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Elizabeth Holmes’ lawyer argues wealthy investors like DeVos family knew Theranos’ risks


In closing arguments Friday, a lawyer for Theranos founder Elizabeth Holmes suggested wealthy investors in her failed blood-testing startup like the family of former U.S. Education Secretary Betsy DeVos either knew or should have known the risk they were taking.

Holmes’ lawyer, Kevin Downey, told jurors his client acted transparently. In tables shown on screens throughout the courtroom, Downey named at least seven wealthy Theranos investors and their professional advisers, including one for the billionaire DeVos family, explaining they’d signed agreements attesting to their understanding that their investments in Theranos were speculative.

Speaking to Yahoo Finance on Friday, legal analyst and former prosecutor Michele Hagan, who has attended the entire trial, explained why Holmes’ lawyers would want to emphasize the sophistication of investors: “If they did their own due diligence, their own investigation, if they relied on something other than her representations to them, then the jury could find her not guilty.”

Holmes is defending 11 counts of fraud and conspiracy for allegedly misrepresenting the viability of Theranos’ blood-testing technology to investors and paying customers. She was indicted back in 2018 after Theranos imploded under regulatory scrutiny, along with Theranos COO and her onetime boyfriend, Sunny Balwani. He faces the same charges and is scheduled to stand trial next year.

SAN JOSE, CALIFORNIA – DECEMBER 10: Billy Evans (L) walks with his partner Theranos founder and former CEO Elizabeth Holmes (R) as they arrive at the Robert F. Peckham Federal Building on December 10, 2021 in San Jose, California. s. (Photo by Justin Sullivan/Getty Images)

In making his final case for his client, Downey addressed alleged misrepresentations made by Holmes to investors, who included a number of high-profile figures such as Rupert Murdoch, Oracle founder Larry Ellison, and legendary venture capitalist Tim Draper. Those alleged misrepresentations included the suggestion that Theranos’ device could perform hundreds of diagnostics tests from a finger prick of blood.

When she was communicating to investors about the company’s technology, Downey said Holmes was referencing her company’s 4.0 testing device that had shown promising results in validation tests. “If you go back and look…you’ll see Holmes was talking about the series 4 device,” Downey said, referring to the 2013-2015 time frame when she’s accused of defrauding investors. He characterized evidence presented by prosecutors that referred to the 3.5 version as a “fundamental disconnect.”

Rebutting prosecutors’ claims that Holmes lied to investors about the extent of Theranos’ engagements with the military, Downey pointed to a contract for a study on Theranos’ device that the company entered into with U.S. Central Command, as well as U.S. Special Operations Command, and U.S. Africa Command.

“These projects were real projects,” Downey said.

During Downey’s four-hour closing, he made no mention of Holmes’ claims that her co-defendant, Balwani, emotionally, sexually, and physically abused her. The former CEO gave tearful testimony about the alleged abuse, which Balwani has denied. That four-hour closing was followed by final words from the prosecution, which gave its closing argument on Thursday.

In the government’s final address to the jury, U.S. Assistant Attorney John Bostic portrayed Holmes as anything but transparent.

“The version of Theranos just described was never real,” Bostic said.

Holmes tried to conceal shortcomings of its device, such as its inability to process a suite of common tests from a few drops of blood, according to Bostic. She also hid the quality control issues that plagued the company’s analyzer around the same time in 2013 that it pushed the product to market in a partnership with Walgreens, according to Bostic. She even passed off another company’s blood-testing capabilities as her own, he said.

After Bostic spoke, Judge Edward Davila handed the case over to the jury, with the directive to refrain from consuming any media about the highly publicized case. Two alternate jurors remain impaneled to step in if they’re needed.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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