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Comment by micaksica | Hacker News Reader

> Theranos is toast and I suspect Elizabeth Holmes will be very lucky if she does not spend some time in prison over this.

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.

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It's called fraud, and she defrauded and embarrassed many of the people she is "connected" to. Despite your assertion to the contrary, many white people have gone to jail for fraud. I also don't think there is much behind-the-scenes lobbying happening on her behalf (in fact there may be some lobbying against her).

IANAL, but federal criminal procedure requires more than just a smell of fraud to convict someone in a federal court. A Federal prosecutor either needs a political bone to pick or a pretty easy to convict case to push for charges. Federal prosecutors have limited time and pick things that either grant them political expediency or they believe that they have enough evidence that the person they are going after is going to end up convicted with some certainty.

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-...

Federal prosecutors like cases that are easy or will win political points. There is no public outrage against unicorn biotech companies to cash in on, and it doesn't seem like there is a slam dunk fraud case either.

> Federal prosecutors like cases that are easy or will win political points.

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.

I am appreciative of both the summary and the original comment. Please don't feel like your thunder was stolen -- your breakdown was fantastic and taught me quite a bit about a situation I was mostly unfamiliar with.

If she told a potential investor that the machines work, and she knew they didn't, that's fraud.

Yes, many white people have gone to prison, but it has taken enormous and egregious cases for that to happen. Usually, a brown or other disliked minority fall-person will go to jail and to quell public outrage.

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.

Also, instead of down-voting inconvenient facts presented with examples perhaps post counter-examples. Or just continue to live in a pretend-bubble i suppose.

"Consider the 2008 crisis, yes some white Americans went to jail, but the major (only?) "

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.

> The 2008 crises was not built on outright fraud by most of the banks. ... 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...

Thanks for posing this article. Kareem Serageldin was certainly guilty but actually goes to strengthen my original argument -- it is rare to find Arab financiers on Wall St, it is telling that the one prosecution on the 2008 CDO disaster is an Arab guy!

As Larry Summers said on a recent episode of "The Axe Files" podcast, you can't litigate bankers being stupid.

No, just no. There was clear and obvious fraud. At banks. At rating agencies. At investment firms. In the government. And pretty blatant coordination between some players, including among some that were supposed to be regulating and watching for the sort of fraud that occurred and was allowed to occur.

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).

"I'll pay you to go watch The Big Short and then try to tell me that again"

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.

>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.

"Is there a strict legal difference?"

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.

Arthur Andersen was convicted of obstruction of justice. That's why they went out of business. The market didn't correct this inefficiency all by its lonesome. The legal system prosecuted this crime.

http://www.wsj.com/articles/SB1023469305374958120

And FWIW, that conviction was later overturned by the Supreme Court.

AA's conviction does not put them out of business.

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.

Anderson had been the accountant for Waste Management and Sunbeam. They'd been fined for those cases and they expected to be fined again for Enron. Cost of doing business. They didn't lose their customers because of those cases. They lost customers with Enron because they were convicted.

And they went out of business costing 10s of thousands of jobs.

Not sure if you realize this but Arthur Andersen "the company" was convicted, not some individual named Arthur Andersen. The discussion was about whether individuals would get prosecuted or if there are personal qualifies which allow some people to escape criminal prosecution.

You know who did commit fraud and was never, ever prosecuted? The millions of homeowners who applied for mortgages they had no way of paying back.

I agree so long as you start at the top and work your way down.

The Big Short makes the accusation that the ratings agencies took an insane amount of time between the discovery of the nature of the catastrophe, and their actual ratings adjustment.

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.

Not quite. The particular delay you are referring to in the movie was banks not correctly repricing illiquid assets when it would hurt their own position.

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.

I watched the movie and read the book, this is a very poor deflection.

What deflection are you talking about? I just pointed out that the movie did not emphasize the ratings agency delay at all. Your comment was incorrect.

> and they paid the price.

Who paid? Seems to me the taxpayers did.

"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.

Would the taxpayers have received a payout if the banks bets went as planned? The taxpayers absorbed the risk from the banks, they won.

Taxpayers seem to have received excessively good deals on mortgages.

People who had mortgages received benefits perhaps, not taxpayers in general.

It wasn't just "overlooking issues" many loan officers directed borrowers to lie on their applications and in some cases falsified income on loan docs themselves [1]. There was also falsification of appraisals [2], not to mention the robosigning debacle.

[1]: http://www.nytimes.com/2015/02/13/upshot/how-mortgage-fraud-...

[2]: http://www.bergermontague.com/blog/index.php/countrywide-whi...

Yup, I agree with that.

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'.

Wait, don't they huge fines paid by Chase, Goldman, and others, indicate that there was some criminal activity involved in how the banks assembled and sold the CDOs?

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.

> It was not caused by some cabal of bankers specifically doing something illegal.

At some point (still far from the breakdown), selling derivatives that include known bad debts did become illegal.

off topic, but is that true about the Flash Crash guy? Do you have a reference?

