To the Securities and Exchange Commission:
On November 18, 2009, Overstock.com (NASDAQ: OSTK) held
conference call where CEO Patrick M. Byrne, company President Jonathan E. Johnson, and CFO Steve Chesnut sought to justify the company's
improper treatment of accounting errors under investigation by the SEC, the company's firing of Grant Thornton as its auditors after they told the company to correct its financial reports, and the company's filing of an "unreviewed" Q3 2009 10-Q with the SEC. Patrick Byrne did not
permit me to ask crucial questions about Overstock.com's accounting irregularities while I was on the call and Jonathan Johnson lied when he said, "We we don't have any other questions lined up."
Therefore, in this letter I will analyze certain accounting issues under investigation by the SEC based on new company disclosures. In addition, I will show why Overstock.com's excuse for its treatment of accounting errors, which is based on the false premise that a "gain contingency" existed, lacks any credibility. Out of necessity I need to reiterate certain points I made in previous blog posts in order to explain new points below.
Overstock.com created an improper "cookie jar" reserve
In my first
open letter to the SEC, I have described how in October 2008 Overstock.com restated its financial reports from Q1 2003 to Q3 2008 due to customer refund and credit errors. However, Overstock.com's restatement of financial reports failed to 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 effect, Overstock.com created what is known as a “cookie jar” reserve to materially overstate its future financial performance in violation of Generally Accepted Accounting Principles (GAAP) and SEC disclosure rules.
I recommended that Overstock.com correct its GAAP violations by restating its financial reports. Since then, both the Enforcement Division and Division of Corporation Finance started
investigating Overstock.com's financial disclosures based on the analysis that I provided them.
Grant Thornton was fired after agreeing with my analysis of Overstock.com's improper accounting
As early as February 2009, I started notifying (
here and
here) both Overstock.com and the SEC of the company's most recent GAAP violations. Rather than appropriately restate Overstock.com's financial reports, Patrick Byrne
responded on an internet chat board in an unsigned post using an alias saying that:
Antar's ramblings are gibberish. Show them to any accountant and they will confirm. He has no clue what he is talking about..... It's just a guy on a street corner, spouting gibberish, hoping someone will toss him a quarter.
After I complained to Overstock.com's audit committee member Joseph J. Tabacco and the SEC, Byrne removed his unsigned chat board post using an alias and
replaced it with signed post identifying himself as "Patrick M. Byrne."
On November 13, 2009, Overstock.com’s audit committee and board of directors
fired Grant Thornton as the company’s auditors, just about eight months after they replaced previously fired PricewaterhouseCoopers (PWC) as auditors. Grant Thornton was assisting the company in dealing with both SEC probes.
Apparently, Grant Thornton did not believe Patrick Byrne's claim that my analysis of Overstock.com's improper accounting was "gibberish." Grant Thornton ultimately agreed with me that Overstock.com's financial reports must be restated due to the same material accounting errors I pointed out in my blog.
However, Overstock.com claims that PWC disagrees with Grant Thornton:
Thus, we are in a quandary: one auditing firm [Grant Thornton] won’t sign-off on our Q3 Form 10-Q unless we restate our 2008 Form 10-K, while our previous auditing firm [PricewaterhouseCoopers] believes that it is not proper to restate our 2008 Form 10-K. Unfortunately, Grant Thornton’s decision-making could not have been more ill-timed as we ran into SEC filing deadlines. [Emphasis added.]
Simply said, PWC's audit opinions on Overstock.com's financial reporting are worthless
. As I will describe later, the simple fact is that since Overstock.com's inception, every single financial report for each and every reporting period at least initially violated GAAP or some other SEC disclosure rules.
Likewise, every audit opinion issued by PricewaterhouseCoopers during those corresponding periods up to its last one in 2008 was flawed, too.
Investors cannot accurately compare changes in Overstock.com's financial performance from any reporting period to any previous comparable reporting period due to the company's GAAP violations. Those distortions in financial performance caused by material accounting errors in 2008 that overstated the Overstock.com's 2009 financial performance caused investors to overvalue the company's shares.
Yet during the "unreviewed" Q3 2009 10-Q conference call, Patrick Byrne praised PricewaterhouseCoopers saying:
Price gave us great service. We didn't have any beef with Price.
In fact, Grant Thornton agreed with me that PWC's last audit in 2008 was flawed and wanted Overstock.com to "restate" its "2008 Form 10-K" due to material accounting errors, even though Patrick Byrne has claimed that such errors were not material. Afterwards, Overstock.com fired Grant Thornton as its auditors, rather than restate the company's financial reports as they recommended.
