U.S.-based e-commerce firm Overstock is hoping to persuade a judge in the Utah District Court to throw out a class-action securities fraud lawsuit relating to the firm’s digital dividend and its effect on short sellers.
In a filing on May 12 (see in full below), Overstock took aim at the two main allegations made in the suit: that the firm had made false declarations in 2019 about its financial future, and that it had deliberately launched the digital dividend (a tokenized security planned for listing on its affiliate company tZero’s trading platform) in order to create an artificial squeeze on short sellers.
On the first point, the motion to dismiss points to the fact that Overstock’s financial projections are “quintessential forward-looking statements protected by the [Private Securities Litigation Reform Act]’s safe harbor.” Further, the plaintiffs – led by the Mangrove Partners Master Fund, Ltd. – did not provide any “facts” that that the statements had been false at the time they were published, it argues.
“In fact, the Complaint does not contain a single contemporaneous allegation – any person, meeting, or internal document – suggesting that any Defendant knew of, or had access to, information inconsistent with any challenged statement,” the filing reads.
On the second point, while Patrick Byrne – Overstock’s CEO at the time and a defendant in the suit – had long argued that naked short sellers were an evil to be abolished – Overstock claims that the lawsuit does not actually provide allegations of a “deceptive act.” More specifically, it says that defendants made no claim that Overstock had deliberately placed “inaccurate” information into the market regarding its digital dividend.
That the dividend would be problematic for short sellers had been “recognized and publicized” by market observers on the day it was announced, says Overstock. And the fact that the defendants recognized this in their complaint “is fatal to pleading an underlying manipulative act and reliance.”
As such Overstock calls upon the Utah court to dismiss the lawsuit with prejudice, as “the broad media coverage belies Plaintiff’s contention that Defendants’ conduct or statements deceived anyone.”
The lawsuit was originally filed Sept. 27, 2019, with the lead plaintiff at the time being investor Benjamin Ha. It claimed Overstock had made false claims to artificially inflate the value of Overstock stock and allowed Byrne to sell all of his shares – worth over $100 million at the time – at unrealistic prices when he left the firm.
See the full motion to dismiss filing below: