Hey Gang,Just read the Patrick Byrne response, and as usual, he FIRED up my passions to see him sock it to the evil-doers and further convinced me that I'm glad to have sold my shares in Overstock.Com. Again, I have great, great respect for this man. Worldstock alone is a greater contribution to planet earth than most make in a lifetime.But that said...How can any of us feel comfortable owning shares in a company that the CEO basically claims are fake shares?I think he did some serious backpedaling on the Sith Lord analogy. The Sith Lord seems to have lost a lot of power. Last time he was a puppetmaster pulling strings with a grandmaster plan of stealing the company. Today, he seems to have a murky role.Patrick openly says he does NOT want to be the CEO of a public company. This is bad, bad, ba-hahhh-add to me. His wild and infamous Web cast reeked of a man who hates many of the folks he has to deal with and felt like a big ol' f.u. to the Street in general.As for the Stormy Simon thing - what can one say? So she is a superstar day-saving heroine but NOT a stripper? Or did she strip outside the Utah area? Either way, who cares? It's just all too odd.One is reminded of Seth Godin's new book "All Marketers Are Liars". If Doc Byrne is telling the truth. Hey Doc, lie to me, please!As investors, I believe we need to basically do the impossible here - price in the chaos of this controversy, the erratic crusade of the CEO, etc... Last but not least, does anyone know of a single case in which the CEO of a major American corporation was knocked off due to stock manipulation, etc.? Fat Cash to All,BD
Just read the Patrick Byrne response, and as usual, he FIRED up my passions to see him sock it to the evil-doers and further convinced me that I'm glad to have sold my shares in Overstock.Com. Again, I have great, great respect for this man. Worldstock alone is a greater contribution to planet earth than most make in a lifetime.I'll say this... I'm not sure about the truth of the naked short thing, though it wouldn't surprise me too much. But I think Byrne's idiosyncratic presentation isn't doing the company much good.I'm reminded, somewhat, of Jerry Sanders at AMD-- terrifically entertaining to watch, on one level, but not really helpful for the stock or the company. His successor, Hector Ruiz, has fixed a lot of AMD's execution issues while bringing to fruition a vision that clearly started with Jerry, but a big part of what he's achieved is just toning down the ferocity of the company's public presentation. They now look like nearly-unstoppable masters of execution rather than brilliant but erratic strivers... and the lawsuit they've brought against Intel looks like the act of a basically reasonable but exasperated corporate management rather than the rant of the paranoid looney in the corner.Style matters...-A
Hello To Supporters and Detractors,This is Patrick. I have been a Fool for a long time, and while I normally check in periodically to see what people are saying about OSTK (and myself, I confess), this is the first time I ever posted. Obviously, for regulatory reasons I cannot disclose things here, but I don't see any reason I cannot post a few comments.First, no one should worry about missing elements in my 12 replies. Bill Mann graciously pointed out to me that what I first sent back to The Fool (about 15 hours after Seth wrote his piece) was rather academic: it built its points logically, but I "buried the lead." Bill did a nice cut-and-paste job and sent it back to me: 95% of my original material was there, just arranged differently. I gave it another editing or two of my own, and then authorized him to publish. So no need to think The Fool was not playing fair.Second: thanks to those who have stood up for and defended me. Don't worry, these other guys don't get me down. And you should not let them get you down, either, or react to their negativity. One of the differences between The Fool and other boards is that the conversation here is well-informed and reasonable. In fact, I respect my detractors on this board. I believe that even the detractors here (as opposed to Yahoo) are well-intentioned, and are truly just calling it as they see it (though of late, there do seem to be someone with an agenda, eh?) When I see the conversation get heated on either side I just want to step in and yell, "HEY, chill out, who knows who is right about the future? I sure don't."Third, of course I can COMPLETELY understand why some would look at my behavior and think it whacko: it is not as though the possibility never occurs to me before I do something weird. It's not like I don't agonize over it, and try to talk myself out of it. I often ask myself, "Who do you think you are, deliberately insulting Wall Street and the way they do business?" Just imagine Tom Cruise in the opening of Jerry McGuire, trying to decide whether to keep doing things the way everybody else does them, or to just hang it all out there on some principle, knowing he is going to get his butt kicked for it. That's about where I have been, over and over, these past few years. I really don't like insulting Wall Street as a group: I know many good people there, who do the right thing day after day. And even the ones who don't, I do not mean to insult: that is, it is not like I get pleasure out of it. I just have to stand up to them and the things I see them doing, not necessarily with OSTK, but even to other companies. I am not wired in a way that would let me look myself in the mirror in the morning, if I know what I know, and just ignored it.My hope is that, more than anyone else, folks at The Fool will get it. You guys come to Fooldom because you know something stinks on Wall Street, don't you? I always figured that if there was a place I might find some folks who were willing to question convention and the status quo, this was the place.Lastly, let me make a point using the example of the recent webcast that got so much attention. It is available on our site, in the investor relations section. Yes, I may have rambled or sounded tired (I had flown to New York and got in during the wee hours of the morning). The transcript is imperfect. But there was a lot of information to impart, and upon review, I believe I did so pretty directly, albeit with some backtracking and digressions (YOU try explaining that whole thing to someone from scratch, and you'll see what I mean). So if you get a chance, read it, watch the slides, and THEN read what the Wall Street crowd says (e.g., Jeff Matthews, Roddy Boyd). People who take the time to do so tell me they are astounded by the level of deception about it that exists. So I urge you, when possible, not to trust what any reporter says I say, when it is possible just to read it yourself. Often, it is.I understand why so many corporate types just take to issuing generic pap statements: it is because they want to give nothing to the Jeff Matthews or Roddy Boyds of the world to misconstrue. I choose not to play things that way, because I choose not to make myself a victim of other people, and nothing they say or write can hurt me. "The rhinoceros has no place to lodge a horn, nor the tiger to lodge a claw." I'd rather be forthright and have a lot of journalists dump on me than cower, worrying about what a bunch of strangers think of me. I know who I am.So please, continue with the civility on this board, which makes it so much better than anywhere else. That piece that Nautical fellow wrote is a good example. Am I too optimistic, as he says? I don't know. I generally pepper my conference calls with, "Who knows how this is going to work out, but you know everything I know" kinds of comments (however, you'd have to read the transcripts and not the news reports to know that). In any case, he showed more insight than most Wall Street stuff for which people pay big money. Of course, I am not commenting on his conclusions or his numbers, but yes, he DID get right the basic game plan. It is nice (and a bit odd) to see your moves studied like that, and figured out: it is no shock to see it happen here, and not on Wall Street.Best of luck to all us Fools,Patrick
"The unforgivable crime is soft hitting. Do not hit at all if it can be avoided; but never hit softly."Author: Theodore Roosevelt
Hey Patrick,Congratulations on your first post in Fooldom. It's a real kick to see you here.Though I may have thrown some wicked e-darts at your tuchus, I figure that thing must be made of rawhide to fight the battles you fight. I apologize for any that crossed the line.From the individual investor's point of view, I can't tell you how frustrating it is to invest in companies and not really, truly KNOW the folks you're dealing with. So, thanks very much for popping in here and for the efforts you make on these fronts. Although I just plain wish you could let the lawyers fight the entire battle for you, I think I speak for MANY Fools here when I say that I believe your intentions are entirely righteous, that Worldstock is a spectacular thing, that eBay needs a kick in the arse to keep it honest, and that Overstock is a company with awesome potential that could do a great deal of good in the world. May you pound evil, make the world more righteous, throw all your spears with great accuracy and efficiency, and make Fools tons of cash. Your Great Fan Despite Having Parachuted Out Yakking and Questioning You Vociferously During the Recent Turbulence, Broadway Dan
Patrick,Welcome to Fooldom, thanks for your kind words, and thanks for sharing your thoughts. The real opportunity for disclosure brought on by the development of the Internet and the implementation of Regulation Full Disclosure is for the executives of public companies to speak directly to their shareholders (via conference calls accessible to all investors and via communities like this). As you may know, The Motley Fool shook the wasp's nest a few years ago by supporting Regulation FD. Then SEC Chairman Arthur Levitt said that without The Motley Fool and its community, Regulation FD would not have passed. As you can imagine, our stance and its result did not make us friends among professional analysts (and the industry organizations and media which they influenced) who loved participating on conference calls upon which management could, for example, boost or reduce forward guidance. That didn't seem quite fair. It seemed illegal.I offer that background because I understand a little bit of what you might be going through, the shock of finding that though you are doing your best, not everyone is standing to applaud. Not everyone will work on your behalf. Not everyone will root you up the next mountain. But you know that. You've chosen to publicly take on Wall Street, Amazon.com, and eBay. You've decided to head out on a crusade, which by its definition means you are not going to win support everywhere. You're going to gain enemies who would like to see you fail, who would like to see your company get derailed, who would like to wear down your mind to the point of exhaustion, and who would like to distract you from your ultimate goal.Your Ultimate GoalYour "ultimate goal" is why I've decided to reply to your note, rather than drift off to sleep post 1AM after a long day. That is the question I ask you. It's the question I ask whenever the Overstock debate comes up, which is not infrequently. I ask, "What do you think Patrick's ultimate goal is?" I'll present you with a dismally unfair hypothetical, but it gets to the root of the issue as I see it. I know you will fight this hypothetical as narrow and unforgiving, but I ask that you play along. Here it is.Hypothetical: Would you rather reveal a massive scandal on Wall Street and have Overstock.com suffer for your effort OR have Overstock.com deliver A+ results for the next decade yet play no part in unraveling the mysteries (and immoralities) of naked shorting?If a higher power forced you to pick one or the other, which would you?The reason I ask is because I would not purchase Overstock.com or recommend it if I didn't know that you, as the sitting CEO of the business, were exclusively focused on propelling Overstock.com to A+ operating results. Two lines in your contributions to our site pricked up my investor ears. In your article you shared that "it [the litigation] has been costly to date." Then this evening in your post, you wrote, "I just have to stand up to them and the things I see them doing, not necessarily with OSTK, but even to other companies."In both cases, you seem to be willing to subordinate the interests of Overstock.com shareholders in order to fight injustice on Wall Street. If I felt that fight were uniquely focused on maximizing returns for Overstock shareholders, I'd stand to applaud. But the sense I get is that the crusade extends beyond your company. It is expensive to your company in excess of the returns you could deliver for your long-term owners had that capital been allocated differently.To be