[U: Friday @ 1 PM EST] Many Of Holmes’ Motion Arguments Echo Those In Martin’s Case; They Will Run Through Two Full Days In Mid-March 2021 In San Jose…

Updated — the parties moved the dates, and the able Judge agreed — for a second time, now to May 4-6, 2021. End update.

Not sure I’ll cover all these hearings gavel to gavel, as there is quite a significant passel of them. But I will likely dip in on the two relevant days in early May March, upcoming — for a flavor.

To be sure, you may see the dates and subjects for all, in this six page agreed stipulation.

I will call out a few, as these same issues played significant roles in Martin’s felony convictions, and ultimate sentencing. [Blaming one’s victims in an investment scam among them, as one of many sentencing enhancing factors.]

“MIL” — as used below may be translated into plain English as a “motion to exclude evidence about…”

“▲ Government’s MIL No. 1 to preclude defendant from offering an improper defense of blaming her victims….

▲ Government’s MIL No. 3 to preclude an improper advice-of-counsel defense….

▲ Holmes’ MIL to exclude evidence of anecdotal test results and Government’s MIL No. 10 to admit relevant testimony from “non-paying” patients witnesses….

▲ Holmes’ MIL to exclude evidence concerning wealth, spending, and lifestyle….

▲ Government’s MIL No. 7 to admit text messages between Defendant and Balwani offered by the Government….

▲ Government’s MIL No. 8 to exclude self-serving hearsay statements made and offered by Defendant….

▲ Holmes’ MIL to exclude evidence of alleged blaming and vilifying of competing companies and journalists….”

Now you know — it should all be a very droll echo to what we saw in Brooklyn, in Martin’s felony trial of three and a half years past,now — albeit with orders of magnitude higher dollar felony frauds involved.

We will keep you posted, coming into mid-summer, in San Jose, California federal court — no matter what else, here.

Onward, grinning… six new inches due in here, on top of the 40 we already have — perhaps as early as by 1 AM on Sunday morning… hilarious.

[O/T: Tangent] We Spoke Of Mr. Skilling (And Enron) Here, Before… So Here’s Some More.

This was our prior 2019 installment on it — but the fact that dozens of regular Texans, voters all, are now literally freezing to death… it is time to look in, again on the dystopian nightmare that is Texas energy “policy”. Here we go:

Just A Quick Detour, From Mars — To Marvel At The Lies Texas Gov. Abbott Is Telling, While His People Freeze To Death, And Ted Cruz Flies To Cancun(!)…

The odd and poorly run state of Texas — ever since at least the time of the Enron debacle in 2000, had an energy “policy” built primarily to maximize the private profits for wealthy donors to the reliably Republican state-wide office-holders. That is to say, the Texas “grid” (to the extent it exists any longer, at all) is held together with rubber-bands, and duct-tape, run to make a profit, and disconnected from the national energy grid — so even if Gov. Abbott wanted to buy electricity from Arizona, Utah, New Mexico or Colorado — he cannot. That was by design.

It gave wealthy GOP Texans a monopoly over energy in the state. By and large, that group overlaps almost 90% with the oil families of Texas. [Shocking, I know.] But now people are dying due to lack of heat — and water. And it takes Bill Gates of all people, to tell the unvarnished truth — where Abbott lies to the voters he is killing, day by day, thus:

. . .”Actually, the main capacity that’s gone out in Texas is not the wind, it’s actually some of the natural gas plants that were also not ready for the super cold temperatures,” Gates says.

Moreover, Gates said that climate change causes extreme weather patterns like the winter storm to “become more likely.”

“Because the normal wind patterns are broken down and so cold fronts can go further south more often than we would expect,” he says. . . .

Okay — that is simply. . . deplorable. Vote those crooks out — you good people of Texas.

Now we will return to watching and waiting — for a soft Barsoom landing.

नमस्ते

In The FTC’s Daraprim® Case, In Manhattan… A Strange Ex Parte Letter Has Arrived…

I will simply quote the able USDC Judge Denise Cote’s order, of this afternoon — in full — as I know nothing more about it all, beyond the four corners of that order:

“…ORDER: On February 11, 2021, this Court received a letter from non-party Christie Smythe, which was dated February 5.

This Court is not responding to this letter or filing it publicly on the docket.

The letter from Smythe has been filed under seal and may be viewed by parties in this case.

(Signed by Judge Denise L. Cote on 2/12/2021)….”

That is all.

Have a non-blizzard-obscured, non ice-stormed, non-WAY-sub-zero weekend, now — one and all of good will.

Namaste…. grinning.

The Peoples’ Federal Courts… Should Be Open To… The People.

