Overstock.com

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Overstock.com, Inc.
Public
Traded as NASDAQ: OSTK
Industry Retail
Founded May 1999; 24 years ago (1999-05)
Headquarters Cottonwood Heights, Utah, United States
Key people
 Patrick Byrne, CEO
Revenue Increase US$1.5 Billion (FY 2014)
Increase US$13.2 Million (FY 2014)
Increase US$8.8 Million (FY 2014)
Total assets Increase US$376.9 Million (FY 2014)
Total equity Increase US$129.2 Million (FY 2014)
Number of employees
 1,500
Slogan At home with the O.
Website Overstock.com

Overstock.com, Inc. is an American online retailer headquartered in Cottonwood Heights, Utah, near Salt Lake City.[1] CEO Patrick M. Byrne launched the company in May 1999.[2]

Overstock.com initially sold surplus and returned merchandise on an online e-commerce marketplace, liquidating the inventories of at least 18 failed dot-com companies at below-wholesale prices. In recent years, it has expanded to sell new merchandise as well.[3][4][5][6][7][8]

The business started rebranding in early 2011 as "O.co" to simplify and unify its international operations[9] but interrupted this effort a few months later, citing consumer confusion over the new name.[10]

Overstock went public in May 2002 at an IPO price of $13, and after achieving significant growth and profits in some early quarters, achieved a profit of $7.7 million in 2009[11] and reported its first billion-dollar year in 2010.

Board of Directors

Overstock.com's Board of Directors on January 9, 2014, was Patrick Byrne, Jonathan E. Johnson III, Allison H. Abraham, Barclay F. Corbus, Samuel A. Mitchell, Stormy D. Simon, Joseph J. Tabacco, Jr. and Dr. Kirthi Kalyanam [12]

In July 2006, John J. Byrne, the father of Overstock's chief executive, resigned from the board of directors after a public airing of the elder Byrne's unhappiness with his son's crusade against naked short-selling.[13] In August 2008, Jack Byrne said that after "much initial skepticism" he believed his son was "right all along" about the battle and lawsuits with short-sellers and analysts.[14] In 2010 the elder Byrne returned to the Overstock.com board of directors.

In early 2007, John A. Fisher and Ray Groves resigned from the Overstock board of directors over disagreement with the company's prime broker suit.[15][16]

On January 2, 2008,[17] Overstock announced that cofounder Jason Lindsey had resigned as President, COO, and as a Director of Overstock effective from December 31, 2007. Byrne said Lindsey had "played a decisive role getting [Overstock] back on track" after "I screwed it up a couple years ago".[18] Overstock stock dropped to a four-year low following the announcement,[19] which an analyst for investment bank Broadpoint Capital described as a "key loss".[20]

Business model

Part of Overstock.com's merchandise is purchased by or manufactured specifically for the company. Among their products are handmade goods produced for Overstock by workers in developing nations.[21][22] The company also manages the inventory supply for other retailers.

In addition to its direct retail sales, Overstock.com began offering online auctions on its website in 2004, known as Overstock.com Marketplace and later O.co Marketplace. This service was retired in July 2011.[23]

After initially relying solely on word-of-mouth marketing from customers,[7] the company turned to distinctive television advertisements starring German actress Sabine Ehrenfeld.[24][25] Later, Briana Walker became the new spokesperson.[26] In January 2011, Caitlin Keats became their spokesperson.[27]

Since 1999, when Byrne took control and re-launched the company as Overstock the company took its time to become profitable. Byrne projected in May 2008 that Overstock would be profitable in the fourth quarter of 2008, and would achieve a $10 million profit.[28] The company indeed was profitable in Q4/2008, but resumed making losses in Q1 and Q2/2009. Overstock.com finally had its first annual profit in April 2010. On the announcement, shares of the company rose more than 30 percent.

In 2011, revenues dropped 5 percent over a two-month penalty period imposed by Google. According to the Associated Press, Overstock set up fake websites linking back to its own site. Overstock said it was penalized in part for a practice of encouraging college and university websites to post links to Overstock pages so that students and faculty could receive discounts. As a result of the Google penalty, search results for certain products dropped in Google rankings.[29][30]

In 2013, Overstock began promoting increased immigration. Overstock president Jonathan Johnson told the Los Angeles Times that his firm had struggled to hire enough computer programmers and software developers to expand the business. "We pay more, and they are still hard to fill," he said. "We need to be more free in letting people in. That helps us solve our border problem. No one goes through the window of a house if they can ring the doorbell and come in the front door."[31]

In 2014, Overstock began developing software that would allow it to distribute corporate stock online instead of using traditional methods like the New York Stock Exchange or NASDAQ.[32]

O.co Coliseum

In April 2011, Overstock.com acquired naming rights to the former Oakland-Alameda County Coliseum, renaming it Overstock.com Coliseum.[33] The Coliseum has since been renamed O.co Coliseum, in keeping with Overstock's ongoing rebranding as O.co.

