[U: In Custody.] No Word Of A Run For The Border… But Not In Custody… Yet.

By 2 pm, she ought to be marked as locked in — and now she is (see new masthead in a moment). That is all.

Yep. Her Last Free Day, For About 11 Years…

That is all. No other words here, barring an improbable last minute attempt — to cross into Mexico — to avoid the sentence (heh!):

It ends not with a bang, but with… a whimper.

Nuthin’ New Dept.: Two Days Left — To Karma’s Arrival.

This Yahoo! biz story, like many, hopes to offer some insight, to those who would speculate as to why… she did what she did.

Afterall, it is true that she didn’t ever fully cash out (not at least in the way SBF has). No, in the main, she held onto all her stock.

But it strikes me this asks the wrong question: for her, it seems… it was “why not?”

Not why would she break the law — but in her mind… why NOT?

…Holmes will begin to pay the price for her deceit on May 30 when she is scheduled begin the sentence that will separate her from her two children — a son whose July 2021 birth delayed the start of her trial and a 3-month-old daughter conceived after her conviction.

She is expected to be incarcerated in Bryan, Texas, about 100 miles (160 km) northwest of her hometown of Houston. The prison was recommended by the judge who sentenced Holmes, but authorities have not publicly disclosed where she will be held….

Christie Smythe (on Twitter last week) wrote that she thought the $452 million restitution figure from Judge Davila’s gavel was purely “performative”, since Holmes cannot pay it. I don’t think the people who handed her over nearly double that amount, in cash, based on her egregious lies… felt the surrender of their cash was… in any manner “performative”. No, they expected profits for the cash delivery.

Sure, businesses fail all the time — for a myriad of reasons. But the law requires of executives — that they measure the business, and successes or failure, against truthful metrics… ones that can be measured against a factual yardstick.

The law does not allow her — or anyone — to “sell slices of the big blue sky.” To lie. Which is exactly what she did. That was a real billion dollars she burned up on private jets and glittering dinners in fine locales.

So, no Ms. Smythe — the damages seek a small bit of restitution for real — not performative — losses.

O U T.

Three Days Left: “Prison Paparazzi” Edition?! Oh… Noes…

We offer only trivia now. The reality series inmate at Holmes’ low security federal correctional institution (Camp Bryan) — one Jen Shah — has complained that either guards or other inmates with (contraband) cell phones… snapped (gasp!) candid but fully clothed photos of her out on the walking track… and presumably sold them to the British tabloids.

Oh. The. Humanities.

Thus today the San-Jose Mercury News offers this — as a new risk for Liz to contend with, while encamped at the facility for a decade or more:

…Jen Shah, another celebrity who preceded Holmes to federal prison, may have given the disgraced Theranos founder something else to worry about: The possibility that a member of the prison staff or a fellow prisoner, in possession of a contraband cell phone, could secretly photograph her and get those images leaked to the media.

That’s what Shah, the former star of “The Real Housewives of Salt Lake City,” thinks happened to her, according to TMZ. She has demanded an investigation into how photos of her behind bars made it to the outside world earlier this month. The photos showed the reality TV star walking in the prison yard of the minimum-security federal prison camp in Bryan, Texas — the same facility where Holmes is likely to be incarcerated….

Actually the photos are pretty flattering — she looks crisp in the khaki hued uni. And while it is true, no one should be photographed against their will (even in a prison yard, through the fences)… this is a tempest in a teapot, me thinks.

Can’t we all just… agree? Liz could actually use some “influencer style” exposure… on her road to rebranding, I guess.

Hilarious.

Now Four Days To Incarceration…

So, starting Friday morning, she will only have four days of freedom remaining, for well over a decade.

Here’s what the day looks like at Camp Bryan, according to very recent SFGate reporting:

…Wake-up is at 6 a.m. every day, according to FPC Bryan’s “Inmate Admission & Orientation Handbook,” and all inmates must be counted at least five times daily in official roll calls. Inmates must make their beds and clean up their cells; the unit with the best weekly “sanitation rating” gets called first for meals, while the unit with the worst hygiene comes in last….

There are many limitations on what inmates can wear and own inside the prison. They are “prohibited from wearing any clothing not government-issued or purchased in the Commissary” and “may possess only one approved radio or MP3 player, and watch at a time.” Jewelry is limited to a “plain wedding band and an appropriate religious medallion and chain without stones,” but their value cannot exceed $100…..

We may re-run some of the older blog posts, if no real Theranos/Holmes news breaks over the long weekend — mostly so as to have some “scaffolding”, to hang out the countdown banner graphic — fluttering here like a flag, in the pixelated breeze.

We shall see, but now you know.

