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LL Lumber Liquidators

Filed: 6 Aug 19, 8:00pm

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-Q

 

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the quarterly period ended June 30, 2019

or

     TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from              to             

Commission File Number: 001-33767

 

Picture 2

Lumber Liquidators Holdings, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware

27-1310817

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

 

 

3000 John Deere Road

Toano,  Virginia

23168

(Address of Principal Executive Offices)

(Zip Code)

 

(757) 259-4280

(Registrant’s telephone number, including area code)

Not Applicable

(Former name, former address and former fiscal year, if changed since last report)

Securities registered pursuant to Section 12(b) of the Act:

 

 

 

 

 

Title of each class:

 

Trading Symbol:

 

Name of exchange on which registered:

Common Stock, par value $0.001 per share

 

LL

 

New York Stock Exchange

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 of 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  ☒  Yes  ◻  No

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).  ☒  Yes  ☐  No

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b‑2  of the Exchange Act:

 

 

 

 

 

◻  Large accelerated filer

☒  Accelerated filer

◻  Non-accelerated filer

  Smaller reporting company

  Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b‑2 of the Exchange Act).    Yes   ☒  No

As of August 1, 2019, there are 28,701,095 shares of the registrant’s common stock, par value of $0.001 per share, outstanding.

 

 

 

 

1

PART I
FINANCIAL INFORMATION

Item 1. Financial Statements.

Lumber Liquidators Holdings, Inc.
Condensed Consolidated
Balance Sheets
(Unaudited, in thousands)

 

 

 

 

 

 

 

 

 

June 30,

 

December 31, 

 

    

2019

    

2018

Assets

 

 

 

 

 

Current Assets:

 

 

 

 

 

 

Cash and Cash Equivalents

 

$

12,727

 

$

11,565

Merchandise Inventories

 

 

303,700

 

 

318,272

Prepaid Expenses

 

 

9,142

 

 

6,299

Deposit for Legal Settlement

 

 

21,500

 

 

21,500

Other Current Assets

 

 

9,307

 

 

8,667

Total Current Assets

 

 

356,376

 

 

366,303

Property and Equipment, net

 

 

93,074

 

 

93,689

Operating Lease Right-of-Use

 

 

113,375

 

 

 —

Goodwill

 

 

9,693

 

 

9,693

Other Assets

 

 

5,792

 

 

5,832

Total Assets

 

$

578,310

 

$

475,517

 

 

 

 

 

 

 

Liabilities and Stockholders’ Equity

 

 

 

 

 

 

Current Liabilities:

 

 

 

 

 

 

Accounts Payable

 

$

67,826

 

$

73,412

Customer Deposits and Store Credits

 

 

42,888

 

 

40,332

Accrued Compensation

 

 

9,050

 

 

9,265

Sales and Income Tax Liabilities

 

 

4,838

 

 

4,200

Accrual for Legal Matters and Settlements Current

 

 

68,475

 

 

97,625

Operating Lease Liabilities - Current

 

 

30,711

 

 

 —

Other Current Liabilities

 

 

19,355

 

 

17,290

Total Current Liabilities

 

 

243,143

 

 

242,124

Other Long-Term Liabilities

 

 

13,144

 

 

20,203

Operating Lease Liabilities - Long-Term

 

 

90,262

 

 

 —

Deferred Tax Liability

 

 

863

 

 

792

Credit Agreement

 

 

89,500

 

 

65,000

Total Liabilities

 

 

436,912

 

 

328,119

 

 

 

 

 

 

 

Stockholders’ Equity:

 

 

 

 

 

 

Common Stock ($0.001 par value; 35,000 shares authorized; 29,941 and 31,578 shares issued and 28,701 and 28,627 shares outstanding, respectively)

 

 

30

 

 

32

Treasury Stock, at cost (1,239 and 2,951 shares, respectively)

 

 

(142,269)

 

 

(141,828)

Additional Capital

 

 

216,159

 

 

213,744

Retained Earnings

 

 

69,055

 

 

76,835

Accumulated Other Comprehensive Loss

 

 

(1,577)

 

 

(1,385)

Total Stockholders’ Equity

 

 

141,398

 

 

147,398

Total Liabilities and Stockholders’ Equity

 

$

578,310

 

$

475,517

 

See accompanying notes to condensed consolidated financial statements

2

Lumber Liquidators Holdings, Inc.
Condensed Consolidated Statements of Operations
(Unaudited, in thousands, except per share amounts)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Six Months Ended

 

 

 

June 30,

 

June 30,

 

 

    

2019

    

2018

    

2019

    

2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Sales

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Merchandise Sales

 

$

250,658

 

$

248,967

 

$

488,557

 

$

485,482

 

Net Services Sales

 

 

37,909

 

 

34,507

 

 

66,230

 

 

59,764

 

Total Net Sales

 

 

288,567

 

 

283,474

 

 

554,787

 

 

545,246

 

Cost of Sales

 

 

 

 

 

 

 

 

 

 

 

 

 

Cost of Merchandise Sold

 

 

157,801

 

 

156,636

 

 

309,226

 

 

305,019

 

Cost of Services Sold

 

 

28,279

 

 

25,528

 

 

49,463

 

 

43,945

 

Total Cost of Sales

 

 

186,080

 

 

182,164

 

 

358,689

 

 

348,964

 

Gross Profit

 

 

102,487

 

 

101,310

 

 

196,098

 

 

196,282

 

Selling, General and Administrative Expenses

 

 

103,864

 

 

102,223

 

 

200,896

 

 

198,641

 

Operating Loss

 

 

(1,377)

 

 

(913)

 

 

(4,798)

 

 

(2,359)

 

Other Expense

 

 

1,068

 

 

346

 

 

2,358

 

 

667

 

Loss Before Income Taxes

 

 

(2,445)

 

 

(1,259)

 

 

(7,156)

 

 

(3,026)

 

Income Tax Expense

 

 

411

 

 

195

 

 

624

 

 

400

 

Net Loss

 

$

(2,856)

 

$

(1,454)

 

$

(7,780)

 

$

(3,426)

 

Net Loss per Common Share—Basic

 

$

(0.10)

 

$

(0.05)

 

$

(0.27)

 

$

(0.12)

 

Net Loss per Common Share—Diluted

 

$

(0.10)

 

$

(0.05)

 

$

(0.27)

 

$

(0.12)

 

Weighted Average Common Shares Outstanding:

 

 

  

 

 

  

 

 

  

 

 

  

 

Basic

 

 

28,692

 

 

28,546

 

 

28,669

 

 

28,527

 

Diluted

 

 

28,692

 

 

28,546

 

 

28,669

 

 

28,527

 

 

See accompanying notes to condensed consolidated financial statements

3

Lumber Liquidators Holdings, Inc.
Condensed Consolidated Statements of Comprehensive Loss
(Unaudited, in thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Six Months Ended

 

 

 

June 30,

 

June 30,

 

 

    

2019

    

2018

    

2019

    

2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Loss

 

$

(2,856)

 

$

(1,454)

 

$

(7,780)

 

$

(3,426)

 

Other Comprehensive Loss:

 

 

  

 

 

  

 

 

  

 

 

  

 

Foreign Currency Translation Adjustments

 

 

(309)

 

 

(73)

 

 

(192)

 

 

(105)

 

Total Other Comprehensive Loss

 

 

(309)

 

 

(73)

 

 

(192)

 

 

(105)

 

Comprehensive Loss

 

$

(3,165)

 

$

(1,527)

 

$

(7,972)

 

$

(3,531)

 

 

See accompanying notes to condensed consolidated financial statements

4

Lumber Liquidators Holdings, Inc.
Condensed Consolidated Statements of Stockholders’ Equity
(Unaudited, in thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

 

Common Stock

 

Treasury Stock

 

Additional

 

Retained

 

 

 

 

Stockholders'

 

    

Shares

    

Value

    

Shares

    

Value

    

Capital

    

Earnings

    

AOCL

    

Equity

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

March 31, 2018

 

28,540

 

$

31

 

2,930

 

$

(141,439)

 

$

209,676

 

$

129,242

 

$

(1,184)

 

$

196,326

Stock-Based Compensation Expense

 

 —

 

 

 —

 

 —

 

 

 —

 

 

1,237

 

 

 —

 

 

 —

 

 

1,237

Exercise of Stock Options

 

 3

 

 

 —

 

 —

 

 

 —

 

 

40

 

 

 —

 

 

 —

 

 

40

Release of Restricted Shares

 

 8

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

Common Stock Repurchased

 

 —

 

 

 —

 

 5

 

 

(103)

 

 

 —

 

 

 —

 

 

 —

 

 

(103)

Translation Adjustment

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(73)

 

 

(73)

Net Loss

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

(1,454)

 

 

 —

 

 

(1,454)

June 30, 2018

 

28,551

 

$

31

 

2,935

 

$

(141,542)

 

$

210,953

 

$

127,788

 

$

(1,257)

 

$

195,973

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

March 31, 2019

 

28,682

 

$

32

 

2,979

 

$

(142,157)

 

$

214,798

 

$

71,911

 

$

(1,268)

 

$

143,316

Stock-Based Compensation Expense

 

 —

 

 

 —

 

 —

 

 

 —

 

 

1,361

 

 

 —

 

 

 —

 

 

1,361

Exercise of Stock Options

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

Release of Restricted Shares

 

19

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

Common Stock Repurchased and Transferred

 

 —

 

 

(2)

 

(1,740)

 

 

(112)

 

 

 —

 

 

 —

 

 

 —

 

 

(114)

Translation Adjustment

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(309)

 

 

(309)

Net Loss

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

(2,856)

 

 

 —

 

 

(2,856)

June 30, 2019

 

28,701

 

$

30

 

1,239

 

$

(142,269)

 

$

216,159

 

$

69,055

 

$

(1,577)

 

$

141,398

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

 

Common Stock

 

Treasury Stock

 

Additional

 

Retained

 

 

 

Stockholders'

 

    

Shares

    

Value

    

Shares

    

Value

    

Capital

    

Earnings

    

AOCL

     

Equity

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31, 2017

 

28,490

 

$

31

 

2,907

 

$

(140,875)

 

$

208,629

 

$

131,214

 

$

(1,152)

 

$

197,847

Stock-Based Compensation Expense

 

 —

 

 

 —

 

 —

 

 

 —

 

 

2,244

 

 

 —

 

 

 —

 

 

2,244

Exercise of Stock Options

 

 6

 

 

 —

 

 —

 

 

 —

 

 

80

 

 

 —

 

 

 —

 

 

80

Release of Restricted Shares

 

55

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

Common Stock Repurchased

 

 —

 

 

 —

 

28

 

 

(667)

 

 

 —

 

 

 —

 

 

 —

 

 

(667)

Translation Adjustment

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(105)

 

 

(105)

Net Loss

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

(3,426)

 

 

 —

 

 

(3,426)

June 30, 2018

 

28,551

 

$

31

 

2,935

 

$

(141,542)

 

$

210,953

 

$

127,788

 

$

(1,257)

 

$

195,973

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31, 2018

 

28,627

 

$

32

 

2,951

 

$

(141,828)

 

$

213,744

 

$

76,835

 

$

(1,385)

 

$

147,398

Stock-Based Compensation Expense

 

 —

 

 

 —

 

 —

 

 

 —

 

 

2,415

 

 

 —

 

 

 —

 

 

2,415

Release of Restricted Shares

 

74

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

Common Stock Repurchased and Transferred

 

 —

 

 

(2)

 

(1,712)

 

 

(441)

 

 

 —

 

 

 —

 

 

 —

 

 

(443)

Translation Adjustment

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(192)

 

 

(192)

Net Loss

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

(7,780)

 

 

 —

 

 

(7,780)

June 30, 2019

 

28,701

 

$

30

 

1,239

 

$

(142,269)

 

$

216,159

 

$

69,055

 

$

(1,577)

 

$

141,398

 

See accompanying notes to condensed consolidated financial statements

5

Lumber Liquidators Holdings, Inc.
Condensed Consolidated Statements of Cash Flows
(Unaudited, in thousands)

 

 

 

 

 

 

 

 

 

Six Months Ended June 30,

 

    

2019

    

2018

 

 

 

 

 

 

Cash Flows from Operating Activities:

 

 

  

 

 

  

Net Loss

 

$

(7,780)

 

$

(3,426)

Adjustments to Reconcile Net Loss:

 

 

  

 

 

  

Depreciation and Amortization

 

 

8,599

 

 

9,567

Stock-Based Compensation Expense

 

 

2,415

 

 

2,123

Loss on Disposal of Fixed Assets

 

 

50

 

 

23

Changes in Operating Assets and Liabilities:

 

 

  

 

 

  

Merchandise Inventories

 

 

13,509

 

 

(38,648)

Accounts Payable

 

 

(4,729)

 

 

5,034

Customer Deposits and Store Credits

 

 

2,652

 

 

6,925

Prepaid Expenses and Other Current Assets

 

 

(3,557)

 

 

307

Accrual for Legal Matters and Settlements

 

 

4,575

 

 

2,951

Payments for Legal Matters and Settlements

 

 

(33,725)

 

 

(1,691)

Other Assets and Liabilities

 

 

3,899

 

 

(4,695)

Net Cash Used in Operating Activities

 

 

(14,092)

 

 

(21,530)

 

 

 

 

 

 

 

Cash Flows from Investing Activities:

 

 

  

 

 

  

Purchases of Property and Equipment

 

 

(8,907)

 

 

(6,584)

Other Investing Activities

 

 

64

 

 

28

Net Cash Used in Investing Activities

 

 

(8,843)

 

 

(6,556)

 

 

 

 

 

 

 

Cash Flows from Financing Activities:

 

 

  

 

 

  

Borrowings on Credit Agreement

 

 

63,000

 

 

29,000

Payments on Credit Agreement

 

 

(38,500)

 

 

(9,000)

Other Financing Activities

 

 

(1,074)

 

 

(1,199)

Net Cash Provided by Financing Activities

 

 

23,426

 

 

18,801

Effect of Exchange Rates on Cash and Cash Equivalents

 

 

671

 

 

469

Net Increase (Decrease) in Cash and Cash Equivalents

 

 

1,162

 

 

(8,816)

Cash and Cash Equivalents, Beginning of Period

 

 

11,565

 

 

19,938

Cash and Cash Equivalents, End of Period

 

$

12,727

 

$

11,122

 

See accompanying notes to condensed consolidated financial statements

6

Lumber Liquidators Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
(Amounts in thousands, except per share amounts)

Note 1.       Basis of Presentation

Lumber Liquidators Holdings, Inc. and its direct and indirect subsidiaries (collectively and, where applicable, individually, the “Company”) engage in business as a multi-channel specialty retailer of hard-surface flooring, and hard-surface flooring enhancements and accessories, operating as a single operating segment. The Company offers an extensive assortment of exotic and domestic hardwood species, engineered hardwood, laminate, resilient vinyl, waterproof vinyl plank and porcelain tile flooring direct to the consumer. The Company also features the renewable flooring products, bamboo and cork, and provides a wide selection of flooring enhancements and accessories, including moldings, noise-reducing underlayment, adhesives and flooring tools. The Company also provides in-home delivery and installation services to its customers. The Company sells primarily to homeowners or to contractors on behalf of homeowners through a network of store locations in metropolitan areas. As of June 30, 2019, the Company’s stores spanned 47 states in the United States (“U.S.”) and included eight stores in Canada. In addition to the store locations, the Company’s products may be ordered, and customer questions/concerns addressed, through both its call center in Toano, Virginia and its website, www.lumberliquidators.com. Until January 2019, the Company finished the majority of its Bellawood products on its finishing lines in Toano, Virginia, which along with the call center, corporate offices, and a distribution center, represent the “Corporate Headquarters.” In July of 2018, the Company announced its plan to sell its finishing line equipment to an unaffiliated third-party purchaser and to relocate its corporate headquarters to Richmond, Virginia, in 2019. The Company ceased finishing floors in January 2019.