Sales tax

Overstock.com collects sales tax from the buyer on any order with a Utah shipping address and remits that tax to the State of Utah. US federal law allows a state to impose sales or use taxes only on people within the state. It does, however, allow a state to require an out-of-state seller to collect the tax from in-state buyers. But the state has this jurisdiction over the out-of-state seller only if it has minimum contacts with the state, according to the Commerce Clause of the US Constitution as interpreted by the case Quill Corp. v. North Dakota. As Overstock.com operates only in Utah, and Utah imposes a duty to collect sales tax on sales to Utah residents, Overstock.com does so.

Overstock.com has an affiliate program in which it pays commissions to people who refer business to Overstock.com. Some states believe that having such affiliates in their state meets the minimum contact requirement to give the state the power to place tax collection duties on Overstock.com. Colorado, New York, Illinois, and California are among them. To ensure it would not have to collect the taxes, Overstock.com terminated all its affiliates in those states when the states made that assertion.

Additionally, Overstock.com has declared that it believes the affiliate program does not amount to the required minimum contact under the US Constitution and that it therefore would not be required to collect the taxes even with affiliates in a state. Overstock.com has filed lawsuits seeking to clarify that point.

Overstock.com, because of its sales volume, is usually cited as a leading example of the significance of these interstate taxation laws. It is different from another large interstate seller, Amazon.com, in that Amazon has chosen to maintain ties with and collect sales taxes in some states, whereas Overstock has cut ties and does not collect tax. Overstock also charges sales tax in Kentucky and North Carolina.

New York

In 2008, Overstock.com sued New York State over New York's law that purports to require Overstock.com to collect taxes for New York based on Overstock.com affiliates physically present in New York. Overstock.com sued the state and terminated its 3,400 New York affiliates.[34] The lawsuit was dismissed as duplicative of a lawsuit filed by Amazon.com.

Illinois

In 2011, Illinois passed the "Main Street Fairness Act," which targets online retailers with Illinois affiliates.[35]

Awards

In January 2010, the National Retail Federation ranked the company #2 in the U.S. for best customer service.[36] In December of the same year, a Forbes-commissioned study found Overstock.com to be one of the top 10 best places to work in America.[37]

Naked short selling campaign

The company has received attention stemming from CEO Patrick Byrne's battle against alleged naked short selling of his company's shares. Beginning in 2005, Byrne has contended that a number of companies, including Overstock.com, have been the targets of this practice, which involves selling a stock short but without the usual step of initially borrowing or locating the shares. Byrne alleges that the practice circumvents safeguards of conventional shorting, and has been used in large schemes devised to profit from driving down the prices of companies' shares, in many cases leading to these companies' failure. With Overstock, Byrne contends that the company's longstanding appearance on the Regulation SHO Threshold Security list, an SEC-mandated list showing companies with a high number of "fails to deliver," along with high trading volumes that sometimes surpass total quantity of the company's stock, establish that it has been targeted by this practice.[38]

Byrne's campaign has been controversial, including criticism in the financial press that Byrne is seeking to divert attention from Overstock's share price declines and failure to turn a profit.[39] New York Times columnist Joseph Nocera has said in 2006 that, "Except for a few fellow-traveling Web sites, where Mr. Byrne is viewed as a heroic figure, most people who understand the issue or have looked into it think it's pretty bogus."[40] Others have suggested that the problem is real, but that the SEC acts to prevent it and that it does not happen on any scale such as Byrne suggests. SEC Chairman Christopher Cox called abusive naked short selling “a fraud that the commission is bound to prevent and to punish.”[41]

Goldman Sachs documentation

In May 2012, Matt Taibbi of Rolling Stone wrote an article, Accidentally Released - and Incredibly Embarrassing - Documents Show How Goldman et al. Engaged in 'Naked Short Selling' [3]

The article discusses how in the course of discovery of lawsuits between Goldman Sachs, BankAmerica versus Rolling Stone, Overstock, the Economist, Bloomberg, and the New York Times Goldman Sachs accidentally filed an "unredacted version of Overstock’s motion as an exhibit in their declaration of opposition to that motion. In doing so, they inadvertently entered into the public record a sort of greatest-hits selection of the very material they’ve been fighting for years to keep sealed."

