The Elizabeth Holmes verdict means many things for many people. For Department of Justice leadership that recently laid out plans to strengthen their response to corporate crime, the outcome of the high-profile case is an arrow in the quiver for what might be a new age of white-collar enforcement.
A federal jury on Jan. 3 convicted Holmes on four of 11 charges regarding her role leading blood-testing company Theranos in one of the most notable fraud cases in recent memory. Holmes was found guilty on three counts of wire fraud and one count of conspiracy to commit wire fraud, cementing her fall from grace after once being considered “the next Steve Jobs.”
For years, the story of Theranos has been a gold mine for gleaning compliance lessons, notably in the area of third-party risk management. Holmes’s upcoming sentencing deserves similar attention from the profession.
Beyond the sensational aspects, Holmes’s trial, delayed by her pregnancy and the pandemic, began in September, a month prior to an eye-opening speech delivered virtually by Deputy Attorney General Lisa Monaco at the American Bar Association’s 36th National Institute on White Collar Crime. Out of the gate, Monaco spoke of the prosecutions of executives at WorldCom, Tyco, Enron, and more and her goal in her new role to set up today’s Justice Department for similar success.
“Accountability starts with the individuals responsible for criminal conduct,” said Monaco, who promised a “surge” in resources to prosecutors. “Attorney General (Merrick) Garland has made clear it is unambiguously this Department’s first priority in corporate criminal matters to prosecute the individuals who commit and profit from corporate malfeasance.”
One might think such a priority goes without saying, but recent data suggests the Justice Department has loosened the reins in that area. According to research analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University and shared in a blog in August, white-collar prosecutions in fiscal year 2021 were on pace to finish down 24.4 percent from where the total was in FY2016. The projected figure was an even further 53.5 percent down from FY2011.
TRAC, through its research, attributed the drop in part to “the declining percentage of prosecutions in which the FBI (Federal Bureau of Investigation) played the lead role,” a result of the agency’s focus on combating terrorism since 2001.
In a courtroom in San Jose, Calif., Holmes’s trial was already well underway when Monaco delivered her remarks. Jurors heard of how the visionary leader at Theranos dazzled high-profile investors with her charm and intelligence and assembled a star-studded board of directors, elements that would aid her in concealing her defrauding investors of nearly $145 million, based on her guilty convictions. Victims of Holmes’s actions testified during the trial of forged reports, misleading sales pitches, numerous false claims made by Holmes, and more.
Holmes also testified, alleging abuse on the part of her former business and romantic partner Ramesh “Sunny” Balwani influenced her misconduct. (Balwani has denied all allegations of abuse ahead of his own trial, soon to begin). But Holmes, importantly, also said she felt the buck stopped with her at Theranos.
Again: “Accountability starts with the individuals responsible for criminal conduct.” The jury in the Holmes trial agreed. She now faces up to 20 years in prison for each of her four guilty counts, and the Justice Department has its chance to make an example of an individual responsible for criminal conduct. Your move, Judge Edward Davila.