When the Bureau of Economic Research declared that the recession had officially begun in December 2007, the entire retail sector shrugged its shoulders and said, "No kidding."
Shares of companies that deal directly with the consumer, except for the deep discount retailers, have known for some time that the economy was struggling. Sales have been declining steadily and, with the deteriorating operating environment, shares of the retail stocks have been absolutely crushed.
The entire retail group is one of the biggest losers in the market this year, with some stocks down 80% to 90%.
That said, those retailers that offer big discounts, including Wal-Mart (NYSE: WMT) and Big Lots (NYSE: BIG), are doing much better on a relative basis.
Shares of Overstock.com (NASDAQ: OSTK) fell sharply on Friday after the company reported yet another quarterly loss and disclosed that it would have to restate its earnings. In the press release announcing the restatement and earnings, CEO Patrick Byrne told investors that "The total effect of the errors over the five and a half year period (during which we generated nearly $3.5 billion in revenues) is a reduction in revenue of $12.9 million and a $10.3 million increase to cumulative net loss."
In the grand scheme of things, this isn't material. And there's certainly no reason to think this is anything other than an error -- a result of Overstock being a sloppy, poorly run company with a distracted CEO battling the imaginary demon of naked short selling, but not accounting "fraud."
Here's the best part: One of the imaginary demons that Patrick Byrne was out battling was Gradient Analytics, a small independent research outfit that Overstock sued for putting out negative research reports. Earlier this month, the lawsuit was settled. In that press release, Overstock said that "Gradient now believes that, to the best of its knowledge, Overstock's stated accounting policies did in fact conform with Generally Accepted Accounting Principles (GAAP) and regrets any prior statements to the contrary."
Here's my question: was Overstock aware of the need for an earnings restatement when it settled the lawsuit? Or did it push through a settlement just before it disclosed that Gradient's allegations of accounting issues were proven to be right on the money? We may never know.
The larger point is that Overstock shareholders would be much better off if Patrick Byrne devoted his energy to managing his company, not lashing out at anyone who says mean things about him.
I've received a few chuckles for investment directions I've suggested in the past, but if you care to review a couple of my previous generalities, I believe that my record has held up fairly well.
I submit for approval the following investment angles for the balance of 2008 and possibly beyond:
Have I suggested investments in water holdings? Yes, I do believe that I have. I believe that going long in water stocks could be an investment hedge of the decade. I also suggest a look into the desalination technology from General Electric Co. (NYSE: GE).
I'd think it's a good idea to stick with the railroads, such as Burlington Northern Santa Fe (NYSE: BNI). I claim that, with all things given, for now, railroads can't fail. Conversely, I think it's a good time to back away slowly from trucking. I think misery lies ahead there.
Overstock.com (NASDAQ: OSTK) reported impressive numbers yesterday -- and by impressive numbers, I mean another loss years after projections of profitability -- and its shares shot up more than 30%.
Gary Weiss reported on the less optimistic part of the press release that the company issued, but I'd like to take a second to point out something to investors. Even if the company's fundamentals are improving, this is still one of the creepiest public companies on the planet and it's wasting shareholder money on its creepy stalking campaigns.
If you go to DeepCapture.com -- CEO Patrick Byrne's website for trashing critics including Gary Weiss, Jim Cramer, Eliot Spitzer, and a couple of message board posters you've probably never heard of -- in the upper right hand corner of the site, you'll see a little ad: "Click here to shop Overstock.com. 5% of your purchase will go to support this effort." That link brings you to http://www.overstock.com/?TID=deepcapture where, presumably, any order you make will be tagged by the company to funnel 5% of the sale to the "effort."
What exactly is the money being used for? Former white-collar criminal and Overstock-critic Sam E. Antar received an email from former journalist Mark Mitchell: "I am writing a story about short-selllers (sic) and their relationships with independent researchers and the media. I would like to give you the opportunity to respond to various allegations regarding your work." He goes on to say that the article will be published on DeepCapture.com.