The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with the instructions to Form 10‑Q for interim financial reporting pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”). In the opinion of management, all adjustments (consisting of normal and recurring adjustments except those otherwise described herein) considered necessary for a fair presentation have been included in the accompanying condensed consolidated financial statements. However, they do not include all of the information and footnotes required by U.S. generally accepted accounting principles (“GAAP”) for complete financial statements. Therefore, the interim condensed consolidated financial statements should be read in conjunction with the audited consolidated financial statements and notes included in the Company’s annual report filed on Form 10‑K for the year ended December 31, 2018.

The condensed consolidated financial statements of the Company include the accounts of its wholly-owned subsidiaries. All intercompany transactions have been eliminated in consolidation.

Results of operations for the three and six months ended June 30, 2019 are not necessarily indicative of future results to be expected for the full year due to a number of factors, including seasonality.

 

Note 2.       Summary of Significant Accounting Policies

Fair Value of Financial Instruments

 

The carrying amounts of financial instruments such as cash and cash equivalents, accounts payable and other liabilities approximates fair value because of the short-term nature of these items. The carrying amount of obligations under the Credit Agreement approximates fair value due to the variable rate of interest.

 

Merchandise Inventories

 

The Company values merchandise inventories at the lower of merchandise cost or net realizable value. The Company determines merchandise cost using the weighted average method.  All of the hardwood flooring we purchase from suppliers is either prefinished or unfinished and in immediate saleable form. Inventory cost includes the costs of bringing an article to its existing condition and location, such as shipping and handling and import tariffs. The Company periodically reviews the carrying value of items in inventory and records a lower of cost or net realizable value

7

adjustment when there is evidence that the utility of inventory will be less than its cost. In determining net realizable value, the Company makes judgments and estimates as to the market value of its products, based on factors such as historical results and current sales trends. Although the Company believes its products are appropriately valued as of the balance sheet date, there can be no assurance that future events or changes in key assumptions would not significantly impact their value.

 

Recognition of Net Sales

The Company generates revenues primarily by retailing merchandise flooring and accessories in the form of solid and engineered hardwood, bamboo, cork, laminate, resilient vinyl, waterproof vinyl plank and porcelain tile flooring. Additionally, the Company expands its revenues by offering services to deliver and/or install this merchandise for its customers; it considers these services to be separate performance obligations. The separate performance obligations are detailed on the customer’s invoice(s) and the customer often purchases flooring merchandise without purchasing installation or delivery services. Sales occur through a network of 415 stores, which spanned 47 states including eight stores in Canada, at June 30, 2019. In addition, both the merchandise and services can be ordered through a call center and from the Company’s website, www.lumberliquidators.com. The Company’s agreements with its customers are of short duration (less than a year) and as such the Company has elected not to disclose revenue for partially satisfied contracts that will be completed in the days following the end of a period as permitted by GAAP. The Company reports its revenues exclusive of sales taxes collected from customers and remitted to governmental taxing authorities, consistent with past practice.

Revenue is based on consideration specified in a contract with a customer, and excludes any sales incentives from vendors and amounts collected on behalf of third parties. The Company recognizes revenue when it satisfies a performance obligation by transferring control over a product to a customer or performing service for a customer. Revenues from installation and freight services are recognized when the delivery is made or the installation is complete, which approximates the recognition of revenue over time due to the short duration of service provided. The price of the Company’s merchandise and services are specified in the respective contracts and detailed on the invoice reviewed with the customer including any discounts. The Company generally requires customers to pay a deposit, equal to approximately half of the retail sales value, when ordering merchandise not regularly carried in a given location or not currently in stock. In addition, the Company generally does not extend credit to its customers with payment due in full at the time the customer takes possession of merchandise or when the service is provided. Customer payments and deposits received in advance of the customer taking possession of the merchandise or receiving the services are recorded as deferred revenues in the accompanying condensed consolidated balance sheet caption Customer Deposits and Store Credits.

The following table shows the activity in this account for the periods noted:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Six Months Ended

 

 

June 30,

 

June 30,

 

    

2019

    

2018

    

2019

    

2018

Customer Deposits and Store Credits, Beginning Balance

 

$

(47,633)

 

$

(43,493)

 

$

(40,332)

 

$

(38,546)

New Deposits

 

 

(302,429)

 

 

(302,881)

 

 

(594,262)

 

 

(588,403)

Recognition of Revenue

 

 

288,567

 

 

283,474

 

 

554,787

 

 

545,246

Sales Tax included in Customer Deposits

 

 

17,483

 

 

17,487

 

 

34,264

 

 

34,092

Other

 

 

1,124

 

 

66

 

 

2,655

 

 

2,264

Customer Deposits and Store Credits, Ending Balance

 

$

(42,888)

 

$

(45,347)

 

$

(42,888)

 

$

(45,347)

 

Subject to limitations under the Company’s policy, return of unopened merchandise is accepted for 90 days. The amount of revenue recognized for flooring merchandise is adjusted for expected returns, which are estimated based on the Company’s historical data, current sales levels, and forecasted economic trends. The Company uses the expected value method to estimate returns because it has a large number of contracts with similar characteristics. The Company reduces revenue by the amount of expected returns and records it within accrued expenses and other on the condensed consolidated balance sheet.  The Company continues to estimate the amount of returns based on the historical data. In addition, the Company recognizes a related asset for the right to recover returned merchandise and records it in the other

8

current assets caption of the accompanying condensed consolidated balance sheet. This amount was $1.4 million at June 30, 2019. The Company recognizes sales commissions as incurred since the amortization period is less than one year. The Company offers a range of limited warranties for the durability of the finish on its prefinished products. These limited warranties range from one to 100 years, with lifetime warranties for certain of the Company’s products. Warranty reserves are based primarily on claims experience, sales history and other considerations. Warranty costs are recorded in cost of sales.

In total, the Company offers hundreds of different flooring products; however, no single flooring product represented a significant portion of its sales mix. By major product category, the Company’s sales mix was as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

Three Months Ended June 30,

 

Six Months Ended June 30,

 

 

 

2019

    

2018

    

2019

 

2018

 

Manufactured Products 1

 

$

118,212

 

41

%  

$

99,920

 

35

%  

$

228,679

 

41

%

$

190,848

 

35

%

Solid and Engineered Hardwood

 

 

83,547

    

29

%  

 

97,640

    

35

%  

 

165,382

    

30

%

 

194,332

    

36

%

Moldings and Accessories and Other

 

 

48,899

 

17

%  

 

51,407

 

18

%  

 

94,496

 

17

%

 

100,302

 

18

%

Installation and Delivery Services

 

 

37,909

 

13

%  

 

34,507

 

12

%  

 

66,230

 

12

%

 

59,764

 

11

%

Total

 

$

288,567

 

100

%  

$

283,474

 

100

%  

$

554,787

 

100

%

$

545,246

 

100

%


1     Includes laminate, vinyl, engineered vinyl plank and porcelain tile.

Cost of Sales

 

Cost of sales includes the cost of products sold, including tariffs, the cost of installation services, and transportation costs from vendors to the Company’s distribution centers or store locations. It also includes any applicable finishing costs related to production of the Company’s proprietary brands, transportation costs from distribution centers to store locations, transportation costs for the delivery of products from store locations to customers, certain costs of quality control procedures, warranty and customer satisfaction costs, inventory adjustments including obsolescence and shrinkage, and costs to produce samples, which are net of vendor allowances. The Company ceased finishing floors in January 2019, as previously disclosed in the Form 10-K for the year ended December 31, 2018.

Leases

 

In February 2016, the FASB issued Accounting Standards Update No. 2016-02 (“ASU 2016-02”), which created ASC Topic 842, Leases, and superseded the lease accounting requirements in Topic 840, Leases. In summary, Topic 842 requires organizations that lease assets to recognize on the balance sheet the assets and liabilities for the rights and obligations created by those leases. In August 2018, the FASB issued ASU 2018-11, Targeted Improvements to ASC 842, which included an option to not restate comparative periods in transition and elect to use the effective date of ASC 842 as the date of initial application of transition, which the Company elected. As a result of the adoption of ASC 842 on January 1, 2019, the Company recorded both operating lease right-of-use (“ROU”) assets of $113 million and lease liabilities of $121 million. The adoption of ASC 842 had an immaterial impact on the Company’s condensed consolidated statements of operations and condensed consolidated statements of cash flows for the three and six month periods ended June 30, 2019. The Company elected the package of practical expedients permitted under the transition guidance within the new standard, which among other things, allowed the Company to carryforward the historical lease classification.

The Company determines if an arrangement is a lease at inception. Operating leases are included in operating lease ROU assets and operating lease liabilities on the condensed consolidated balance sheets. The operating lease ROU assets and operating lease liabilities are recognized as the present value of the future minimum lease payments over the lease term at commencement date. As most of the leases do not provide an implicit rate, the Company used its incremental borrowing rate based on the information available at commencement date in determining the present value of future payments. The operating lease ROU asset also is adjusted for any lease payments made and excludes lease

9

incentives and initial direct costs incurred. The Company’s lease terms may include options to extend or terminate the lease typically, at the Company’s own discretion. The Company regularly evaluates the renewal options and when they are reasonably certain of exercise, the Company includes the renewal period in its lease term. Many of the Company’s leases include both lease (e.g., payments including rent, taxes, and insurance costs) and non-lease components (e.g., common-area or other maintenance costs) which are accounted for as a single lease component as the Company has elected the practical expedient to group lease and non-lease components for all leases. Lease expense for minimum lease payments is recognized on a straight-line basis over the term of the agreement.

The Company made an accounting policy election that payments under agreements with an initial term of 12 months or less will not be included on the condensed consolidated balance sheet but will be recognized in the condensed consolidated statements of operations on a straight-line basis over the term of the agreement.

 

Additional information and disclosures required by this new standard are contained in “Note 7, Leases.”

 

Recent Accounting Pronouncements Not Yet Adopted

In August 2018, the FASB issued Accounting Standards Update No. 2018‑15 (“ASU 2018‑15”), which provides guidance on the accounting for costs of implementation activities performed in a cloud computing arrangement that is a service contract, as initially published in Accounting Standards Update No. 2015‑05, Intangibles—Goodwill and Other—Internal-Use Software: Customer’s Accounting for Fees Paid in a Cloud Computing Arrangement. In summary, the new standard requires customers of cloud computing services to recognize an intangible asset for the software license and, to the extent that payments attributable to the software license are made over time, a liability is also recognized. The new standard also allows customers of cloud computing services to capitalize certain implementation costs. The amendments in ASU 2018‑15 are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2019. Therefore, the new standard will become effective for the Company at the beginning of its 2020 fiscal year, although early adoption is permitted for all entities. The Company will evaluate the impact of ASU 2018‑15 when recording cloud computing arrangements.

 

Note 3.       Stockholders’ Equity

Net Loss per Common Share

The following table sets forth the computation of basic and diluted net loss per common share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Six Months Ended

 

 

 

June 30,

 

June 30,

 

 

    

2019

    

2018

    

2019

    

2018

 

Net Loss

 

$

(2,856)

 

$

(1,454)

 

$

(7,780)

 

$

(3,426)

 

Weighted Average Common Shares Outstanding—Basic

 

 

28,692

 

 

28,546

 

 

28,669

 

 

28,527

 

Effect of Dilutive Securities:

 

 

  

 

 

  

 

 

  

 

 

  

 

Common Stock Equivalents

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Weighted Average Common Shares Outstanding—Diluted

 

 

28,692

 

 

28,546

 

 

28,669

 

 

28,527

 

Net Loss per Common Share—Basic

 

$

(0.10)

 

$

(0.05)

 

$

(0.27)

 

$

(0.12)

 

Net Loss per Common Share—Diluted

 

$

(0.10)

 

$

(0.05)

 

$

(0.27)

 

$

(0.12)

 

 

The following shares have been excluded from the computation of Weighted Average Common Shares Outstanding—Diluted because the effect would be anti-dilutive:

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Six Months Ended

 

 

 

June 30,

 

June 30,

 

 

    

2019

    

2018

    

2019

    

2018

 

Stock Options

 

644

 

702

 

644

 

671

 

Restricted Shares

 

839

 

419

 

613

 

369

 

 

10

Stock Repurchase Program

The Company’s board of directors has authorized the repurchase of up to $150 million of the Company’s common stock. At June 30, 2019, the Company had approximately $14.7 million remaining under this authorization. The Company has not repurchased any shares of its common stock under this program in more than three years.

