Biolase CEO Takes Dead Aim At Naked Short Sellers - Main Street Cheers

| About: Biolase, Inc. (BIOL)

Federico Pignatelli, Chairman and CEO of Biolase Inc. (NASDAQ:BIOL) called out naked short sellers and short-sellers attempting to manipulate shares of BIOL August 19th, in a candid press release. In short Mr. Pignatelli disclosed that Biolase will continue to issue stock dividends on a periodic basis to reward long-term shareholders and thwart the naked short selling of Biolase stock.

"It is widely known in the stock market that shorting and illegal naked shorting are often used to manipulate stocks and cause unjust enrichment of ruthless speculators. I advise management of all small cap companies that are subject to attacks from naked short sellers to uncover such illegal activities and protect their shareholders by issuing stock dividends on a quarterly, or even monthly, basis. This practice results in an automatic audit of issued and outstanding shares and help to keep away naked short sellers."

How exactly does this work? Here's how... When a company issues a stock dividend there must be an audit of all issued and outstanding shares to determine who to issue the stock dividend to and how much stock to issue to them. A legal short seller borrows shares and sells those shares onto the open market and until they buy them back (cover) and return them to the lender they are responsible for interest, margin requirements and any dividend payments (be it monetary or shares of stock) owed to the lender. Naked short selling is short selling a stock without first arranging a borrow. If the stock is in short supply, finding shares to borrow can be difficult.

If a company declares a stock dividend both the naked short seller and the short seller are on the hook to deliver those shares to the lender. This forces the short seller to "buy to cover" so they can return the shares to the lender. Couple this with the typical price appreciation of a dividend announcement and the fact that short sellers can get caught in a stampede that is self perpetuating because all of the short sellers try to "buy and cover" or exit at once. This phenomena is known as a "short squeeze" and drives the share price higher as shorts rush to the exits to close out part or all of their positions or at least whatever is required to satisfy the stock dividend requirement. Stocks with a high percentage of the float sold short are particularly susceptible to this phenomena.

Naked shorting can also effectively be accomplished via an illegal option strategy abusing the market maker exemption for short sales called a "reverse conversion". The SEC has caught onto this scheme and recently put out a "Risk Alert" detailing how to identify this activity but few think this "risk alert" will amount to any additional enforcement. The net result of illegal reverse conversions is a flood of fake shares that the short seller pours onto the open market in an attempt to quash rallies or stifle the stock price. These option pirates would be affected, just like a naked short seller, by a company issuing a stock dividend.

Below are two more of examples of highly shorted high profile stocks that could create shockwaves and significant stress on short sellers if they announced a stock dividend.

VirnetX (NYSEMKT:VHC) - With over 35% of the float short an announcement of a stock dividend could cause significant short covering. The company is obviously aware of this activity based on the most recent 10Q(pg 25):

"In addition, we believe there has been and may continue to be substantial off-market transactions in derivatives of our stock, including short selling activity or related similar activities, which are beyond our control and which may be beyond the full control of the SEC and Financial Institutions Regulatory Authority ("FINRA"). While SEC and FINRA rules prohibit some forms of short selling and other activities that may result in stock price manipulation, such activity may nonetheless occur without detection or enforcement. We have held conversations with regulators concerning trading activity in our stock; however, there can be no assurance that should there be any illegal manipulation in the trading of our stock it will be detected, prosecuted or successfully eradicated. Significant short selling or other types of market manipulation could cause our stock trading price to decline, to become more volatile, or both."

As a result of the 2010 Microsoft lawsuit settlement, VirnetX announced a $.50 special cash dividend on June 15th, 2010, with a stock price below $6 per share, payable to stock holders of record on July 15th, 2010 and by October 29th the shares traded at $18.55. Is the 300% increase in share price solely attributable to the special cash dividend? Probably not but it certainly caused many short sellers to cover their positions due to the increased carrying costs by "payments in lieu of dividends".

Arena Pharmaceuticals (NASDAQ:ARNA) - With over 30% of the float short and the recent launch of its flagship obesity drug Belviq the issuance of a stock dividend by Arena could cause significant short covering. From the latest Arena 10Q:

"From time to time, there is a large short interest in our stock. These holders of such stock or positions may seek control of us, support transactions that we or you do not believe are favorable, and have interests that are different from yours. In addition, sales of a large number of shares of our stock by these large stockholders or other stockholders within a short period of time could adversely affect our stock price."

Abusive naked short selling has been well documented in the case of Arena - including complaints to the SEC.

Of course companies still need a solid business, sales, technology, or proof of concept to remain viable - at the end of the day that is the best way to thwart naked short selling - issuing a stock dividend will not change this fact. However when the SEC is not able or willing or capable to make a concerted effort to stop the illegal naked short selling with the intent of tanking of publicly traded stocks - it is refreshing to see a CEO (and board of directors) come out and stand up for the common shareholders by issuing a stock dividend! Way to go Mr. Pignatelli! Main Street applauds the effort!

Disclosure: I am long VHC. I wrote this article myself, and it expresses my own opinions. I am not receiving compensation for it (other than from Seeking Alpha). I have no business relationship with any company whose stock is mentioned in this article.

Additional disclosure: This article is informational and intended to spur thought and discussion. This article is NOT a substitute for your own extensive due diligence and does NOT qualify as investment advice. DO NOT BUY OR SELL STOCKS BASED ON THIS ARTICLE. I do not short stocks nor do I invest in options.

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