And Liz, this day has been long delayed by you.

But not for much longer, now at all.

Out.

More Detail, From Mr. Balwani’s Counsel — He Does Expect There May Be A Separate Trial, On Wags Class Action In AZ.

The upshot from overnight filings (on a case we’ve not been following here), is that it may be that both Holmes and Balwani may have to defend additional federal civil trials in Arizona’s district courts, for the damages Walgreens customers clearly suffered — at the hands of the fraudulently-touted Theranos device.

Having said that, it is likewise pretty clear that most of the money to customers will come from Wags, itself under the settlement [Impertinent Questions Department: What was GC Jan Stern Reed‘s role in all of this (i.e., the allegations that Wags repeatedly “turned a blind eye” to the Theranos problems, in particular)?].

In any event, it may be a waste of time to get a judgment against Holmes and/or Balwani — as they are already jointly and severally liable, personally, for nearly a half billion dollars in restitution. Money neither of them have — or ever hope to have. So… I’d guess this is nearly the end of the line, in Arizona, as well — as Holmes heads to Camp Bryan, Texas for a decade or so.

For what it is worth, here’s the latest:

…Mr. Balwani’s counsel apologizes to the Court for any misunderstanding arising from his failure to file a Motion for Separate Trials on Monday, May 22, 2023. Counsel understood Mr. Balwani’s Motion to be made unnecessary by the Notice of Settlement, in which Plaintiffs and Walgreens asked the Court to “vacate the current schedule and stay proceedings pending the filing of a proposed settlement agreement.” Notice [Dkt. 577] 2:5-6. The settlement as to Walgreens, if approved, will accomplish the severance that Mr. Balwani (and Ms. Holmes) intended to seek. And “vacat[ing] the current schedule,” as the Notice requested, allows the Court to consider the appropriate trial schedule for Mr. Balwani and Ms. Holmes in the course of re-setting case deadlines, if necessary. In the circumstances, counsel believed filing a separate motion to sever and stay would unnecessarily clutter the Court’s docket. In retrospect, counsel recognize that an explicit filing stating Mr. Balwani’s position would have been the better course….

I suppose it might also be asked what another long departed Wags GC, Mr. Thomas Sabatino knew, and when he knew it — on these same matters. It is all… just… fascinating, here a decade later. [After all, though Holmes is broke, these retired Wags executives… clearly are… not.]

Out.

[Updated — Wags Settles Edition] Countdown. [To. Be. Updated.]

Updated as of later on May 23, 2023: Yesterday,out in the Arizona desert heat (actually in the federal trial court, in Phoenix), the Walgreens people agreed to settle the putative federal class action against it, the one that alleges Wags knew Theranos, Mr. Balwani and Ms. Holmes… were frauds. But interestingly, neither Holmes or Balwani indicated whether they wished to be tried separately (they are also defendants), by yesterday’s deadline.

…ORDER: The Court has reviewed the notice of settlement filed by Plaintiffs and Walgreens yesterday. The notice asks the Court to vacate the current litigation schedule, but does not state Plaintiffs’ position regarding the case against Mr. Balwani or Ms. Holmes. Further, neither Mr. Balwani nor Ms. Holmes filed motions for separate trials by yesterday as required by the Court’s recent minute entry. See Doc. 569. Plaintiffs shall, today, file a short statement clarifying their position on the litigation schedule for the claims against Defendants Balwani and Holmes. Signed by Senior Judge David G Campbell on 5-23-23. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC)….

And… here is the last appeal filed, before full settlement proposal was agreed in principle. End update.

That is all — for now, of course… smile.

[U, X2: “So Ordered.”] Is This… “Pretty Girl” Privilege, In Action? Holmes Requests May 30 Surrender Date, In Texas.

I generally try to resist the urge to say she’s seeing her whyte (wealthy) privilege play any part in how her four felonies convictions have played out so far, at least. [Here’s the four pager, this morning, for the complete record. The government is not opposing it.]

I was mistaken. Mr. Balwani also had two weeks of grace, so I’ve updated the below. The general point still applies, though — as Mr. Balwani was convicted months AFTER Ms. Holmes, but has already been serving his time, for almost a month now… even though both of them made all the same motions. Ms. Holmes begged the court to allow her to deliver Invicta outside the prison walls, and the merciful judge saw fit to allow that. Many of limited means begin serving time while still pregnant — and must deliver inside. But it is true that Mr. Balwani (an older man of color) was granted only one two weeks of “grace”, from the point the Ninth Circuit ruled on his matter (the equivalent date being last night, in Holmes’ case). And it is true that both she and Mr. Balwani knew for months that the chances in the Ninth Circuit were near zero. They both have very capable lawyers — ones who tell/told them the unvarnished truth — the bad, as it were… that these motions were nearly certain to fail.

Yes, Ms. Holmes has two little toddlers. But she also has a very-resource laden (i.e., wealthy) and presumably capable partner — in Mr. Evans.

Moreover, she’s known for months this day was on its way. In fact, she’s been (by her own admission!) able to move her entire home to San Diego, from wooded Northern California during this period — and she also told the New York Times that they are keeping all their home goods and furnishings all boxed up, in San Diego — impliedly knowing full well that the kids will move with Mr. Evans, to somewhere either in Austin, or less likely — in rural Texas, nearer Camp Bryan.

So… why it should take “Liz” (as she’s rebranded herself) yet ANOTHER TWO weeks to report — entirely alone, given that Mr. Balwani was only given one week, and had to relocate (by air travel, as well)… is hard to plumb — if credibility is any positive factor, in her NYT piece.

In any event, these next two weeks cannot pass quickly enough — and if she were in a Manhattan, Brooklyn or Chicago federal courtroom, with only a public defender (and no partner/husband) — she’d be reporting in three days, even with two little kids to care for.

So yes, the appearance of invoked privilege here is… disconcerting, to the end.

Updated @ 3:30 pm EDT — Judge Davila signed the agreed order. May 30 by 2 PM Central she must be in Texas, at the gate of FCI Camp Bryan.

Out.

Balwani And Holmes: JOINTLY Liable For $452 Million In Restitution, Tonight. Both In Custody By Late Next Week.

Here is Judge Davila’s 19 page order on restitution.

Personally, I think it is more newsworthy than the fact that likely tomorrow, Davila will set a surrender date — and likely only a week out, or less — for Elizabeth.

That is to be expected, given tonight’s denial order (exactly as we predicted) in the Ninth Circuit.

I suppose after Elizabeth has done her decade or so in federal custody… Mr. Evans may share his wealth with her, so that she lives comfortably — to her last days. But she will never be able to amass any wealth in her own name — to hold much of anything of her own — or for her two children — by then nearly ready to head off to college. The tuition will have to come from Mr. Evans.

And same, as to Sunny Balwani.

This is… after all, some measure of… justice. Many investors will begin to get money back, assuming she ever begins to make any kind of a living, for herself.

Onward — but to be clear, I take no joy in this, as perhaps most perversely, she has inflicted her sins upon her children.

They are utterly blameless — but due to her choices… they will be without her. Their only memories of her will be prison visiting rooms… through high school at least.

Damn her. That is a tragedy she chose to inflict upon them. And Billy Evans chose it for them, too. Damn him, too. No kid should have to endure that.

Out.

This Bay Area NBC Report Is… Incorrect. It Misreads The Docket, In 9th Cir…

The record so far is admittedly complex, in her appeal of her complete loss (four felony convictions) at trial. So, I get it. But one must distinguish between the main merits brief, which appeals the four convictions — and the separate petition, to remain free during those appeals. [The same was tried in Balwani — and he promptly… lost.]

NBC thought the main merits briefing schedule meant that she could remain free. Not so. The petition to stay free (technically a separate appeal of a separate USDC Judge Davila ruling) will — as it was in Balwani’s case — be decided summarily, and shortly. Both sides’ briefs are already complete (including a reply from Holmes, as we mentioned last Friday)… so the panel will likely decide within a week or two. There will be no oral argument on it.

The bit of the order the NBC outlet misunderstands is this:

…Within 21 days of this order, appellant is directed to submit for public filing redacted versions of the motions to seal and the sealed index to the excerpts of record. Appellant may redact only language that reveals non-public information. Appellee’s answering brief is due June 2, 2023. The optional reply brief is due within 21 days after service of the answering brief. Appellant’s motion to transmit an exhibit (Docket Entry No. [28]) will be addressed after the completion of briefing. See 9th Cir. R. 27-14. Appellant’s motion for release pending appeal will be decided by separate order….

The first two bolded bits refer to the main four felony conviction appeal; the last bit bolded makes plain that the panel will decide her motion for release DURING the appeal separately — and shortly, if Balwani is any weather-vane. There is a presumption of incarceration in these sorts of cases, while on appeal (after early 2000 federal sentencing reforms, in the wake of Blitzerian staying free for decades, after multi-billion dollar fraud convictions).

It applies here.

True enough, the main appeal will take about a year, form here (and then there will be appeals to the US Supreme Court, for both Holmes and Balwani, no doubt) — but she will be in custody for almost all of that time, up or down.

Now you know. Grin… you may trust that we will keep you reliably informed.