In truth, I’ve sat on this letter for a bit. It sets out the schedule for motions to approve Martin’s reported consent civil settlement with the SEC. But subsequent orders, from the able Judge Matsumoto, in Brooklyn — gave me pause.

So I waited for a bit, and talked informally to some ex-SEC enforcement staffers. Obviously, I will not name them here — but two of them were 20 year plus career SEC lawyers. And while this practice (below) is occasionally seen — it is a rare offer, usually reserved to defendants who will never face criminal prosecution. That is clearly not Martin. [Occasionally, it is done to avoid unduly tipping the SEC’s hand, against other (as yet unnamed / uncharged / unindicted) co-conspirators / defendants — but given that all of these SEC civil proceedings are over five years old now, that seems… unlikely.]

The thought behind… keeping the moving papers out of the public record, is to resolve all the potential minor differences, and only present the final civil SEC deal.

Again, the defendant’s reputation in the regulated securities markets is usually at stake — and usually the settling defendant will seek re-admission before the SEC, if barred, at some future point. I am not clear that the same… deference should apply to an already thrice convicted felon. And I personally would write as amicus to oppose any motion for Martin to be re-admitted to trade securities for the accounts of others, or to serve as any form of registered investment adviser.

Here is Judge Matsumoto’s order, essentially sealing these papers from public view until April 2021:

“…As to Martin Shkreli, the Court adopts the briefing schedule proposed in the parties’ [46] joint status update. The Commission shall serve opposing counsel, but not file on ECF, its motion papers by February 19, 2021. Mr. Shkreli shall serve, but not file, his opposition by March 19, 2021. The Commission may serve a reply, and the parties shall upload all motion papers to ECF in logical order, by April 2, 2021….”

Indeed, to be clear — I respect USDC Judge Kiyo Matsumoto immensely, but unless the settlement is falling apart overall, I can’t think of why “We, the people” shouldn’t be allowed to know what the SEC (our servant) proposes — in a specific civil settlement, with a convicted multi-count, incarcerated wire fraud felon… in the peoples’ name. I just can’t. [And the former SEC staffers said it was… puzzling.]

In any event, this is the originating letter quote:

“…As noted in the last status report (ECF No. 43), the Commission and Shkreli reached a partial settlement whereby Shkreli consented to a judgment ordering injunctive relief and providing that the Commission’s claims for monetary relief and an officer and director bar will be resolved by motion. Commission counsel submitted the consent partial judgment for approval on December 23, 2020 (ECF No. 44), and the Court entered the consent partial judgment on December 28 (ECF No. 45). As noted in the last status update, Commission counsel needed Commission authorization to seek from the Court a specific penalty in the anticipated motion as to Shkreli, which authorization Commission counsel has now received. The Commission and counsel for Shkreli jointly propose the following briefing schedule for the motion: Commission to serve motion papers by February 19; Shkreli to serve opposition papers by March 19; Commission to serve reply papers and parties to file their respective motion papers by April 2….”

We shall see… but that seems more than a little… off.

Condor wonders: Is another shoe about to fall, on other securities fraud charges?

I have no idea.

Onward, grinning….

[Live] The Live Notes On Holmes’ Hearing — In San Jose — Will Appear Here…

At about 1 pm, Eastern — we will start here, posting the squibs from inside the courtroom.

So do refresh repeatedly after 1 pm Eastern.

Clerk opens call; now the clerk is taking appearances….

Judge Davila now underway with the hearing in order….

▲ US v. Sunny first — AUSAs and Defense ring in.

▲ Sunny’s trial date is now later — into late 2021.

▲ Judge Davila says that Ms. Holmes’ trial (now by agreement moved to July 2021) — could take three to four months…

▲ Sunny’s counsel and AUSAs now expect January 25, 2022 as the earliest for Sunny’s trial… picking jury on week of January 11 — and leave King Day weekend to get ready for opening arguments on the Tuesday the 19th of January 2022 — for Mr. Balwani.

▲ So, this is new: Holmes will not be picking a jury until July 2021, due to examination and other issues.

▲ The Holmes case will be socially distanced, with masks — but in the court room, with a live jury.

▲ Judge Davila mentions the SEC civil case against Balwani to be sure the dates won’t conflict….

▲ The SEC Balwani status is set for March 25, 2021 (but Ms. Holmes has settled her SEC civil matter; so her trial date will not be impacted, no matter what). So… on Holmes’ case:

▲ 10 AM — March 23, 24, 2021 Hearing for motions in limine and motions re: experts.

▲ Thursday, May 27, 2021 Proposed jury instructions, juror questionnaire, and voir dire questions due.

▲ Thursday, June 3, 2021 Pretrial Conference statement due per Criminal Local Rule 17.1-1(b).

▲ 10:00 a.m., Tuesday, June 15, 2021 Pretrial Conference.

