Litigation

Patrick Byrne: Do as I say, not as I do.

By Tracy Coenen

Patrick Byrne, CEO of Overstock.com (NASDAQ:OSTK) has been on a crusade against naked short selling for a couple of years (or more?). It is currently his position that naked short selling is bad. He confirms his belief in this statement on Overstock.com:

Patrick Byrne is waging a fight with Wall Street over naked short selling. He believes that, through the practice of naked shorting, Wall Street is cheating Main Street America and destroying small companies for a profit. Byrne feels that the SEC is failing to protect retail investors and small companies because it has been captured by Wall Street, and that the New York financial press is similarly co-opted. Byrne believes that the SEC’s efforts to eliminate this abusive practice are falling short, not simply for Overstock (which has itself been on the Regulation SHO Threshold list for over two years), but in a way that creates the possibility of systemic risk for our financial world.

So naked short selling is an “abusive practice”? (Notice that there are no qualifiers in the statement above. It simply says that naked shorting is bad.)

Yet if naked short selling is so bad, one wonders why Overstock.com would have allowed (encouraged?) naked short selling in its 2002 initial public offering of 3 million shares of stock? Page 84 of the document says:

In connection with the offering, the underwriters may purchase and sell shares of common stock in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of shares than they are required to purchase in the offering. ??Covered?? short sales are sales made in an amount not greater than the underwriters? option to purchase additional shares from us in the offering. The underwriters may close out any covered short position by either exercising its option to purchase additional shares or purchasing shares in the open market. In determining the source of shares to close out the covered short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option. ??Naked?? short sales are any sales in excess of such option. The underwriters must close out any naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the common stock in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of various bids for or purchases of common stock made by the underwriters in the open market prior to the completion of the offering.

So when it benefits Overstock.com, we shall support naked short selling. When it does not (or we need to conjure up a reason why the stock is such a horrible investment, rather than admit that the company sucks) we shall fight against naked short selling.

Oh, let me guess. We told you that you had to close out your naked short position. That makes it okay then.

Full post as published by The FRAUDfiles Blog on June 27, 2008 (boomark / email).