Theranos and David Boies Cut Legal Ties
wsj.com
wsj.com
An elite, highly politically connected, young, blonde, Caucasian woman will not spend time in prison for a dubious charge of white collar crime. There is little to no hope of that in today's society, regardless of how damaging her actions are.
Edit: I'd love to be proven wrong on this comment, but I don't have much faith that this will ever come to happen. It is laughable to think that the American justice system is actually neutral across races or socioeconomic lines. Also, I agree that Theranos is toast. I just think it will try to become toast somewhat quietly.
Given what has come out so far, is the charge of criminally misrepresenting the efficacy of the product really dubious?
The problem here is not that Theranos has failed or has misrepresented the product, it's that Holmes personally needs to have been found to directly misrepresent the company in a fraudulent fashion. Her and Theranos can likely be sued (as civil cases require "preponderance of evidence") but I highly doubt you can prove fraud beyond a reasonable doubt unless there is a much greater scandal that is unearthed during an investigation. And that's probably not going to happen.
So let's talk about a federal investigation of Theranos, then: this is someone who has had James Mattis, the current prime candidate for Secretary of Defense, for help and sits on the board of Theranos [1]. She is connected to most of the political elite (Kissinger et al, all of the VC/finance world.) If anyone can put down an FBI investigation on her person, it would be someone this well connected to organizations that the FBI themselves lean upon in some way or another. This is Washington, and let's be real, favors are favors. Helping one of these guys somewhere in some way buys you favors, and you may be able to trade to get the investigation off of your back.
Furthermore, what stands to be gained by all of those on this board in power by prosecuting Holmes? It would tarnish the reputation of potential cabinet members and all others in Washington that "believed in" Holmes and her ideas. The political PR nightmare for these guys isn't worth the trouble of being involved in this. It becomes scandal for them. They would best see the company fade into irrelevance, and begin setting up the message that this is just another failed entrepreneurial case, of people making a moonshot and missing it. Tell Holmes it's OK, give her a powerful position in some healthcare think tank, and be on your way.
Also, what message does it stand to give the American public that have been sold on this visionary? The PR storm told people here is a white, female college dropout who hit the Forbes list and achieved the American dream. Do you really want to start a news cycle where Holmes is now being thrown in prison? Do you want that message, especially when so much of Washington is connected to it? That's emotionally heartbreaking to many.
So there's no bone to pick, if anything negative political blowback, an uncertain ability to prove Holmes herself defrauded people, and enough political power to tell the FBI to look at someone else. This is why I say there's little to no hope of her going to prison for this. Holmes knows what she is doing on that front, even if her visions didn't fully materialize. She has played the PR game pretty well up until this point, shoved her chips all in on the moonshot, and failed to deliver the goods. Frankly, I think she has thought all this through and her bets are on what I've said above. The question is whether or not this line of thinking is incorrect. I am armchairing it, and her life is on the line.
[1] http://www.fiercebiotech.com/medical-devices/theranos-asked-...
This is a better way of saying what I stated in my first paragraph, and, really, a better way of saying my whole comment if you don't care to see the details of my conclusion.
Consider the 2008 crisis, yes some white Americans went to jail, but the major (only?) prosecution at Goldman Sachs for example was https://fr.wikipedia.org/wiki/Fabrice_Tourre Were his emails damning? Yes, but lets not pretend he was anything but the most low-level fall guy, conveniently with a heavy french accent -- Americans love to hate him. Also, Rajat Gupta and Raj Rajaratnam were certainly dirty, but their prosecution was the highest profile one post-2008 and it was more an insider trading case, not actually going after CDO fraud. No one at AIG-FP or Goldman Sachs got prosecuted, almost none got prosecuted anywhere.
Flash Crash -- lets find a young Indian guy and blame it on him. http://www.independent.co.uk/news/business/news/the-flash-cr... Nevermind that spoofing is a widespread industry practice in America...
Prosecutors will go after easy cases AND those that quell public calls for blood. Holmes does not "look" criminal to the typical American, so I bet she walks away -- your average voter/citizen would not be happy if she goes to prison. My bet is a lower-level Chinese/Indian/Mexican(!) or some other minority goes to jail for this. They may well be guilty so I wont argue it is cooked-up or anything, but likely wont be the actual [white] person at the top.
The 2008 crises was not built on outright fraud by most of the banks.
They didn't commit any crimes for the most part.
Individuals lied on their applications, bank managers overlooked it, VP of Mortgage Sales for banks didn't want to hear about underperforming loans, ratings agencies didn't want to due proper due dilligence, German and Japanese banks buying the crap were too lazy to do any due diligence ... and it came down.