 

Note 4.       Stock-based Compensation

The following table summarizes share activity related to stock options and restricted stock awards (“RSAs”):

 

 

 

 

 

 

    

 

    

Restricted Stock

 

 

Stock Options

 

Awards

Options Outstanding/Nonvested RSAs, December 31, 2018

 

733

 

487

Granted

 

 —

 

565

Options Exercised/RSAs Released

 

 —

 

(114)

Forfeited

 

(89)

 

(40)

Options Outstanding/Nonvested RSAs, June 30, 2019

 

644

 

898

 

The Company granted a target of 100,281 performance-based RSAs with a grant date fair value of $1.1 million during the six months ended June 30, 2019 and a target of 30,887 performance-based RSAs with a grant date fair value of $0.7 million during the six months ended June 30, 2018. These shares were awarded to certain members of senior management in connection with the achievement of specific key financial metrics measured over a two-year period and vest over a three-year period. The number of awards that will ultimately vest is contingent upon the achievement of these key financial metrics by the end of year two. The Company assesses the probability of achieving these metrics on a quarterly basis. For these awards, the Company recognizes the fair value expense ratably over the performance and vesting period. Once these amounts have been determined, half of the shares will vest at the end of year two and the remaining half will vest at the end of year three. These awards are included above in RSAs Granted.

 

Note 5.      Credit Agreement

On March 29, 2019, the Company entered into a Fourth Amended and Restated Credit Agreement (the “Credit Agreement”) with Bank of America, N.A. and Wells Fargo Bank, National Association (the “Lenders”). The Credit Agreement amended and restated the Third Amended and Restated Revolving Credit Agreement (the “Prior Agreement”). Under the Credit Agreement, the Lenders increased the maximum amount of borrowings under the revolving credit facility (the “Revolving Credit Facility”) from $150 million under the Prior Agreement to $175 million and added a new first in-last out $25 million term loan (the “FILO Term Loan”) for a total of $200 million, subject to the borrowing bases described below. The Company also has the option to increase the Revolving Credit Facility to a maximum total amount of $225 million, subject to the satisfaction of the conditions to such increase as specified in the Credit Agreement.

 

As of June 30, 2019, a total of $64.5 million was outstanding under the Revolving Credit Facility and $25 million was outstanding under the FILO Term Loan. The Company also had $2.9 million in letters of credit which factor into its remaining availability.

 

The Revolving Credit Facility and the FILO Term Loan mature on March 29, 2024 and are secured by security interests in the Collateral (as defined in the Credit Agreement), which includes substantially all assets of the Company including, among other things, the Company’s inventory and accounts receivables, and the Company’s East Coast distribution center located in Sandston, Virginia.  Under the terms of the Credit Agreement, the Company has the ability to release the East Coast distribution center from the Collateral under certain conditions.

 

The Revolving Credit Facility is available to the Company up to the lesser of (1) $175 million or (2) a revolving borrowing base equal to the sum of specified percentages of the Borrowers’ eligible credit card receivables, eligible inventory (including eligible in-transit inventory), and eligible owned real estate, less certain reserves, all of which are defined by the terms of the Credit Agreement (the “Revolving Borrowing Base”).  If the outstanding FILO Term Loan

11

exceeds the FILO Borrowing Base (as defined in the Credit Agreement), the amount of such excess reduces availability under the Revolving Borrowing Base.

   

Loans outstanding under the Credit Agreement can bear interest based on the Base Rate (as defined in the Credit Agreement) or the LIBOR Rate (as defined in the Credit Agreement).  Interest on Base Rate loans is charged at varying per annum rates computed by applying a margin ranging from (i) 0.25% to 0.75% over the Base Rate with respect to revolving loans and (ii) 1.25% to 2.00% over the Base Rate with respect to the FILO Term Loan, in each case depending on the Borrowers’ average daily excess borrowing availability under the Revolving Credit Facility during the most recently completed fiscal quarter. Interest on LIBOR Rate loans and fees for standby letters of credit are charged at varying per annum rates computed by applying a margin ranging from (i) 1.25% to 1.75% over the applicable LIBOR Rate with respect to revolving loans and (ii) 2.25% to 3.00% over the applicable LIBOR Rate with respect to the FILO Term Loan, in each case depending on the Company’s’ average daily excess borrowing availability under the Revolving Credit Facility during the most recently completed fiscal quarter. 

 

The Credit Agreement contains a fixed charge coverage ratio covenant that becomes effective only when specified availability under the Revolving Credit Facility falls below the greater of $17.5 million or 10% of the Combined Loan Cap (as defined in the Credit Agreement).

  

Note 6.       Income Taxes

The Company has a full valuation allowance recorded against its net deferred tax assets which effectively offsets its federal taxes at the statutory rate of 21%. However, it does record tax expense each period for income taxes incurred in certain state and foreign jurisdictions. For the three and six months ended June 30, 2019, the resulting effective tax rate was (16.8)% and (8.7)%, respectively. For the three and six months ended June 30, 2018, the resulting effective tax rate was (15.5)% and (13.2)%, respectively.

The Company intends to maintain a valuation allowance on its deferred tax assets until there is sufficient evidence to support the reversal of all or some portion of these allowances. A reduction in the valuation allowance could result in a significant decrease in income tax expense in the period that the release is recorded. However, the exact timing and amount of any reduction in the Company’s valuation allowance are unknown at this time and will be subject to the earnings level it achieves in future periods.

 

Note 7.Leases

The Company has operating leases for all of its stores, current corporate headquarters in Toano, Virginia, its distribution center on the west coast, supplemental office facilities and certain equipment. The Company has also entered into an agreement for a future corporate headquarters in Richmond, Virginia which has a ten-year term and expected future minimum rental payments of approximately $15.4 million that commences in the fourth quarter of 2019 once the Company takes possession of the property. The store location leases are operating leases and generally have five-year base periods with one or more five-year renewal periods. The current corporate headquarters in Toano, Virginia and the supplemental office facility in Richmond, Virginia have operating leases with base terms running through December 31, 2019 and November 30, 2020, respectively. The distribution center on the west coast has an operating lease with a base term running through October 31, 2024.

 

The cost components of the Company’s operating leases recorded in SG&A on the condensed consolidated statement of operations were as follows for the period ended June 30, 2019:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30, 2019

 

Six Months Ended June 30, 2019

 

Store Leases

    

Other Leases

    

Total

        

Store Leases

    

Other Leases

    

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating lease costs

$

8,150

 

$

1,010

 

$

9,160

 

$

16,193

 

$

2,003

 

$

18,196

Variable lease costs

 

1,930

 

 

198

 

 

2,128

 

 

3,883

 

 

397

 

 

4,280

Total

$

10,080

 

$

1,208

 

$

11,288

 

$

20,076

 

$

2,400

 

$

22,476

12

 

Variable lease costs consist primarily of taxes, insurance, and common area or other maintenance costs for our leased facilities which are paid as incurred.

Other information related to leases were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Six Months Ended June 30, 2019

 

 

Store Leases

    

Other Leases

    

Total

 

 

 

 

 

 

 

 

 

 

 

Supplemental Cash Flows Information

 

 

 

 

 

 

 

 

 

Cash paid for amounts included in the measurement of lease liabilities:

 

 

 

 

 

 

 

 

 

Operating cash flows from operating leases

$

16,555

 

$

2,195

 

$

18,750

 

 

 

 

 

 

 

 

 

 

 

Right-of-use assets obtained or modified in exchange for operating lease obligations

$

13,085

 

$

461

 

$

13,546

 

 

 

 

 

 

 

 

 

 

 

Weighted Average Remaining Lease Term (years)

 

4.71

 

 

4.79

 

 

4.72

 

 

 

 

 

 

 

 

 

 

 

Weighted Average Discount Rate

 

5.98

%

 

6.15

%

 

5.99

%

 

At June 30, 2019, the future minimum rental payments under non-cancellable operating leases were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

Operating Leases

 

 

Store Leases

 

Other Leases

 

Total

Remainder of 2019

 

$

16,832

 

$

2,191

 

$

19,023

2020

 

 

32,051

 

 

2,741

 

 

34,792

2021

 

 

25,840

 

 

2,264

 

 

28,104

2022

 

 

19,804

 

 

2,219

 

 

22,023

2023

 

 

13,841

 

 

2,255

 

 

16,096

Thereafter

 

 

17,104

 

 

2,075

 

 

19,179

Total future minimum lease payments

 

 

125,472

 

 

13,745

 

 

139,217

Less imputed interest

 

 

(16,373)

 

 

(1,871)

 

 

(18,244)

Total

 

$

109,099

 

$

11,874

 

$

120,973

 

 

 

 

 

 

 

 

 

 

 

 

 

Note 8.       Commitments and Contingencies

Governmental Investigations

In 2015 and early 2016, the Company received subpoenas issued in connection with a criminal investigation being conducted by the DOJ and the SEC.  The focus of the investigations primarily related to compliance with disclosure and financial reporting and requirements under the federal securities laws. The Company cooperated with the investigations and produced documents and other information responsive to subpoenas and other requests received from the parties. In March of 2019 prior to filing its Form 10-K, the Company reached an agreement with the U.S. Attorney, the DOJ and SEC regarding the investigation (the “Settlement Agreements”). The Company entered into a Deferred Prosecution Agreement (“DPA”) with the U.S. Attorney and the DOJ and a Cease-and-Desist Order (the “Order”) with the SEC, under which it is required, among other things, to (1) pay a fine in the amount of $19.1 million to the United States Treasury, (2) forfeit to the U.S. Attorney and the DOJ the sum of $13.9 million, of which up to $6.1 million will be submitted by the Company to the SEC in disgorgement and prejudgment interest under the Order and (3) adopt a new compliance program, or modify its existing one, including internal controls, compliance policies, and procedures in order to ensure that the Company maintains an effective system of internal account controls designed to ensure the making and

13

keeping of fair and accurate books, records and accounts, as well as a compliance program designed to prevent and detect violations of certain federal securities laws throughout its operations. 

   

The Settlement Agreements also provide that the Company will continue to cooperate with the U.S. Attorney, the DOJ and the SEC in all matters relating to the conduct described in the Settlement Agreements and, at the request of the U.S. Attorney, the DOJ or the SEC, the Company will cooperate fully with other domestic or foreign law enforcement authorities and agencies in any investigation of the Company in any and all matters relating to the Settlement Agreements. In the event the Company breaches the DPA, there is a risk the government would seek to impose remedies provided for in the DPA, including instituting criminal prosecution against the Company.

   

The Company accrued a charge of $33 million within selling, general and administrative (“SG&A”) expenses in its December 31, 2018 financial statements, reflecting the amounts owed under the Settlement Agreements. During the second quarter of 2019, the Company remitted all amounts due to the applicable governmental parties and has relieved the applicable portion of the liability in the caption “Accrual for Legal Matters and Settlements Current” on its balance sheet.

 

Litigation Relating to Bamboo Flooring

In 2014, Dana Gold  filed a purported class action lawsuit alleging that certain bamboo flooring that the Company sells (the “Strand Bamboo Product”) is defective (the “Gold Litigation”). The plaintiffs sought financial damages and, in addition to attorneys’ fees and costs, the plaintiffs wanted a declaration that the Company’s actions violated the law.

On March 15, 2019, the Company entered into a Memorandum of Understanding (the “Gold MOU”), which would resolve the Gold Litigation on a nationwide basis. Under the terms of the Gold MOU, the Company will contribute $14 million in cash and provide $14 million in store-credit vouchers, with a potential additional $2 million in store-credit vouchers based on obtaining a claim’s percentage of more than 7%, for an aggregate settlement of up to $30 million. The Gold MOU is subject to certain contingencies, including the execution of a definitive settlement agreement, board approval and court approvals of the definitive settlement agreement. The entry into the Gold MOU or any subsequent execution of a definitive settlement agreement does not constitute an admission by the Company of any fault or liability and the Company does not admit any fault or liability. There can be no assurance that a settlement will be finalized and approved or as to the ultimate outcome of the litigation. If a final, court-approved settlement is not reached, the Company will defend the matter vigorously and believes there are meritorious defenses and legal standards that must be met for, among other things, success on the merits. The Company accrued within SG&A a $28 million liability with the offset in the caption “Accrual for Legal Matters and Settlements Current” in its December 31, 2018 financial statements. The Company has notified its insurance carriers and continues to pursue coverage, but the insurers to date have denied coverage. As the insurance claim is still pending, the Company has not recognized any insurance recovery related to the Gold Litigation.

In addition, there are a number of other claims and lawsuits alleging damages similar to those in the Gold Litigation. The Company disputes these claims and intends to defend such matters vigorously. Given the uncertainty of litigation, the preliminary stage of the cases, and the legal standards that must be met for success on the merits, the Company is unable to estimate the amount of loss, or range of possible loss, at this time that may result from these actions. Accordingly, no accruals have been made with respect to these matters. Any such losses could, potentially, have a material adverse effect, individually or collectively, on the Company’s results of operations, financial condition, and liquidity.

 

Litigation Relating to Chinese Laminates

Formaldehyde-Abrasion MDLs

On March 15, 2018, the Company entered into a settlement agreement with the lead plaintiffs in the Formaldehyde MDL (as defined in Part II, Item 1 of this Form 10-Q) and Abrasion MDL (as defined in Part II, Item 1 of this Form 10-Q), cases more fully described in Part II, Item 1 of this Form 10-Q. Under the terms of the settlement agreement, the Company agreed to fund $22 million in cash and provide $14 million in store-credit vouchers for an

14

aggregate settlement of $36 million to settle claims brought on behalf of purchasers of Chinese-manufactured laminate flooring sold by the Company between January 1, 2009 and May 31, 2015. The Company deposited $22 million into an escrow account administered by the court and plaintiffs’ counsel in accordance with the final settlement. The final approval order by the United States District Court for the Eastern District of Virginia has been appealed and is pending. The Company does not anticipate any change to its obligations, but must wait until the appeals are adjudicated or withdrawn.  If the appeals were to result in the settlement being set aside, the Company would receive $21.5 million back from the escrow agent. Accordingly, the Company has accounted for the payment of $21.5 million as a deposit in the accompanying condensed consolidated financial statements. The $36 million aggregate settlement amount was accrued within SG&A expenses in 2017.

