners that originated in 2008 or 66.67% of underbillings originating in 2008. In the next quarter, Q1 2009, Overstock.com collected another $453,000 of underbilled amounts due from fulfillment partners that originated in 2008 for a cumulative total of $2.253 million or 83.4% of underbillings originating in 2008.
To date, the company has collected $2.34 million of $2.7 million of underbilled amounts due from fulfillment partners that originated in 2008 about 87% of underbilled amounts due from fulfillment partners originating in 2008! The collection of significant amounts due from underbilling fulfillment partners in 2008 was assured and could have been reasonably estimated. The only question was how long it would take Overstock.com to collect such amounts.
See the updated score card below for the latest tally of Overstock.com's accounting errors based on computations from my second open letter to the SEC.
There is still an unexplained discrepancy of $438,000 in Overstock.com's Q1 2009 accounting errors that the company has failed to explain.
Overstock.com’s vilification of critics and unwillingness to restate financial reports shows deliberate intent to violate GAAP and SEC disclosure rules
The most important issue here is Overstock.com’s stubborn unwillingness to issue financial reports in compliance with GAAP and SEC disclosures rules, even ultimately after Grant Thornton told them to restate their financial reports. Rather than properly restate its financial reports to properly correct its accounting errors, Overstock.com wants to use those accounting errors in originating in prior years to materially overstate Q4 2008 and 2009's financial performance.
In addition, Overstock.com claims that it had no hint that the company underbilled fulfillment partners $5.5 million from Q1 2007 to Q3 2008, overpaid a fulfillment partner $785,000 during 2008, and was overbilled $301,000 from a freight carrier in Q4 2008. In other words, the company claims it had no clue that $6.285 million walked out the door in two years.
Yet during the entire period, CEO Patrick Byrne and former CFO David Chidester signed Sarbanes-Oxley certifications attesting to adequate internal controls and PricewaterhouseCoopers issued clean audit opinions. Why aren't heads rolling at the company, starting from the audit committee, the CEO, and the CFO?
Instead, Byrne showers PricewaterhouseCoopers, his audit committee, and his former and current CFO with praises despite their repeated failures to perform their respective responsibilities to insure GAAP compliant financial reports.
One has to wonder how high Overstock.com scored on PWC's internal audit risk assessment form, too. If Overstock.com scored low in audit risk, was PWC oblivious to its client's financial reporting risks, given that every single financial report issued by the company initially failed to comply with GAAP? If Overstock.com scored high in audit risk, why didn't PWC take adequate steps to insure that it would find material accounting errors during the course of its audits?
It is often said, that for criminals “the cover-up is more dangerous than the crime.” Here you have a clear case of scienter based on Overstock.com’s unwillingness to restate its financial reports and instead retaliate against its critics by vilifying them.
Grant Thornton's public slap down of Overstock.com
Apparently, Overstock.com CEO Patrick Byrne believes that he can scam Grant Thornton like I scammed Main Hurdman/Peat Marwick Main/KPMG back in my Crazy Eddie days. However, I never received a public flogging from Crazy Eddie's auditors, like Overstock.com received from its fired auditors. At least KPMG has tried to make others learn from their past mistakes and have graciously hosted two of my free speaking appearances for college students in the past.
Grant Thornton must be really pissed off and while I do not blame them for being upset by Byrne's ugly retaliation, they were warned by me.
Despite Patrick Byrne's vilification of me in order to stop me from exposing his malfeasance, I'll stick around because he is a gift that keeps on giving.
Sam E. Antar
First additional note to the SEC:
Please research your censure case against PricewaterhouseCoopers regarding its audit client The Warnaco Group (NYSE: WRC). In that case, PWC helped Warnaco conceal the true nature of its restatements of financial reports. Overstock.com never disclosed the overpayment to a fulfillment partner in its 2008 10-K and 10-K/A reports that were audited by PWC. Byrne claims that PWC knew about the overpayment.
Second additional note to the SEC:
Please request that Overstock.com and PricewaterhouseCoopers explain in detail each and every individual change to revenue and expense items in the company's various restated or amended Consolidated Statements of Operations and individual changes to assets, liabilities, and retained earnings items in the company's various restated or amended Balance Sheets arising from its October 2008 restatement of financial reports due to its customer refund and credit errors.
I'll have more to say about the above two additional notes to the SEC in the near future.
What other bloggers are saying:
Today is the biggest retailing day of the year, Black Friday, and my favorite Internet retailer, Overstock.com's increasingly beleaguered, SEC-investigated, auditor-denouncing and, above all, incurably wacky CEO Patrick Byrne, is celebrating the day at Overstock's new headquarters: Little Big Horn.....
Byrne is trying to obscure the main issue, which is that independent auditors have a duty to do the right thing. That's, uh, why they're called "independent" auditors.
Mr Byrne says Grant Thornton “told us it was comfortable with our past accounting practices” after going over the previous auditor’s work papers, and that when reviewing the first two quarterly reports it did not “question or object to our accounting for the overpayment recovery.”
That is not the same as saying the firm actually understood the details of the accounting.
Oh yeah, did we mention they’re still looking for an auditor? Shockingly, there are still no takers.
The final numbers from our poll show that KPMG is the winner of auditor most likely to be fired next by Overstock.com. We’re still waiting to hear who’s actually entertaining the idea of sabotaging their own firm with this little treat of a company. Stay tuned.
I would say it’s likely that this situation was used by Overstock to mask a number of accounting problems… with management throwing in everything and the kitchen sink, netting it all out, and using one fairly general explanation for all of it (rather than being forced to explain why one company’s accounting system can have so many errors)....
Now we’ve got a situation in which Overstock.com executives were concealing information from their auditors and lying about what their auditors knew and did not know. That escalates it to a whole new level. When management is lying and actively concealing, you can’t just dismiss the situation as “immaterial” because the dollar amounts are low.
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.
I have never received any compensation from either Grant Thornton or KPMG.