So here's the question I have: Why is Overstock.com's board of directors allowing Patrick Byrne to funnel money from the company's sales to a pet project aimed at pseudo-investigative pieces on short-sellers and their relationships with independent researches and the media?
If Patrick Byrne wants to use his own money to wage his self-proclaimed jihad, that's his business. But he should leave corporate assets out of it.
Byrne is usually proud of the company's failures, but the announcement of the latest law enforcement investigation was buried deep in a press release about the latest set of quarterly losses: On April 15, 2008, we received a letter from the Office of the District Attorney of Marin County, California, stating that the District Attorneys of Marin and four other counties in California have begun an investigation into the way we advertise products for sale, together with an administrative subpoena seeking related information and documents. We follow industry advertising practices and we intend to respond fully to the subpoena and cooperate with the investigation.
This investigation is in addition to the ongoing investigation by the SEC, as well as the litigation between Overstock and Gradient Analytics. Gradient sharply criticized Overstock in its research reports and Byrne and company cried that the reports were not true. (Oddly enough, the company still has not turned a profit several years later, and is still a horrible investment.)
Note to Patrick Byrne: Those who have bad things to say about Overstock, its business model, its operations, and its never-ending financial losses aren't necessarily short sellers who are trying to profit off bad news. Many of them are realists who have figured out how awful your company is. Sorry, but sometimes the truth hurts.
If you've read my posts on Overstock.com, Inc. (NASDAQ: OSTK) CEO Patrick Byrne's allegations of a vast conspiracy of market manipulation involving a character from Star Wars and crooked reporters, you know that I'm a bit skeptical. But for this post, let's put all that aside and assume that Patrick Byrne's whacked out conspiracy theory is right on: there is indeed a cabal of hedge fund managers and "captured journalists" working overtime to drive down his company's stock price.
In the comments section of his latest blog post accusing Gary Weiss of being a Scaramouch, someone identifying himself or herself as "The Good Samaritan" posted the following (edited for rambling):
Patrick...been following your yeoman work in this area ... I must say it mirrors my own experience over the past several years with Universal Express, Inc. and Richard Altomare ... you should know that Altomare and his general counsel are about to rain on their parade in the 2nd circuit court very shortly...since USXP is so far along in their particular battle (having already won two judgments against the naked shorts), and most who follow this area admire you for your fearless position against the entrenched low-lives operating this scandal for the misguided forces on wallstreet ... do not forget the small but equally worthy fights also going on in this vast battlefield...
A little bit of background on Universal Express and Richard Altomare: The company has massively diluted shareholders while dumping unregistered securities on the market -- and has racked up an accumulated deficit of nearly $100 million in the process. Remarkably, all that dilution and all those losses have come on paltry revenue -- just over $1 million in 2006.
For the past several years, eBay (NASDAQ: EBAY) has pretty much cornered the market for online auctions. It has created such large barriers of entry, that smaller sites have difficulty breaking into the market. But this week's seller boycott on eBay has opened the door for some smaller companies.
We took a look earlier this week at the reasons behind the current eBay strike. We made note at that time, that some of your bigger name competitors, such as Overstock.com (NASDAQ: OSTK) were going to be capitalizing on the sellers' strike, but now we are also starting to hear about gains made in some smaller companies that you may have never heard of before.
In a recent article from Seattle Post-Intelligencer, two Washington-based companies said they have been loving all the negative attention that eBay has been receiving as of late.
If you are one of the upset eBay (NASDAQ: EBAY) sellers who has decided to boycott the popular e-commerce site this week, don't think that you have to lose a whole week's worth of business. eBay's competitor Overstock.com (NASDAQ: OSTK) is looking to reel in your business.
In case you missed it, eBay has definitely been ruffling the feathers of its users with the company's newly announced rate changes, and its sellers have decided to join forces and boycott the site all this week. Well, one site's misfortune could be another site's gain, as Overstock.com is trying to lure in disgruntled eBay users by offering them up to 50% off initial listing fees all this week.