   

For approximately three years after a final ruling has been reached in this matter, plaintiffs will be able to redeem vouchers for product. Some of the states have alternative expiration dates while others have an indefinite amount of time to redeem vouchers. The Company will account for the sales of these products by relieving the relevant liability, reducing inventory used in the transaction and offsetting SG&A expenses for any profit. The Company does not know the timing or pace of voucher redemption. 

   

In addition to those purchasers who opted out of the above settlement (the “Opt Outs”), there are a number of individual claims and lawsuits alleging personal injuries, breach of warranty claims, or violation of state consumer protection statutes that remain pending (collectively, the “Related Laminate Matters”). Certain of these Related Laminate Matters were settled in 2019 and 2018, while some remain in settlement negotiations. The Company recognized charges to earnings of $0.4 million and $2.9 million for the six months ended June 30, 2019 and 2018, respectively, within SG&A expenses for these Remaining Laminate Matters. As of June 30, 2019, the remaining accrual related to these matters was $0.1 million, which has been included in the caption “Accrual for Legal Matters and Settlements Current” on the condensed consolidated balance sheet. While the Company believes that a further loss associated with the Opt Outs and Related Laminate Matters is reasonably possible, the Company is unable to reasonably estimate the amount or range of possible loss beyond what has been provided. If the Company incurs losses with the respect to the Opt Outs or further losses with respect to Related Laminate Matters, the ultimate resolution of these actions could have a material adverse effect on the Company’s results of operations, financial condition, and liquidity. 

 

Canadian Litigation

On or about April 1, 2015, Sarah Steele (“Steele”) filed a purported class action lawsuit in the Ontario, Canada Superior Court of Justice against the Company. In the complaint, Steele’s allegations include strict liability, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, fraud by concealment, civil negligence, negligent misrepresentation and breach of implied covenant of good faith and fair dealing. Steele did not quantify any alleged damages in her complaint, but seeks compensatory damages, punitive, exemplary and aggravated damages, statutory remedies, attorneys’ fees and costs. While the Company believes that a loss associated with the Steele litigation is possible, the Company is unable to reasonably estimate the amount or range of possible loss.

 

Employee Classification Matters

On or about August 15, 2017, Ashleigh Mason, Dan Morse, Ryan Carroll and Osagie Ehigie filed a purported class action lawsuit in the United States District Court for the Eastern District of New York on behalf of all current and former store managers, store managers in training, installation sales managers and similarly situated current and former employees holding comparable positions but different titles (collectively, the “Putative Class Employees”) alleging that the Company violated the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”) by classifying the Putative Class Employees as exempt. The alleged violations include failure to pay for overtime work. The plaintiffs seek certification of the Putative Class Employees for (i) a collective action covering the period beginning three years prior to the filing of the complaint (plus a tolling period) through the disposition of this action for the Putative Class Employees nationwide in connection with FLSA and (ii) a class action covering the period beginning six years prior to the filing of the complaint (plus a tolling period) through the disposition of this action for members of the Putative Class Employees who currently are or were employed in New York in connection with NYLL. The plaintiffs did not quantify any alleged damages but, in addition to attorneys’ fees and costs, the plaintiffs seek class certification, unspecified amounts for

15

unpaid wages and overtime wages, liquidated and/or punitive damages, declaratory relief, restitution, statutory penalties, injunctive relief and other damages. The Company disputes the claims and intends to defend the matters vigorously. Given the uncertainty of litigation, the preliminary stage of the case and the legal standards that must be met for, among other things, class certification and success on the merits, the Company is unable to estimate the amount of loss, or range of possible loss, at this time that may result from these actions.  Accordingly, no accruals have been made with respect to this matter. Any such losses could potentially have a material adverse effect, individually or collectively, on the Company’s results of operations, financial condition, and liquidity. 

 

On or about November 17, 2017, Robert J. Kramer, on behalf of himself and all others similarly situated (collectively, the “Kramer Plaintiffs”) filed a purported class action lawsuit in the Superior Court of California, County of Sacramento on behalf of all current and former store managers, all others with similar job functions and/or titles and all current and former employees classified as non-exempt or incorrectly classified as exempt and who worked for the Company in the State of California (collectively, the “CSM Employees”) alleging violation of the California Labor Code including, among other items, failure to pay wages and overtime and engaging in unfair business practices (the “Kramer matter”).

 

In July 2019, the Company entered into a Memorandum of Understanding (“Kramer MOU”) with the lead plaintiff in the Kramer matter. Under the terms of the Kramer MOU, the Company will pay $4.75 million to settle the claims asserted in the Kramer matter (or which could have been asserted in the Kramer matter) on behalf of all current and/or former Store Managers and Store Managers in Training employed by the Company at any time between November 17, 2013 until the time of preliminary approval of the settlement by the court. The Kramer MOU is subject to certain contingencies, including the execution of a definitive settlement agreement and court approvals of the definitive settlement agreement. There can be no assurance that a settlement will be finalized and approved or as to the ultimate outcome of the litigation. If a final, court-approved settlement is not reached, the Company will defend the matter vigorously and believes there are meritorious defenses and legal standards that must be met for, among other things, class certification and success on the merits. If the parties are unable to finalize the settlement, the Kramer matter could have a material adverse effect on the Company’s financial condition and results of operations. As a result of these developments, the Company determined that a probable loss has been incurred and has accrued within SG&A a $4.75 million liability during the quarter ended June 30, 2019 offset in the caption “Accrual for Legal Matters and Settlements Current” on its condensed consolidated financial statements.

 

Antidumping and Countervailing Duties Investigation

In October 2010, a conglomeration of domestic manufacturers of multilayered wood flooring filed a petition seeking the imposition of antidumping (“AD”) and countervailing duties (“CVD”) with the United States Department of Commerce (“DOC”) and the United States International Trade Commission (“ITC”) against imports of multilayered wood flooring from China. This ruling applies to companies importing multilayered wood flooring from Chinese suppliers subject to the AD and CVD orders. The Company’s multilayered wood flooring imports from China accounted for approximately 7% and 8% of its flooring purchases in 2018 and 2017, respectively. The Company’s consistent view through the course of this matter has been, and remains, that its imports are neither dumped nor subsidized. As such, it has appealed the original imposition of AD and CVD fees.

As part of its processes in these proceedings, the DOC conducts annual reviews of the AD and CVD rates. In such cases, the DOC will issue preliminary rates that are not binding and are subject to comment by interested parties. After consideration of the comments received, the DOC will issue final rates for the applicable period, which may lag by a year or more. At the time of import, the Company makes deposits at the then prevailing rate, even while the annual review is in process. When rates are declared final by the DOC, the Company accrues a receivable or payable depending on where that final rate compares to the deposits it has made. The Company and/or the domestic manufacturers can appeal the final rate for any period and can place a hold on final settlement by U.S. Customs and Border Protection while the appeals are pending.

In addition to its overall appeal of the imposition of AD and CVD, which is still pending, the Company as well as other involved parties have appealed many of the final rate determinations. Those appeals are pending and, at times, have resulted in delays in settling the shortfalls and refunds shown in the table below. Because of the length of time for

16

finalization of rates as well as appeals, any subsequent adjustment of AD and CVD rates typically flows through a period different from those in which the inventory was originally purchased and/or sold.

The first 5‑year Sunset Review of the AD and CVD orders on multilayered wood flooring (the “Sunset Review”) began in November 2016 at the ITC to determine whether to terminate the orders. The Company participated fully in this Sunset Review. In December 2017, the ITC determined that the AD and CVD orders will remain in place.

Results by period for the Company are shown below. The column labeled ‘June 30, 2019 Receivable/Liability Balance’ represents the amount the Company would receive or pay (net of any collections or payments) as the result of subsequent adjustment to rates whether due to finalization by the DOC or because of action of a court based on appeals by various parties. It does not include any initial amounts paid for AD or CVD in the current period at the in-effect rate at that time.

 

The Company recorded net interest expense related to antidumping of $0.6 million for the six months ended June 30, 2019, with the amount included in other expense on the condensed consolidated statements of operations. The estimated associated interest payable and receivable for each period is not included in the table below and is included in the same financial statement line item on the Company’s condensed consolidated balance sheet as the associated liability and receivable balance for each period.

 

17

 

 

 

 

 

Review

    

Rates at which

    

June 30, 2019

Period

Period Covered

Company

Final Rate

Receivable/Liability

 

 

Deposited

 

Balance

Antidumping

1

May 2011 through

6.78% and 3.3%

0.73%1

$1.3 million

 

November 2012

 

 

receivable1

2

December 2012 through

3.30%

13.74%2

$4.1 million

 

November 2013

 

 

liability2

3

December 2013 through

3.3% and 5.92%

17.37%

$5.5 million

 

November 2014

 

 

liability

4

December 2014 through

5.92% and 13.74%

0.0%

$0.03 million

 

November 2015

 

 

receivable

5

December 2015 through

5.92%. 13.74%. and 17.37%

0.0%3

$2.6 million

 

November 2016

 

 

receivable3

6

December 2016 through

17.37% and 0.0%

Pending4

NA

 

November 2017

 

 

 

7

December 2017 through

0.00%

Pending

NA

 

November 2018

 

 

 

 

 

 

Included on the Condensed Consolidated Balance Sheet in
Other Current Assets

$2.63 million

 

 

 

Included on the Condensed Consolidated Balance Sheet in
Other Assets

$1.3 million

 

 

 

Included on the Condensed Consolidated Balance Sheet in
Other Long-Term Liabilities

$9.6 million

Countervailing

1&2

April 2011 through

1.50%

0.83% / 0.99%

$0.2 million

 

December 2012

 

 

receivable

3

January 2013 through
December 2013

1.50%

1.38%

$0.05 million
receivable

4

January 2014 through
December 2014

1.50% and 0.83%

1.06%

$0.02 million
receivable

5

January 2015 through
December 2015

0.83% and 0.99%

Final at 0.11% and 0.85%5

$0.08 million
receivable
 5

6

January 2016 through
December 2016

0.99% and 1.38%

Pending

NA

7

January 2017 through
December 2017

1.38% and 1.06%

Pending

NA

8

January 2018 through
December 2018

1.06%

Pending

NA

 

 

 

Included on the Condensed Consolidated Balance Sheet in
Other Current Assets

$0.08 million

 

 

 

Included on the Condensed Consolidated Balance Sheet in
Other Assets

$0.27 million

 

 

 

 

 

1

In June 2018, the Court of International Trade sustained the DOC’s recommendation to reduce the rate for the first annual review period to 0.73% (from 5.92%). As a result, in the second quarter of 2018 the Company reversed its $0.8 million liability and recorded a $1.3 million receivable with a corresponding reduction of cost of sales.

2

As a result of the remand from CIT, in June 2019 the DOC proposed to reduce the AD rate to 6.55% for the second annual review period. The CIT is expected to rule on the DOC’s remand by the end of 2019.  If the final ruling remains at 6.55% (from 13.74%), the Company’s liability of $4.1 million would decrease by $2.8 million to $1.3 million in the period in which the ruling is finalized.

3

In July 2018, the DOC issued the final rates for review period 5 at 0.0%. As a result, in the third quarter of 2018 the Company recorded a receivable of $2.8 million with a corresponding reduction of cost of sales.

4

In July 2019, the DOC issued the final rates for review period 6 at a  maximimum of 42.57%.   With the finalization of the AD rate for the sixth annual review, the Company expects to record a liability of approximately $0.8 million during the third quarter of 2019.

5

In June 2018, the DOC issued the final rates for review period 5 at 0.11% and 0.85% depending on vendor. As a result, in the second quarter of 2018 the Company recorded a receivable of $0.07 million for deposits made at previous preliminary rates, with a corresponding reduction of cost of sales.

18

 

Other Matters

The Company is also, from time to time, subject to claims and disputes arising in the normal course of business. In the opinion of management, while the outcome of any such claims and disputes cannot be predicted with certainty, its ultimate liability in connection with these matters is not expected to have a material adverse effect on the Company’s results of operations, financial position or liquidity.

 

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

Cautionary Note Regarding Forward-Looking Statements

This report includes statements of the Company’s expectations, intentions, plans and beliefs that constitute “forward-looking statements” within the meanings of the Private Securities Litigation Reform Act of 1995. These statements, which may be identified by words such as “may,” “will,” “should,” “expects,” “intends,” “plans,” “anticipates,” “believes,” “thinks,” “estimates,” “seeks,” “predicts,” “could,” “projects,” “potential” and other similar terms and phrases, are based on the beliefs of the Company’s management, as well as assumptions made by, and information currently available to, the Company’s management as of the date of such statements. These statements are subject to risks and uncertainties, all of which are difficult to predict and many of which are beyond the Company’s control. These risks include, without limitation, the impact on us of any of the following:

·

obtaining products from abroad, including the effects of tariffs, as well as the effects of antidumping and countervailing duties;

·

the outcomes of legal proceedings and the related impact on liquidity;

·

reputational harm;

·

obligations related to and impacts of new laws and regulations, including tariffs;

·

obligations under various settlement agreements and other compliance matters;

·

disruptions related to our corporate headquarters relocation;

·

the effect of pricing strategies

·

inability to open new stores and fund other capital expenditures;

·

inability to execute on our key initiatives or such key initiatives do not yield desired results;

·

managing growth;

·

transportation costs;

·

damage to our assets;

·

disruption in our ability to distribute our products;

·

operating stores in Canada and an office in China;

·

managing third-party installers and product delivery companies;

·

renewing store or warehouse leases;

·

having sufficient suppliers;

·

our, and our suppliers’, compliance with complex and evolving rules, regulations, and laws at the federal, state, and local level;

·

disruption in our ability to obtain products from our suppliers;

·

product liability claims;

·

availability of suitable hardwood, including due to disruptions from the impacts of severe weather;

·

changes in economic conditions, both domestic and abroad;

·

sufficient insurance coverage;

·

access to and costs of capital;

·

disruption due to cybersecurity threats;

·

the handling of confidential customer information, including the impacts from the California Consumer Privacy Act;

·

management information systems disruptions;

·

alternative e-commerce offerings;

19

·

our advertising strategy;

·

anticipating consumer trends;

·

competition;

·

impact of changes in accounting guidance, including the implementation guidelines and interpretations;

·

maintenance of valuation allowances on deferred tax assets and the impacts thereof;

·

internal controls including those over tariffs;

·

stock price volatility; and

·

anti-takeover provisions.