clear, from what little I know of naked shorting, I would say it is probable that a mess of unethical behavior will be uncovered. However, unless I think your efforts and the capital you deploy is the best way to optimize the returns for long-term owners of Overstock.com, I have an uneasy feeling. Is the next dollar going to be spent on a crusade in which you stand up against things affecting other companies but "not necessarily OSTK." This is the single aspect of your battle that concerns me. Again, I would wager in your favor that there are shenanigans to be turned up in naked shorting (and a generous helping of oncoming trouble in the hedge fund industry). But, as investors, we are trying to figure whether to "wager" our capital on the future operations of public companies. Is Overstock's CEO more focused on a crusade or on operations? Would he be more thrilled to deliver the next Den of Thieves into Wall Street's history books -- or is he more interested in helping Overstock.com earn a $5 billion valuation over the next ten years?In my work, I'm tasked with helping others to allocate their hard-earned capital, often counted out carefully in small allotments. I feel duty-bound to focus their attention on companies that relentlessly drive toward better operations, better results, and better returns for their long-term owners. With that as my guiding principle, it is very difficult for me to recommend shares of Overstock.com. I have come to the conclusion -- with mind open to the fact that I may be wrong -- that either you should turn the operating reins over to a team solely focused on operating excellence OR you should pass the crusade on to others, refusing to speak publicly about it again.I could say more, but it would likely be a Gertrude-Steinian restatement of the above themes (which it has already become!), particularly at this hour. The primary question I have is -- are you willing to allocate Overstock's capital exclusively toward optimizing your long-term investment returns (without regard for whether other companies are getting a raw deal with naked shorting)? And if you won't or can't, do you see that whether or not shareholders are begging for you to remain as CEO, you cannot be the very best leader for them. For what it's worth (and I accept the suggestion that it's worth very little), I would prefer to see you remain as CEO, bear down on making Overstock.com one of America's great companies of the next ten years, and turn over the Wall Street crusade in its entirety to those who might pursue it without need for capital from Overstock.com's coffers -- and spending no time and no media currency on it yourself. To close, there is an interesting philosphical ambiguity here. Is the most ethical and most right thing to do to lead a crusade or is the most ethical thing to do to optimize your shareholders's long-term returns by concentrating on driving cashflow? Certainly there is overlap, but they are not exactly aligned.Patrick, this post comes in the spirit you described in your post. I have no agenda but to represent the interests of long-term owners. I have no invectives to toss out, no controversy to stir up, and no intense belief that my questions and conclusions are right. I simply wanted to share with you what one potential shareholder (moi) thinks when he studies Overstock.com. I wish you the best and wanted to relay how many friends of mine love the Overstock experience.Thanks for posting to Fooldom.Best,Tom Gardner
Hats off to you Tom.Though I have been lurking in Fooldom from close to the beginning (even before this ID from 1999) the draw to the Fool has been precisely this -- you guys are square (and smart).As both a HG and RB subscriber, I have been eyeing OSTK shares. You most lucidly (and sensitively) put the question to Bryne that was in my mind and must be in those of other shareholders.I have no doubt at all that there is plenty of murky dealing in Wall Street -- the temptation to make easy big bucks (and to "steal" a march over others) must simply be too big.Which is why I salute the Gardners for their upstanding integrity. This is the biggest part of your net worth -- don't lose it!Puck
Tom,Outstanding post, and I hope Patrick responds in the spirit with which you asked your questions. The balance between doing what's "right" and doing what's "best" for shareholders isn't always clear and they don't always walk lockstep. It's my belief that if Patrick is expending the funds and resources of Overstock in waging this battle against naked shorting, then indeed he needs to decide which is more important: the battle or his company. Yet if it's private capital at stake then it seems there should be no questioning of Patrick's efforts.However, I guess the tricky part is his expenditure of Overstock's "brand capital." Is his battle against naked shorting, even if conducted with his own money, hurting Overstock? I'd also submit that the answer, if true, is not so easily derived. Would you or David have turned away from the battle for Regulation FD if it risked "tarnishing" The Motley Fool, and not just amongst the analyst community? Would The Fool have shied away from doing what's right if it risked hurting The Fool's "brand capital?"While The Fool is private and Overstock public, I think the question remains valid. It's just not so easy to separate out where the delineation occurs, where doing what's right and what's best blur. Indeed, while OSTK may be harmed in the short-term from the attention drawn to the company because of its CEO's actions, in the long-term it could ultimately benefit too. Though Patrick may seem "out there" now to the detriment of OSTK, he may ultimately receive accolades for taking up the cause when no one else would should this apparently vast conspiracy become undone, which would ultimately redound to OSTK as well. As Edmund Burke noted, "All that is necessary for the triumph of evil is that good men do nothing." Of course, that may necessitate you not recommending OSTK as a stock in the short-term until the future has been clarified, but let's hope people don't confuse that as an abandonment of principle on your part. Companies are bypassed as investments all the time because of uncertainty about their business, whether it be for financial reasons, or scandal, or a CEO on a crusade. I look forward to Patrick's response.Rich
OK, I finally got around to reading the various articles, questions and e-mails on this issue. I am a huge fan of overstock.com as a site. I have been on the verge of buying shares for some time now as well. That said, I hope that Mr. Byrne responds to the bottom line questions posed by Tom's post (either here or elsewhere). IMO, his responses to Seth avoided similar questions, focusing instead on the "rightness" of his position. Dr. Byrne is obviously a VERY strong personality. He comes off quite egotistical in his writings. (I still haven't listened to the conference call and tv appearances.) While I don't think that is a very effective PR approach, it is not necessarily a red flag re his leadership overall. Many of the best lawyers (I'm a lawyer) and business people I know have an (over?)abundance of confidence in themself. The only problem is if ego gets in the way of performance. Tom poses the question whether that's what's going on here quite well. I'll be interested in the answer.
I find it interesting / refreshing that an officer responded to this issue:The balance between doing what's "right" and doing what's "best" for shareholders isn't always clear and they don't always walk lockstep..... he may ultimately receive accolades for taking up the cause when no one else would should this apparently vast conspiracy become undone, which would ultimately redound to OSTK as well. As Edmund Burke noted, "All that is necessary for the triumph of evil is that good men do nothing." -TMFCopHypothetical: Would you rather reveal a massive scandal on Wall Street and have Overstock.com suffer for your effort OR have Overstock.com deliver A+ results for the next decade yet play no part in unraveling the mysteries (and immoralities) of naked shorting?-TomGCan you not fight for the greater good AND deliver A+ results...or are they mutually exclusive? I think there IS a balance. There must be.I consider myself a Fool. Good or bad. I try to do what is right AND what is profitable.From TMF's own website:"Our name comes from Act II, Scene vii, of Shakespeare's As You Like It. In Elizabethan drama, only Fools could speak the truth to the king without losing their heads. David and Tom Gardner founded The Motley Fool, Inc. in 1993 to help people make better financial decisions by exposing the shams behind the conventional Wall Street "kings." http://www.fool.com/jobs/workplace/workplace02.htmTo me Patrick is a fellow Fool who has found more shams of Wall Street.Motley Fools do not always follow the status quo. They do not always conform to society. Sometimes..." it is not as though the possibility never occurs to me before I do something weird. - Patrick B" .it is their differences that make them stand out and sometime why we are drawn to believe in those individuals.I support Mr. Byrne in his efforts. I believe that he understand the balance of the two issues to their full capacity and has the ability to see to BOTH intuitively going forward. There must be a balance of morality and profitability that can be maintained and even exemplified.I am an overstock shareholder.-vex
Vex, I guess the question is whether Byrne should be fighting this fight with overstock money. He can be 100% right on the issues and the answer could still be no. I'm not saying that it is, but one does not necessarily lead to the other.
I'd still love to see a discussion of exactly what the lawsuit's short conspiracy and/or the more nefarious alleged naked shorting are actually costing OSTK shareholders or OSTK the company. Numbers, please.I'd also like to know how heavily shorted companies like NFLX, and the others I mentioned in "12 questions" can withstand these naked short "attacks," some for longer periods than OSTK, and see big gains in the stock price.In other words, before we judge whether or not the fight is even worthwhile, shouldn't we be given an explanation of what the actual stakes are?All I've ever seen -- including from Dr. B himself -- is stuff along the lines of "What part of illegal don't you understand?"Sj
I always felt like I was excellent at reading comprehension, but I must admit that the more I follow this issue, the less clear things become. One thing that does stand out is that some of you out there seem to want your cake and the ability to eat it too, meaning you want to maintain "Fool" status (doing the right thing/stickin' it to the man, i.e. PB's "crusade"), but not if it means doing it on your stock dollar(OSTK). So what do you want? To make money, do the right thing, or both? Seems to me you would want to support OSTK so that the right thing IS done in Foolesque fashion.So maybe you only get a 2 bagger and justice, instead of 10 bagger and no justice. Are these the number you seek, Seth/Tom? That is, are you trying to figure out how much profit you're willing to share to pursue justice (assuming that is the real end to the means), before you decide if this investment is "good"?
Seth,I'd still love to see a discussion of exactly what the lawsuit's short conspiracy and/or the more nefarious alleged naked shorting are actually costing OSTK shareholders or OSTK the company. Numbers, please. -TMFBentThree questions: 1)Where do you see the words shorting in the lawsuit?http://www.shareholder.com/overstock/downloads/OSTKcomplaint.pdf2)How much in damages to OSTK is necessary before you feel a lawsuit is warranted?3)How much in damages in 'illegal' activity to OSTK is necessary before you feel a lawsuit is warranted?Thanks,vex
Vex, I guess the question is whether Byrne should be fighting this fight with overstock money. He can be 100% right on the issues and the answer could still be no. I'm not saying that it is, but one does not necessarily lead to the other. I only ocasionally follow OSTK developments... that said, I am quite sure it has been mentioned a few times that the lawsuits have been taken on a contingency basis (i.e. so far no money has been spent by OSTK).Sometimes the role of a CEO goes beyond of the normal duties of running the day-to-day operations, be it fighting labor unions when needed or in this case fighting an issue that daily affects shareholders through hampering the free market that should exist for buying and selling owners of the company. I think it's commendable to face a little bit of short-term pain to achieve better long-term results.While I am not an OSTK shareholder (still can't properly value the company), I think Byrne's actions are very praiseworthy and any success he has against naked short selling will dwarf any other contributions he could make (including having started another successful company).