While Overstock is officially claiming that the promotion falling during the eBay strike was just a coincidence, you really have to wonder how much truth there is in that. With eBay users showing their disgust over the new fee schedule this wekk, it seems like perfect timing for competitor Overstock.com to jump in and offer such a hefty discount. You can find more of the promotional offer details as laid out on the overstock website.
On Friday December 7th, Overstock.com, Inc. (NASDAQ: OSTK) CEO Patrick Byrne appeared on CNBC and said that the company was "having a pretty nice Christmas." But he also said that fourth quarter (Q4) GAAP net income would be between -1% and +1% of revenue due to aggressive sales promotions.
The chart at right shows how the stock has responded since that day, losing more than 25% of its value. One shudders to think what would have happened if Overstock had had a "pretty bad" Christmas.
But rather than accept responsibility for his company's inability to deliver any kind of fundamental strength to shareholders, Patrick Byrne has played the diversion card: In a rambling press release put out on Thursday morning, he complained that the company has been on the SEC's REG SHO list for 666 consecutive trading days: "Apparently, the SEC is not serious about enforcing the close out provisions of Regulation SHO or stopping 'market manipulation that is clearly violative of the federal securities laws.'"
Maybe Overstock is being manipulated by short-sellers. But instead of whining about it, Byrne should shut them up the way that good companies to: Deliver on the fundamentals. A "pretty nice Christmas" that might be break-even and sends the stock tumbling doesn't count.
Nobody likes a whiner, and Byrne's track-record of under-performance and incessant complaining gives investors little reason to be optimistic -- unless of course they're short the stock.
If you want to get Patrick Byrne's take on naked short selling and the alleged conspiracy (involving class-action lawyers, hedge funds, and journalists) against his company, Overstock.com (NASDAQ: OSTK), then Deep Capture, the Movie is a good place to get it.
In the 45th slide of the presentation, to provide evidence of the journalistic conspiracy, Mr. Byrne plays a clip of former New York Post business editor Dan Colarusso speaking to Herb Greenberg, Joe Nocera, and Dave Kansas: "When I think of Patrick Byrne ... We have barrels of ink and stacks of money and all the resources in the world at our disposal, legal and, indeed our media, to crush him."
Is this indicative of a conspiracy? Speaking on Mad Money with Jim Cramer about Mr. Byrne, Herb Greenberg said that "the real conspiracy, if there's a conspiracy, is a conspiracy by these people to silence the critics."
Exactly. And here's a tip for Mr. Byrne: Journalists tend to be big believers in free speech. When you attack their ethics, attempt to intimidate them into silence, and an employee of your company sets up a website to smear them -- that angers journalists, and they jump to each others' defense.
Was there a conspiracy of journalists against Patrick Byrne? I seriously doubt it. But Byrne's efforts to silence his critics have made him an enemy of journalists and lovers of the First Amendment everywhere. Maybe that's the conspiracy.
One of the hardest things to do as an investor is sort through the hype: the financial media is a 24-hour operation and, I would argue, almost none of it is relevant to what really drives investment returns over the long run. But shrewd promoters know that, in the short run, hype and fluff can drive stock prices.
To help investors separate the cream from the crap, I've developed my own formula for determining how promotional a company's management is, relative to its fundamental strength. Ladies and gentlemen, I present the E/PR ratio. The formula for calculating it is simple: E/PR= Earnings per year/Press Releases per year.
Let's look at a couple examples. First, Berkshire Hathaway (NYSE: BRK.A), Warren Buffett's conglomerate. In 2006, the company put out 16 press releases and earned about $11 billion. So the E/PR ratio is 687.5 million. For every PR the company put out, it earned $687.5 million. The press releases generally concerned major acquisitions, Buffett's record-breaking pledge to the Gates Foundation, and quarterly reports. That sounds like a business that's focused on creating value for shareholders through operational success -- and letting the story tell itself. So far it's worked out well for shareholders, as investors who put just a few thousand dollars with Mr. Buffett at the beginning of his career are worth millions.
