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Theranos CEO Elizabeth Holmes Finally Faces Criminal Charges

It's been some time coming, but the CEO of Theranos is finally facing criminal charges for fraud, as the WSJ's Carreyrou repor...

Sunday, June 17, 2018

Embarrassed and Disgusted

Don't like politics? Or swearing? Don't read this, the usual Theranos/tech stuff is here.


Being both British and American, I've joked for the last two years that I am embarrassed by my government on both sides of the Atlantic, but it's not really a joke. I'm truly embarrassed, and disgusted by them both. I thought Britain was out in front with the self-harm of Brexit, and then shot into the lead with the Windrush scandal. For the Americans here who don't know, that's when the "hostile environment" policies of the Home Office, primarily to appeal to the racism of a segment of the British electorate, resulted in British citizens being deported to countries they had either never been to, or not been in for most of a century, because they couldn't find ridiculous amounts of paperwork for every year of their life from 1973 on (the same Home Office had destroyed the relevant govt records a few years prior, so sad). But this week the US takes the lead with a deliberate policy to separate children from parents at the border, even when claiming asylum. The administration seems torn on whether to gleefully claim it such as with Miller, "God says to do it" from AG Sessions, or pretend and deny that it's even happening like Sec Nielsen. Whatever, it's clearly part of a policy to appear tough, traumatize kids, "trigger the libs", rile up the base with xenophobia, use children as bargaining chips to get a pointless wall paid for, and keep America from becoming less white.

Democrats can apparently end this if they just will bow to Trump's demands. We're literally at the "I didn't want to hit the kids. But you made me hit the kids because you didn't do as I said." stage of this administration.

Oh but wait a minute, Obama did something like it too, didn't he? That significant change in policy was years ago, not last month? Ah, well in that case it's all OK, isn't it? No it's not, and if you want to defend this type of policy with what-aboutism then fuck you. Trump seems determined to destroy anything Obama did, from the PPACA, through the Iran deal, to the Paris Climate Accords, but apparently on this there is just nothing to be done.

It doesn't matter if anyone did it before, it's happening now. It's not a requirement of law, but a choice of the administration to enforce in this manner. It could be ended immediately, but it isn't going to be, because this brutality is the goal, the purpose of this action. We're separating families and then brutalizing the kids, and sometimes deporting the parents without the kids. Kids upset and want to hug their sibling? No, not allowed. Tell kids their parents are dead? Tell parents their kids are lost? And conditions so bad there are reports of suicide? It's disgusting.

I've been lectured multiple times by Republicans these last two years that people have a "values matrix" and I don't understand that they value things differently (and the clear subtext always is "better"). First of all, is that a talking point somewhere because I've had a ton of folk hit me with that? Second, so your values are destruction of families, degradation of the national discourse, removal of healthcare benefits for most, support for dictatorial regimes, alienation of allies, destruction of the western alliance, and child marriage, or are they all worth it for a tax cut for the rich and a few judges? You know you can call yourself a Republican and not support Trump or this type of policy, right?

Democrats like me are just sore losers, don't understand what real Americans are. Except I'm not a Democrat, there seems to be a thinking in the US you can only me a member of one of two tribes. And I am an American, same as any whether it's from a big coastal city, or slap bang in the middle. Every American is a real American.

Don't like what I'm saying? Report me to ICE. They're the new force to intimidate if you don't like what someone is saying. Want to travel on a bus? Better be a US citizen (and white, let's be honest that will help a lot there). And it seems they're up for deporting green card holders who've been in the country for 50 years, and are now coming to take citizenship from naturalized US citizens who have filled their forms out incorrectly. What, they won't ever abuse that type of power and I'm overreacting? I'll point you to the above Windrush issue where that's what happened, and people born in the UK who had never left the country were getting deportation letters (even when they are white!). Trust a bureaucracy to deal with that correctly? On a zero tolerance, potentially life-or-death process? Have any of you ever been to a DMV? 

And why does the news just keep showing boys in these detention centers? Where are the girls and the babies? You know, the 'valuable' ones. If I start hearing that some lovely white Christian families are selflessly adopting the cutest of these kids to 'help', and sadly the parents get deported without them, then that's truly some Handmaid's Tale shit right there.

And for the selfish among you who still don't care, you do realize that eventually they'll come for you too? That to protect yourself, protect the weakest among us. Those without voices, those easily targeted, those that the powerful would demonize. If a society looks after the weakest, everyone is protected.