During the "unreviewed" Q3 2009 10-Q conference call, an embittered Patrick Byrne expressed his utter contempt for Grant Thornton saying:
I am dissing [is people on the scene] -- I mean, I think Grant Thornton -- we're not going to be exchanging Christmas cards.
Later on, Jonathan Johnson chimed in saying:
...I'd just say that Pricewaterhouse has been very supportive of the positions that we've taken with the SEC.
In other words, Overstock.com and PricewaterhouseCoopers are "joined at the hip" and standing together "head to head and toe to toe" in their arrogant battle against the SEC, Grant Thornton, and the interests of investors to avoid restating its financial reports to comply with GAAP and SEC disclosure rules. In their collective twisted minds they just want to continue issuing financial reports that violate GAAP and SEC disclosure rules as they have done consistently in the past -- everyone else be damned!
Failure to maintain adequate internal controls
Overstock.com has utterly failed to maintain adequate internal controls and violated
Section 13 of the Securities Act of 1934. In each and every period, CEO Patrick Byrne, former CFO David Chidester, and current CFO Steve Chesnut signed various certifications
required under sections 302 and 906 of the Sarbanes-Oxley Act that turned out to be false.
NASDAQ de-listing letter
On November 20, 2009, Overstock.com
disclosed the receipt of a de-listing letter from NASDAQ:
...notifying the company that it violated NASDAQ Listing Rules when it filed its Quarterly Report on Form 10-Q for the period ended September 30, 2009 because the filing wasn’t reviewed in accordance with Statement of Auditing Standards No. 100. The letter also notified the company that the filing did not contain the certifications required under sections 302 and 906 of the Sarbanes-Oxley Act of 2002. [Emphasis added.]
In the past, Patrick Byrne, David Chidester, and Steve Chesnut had no issues signing "certifications required under sections 302 and 906 of the Sarbanes-Oxley Act of 2002" that in each and every case initially turned out to be false. Evidently, both Patrick Byrne and new CFO Steve Chesnut are getting cold feet as they are certainly afraid to certify Overstock.com's latest reports as required by the Sarbanes-Oxley Act.
Let's review Overstock.com's history GAAP and SEC disclosure violations before I analyze recent disclosures by the company and show why its treatment of accounting errors based on the false premise that a "gain contingency" existed lacks any credibility.
Background: A brief history of Overstock.com's GAAP and SEC disclosure violations and PWC's failed audits
In January 2006, Overstock.com
restated financial reports issued from Q1 2002 to Q3 2005 due to inventory accounting errors.
In February 2008, the SEC Division of Corporation Financial
concluded that Overstock.com violated GAAP in reporting revenues from the company's inception or from day one. This blog
detailed how the company improperly provided the SEC with a flawed and misleading materiality analysis to convince regulators that its revenue accounting error was not material to avoid restating its financial reports.
Instead of restating prior financial reports to correct its material revenue accounting error, Overstock.com improperly used a one-time cumulative adjustment in its Q4 2007 financial report to hide the material impact of such errors on prior reporting periods. In Q4 2007, Overstock.com’s one-time cumulative adjustment reduced revenues by $13.7 million and increased net losses by $2.1 million resulting from the one-time cumulative adjustment to correct its revenue accounting errors.
From Q2 2007 to Q2 2008, Overstock.com
reported an improper EBITDA (earnings before interest, taxes, depreciation, and amortization) that violated SEC
Regulation G. Overstock.com improperly computed EBITDA by starting its calculation with operating income and adding back interest, taxes, depreciation, amortization, and stock based compensation. In other words, Overstock.com improperly defined EBITDA as operating income before interest, taxes, depreciation, amortization, and stock based compensation.
However, SEC Regulation G
requires EBITDA to be computed as net income (not operating income) before interest, taxes, depreciation, and amortization (and not stock-based compensation). Therefore, Overstock.com was not permitted by Regulation G to use operating income as the starting point to compute EBITDA and the company was not allowed to eliminate stock-based compensation from its EBITDA calculation.
Since Overstock.com had reported losses from discontinued operations in various reporting periods, by improperly using operating income as the starting point to calculate EBITDA, it was materially overstating EBITDA by the amount of loss from discontinued operations. Likewise, by Overstock.com improperly eliminating stock-based compensation from its EBITDA calculation, the company was materially overstating its reported EBITDA by such amount in each reporting period.