Information regarding risks and uncertainties is contained in the Company’s other reports filed with the SEC, including the Item 1A, “Risk Factors,” section of the Form 10‑K for the year ended December 31, 2018.

This management discussion should be read in conjunction with the financial statements and notes included in Part I, Item 1. “Financial Statements” of this quarterly report and the audited financial statements and notes and management discussion included in the Company’s annual report filed on Form 10‑K for the year ended December 31, 2018.

Overview

Lumber Liquidators is one of the leading specialty retailers of hard-surface flooring in North America, offering a complete purchasing solution across an extensive assortment of domestic and exotic hardwood species, engineered hardwood, laminate, resilient vinyl, waterproof vinyl plank and porcelain tile. We also feature the renewable flooring products, bamboo and cork, and provide a wide selection of flooring enhancements and accessories, including moldings, noise-reducing underlayment, adhesives and flooring tools. We offer installation and delivery services through third-party independent contractors for customers who purchase our floors. At June 30, 2019, we sold our products through 415 Lumber Liquidators stores in 47 states in the United States and in Canada, a call center and websites.

We believe we have achieved a reputation for offering great value, superior service, and a broad selection of high-quality flooring products. With a balance of price, selection, quality, availability and service, we believe our value proposition is the most complete within a highly fragmented hard-surface flooring market. The foundation for our value proposition is strengthened by our unique store model, the industry expertise of our people, our singular focus on hard-surface flooring, and our advertising reach and frequency.

To supplement the financial measures prepared in accordance with GAAP, we use the following non-GAAP financial measures: (i) Adjusted Gross Profit  (ii) Adjusted Gross Margin (iii) Adjusted SG&A and (iv) Adjusted Operating Income. The non-GAAP financial measures should be viewed in addition to, and not in lieu of, financial measures calculated in accordance with GAAP. These supplemental measures may vary from, and may not be comparable to, similarly titled measures by other companies.

The non-GAAP financial measures are presented because management uses these non-GAAP financial measures to evaluate our operating performance and to determine incentive compensation. Therefore, we believe that the presentation of non-GAAP financial measures provides useful supplementary information to, and facilitates additional analysis by, investors. The presented non-GAAP financial measures exclude items that management does not believe reflect our core operating performance, which include regulatory and legal settlements and associated legal and operating costs, and changes in antidumping and countervailing duties, as such items are outside of our control or due to their inherent unusual, non-operating, unpredictable, non-recurring, or non-cash nature.

Executive Summary

We continue to focus on increasing our sales and operating margin, and providing an improved shopping experience for our customers. During the second quarter of 2019 and throughout the remainder of the year, our focus will be on driving do-it-yourself, do-it-for-me, and Pro traffic into our stores, enhancing the customer experience across both our digital platform and within our stores and improving our operational effectiveness. Our research indicates that

20

the initial interest in purchasing a floor begins with digital browsing online, and we believe that by providing an improved digital experience and better website performance, we will not only grow our e-commerce sales, but also drive traffic into our stores. Once customers are in our stores, we believe that our store model provides a competitive advantage by allowing our knowledgeable sales associates to assist customers throughout the project design and purchase process in a more intimate environment, from product selection to installation.  We introduced a new tool called the PictureIt! in the second quarter that allows customers to digitally visualize our floors in their rooms.

Tariffs continue to play a role in year-over-year comparisons.  Beginning in September 2018, tariffs on goods coming from China received an additional 10% tariff.  Beginning in June 2019, the tariffs increased to 25%.  If no mitigation steps are taken, or the mitigation is unsuccessful, the combination of  tariffs will result in more than $50 million of annualized cost to the Company as we source between 45% and 50% of our merchandise from China.  We offset the initial 10% tariffs by negotiating lower prices from our vendors.  We are in the midst of mitigating the latest increase to tariffs by increasing prices, negotiating lower prices from our vendors, sourcing product from alternative countries where possible, and finding other cost savings.  Because our inventory turns over about 2.5 times per year, and because the timing of the tariffs does not match the mitigation efforts, comparisons to the prior year are affected.

Net sales in the second quarter of 2019 increased $5.1 million, or 1.8%, to $289 million from the second quarter of 2018. Net sales from stores open less than 13 months were $6.4 million.  Net sales in comparable stores were flat, as a decline in merchandise sales was mostly offset by the expansion of installation services and to a lesser extent raising prices on certain products following the tariff announcements noted above.  We opened three new stores and closed one in the second quarter bringing total store count to 415 as of June 30, 2019. 

Gross profit increased 1.2% in the second quarter of 2019 to $102 million from $101 million in the comparable period in 2018, including the effect of certain duties that related to prior periods.  Gross margin decreased to 35.5% in the second quarter of 2019 from 35.7% in the second quarter of 2018.  Adjusted Gross Profit (a non-GAAP measure) increased 2.5% to $102 million in the second quarter of 2019 compared to $99 million in the year-earlier period.  This resulted in an Adjusted Gross Margin (a non-GAAP measure) that improved by 20 basis points to 35.2% in the second quarter of 2019 from 35.0% in the second quarter of 2018.  Additional tariff costs on products originating in China were offset by lower costs from vendors and higher selling prices, along with an improved mix of higher-margin manufactured products.

SG&A expense increased 1.6% to $104 million in the second quarter of 2019 from the comparable period in 2018 but included certain costs in both years related to investigations and lawsuits, including a $4.75 million accrual in the second quarter of 2019 related to the Kramer employment case discussed more fully in Note 8.  Excluding these items as shown in the table that follows, Adjusted SG&A (a non-GAAP measure) increased $1.9 million primarily as a result of increases in payroll and advertising.  Occupancy costs were relatively flat as the full-year effect of opening nine new stores, net, during the preceding four quarters was offset by a benefit from a landlord who compensated the Company for the early termination of a lease. 

Operating loss was $1.4 million and $0.9 million for the three months ended June 30, 2019 and 2018, respectively. Excluding the items discussed above and summarized in the table below, Adjusted Operating Income (a non-GAAP measure) grew to $3.6 million in the second quarter of 2019, compared to $3 million in the second quarter of 2018. 

Net loss for the three months ended June 30, 2019 was $2.9 million, or $0.10 per diluted share, compared to a net loss of $1.5 million, or $0.05 per diluted share, for the three months ended June 30, 2018.

As of June 30, 2019, we had $64.5 million outstanding under the Revolving Credit Facility and $25 million outstanding under the FILO Term Loan, which, collectively, is up from the $65 million that was outstanding at December 31, 2018. At June 30, 2019, we had $117 million in liquidity, comprised of $13 million of cash and cash equivalents and $104 million of availability under our asset-based revolving loan (the “Revolving Loan”). 

 

21

Results of Operations

We believe the selected sales data, the percentage relationship between net sales and major categories in the condensed consolidated statements of operations and the percentage change in the dollar amounts of each of the items presented below are important in evaluating the performance of our business operations.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

% Improvement

 

 

% of Net Sales

 

(Decline) in

 

 

Three Months Ended June 30,

 

Dollar Amounts

 

 

2019

    

2018

    

2019 VS 2018

    

Net Sales

 

 

 

 

 

 

 

 

 

Net Merchandise Sales

 

86.9

%

 

87.8

%

 

0.7

%

Net Services Sales

 

13.1

%

 

12.2

%

 

9.9

%

Total Net Sales

 

100.0

%

 

100.0

%

 

1.8

%

Gross Profit

 

35.5

%

 

35.7

%

 

1.2

%

Selling, General, and Administrative Expenses

 

36.0

%

 

36.1

%

 

1.6

%

Operating Loss

 

(0.5)

%

 

(0.3)

%

 

50.8

%

Other Expense (Income)

 

0.4

%

 

0.1

%

 

208.7

%

Loss Before Income Taxes

 

(0.8)

%

 

(0.4)

%

 

94.2

%

Income Tax Expense (Benefit)

 

0.1

%

 

0.1

%

 

110.8

%

Net Loss

 

(1.0)

%

 

(0.5)

%

 

96.4

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

% Improvement

 

 

% of Net Sales

 

(Decline) in

 

 

Six Months Ended June 30,

 

Dollar Amounts

 

 

2019

    

2018

    

2019 VS 2018

    

Net Sales

 

 

 

 

 

 

 

 

 

Net Merchandise Sales

 

88.1

%

 

89.0

%

 

0.6

%

Net Services Sales

 

11.9

%

 

11.0

%

 

10.8

%

Total Net Sales

 

100.0

%

 

100.0

%

 

1.7

%

Gross Profit

 

35.3

%

 

36.0

%

 

(0.1)

%

Selling, General, and Administrative Expenses

 

36.2

%

 

36.4

%

 

1.1

%

Operating Loss

 

(0.9)

%

 

(0.4)

%

 

103.4

%

Other Expense (Income)

 

0.4

%

 

0.1

%

 

253.5

%

Loss Before Income Taxes

 

(1.3)

%

 

(0.6)

%

 

136.5

%

Income Tax Expense (Benefit)

 

0.1

%

 

0.1

%

 

56.0

%

Net Loss

 

(1.4)

%

 

(0.6)

%

 

127.1

%

 

22

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

Six Months Ended

 

June 30,

 

 

June 30,

SELECTED SALES DATA

2019

 

 

2018

 

  

 

2019

 

 

2018

 

Average Sale1

2.5

%  

 

4.6

%  

 

 

1.3

%  

 

4.7

%  

Average Retail Price per Unit Sold2

0.4

%  

 

(1.9)

%  

 

 

(0.8)

%  

 

(1.5)

%  

 

 

 

 

 

 

 

 

 

 

 

 

 

Number of Stores Open, end of period

415

 

 

406

 

 

 

415

 

 

406

 

Number of Stores Opened in Period, net

 2

 

 

 8

 

 

 

 2

 

 

13

 

Number of Stores Relocated in Period3

 —

 

 

 —

 

 

 

 —

 

 

 —

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comparable Stores4 (% change to prior year):

  

 

 

  

 

 

 

  

 

 

  

 

Net Sales

(0.1)

%  

 

4.7

%  

 

 

(0.4)

%  

 

3.8

%  

Customers Invoiced5

(2.5)

%  

 

0.1

%  

 

 

(0.3)

%  

 

(0.9)

%  

Net Sales of Stores Operating for 13 to 36 months

12.9

%  

 

6.3

%  

 

 

8.9

%  

 

6.9

%  

Net Sales of Stores Operating for more than 36 months

(0.3)

%  

 

4.6

%  

 

 

(0.3)

%  

 

3.7

%  

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Sales in Markets with all Stores Comparable (no cannibalization)

0.4

%  

 

5.3

%  

 

 

0.1

%  

 

4.3

%  


1

Average sale is defined as the average invoiced sales order, measured quarterly, excluding returns as well as transactions under $100 (which are generally sample orders or add-on/accessories to existing orders).

2

Average retail price per unit sold is calculated on a total company basis and excludes non-merchandise revenue.

3

A relocated store remains a comparable store as long as it is relocated within the primary trade area.

4

A store is generally considered comparable on the first day of the thirteenth full calendar month after opening.

5

Change in number of customers invoiced is calculated by applying the average sale, described above, to total net sales at comparable stores.

 

Net Sales

Net sales for the second quarter of 2019 increased $5.1 million, or 1.8%, to $289 million from the second quarter of 2018 which was driven by stores that have been open less than thirteen months.  Net sales in comparable stores were flat in the second quarter, as a small decline in merchandise sales was mostly offset by the expansion of installation services.  We opened three new stores and closed one in the second quarter resulting in 415 stores as of June 30, 2019.  The decline in merchandise sales reflected lower performance in the bamboo and hardwood categories.  Partially offsetting, the manufactured category grew to 41% of our sales in the second quarter of 2019 and continued to outperform as customers’ desire for water-resistant flooring remains strong. 

Net sales for the six months ended June 30, 2019 increased $9.5 million, or 1.7%, from the comparable period in 2018, as net sales in comparable stores decreased slightly (0.4%), and net sales in non-comparable stores increased $12 million.

Gross Profit

Gross profit increased 1.2% in the second quarter of 2019 to $102 million from the comparable period in 2018.  Gross margin decreased to 35.5% in the second quarter of 2019 from 35.7% in the second quarter of 2018. Gross margin was favorably impacted by the Harmonized Tarriff Schedule (“HTS”) in the current period, and antidumping rate changes to prior periods, which generated income of $0.8 million and $2.1 million for the three months ended June 30, 2019 and 2018, respectively. Excluding these items from both periods, Adjusted Gross Profit (a non-GAAP measure) increased by $2.5 million and Adjusted Gross Margin (a non-GAAP measure) increased by 20 basis points, in the three months ended June 30, 2019 as compared to three months ended June 30, 2018.  The margin increase was driven by a higher mix of manufactured products, reduced discounting in the stores, the absence of a significant inventory obsolescence charge related to bamboo in the year-ago period, and an increase to prices in reaction to tariffs (late in the 2019 second quarter).  This improvement was achieved despite higher costs of tariffs and even with an increased mix of installation sales, which carry lower gross margins. 

23

Gross profit was $196 million for both the six months ended June 30, 2019  and the comparable period in 2018.  Gross margin decreased to 35.3% for the first six months of 2019 from 36.0% for the first six months of 2018.    Adjusted Gross Margin (a non-GAAP measure) was 35.2% in the six months ended June 30, 2019, a decrease of 40 basis points from the six months ended June 30, 2018 driven by higher tariff costs.

We believe that each of the items that follow can distort the visibility of our ongoing operating performance and that the evaluation of our financial performance can be enhanced by use of supplemental presentation of our results that exclude the impact of these items.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Six Months Ended

 

 

 

June 30,

 

June 30,

 

 

 

2019

2018

 

2019

2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(dollars in thousands)

 

Gross Profit, as reported (GAAP)

    

$

102,487

    

$

101,310

  

$

196,098

    

$

196,282

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Antidumping Adjustments 1

 

 

 —

 

 

(2,126)

 

 

 —

 

 

(2,126)

 

HTS Classification Adjustments 2

 

 

(779)

 

 

 —

 

 

(779)

 

 

 —

 

Sub-Total Items above

 

 

(779)

 

 

(2,126)

 

 

(779)

 

 

(2,126)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Adjusted Gross Profit (non-GAAP measures)

 

$

101,708

  

$

99,184

 

$

195,319

  

$

194,156

 


1

Represents countervailing and antidumping income of $2.1 million associated with applicable prior-year shipments of engineered hardwood from China for both the three and six months ended June 30, 2018.