When I became a US Citizen, I was aware of the darker side of our past, but still believed in the ideals of the nation. To become a more perfect union. This is not the country I became a citizen of.

Everyone proud of their country today? 

Saturday, June 16, 2018

Theranos CEO Elizabeth Holmes Finally Faces Criminal Charges


It's been some time coming, but the CEO of Theranos is finally facing criminal charges for fraud, as the WSJ's Carreyrou reports here. The indictment is a well-written history of the company and distills down to a few pages the scheme to defraud investors, doctors, and patients. The charges focus on Wire Fraud occurring between late 2013 and mid 2015, and of the 11 counts of Wire Fraud, one is for the defrauding of investors, one for defrauding of patients and doctors, six are for monetary transfers from investors, one for payment to advertisers for their products, and two are for wiring of patient blood test results. The pair face up to 20 years in prison, $250,000 in fines, restitution to the defrauded, per count. Holmes, and co-defendant COO Balwani, have both plead not-guilty to all charges.

Holmes settled civil charges with the SEC for "massive fraud" a few months ago, and some were upset that she was allowed to settle for a seemingly small fine ($500,000) and a  10 year ban from being a company director. With the latest charges, Holmes has stepped down as CEO, but somehow remains the board chair at Theranos. I've felt for some time that Holmes was going to jail for what she'd done, and that while the wheels of justice turn slow they grind exceedingly fine. I have the feeling up to 220 years in jail is a pretty smooth paste...

Wire Fraud is a common charge in such cases as it is relatively straightforward to demonstrate as interstate (for federal jurisdiction) and has been upheld by the Supreme Court as quite broad in covering "everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future." Other courts have expanded this to "puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the 'reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society'".

Reading that wording, it's surprising and refreshing to see that 'caveat emptor' does not necessarily apply and that there is the expectation of fair dealing and honesty, even about the future. When discussing cases of fraud by startups, I often hear push-back that "everyone exaggerates", "they must have really believed so it was OK to exaggerate", or "well it's within the wording of the law even if they knew it was wrong". While startup and VC mentality may still accept that "fake it 'til you make it" is the norm, as with the SEC charges earlier this year, the law is making it clear that this is not legal, and that exaggeration as well as outright falsehoods are illegal

“The Theranos story is an important lesson for Silicon Valley,” said Jina Choi, Director of the SEC’s San Francisco Regional Office.  “Innovators who seek to revolutionize and disrupt an industry must tell investors the truth about what their technology can do today, not just what they hope it might do someday.”

The federal charges against Holmes and Balwani make this even clearer, with wording like "obtaining money... from investors... by means of materially false and fraudulent pretenses... and material omissions with a duty to disclose". If you know it won't work, and fail to disclose, that's going to come back on you too - it's not just what you say, it's what you don't say. Energous, in my opinion, are another example of this type of fraud, where they deliberately create confusion to sell people the hope of at-distance wireless charging, when they know the promised future will never come.

Next standout statement in the indictment, at least to me, was "represented to investors that Theranos did not need the Food and Drug Administration ("FDA") to approve its proprietary analyzer and tests". Given that so many startup companies rely on regulatory arbitrage, that is bypassing existing regulation "because it's tech", and operate in some very grey areas (see Uber's history), companies who have claimed to investors that no regulatory approval would be needed might want to rethink that kind of statement unless they are very, very sure.

One of the last aspects of the "scheme to defraud" that the indictment raises is "represented to members of the media for publication of the false and misleading statements described above, and shared the resulting articles with potential investors both directly and via the Theranos website, knowing their statements to members of the media were false and misleading." So exaggerating/lying to the press then using those articles as part of your fundraising is part of a fraud case? I've repeatedly argued that this behaviour is fraudulent and told that it is not, I'm glad to see the US Attorney agrees. Some startups may want to review their media strategy.

I don't think Silicon Valley have really internalized this yet, and will find ways to make Theranos an exception. How many more Theranos style cases do we need until there's no more denying that they are not the exception? While Holmes' behavior was particularly egregious, to me it was an inevitable outcome of a system that through funding bias regularly selects for the most morally-flexible personalities in their founders. If by funding choices you prefer your CEOs to be liars, don't be surprised when they lie.

I hope that this might be the start of at least some people realizing that if they heavily exaggerate, or try to fake it 'til they make it, regarding investors and customers, that it's not "being an entrepreneur", it's fraud. That being said, until those providing the funding alter their metrics to favor the honest, I don't expect to see any major changes.