After Whole Foods Market (NASDAQ: WFMI) CEO John Mackey bizarre antics prompted an SEC investigation and widespread media hoopla, the company's board of directors has decided on a new policy. Top executives and directors will now be explicitly prohibited from posting on online forums about the company, its vendors, or its competitors, except on Whole Foods-sponsored sites.
Happily, the change does not prohibit them from posting about other topics. So Mr. Mackey will still be able to compliment his own hairstyle while posting anonymously.
It's kind of bizarre that Whole Foods even had to add this to its code of ethics, and it seems unlikely that this kind of thing will ever happen again at any normal company. Of course, it happens every day over at Overstock.com (NASDAQ: OSTK), where Director of Communications Judd Bagley routinely attacks critics on Yahoo! message boards and Wikipedia.
At least it's good to see that the board at Whole Foods takes ethics seriously, and is willing to take actions to ensure that its executives don't do anything to jeopardize the company's reputation or get it in trouble with regulators.
While I thought the reaction to his comments was overblown (A poorly worded but passionate defense of his support of school vouchers), the NAACP called on him to apologize. Of course, Byrne being Byrne, he refused.
"Recently, video-taped comments I made in a school voucher debate setting were edited and posted online. Subsequently, some journalists erroneously claimed that I dismissed these statements as having been taken out of context. This assertion is false. In fact, my claim is far stronger: the clip is a lie, because it inverted what I actually said, which is far worse than simply being 'taken out of context'.
Not content to apologize for his comment about burning kids, Byrne is now burning Overstock's money to defend himself. Why is Byrne using shareholders' money to defend comments he made in a personal political crusade that has nothing to do with the company?
Overstock.com Inc. (NASDAQ: OSTK) Chief Executive Patrick Byrne's long, rambling apologies to shareholders for his company's terrible performance usually provide a needed humor break from the pressures of earnings season. This quarter, though, Byrne offered a shorter statement about the company's improving financial performance.
To be sure, the quarter was merely awful instead of disastrous. The company lost $4.7 million, or 20 cents per share, compared with $24.5 million, or $1.19, a year earlier. Revenue rose 3% to $161.9 million. Analysts expected a loss of 39 cents and revenue of $155.1 million, according to Thomson Financial.
In his letter, Byrne sounded ecstatic. The good news isn't shocking given the better-than-expected quarter reported by eBay Inc. (NASDAQ: EBAY) and bodes well for next week's report from Amazon.com (NASDAQ: AMZN). Byrne's missive is reprinted below for all to enjoy.
Dear Investor:
In Q3, we generated positive EBITDA for the first time in a non-Q4 quarter. I believe this validates our view that a profitable business model is emerging, particularly in light of our de minimus capital expenditures ($316K during Q3).
We also returned to positive (albeit modest) top-line growth despite halving our marketing expenses. A year ago, I said that we had a laundry list of projects we were working on to improve our marketing efforts. Since then, our marketing dollars have become twice as efficient. We are about one-third of the way through the list; I do not know what the remaining two-thirds will bring.
Expenses are drum tight, product selection is strong, operations are humming, and customer satisfaction is extraordinary. We are superbly positioned for the holiday season.
I look forward to our call, and as always, remain,
When the Bureau of Economic Research declared that the recession had officially begun in December 2007, the entire retail sector shrugged its shoulders and said, "No kidding."
I've received a few chuckles for investment directions I've suggested in the past, but if you care to review a couple of my previous generalities, 
Chalk up another problem for 
For the past several years, 
On Friday December 7th, 
After 
Best & Worst in Money 2008: Most shocking financial collapse
Closing Bell: Stocks slump as AMD, AT&T, GM and Merck decline
Global Q&A: A rocky road, but profits ahead