2

Represents classification adjustments related to the HTS duty categorization in prior periods during the three and six months ended June 30, 2019.

 

Selling, General and Administrative Expenses

SG&A expenses increased 1.6% in the second quarter of 2019 to $104 million from $102 million in the comparable period in 2018 but included certain costs in both years related to investigations and lawsuits including an accrual to settle the Kramer employment case discussed in Note 8.  Excluding these items as shown in the table that follows, Adjusted SG&A (a non-GAAP measure) increased $1.9 million primarily as a result of increases in payroll and  advertising.  Occupancy costs were relatively flat as the full-year effect of opening nine new stores, net, during the preceding four quarters was offset by a benefit from a landlord who compensated the Company for early termination of a lease.  SG&A expenses increased 1.1% in the first half of 2019 to $201 million from the comparable period in 2018.  Again both periods included certain costs related to investigations and lawsuits as shown in the table that follows.  Excluding these items from both periods, Adjusted SG&A (a non-GAAP measure) increased by $4 million in the six months ended June 30, 2019 as compared to the year-ago period.  The increase in expense was due to payroll and occupancy of new stores partially offset by a reduction in costs allocated to production (as we ceased finishing our own floors in January).

We believe that each of the items that follow can distort the visibility of our ongoing performance and that the evaluation of our financial performance can be enhanced by use of supplemental presentation of our results that exclude the impact of these items.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Six Months Ended June 30,

 

 

2019

 

2018

 

2019

 

2018

 

 

(dollars in thousands)

 

SG&A, as reported (GAAP)

$

103,864

 

$

102,223

 

$

200,896

 

$

198,641

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Accrual for Legal Matters and Settlements 3

 

4,750

 

 

2,701

 

 

4,575

 

 

2,951

 

Legal and Professional Fees  4

 

1,017

 

 

3,325

 

 

2,995

 

 

6,391

 

Sub-Total Items above

 

5,767

 

 

6,026

 

 

7,570

 

 

9,342

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Adjusted SG&A (a non-GAAP measure)

$

98,097

 

$

96,197

 

$

193,326

 

$

189,299

 


24

3

This amount represents the charge to earnings for the Kramer matter and certain Related Laminate Matters, which is described more fully in Note 8 to the condensed consolidated financial statements.

4

Represents charges to earnings related to our defense of certain significant legal actions during the period. This does not include all legal costs incurred by the Company.

 

Operating Income (Loss) and Operating Margin

Operating losses for the three and six months ended June 30, 2019 were $1.4 million and $4.8 million, respectively, compared to operating losses of $0.9 million and $2.4 million in the comparable periods in 2018. Excluding the gross margin and SG&A items discussed above and summarized in the table below, Adjusted Operating Income (a non-GAAP measure) was $3.6 million for the three months ended June 30, 2019, compared to Adjusted Operating Income of $3 million for the three months ended June 30, 2018. The increase from the prior period was driven by the improvement in Adjusted Gross Margin.  Adjusted Operating Income was $2 million for the six months ended June 30, 2019, compared to Adjusted Operating Income of $4.9 million for the six months ended June 30, 2018. The decrease in Adjusted Operating Income for the year to date was driven by the impact of tariffs on margin during the first quarter of 2019.

We believe that each of these items can distort the visibility of our ongoing performance and that the evaluation of our financial performance can be enhanced by use of supplemental presentation of our results that exclude the impact of these items.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Six Months Ended June 30,

    

 

2019

    

2018

    

2019

    

2018

    

 

(dollars in thousands)

 

(dollars in thousands)

 

Operating Loss, as reported (GAAP)

$

(1,377)

 

$

(913)

 

$

(4,798)

 

$

(2,359)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross Margin Items:

 

  

 

 

  

 

 

  

 

 

  

 

Antidumping Adjustments 1

 

 —

 

 

(2,126)

 

 

 —

 

 

(2,126)

 

HTS Classification Adjustments 2

 

(779)

 

 

 —

 

 

(779)

 

 

 —

 

Gross Margin Subtotal

 

(779)

 

 

(2,126)

 

 

(779)

 

 

(2,126)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SG&A Items:

 

  

 

 

  

 

 

  

 

 

  

 

Accrual for Legal Matters and Settlements  3

 

4,750

 

 

2,701

 

 

4,575

 

 

2,951

 

Legal and Professional Fees  4

 

1,017

 

 

3,325

 

 

2,995

 

 

6,391

 

SG&A Subtotal

 

5,767

 

 

6,026

 

 

7,570

 

 

9,342

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Adjusted Operating Income (a non-GAAP measure)

$

3,611

 

$

2,987

 

$

1,993

 

$

4,857

 


1,2,3,4    See the Gross Profit and SG&A sections above for more detailed explanations of these individual items.

 

Other Expense

We had other expense of $1.1 million and $2.4 million in the three and six months ended June 30, 2019, respectively, and other expense of $0.3 million and $0.7 million in the three and six months ended June 30, 2018, respectively. The expense in both years primarily reflected interest on borrowings on our Revolving Loan.

Provision for Income Taxes

We have a full valuation allowance recorded against our net deferred tax assets which effectively offsets our federal taxes at the statutory rate of 21%. However, we recorded a tax expense each period for income taxes incurred in certain state and foreign jurisdictions resulting in an effective tax rate of (16.8)% and (8.7)%, respectively, for the three and six months ended June 30, 2019. For the three and six months ended June 30, 2018, the resulting effective tax rate was (15.5)% and (13.2)%, respectively.

We maintain a valuation allowance on our deferred tax assets until there is sufficient evidence to support the reversal of all or some portion of these allowances. A reduction in the valuation allowance could result in a significant

25

decrease in income tax expense in the period that the release is recorded. However, the exact timing and amount of any reduction in our valuation allowance are unknown at this time and will be subject to the earnings level we achieve in future periods.

   

Diluted Earnings per Share

Net loss for the three months ended June 30, 2019 was $2.9 million, or $0.10 per diluted share, compared to a net loss of $1.5 million, or $0.05 per diluted share, for the three months ended June 30, 2018. Net loss for the first six months of 2019 was $7.8 million, resulting in a loss of $0.27 per diluted share, compared to a net loss of $3.4 million, resulting in a loss of $0.12 per diluted share, for the first six months of 2018.

Seasonality

Our net sales fluctuate slightly as a result of seasonal factors, and we adjust merchandise inventories in anticipation of those factors, causing variations in our build of merchandise inventories. Generally, we experience higher-than-average net sales in the spring and fall, when more home remodeling activities are taking place, and lower-than-average net sales in the winter months and during the hottest summer months. These seasonal fluctuations, however, are minimized to some extent by our national presence, as markets experience different seasonal characteristics.

Liquidity and Capital Resources

Our principal liquidity and capital requirements are for capital expenditures to maintain and grow our business, for legal settlements,  for working capital, and for general corporate purposes. Our principal sources of liquidity at June 30, 2019 were $13 million of cash and cash equivalents on our balance sheet and $104 million of availability under our Revolving Loan.  As June 30, 2019, the outstanding balance on the FILO Term Loan was $25 million. As of June 30, 2019, the outstanding balance on the Revolving Loan was $64.5  million and it carried an average interest rate of 4.1%.

The DOJ and SEC settlements, discussed in Note 8 of this Form 10-Q, totaled $33 million and were paid in April 2019 along with other, smaller settlements.  Additionally, we anticipate funding $1 million of the cash portion of the expected settlement of the Gold Litigation upon the court’s preliminary approval; the remaining $13 million of the cash portion is expected to be paid subsequent to the court’s final approval. In certain circumstances, $6 million (of the $13 million) could be paid as early as the fourth quarter of 2019.

On March 29, 2019, we amended our Prior Credit Agreement to add incremental borrowing capacity of up to $50 million and to extend the maturity to 2024, which is described more fully in Note 5 to the condensed consolidated financial statements.  

We currently expect capital expenditures for 2019 to total between $15 million and $18 million, but we will continue to assess and adjust our level of capital expenditures based on changing circumstances.  Included in our capital requirement for 2019, is the funding to open 10 to 15 stores, remodel and/or relocate some existing stores, IT investments, and meet any obligations related to the relocation of our corporate headquarters.

Although certain matters remain outstanding, we have taken significant steps to eliminate uncertainty associated with legal and regulatory matters previously discussed. We believe that cash flows from operations, together with liquidity sources mentioned above, will be sufficient to fund our settlements, operations and anticipated capital expenditures for the next 12 months. We prepare our forecasted cash flow and liquidity estimates based on assumptions that we believe to be reasonable, but are also inherently uncertain. Actual future cash flows could differ from these estimates.

 

Merchandise Inventories

Merchandise inventories at June 30, 2019 decreased $15 million from December 31, 2018, as we have sold through merchandise that was purchased in advance of an announced, but subsequently postponed, 25% tariff on

26

purchases of Chinese goods. We consider merchandise inventories either “available for sale” or “inbound in-transit,” based on whether we have physically received and inspected the products at an individual store location, in our distribution centers or in another facility where we control and monitor inspection.

 

Merchandise inventories and available inventory per store in operation were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of
June 30, 2019

    

As of
December 31, 2018

    

As of
June 30, 2018

 

 

(in thousands)

Inventory – Available for Sale

 

$

267,089

 

$

275,036

 

$

250,673

Inventory – Inbound In-Transit

 

 

36,611

 

 

43,236

 

 

46,125

Total Merchandise Inventories

 

$

303,700

 

$

318,272

 

$

296,798

 

 

 

 

 

 

 

 

 

 

Available Inventory Per Store

 

$

644

 

$

666

 

$

617

 

Available inventory per store at June 30, 2019 was lower than at December 31, 2018 and higher than at June 30, 2018. The increase in inventory compared to June 30, 2018 was primarily due to an initiative to have, on hand in our stores, our top-selling floors and expanding our engineered assortment with new looks to meet customer demand. Including the effects of tariffs, we expect inventory to be in the range of $300 million to $325 million through the balance of the year.

Inbound in-transit inventory generally varies due to the timing of certain international shipments and certain seasonal factors, including international holidays, rainy seasons, and specific merchandise category planning.

Cash Flows

Operating Activities. Net cash used by operating activities was $14 million for the six months ended June 30, 2019 and $22 million for the six months ended June 30, 2018.  In 2019, a  payment of $33 million to settle the government investigations was the primary use of cash.  It was offset in part by a reduction in inventory as we sold through inventory purchased late in 2018 in advance of the announced higher tariff.  Net cash used in operating activities in the first half of 2018 was negative primarily due to a $39 million increase in inventory purchases, which was the result of a purposeful build of inventory to enhance the Company’s in-stock position at the store level. This was partially offset by increases in accounts payable and customer deposits.

Investing Activities. Net cash used in investing activities was $8.8 million and $6.6 million, respectively, for the six months ended June 30, 2019 and 2018, respectively. Net cash used in investing activities in both six month periods were primarily related to new store openings and our information technology initiatives; the current year also had investments related to the new Corporate headquarters.

Financing Activities. Net cash provided by financing activities was $23 million and $19 million for the six months ended June 30, 2019 and 2018, respectively.  The increase was primarily due to net borrowings on our revolving credit facility during the six months ended June 30, 2019 and 2018, respectively, to settle the government investigations (2019) and build inventory (2018).

Critical Accounting Policies and Estimates

Critical accounting policies are those that we believe are both significant and that require us to make difficult, subjective or complex judgments, often because we need to estimate the effect of inherently uncertain matters. We base our estimates and judgments on historical experiences and various other factors that we believe to be appropriate under the circumstances. Actual results may differ from these estimates, and we might obtain different estimates if we used different assumptions or conditions. We have had no significant changes in our Critical Accounting Policies and Estimates since our annual report on Form 10‑K for the year ended December 31, 2018.

27

Item 3. Quantitative and Qualitative Disclosures About Market Risk.

Interest Rate Risk.

We are exposed to interest rate risk through the investment of our cash and cash equivalents. We invest our cash in short-term investments with maturities of three months or less. Changes in interest rates affect the interest income we earn, and therefore impact our cash flows and results of operations. In addition, borrowings under our Credit Agreement are exposed to interest rate risk due to the variable rate of the facility, and the expected transition from the LIBOR reference rate in 2021. As of June 30, 2019, we had $64.5 million outstanding under the Revolving Credit Facility and $25 million outstanding under the FILO Term Loan.

We currently do not engage in any interest rate hedging activity. However, in the future, in an effort to mitigate losses associated with interest rate risks, we may at times enter into derivative financial instruments, although we have not historically done so. We do not, and do not intend to, engage in the practice of trading derivative securities for profit.

Exchange Rate Risk.

Less than two percent of our revenue, expense and capital purchasing activities are transacted in currencies other than the U.S. dollar, including the Euro, Canadian dollar, Chinese yuan and Brazilian real.

We currently do not engage in any exchange rate hedging activity. However, in the future, in an effort to mitigate losses associated with these risks, we may at times engage in transactions involving various derivative instruments to hedge revenues, inventory purchases, assets and liabilities denominated in foreign currencies.

 

Item 4. Controls and Procedures.

Evaluation of disclosure controls and procedures.  Our management, with the participation of our Chief Executive Officer and interim Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures (as defined under Rule 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the quarter ended June 30, 2019.  Based on this evaluation, our Chief Executive Officer and our interim Chief Financial Officer concluded that the Company's disclosure controls and procedures were not effective as of June 30, 2019 due to the material weakness in internal control over financial reporting related to the classification of imported products identified in the annual report on Form 10-K for the year ended December 31, 2018, as described below. 

 

Material Weakness in Internal Control Over Financial Reporting. A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of a company’s annual or interim financial statements will not be prevented or detected on a timely basis.  As noted in our Form 10-K, we did not maintain effective controls over the classification of imported products under the Harmonized Tariff System.  This classification is the basis on which tariff obligations on imported products are calculated.  We believe that this weakness was the result of inconsistent documentation of product specifications, an overreliance upon the knowledge and expertise of certain individuals, and review controls that did not operate at a level of precision to detect and correct these errors. 

