Naked short selling whiner Biovail (NYSE: BVF) has settled accounting fraud charged with the SEC, agreeing to pay a fine of $10 million. According to the SEC's complaint:

The SEC's complaint alleges that present and former senior Biovail executives, obsessed with meeting quarterly and annual earnings guidance, repeatedly overstated earnings and hid losses in order to deceive investors and create the appearance of achieving earnings goals. When it ultimately became impossible to continue concealing the company's inability to meet its own earnings guidance, Biovail actively misled investors and analysts about the reasons for the company's poor performance.

The SEC adds that former chairman and chief executive officer Eugene Melnyk, former chief financial officer Brian Crombie, current controller John Miszuk; and current chief financial officer Kenneth G. Howling still face charges.

Biovail's allegations of a naked short selling conspiracy and menacing antics intimidated analysts, convincing Banc of America Securities, which had been negative about the company, to drop coverage of the stock. On his blog, financial journalist Gary Weiss writes that "Despite all the post-Enron rhetoric about the sanctity of independent analysts, the SEC has done woefully little against companies like Biovail and Overstock that want analysts to be obedient little puppies."

It seems like every few weeks, another naked short selling poster child is exposed as a securities fraud. Back in 2006, then-CEO Eugene Melnyk told 60 Minutes that "When you've got these companies, these people out there trying to bring you down, we're lucky we survived."

Moral of story: when a company starts complaining about naked short sellers conspiring to drive down the share price, sell the stock and ask questions after.

Overstock.com (NASDAQ: OSTK), the world's largest supplier of goofy and downright bizarre press releases, has issued a new gem for our amusement/amazement.

According to one issued this morning, "on December 27, 2007, the California First District Court of Appeal summarily denied an Application for a Writ of Mandate sought by defendant prime brokers in the case of Overstock.com, Inc., et al. v. Morgan Stanley & Co., Incorporated, et al., pending in the Superior Court of the State of California, City and County of San Francisco, Civil Action No. CGC-07-460147."

You have to admire a company that finds it necessary to put out press releases trumpeting each new development in its legal wranglings involving a bizarre conspiracy theory. Gary Weiss does, as usual, an excellent job dissecting the press release and tells us what Overstock didn't mention -- and it's big.

But here's my question -- Why is Overstock PR'ing legal "developments" a month after the fact? It looks like a pretty feeble attempt to stop the share price's death spiral which has shaved about three-quarters of its value in the past few months. But with the stock down about 5% as of 1:30 PM ET, I think we can declare this one a failure. The saga continues.

As Tracy Coenen discussed earlier, Overstock.com (NASDAQ: OSTK), co-founder, president and chief operating officer Jason Lindsey resigned and left the company's board of directors.

Lindsey had already retired once but came back, in CEO Patrick Byrne's own words, "when I screwed it up a couple years ago". Byrne added that "He's done a superb job. Now that it is back in a solid trailing twelve month cash-flow-positive position, he wishes to return to our previous arrangement. While Jason won't be as involved in the day-to-day operations of the company, he will still oversee special projects in a part-time capacity."

After Byrne's pat on the back and attaboys, the stock hit a new multi-year low in this morning's trading.

There are a few things to keep in mind here. As Gary Weiss wrote on his blog,

Lindsey says he is leaving because he is "ready to take a less active role in order to spend time on some outside ventures." Baloney. Note that he is leaving as director -- a position that surely requires no major heavy lifting in a board as supine as this one.

Sam Antar is also suspicious of the resignation that comes in the midst of an SEC investigation: "Was the SEC investigation of Overstock.com an undisclosed factor in Jason C. Lindsey's resignation?" Antar also discusses accounting questions surrounding Overstock.com, and comments from Mr. Lindsey on conference calls that raise questions about his involvement.

One thing's for sure: The market's reaction to Lindsey leaving doesn't suggest that traders buy Byrne's "everything is hunky dory" assertion that Lindsey left because he has restored the company to such great condition he is no longer needed in a full-time role.

While the aptly-named baloney brigade (name courtesy of Gary Weiss) makes much of the imaginary naked short selling crisis, there's another story involving short-selling regulations that isn't getting as much attention.

