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Elizabeth Holmes of Theranos Found Guilty of Making False Representations to Investors

By John Adams, Michael J. Podberesky, Caroline Schmidt Burton, Elissa Baur, Emily Erb Kelley, Janki Kaswala & Sydney L. Snower on January 10, 2022
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Elizabeth Holmes, founder of Theranos, was convicted of three counts of wire fraud and one count of conspiracy to commit wire fraud. The verdict follows a high-profile, fifteen-week trial in federal court in San Francisco.  Holmes was alleged to have defrauded investors, medical professionals, patients, and the public by exaggerating and making false statements about the accuracy of Theranos’s blood-testing technology. The government’s prosecution demonstrates the Department of Justice’s commitment to prosecuting white collar crime, particularly in the tech and healthcare industries.

Holmes took Silicon Valley by storm by raising hundreds of millions of dollars from investors on the promise of a groundbreaking new technology that could scan for hundreds of diseases with just a few drops of blood from a finger prick. But prosecutors presented evidence showing that Theranos’s technology produced incorrect results and that Theranos relied on altered blood analyzer machines that other companies had developed.  Prosecutors introduced audio clips of Holmes falsely telling investors that the blood-testing device could perform any blood test.  Holmes took the stand in her own defense and testified that she genuinely believed in the prospective success of Theranos’s technology.

Ultimately the jury found Holmes guilty of defrauding investors of almost $145 million but acquitted her on the charges relating to defrauding patients. Holmes will be sentenced by the judge who oversaw the trial. Each of the four counts she was convicted of imposes a possible term of up to twenty years in prison, but the judge is likely to impose those sentences concurrently, rather than consecutively.

Holmes was indicted in 2018, under the previous Administration.  However, her conviction may be the first of many in the white collar space this year.  As described in a previous post, DOJ’s new leadership recently emphasized the Department’s renewed focus on white collar enforcement, to include prosecuting individuals involved in corporate crime.  The Department is also reviewing the propriety of allowing recidivist companies to resolve new criminal conduct through pre-trial diversion tools like non-prosecution and deferred prosecution agreements.  In 2022, we will be looking to see if these new policies begin to impact the number and intensity of corporate criminal enforcement actions and, in particular, whether more executives like Holmes face charges for their involvement in corporate wrongdoing.  In one sign that DOJ may be training its sights particularly on Silicon Valley, the Department in August 2021 filed charges against Manish Lachwani, the co-founder and former CEO of Headpsin, claiming that Lachwani reported false revenue and exaggerated the company’s financial data to potential investors.

Holmes’s prosecution and conviction also demonstrates DOJ’s focus on the healthcare sector. Healthcare spending in the United States represents nearly 20% of the national Gross Domestic Product and federal spending accounts for 36% of this amount. DOJ has made prosecuting fraud in this area a priority – in 2021 alone, DOJ’s Health Care Fraud Unit, partnering with other federal agencies, recovered more than $1.4 billion in alleged losses to government programs (and this amount does not include the billions of dollars of settlements and judgements recovered under the False Claims Act).

Holmes’ case was unique because she committed fraud against investors and medical professionals, not insurers or government programs like Medicaid or Medicare, which are often at issue in criminal cases. Even so, given the rapid increase in the health-tech sector—including significant growth in bio-technology start-ups in recent years, which only accelerated during the COVID-19 pandemic—DOJ seems poised to continue to investigate claims of fraud relating to these business’ valuations and capabilities.

If you have any questions, please contact John Adams (Partner, Government Investigations and White Collar Litigation), Michael Podberesky (Partner, Government Investigations and White Collar Litigation), or your McGuireWoods relationship attorney.  For more information about the breadth and capabilities of our practice, please contact the authors of this article.


About McGuireWoods’ Government Investigations & White Collar Litigation Department
McGuireWoods’ Government Investigations and White Collar Department is a nationally recognized team of more than 80 attorneys representing Fortune 100 and other companies and individuals in the full range of civil and criminal investigations and enforcement matters at both the federal and state level. Our senior team consists of a deep bench of former federal officials, including a former Deputy Attorney General of the United States, former U.S. Attorneys, more than a dozen federal prosecutors, and an Associate Counsel to the President of the United States. Strategically centered in Washington, our Government Investigations & White Collar Litigation is proud to be recognized as an elite practice, most recently honored by Chambers USA with a highly regarded nationwide ranking for Corporate Crime & Investigations, honored twice as White Collar Practice Group of the Year by Law360, and consistently ranked among the world’s leading investigations firms on the Global Investigations Review 100 guide to top cross-border investigations practices. The Legal 500 United States, a premier list of the country’s best law firms, also commended McGuireWoods for the “exceptional quality” of our powerhouse white collar litigation practice.

Photo of John Adams John Adams

John represents clients in complex litigation at the trial and appellate level, with a particular focus on matters arising out of government and criminal investigations. He has conducted internal investigations, represented clients in sensitive and complex grand jury investigations, tried cases to bench…

John represents clients in complex litigation at the trial and appellate level, with a particular focus on matters arising out of government and criminal investigations. He has conducted internal investigations, represented clients in sensitive and complex grand jury investigations, tried cases to bench and jury, and briefed and argued cases in appellate courts.

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Photo of Michael J. Podberesky Michael J. Podberesky

Michael Podberesky, a former federal prosecutor in the U.S. Department of Justice’s Civil Fraud Section, is a partner in the firm’s nationally recognized Government Investigations and White Collar Litigation Department and co-chair of the False Claims Act Investigations, Litigation and Enforcement team. Employing…

Michael Podberesky, a former federal prosecutor in the U.S. Department of Justice’s Civil Fraud Section, is a partner in the firm’s nationally recognized Government Investigations and White Collar Litigation Department and co-chair of the False Claims Act Investigations, Litigation and Enforcement team. Employing his extensive experience with False Claims Act cases in the healthcare and defense sectors, Michael represents clients confronting high-stakes government investigations and litigation arising from allegations of healthcare and procurement fraud and also counsels clients regarding compliance issues.

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Photo of Caroline Schmidt Burton Caroline Schmidt Burton

Caroline is an experienced litigator in McGuireWoods’ nationally-recognized Government Investigations and White Collar Group. She represents corporate and individual clients in a wide-variety of high-stakes situations, including government and internal investigations, regulatory enforcement actions, and litigation in state and federal courts.

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Photo of Elissa Baur Elissa Baur

Elissa focuses her practice on white collar and antitrust criminal defense matters, including internal investigations, litigation, and regulatory enforcement actions. She has defended clients in numerous government investigations before the Department of Justice, United States Office of Special Counsel, Securities & Exchange Commission…

Elissa focuses her practice on white collar and antitrust criminal defense matters, including internal investigations, litigation, and regulatory enforcement actions. She has defended clients in numerous government investigations before the Department of Justice, United States Office of Special Counsel, Securities & Exchange Commission, Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”), Office of the Comptroller of Currency, and Federal Reserve Board, among others.

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Photo of Emily Erb Kelley Emily Erb Kelley

Emily uses the skills developed during her clerkship in the Eastern District of Virginia, combined with her experience on Capitol Hill, to serve clients in connection with government investigations and white collar defense.

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Photo of Janki Kaswala Janki Kaswala
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Photo of Sydney L. Snower Sydney L. Snower

Sydney is a member of the firm’s Government Investigations and White Collar Litigation practice. Her practice focuses on criminal and civil investigations, including in the financial services, government contracting, aviation, and accounting industries.

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  • Posted in:
    Corporate Compliance, International
  • Blog:
    Subject to Inquiry
  • Organization:
    McGuireWoods LLP
  • Article: View Original Source

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