When I confronted management about its EBITDA violations, they violated SEC rule
10b-5 by lying about their compliance with SEC Regulation G during Q2 and Q3 2008 conference calls. Just a few weeks later, Overstock.com finally corrected its improper EBITDA calculation by calling it "adjusted EBITDA" when it restated financial reports as described below and amended its filings with the SEC to correct certain newly disclosed GAAP violations.
Recently, the SEC took its first
enforcement action under Regulation G and obtained an injunction and civil penalties against SafeNet Inc and its various officers for similar violations of Regulation G. I recommend that SEC also look into false representations of compliance under Regulation G by Overstock.com management when confronted by me about such violations.
Overstock.com's restatement of financial reports due to customer refund and credit errors improperly excluded offsetting costs and reimbursements due from its fulfillment partners
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. PricewaterhouseCoopers had audited Overstock.com's prior financial reports and gave clean audit opinions prior to each restatement. Those clean audit opinions turned out to be false.
In the October 2008 restatement of financial reports, Overstock.com reversed its one-time cumulative adjustment in Q4 2007 used to correct its revenue accounting errors and also restated all financial statements to correct those errors, as I previously recommended. In addition, Overstock.com corrected its non-compliant EBITDA measure (as described above) in those amended financial reports. However, in the explanatory notes to those amended financial reports filed with the SEC, Overstock.com only made reference to corrections of its revenue accounting errors and customer refund and credit errors, but made no reference to the correction its non-compliant EBITDA calculation to comply with SEC Regulation G.
The company reported that the combined amount of revenue accounting errors (previously uncovered by the SEC) and newly disclosed customer refund and credit accounting errors resulted in a cumulative reduction in previously reported revenues of $12.9 million and an increase in previously reported accumulated losses of $10.3 million. Since Overstock.com had previously reported an increase in accumulated losses from its revenue accounting error of $2.1 million (see above), its new customer refund and credit errors resulted in an additional $8.2 million of accumulated losses in prior reporting periods.
Overstock.com created a "cookie jar" reserve to materially overstate future financial performance
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 than it earned but underbilled its fulfillment partners during prior reporting periods (before Q3 2008) to by moving income to future reporting periods (Q4 2008, Q1 2009, Q2 2009, and Q3 2009). In effect, Overstock.com improperly created a cookie jar reserve to materially inflate future earnings or reduce future losses. Overstock.com falsely claimed that a “gain contingency” existed and improperly recognized income from its fulfillment partners as monies were collected in
future reporting periods on a non-GAAP cash basis (Q4 2008 $1.8 million, Q1 2009 $0.453 million, Q2 2009 $87k, Q3 2009 $40k).
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.
How GAAP violations arising in 2008 materially overstated Overstock.com's financial performance in Q1 2009
PricewaterhouseCoopers improperly certified Overstock.com's 2008 financial reports and issued a clean audit opinion. As I described above, Grant Thornton agrees with me that the company's 2008 financial reports must be restated due to the GAAP violations I detailed above. Those GAAP violations materially overstated Overstock.com's financial performance in 2009 financial reports that Grant Thornton was supposed to audit before they were fired by the company. As I will describe below, accounting errors arising in 2008 inflated Overstock.com's financial performance in Q1 2009 as follows:
- $453,000 collected from fulfillment partners underbilled in 2008
- $785,000 recovered from a fulfillment partner who overbilled the company in 2008
- $224,000 refund from a freight carrier who overbilled the company in 2008
- $438,000 of explained discrepancies in disclosures.
In Q1 2009, Overstock.com reported a net loss of $2.099 million. However, the company should have reported a much bigger net loss of $4 million had it properly followed GAAP and materially understated its net loss by $1.9 million.
Overstock.com's latest disclosures show that the company hid a previously undisclosed accounting error and show even more accounting errors
In its Q1 2009
10-Q, Overstock.com 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. [Emphasis added.]
In my previous
open letter, I estimated collections from fulfillment partners in Q1 2009 at $1.411 million due to Patrick Byrne's deliberately vague Q1 2009
conference call remarks that the company received a refund from a freight carrier who overbilled the company "several hundred thousand dollars" in Q4 2008.
In my original analysis, I estimated that the refund received from that freight carrier was $500,000 based on Byrne's vague remarks. Therefore, I originally estimated the components of Overstock.com's Q1 2009 accounting errors as follows: $1.4 million collections from fulfillment partners underbilled in 2008 and $500,000 refunds from a freight carrier who overbilled the company in Q4 2008.