 

Remediation of Material Weakness.  Management has been actively engaged in developing and implementing a remediation plan to address the material weakness noted above. The remediation actions we are taking and expect to take will include designing a process whereby 1) complete product specifications have been documented in a consistent manner, 2) review processes are consistently applied for newly created products, and 3) review processes are added to sample previously assigned codes to ensure continued applicability.  Employees hired as part of this process will have the requisite experience and expertise with customs and duties.  Management will also provide regular reporting on remediation measures to the Audit Committee of the Board. 

 

Management believes that these efforts will effectively remediate the material weakness. While significant progress has been made related to the remediation activities noted above, the material weakness in our internal control over financial reporting will not be considered remediated until the new controls are fully implemented, in operation for

28

a sufficient period of time and tested and concluded by management to be designed and operating effectively. Because the reliability of the internal control process requires repeatable execution, the successful remediation of this material weakness will require review and evidence of effectiveness prior to management concluding that the controls are effective and there is no assurance that additional remediation steps will not be necessary. Accordingly, the material weakness in our internal controls over financial reporting over the classification of imported products under the Harmonized Tariff System had not been fully remediated as of June 30, 2019.

 

During fiscal year 2019, management will test and evaluate the implementation of the new processes established as a result of the remediation plans, and the related internal controls to ascertain whether they are designed and operating effectively to provide reasonable assurance that they will prevent or detect a material error in the financial statements. Notwithstanding the identified material weaknesses, management believes the condensed consolidated financial statements included in this Form 10-Q fairly present, in all material respects, our financial condition, results of operations and cash flows at June 30, 2019 and for the periods presented in accordance with U.S. GAAP.

 

Changes in Internal Control over Financial Reporting. The Company’s management, with the participation of the Company’s Chief Executive Officer and interim Chief Financial Officer, evaluated the changes in our internal control over financial reporting during the period ended June 30, 2019.

 

Except as noted in the preceding paragraphs, there has been no change in our internal control over financial reporting that occurred during the most recent quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting. 

 

PART II
OTHER INFORMATION

Item 1. Legal Proceedings.

Litigation Relating to Bamboo Flooring

 

On or about December 8, 2014, Dana Gold filed a purported class action lawsuit in the United States District Court for the Northern District of California alleging that the Morning Star bamboo flooring that the Company sells is defective (the “Gold Litigation”). Plaintiffs narrowed the complaint to the Company’s Morning Star Strand Bamboo flooring (the “Strand Bamboo Product”) sold to residents of California, Florida, Illinois, Minnesota, Pennsylvania and West Virginia for personal, family or household use. The Gold Litigation alleges that the Company engaged in deceptive trade practices in conjunction with the sale of the Strand Bamboo Products. The plaintiffs did not quantify any alleged damages in their complaint but, in addition to attorneys’ fees and costs, the plaintiffs sought a declaration that the Company’s actions violate the law and that it is financially responsible for notifying all purported class members, injunctive relief requiring the Company to replace and/or repair all of the Strand Bamboo Product installed in structures owned by the purported class members and a declaration that the Company must disgorge, for the benefit of the purported classes, all or part of the profits received from the sale of the allegedly defective Strand Bamboo Product and/or to make full restitution to the plaintiffs and the purported class members. In November 2017, the court granted the plaintiffs’ motion for class certification with respect to the six states. The Company appealed the decision, but the petition for appeal was denied. On January 2, 2019, the court denied the Company’s motion for summary judgment. The Company participated in court-ordered mediation sessions. Trial, which was previously scheduled for February 25, 2019, has been postponed.

 

Following settlement discussions with the respect to the Gold Litigation, on March 15, 2019, the Company entered into a Memorandum of Understanding (the “Gold MOU”), which would resolve the Gold Litigation on a nationwide basis. Under the terms of the Gold MOU, the Company will contribute $14 million in cash and provide $14 million in store-credit vouchers, with a potential additional $2 million in store-credit vouchers based on obtaining a claim’s percentage of more than 7%, for an aggregate settlement of up to $30 million. The Gold MOU is subject to certain contingencies, including the execution of a definitive settlement agreement, board approval of the definitive settlement agreement and court approvals. The entry into the Gold MOU or any subsequent execution of a definitive settlement agreement does not constitute an admission by the Company of any fault or liability and the Company does

29

not admit any fault or liability. There can be no assurance that a settlement will be finalized and approved or as to the ultimate outcome of the litigation. If a final, court-approved settlement is not reached, the Company will defend the matter vigorously and believes there are meritorious defenses and legal standards that must be met for, among other things, success on the merits. The Company has notified its insurance carriers and continues to pursue coverage, but the insurers to date have denied coverage. As the insurance claim is still pending, the Company has not recognized any insurance recovery related to the Gold Litigation.

 

As a result of these developments, the Company has determined that a probable loss has been incurred and recognized a charge to earnings of $28 million within selling, general and administrative expense during the fourth quarter of 2018 with the offset in the caption “Accrual for Legal Matters and Settlements Current” on its condensed consolidated balance sheet related to this potential settlement as of December 31, 2018. If the Company does not execute a definitive settlement agreement consistent with the Gold MOU or incurs additional losses with respect to the Bamboo Flooring Litigation (as defined below), the actual losses that may result from these actions may exceed this amount. Any such losses could, potentially, have a material adverse effect, individually or collectively, on the Company’s results of operations, financial condition and liquidity.

 

In addition, there are a number of other claims and lawsuits alleging damages similar to those in the Gold Litigation (the “Bamboo Flooring Litigation”). While the Company believes that a loss associated with the Bamboo Flooring Litigation is reasonably possible, the Company is unable to reasonably estimate the amount or range of possible loss. Any such losses could, potentially, have a material adverse effect, individually or collectively, on the Company’s results of operations, financial condition and liquidity. The Company disputes the claims in the Bamboo Flooring Litigation and intends to defend such matters vigorously.

 

Litigation Relating to Chinese Laminates

 

Formaldehyde-Abrasion MDLs

 

Beginning on or about March 3, 2015, numerous purported class action cases were filed in various U.S. federal district courts and state courts involving claims of excessive formaldehyde emissions from the Company’s Chinese-manufactured laminate flooring products. The purported classes consisted of all U.S. consumers that purchased the relevant products during certain time periods. Plaintiffs in these cases challenged the Company’s labeling of its products as compliant with the California Air Resources Board Regulation and alleged claims for fraudulent concealment, breach of warranty, negligent misrepresentation and violation of various state consumer protection statutes. The plaintiffs sought various forms of declaratory and injunctive relief and unquantified damages, including restitution and actual, compensatory, consequential and, in certain cases, punitive damages, as well as interest, costs and attorneys’ fees incurred by the plaintiffs and other purported class members in connection with the alleged claims. The United States Judicial Panel on Multidistrict Litigation (the “MDL Panel”) transferred and consolidated the federal cases to the United States District Court for the Eastern District of Virginia (the “Virginia Court”). The consolidated case in the Virginia Court is captioned In re: Lumber Liquidators Chinese-Manufactured Flooring Products Marketing, Sales, Practices and Products Liability Litigation (the “Formaldehyde MDL”).

 

Beginning on or about May 20, 2015, multiple class actions were filed in the United States District Court for the Central District of California and other district courts located in the place of residence of each non-California plaintiffs consisting of U.S. consumers who purchased the Company’s Chinese-manufactured laminate flooring products challenging certain representations about the durability and abrasion class ratings of such products. These plaintiffs asserted claims for fraudulent concealment, breach of warranty and violation of various state consumer protection statutes. The plaintiffs did not quantify any alleged damages in these cases; however, in addition to attorneys’ fees and costs, they did seek an order (i) certifying the action as a class action, (ii) adopting the plaintiffs’ class definitions and finding that the plaintiffs are their proper representatives, (iii) appointing their counsel as class counsel, (iv) granting injunctive relief to prohibit the Company from continuing to advertise and/or sell laminate flooring products with false abrasion class ratings, (v) providing restitution of all monies the Company received from the plaintiffs and class members and (vi) providing damages (actual, compensatory and consequential), as well as punitive damages. On October 3, 2016, the MDL Panel transferred and consolidated the abrasion class actions to the Virginia Court. The

30

consolidated case is captioned In re: Lumber Liquidators Chinese-Manufactured Laminate Flooring Durability Marketing and Sales Practices Litigation (the “Abrasion MDL”).

 

On March 15, 2018, the Company entered into a settlement agreement to jointly settle the Formaldehyde MDL and the Abrasion MDL. Under the terms of the settlement agreement, the Company agreed to fund $22 million (the “Cash Payment”) and provide $14 million in store-credit vouchers for an aggregate settlement amount of $36 million to settle claims brought on behalf of purchasers of Chinese-manufactured laminate flooring sold by the Company between January 1, 2009 and May 31, 2015. The $36 million aggregate settlement amount was accrued in 2017. On June 16, 2018, the Virginia Court issued an order that, among other things, granted preliminary approval of the settlement agreement. Following the preliminary approval, and pursuant to the terms of the settlement agreement, the Company, in June, paid $0.5 million for settlement administration costs, which is part of the Cash Payment, to the plaintiffs’ settlement escrow account. Subsequent to the Final Approval and Fairness Hearing held on October 3, 2018, the Court approved the settlement on October 9, 2018 and, as a result, the Company paid $21.5 million in cash into the plaintiffs’ settlement escrow account.

 

On November 8, 2018, an individual filed a Notice of Appeal in the United States Court of Appeals for the Fourth Circuit (the “Appeals Court”) challenging the settlement. On December 14, 2018, another individual filed a Notice of Appeal in the Appeals Court. Subsequently, the Appeals Court consolidated both appeals and entered a briefing schedule. Vouchers, which generally have a three-year life, will be distributed by the administrator upon order of the Virginia Court. At December 31, 2018, the Company’s obligations related to Formaldehyde MDL and Abrasion MDL consisted of a short-term payable of $35.5 million with $14 million expected to be satisfied by the issuance of vouchers. If the appeals were to result in the settlement being set aside, the Company would receive $21.5 million back from the escrow agent. Accordingly, the Company has accounted for the payment of $21.5 million as a deposit in the accompanying condensed consolidated financial statements. The Company has no liability accrued related to the appeals.

 

In addition to those purchasers who elected to opt out of the above settlement (the “Opt Outs”), there are a number of individual claims and lawsuits alleging personal injuries, breach of warranty claims or violation of state consumer protection statutes that remain pending (collectively, the “Related Laminate Matters”). Certain of these Related Laminate Matters were settled in 2019 and 2018. The Company recognized charges to earnings of $0.4 million and $2.9 million for the six months ended June 30, 2019 and 2018, respectively, within selling, general and administrative expenses for these Related Laminate Matters.  As of June 30, 2019, the remaining accrual related to these matters was $0.1 million, which has been included in the caption “Accrual for Legal Matters and Settlements Current” on the condensed consolidated balance sheet. While the Company believes that a further loss associated with the Opt Outs and Related Laminate Matters is possible, the Company is unable to reasonably estimate the amount or range of possible loss beyond what has been provided. Any such losses could, potentially, have a material adverse effect, individually or collectively, on the Company’s results of operations, financial condition and liquidity.

 

Canadian Litigation

 

On or about April 1, 2015, Sarah Steele (“Steele”) filed a purported class action lawsuit in the Ontario, Canada Superior Court of Justice against the Company. In the complaint, Steele’s allegations include strict liability, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, fraud by concealment, civil negligence, negligent misrepresentation and breach of implied covenant of good faith and fair dealing. Steele did not quantify any alleged damages in her complaint, but seeks compensatory damages, punitive, exemplary and aggravated damages, statutory remedies, attorneys’ fees and costs. While the Company believes that a further loss associated with the Steele litigation is possible, the Company is unable to reasonably estimate the amount or range of possible loss.

 

31

Employment Cases

 

Mason Lawsuit

 

On or about August 15, 2017, Ashleigh Mason, Dan Morse, Ryan Carroll and Osagie Ehigie filed a purported class action lawsuit in the United States District Court for the Eastern District of New York on behalf of all current and former store managers, store managers in training, installation sales managers and similarly situated current and former employees holding comparable positions but different titles (collectively, the “Putative Class Employees”) alleging that the Company violated the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”) by classifying the Putative Class Employees as exempt. The alleged violations include failure to pay for overtime work. The plaintiffs seek certification of the Putative Class Employees for (i) a collective action covering the period beginning three years prior to the filing of the complaint (plus a tolling period) through the disposition of this action for the Putative Class Employees nationwide in connection with FLSA and (ii) a class action covering the period beginning six years prior to the filing of the complaint (plus a tolling period) through the disposition of this action for members of the Putative Class Employees who currently are or were employed in New York in connection with NYLL. The plaintiffs did not quantify any alleged damages but, in addition to attorneys’ fees and costs, the plaintiffs seek class certification, unspecified amounts for unpaid wages and overtime wages, liquidated and/or punitive damages, declaratory relief, restitution, statutory penalties, injunctive relief and other damages.

 

In November 2018, the plaintiffs filed a motion requesting conditional certification for all store managers and store managers in training who worked within the federal statute of limitations period.  In May 2019, the magistrate judge granted plaintiffs’ motion for conditional certification.  The Company filed objections to the magistrate judge’s class certification decision with the district judge.  That motion is currently pending.

 

The Company disputes the Putative Class Employees’ claims and intends to defend the matter vigorously. Given the uncertainty of litigation, the preliminary stage of the case and the legal standards that must be met for, among other things, class certification and success on the merits, the Company cannot estimate the reasonably possible loss or range of loss, if any, that may result from this action and therefore no accrual has been made related to this. Any such losses could, potentially, have a material adverse effect, individually or collectively, on the Company’s results of operations, financial condition and liquidity.