I have only read the headlines about the case's current state.

I certainly dont know if he is guilty or not, he very well may be. My point was more that it is common practice. So common there is a widely used name for it: https://en.wikipedia.org/wiki/Spoofing_(finance)

Your awareness of racial injustice is refreshing to find on HN, thank you!

Hahahahahaaaaaa. Yeah, sure. Except when they don't. Exhibit A: Trump University

Many people commit fraud. Who can tell how efficient our justice system is? If it happens, it happens silently.

People are pointing to 08 as a reason to believe she won't be charged, but the better analogy here in Enron. Lay, Skilling and Fastow were all sentenced to prison.

I agree with the general statement but, to be pedantic, Kenny Boy died three months before he was to be sentenced. https://en.wikipedia.org/wiki/Kenneth_Lay

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).

Martha Stewart as well.

Everyone forgot wall street bailout? She'll get off chock free

That's a pretty ignorant statement. How do you explain Martha Stewart?

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.

She's not young

Martha Stewart isn't all that wealthy or politically connected. Have a case from this decade?

Uh, no. She owned a healthy portion of a public company and hung out with plenty of political types.

Whites are convicted of fraud far more often than any other race:

https://ucr.fbi.gov/crime-in-the-u.s/2013/crime-in-the-u.s.-...

It's not the absolute numbers that matter, it's the proportional ones.

What do you mean?

That's right, and in that statistic it shows that 66% of people arrested for fraud are white, which is not disproportionately low, and only 1% of those arrested are Asian. I mean from the raw numbers provided by the FBI it's impossible to conclude if there is a bias or not, since only a minority of the cases where people are arrested for fraud are high profile.

I guess you've never heard of Martha Stewart then. I'm only joking of course.

Completely agree that she won't spend time in prison.

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.

But IIRC, Ken Lay was on the short list for Energy Secretary, so he was definitely connected.

Martha Stewart?

Orange Is The New Black?

I suppose she was twice Elizabeth Holmes's age when she was incarcerated, but otherwise she ticks every box on the 'there's no way she'll do time' checklist.

She was a convenient sop. Who cares if Martha Stewart engages in a little insider trading while we've got the "financial professionals" leading our countries into economic ruin and socialized bailouts of professed "experts."

Downvote cause you have nothing to offer in reply.

I have karma to burn for days.

The whole point made by micaksica was that people like her (elite, politically connected, white, women, etc) wouldn't be convicted. If she was just a sop, then the counterexample is even stronger, since it means they don't even have to do anything particularly egregious to go to jail.

Out of curiosity, why do you think we should be more lenient on old people than we are on young? Older people tend to be more connected than young ones, on average.

> a dubious charge

Given what has come out so far, is the charge of criminally misrepresenting the efficacy of the product really dubious?

Will you update your views of the American justice system if she ends up in jail?

Yes. That is the only rational thing to do.

Why would you like to be proven wrong if you think the charge against her would be "dubious?"

Well, if the charge is dubious, that's fine. I don't want to be proven wrong. I want the courts to work. I don't want someone prosecuted over a half-case.

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.

Martha Stewart served sometime then house arrest now a cooking show with Snoop Dog. Her criminal record is worse then his and his persona has been about thug life(not that he is at all).

Do you have any stats showing minorities are convicted of white collar crimes more frequently than Caucasians? Or is this just flame bait?

Your comment (like this response) adds nothing to the discussion.

We shall see.

Three words for you:

Law and order

I think you misunderstand the phrase. It's a euphemism, relating to people and crimes about as far removed as possible from Holmes and her fraud.

I meant it in a sarcastic way. Sadly that doesn't come through text.

Martha Stewart?

Very true indeed. Trump got elected. That pretty much means that as long as you have power and say the right things you can get away with almost anything. I used to be stupid enough to believe this was not true in our country but god bless Trump, he opened my eyes.

Me too. This isn't even political to me, this is psychological. A whole new world of how to deal with the public and media.

It's blown my mind.

Same here. I keep thinking that there must be a way to legally take advantage of people that will easily believe Trump's lies. There just have to be a way, anybody have any good startup ideas? I'm not joking. Half the country is willing to elect Trump. I'm sure there is a market there.

https://news.ycombinator.com/item?id=13027976

How about Televangelism or Multi-Level Marketing?

Have you considered the opposite? That perchance, Trump supporters may not be all the bad stuff some folks believe them to be.

And that you are being a sheep and taken advantage off, by smart Trump supporters?

Just asking.

It's already happening. There are gigantic businesses that don't manufacture or really do anything - they just encourage their users to post pictures and videos of their cats and their meals, all the while spying on their habits and likes, in order to facilitate other businesses tricking them into buying their products.

These guys are smart though. They don't just target Trump supporters.

Regardless of one's political leanings, earnestly encouraging taking financial advantage of people one believes to be gullible is highly unethical, even if it is legal.

http://www.politico.com/story/2016/08/donald-trump-fundraise...

It's refreshing to see on HN more people aware of injustice based on skin/race, thank you!

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