Based on Overstock.com's "unreviewed" Q3 2009
10-Q, I now estimate that the freight carrier refunded the company $224,000 in Q1 2009 and not $500,000. Overstock.com disclosed:
Also for the nine months period ended September 30, 2009, we reduced total cost of goods sold by $301,000 due to a refund of overbillings by a freight carrier for charges from the fourth quarter of 2008.
In addition, Overstock.com disclosed:
For the three months ended September 30, 2009, we reduced total cost of goods sold by $77,000 due to a refund of overbillings by a freight carrier for charges from the fourth quarter of 2008.
Since the company did not disclose receiving any refunds from a freight carrier in Q2 2009, I computed the amount of the refund from the freight carrier in Q1 2009 as follows: 9 months ended September 30 total of $301,000,
less 3 months ended September 30 total of $77,000,
equals Q1 2009 total of $224,000.
It turns out that in Q1 2009 Overstock.com had a previously
undisclosed accounting error hidden in its financial disclosures. As I detailed above, Overstock.com originally claimed that it recovered:
...$1.9 million for billing recoveries from partners who were underbilled in 2008... and a refund due of overbillings by a freight carrier for charges from the fourth quarter of 2008.
However, in a recent
8-K report for Q3 2009, Overstock.com later claimed that the $1.9 million 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 disclosure. See below:
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. [Emphasis added.]
Overstock.com may have hidden another accounting error in its financial disclosures. As I detailed above, originally Overstock.com claimed that:
...$1.9 million for billing recoveries from partners who were underbilled in 2008... and a refund due of overbillings by a freight carrier for charges from the fourth quarter of 2008.
Later the company disclosed that the $1.9 million amount included:
...$785,000 relating to the partner overpayment....
In Q1 2009, Overstock.com collected $453,000 from fulfillment partners it underbilled in 2008 and the company received a $224,000 refund from a freight carrier. Therefore, we are left with a $438,000 unexplained discrepancy.
See the updated chart below for the impact of Overstock.com's 2008 GAAP violations on 2009's financial reports based on the company's disclosures to date (Click on image to enlarge):
The distortions in Overtsock.com financial performance caused by its failure to restate its financial reports to correct accounting errors is actually greater than quarterly effects on reported income as detailed in the chart above. Overstock.com
understated income in periods
before Q4 2008 and likewise
overstated income
starting in Q4 2008. Therefore, any income earned in a prior reporting period shifted to a future comparable period doubles the increase in financial performance.
For example, if a company underreports income by $2 million in Q1 2008 and moves that income into Q1 2009, you have an overstatement of Q1 2009 income by $2 million. However, the increase in financial performance is $4 million due to improper shifting of income. It is known in forensic accounting as the "double up effect" that results from a company using a "cookie jar" reserve to manipulate future earnings.
Overstock.com's phony "gain contingency"
As I discussed above, Overstock.com falsely claimed that the future recoveries of amounts underbilled to fulfillment partners was a “gain contingency” because the recovery of such underbilled amounts "was not assured" (Sources: 2008 10-K, Q1 2009 10-Q, and Q2 2009 10-Q). See below:
When the underbilling was originally discovered, we determined that the recovery of such amounts was not assured, and that consequently the potential recoveries constituted a gain contingency. Accordingly, we determined that the appropriate accounting treatment for the potential recoveries was to record their benefit only when such amounts became realizable (i.e., an agreement had been reached with the partner and the partner had the wherewithal to pay). [Emphasis added.]
However, Overstock.com improperly
failed to disclose any potential “gain contingency” in its prior Q3 2008
10-Q report, when it originally disclosed its accounting errors (See:
SFAS No. 5 Paragraph 17b).
Overstock.com had already
earned those "fees and charges" in prior periods from fulfillment partners. It simply underbilled them. Those fulfillment partners were
already "contractually obligated to pay" such underbilled amounts. There was
no question that Overstock.com was owed money from its fulfillment partners. As I will describe below, the
recovery of substantial amounts due Overstock.com from underbilled fulfillment partners
was assured, contrary to company claims that the collection of
all such amounts was "not assured." Therefore, no gain contingency existed under accounting rules.