For those wanting to read more on Theranos, I can highly recommend John Carreyrou's book "Bad Blood", my review is here.

Friday, June 15, 2018

Theranos: Holmes Fundraising for New Company, and Sociopathic Founders?

There was other Theranos news this week that was overshadowed by the indictment, coming in the form of a Vanity Fair article by Nick Bilton. In it he reveals that disgraced CEO Holmes is currently doing the rounds of VCs in Silicon Valley pitching her next startup, even before her existing company goes under. Yes, you heard that right. Despite everything, she's still actually getting meetings with investors willing to listen to someone with her reputation. Now, I have to admit that if I were an investor, and I got a pitch from Elizabeth Holmes I'd be tempted to meet her in person to see what she was like, even if I had no intention of funding anything - however when there are VCs like Tim Draper who still are convinced that Theranos would have succeeded if it hadn't been for those pesky journalists, you know at least some of them are genuinely interested. Beyond that, imagine the thinking of someone who just settled with the SEC for fraud, with an imminent fraud indictment, who can go out there and straight faced ask for investment.

Bilton hits on a couple of key points that I've been trying to raise in this blog - first that the way tech media, investors, and startups interact is broken and encourages dishonesty and malinvestment. While Theranos is presented as a particularly egregious example of a Silicon Valley startup misdeeds, anyone who has been involved in the scene for more than a few years can recognize many other companies in what happened. It is not an outlier, it is an inevitable consequence of the system of financial rewards that benefits the least scrupulous. To quote from the article:

"You would think that seeing Holmes’s duplicity wrapped up in a neat bow in Carreyrou’s book, and in the S.E.C. settlement—which, incidentally, mentions the term “fraud” seven times—would force Silicon Valley to perform its own due diligence, and question whether the way C.E.O.s, investors, and the media interact should be re-evaluated. But alas, the tech world doesn’t see Theranos as a tech company, but rather a biotech outlier. In Silicon Valley, you can be sure that the company that should have changed everything about the way business is run will actually change very little. The majority of the tech press won’t ask tougher questions of Zuckerberg or Musk; they’ll simply continue to fawn over the idols of the business world. Whatever they say must be true."

Traditional VCs are saying that they didn't invest in Theranos, and they are right in that, much came from wealthy family foundations, but the entire "myth of the founder" and ecosystem that each is partially responsible for birthed this monster. The tech press, who put her on the cover of magazines and called her "The Next Steve Jobs" simply didn't do any due diligence of their own, and blindly accepted her word without even bothering to call their local university biotech prof for a comment. You are starting to see, though, an increased skepticism in at least some of the press, with the better journalists and publishers questioning that bit more, after all who wouldn't want to be the next Carreyrou? 



The second point Bilton raises regards the character of those founders who receive the most funding and coverage - the go-getters who sell incredible visions and struggling against reality to deliver the future, or the snake-oil salesmen peddling dangerous cures for their own financial benefit - depending on individual case and your viewpoint. In the case of Holmes and others accused of fraud, what does it take to do this over multiple years?

In his book "Bad Blood", Carreyrou says of Holmes "A sociopath is often described as someone with little to no conscience. I'll leave it to the psychologists to decide whether Holmes fits the clinical profile, but there's no question that her moral compass was badly askew". While he goes on to say he believed she started the company with good intentions, it soon became evident there was to be no compromise in the vision, even to reality. "Her ambition was voracious and it brooked no interference. If there was collateral damage on her way to riches and fame, so be it." I'm not sure how else you can say that there is no conscience and guilt over the consequences of a person's actions. In his interview with Bilton, Carreyrou is a little more blunt: "She absolutely has sociopathic tendencies".

I think those of us who are "normal" simply want to dismiss that anyone could act that way, and there has to be a logical explanation for why they acted like that. Someone may set out with good intentions, but they are not made into a sociopath by the events in their life, their reaction to those events and their ongoing actions reveals their sociopathy. It's what they always were, it's just they're now in a situation that makes it obvious, compared to simpler times when the natural urge to think well of people lets us pretend they are a decent person.

Given how quickly Holmes showed a consciousness of guilt, it's clear to me these personality traits were already there. In "Bad Blood", the prologue relates that in 2006, less than three years after the company founding, CFO Mosley bluntly stated to Holmes "We've been fooling investors. We can't keep doing that." and for doing his job she immediately fired him. There are countless other examples where it's clear she knows she's doing wrong. Perhaps she believes that in the end she'll be proved right and that the end justifies the means, but that still doesn't absolve her of her wrongdoing. Regardless, she was this way at least 12 years ago, it is not a recent change.