▲ 9:00 a.m., Tuesday, July 13, 2021 Trial (first day of jury selection)…. the Judge urges everyone to stay safe, during COVID…

And with that, the hearing is adjourned — the whole schedule is now to be revamped (for Ms. Holmes as well), and those will be filed by agreement in the next few weeks. So this narrative arc will go silent for a bit.

Enjoy.

नमस्ते

The Boss: In America’s Middle — For The Super Bowl, And… Jeep.

Only… after Baby-T and his inept crime syndicate is held accountable, either in the Senate, or the courts of this land — then I will agree, with the Brother Bruce:

Onward. Be excellent to all those of good will… [some of the Boss’s commercial, above, was filmed only a few miles from the mine site, on the masthead to this post, in early January 2021.]

नमस्ते

Holmes Has A Status Hearing At 1 PM Eastern Tuesday… We Will Listen In… And Report.

The hearing will likely at least touch on (among other matters) what the government learned from its mental exam of Ms. Holmes. We are less than a month from picking a jury for her trial now, so there will be likely also be lots of discussion about questions for, and impaneling of… the jurors. [As was true with Martin’s jury — it may be tough to find capable San Jose / Bay Area jurors who’ve not seen any of the coverage, or read the Carreyrou book, or seen any of the documentary offerings. We shall see.]

We won’t hear about the specifics of her claimed diagnosis, in all likelihood, but we may get the broad strokes — of whether the government found the claims… even remotely credible.

I will say candidly, that had Martin made a more concerted effort at some form of a mental illness diagnosis/explanation, he might well have been sentenced to less time, and done more of it in a hospital setting than in Ft. Dix, and Allenwood.

We shall report back, and live-blog if it gets interesting on Tuesday.

Onward, grinning. Ever… grinning.

[U — New Trial Date] I’m Toying With The Idea… Of Covering The Elizabeth Holmes Felony Wire Frauds Trial. Thoughts? Let Me Know In Comments…

We did post a few notes on this one, back in mid 2018… during lulls in Martin’s trial (here is the federal civil securities claims version of it, from back then).

There are many deeply-resonant parallels / echoes here to Martin’s travails — though Ms. Holmes’ manifold frauds were executed in a decidedly more rarefied air (netted well north of $700 million — largely from the glitterati, and thus created an illusory and fleeting $3 billion putative net worth for her stake in Theranos, at the peak), in any event making her a much more “successful” jewel thief — than Martin.

But the central reason however, for my renewed interest in her case is that she apparently intends to argue that a decades-long mental illness, condition or defect she putatively has… should mitigate her culpability for these crimes. And, it is hoped by her defense counsel, reduce the duration of her sentence.

Much of it is redacted at the moment, in these court papers — but she will have to lay out the contours of all of it, in detail, in open court at trial. That should be fascinating. I wonder: will it turn out to be a version of the “affluenza” defense (one a local judge in Texas allowed, to let a rich kid off from killing two people, in a drunken car crash — saying his very-wealthy parents never imposed consequences for bad behavior, bailing him out over and over — such that as a 17 year old, he should not be responsible for the deaths of people he killed while driving drunk?) The mind… boggles. [That guy then skipped home confinement, and flew to Mexico — hiding out in a resort town, with his mom. He was caught by bounty hunters, forcibly returned to Texas, and is now in a real jail.]

The Holmes trial will begin on July 13, given her newly claimed mental defect defense one month from today (Sunny’s trial will follow). It will include evidence of wide-spread destruction of evidence after the indictments were served — and will outline a fraud that put patient lives at risk. [As the image at left indicates, Martin had in 2018 expressed interest in “dating” her — as a power couple. Charming.]

Should be… fairly high theater. And I honestly want to see what these three years awaiting trial have done to her once doe-eyed look. I expect we will see a much more hardened, and furrowed brow, in the felony trial well.

My understanding is that it will not be a Zoom trial — it will be “live”, with distancing and masks — but we shall see. [Here is the latest skirmish over “at trial” documents, in efforts toward proving the destruction of evidence portion of the allegations.]

Honestly, a Zoom proceeding holds less interest for me. [Here’s the original 2018 speaking indictment, by way of background.]

So — if anyone does NOT want this Shkreli space cluttered with what will be only occasional postings about Ms. Holmes… beginning on July 13 March 5, now is the time to speak up, in comments.

In truth, I am not likely to open yet another separate blog for it, as there is little doubt she will be convicted — and both she and Sunny will likely eventually serve nearly ten or more years, each.

Onward into the minus ten wind-chilled sunshine to shovel (again!)… Hilarious!

Life-Science Power Alley: Ken Frazier — Great Guy. Period. Now, Watch This… Space.