Overstock.com's ridiculous claim that the entire amount of underbillings to fulfillment partners was "not assured"
The company improperly claimed that the collection
entire amount of underbillings to fulfillment partners was “not assured" rather than make a reasonable estimate of uncollectable amounts as required by
SFAS No 5 paragraph 1, 2, 8 and 23. In other words, Overstock.com made the
ridiculous claim that every single penny that it underbilled fulfillment partners in the past was uncollectible, even though it knew that significant amounts due from fulfillment partners (especially underbillings originating in 2008) were collectable. In fact, Overstock.com collected a significant amount of underbilled "fees and charges" from fulfillment partners in that same period (October 1 to December 31) that it announced its error (on October 24).
Following the money trail
When Overstock.com sells fulfillment partner inventory, customers promptly remit cash to the company. Afterwards, Overstock.com remits the portion cash proceeds due to its fulfillment partners for the inventory it sold to its customers.
According to Overstock.com’s “Supplier Agreement” with fulfillment vendors, the company (Source:
Overstock.com correspondence to SEC Division of Corporation Finance):
Remit(s) semi-monthly payments within 2 business days of the 1st and 16th of each month for Product sold, subject to offsets. Payments shall be made net 30. [Emphasis added.]
Overstock.com floats the cash that it receives from customers and is later required to pay fulfillment partners in up to 30 days. In addition, Overstock.com retains the right to offset various errors against future remittances to its fulfillment partners. Therefore, if the fulfillment partners are still doing business with Overstock.com, all that the company had to do is to withhold a larger portion of the monthly remittances from such fulfillment partners (up to a few months, if necessary) to recover underbilling errors.
The greatest amount of the underbillings would certainly be attributable to its higher volume fulfillment partners who sold the most merchandise. Those high volume fulfillment partners are likely to be long time and current company suppliers of merchandise. Therefore, the ability to recoup a substantial share of previous underbillings to fulfillment partners could have been reasonably estimated, as required by Statement of Financial Accounting Principles No. 5. In many ways, Overstock.com's recovery of underbilled amounts due fulfillment partners was far more certain than recouping money in credit card disputes from its average customers.
Overstock.com collected significant amounts due from underbilled fulfillment partners in a very short period of time
In its "unreviewed" Q3 2009
10-Q, Overstock.com claimed that:
During 2008, we discovered that we had underbilled our fulfillment partners for certain fees and charges related to returns during 2007, and the nine months ended September 30, 2008, due to a systems issue. Of the total $5.5 million underbilling, $2.8 million related to 2007 and $2.7 million related to the nine months ended September 30, 2008. We contacted the affected fulfillment partners and in our negotiations with them over several months, we agreed to forgive the $2.8 million related to 2007 and to seek to recover the $2.7 million related to 2008 over time from our future sales of the fulfillment partners’ products during the remainder of 2008 and 2009. As a result of the negotiations we later agreed to forgive an additional $375,000. We have recovered a total of $2.3 million through September 30, 2009, including $1.8 million during the three months ended December 31, 2008 and $580,000 during the nine months ended September 30, 2009. [Emphasis added.]
Overstock.com announced its customer refund and credit error on October 24, 2008. During that
same quarter (Q4 2008 or
from October 1 to December 31), Overstock.com 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 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. The only question was how long it would take Overstock.com to collect such amounts.
During the Q3 2009 10-Q conference call, Patrick Byrne admitted:
...we collected ultimately $2.4 million. $1.8 million, we were actually able to collect in the fourth quarter. So -- and we learned about this and collected it quickly. Of the -- there's a remaining $600,000 that has dribbled in over this year and we recognize that as it came in. [Emphasis added.]
Therefore, Overstock.com's management had to know that the collection of significant amounts due from underbilling of its fulfillment partners in 2008 was assured, contrary to its disclosure that "the recovery of such amounts was
not assured, and that consequently the potential recoveries constituted a gain contingency."
Overstock.com miserably failed to make a reasonable estimate of amounts collectable from its fulfillment partners. The company ridiculously claimed that the collection the entire amount of underbillings due from its fulfillment partners originating in 2008 "was not assured" in justifying its false claimed gain contingency regarding amounts owed it.
Other unanswered questions
Another unanswered question is how could Overstock.com, without any hint as it claims, entirely miss such a large magnitude of underbillings to fulfillment partners ($2.8 million in 2007 and $2.7 million from Q1 to Q3 2008) and the overpayments to a fulfillment partner ($785,000 in the same period) with a combined total of $6.285 million in just 21 months? Add to that total another $301,000 of overbilling from a freight carrier in Q4 2008 and you have $6.586 million in money going out the door within a 24 month period without anyone claiming to notice it. 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?