There was 'systematic, greed, stupidity and irresponsibility' across the board - home buyers included.
It was not caused by some cabal of bankers specifically doing something illegal.
That is not true.
Why Only One Top Banker Went to Jail for the Financial Crisis
http://www.nytimes.com/2014/05/04/magazine/only-one-top-bank...
The Big Short covers this in an entertaining fashion. Alternatively, http://dafacto.com/2011/the-big-short-a-brief-summary-of-the...
edit: I apologize, I edited later than I should have (mostly just rearranged words).
That's the problem with 'The Big Short'. It's a terrible film because it mostly points the finger at bankers as somehow 'guilty of some crime' - and they are not. They are 'guilty' of doing some things, but not breaking the law for the most part, and they didn't get into some other issues, particularly they didn't want to point fingers at the millions of Americans who lied on their mortgage applications.
There weren't really any crimes obviously committed in the 'big short'.
Maybe the hucksters in Florida overlooking issues on loan applications.
Maybe the ratings agencies ... but it would be extremely hard to prove this one.
Ultimately, the banks stupidly gave credit to people they should not have, and it inflated really badly and got out of hand. Stupid lazy bankers all around bought crap without doing due diligence and they paid the price.
It was people making a lot of bad bets due to the underlying failure of information the system.
All the individuals lying on their loan forms are at least as guilty as anyone else.
"At banks. At rating agencies. At investment firms. In the government"
You'll have to list specific examples, because I see greedy people making stupid decisions, not fraud.
The ratings agencies didn't commit 'fraud' - they did not accept 'money to change their ratings', this would be fraud. What they didn't do well is their actual jobs, because to do it well would have meant less business. So this was a conflict of interest that led to a really bad outcome, but it's not outright fraud.
Interesting. Is there a strict legal difference? I guess I perceived it as a spectrum and the flagrantness of the conflict of interest and the profit derived from it seemed like it approached what I imagine as "fraud" in my head. But then again, I'm not a lawyer, or a banker, or an economist.
Thanks for the reply, I'm now doing some more reading on this myself.
Yes, definitely.
If you're a banker selling bundled mortgages and say to a ratings agency: 'I'm going to give you some money, and I want you to lie on your credit rating report that you make of my financial product'. This is fraud.
If you get keep getting bad credit ratings from some agencies, but some others give you good ratings - and you start to spend all of your budget on the agencies that give good ratings ... and then the ratings agencies that are losing business realize they are going out of business, and those agencies start to 'loosen criteria' (say for example, they stop doing extra diligence like physically visiting places and checking up on random selections of mortgages) ... then their credit ratings become less valid ...
Then you don't have anyone committing fraud - but a cynical failure of the system.
It's the same thing with Forrester and the other firms that give 'grades' on products.
I worked at an F50 and we paid for tons of research from firms like that. They also would review our products and put them in the 'magic charts' of 'winners/leaders and losers'.
It's a tricky conflict of interest ... if you don't buy their products, maybe you won't get good reviews.
Now - that is almost fraud - if there is internal decision making that outlines this, i.e. research sales guys saying 'if you don't buy our research we will give you a bad review' or internal practices to that regard - it's probably illegal - or certainly highly unethical.
But it never got to that. We just bought a lot of research.
It's an issue wherever there is a conflict of interest and it's hard to manage.
This is where the SEC could possibly have more impact/influence - in terms of specifying 'what must be done' in a rating.
Ultimately, the market should correct itself - the 'ratings agencies' should have basically had their credibility completely blown up. They didn't. This is bad.
Do you remember Enron? Arthur Anderson did their books. When Enron blew up - there was no 'regulating' needed. Arthur Anderson lost all of their business, because nobody wanted to have their books 'ok'd' by a company that has no integrity, when what they are selling is 'integrity'.
It would be nice if bankers basically demanded good ratings. The Germans and Japanese lost 10's of billions because they never, ever imagined that Americans would lie about this stuff. Surely they have changed their ops a little bit ... but possibly not enough.
Anyhow - I don't think there was a lot of fraud or malice. Just greed, laziness and stupidity, others are clearly more to blame than others.
http://www.wsj.com/articles/SB1023469305374958120
And FWIW, that conviction was later overturned by the Supreme Court.
AA's loss of customers put them out of business.
That said - they may possibly have lost their legal ability to sign off on books, in which case, that could have done it, but even if they didn't, customers would run for the hills.
There are handful of 'big accounting firms' that are basically the same. Why use the one that is criminal when you can use the next one over for the same price that is not? The whole point of AA is integrity of being an 'independent' auditor. If they don't have that, they don't have anything to sell, so no customers.
And they went out of business costing 10s of thousands of jobs.
