No doubt Holmes will raise this paradox on appeal. She will remind the appellate courts of the adage that the law of fraud does not “attribute to investors a childlike simplicity.” She will also surely raise once more the claim that every investor knows that Silicon Valley is a veritable hotbed of hype.
Don’t get me wrong. I’m not arguing that Holmes is innocent. We should always, as a first approximation, trust that juries have done their work correctly. I won’t be surprised if the verdict is upheld on appeal.
But even if Holmes has to spend some time behind bars, one suspects that things will work out for her. Fairly or not, she’s captured a corner of the zeitgeist, and is likely to retain a degree of celebrity—or perhaps notoriety—for years to come. Fans attended the trial in replicas of her iconic “plain black suit.” Jennifer Lawrence has agreed to portray her in the movie.
And because this is Silicon Valley, it’s appropriate to close with what might be the strangest coda to the Holmes story: Venture capitalist Marc Ostrofsky, an early Theranos investor whose stake was at one point valued at $22 million, is auctioning a non-fungible token of his stock certificate, good for 500,000 preferred shares in Theranos. As of this writing, there are no offers.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include The Emperor of Ocean Park, and his latest nonfiction book is Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.