Rich,Excellent post. I think your perspective is wonderfully independent and extremely valid. Longer term brand capital could be at stake and we constantly have long term thinking drummed into our heads here at TMF. Ultimately those in the know (Dr. B and others) will have to make some tough decisions concerning returns on these various investments. I think your analogy to the Reg. FD issue was appropo. The Motley Fool has morphed in some ways from "investors helping investors" into a larger financial advisory institution. While that may have been inevitable from a financial survivorship perspective, it is good to see that there is still room for the sharing of alternative perspectives.Respectfully,Stan
Parhaps now that Dr. B. is here, he could follow up on a few points from his responses to help clarify what exactly he meant.Dr. B. sort of claims that Overstock has already been taken private. I'm not sure what he means by this, because obviously, when institutions own more than 9 million tradeable shares, you're not really private.But brushing this aside, perhaps Dr. B. could tell us how he gets to the "100%" figure he uses to describe the locked up ownership of overstock.According to his recent filing, he owns 6.3 million shares. J. B. owns 1.3 million as of Feb, 2005. That's 7.6 million out of 20 million. Add Krevlin and we get to 8.6.My data provider shows the top 90 institutions hold 9.3 million shares. We end up at 17.9 million there.Even if we assume that those institutions are not loaning their shares (is that a reasonable assumption?) we're still about 11% short of locking up OSTK's entire float.Sj
Vex:1) page 62) some. Let's see the evidence for any. The fact that its shorted and it's gone down do not imply causality.3) I'm not the one spending shareholder money on a lawsuit. I've already made it plain that I think any time and money spent on this pursuit is wasted.Sj
Shorting is mentioned in paragraph 20. For some reason I don't see paragraphs 16 - 19, not sure what's mentioned in there.I wonder why none of those class-action suit firms that come out of the woodwork any time a company makes a misstep have stepped into this battle... seems to me that:a) there is just waaaaay too much opportunity for hedge funds to play the game the way PB is alleging they do for it not to be happening, and b) there could be a lot of damages involved
Thanks for answering. ;-)The reason I asked you Seth was Byrne's response to "12 questions":But our lawsuit has nothing to do with these other players, "shorting, naked shorting", or Sith Lords. The financial journalists' mantra-like repetition of the claim that it does cannot change that fact. http://www.fool.com/news/commentary/2005/commentary05082402.htm?source=mptoppromoHe states that the lawsuit is not about shorting. You say yes. He says no. I was under the impression the lawsuit is not about naked shorting or just shorting. A call to his lawfirm could clarify this. Your right that it is mentioned, but I do not think that it is the focus or the real complaint. No matter how many times I ask people to prove to me -- or even make a reasonable argument to illustrate -- how, with real numbers, naked shorting matters, the answer comes back "it's illegal!"Bob O'Brien can't do it. Patrick Byrne can't seem to do it.There are LOTS of things that are illegal, unpleasant, and affect companies to degrees large or small.Does that mean the CEO of a company devote time, money, and effort into stopping them? Perhaps. It depends on the economic damage. I submit that there is no discernable economic damage that can be definitively linked to either of these schemes. -TMFBentI have to ask. Do you think that the "Securities and Exchange Act of 1934" and the "Regulation SHO, which went into effect Jan. 3. " be repealed?Personally, if I oppose a law I will abide by it even if I want to change it or remove it. I think people should abide by it till it is changed, but that is me.Why do you think the law was inacted in the first place?Do you think people should abide by the Securities and Exchange Act of 1934 and the Regulation SHO until it is changed? Or break the law.You did not answer question three. So Ill ask it again.3)How much in damages in 'illegal' activity to OSTK is necessary before you feel a lawsuit is warranted?-vex-vex
You are a great American, Mr. Byrne. -Steve
He states that the lawsuit is not about shorting. You say yes. He says no.Sorry Vexas, but you are wrong on this point. It is about shorting, though Dr. Byrne has made great attempts to reassure us all that he has no problem with "legitimate" shorting.Then entire point of the lawsuit is the claim that Rocker was working with journalists (they name something like 100 anonymous conspirators) as well as Gradient and other people to time the release of negative information and therefore depress the stock price, creating an economic benefit.Without this claim, there is no basis for the lawsuit. (Even with it, I wonder if there is basis for the lawsuit.) Furthermore, without a way to calculate and explain exactly how this activity has harmed Overstock shareholders -- we heretics might say it fell because the company is performing poorly -- I have trouble seeing how there will be a basis for damages.Not that this should matter to shareholders anyway. As you remember from his answers, Dr. B. has proposed to donate any award not to current or past shareholders but to "donate" it to people who's lives were ruined by "financial thuggery." (Please, please give me some examples of these.) Or to pay for "regulators" who don't "hide under their desks." Tough talk, but it does nothing for people holding these stubs.The lawsuit makes no mention of naked shorting, but Dr. Bryne and his friend the Easter Bunny O'Brien continue to conflate the two when speaking and writing in public. You have done the same here. You skip straight from the lawsuit to Reg SHO. (You're in good company. All OSTK fans seem make this jump seemlessly these days.)And let's not get into the whole Reg Sho thing yet again. It only proves my point about "this one going to 11." Let's move past it and ask the real question, for the umpteenth time "so it's illegal. So what? What's it actually costing the company?"As for your question three vex, you need to be asking that of Dr. Byrne. I am not the one spending shareholder money on this. But I can do some simply math. If the amount of shareholder capital spent on lawyering this, holding conference calls, and thinking about it instead of running the business is not greater than the amount of actual damage done, then it has been poorly spent, in my opinion.And here's one for extra credit. Can anyone give me a list of companies that turned out to be long-term successes, which companies had CEOs that have engaged in such public scraps with short sellers? (I can think of several examples to the contrary.)Sj
Dear Fools,Since my post may have been ambiguous on this point, I want to make it clear. I believe that something smells rotten on Wall Street -- well, even more rotten than normal. Hedge fund managers are throwing million-dollar parties in the Hamptons. The regulators, to this point, aren't being very active. And I believe it'll be shown that Patrick Byrne has a point. For this, what can a Fool do but applaud?The question I've placed on the table is, "Is this in the best interests of the non-controlling outside shareholders of Overstock.com?" If there is a meaningful brand benefit AND there are damages which, combined, generate a net gain for shareholders, outstanding. I see superior capital allocation as the primary task of the CEO of any company with outside investors. Last week, I had the good fortune of sitting down with management at Drew Industries (NYSE: DW), a company that has risen 50 times in value since 1990 (and more than 200 times in value since 1975), selling doors and windows into the recreational vehicle market. Boring stuff. I had a very good sense of the sort of people the CEO and CFO are, yet I was even then blown away by their complete focus on optimizing long-term returns for minority outside shareholders. To my ear, they are Buffett/Lynch guys through and through. If Patrick has in mind, as he sheds light on wrongdoings on Wall Street, that he will optimally enhance the long-term value of his public company in the process, excellent. If not, then I think he must choose which master to serve: the crusade or the cash flow. Please don't misunderstand me on this point. I think his aims are very admirable. But I wonder if it is optimal for executive leadership of a closeout retailer to be leading this charge? In the case of Regulation FD, our pursuit directly benefited our customers and, I argue, our shareholders. It was right in the sweet spot of our operations. If, on the other hand, we deployed the intellectual and financial capital of the business to fight a cause that only peripherally affected the long-term value of our organization, I would not be surprised to hear my outside shareholders and the board ask if this was the optimal use of investor capital.I'm not saying there isn't subtlety to this argument. And I'm not pounding my knuckles on the desk demanding that I am right. I simply wanted to be sure that my question was clear. Is the ultimate goal the expansion of free cash flow or is it the undoing of dastardly schemes? I submit that if the crusade leads to higher cash flows, it fits within the focus of Overstock.com. If not, it should be waged outside the boundary lines of the business. In either case, it should be waged. We are in the top of the first inning, I believe, in understanding how institutions manipulate the stock market for their short-term gain.Best,Tom Gardner
Hello Fools One and All. First, please understand that I am on a rare, rare holiday somewhere sunny. In addition, my connection is an old 8k modem (if you can remember what that was like!), which is so painful I have not even looked at email in nearly a week, and only scanned the Fool board last night because it is just barely tolerable at that speed. So I do not want to get sucked too far into debate right now. On the other hand, I will mention that I used to read the Yahoo boards fairly regularly after we went public, but then took to scanning them every few weeks, and then, given the surge in postings there in the last month or two, just have people email me ones they think are worth reading. Of course, it has occurred to me at times to go on and respond to questions, or obvious inanities, but ultimately I never bother because I knew that anything I said would be quickly drowned out by chatter (even if, or especially if, I had the miscreants dead to rights on some misrepresentation). Biting my tongue has not always been easy, as often I felt that some guys were purposely trying to drown out or sow confusion about things I have said publicly. That said, I like the idea of interacting with fellow Fools here. It occurs to me, belatedly, that when I see things that deserve to be set straight, I no longer have to bite my tongue: I can just respond once on Fool (and I notice that the good guys repost it to Yahoo anyway). I think I can assume that Fool will keep from happening on this board what has happened on others. Obviously, I must stay within Reg FD (“Fair Disclosure” for you newbies) guidelines over here. But as long as I am just reiterating something that has already been publicly disclosed, or not disclosing anything “material,” I don't see any reason why I should not. In fact, I should mention that I love Reg FD (one of the best moves the SEC made in my lifetime, actually). I think it corrected one of the biggest advantages the insiders on Wall Street had versus Mom-and-Pop investors (when I go to Wall Street conferences, they still constantly try to get me to go beyond what is public). How great (and ironic) would it be to disclose things first to Main Street and then have Wall Street have to hear about it from Mom-and-Pop investors? Hahaha. Tom, as I understand it, Reg FD says it is OK to disclose something to a journalist if his or her audience is national enough. Has the SEC or a court ever opined on whether the Fool's board counts as, “enough”? That is, while I don't plan on saying anything that would count as governed by Reg FD here anyway (for now), if I did, can I assume that these boards count as “public” in the eyes of the SEC? Has the Fool ever fought that fight? Answer me that, and I will go to work on answering the good questions I see scattered herein. Regards to all Fools, PatrickPS Please, everyone, call me “Patrick,” not, “Dr. Byrne.”
TMFTomG writes:If Patrick has in mind, as he sheds light on wrongdoings on Wall Street, that he will optimally enhance the long-term value of his public company in the process, excellent. If not, then I think he must choose which master to serve: the crusade or the cash flow.Warren Buffett expended significant effort lobbying for the expensing of stock options, and Berkshire Hathaway does not even grant options.Many companies donate to charitable causes that have nothing to do with their businesses.Does that mean you should not invest in these companies? Tying such activity directly to profits is nearly impossible. That does not mean they are worthless, since a company's reputation is certainly worth something... But it is very hard to quantify.If Dr. Byrne is right, proves his case in court, and manages to stop some of the illegal manipulation of his and other companies' stocks, then he will have promoted his shareholders' interests both in the value of their shares and in the reputation of their company and its CEO.Buffett also said: "Lose money for the firm and I will be understanding; lose a shred of reputation for the firm and I will be ruthless." Does that sound like a man who considers cash flow the be-all and end-all of corporate existence? Maybe he is just a bad CEO... - Pat
Patrick,As anything remotely material posted here is immediately broadcast to the other boards via copying and pasting, I think you can assume that anything posted here is public public.And if it's not, and it's important, us scribblers will mop it up and get it to the front page.Sj
Hi All,Tom G et all, I do not think your question is not a fair one. Patrick is spending time and money that directly effect overstock.com. His number one job in to increase shareholder value; if Patrick has proof of illegal activity having a negative effect on my shareholder value, then it is his job to protect the value of my investment. If I was CEO of a gas station, and i knew someone was stealing a tank of gas a day, should I not take time from my day to make sure the thief gets prosecuted? I might be ridiculed for running down the street trying to get the thief's license plate, but the thief is negatively affecting my company's value, and just as Patrick is doing, should I not try to stop the thief?Best, Leebought overstock on 11/4/03 - thanks patrick!
Warren Buffett expended significant effort lobbying for the expensing of stock options, and Berkshire Hathaway does not even grant options.Exactly. And companies like Genentech that I own shares in have and are expending considerable management resources on the other side of that issue. Think of the time most public companies spend on governmental affairs. Including lobbying from industry groups on option expensing and everything else under the sun.It would be great if the SEC took their responsibilities more seriously but frankly they don't. All you have to do is look back on all the garbage (termed "shenanigans") that was going on during the 1990s, that alot of people knew about but did nothing about. The SEC spent alot of time on RegFD, maybe well spent. Maybe not.I remember at the time questioning the value of RegFD and got into a bit of a discussion. TMFLaw wrote a post in response and said that TMF would spend more time on the bogus numbers that were being cranked out and continued to be cranked out after RegFD. But in a RegFD kind of way. Everyone got the same bogus numbers at the same time, more or less. In fairness and as everyone knows Motley Fool did more than most to point out some of the shenanigans taking place.Unfortunately, it took favorite Levitt's retirement from the SEC and his book on "Everything Wall St. Doesn't Want You to Know" for some of the shenanigans to become more public. Sarbanes Oxley and Harvey Pitt and so on and on. Who has negotiated most of the big multi-billion dollar settlements? Spitzer and his little office, that comes under criticism here at TMF sometimes, with the SEC tagging along at times. Well, there are crusaders and then there are crusaders.Anyway, since TMFBent says there should be a quantification of the damage to the company resulting from the allegations if proved, and you do need damages, perhaps the same should be asked of what net benefits RegFD produced. Or Buffett's and TMF's efforts on option expensing. Difficult to quantify exactly.Interesting discussion, personally not a fan of companies that spend alot of time in litigation, especially on a public issue that the SEC would be better equipped to deal with. At least shareholders can vote with their dollars.