According to The New York Times, thirty-eight current and former employees of major Wall Street firms have been charged with running an elaborate scheme to take advantage of short-sellers looking to borrow shares. The schemes including fraudulent finder's fees and kickbacks -- all designed to increase the costs of borrowing shares,

According to a litigation release from the SEC, the defendants "defrauded the brokerage firms that employed them and others by engaging in collusive loan transactions and causing the firms to pay sham finder fees to companies controlled by the traders themselves or by their friends and relatives. Acting as fronts for the traders, these companies received hefty finder fees on several thousand stock loan transactions even though they did not provide any legitimate finding services and, in many cases, were simply shell companies that were not even involved in the stock loan business. These phony finders included a mailman, a perfume salesman, and a dental receptionist. The defendants shared in the sham finder fees through secret kickback arrangements. In some cases, defendants met monthly at New York City bars and restaurants to exchange thousands of dollars in cash, often wrapped in newspapers or stuffed into envelopes."

One of my heroes of tell-it-like-it-is business journalism (which is something I aspire to) is Gary Weiss. He covers the seedier side of Wall Street, and one of his favorite topics is the naked short scandal which he believes, as do I, is a red herring designed to distract investors from the real issue at the companies crying fail to deliver: their own failure to deliver profits.

When it was announced that the SEC was cracking down on naked short selling on Thursday, Weiss responded with (SEC head) Chris Cox OD's on Bologna. Never one to mince words, Weiss wrote that "As I pointed out a few days ago, the SEC's meeting yesterday resembled a cheaply stocked delicatessen more than it did a regulatory agency, with half the agenda devoted to baloney -- the nonexistent "naked short selling" scandal, promoted by a handful of crackpots and corporate losers in the Baloney Brigade."

He went on to say "OK, so where's all the punishment? Where are all the SEC enforcement actions? Where are all the customer complaints of genuine harm committed by genuine naked shorting of genuine, sound, non-money losing companies?"

I'm extending a challenge on BloggingStocks. If anyone can send me the name of a genuine, sound, non-money losing company along with evidence of how the company has been damaged by naked short-selling, I will post a detailed apology.

According to a study recently published in the Journal of Accounting Research, journalists are a lot better, or at least faster, at spotting signs of accounting fraud and corporate shenanigans than the SEC. Harvard Professor Gregory Miller measured the frequency of reporters beating the SEC to the punch in uncovering fraud and found that in roughly one-third of the 263 cases of accounting fraud confirmed by the SEC between 1987 and 2002, members of the press alleged wrongdoing before the SEC or the company announced any investigation.

The Columbia Journalism Review sums up the findings nicely: "And while beating the SEC to an investigation is like beating Porky the Pig in a bicycle race up the Alps, we concede it's not nothing."

I e-mailed Marketwatch columnist Herb Greenberg (Full disclosure: He's one of my heroes.) about the findings, because he was the only journalist to have proactively uncovered a case of accounting fraud before the SEC more than once; he's done that five times.

Given the relative speed with which journalists uncover fraud, I asked him whether the SEC could learn anything from the methods employed by journalist-gumshoes. Greenberg dismissed that idea saying that "There's a difference between reporting a story and formally investigating and finding legal fault .... No, nothing they can learn."

He added that that much-maligned band of investors known as short-sellers are often sources for investigative reporters, calling them the "first line of defense for investors because they're putting their own money on the line." But he said that really good information usually comes from "former employees, analysts, and mutual fund managers who have SOLD stocks for reasons other than valuation."

If you enjoy following the nakedshort-selling "scandal," you absolutely must bookmark Gary Weiss's blog. He tracks the ongoing shenanigans surrounding Overstock.com Inc. (NASDAQ: OSTK), which he referred to this morning as a "fascinating slow-mo corporate train wreck." You can also read his commentary on lesser-known but still interesting market scandals.

On Monday he wrote about CMKM Diamonds, a little-known penny stock that blamed its precipitous decline on naked short-selling. Its shareholders bought the explanation wholesale, and some even went to New York and Washington to stage loony protests against the evils of naked short-selling. Turns out it wasn't naked shorts after all. It was the company's dishonest management, which is currently being sued by new management for fraud and "looting" the company. They sold over $200 million in stock to the public, but almost none of it went to the company.

This is a great example of the tactic of diversion in action. Corporate criminals will often toss red herrings to divert the public's attention from their own misdeeds and poor management. Blaming naked short-selling seems to be the diversionary tactic du jour, and investors should probably head for the hills anytime a company complains about it.