While we've been talking sociopathy, I'm going to lay out an alternative lay-person diagnosis. Take it as my opinion, my Ph.D. is in engineering, not psychology. Bilton's article has a key quote:

“One person in particular, who left the company recently, says that she has a deeply engrained sense of martyrdom. She sees herself as sort of a Joan of Arc who is being persecuted,”

Now this may be a mask she wears to fool others, but I think this is a narrative that she has developed to explain her actions and justify them to herself. Everyone is the hero in their own story, and needs that narrative to define their life and why they are not the villain. From when the first stories broke on Holmes in 2015 the response was "misogyny", and even today her backers such as Draper claim persecution. A sociopath, typically suffering from a lack of empathy, simply wouldn't care. They might use such stories to provide cover for their actions, but not actually believe them. A person with other psychological issues, but not sociopathy, would build an elaborate tale of persecution to validate themselves rather than admit their wrongdoing. If any such issues are to be looked at, in my opinion it's the various parts of Personality Disorder Cluster B. According to the American Psychiatric Association, it is possible to meet the criteria for multiple disorders. Highlighting the four cluster components:

  • Antisocial: a pervasive disregard for the law and the rights of others.
  • Borderline: extreme "black and white" thinking, chronic feelings of emptiness, instability in relationships, self-image, identity and behavior often leading to self-harm and impulsivity.
  • Histrionic: pervasive attention-seeking behavior including inappropriately seductive behavior and shallow or exaggerated emotions.
  • Narcissistic: a pervasive pattern of grandiosity, need for admiration, and a lack of empathy.

Someone who has a disregard for law and others, sees in extremes, attention seeking, grandiosity, and a need for admiration. Does that sound familiar? Now you can still make a case for either, but for an attention seeking, billion dollar startup founder, the narcissistic trait in particular is too good a fit, and one that seems to be pretty useful in raising money.

Delusional Investors: Theranos Edition

If you want to see Tim Draper, early Theranos investor, defend Theranos against all reality, just watch this interview. It's about 11 minutes long, and he comes out with multiple statements that are flat out wrong. To capture just three of them:
  • The SEC charges were based on innuendo: False, the SEC charges were detailed and Holmes settled them. She was accused of "massive fraud" and the SEC were very clear about that.
  • The SEC has no authority to regulate non-public companies: False, the SEC absolutely have authority to enforce fraud laws on non-public companies. To quote “The charges against Theranos, Holmes, and Balwani make clear that there is no exemption from the anti-fraud provisions of the federal securities laws simply because a company is non-public, development-stage, or the subject of exuberant media attention.”
  • Carreyrou's book Bad Blood is nothing but lies: False, read the book and his articles, they are meticulously researched with detailed interviews and documentation. Had they been malicious lies, Theranos and Holmes would have had an exceptionally strong case to sue for libel.
  • Theranos had a viable product, it was just 'beta': False, not even close. They never had anything even close to working at a level acceptable for medical diagnosis.

This is the guy who is campaigning to split California into three states, which makes as much sense as Theranos being a viable company. I'm not sure if he still genuinely believes in Holmes, or just so unwilling to admit he was a mark in a con that he's doubling down.

There's another similarly crazy interview here

Sunday, June 3, 2018

Wireless Power Consortium: Aristides Capital on Energous - Still Not Looking Good

Earlier today Christopher Brown of Aristides Capital gave a presentation on "The Six Billion Dollar Watt: Promise and Problems of Wireless Charging 2.0" at the Wireless Power Consortium meeting in Quebec. He continues to focus on Energous and his opinion of them has not improved since last time. You can find the WPC page here with direct download here and a simple PDF of it here. It's similar to, but updated from, a talk he gave a few weeks ago at a short selling conference that can be seen here. Here's one of my favorite slides from it, highlighting the "Time to Carrot" where Energous have been pushing out product delivery to around 18 months away for four years.


I'm hoping that the Wireless Power industry is finally getting its act together and realizing that if one large well publicized company generates bad press, it's terrible for them all. If the overall industry speaks together to denounce what Brown straight out calls "fraud", then the mainstream media and large investors may finally take notice and give Energous and the like the coverage and treatment they deserve.