Fools All,I will preface things by saying that Tom G's question is the biggest one of all. It is a great question to which there is no easy answer. In fact, the implication of his question, the doubts he raises, are my own as well. But it is 2 A.M. where I am, so I am going to just start with some easy ones and see how far I get before I get tired. Also, please know that I occasionally write using ALL CAPS interspersed with the text of others. This is not SHOUTING: it is simply a way I use to converse with people in emails. No offense intended.Broadway Dan says: “Hey Patrick, Congratulations on your first post in Fooldom. It's a real kick to see you here. IT IS A KICK TO BE HERE. I LOVE IT. Though I may have thrown some wicked e-darts at your tuchus, I figure that thing must be made of rawhide to fight the battles you fight. I apologize for any that crossed the line. NO NO, NO APOLOGIES NECESSARY. I CAN COMPLETELY RESPECT THE POINTS YOU HAVE MADE. QUITE FAIR. From the individual investor's point of view, I can't tell you how frustrating it is to invest in companies and not really, truly KNOW the folks you're dealing with. So, thanks very much for popping in here and for the efforts you make on these fronts. YOU ARE WELCOME. LEAST I COULD DO. AS A MATTER OF FACT, I HAVE BEEN AN INVESTOR AND STOCK-PICKER SINCE I WAS A KID, AND I KNOW JUST WHAT YOU MEAN. SOME OF THE ATTACKS ON ME HAVE BEEN PERSONAL, 'AH, BYRNE IS JUST DOING THIS BECAUSE HE'S [EGOTISTIC, MEAN, CRAZY, ETC.]' THERE IS NO REAL GOOD WAY FOR ME TO ANSWER SUCH CLAIMS, OTHER THAN TO SHOW UP HERE, AND LET PEOPLE MAKE UP THEIR OWN MINDS.”Although I just plain wish you could let the lawyers fight the entire battle for you….” HEY, NO KIDDING. IT REALLY IS MY INTENT TO DO SO. IT JUST TOOK A HECK OF A LOT OF HEAVY LIFTING TO GET THAT TO A PLACE WHERE IT WAS EVEN A POSSIBILITY. BUT WHAT AM I GOING TO DO, WHEN I GET AN INVITATION TO GO ON TV OR TALK TO THE RPESS? SHOULD I REALLY DODGE THEM? THE ANSWER IS, I THINK, YES, TO THE EXTENT MY CONSCIENCE WILL ALLOW.Sklam says: “You are a great American, Mr. Byrne. –Steve”Thanks Steve. Some days I feel like the biggest idiot in America, and when I do, I always seem to get one of these messages. In case you're wondering if it helps, the answer is, Yes, it helps a lot. The words of the miscreants do not get to me at all, but sometimes I do see that legitimate, honest people think I have gone off the deep end, and when I see that, it pains me. Fortunately, I literally have gotten hundreds of messages like yours, and they always reinforce my determination not to back down. And I am sure that what I am doing is exactly what 9 out of 10 people in Reading, Vermont (or South Dakota or Iowa or Oregon) would do, if they know what I know. Normal people don't see widows and orphans getting rolled for their savings and just say, “Oh well, someone else will call the police.” Chunche says: “Dr. Byrne is obviously a VERY strong personality. He comes off quite egotistical in his writings. (I still haven't listened to the conference call and tv appearances.) While I don't think that is a very effective PR approach, it is not necessarily a red flag re his leadership overall. Many of the best lawyers (I'm a lawyer) and business people I know have an (over?)abundance of confidence in themself. The only problem is if ego gets in the way of performance. Tom poses the question whether that's what's going on here quite well. I'll be interested in the answer.”Well, maybe. Probably few who have come to know me through these last few years of public life would believe me if I said, go and look up my old students, or grad school colleagues, and you will find people who say I was pretty mild-mannered and gentle, even introverted, I think. I apologize if I come off as having such a strong personality or being egotistical. And I disagree that ego is not bad. All bad human action I have seen seems to spring from ego. If I am acting out of ego, then I am not acting from my center, and nothing good can come of it.Now of course anyone saying, “I am not being egotistical!” is engaging in “performative contradiction” (as philosophers call it). So let me say simply that if I am, I do not know it. It feels like I am doing something incredibly distasteful and stressful, something I knew would subject me to an immense amount of derision and ridicule. It thus feels like I am doing this for a reason other than ego. What reason? Let me relate a brief story. Earlier this year I was down on the Navajo reservation with Yvonne, a wonderful Navajo woman who works in our Worldstock department developing sources on “the Rez.” While there, I met her mom, a lovely woman who lives (like many if not most Navajo people) in a small home, about the size of a one car garage, with no running water or, I recall, electricity. The mom had recently come back from Winslow, Arizona with her first new vehicle: a pick-up truck, of which she was justly proud. Yvonne asked her mom what the APR rate was on the car, and her mom replied (in Navajo, which Yvonne translated), “What's an APR?” Yvonne got the paperwork on the truck from her mom: it showed that the dealer had built a 45% APR into the payments. Clearly that dealer was just another one of the many crooks who ring a typical Indian reservation and prey on their lack of sophistication. It made me furious, ashamed, nauseous, and ready to kick the tar out of a Winslow Arizona car dealer. Fortunately, Yvonne has a line into the office of the governor of Arizona, who sent some consumer affairs folks to straighten out the dealer, who rewrote the contract with a normal APR and promised (I was told) never to pull such a stunt again.So, Chunche, what is your psychological explanation here? Was the fact that I felt nauseous and my blood boiled really a matter of “ego”? Could be. Were I to posit a psychological explanation, I would name not “ego,” but simply, my parents brought me up not to turn my back on defenseless people who are getting their asses kicked by powerful people. You don't have to be a vigilante about it, you don't have to go looking for problems, but when one rolls up on your doorstep and nobody else seems to care, yes, I was pretty much raised to see it as my duty to do something about it. Call that “ego” or “strong personality” if you want. But I think I am a fairly mild guy, normally.I am not sure what the length limit is on these, so I will start another, and hit Seth's points.
Fools,Now I will turn, once again, to the work of Mr. Jayson. In the interests of full disclosure: I am biased here. I know plenty of people who make good arguments against my actions. In fact, Tom and others here have done so tonight, and have, I think, illuminated a real dilemma, and argued its various facets convincingly. But their arguments are real arguments, not laden with glaring logical fallacies or hard-baked with false premises. I do not find Mr. Jayson's work equally compelling. In fact, I find it so programmatic, it is hard for me to conceive that his false assertions and obfuscations are not deliberate. (Why would any Fool purposefully work so hard at spinning things, rather than abide by the normal Fool etiquette of trying to work through a problem and share his results? I would have to be far more conversant with the entire body of Mr. Jayson's work to venture a reply.) That said, I have learned when someone takes such trouble to bake false premises into questions, lengthy discussion is largely a waste of time: he is flogging a Party Line, facts be damned. Therefore, I think I will dispatch these issues briefly, as I doubt very much he fully believes his Party Line points himself.Mr. Jayson: “[Vexas says] He states that the lawsuit is not about shorting. You say yes. He says no.Sorry Vexas, but you are wrong on this point. It is about shorting, though Dr. Byrne has made great attempts to reassure us all that he has no problem with "legitimate" shorting.”Sorry, Mr. Jayson, you are simply wrong on this point. The lawsuit is not “about shorting,” it is about an unfair business practice: one hedge fund paying a research house to prepare putatively independent research while providing it to that client before others, allowing that client to edit it, and delaying publication to suit that client's trading purpose. It is no more “about” shorting than a lawsuit alleging sexual harassment in the workplace is “about” sex. The pattern of facts we are alleging could have supported a lawsuit (mutatis mutandis) whether the defendants were short the stock, long the stock, betting in favor of volatility in the stock, or betting against volatility in the stock. The reader can, of course, see this for himself by simply reading the lawsuit (http://www.shareholder.com/overstock/downloads/OSTKcomplaint.pdf ), the first page of which lists “unfair competition” and “negligence” as the only causes of action, or checking to see that the statute under which it was filed (California 17200) concerns unfair business practices, not stock manipulation, stock prices, shorting stock, or anything related to stock. This is such a basic, obvious, indisputable fact, Mr. Jayson, your mantra-like repetition of the claim that this is, “about shorting,” seems to me to be mere flogging of a party line.“The lawsuit makes no mention of naked shorting, but Dr. Bryne (sic) and his friend the Easter Bunny O'Brien continue to conflate the two when speaking and writing in public.” No, I don't. I suppose giving an example to support such a claim is onerous to one who is dealing in Received Truth. I can give you example after example of where I took great pains to distinguish this lawsuit from the naked shorting issue (webcast, appearances on CNBC #1 and #2, my reply to your 12 questions, etc.)”And here's one for extra credit. Can anyone give me a list of companies that turned out to be long-term successes, which companies had CEOs that have engaged in such public scraps with short sellers?”Nope. So what? By the way, did I mention that it is not “short sellers” per se with whom I am scrapping, I am scrapping with a hedge fund and a research house that's on the take: why is that point, crystal clear to everyone else, simply too arcane for you? My guess is that you repeatedly gloss over this so you can try to make this a“CEO versus the shortsellers” story, so you can point out that CEO's who fight short-sellers lose. My read of this board is that not a single reader is falling for this.)”Dr. B. sort of claims that Overstock has already been taken private. I'm not sure what he means by this, because obviously, when institutions own more than 9 million tradeable shares, you're not really private.”Again, every other reader seems to understand a point that you pretend is too arcane for you. Of course I don't literally mean that we have taken it private: I mean that the ownership is now so concentrated that a couple dozen people seem to own all the legitimate stock. “But brushing this aside, perhaps Dr. B. could tell us how he gets to the "100%" figure he uses to describe the locked up ownership of overstock. According to his recent filing, he owns 6.3 million shares. J. B. owns 1.3 million as of Feb, 2005. That's 7.6 million out of 20 million. Add Krevlin and we get to 8.6.”Sure. Just look at my earnings call, the transcript of which is available on our site, where I walk through the numbers in great detail. ( cf. August 3rd entries in http://www.shareholder.com/overstock/MediaList.cfm ). By the way, you are off on what I own, off on the total shares outstanding, neglected the holdings of other members of the Byrne family and several non-institutions quite close to me, and the top 10 institutions and mutual funds, all of which were listed in detail in the conference call of several weeks back. I find it unimaginable that, given your interest, you have not actually read it. Thus, this question is just more blue smoke and mirrors.”I'd still love to see a discussion of exactly what the lawsuit's short conspiracy and/or the more nefarious alleged naked shorting”The lawsuit does not allege a short conspiracy, Mr. Jayson, or a naked shorting conspiracy. Again, are you just counting on the hope that your readers are dumb or will not have been following this closely?“are actually costing OSTK shareholders or OSTK the company. Numbers, please.”Wait like everyone else, please.”I'd also like to know how heavily shorted companies like NFLX, and the others I mentioned in '12 questions' can withstand these naked short 'attacks,' some for longer periods than OSTK, and see big gains in the stock price.”Well, where do I begin deconstructing your false premises, Mr. Jayson? Your hidden assertions are: that this is about “naked short 'attacks'” (false); being “heavily shorted” (false); the fact that some have gains in their stock price while being naked shorted mean that naked shorting cannot be responsible for hurting companies (false: “yes officer, I threw rocks at those two windows, one broke and one didn't, but how can you blame me for breaking the first? The fact that the second one did not break proves that throwing rocks doesn't break windows!”) You pretend that this is about stock prices rather than an unfair business practice among named parties (stock price is simply one way, and maybe just one way of several, of calculating damages). You leave out the numerous stocks that are on the Reg SHO list that have seen a decline in their stock price (e.g., NFI, TASR). And so on and so forth, etc.I have no idea why you bother, Mr. Jayson. You seem to assume that folks are so dumb that they won't see through these transparent deceptions. When in your “12 questions” you lied that I had said the “only” evidence I had were some affidavits, I had a feeling about you, which is why I posted the link to the actual interview, so readers could see for themselves how bald was your lie (as you lied in a follow-up email to me and Bill Mann defending this error). Now I have just revealed lie after lie after lie after misstatement after false assumption after lie. Frankly, this is not even what I would consider an interesting debate, and in my experience, far fewer observers fall for this kind of nonsense than its practitioners suppose (although I note that in academia people argue like this constantly, and kid themselves that they are getting traction). We can keep on playing at this, but in my experience anyone who gets so many things this wrong is doing so purposefully, which means you have an agenda, which means you are not interested in the answers anyway but for that they provide fodder for some further misconstruction, and so on and so forth. We could continue, but there is no point in doing so in such an atmosphere of deception. I think I have given you enough time.Sincerely,Patrick
Wow. I must say that I never anticipated this level of participation when I joined the Fool community.Nice timely response Patrick. Much appreciated. Interested to see your response Seth.