 

Kramer Lawsuit

 

On or about November 17, 2017, Robert J. Kramer, on behalf of himself and all others similarly situated (collectively, the “Kramer Plaintiffs”) filed a purported class action lawsuit in the Superior Court of California, County of Sacramento on behalf of all current and former store managers, all others with similar job functions and/or titles and all current and former employees classified as non-exempt or incorrectly classified as exempt and who worked for the Company in the State of California (collectively, the “CSM Employees”) alleging violation of the California Labor Code including, among other items, failure to pay wages and overtime and engaging in unfair business practices (the “Kramer matter”). The Kramer Plaintiffs seek certification of the CSM Employees for a class action covering the prior four-year period prior to the filing of the complaint through the disposition of this action for the CSM Employees who currently are or were employed in California (the “California SM Class”). On or about February 19, 2019, the Kramer Plaintiffs filed a first amended complaint adding a claim for penalties under the California Private Attorney General Act for the same substantive alleged violations asserted in the Complaint. The Kramer Plaintiffs did not quantify any alleged damages but, in addition to attorneys’ fees and costs, the Kramer Plaintiffs seek unspecified amounts for unpaid wages and overtime wages, liquidated and/or punitive damages, declaratory relief, restitution, statutory penalties, injunctive relief and other damages.

 

In July 2019, the Company entered into a Memorandum of Understanding (“Kramer MOU”) with the lead plaintiff in the Kramer matter. Under the terms of the Kramer MOU, the Company will pay $4.75 million to settle the claims asserted in the Kramer matter (or which could have been asserted in the Kramer matter) on behalf of all current and/or former store managers and store managers in training employed by the Company at any time between November 17, 2013 until the time of preliminary approval of the settlement by the court. The Kramer MOU is subject to certain contingencies, including the execution of a definitive settlement agreement and court approvals of the definitive

32

settlement agreement. There can be no assurance that a settlement will be finalized and approved or as to the ultimate outcome of the litigation. If a final, court-approved settlement is not reached, the Company will defend the matter vigorously and believes there are meritorious defenses and legal standards that must be met for, among other things, class certification and success on the merits. If the parties are unable to finalize the settlement, the Kramer matter could have a material adverse effect on the Company’s financial condition and results of operations. However, as a result of these developments, the Company has determined that a probable loss has been incurred and has recognized a net charge to earnings of approximately $4.75 million within selling general and administrative expense during the quarter ended June 30, 2019.

 

Antidumping and Countervailing Duties Investigation

 

In October 2010, a conglomeration of domestic manufacturers of multilayered wood flooring (“Petitioners”) filed a petition seeking the imposition of antidumping (“AD”) and countervailing duties (“CVD”) with the United States Department of Commerce (“DOC”) and the United States International Trade Commission (“ITC”) against imports of multilayered wood flooring from China. This ruling applies to companies importing multilayered wood flooring from Chinese suppliers subject to the AD and CVD orders. The Company’s multilayered wood flooring imports from China accounted for approximately 7% and 8% of its flooring purchases in 2018 and 2017, respectively. The Company’s consistent view through the course of this matter has been, and remains, that its imports are neither dumped nor subsidized.

 

As part of its processes in these proceedings, following the original investigation, the DOC conducts annual administrative reviews of the CVD and AD rates. In such cases, the DOC will issue preliminary rates that are not binding and are subject to comment by interested parties. After consideration of the comments received, the DOC will issue final rates for the applicable period, which may lag by a year or more. As rates are adjusted through the administrative reviews, the Company adjusts its payments prospectively based on the final rate. The Company will begin to pay the finalized rates on each applicable future purchase when recognized by U.S. Customs and Border Protection.

 

The DOC made its initial determinations in the original investigation regarding CVD and AD rates on April 6, 2011 and May 26, 2011, respectively. On December 8, 2011, orders were issued setting final AD and CVD rates at a maximum of 3.3% and 1.5%, respectively. These rates became effective in the form of additional duty deposits, which the Company has paid, and applied retroactively to the DOC initial determinations.

 

Following the issuance of these orders, a number of appeals were filed by several parties, including the Company, with the Court of International Trade (“CIT”) challenging, among other things, certain facts and methodologies that may impact the validity of the AD and CVD orders and the applicable rates. The Company participated in appeals of both the AD order and CVD order. On February 15, 2017, the Court of Appeals for the Federal Circuit (“CAFC”) vacated the CIT’s prior decision and remanded with instructions to the DOC to recalculate its AD rate. On remand, the DOC granted a 0% AD rate to eight Chinese suppliers, but did not exclude them permanently from the AD order. Nor did the CIT terminate the AD order. In July 2018, the CIT issued a judgment sustaining the DOC’s calculation of 0% for the eight suppliers, but also excluded three of them from the AD order. Certain Chinese suppliers and the Petitioners have appealed this judgment to the CAFC. The Company is evaluating the impact of the CIT’s judgment on its previously recorded expense related to the AD rates in the original investigation and subsequent annual reviews discussed below. Because of the length of time for finalization of rates as well as appeals, any subsequent adjustment of CVD and AD rates typically flows through a period different from those in which the inventory was originally purchased and/or sold.

 

In the first DOC annual review in this matter, AD rates for the period from May 26, 2011 through November 30, 2012, and CVD rates from April 6, 2011 through December 31, 2011, were modified to a maximum of 5.92% and a maximum of 0.83%, respectively, which resulted in an additional payment obligation for the Company, based on best estimates and shipments during the applicable window, of $0.8 million. The Company recorded this as a long-term liability on its accompanying condensed consolidated balance sheet and in cost of sales in its second quarter 2015 financial statements. These AD rates were appealed to the CIT by several parties, including the Company. On remand from the CIT, the DOC has reduced the AD rate to a maximum of 0.73%. In June 2018, the CIT sustained the reduced AD rate of a maximum of 0.73% but did remand back to the DOC the issue regarding the calculation of the electricity

33

rate, which, depending on that outcome, may cause a revision to the final AD rate. That remand from the DOC is still pending. The CIT has stayed the DOC remand pending the final disposition of the appeal of the original investigation at the CAFC. This ruling from the CIT resulted in the Company reversing the $0.8 million accrual and recording a receivable of approximately $1.3 million during the second quarter of 2018.

 

The second annual review of the AD and CVD rates was initiated in February 2014. Pursuant to the second annual review, in early July 2015, the DOC finalized the AD rate for the period from December 1, 2012 through November 30, 2013 at a maximum of 13.74% and the CVD rate for the period from January 1, 2012 through December 31, 2012 at a maximum of 0.99%. The Company believes the best estimate of the probable additional amounts owed was $4.1 million for shipments during the applicable time periods, which was recorded as a long-term liability on its accompanying condensed consolidated balance sheet and included in cost of sales in its second quarter 2015 financial statements. Beginning in July 2015, the Company began depositing these rates on each applicable purchase. The Company and other parties appealed the AD rates relating to this second annual review to the CIT. In June 2018, the court remanded the case back to the DOC to recalculate several of its adjustments. In its June 2019 remand, the DOC reduced the AD rate to 6.55%. The CIT is expected to rule on the DOC’s remand by the end of 2019.  If the final ruling remains at 6.55%, the Company’s liability of $4.1 million would decrease by $2.8 million to $1.3 million in the period in which the ruling is finalized.

 

The third annual review of the AD and CVD rates was initiated in February 2015. The third AD review covered shipments from December 1, 2013 through November 30, 2014. The third CVD review covered shipments from January 1, 2013 through December 31, 2013. In May 2016, the DOC issued the final CVD rate in the third review, which was a maximum of 1.38%. On July 13, 2016, the DOC set the final AD rate at a maximum of 17.37%. The Company appealed the AD rates to the CIT. In November 2018, the CIT issued an opinion sustaining the DOC’s results, that decision was appealed to the CAFC by certain plaintiff interveners in January 2019. The Company’s best estimate of the probable additional amounts owed associated with AD and CVD is approximately $5.5 million for shipments during the applicable time periods. During the quarter ended June 30, 2016, the Company recorded this amount in other long-term liabilities in its balance sheet and as a charge to earnings in cost of sales on its statement of operations.

 

The DOC initiated the fifth annual review of AD and CVD rates in February 2017. The AD review covers shipments from December 1, 2015 through November 30, 2016. The CVD review covers shipments from January 1, 2015 through December 31, 2015. In June 2018, the DOC issued the final CVD rate in the fifth review, which was a maximum of 0.85% (with one company having a maximum rate of 0.11%). In July 2018, the DOC issued the final AD rate in the fifth review, which was a maximum of 0.00% and, the Company recorded a receivable in the amount of $2.8 million in other current assets in its balance sheet. In connection with the issuance of the final CVD rate, with one company having a maximum rate of 0.11%, the Company recorded a receivable of less than $100 thousand.

 

The first 5-year Sunset Review of the AD and CVD orders on multilayered wood flooring (the “Sunset Review”) began in November 2016 at the ITC to determine whether to terminate the orders. The Company participated fully in this Sunset Review. In December 2017, the ITC determined that the AD and CVD orders will remain in place. The appeal of this determination by certain importers was filed but not subsequently pursued.

 

The DOC initiated the sixth annual review of AD and CVD rates in February 2018. The AD review covers shipments from December 1, 2016 through November 30, 2017. The CVD review covers shipments from January 1, 2016 through December 31, 2016. In July 2019, the DOC issued the final AD rate in the sixth annual review, which was a maximum of 42.57%, and the final CVD rate in the sixth annual review, which was a maximum of 3.2%. With the finalization of the AD rate for the sixth annual review, the Company expects to record a liability of approximately $0.8 million during the third quarter of 2019.  The Company currently plans to appeal the final AD rate ruling.

 

The DOC initiated the seventh annual review of the AD and CVD rates in March 2019, which is expected to follow the same schedule as the preceding reviews. The AD review covers shipments from December 1, 2017 through November 30, 2018. The CVD review covers shipments from January 1, 2017 through December 31, 2017.

 

34

Outstanding AD and CVD duties are subject to interest based on the IRS quarterly published rate. The Company has recorded a net $0.2 and $0.6 million of interest expense through the line item Other Expense on the Statement of Operations during the three and six months ending June 30, 2019, respectively.

 

Other Matters

The Company is also, from time to time, subject to claims and disputes arising in the normal course of business. In the opinion of management, while the outcome of any such claims and disputes cannot be predicted with certainty, its ultimate liability in connection with these matters is not expected to have a material adverse effect on the Company’s results of operations, financial position or liquidity. 

 

 

Item 1A. Risk Factors.

In addition to the other information set forth in this report, you should carefully consider the factors discussed in Part I, Item 1A, “Risk Factors,” in our annual report on Form 10-K for the year ended December 31, 2018, which could materially affect our business, financial condition or future results. The risks described in our annual report on Form 10-K are not the only risks we face. Additional risks and uncertainties not currently known to us or that we currently deem to be immaterial also may materially adversely affect or business, financial condition and/or results of operations.

 

 

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.

The following table presents our share repurchase activity for the quarter ended June 30, 2019 (in thousands, except per share amounts):

 

 

 

 

 

 

 

 

 

 

    

 

    

 

    

Total Number

    

Maximum Dollar Value

 

 

 

 

 

 

of Shares

 

of Shares That May Yet

 

 

 

 

 

 

Purchased as

 

Be Purchased as

 

 

Total Number

 

Average

 

Part of Publicly

 

Part of Publicly

 

 

of Shares

 

Price Paid

 

Announced

 

Announced

Period

 

Purchased1

 

per Share1

 

Programs2

 

Programs2

April 1, 2019 to April 30, 2019

 

 —

 

 —

 

 —

 

 —

May 1, 2019 to May 31, 2019

 

 —

 

 —

 

 —

 

 —

June 1, 2019 to June 30, 2019

 

 —

 

 —

 

 —

 

 —

Total

 

 —

 

 —

 

 —

 

 —

 


1

We repurchased 10,360 shares of our common stock, at an average price of $10.78, in connection with the net settlement of shares issued as a result of the vesting of restricted shares during the quarter ended June 30, 2019.

2

Our initial stock repurchase program, which authorized the repurchase of up to $50 million in common stock, was authorized by our board of directors and publicly announced on February 22, 2012. Our board of directors subsequently authorized two additional stock repurchase programs, each of which authorized the repurchase of up to an additional $50 million in common stock. These programs have been publicly announced on November 15, 2012 and February 19, 2014, respectively, and are currently indefinitely suspended until we are better able to evaluate the long-term customer demand and assess our estimates of operations and cash flow. At June 30, 2019, we had approximately $14.7 million remaining under this authorization.

 

Item 3. Defaults Upon Senior Securities.

None.

 

35

Item 4. Mine Safety Disclosures.

None.

 

Item 5. Other Information.

None.

 

Item 6. Exhibits.

The exhibits listed in the following exhibit index are furnished as part of this report.

 

 

 

 

36

EXHIBIT INDEX

 

 

 

Exhibit

 

 

Number

    

Exhibit Description

 

 

 

10.1

 

Lumber Liquidators Holdings, Inc. Amended and Restated 2011 Equity Compensation Plan (filed as Exhibit 10.1 to the Company’s current report on Form 8-K, filed May 23, 2019 (File No. 001-33767), and incorporated by reference)

 

 

 

10.2

 

Form of Restricted Award Agreement (Director), effective May 22, 2019

 

 

 

31.1

 

Certification of Principal Executive Officer of Lumber Liquidators Holdings, Inc. pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

 

 

31.2

 

Certification of Principal Financial and Accounting Officer of Lumber Liquidators Holdings, Inc. pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

 

 

32.1

 

Certification of Principal Executive Officer and Principal Financial and Accounting Officer of Lumber Liquidators Holdings, Inc. pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

 

 

101

 

The following financial statements from the Company’s Form 10‑Q for the quarter ended June 30, 2019, formatted in XBRL: (i) Condensed Consolidated Balance Sheets, (ii) Condensed Consolidated Statements of Operations, (iii) Condensed Consolidated Statements of Comprehensive Loss, (iv) Condensed Consolidated Statements of Stockholders’ Equity, (v) Condensed Consolidated Statements of Cash Flows, and (vi) Notes to Condensed Consolidated Financial Statements

 

 

37

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

 

 

 

LUMBER LIQUIDATORS HOLDINGS, INC.

 

 

(Registrant)

 

 

 

Date: August 6, 2019

By:

/s/ Timothy J. Mulvaney

 

 

Timothy J. Mulvaney

 

 

Interim Chief Financial Officer and

Senior Vice President, Chief Accounting Officer

 

 

(Principal Financial and Accounting Officer)

 

38