More specifically, it suggests that corruption was used to buy the banks holding bad loans time to discharge them as fast as they could to protect themselves.
The accusation against the ratings agencies was arguably worse, it was that they wouldn't give bad ratings because the banks would go to a different agency.
Who paid? Seems to me the taxpayers did.
The thousands of bankers that lost their jobs.
Major banks collapsed.
Entire divisions were shut down.
Banks did not concoct their near-death demise, even though it was self-inflicted.
Yes, arguably taxpayers 'paid' as well with unfair bailouts, but there's no case to be made that the banks 'won' in this one. They would have preferred to avoid that crash altogether.
I'm not suggesting that they are not mostly 'at fault' - but they were not criminal, is my point.
It would be unwise to seek to blood when really what is needed is some smarter regulatory conditions.
[1]: http://www.nytimes.com/2015/02/13/upshot/how-mortgage-fraud-...
[2]: http://www.bergermontague.com/blog/index.php/countrywide-whi...
But:
In the example you gave, the people most closely committing fraud are regular Americans. Not the banksters.
A) A loan officer hinting to people to lie on their applications does not absolve the loan applicant from fraud.
B) A few loan officers here and there does not an economic failure make. It took failure all the way up and down the system.
But to the point - it's not the CEO's and Wall Streeters committing fraud in that circumstance. Sure, they bear responsibility for not locking down their front-line staff better ... but those examples don't indicate they committed anything near a crime.
Lying to other banks about the quality of assets they were selling to them - if we could prove it - might actually be 'Wall Street fraud'.
Why would the boards approve the settlements if there wasn't some kind of legally culpable behavior?
I'm not one to advocate for prosecuting people for political reasons.
But given how people from lesser socio-economic classes are incarcerated far too often for property crimes involving much smaller amount, it's hard not to perceive a hypocritical double standard at work here.
At some point (still far from the breakdown), selling derivatives that include known bad debts did become illegal.
I have only read the headlines about the case's current state.
Other recent Caucasian white collar criminals include Bernie Ebbers, CEO of Worldcom (currently doing 25 years in Federal prison) and Dennis Kozlowski, CEO of Tyco (he was a guest of the NY State Dept of Corrections for about 9 years).
I have karma to burn for days.
Law and order
Emotionally, I'd like to see a smoking gun, and I'd like to believe that corporate leadership will be held accountable for misrepresentation of their company. I don't believe that it's good for society that you can gain financial wealth or political influence by selling people nothing more than a lot of hot air, and startups/entrepreneurs have enough snake oil as-is. Theranos being able to succeed at this type of behavior gives others the incentive to attempt the same behavior themselves. I believe that companies should have to provide social value for success, not promise everyone a lot of social value with no ability to return. I don't believe that "fake it til you make it" shouldn't be a viable corporate structure for any startup. Take VC with an idea, execute on your idea, profit. Steps 1 and 2 should not be able to be easily inverted for as long and as far as Theranos has taken it.
It's blown my mind.
And that you are being a sheep and taken advantage off, by smart Trump supporters?
Just asking.
These guys are smart though. They don't just target Trump supporters.
Typically principals in schemes like this are smart enough to avoid direct links and work through minions. Based on the story on Ars Technica (http://arstechnica.com/science/2016/11/the-personal-bloodbat...) she personally retailiated against someone who pointed out some of the problems with the business.
If Ars has that story, you can bet the US Attorney will get stories at least as juicy and incriminating.
https://ucr.fbi.gov/crime-in-the-u.s/2013/crime-in-the-u.s.-...
Those pointing to Martha Stewart and Enron are underestimating how connected Elizabeth Holmes is.
Enron didn't have members of the board like Henry Kissinger, Bill Frist, and Sam Nunn. Normal companies don't have those people and certainly normal startups don't have those people. Holmes had easy access to high level members of government at the early stages of her company. Her connections are much stronger and higher level than anything Martha Stewart has/had. Of course, I would argue Elizabeth Holmes committed much worse crimes.
yeah, they are not getting paid.
> The law firm was paid in Theranos stock for its work on the patent case, according to a person familiar with the matter. Boies Schiller was granted more than 300,000 shares valued at $4.5 million, based on a valuation of $15 a share at the time, this person said.
Wonder what the valuation's at now.
0: http://www.wsj.com/articles/theranos-whistleblower-shook-the...
1: http://www.vanityfair.com/hollywood/2016/06/jennifer-lawrenc...
performance report: the "web" links usually fail (as in this case) completely when needed most no matter how much time you waste trying, but sidi's link works ideally instantly. Using a Tor browser.
Yep. Labs can do more comprehensive tests that some diabetics get done periodically but home testing kits work via a finger prick.