Thanks, Patrick. I wish you and Overstock well and will be very interested in your response to Tom's question.
Patrick, from your first post:<So please, continue with the civility on this board, which makes it so much better than anywhere else.>A few hours later, you say, among other things:<That said, I have learned when someone takes such trouble to bake false premises into questions, lengthy discussion is largely a waste of time: he is flogging a Party Line, facts be damned. Therefore, I think I will dispatch these issues briefly, as I doubt very much he fully believes his Party Line points himself.><When in your “12 questions” you lied that I had said the “only” evidence I had were some affidavits, I had a feeling about you, which is why I posted the link to the actual interview, so readers could see for themselves how bald was your lie (as you lied in a follow-up email to me and Bill Mann defending this error). Now I have just revealed lie after lie after lie after misstatement after false assumption after lie>Patrick, I don't think you've illustrated lie after lie, I think you've been a bully and engaged in double talk and character assassination and ducked any issues you didn't want to address. You applaud civility and then call somebody who questions you a liar. You even talk out of both sides of your mouth in one sentence: <I believe that even the detractors here (as opposed to Yahoo) are well-intentioned, and are truly just calling it as they see it (though of late, there do seem to be someone with an agenda, eh?)> Patrick, I've had a feeling about you as well, ever since you turned one of your quarterly conference calls into a forum for a whack job operating under the alias of “Bob O'Brien” to spin conspiracy theories. I was wondering why any reputable CEO of a publicly traded company would allow somebody they didn't know to take over a conference call, particularly somebody like "O'Brien". But it turns out that you did know him. In your August 12 conference call on the lawsuit you said you'd first talked to “Bob O'Brien” in October of last year. On the January call, even though the two of you had talked previously, you pretended like you didn't know anything about “O'Brien” or his issues. A lie by omission. If you're an honest man, why didn't you just acknowledge that you had invited him on the call and endorsed his theories (clearly you do, otherwise you wouldn't have filed the lawsuit)?Since you're calling somebody else a liar, here's some of the charade you put on in the January call (from the transcript):<Patrick Byrne - Overstock.com - Chairman and President There was a guy, Bob O'Brian.><Bob O'Brien Investor You, probably, the name is not familiar. Let me start out by introducing myself. I am a shareholder and also a retired guy. I sold my company a few years ago and now I'm an investor and in my spare time I guess I created a web site NFI-info.net (ph) that tracks another company that is going through a lot of the same stock action that you guys are. Wall Street Journal actually wrote an article about it last year and I just thought it would be interesting to call in and I appreciate your taking the time by the way and just ask you a couple of questions. Maybe compare notes and share some observations because I really think there is a lot in common between the two situations.I think I can explain what is going on with your stock and, basically, why so many people are saying mean things about you.><Patrick Byrne - Overstock.com - Chairman and President I WOULD LOVE TO KNOW THAT.COMMENT BY O'BRIEN:<PHASE 2 IS PRETTY INSIDIOUS; AND IT STARTS WITH BASICALLY LISTING YOU ON A FOREIGN EXCHANGE OR TWO. I CHECKED AND I DON'T EVEN KNOW IF YOU KNOW THIS, BUT OVERSTOCK HAS BEEN LISTED ON 5 DIFFERENT GERMAN EXCHANGES. THEY'RE IN FRANKFURT, IN BERLIN, MUNICH -- YOU'VE GOT ONE OTHER ONE. I AM JUST GOING TO GUESS THAT YOU DIDN'T CALL AND ASK FOR THAT.>Patrick Byrne - Overstock.com - Chairman and President It's news to me. Bob O'Brien Investor <You wonder why?> Patrick Byrne - Overstock.com - Chairman and President <I do.>Now here's where it gets really rich. You and “O'Brien”, while pretending that you've never talked with each other, start questioning the integrity of two other people because of unsubstantiated allegations that they may know each other better than they let on. O'Brien:<I know I've taken up too much time. I just want to say one thing. Kramer, I just love the last conference call where he feathered through the -- I've only met the largest shareholder in my company in the fresh fruit section of the A&P. It killed me. Patrick Byrne - Overstock.com - Chairman and President <THEY'VE MET BEFORE -- IN YOUR MIND?>You, the CEO of a publicly traded company, were giving a guy who operates under an alias an opportunity to make allegations he can't substantiate. Since then, you've made a lot of allegations you admit you can't substantiate. You've posted the picture of a guy after saying that he was a private person who didn't like to have his picture taken or published.I don't care who you're dealing with and what they've done, your erratic behavior is beneath the standards of what should be expected from somebody who runs a public company.
And the confusion continues...part of a plan perhaps?
Patrick,Tom asked me to reply to your comment about Reg FD:<< as I understand it, Reg FD says it is OK to disclose something to a journalist if his or her audience is national enough. Has the SEC or a court ever opined on whether the Fool's board counts as, “enough”? That is, while I don't plan on saying anything that would count as governed by Reg FD here anyway (for now), if I did, can I assume that these boards count as “public” in the eyes of the SEC? Has the Fool ever fought that fight?>>I'm the Fool's general counsel, and 1) it would be wrong for me to try to give you legal advice; 2) Seth Jayson isn't a lawyer and can't give you legal advice either; and 3) you have plenty of lawyers who are smarter than I am, but I can tell you that we've never had any discussions with the SEC as to whether our (or anyone's) message boards would be sufficient "public disclosure." Consequently, you will need to decide how much information you feel comfortable posting. I'm happy to talk to any of your lawyers, if that will help.Thank you for participating in the Fool Community.Lawrence GreenbergTMF Law
Quick thought: Do we really know that Hannibal100 is actually Patrick?Has anyone checked into this? Quite Frankly, it would not be terribly hard to fake anything that has been posted by "Patrick".
Warren Buffett expended significant effort lobbying for the expensing of stock options, and Berkshire Hathaway does not even grant options.And he also acted as Schwarzenegger's financial advisor, but he didn't spend Berkshire money on either cause, he did it on his own time with his own money.Frankly, I think the idea that this naked short conspiracy directly harms OSTK is pretty specious. The stock is up about 300% since its IPO and trading near 1.0x annualized run-rate revenues, arguably fairly valued. The stock fell since the beginning of the year, but after the company reported some bumps in its operating results, and before what looks to be a tall climb to reach the next revenue plateau, which entails significant execution risk. In other words, the stock appears to be trading normally to me.Additionally, for short sellers to "force down" the price of a stock requires a lot more shares than I think most people realize. Say that short sellers need to sell 25-50% of the daily volume of a stock to control it (something that has been done over short periods of time). OSTK trades about 500K shares per day, so that is 125-250K shares per day. To control the stock for 6 months is about 130 trading days, or about 16-32 million shares which are presumably "naked" or "counterfeit". Even the wildest fantasies of the naked short crowd don't suggest there are that many shares."Bob O'Brien" suggests that NFI's trading has been manipulated for 18 months. Using the same numbers, that is 50-100 million shares. Nobody suggests that the supposed fraud is of that magnitude.I have seen orchestrated short attacks in action, for example with ACAS, ALD, and FFH (I was a shareholder of all three after the attacks). It is a short-term phenomenon, usually 1-3 months, and then the smoke clears. The funny trading only happens in spurts that coincide with press releases and other events, and only for a short time.In short, I think it is unreasonable that Byrne is using Overstock capital for his personal vendetta against a very wide group of people. If he wants to go after them, then more power to him, but he should leave Overstock shareholders with a full-time CEO/President/Chairman and all of their capital. Overstock is hardly a company that can run itself nor one that doesn't need to keep a close watch on its capital.Randy
“But brushing this aside, perhaps Dr. B. could tell us how he gets to the "100%" figure he uses to describe the locked up ownership of overstock. According to his recent filing, he owns 6.3 million shares. J. B. owns 1.3 million as of Feb, 2005. That's 7.6 million out of 20 million. Add Krevlin and we get to 8.6.”Sure. Just look at my earnings call, the transcript of which is available on our site, where I walk through the numbers in great detail. ( cf. August 3rd entries in http://www.shareholder.com/overstock/MediaList.cfm ). By the way, you are off on what I own, off on the total shares outstanding, neglected the holdings of other members of the Byrne family and several non-institutions quite close to me, and the top 10 institutions and mutual funds, all of which were listed in detail in the conference call of several weeks back. I find it unimaginable that, given your interest, you have not actually read it. Thus, this question is just more blue smoke and mirrors.I'd like to comment on this too because I do not follow Patrick's line of reasoning.Let's say for example that a company has 19 million shares and 10 million of them are in "known hands", and are in either certificate form or held in cash accounts. That is, out of circulation.Now let's say that I have 36 close personal friends and family who I believe each own 250K shares, for a total of 9 million other shares. However, I have no idea if they own the shares in certificate form, a cash account, or a margin account.This last distinction is paramount. If they own the shares in either certificate form or a cash account, that accounts for the remainder of the shares of the company, and 100% of the shares are out of circulation, and there is nothing to trade.However, if those people own their shares in a margin account, they are still in circulation. Shares held on the margin side of a brokerage account are available to be loaned to short sellers, who in turn sell them on the open market, where they are, in turn, bought and then owned by someone else, who, in turn, may hold them in a margin account, where they may be loaned, etc etc.Say for the sake of argument that all of these 9 million shares are held in margin accounts. To have 5 million of these shares short is a bit high, but possible, and legal.Patrick, in all of your discussions and slides about the share count, I have never seen this distinction made. A very simple explanation for why there are still 500K shares traded despite the fact that you don't know who owns only 100K shares is that many of those shares are held on margin, and thus still in trading circulation.If you really want to get tabs on your shareholder base, you need to be certain that each person who owns shares 1) holds them constantly rather than trading them, and 2) holds them in certificate form or on the cash side of their brokerage account. Until that is done, any calculations made about the shareholder base can't be used to draw any conclusions.Randy