The material released purports to show that at the highest levels within Goldman Sachs, naked short selling was known, facilitated, and encouraged, and that Goldman Sachs would reveal non-public information about the overall positions of naked short selling on specific businesses to its large hedge fund partners.

Was Goldman really disclosing “nonpublic data concerning customer short positions” to its big hedge fund clients? That would be something its smaller, “Muppet” customers would probably want to hear about.

When I contacted Goldman and asked if it was true that Masterson had shared nonpublic customer information with a big hedge fund client, their spokesperson Michael Duvally offered this explanation:

"Among other services it provides, Securities Lending at Goldman provides market color information to clients regarding various activity in the securities lending marketplace on a security specific or sector specific basis. In accordance with the group's guidelines concerning the provision of market color, Mr. Masterson provided a client with certain aggregate information regarding short balances in certain securities. The information did not contain reference to any particular clients' short positions."

Lawsuits

Overstock filed a lawsuit against the hedge fund Rocker Partners in 2005, for libel, unfair business practices and tortious interference, saying it colluded with a research firm, Gradient Analytics, in short-selling the company while paying Gradient Analytics to publish negative reports about Overstock.com and supplying pre-publication copies to Rocker. Naked short-selling was not alleged in that suit.[42] In a conference call with analysts in August 2005, a day after the suit was filed, Byrne said that "there's been a plan since we were in our teens to destroy our stock, drive it down to $6--$10 ... and even a plan for how the company would then get whacked up." He said that the conspirators were part of a "Miscreants Ball," headed by a "Sith Lord," who he refused to identify but said "he's one of the master criminals from the 1980s." Byrne said the conspiracy included hedge funds, journalists, investigators, trial lawyers, the SEC, and Eliot Spitzer."[43]

Rocker Partners, renamed Copper River Management, filed a counterclaim against Overstock in November 2007, alleging overstatement of profits, false projections, and misrepresentations about the company's ventures.[44] Copper River also alleges that Byrne tried to silence critics by suing them.[45][46][47][48] A portion of this suit was settled out of court on October 13, 2008, when Overstock.com and Gradient dropped the claims against each other after Gradient retracted allegations that Overstock's reporting methods did not comply with rules established by the FASB, stated they believed Overstock.com complied with GAAP standards, and that three directors were independent according to NASD standards, and apologized.[49][50] Byrne has said the apology and settlement "represents a great step forward in our case",[50] while Copper River's attorney stated that "If somehow this improved Overstock’s case, then Gradient would admit to doing something wrong and they haven’t.", and that he expected the settlement to help Copper River's case.[51]

On December 8, 2009, it was announced that Copper River had reached an out of court settlement with Overstock. As part of the agreement, Copper River, which closed in December 2008, agreed to pay Overstock $5 million.[52] In a letter to his shareholders, Patrick Byrne said, "The good guys won". Copper River said in a statement that it continued to deny Overstock's allegations. Copper River managing general partner Marc Cohodes said "Although settlement deprives us of the ability to disprove Overstock's case and prosecute our counterclaims, we decided that the litigation costs did not justify passing up a practical way to end four-and-half years of meritless litigation by Overstock."[53][54]

In February 2007, Overstock.com launched a $3.5 billion lawsuit against Morgan Stanley, Goldman Sachs and other large Wall Street firms, alleging a "massive illegal stock market manipulation scheme" involving naked short selling. Among its allegations, Overstock stated that since at least January 2005, naked short selling has accounted for large portions of Overstock stock, in some cases exceeding the 23.4 million total shares outstanding.[55] The lawsuit alleged that this had created "immense downward pressure" on share prices over time. Kerry Fields, associate professor of law and business ethics at the University of Southern California, said, "Byrne may be able to help set new law if he handles this right." Fields said, Byrne's "best approach now is probably to persuade the SEC, which continues to wander around the issue, or the government to serve subpoenas and let them decide whether or not his company was wronged."[56]

John Coffee, director of the Center on Corporate Governance at Columbia University Law School, described it as overly ambitious and "extremely unpromising."[55] Two members of the Overstock.com board of directors, John Fisher and Ray Groves, resigned in disagreement over the lawsuit.[57][58]

In December 2010, all but two of the prime broker defendants settled out of court with Overstock for $4.4 million.[59] That same month, the company filed a motion seeking to amend its lawsuit against the remaining defendants—Goldman Sachs and Merrill Lynch—to include claims of RICO violations. The enhanced claims were based on evidence gained through discovery in the case.[60]