I will make this quick, for now only. [Martin had publicly called Mr. Frazier “self-absorbed” — for confronting Trump’s post-Charlottesville overt racism. How utterly clueless. . . is/was Martin?]

You see, I was going to write a long post — as the wholly-fascinating story of his rise — from a decidedly humble start, growing up with a single dad who was a janitor, in a rough patch of Philly — to enroll at Penn State, and from there, to law school at Harvard… becoming a top flight corporate law partner at Drinker Biddle [all while consciously making himself, as a Black Man “white-user friendly” — to all his white peers, counterparts, clients and bosses. . . (as he has said in his own words), something none of them ever had to struggle with]. . . as an outside lawyer/partner for Merck (among many others); then to lead Merck’s internal legal department — and then become Chairman and CEO, is a truly, uniquely. . . American story of success.

But his saving “Bo” (James) Cochran, from death row in Alabama, in his spare time. . . is the way I’ll most remember him. While other pharma GCs — including two of the former Merck, and Schering-Plough GCs — spent most weekends. . . at private golf clubs, and at wine tastings and GOP infused fund-raising galas. . . about nothing at all, really. . . Mr. Frazier flew down to Alabama state prison’s death row, to meet and strategize, in the dank corners of that hideous facility with a man wrongly convicted and left by the authorities of Alabama. . . to be executed. Mr. Frazier quite literally saved Bo’s life (on a pro bono basis), over the course of three years of appeals.

CNBC is calling Mr. Frazier an “outspoken, activist” CEO — for his role in ending Trump’s “executives’ council” — but that ignores the fact that the core of what Mr. Frazier did was say racism in America is real — even inside 1600 Penn, at that time. So. . . for my money, CNBC gets the narrative backwards: Mr. Frazier simply said (and engaged in the practical application of the same, by his direct actions) “all humans must be treated as such.”

I will stop here, for now — as I am also keenly interested in the apparently emerging ground-swell, among Merck shareholders, to open up the search for his replacement, to all qualified people, inside and outside the company. That portends to be as interesting a story as any, here. And we will pursue that narrative arc, here.

To be sure, Rob Davis is a. . . competent executive (and, I may say that I know this from deep first hand experience) — but as of June, when Mr. Frazier retires, there will be only three black CEO/Chairs of larger US public companies.

And yes, representation. . . matters. So too, should the board of Merck consider an open search — for all the best and brightest — not just the next (white) guy in line. As I say. . . watch this space.

नमस्ते

[U, X3] O/T: But Suggestive Of A Lack Of Discipline, Over Troubling Social Media Advocacy (Think Martin / HRC Threats)…

Many will recall that what initially earned Martin a ticket inside the MCC in Brooklyn, even before his formal sentencing hearing, was that he made incendiary statements to his 90,000 followers, about a potential assault of the former Secretary of State.

This (Parler’s role in the 01.06.2021 Capitol Riot/Domestic Terrorism) is the logical extension of this same problem — people whose reckless speech — tantamount to shouting “Fire!” in a crowded theater… is not a free expression issue, at all. It is criminal… conduct. From another property of mine, then:

Parler (Via The Mercers) Just Fired Its CEO. He Now Suggests In NPR Interview That The Mercers Support Domestic Terrorists…

UPDATED @ 10 11 11:59 PM Eastern — seems his avatar and Bernie mittens meme were restored (and then again removed), after I first updated — repeatedly, in the last few hours or so. . . very droll. Consider this avatar/meme thing as a Schroëdinger’s cat paradox: one of the two states will appear when you next look. that is all. Even Matze’s avatar has been removed from the page, as well as his lame Bernie mittens meme. Seems the Mercers are STILL… pissed at him. “Cool story, just the same bro!” End, update(s).

Looks like Parler will… now never return — and that may be the only good news, here.

In his longer interview he suggested the opinion, at right. Do read it all, at NPR. Here it all is — via NPR’s able reporting:

“…Parler, the far-right-friendly social media site that was knocked offline after the violent mob stormed the U.S. Capitol, has fired its CEO.

John Matze said the company removed him as chief executive, but he did not cite a specific reason.

Matze said conservative donor Rebekah Mercer, who controls Parler’s board, immediately terminated his position on Friday.

“I did not participate in this decision,” Matze, 27, who is based in Henderson, Nev., wrote in a statement.

“This has been the true American Dream: an idea from a living room to a company of considerable value,” Matze said in the statement. “I’m not saying goodbye, just so long for now….”

H I L A R I O U S.

And, Matze’s saying this is probably self-serving — to deflect from legal fallout, as the FBI and DHS close in on suspects — as well as to try to find another job. He is only 27, afterall. He’s going to need a real job — in a world that views the Mercers as now dangerously-clueless, if well-heeled, far right extremists.

Onward.