Randy,Good question. Quite fair. I believe your logic is correct. Others have made similar points elsewhere, I have heard. So thanks for the giving me the opportunity to address it.The thing is, very little of that presentation was to ask, "How could this trading be going on while a small circle of people control this much stock?" In fact, I don't remember ANY of the presentation really being about that (I could be wrong: I could download it on this 8k modem and check for myself, but dinner is waiting). In my earnings call where I laid all that out, I do not recall bringing up the subject of trading volume at all (and in the webcast on the lawsuit, I brought it up only at the opening, in a section that was unrelated to the later slides about concentration).What the presentation was about was the concentration: apparently, out of 18.7 million shares, about 18.5 million shares are owned by people with whom I am on a first name basis (or related, which I facetiously described as "someone I took baths with" as a child: cousins, etc.) Thus there are about 200k shares not owned by people with whom I am on a first name basis, but those people with whom I am not on a first name basis THINK they own somewhere between 7 million and and 12 million shares. This was the point of that presentation, and offhand, I don't recall making any significant claims (or even, any claims whatsoever) about the plausibility of trading volume, or how many certs I believed had been issued, or anything like that.Now in the opening to the webcast on the lawsuit I did indeed talk about trading volume, and noted something that looked dodgy to me, that being, the disparity between the actual trading volume and the AUTEX volume. Again, I don't recall making any significant claims about how many certs had been issued or how the concentration of the stock made the trading implausible. Feel free to correct me if I am wrong and there is some such claim in there, but in any case, I am confident that the point of the proof was something quite different than that which your argument addresses.That said, you are correct in pointing out that such a claim on my part would be a non sequitor. I just deny that this was the thrust of my claim. It could well be that I presented my argument poorly, because others have similarly miscontrued it. So I thank you for giving me a chance to address this.Respectfully,Patrick
Dear Atlanta Don,You have made three points in your posting: that I was uncivil to Mr. Jayson, that I speak out of both sides of my mouths, and that I have misrepresented my relationship with Bob O'Brien. I will answer the first two of your points here. However, the third is a milder version of one often made by the miscreants (that O'Brien and I had some secret relationship before I ever allowed him on that deeply-plotted conference call). This criticism is so transparent I barely responded to it in the past, but now I will answer it separately as a stand-alone message, secure in my new discovery that there is, at last, a forum where I can write and be confident that it will reach intelligent listeners, and not be drowned out in chatter (as in Yahoo!). I will save that for another message, then, and just hit the first two points of your message.I do value civility in debate, and am about as thick-skinned as it gets with folks who disagree with me honestly (my colleagues at work have full license to tell me I am foolishly missing something and they are going to ignore my input, said license being something they frequently exercise). And it is not the case that debates have to end in agreement, in my view. However, there are times in debates when one realizes something is missing from the other side. This is not always proof that the other side is lying: often, it is simply that one party has reached such a level of indoctrination that he is unable to read words on a page that contradict his worldview. It is a state of existence that Orwell explored brilliantly in “1984,” and it is something I certainly saw in Communist China myself. It happens occasionally in this country as well (most often in political or legal discussions). For example, I have stated that our lawsuit is about an unfair business practice having to do with tainted research, and have explained why it is not about shorting per se, and is completely unrelated to anything to do with naked shorting. I have pointed out repeatedly, for example in my blog, that I have no idea who is naked shorting our stock, and have no reason to think it is Mr. Rocker. Our lawsuit states that it (that same lawsuit) it is about an unfair business practice involving tainted research and not about shorting or naked shorting. I have gone on TV twice and explained it is not about shorting or naked shorting. I have told the newspapers it is not about shorting or naked shorting, and I took the time to write 12 answers to Mr. Jayson where I stated repeatedly that the lawsuit was not about shorting or naked shorting. In each case I have explained what the lawsuit is really about, and given people citation so they could read for themselves.So in the face of such events, Mr. Jayson, has written, “I'd still love to see a discussion of exactly what the lawsuit's short conspiracy and/or the more nefarious alleged naked shorting …” “Sorry Vexas, but you are wrong on this point. It is about shorting….” Not to mention the numerous places in his 12 questions he bakes the same false premise into his questions. And so on and so forth.Yes, it is possible that he is not being deceptive, I grant you: it could just be that he has reached a level of indoctrination that is so complete that he cannot read the words on the page in front of him, or comprehend the utterances I have made on TV, or understand the assertions made in the lawsuit, or click through and understand the nature of the California stature under which we filed our lawsuit, or such simple statements as appeared in my 12 responses. I grant you that as a logical possibility he may simply have reached a level of ideological purity that makes seeing and understanding such plainly contradictory evidence an act that is literally “unthinkable” for him, and so he need make no effort even to grapple with it. I admit that is a possibility.The other possibility is, of course, that he is being deceptive, and trying to spin the story to his liking, presumably into a standard “CEO just doesn't like the shorts” story. In the absence of any further evidence, I would give him the benefit of the doubt and go for the indoctrination explanation. I would say, “OK, for some strange reason Seth is so ideologically disposed to see this as a lawsuit about shorting and naked shorting that no contrary evidence of even the simplest variety can make it through his blinders.” OK, I'll go with that as a hypothesis, and slip into my back pocket the one that he is being purposefully deceptive.Then, however, I get to Seth's claim in his 12 questions that I said somewhere that the “only” evidence I had were some affidavits. Well, I was damn sure that I never said that, and let him and Bill Mann know it. Seth's reply to me was interesting:“To clarify, I got that information directly from what you said on your 8/12 CNBC interview. Right after Insana asks you about your allegations against Greenberg, and asks you what evidence you have, you shook your head, said 'nothing,' and then added, "I have affidavits…"Now that is not simply, “a close call but he misunderstood.” It is not, “wrong.” It is not even, “incorrect but a minor misunderstanding.” It is a lie: I do not say “nothing,” I do not say “only,” I do nothing to indicate that these affidavits are our only evidence (hence I included a link to that interview in my response, so readers would not need to take my word for it: click here http://www.shareholder.com/overstock/ and watch the August 12 interview, minutes 4:00 to 4:30). I deny that any honest person can watch that section of the interview and see any basis for Seth's claim that I indicated these were the “only” evidence that I had, or that I said, “nothing” or anything that sounded like “nothing” or began with something that sounded like, “nothing.” It was simply a lie, and if the reader wants to save himself wading through piles of such material, I suggest she simply click through to that interview, watch it, and compare it with what Seth wrote me and Mr. Mann about what he saw in it.Now why would Seth misrepresent something so utterly? One hypothesis is that he used the word “only” in his 12 questions in an attempt to deceive the reader, and when I called him on it, he responded (under Mr. Mann's eye on the cc: line) with a further obfuscation (that I had said, “nothing”), hoping that Mr. Mann would not take the time to click through and check for himself. There may be some other hypothesis that would allow one to categorize this as an honest mistake, but for the life of me I cannot come up with it on my own. I am all ears, and open of heart, so feel free to postulate such a hypothesis. Until I hear it, I (and, I fear, every reader who takes the time to click through to watch that section of the interview, and compares it with Mr. Jayson's two false statements), must assume that Mr. Jayson is going to lie about things he think he can get away with, and hope no one checks his work, and when caught, will spin further deception, all of which is amply illustrated in the above example, and which any reader can easily check for herself.Yes, I confess I am at a loss as to know exactly how much civility is owed to someone who is purposefully deceitful in the manner detailed above. But still, I answered his 12 questions civilly. When I wrote last night that I would use these boards to address questions others had raised, he peppered it with three more postings asking inane questions, repeating false-premised questions, and peppered with “Numbers, please” condescension. I think that, given these circumstances, I was rather thick-skinned and even slow to decide, OK, time to rip this guy's mask off (which I believe I successfully accomplished, given the response of others on this board, and your decision not to confront a single one of the actual issues outstanding between Mr. Jayson and me). Moving on to point #2, Atlanta Don. You write:“You even talk out of both sides of your mouth in one sentence: <I believe that even the detractors here (as opposed to Yahoo) are well-intentioned, and are truly just calling it as they see it (though of late, there do seem to be someone with an agenda, eh?)>”Now consider the sentence:“I love champagne (but Crystal gives me heartburn).” Is this, “talking out of both sides of one's mouth”? Could be. But I prefer to think that most competent speakers of English would understand this utterance to mean, “Generally speaking, I love champagne, but one type of champagne, Crystal, gives me heartburn” (and perhaps, “so I avoid it”). Similarly, the natural way to chunk the sentence you quote is, “In general, I believe the detractors here are well intentioned, but there does seem to be someone here with an agenda.” If you want to claim that there is some deep inconsistency in my statement you are free to do so (but I doubt anyone else is convinced).Oops, I just did it again. How 'bout that?VR,PatrickPS To readers other than Atlanta Don and Seth Jayson: I can continue parsing sentences to unravel this stuff, but it is pretty lightweight. In a sense, continuing to do so may even fulfill the wishes of the miscreants, which is to misdirect attention away from the important issues about the company, the markets, and the law that bear discussion. My experience so far has been that Fools, whether they agree with me or not, generally don't get swept up in this kind of stuff, which is why these message boards are so much better than anyone else's. So for example, the claim about “civility” Don made was one worth addressing, but the “both sides of your mouth” one was sophomoric, and in the future, I am going to assume that I don't have to waste time addressing such issues. After all, I do have a day job.