On November 18, 2010, seven California district attorneys filed a suit against Overstock, accusing the company of false and misleading claims about prices. They found that Overstock discount claims were often not indexed to prices from competitors, but were simply based on arbitrary markups.[61][62]

In October 2011, Altaf Nazerali filed a lawsuit in the Supreme Court of British Columbia, Canada for libel and defamation against Patrick Byrne, Overstock's CEO, and others.[63] Subsequently, Judd Bagley, Overstock's Director of Communications, and Overstock.com were added as defendants. The matter went to trial in April 2015.[64] In June 2015, Overstock filed a no evidence motion seeking to have the case for vicarious liability against them dismissed. The judge rejected the motion. The defendants then chose not to present any evidence nor call any witnesses.[65] Final arguments in the case were heard at the end of September 2015. A decision is expected in the coming months.

SEC and regulatory action

A Securities and Exchange Commission investigation of Gradient Analytics was initiated but then dropped in February 2007.[66][67] An SEC investigation of Overstock.com and Byrne,[68] seeking information as to the company's accounting policies, targets, projections, and estimates relating to its financial performance,[69] continued but was dropped in June 2008.[70]

In July 2007, two American Stock Exchange options market makers were fined and suspended for using Regulation SHO exemptions to "impermissibly engage in naked short selling" in trades involving options and stocks for their own account. Overstock shares were believed to be among the stocks traded. The market makers settled without admitting or denying the allegations. None of the defendants sued by Overstock were named in the decision, but the Dow Jones News Service said that the decision was likely to be used by Byrne in pursuing his case.[71][72][73]

Bitcoin

On January 9, 2014, Overstock.com became the first major retailer to start accepting bitcoin as payments for its goods.[74] On the first day, they made sales worth US$126,000 in bitcoin.[75] This represents a 4.33% increase in sales from their normal income of $3 million per day.[76]

As of March 13, 2014, Overstock bitcoin income had shrunk to under 1% of their normal daily cash intake.[77]

In a community interview with social media site Reddit on May 3, 2014, in response to a question to the Overstock CEO Patrick Byrne about the percentage of revenue and transactions paid for in bitcoin, Byrne responded that the percentage was "Tiny. <.1%".[78] In mid-2014 Overstock.com announced that bitcoin sales were averaging $300,000 per month and that the company expected bitcoin sales to add 4 cents to the company's 2014 earnings per share.[79]

On September 14, 2014, Overstock announced it would begin donating 4% of bitcoin revenue to foundations that were advocating for cryptocurrency.[80]

See also

References

  1. ↑ The postal designation of “Salt Lake City” is commonly used in the company’s mailing address, and consequently in press releases; in 2005, the City of Cottonwood Heights incorporated and “Cottonwood Heights” has since become an accepted postal designation as well.
  2. ↑ [1][dead link]
  3. ↑ Lua error in package.lua at line 80: module 'strict' not found.
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  13. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  14. ↑ Jack Byrne legendary in insurance circles, April 8, 2008, The Salt Lake Tribune
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  28. ↑ Interview with Reuters news agency, May 9, 2008, http://www.reuters.com/article/ousiv/idUSN0843196920080509, accessed May 9, 2008
  29. ↑ Lua error in package.lua at line 80: module 'strict' not found.
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  31. ↑ Brian Bennett and Lisa Mascaro, "Immigration bill would spark surge of legal arrivals," L.A. Times, April 13, 2013. http://www.latimes.com/news/nationworld/nation/la-na-legal-immigration-20130414,0,5787920.story
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  33. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  34. ↑ Overstock and Patrick Byrne sue New York over Amazon Tax, by Cade Metz, The Register, June 2, 2008
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  43. ↑ "The Phantom Menace," by Bethany McLean, Fortune Magazine, Nov. 15, 2005
  44. ↑ "Copper River Files Countersuit Vs Overstock, CEO, Directors," by Carol Remond, Dow Jones News Service, November 10, 2007
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  60. ↑ [2] Archived June 29, 2011 at the Wayback Machine
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  65. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  66. ↑ SEC kills probe of Gradient February 14, 2007
  67. ↑ Appeals court sides with Overstock.com May 31, 2007
  68. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  69. ↑ SEC Form 10Q filed by Overstock.com, dated May 9, 2007
  70. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  71. ↑ Amex Discplinary Decisions, SBA Trading
  72. ↑ American Stock Exchange announcement of disciplinary action, July 31, 2007
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External links

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