A federal lawsuit accuses Utah-based Overstock.com, its controversial ex-CEO Patrick Byrne and another departing executive of securities fraud tied to Byrne’s recent sale of over $102 million in company stock.
The class-action suit accuses Byrne, the online discount retail company he led until August and the firm’s former Chief Financial Officer Gregory Iverson of making false, misleading and “bizarre” statements and concealing information in a way that artificially inflated Overstock’s share prices prior to a series of sales that culminated in mid-September.
The suit’s two complaints, filed late Friday by San Jose, Calif.-based stockholder Benjamin Ha, claim to represent a class of shareholders who bought Overstock shares between May 9 and Sept. 23 this year.
Over that time, the legal action claims, Overstock and its officials overstated the strength of the Midvale-based firm’s retail operations in news releases and conference calls, while also mischaracterizing the motive for a key stock dividend.
The lawsuit also comes six weeks after Byrne abruptly resigned as Overstock CEO after disclosing he’d had an affair with alleged Russian agent Maria Butina while he was acting as a confidential informant for the FBI.
Ha alleges in his 61-page suit that Byrne “made a series of materially false and misleading statements which he knew or deliberately disregarded were materially false and misleading at that time.”
Those actions, Ha claims, violated U.S. securities laws by deceiving the investing public on Overstock’s fiscal health, inflating stock prices and letting Byrne, 56, sell his shares at a relatively high price while withholding vital insider information about the company.
The class-action suit relies heavily on Byrne’s own public statements. The actions, filed in Salt Lake City, seek unspecified damages on behalf of all shareholders taken in by the schemes in that time period, according to court documents.
Ha could not be reached late Monday for additional comment. Attempts to reach Overstock executives, including replacement CEO Jonathan Johnson, regarding the federal case also were not immediately successful.
Byrne — who for years has openly attacked the practices of so-called short sellers in Overstock shares as they sought to profit from dips in its stock price— also could not be reached for comment.
The cancer survivor and martial arts expert has claimed in recent online posts on his personal blog page, DeepCapture.com, that he is traveling out of the country, sailing and SCUBA diving in Australia and “remote Asia” so as to be intentionally unreachable by U.S. officials.
Iverson resigned from Overstock on Sept. 17 without a public explanation from company officials and has since been replaced by Overstock’s previous principal financial officer, Robert Hughes, while the firm says it is searching for a new CFO.
Byrne triggered something of a media storm last month, when he claimed to have been caught up in a far-reaching political conspiracy involving Butina, who is now in jail, and top FBI agents.
“Needless to say, these statements did not inspire investor confidence,” Ha wrote in his lawsuit of the claims.
He noted that shares suffered a one-day decline of almost 20% after Byrne first made his “Deep State” claims public, including obscure references to “Men in Black” among federal law enforcement and to seeking advice from his “Omaha rabbi,” aka Berkshire Hathaway CEO Warren Buffett.
Overstock share prices saw additional and turbulent fluctuations as Byrne expanded on his reasons for stepping down from the company he helped found in a series of rambling TV appearances.
Byrne said at the time of his departure he was leaving to insulate the company and its leaders from retaliation over his claims that the FBI and others in a “Deep State” at the highest level of the U.S. government has duped him into being part of “political espionage” on Hillary Clinton, President Donald Trump and others.
“I’m not getting chased out. This is me ejecting — and I have to,” Byrne said in one appearance on cable news.
Byrne first made details of his claims public in a news release posted online under Overstock company letterhead, in a lengthy and convoluted statement that Ha said “can only be described as bizarre in the annals of corporate history in America.”
Byrne has since said his continued presence in leadership at Overstock also had hampered the firm in obtaining necessary insurance, as underwriters grew increasingly nervous about his claims.
“If I had stayed at Overstock or even remained a large owner of OSTK, they would try to break Overstock as a way of crippling me,” he explained in a blog post.
The lawsuit suit by Ha also alleges that Byrne and other Overstock officials hid “extreme risks and foreseeable volatility” involved in the proposed digital dividend to be offered by an Overstock.com subsidiary specializing in cryptocurrency, called tZERO.
New Overstock CEO Johnson told The Salt Lake Tribune on Aug. 29, following Byrne’s departure, that tZERO was among the company’s “crown jewels” as it continues to expand its new investments in blockchain technology alongside what he said were its newly profitable retail operations.
But Ha claims that while extolling benefits of the new tZERO dividend to Overstock investors, the dividend had instead been engineered as a tactical weapon against short sellers of the company’s stock, with the intent of leaving them unable to maintain their market bets against Overstock.
“While defendant Byrne had previously, at different times, launched into public tirades over short selling ...” Ha wrote in his lawsuit, “the tZERO Dividend was his secret plot to finally obtain hegemony over them — and it almost worked.”
The move created a temporary “short squeeze,” Ha alleged, which contributed to Overstock shares spiking from $16 to almost $27 before subsequent market news and action by federal authorities effectively ended the dividend’s pressure on short sellers.
But “not before” Byrne completed his liquidation of nearly $102 million in stock, the lawsuit claims.
Regulatory filings indicate Byrne sold more than 4.7 million shares in the firm between Sept. 17 and Sept. 18 in a series of transactions that generated at least $90 million in proceeds.
Byrne announced in a post on Sept. 19, when the sale of his remaining Overstock shares became public, that he was reinvesting portions of the cash in gold, silver and two cryptocurrencies — with the intent of harboring its value in light of his prediction of a downturn in the U.S. economy.
And in apparent response to criticism, the Overstock founder denied on his blog that he had relevant insider information prior to the sale. He has claimed in posts from Sept. 18 and Sept. 25 that before exiting the country, he had assigned responsibility for selling his shares to a third party and was not in control of the sales’ timing.
In an open letter to his remaining Overstock colleagues, Byrne said some of the funds he raised with the sale would be available to reinvest in Overstock at a later date, should the company run into financial trouble.
“But I am now 100% disassociated from Overstock,” he wrote in the Sept. 25 post, “and people should stop asking me to comment on current management’s activities or decisions.”