Randy,Frankly, I think the idea that this naked short conspiracy directly harms OSTK is pretty specious.If OSTK were to issue, say 2m shares, through a public offering, then it would have no affect on the stock price? ;-)Jim
Thus there are about 200k shares not owned by people with whom I am on a first name basis, but those people with whom I am not on a first name basis THINK they own somewhere between 7 million and and 12 million shares. This was the point of that presentation,I'll admit then that I must have misunderstood that point (and maybe I still do).Regarding the people whose actual ownership may be in question, this is just a symptom of the legal, established trading system. To take a simplistic example, say a company has three shares outstanding. At the IPO, you, me and my buddy Frank each buy one share.You get a certificate for yours and put it in your sock drawer. I hold mine in a margin account, and Frank keeps his in the cash side of his brokerage account.Bob wants to short the stock, so he borrows my share from my broker and sells it on the open market to say AtlantaDon.Okay so now there are four shareholders -- you, me, Frank, and Don -- for three shares. How can that be? Well that's what happens when shares get borrowed.Say the company pays a $1 per share dividend. The company pays you, me, and Frank, since we hold the shares. Don gets his dividend from Bob, who pays "cash in lieu of a dividend".Say that it is time to vote on a company issue. Don doesn't know it but he doesn't really get to vote since he bought a borrowed share. The rest of us get to vote.This is obviously a very simplified example, since actual trading occurs with millions of shares held by numerous brokerages, with settlement requiring usually 3 days, and all kinds of wheeling and dealing at the various stock desks, and cases of wine and Yankees tickets passed around, with final settlement supposedly occuring at the DTC.However, this "extra" ownership can occur without any naked shorting or nefarious dealing. So what I'm missing is how your share count analysis supports the idea of naked shorting, or any problem with either trading or ownership of OSTK stock.I do, by the way, think that there is intolerable slop in the system, and the idea that a company can be on the reg SHO list but not know how many fails there are is a gap in the integrity of the system. But, as far as I can tell, the concerns raised by you and Bob O'Brien don't, to me, proove or even suggest that either the trading or ownership of these stocks including OSTK and NFI is in question.Randy
I certainly want Dr. Byrne to fight these issues on his or Overstock.com money. We are both shareholders, and neither of us wants our shares devalued by naked shorts or any other scheme. I just hope if the shares are shown to be devalued that the money is proportionally returned to me, so that I can decide what to do with it. nemaline
If OSTK were to issue, say 2m shares, through a public offering, then it would have no affect on the stock price? ;-)Sorry but I don't understand how your question relates to naked shorting, or shorting, or OSTK trading or ownership. Can you explain?T
To wit:http://www.post-gazette.com/pg/05243/563078.stmAnd short sales account for more than 106 percent of the $1.2 billion Dow Jones Real Estate fund's shares. Short-sell percentages can rise above 100 percent of a fund's shares outstanding, because one share can be borrowed and sold several times. Elsewhere, for instance, short sales of the $874 million iShares Lehman 20+ Year Treasury Bond Fund added up to 136 percent of the fund's shares outstanding this month, down from 255 percent in mid-July. The implication: Pros are betting rising interest rates will harm bonds.T
T (Randy),"If OSTK were to issue, say 2m shares, through a public offering, then it would have no affect on the stock price? ;-)"Sorry but I don't understand how your question relates to naked shorting, or shorting, or OSTK trading or ownership. Can you explain?You made a lot of assertions that were weak but I decided to respond to the one that asserted "the idea that this naked short conspiracy directly harms OSTK is pretty specious." We all know that increasing the supply of a stock will drive its price down, which is why we react negatively when one of our holdings issues a secondary offering. We expect the price to decline, though we have no idea how much it will drive down the price.Shorting is such a powerful tool because it creates supply, which helps drive the price down, so there's some positive feedback in the process. If the short borrows the shares to create a legal position, at least there's the carrying cost associated with the postion. In OSTK's case, the short interest reported by the NASDAQ 6.547m shares, equal to Jim
(Continuation)... 65% of the float. Although this number might be possible in theory, it indicates naked shorting in practice and the short's haven't borrowed the shares. This high short position is reducing the price of OSTK, without a doubt.I closely follow a semiconductor company (Cree) was has been subject to similar attacks by some of the same characters over the year. I hope Patrick wins his law suit because it might case some real behavior changes on Wall Street (and at the SEC)Jim
We all know that increasing the supply of a stock will drive its price down,Well, sometimes, and only for a short time. Yes if 2M shares of Overstock were dumped on the market suddenly, the price would fall through the floor until market forces stabilized, since typical daily volume is only 500K shares. But, when these offerings are made, they are underwritten and introduced into the market in a controlled fashion to avoid any such disruption. Many share issuances actually increase the value of the company and the market adjusts accordingly.I agree that theoretically, if naked short selling did occur and someone was able to manufacture shares equal to a significant portion of each day's trading volume and sell them with no recourse, that trading could be manipulated. I don't for one think this is happening and haven't seen any credible evidence that it is. As I pointed out earlier, to do this for more than a few days would require tens of millions of shares.In any case, if OSTK shares have been harmed, why are they up 300% and trading at fair value? Where is the harm exactly?Randy
Randy,I agree that theoretically, if naked short selling did occur and someone was able to manufacture shares equal to a significant portion of each day's trading volume and sell them with no recourse, that trading could be manipulated. I don't for one think this is happening and haven't seen any credible evidence that it is.Then take a look at this web site: http://www.nasdaqtrader.com/aspx/regsho.aspx. It contains a list of companies where for five consecutive settlement days there has been "failure to deliver." OSTK is on the list.Naked shorting is not just a theory.As I pointed out earlier, to do this for more than a few days would require tens of millions of shares.Your justification was less than compelling.In any case, if OSTK shares have been harmed, why are they up 300% and trading at fair value? Where is the harm exactly?This is like asking someone how much money they have left after a robbery. The more important question is how much was stolen.Also, how do you know they are trading at "fair value."Jim
So when does the truth come out, i.e., when does the suit go to court?Does everyone feel that this will answer all of the lingering questions?Does winning the lawsuit only expose the "miscreants" (a word I find myself using now, thanks for that Patrick), or does it mean money will also be awarded and applied to OSTK's legal expenses?
Then take a look at this web site: http://www.nasdaqtrader.com/aspx/regsho.aspx. It contains a list of companies where for five consecutive settlement days there has been "failure to deliver." OSTK is on the list.So what? How does that constitute the stock being "harmed"? Yes, there are some fails, and yes, OSTK has been on that list for far too long. But please explain in detail how this means the stock is harmed, and what your definition of "harm" is. A stock going up 300% in 3 years doesn't seem harmed to me.T
givemeabreak,So when does the truth come out, i.e., when does the suit go to court?I'm not a lawyer, but it'll more than a year to go to trial, maybe two.Does everyone feel that this will answer all of the lingering questions?I doubt it will answer all questions, but it could expose some interesting behavior on Wall Street....does it mean money will also be awarded and applied to OSTK's legal expenses? OSTK is not paying the legal expenses. The lawyer(s) representing Patrick and the other plaintiffs has taken the case on contingency.Jim
On contingency, meaning the lawyer gets paid only if they suit's outcome produces a cash award?So, if there is no direct expense to the company, why is everyone so fired up that this is costing OSTK money (and the shareholders) to fight this battle? I assume they mean the indirect cost of being distracted by the lawsuit? To me that is a cost of doing business. I spend plenty of time in my business doing things that don't direcetly make us money. And some of those activities don't have a hard dollar amount that can be expensed.Many times those activities are to help out the company down the road. I guess this situation can best be summed up with: vote with your dollars!
JamesWAllen writes (in part):OSTK is not paying the legal expenses. The lawyer(s) representing Patrick and the other plaintiffs has taken the case on contingency.I reply:Let me introduce myself. I have no dog in this fight. Neither I nor (as far as I know) any member of my household holds any position in OSTK. Neither I nor any member of my firm represents OSTK in any capacity. And as far as I know (I have not run a conflicts check to verify this), my law firm does not represent anyone affiliated with any of the defendants. If similar lawsuits were to be filed, I could easily see our law firm representing either side. In short, I believe that I'm about as neutral as it's possible to be.I've read the Complaint. I'm a California attorney with twelve years of litigation experience. My first case resulted in a jury verdict for my client against Microsoft for $120 million. This is a long-winded way of saying that I know, from experience, what it takes to wage a fight of this magnitude.I have serious concerns about Overstock's position in this lawsuit, as currently framed in the Complaint. The unfair competition claim has a serious flaw -- you can't get restitution unless the miscreants got money directly from you. (Korea Supply Co.) I don't see any allegation that either Overstock.com or the individual plaintiff ever paid any of the defendants a dime. That limits the potential relief to injunctive relief and possibly attorneys' fees -- no monetary recovery will be possible.But the news is much worse than that. Plaintiffs' standing is in serious jeopardy as a result of the passage of Proposition 64. That proposition amended section 17200 (the unfair competition statute) to require that anyone asserting such a claim be able to demonstrate injury. I believe that amendment will be fatal to Overstock's claim in its entirety. Overstock's shareholders may well have been damaged by the alleged misdeeds (assuming they can be proved at trial), but Overstock itself was not.The negligence claim also strikes me as quite weak. Simply put, I don't see any basis for alleging that any of the defendants owe any of the plaintiffs a duty, and duty is an essential element of a negligence claim.Finally, I would be seriously concerned that the defendants will file an anti-SLAPP motion. Fundamentally, the lawsuit appears to be about what defendants are saying on a matter that is at least arguably of public concern. In other words, plaintiffs are suing defendants because they don't like the way in which defendants are exercising their First Amendment rights. Those are precisely the circumstances in which an anti-SLAPP motion is appropriate. If an anti-SLAPP motion is successful, (a) the lawsuit is over, then and there, with no opportunity for amendment or further discovery, and (b) plaintiffs will owe defendants their attorneys' fees. Even if the motion is unsuccessful in the trial court, the denial would be an appealable order, and the case is stayed until the appeal is resolved. So add at least six months to any estimate of time to trial.Notice that this analysis would hold even if the Court were completely convinced that every fact alleged in the Complaint were true and wrongful. Under these facts, I don't see that the Complaint alleges a remedy that's available to Overstock. Its stockholders may have recourse, but the company itself does not. --Bob
I don't see that the Complaint alleges a remedy that's available to Overstock. Its stockholders may have recourse, but the company itself does not.Hi Bob,Isn't there a precedent for when multiple members of a class could bring a suit, but it is impractical to do so because the cost to each is so small, then a group they belong to can bring it for them (I remember something about some conservation society representing its members who would be affected if they lost some national park space). Couldn't the complaint work in that way? My other argument would be, since shareholders are business owners, does not the business have a right and duty to represent their interests in court?Interested in your thoughts,Harlen
Lee,Thanks. I will address Tom directly, but while I note that I DO think Tom's question is indeed fair, and mirrors what I ask myself, I still thank you for your belief and support.More importantly, nothing, and I mean nothing, makes me happier than when I hear from people who got in the stock back in the day (November 03: what was it, about $13?) and kow I made them some sheckels. I have worked since college making money for friends: it is just as nice doing it for complete strangers at this point.Patrick
Har1en writes (in part):Isn't there a precedent for when multiple members of a class could bring a suit, but it is impractical to do so because the cost to each is so small, then a group they belong to can bring it for them (I remember something about some conservation society representing its members who would be affected if they lost some national park space).I reply:Such a doctrine exists, but it wouldn't apply in this circumstance, and was not alleged in any event. A class action would have the same effect, but that has other disadvantages and wasn't alleged. --Bob
Randy,I think we are close to agreement. If, for those 200,000 shares (assumed), non-close-friends think they own 7 million, then I am willing to say, yes, it could happen without naked shorting, just some slop in the system, etc.To take another extreme: if for those 200,000 shares there are 12 million that folks think they own, then I say, that starts sounding like it goes beyond slop in the system. Not sure if you agree there.If, for those 200,000 shares, there are 20 million that folks think they own, I would say, that is definitely a result of bad action. Presumably you agree that there is SOME number that become incapable of being explained by slop, right?In any case, I think the ratio of the two is interesting for people to note, even if it is only 7 million to 200,000 (which seems to me to be the minimum).Patrick