In April 2008, Jonathan Johnson sold almost $1 million in stock (Details
here). The next month, then CFO David Chidester
cashed out about $77,000 from selling his Overstock.com shares. As I detailed above, in October 2008 Overstock.com announced its customer refund and credit errors and restated its financial reports without taking into account offsetting costs and reimbursements due from its fulfillment partners.
In January 2009, former CFO David Chidester was merely demoted to Senior Vice President, Internal Reporting and Information. In other words, he is still intimately involved in the company's financial reporting process. In March 2009, James V. Joyce
departed from the Board of Directors and received a mysterious $1.25 million "bonus" exit payment for terminating his consulting agreement with the company or about 3.5 times his annual compensation under that agreement.
I have some answers and I hope to explore those unanswered questions more thoroughly with the SEC in the near future.
Patrick Byrne ducked crucial questions during the "unreviewed" Q3 2009 10-Q conference call
I was not
permitted to ask any questions while I attended Overstock.com's "unreviewed" Q3 2009 10-Q conference call. Patrick Byrne and his other nitwits Jonathan Johnson and Steve Chesnut were trying to stonewall any serious discussion of the specific issues I detailed above.
Jonathan Johnson, knowing that I was on the call and wanted to ask questions, lied and said:
Well we don't have any other questions lined up.
He cut short the conference call and the management team ran for the exits.
GAAP requires restatement of Overstock.com's financial reports to correct all errors
Under
Statement of Financial Accounting Standards No. 154, Overstock.com is required to restate each affected prior period financial report to reflect when the underbilled cost reimbursements and fees due from fulfillment partners were actually earned by the company (accrual basis or GAAP).
Statement of
Financial Accounting Standards No. 5 requires Overstock.com to offset such accrued income in each restated financial period with a reasonable estimate of uncollectable underbilled amounts.
In any case it is the SEC's position that "GAAP does 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, and
Administrative Proceeding in the Matter of Sun Communities Inc. and Sun Communities Operating Limited Partnership,
Cease and Desist Order Issued in the Matter of National Steel Corporation). Therefore, no matter what excuse Overstock.com comes up with, its financial reports must be restated to correct
all of its accounting errors and Grant Thornton concurred that a restatement was required too, before they were fired.
Other issues
Patrick Byrne has raised the issue of my
involvement with Barry Minkow and Usana (NYSE: USNA) while acknowledging that I am "an expert in the business of exposing frauds." Allow me to reiterate that I have not been compensated by any party, that I was never compensated by any party, and that no party has ever promised to compensate me for analyzing Overstock.com's accounting and financial disclosures. I do not own any position in Overstock.com securities, I never had any position in Overstock.com securities, and I will never take any position in Overstock.com securities. My analysis of Overstock.com, the actions of its directors, management and auditors, and its financial reporting is a free voluntary public service to the SEC.
My interest in Overstock.com has not waned and will not wane despite Patrick Byrne's
personal attacks on myself and my character and efforts by his paid crony Judd Bagley to
interfere in my divorce which are specifically designed to discourage me from analyzing the company's financial disclosures and from engaging in communications such as this one with you.
If anything, Patrick Byrne's deliberate efforts to attack my credibility and character, rather than promptly correct Overstock.com's financial reporting violations after they were alerted by me in February 2009 provides clear evidence of
scienter under the Private Securities Litigation Reform Act (PSLRA).
Respectfully,
Sam E. Antar
Note:
Please read my
guest article in Newsweek entitled, "Bernie Madoff's Giant Ponzi Scheme" and Crain's New York Business
article entitled "Crazy Like a Fox" by Aaron Elstein.
Other bloggers closely following financial reporting violations by Overstock.com are:
Forensic accountant and author
Tracy Coenen,
Investigative journalist and author
Gary Weiss, and
Blogger William K. Wolfrum (
here and
here).
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.
Hopefully, David Chidester will not allow himself to be made into the fall guy by Overstock.com (NASDAQ: OSTK) and its CEO Patrick Byrne and as the Securities and Exchange Commission continues its investigation of the company. David Chidester is certainly now in the "hot seat." As I will detail below, David Chidester was a ten year veteran insider at Overstock.com. Chidester certainly knows where the black holes are to be found in Overstock.com's financial reporting. He is sure to face tough questioning by the SEC as its investigation expands.