Notice that this analysis would hold even if the Court were completely convinced that every fact alleged in the Complaint were true and wrongful. Under these facts, I don't see that the Complaint alleges a remedy that's available to Overstock. Its stockholders may have recourse, but the company itself does not. --Bob Could that be why Overstock added Mary Helburn to the lawsuit?As a single shareholder she record a loss on August 5th, 2005 for 500 shares at $15.00 a share.Page 5 of the complaint:http://www.shareholder.com/overstock/downloads/OSTKcomplaint.pdfMaybe part of the strategy.DISCLAIMER: I am not a lawyer and I do not play one on TV.-vex
vexas1 writes (in part):Could that be why Overstock added Mary Helburn to the lawsuit?As a single shareholder she record a loss on August 5th, 2005 for 500 shares at $15.00 a share.I reply:I'm pretty confident that the attorneys did not accept this case on a contingency basis in order to recover a few thousand dollars for Mary Helburn. This simply does not strike me as a well thought out pleading. --Bob
I'm pretty confident that the attorneys did not accept this case on a contingency basis in order to recover a few thousand dollars for Mary Helburn. This simply does not strike me as a well thought out pleading. --Bob That's right I forgot it is about the money.-vex
That's right I forgot it is about the money. -vexI do not know how that sounded, but when I read it sounded a little "smart" and I did not mean it that way.I think you have to ask Patrick or his lawyers what amount they expect to recover and if this is more principle or a financial lawsuit. Which I think is the very discussion that is occurring in this forum as well as who exactly should fund it.I think his lawyers can be reached here, but I might be wrong.http://www.shareholder.com/overstock/downloads/OSTK050812.pdfSlide 40.-vex
givemeabreak,On contingency, meaning the lawyer gets paid only if they suit's outcome produces a cash award?Yes.So, if there is no direct expense to the company, why is everyone so fired up that this is costing OSTK money (and the shareholders) to fight this battle? I assume they mean the indirect cost of being distracted by the lawsuit? I think a lot of people jump to conclusions and assumed that OSTK was paying the litigation costs.Jim
James,Unless I'm mistaken -- and I may well be -- I think Overstock did fund the initial aspects of this. I am going on recall here, because I'm off to catch a flight. But I believe that it has been transitioned to contigency but that Patrick said the "initial costs were high" and I believe that came from Overstock. Finally, I think one has to attempt to factor in the costs to the organization in human/creative capital. There will be a certain time spent on a legal battle that will be lost to a) improving the competitive stance against eBay and Amazon.com, b) preparing for the broadband revolution, c) fashioning a brand that communicates domination of online closeout retailing. I don't what that intellectual capital cost is to shareholders, but I don't think it's zero.Again, this does not say to me that there is no upside for Overstock shareholders. I just haven't heard any estimate -- wild or otherwise -- about the actual costs versus the actual potential rewards for the outside owners of OSTK.Foolish best,Tom Gardner
Tom,Unless I'm mistaken -- and I may well be -- I think Overstock did fund the initial aspects of this...Yes, that was Patrick's answer to one of the dozen questions.The law suit will be a burden on Overstock management, but I think it is a productive way to respond to the negative publicity and to defend the share price.Jim
You get a certificate for yours and put it in your sock drawer. I hold mine in a margin account, and Frank keeps his in the cash side of his brokerage account.Bob wants to short the stock, so he borrows my share from my broker and sells it on the open market to say AtlantaDon.Okay so now there are four shareholders -- you, me, Frank, and Don -- for three shares. How can that be? Well that's what happens when shares get borrowed.Say the company pays a $1 per share dividend. The company pays you, me, and Frank, since we hold the shares. Don gets his dividend from Bob, who pays "cash in lieu of a dividend".Say that it is time to vote on a company issue. Don doesn't know it but he doesn't really get to vote since he bought a borrowed share. The rest of us get to vote.This is obviously a very simplified example, since actual trading occurs with millions of shares held by numerous brokerages, with settlement requiring usually 3 days, and all kinds of wheeling and dealing at the various stock desks, and cases of wine and Yankees tickets passed around, with final settlement supposedly occuring at the DTC.Question:Tidman what happens when you decide in this example to move your margin stock to cash or even get the certificate in Paper form? If Patrick's is in paper.Frank is in cash.You are now in paper what happens to Don's stock?It would seem that it would be necessary to get Don's stock back. How LONG does the broker have to do so? Is there an indefinate time frame to do so?Thanks,vex
Question:Tidman what happens when you decide in this example to move your margin stock to cash or even get the certificate in Paper form?If Patrick's is in paper.Frank is in cash.You are now in paper what happens to Don's stock?The broker gets my request, and looks around for a share with which to satisfy my request. If he has shares in inventory, he could use those, but in this case he doesn't. So he finds that the only available share is loaned to Bob, and he has the option to "call back" the share. This means that Bob needs to abruptly close his short position and give the share back so it can be "delivered" back to me, sort of like a margin call.Bob turns around and goes to the market to buy a share, but lo and behold, there aren't any trading, since they are all out of circulation. This would be a "fail to deliver" (i.e. FTD) -- the term we have heard so much about. So the system is wedged out of balance and won't be back in balance until more are put into circulation one way or another.This is an oversimplified example though. "The borrow" gets tight before this happens, as the supply of short shares starts to run out, and additional shorting is prohibited, but is almost never completely exhausted. Instead of 3 shares, one broker, and 5 shareholders, imagine 20 million shares, 1000 brokers, and 1 million shareholders. Also, there is a 3 day delay between trade and settle, so it is more complex than all of the transactions happening in real time.Randy
Dear Lawrence,Answers below in CAPS.Patrick,Tom asked me to reply to your comment about Reg FD: THANK TOM FOR ME.I'm the Fool's general counsel, and 1) it would be wrong for me to try to give you legal advice; I UNDERSTAND2) Seth Jayson isn't a lawyer and can't give you legal advice either; I UNDERSTAND and 3) you have plenty of lawyers who are smarter than I am DON'T BE SO MODEST!, but I can tell you that we've never had any discussions with the SEC as to whether our (or anyone's) message boards would be sufficient "public disclosure." OK, THAT IS WHAT I NEEDED TO KNOW. Consequently, you will need to decide how much information you feel comfortable posting. I UNDERSTAND. I'm happy to talk to any of your lawyers, if that will help. NO NEEDThank you for participating in the Fool Community.Lawrence GreenbergTMF Law "I mistakenly thought when I started posting here that these messages were open for all in the public to see. I did not realize that this was a subscriber-only portion of the website.That said, I do not think I have said anything here that was a Reg FD violation, but I will be extra cautious about respecting it in the future, and just addressing points that are already public, or giving all investors here the same insight into the company that institutions ask of me.Best to all Fools,Patrick
Tom and Bill know this is really me, and would have shut Hannibal100 down if it were not.Patrick
Dear Bob,You have made good first-blush arguments, and there is no reason you would have to make better ones without more knowledge of the case. Respectfully, the most noteworthy of your claims concerns Korea Supply Co. v. Lockheed Martin. My reading of the California Supreme Court decision is that they used Korea Supply Co. to clarify that the California legislature had not passed UCL to enable nonrestitutionary disgorgement of profits, which is what Korea Supply was seeking. I believe our case has solid distinctions from Korea Supply. The exact nature of those distinctions is not something I am going to explain here, for reasons that you as a lawyer will understand, but please know that I have considered exactly these arguments myself before embarking on this course of action.Respectfully,Patrick
Lee,Thanks. I will address Tom directly, but while I note that I DO think Tom's question is indeed fair, and mirrors what I ask myself, I still thank you for your belief and support.More importantly, nothing, and I mean nothing, makes me happier than when I hear from people who got in the stock back in the day (November 03: what was it, about $13?) and kow I made them some sheckels. I have worked since college making money for friends: it is just as nice doing it for complete strangers at this point.PatrickDear Patrick,I don't think I'm representative of the typical poster on this OSTK board. My sense, admittedly without having read the hundreds of posts, is that for every one of your dissenters and/or obtuse scallywags here, there are a handful of highly skilled and informed individual investors who take a real interest in the battle that you are waging, and who delight in this rare opportunity to rub e-elbows with a controversial CEO (in real time!). I am neither, but I do have a "dog in the fight", in the sense that I've been an OSTK holder for more than 2 years after the Hidden Gems recommendation (my second investment ever, after FDX!).Since I actually AM a co-owner of the company (I realize that that is actually uncertain), I'll share my thoughts about your posts here on TMF with the CEO. You seem to have taken some pleasure in providing extended direct and indirect responses to at least one miscreant rather than answering some of the questions (i.e. those posed by TomG and Bob the lawyer) that are more important to an actual OSTK investor such as me (or is it "I"?). In fact, you appear to have been "swept up in this kind of stuff," to borrow a phrase. http://boards.fool.com/Message.asp?mid=22965711This is of concern to me. Your posts, unwittingly, may in fact be an adequate answer to TomG's questions regarding your priorities. As is often said, "Actions speak louder than words".I am not in business. My father was. He advised me not to do my own investing because, "Doctors think they can do everything. Leave it to the professionals." Fortunately, I didn't listen to him, and in the short time that I've been an investor I've doubled the S&P 500 return with the help of the Gardners. The valuable advice from my father that has served me well has been not to let emotion get the best of you in the stock market. I like OSTK as an investment, particularly because of your openess, transparency and honesty as the CEO. Frankly my fear, however, is that your passion in this battle with the "naked shorts" (which until I came across you was another phrase for see-through underwear) will overtake your judgment as my CEO, if that hasn't happened already. Will *your* emotion get the best of me?Let me finish by letting you know that I remain an admirer, but I'm not sure I want to remain an owner. Hopefully you'll understand why, and address some of my, Tom's, and lawyer Bob's concerns.Regards,Bob
Oh, dammit, Patrick.So, it turns out you DID respond to TomG and I missed it, and whilst I was composing my message, you were replying to Bob the lawyer. My apologies for missing them!Bob
No worries. In fact, I was on the verge of responding to you with links to those other responses, and just cuaght myself, lest we would have disappeared into a black hoe of asynchronous exchange.Hope my responses helped, Zim.And Tom - thanks for the kind words. I am loving being here and hashing this out with Fools. And I take your subtle point, and will promise to be more civil. I am just tired of getting bashed all the time, but that is no excuse for lack of civility. Thanks.Patrick
Hope my responses helped, Zim.Thanks, and they did. I missed your response to TomG because I was looking for it in this thread where he posed the questions. Again, sorry."in my household there were three sacred things: the Church, the US Constitution, and shareholder rights."Had me nervous. I'm an atheist."Literally, that is the Holy Trinity According to Jack and Dorothy Byrne.Feeling better. That's sacrilegious."But for many months I have gone to bed knowing, “Somewhere in America there is a grandmother eating dog food tonight so that some asshole on Wall Street can drive a new Porsche.” "Now I admire you too much to part with my shares.Thanks, Patrick. And good luck.Bob
Hannibal100 writes (in part):The exact nature of those distinctions is not something I am going to explain here, for reasons that you as a lawyer will understand, but please know that I have considered exactly these arguments myself before embarking on this course of action.I reply:Here's the thing. You and your lawyers undoubtedly know much more than I do about your case. (At least, for your sake, I hope you do.) But right now, I know exactly as much about your case as your judge does. So if my reaction is that your case is vulnerable to a SLAPP motion, and that you're running headlong into Korea Supply Co., that's likely to be your judge's reaction as well.Will Overstock.com be making further pleadings available as they're filed? I believe you've piqued my curiosity enough to follow this case. --Bob
Will Overstock.com be making further pleadings available as they're filed? I believe you've piqued my curiosity enough to follow this case. --Bob yes.
Patrickwish you would stick with the day job.
Bostondude,I really wish YOU would stick to your day job.No offense but thats not really contributing the discussion here.Tom
TomI am not trying to be a wise acre.Patrick's day job is to improve the intrinsic business value of OVERSTock.it is a full time jobHard to see how this activity and lawsuit contributes.I am an owner and enthusiast of Overstock
Patrick's day job is to improve the intrinsic business value of OVERSTock.it is a full time jobSay's you. Patrick probably defines his roles in his own way. You could ask him how he defines his role or can can continue to tell CEO's how to do their job and how you define it.I think it WOULD or COULD be a full time job, if the SEC and DTCC did theirs! CEO's should be able to focus on the company that is under their management WITHOUT having to WORRY about manipulation in the share price. Unfortunately someone is not doing what they are paid to do. Who is going to pick up the slack?-CB
PatrickIf you have a mind to, would you comment on message #884 and the other messages in the thread that suggest that the number of shares held in certificate form plus the number reported as short might legitimately add to much more than the issued and outstanding stock because of borrowing and reborrowing etc. Does such a situation necessarily mean there are miscreants?anyone?an owner and supporter of Overstock.
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