Lucas was a #Theranos investor, he founded Black Diamond Ventures.
We heard from Investor Bryan Tolbert earlier in trial whose HALL Group invested in Theranos through Black Diamond Ventures in 2006.
Lucas first found out about #Theranos in 2005 from his uncle Donald Lucas who was once the chairman of the Theranos board of directors.
"He was very excited about the opportunity," Chris said.
Prosecutor John Bostic is conducting the direct examination.
BBV invested $400,000 in Theranos in Jan. 2006, Lucas testified.
Chris described the investment as a "wonderful opportunity."
Bostic asked him why.
"[#ElizabethHolmes] was very passionate about the project, very sincere in what she was trying to do, worked all the time," he testified.
"It was all Theranos all the time for Elizabeth."
"You take a shot," Lucas testified of the investment. "If it all worked out, wonderful. And if they were not able to develop the tech…you move on."
"At that point (in 2006) it would have been very high risk."
Lucas' understanding of Theranos tech:
"[Theranos tech] was certainly beyond a drawing on a napkin [in 2006] but we certainly didn't believe at the time it was fully functional and developed," he testified.
In 2013 BDV invested another $5.4 million in #Theranos, Lucas testified.
The witness testified between 2006 and 2013 #ElizabethHolmes was his "primary source" of information about the company.
They met in person 4-5 times/year.
His uncle Don was a secondary source, he said
“I feel that she and I got to know each other quite well," Lucas testified.
"There was not a lot of transparency, however I felt w/ my relationship w/ Elizabeth, that I was certainly being told the information I needed in making my decisions."
In 2012, Don Lucas resigned from the #Theranos board, Bostic highlighted
Thus, Don was no longer a source of info for Chris on Theranos (in the year leading up to BDV's additional $5.4 million investment.)
"#Theranos's processes are faster, cheaper and more accurate," Bostic read this line from the WSJ article out loud.
"That was the whole essence of the company," Lucas testified.
“Being around the company for 7 years, and Elizabeth for 7 years…thats it’s mission. certainly.”
Bostic asked if many of the claims in the article were important to Lucas, in considering an investment.
Yes to all.
Now an email from a then BDV principal Theranos cc'ing Chris Lucas on Dec. 16, 2013.
The subject: Theranos stockholder consents for your signature by this Wednesday 12/18/13
Lucas testified by this time it "certainly" would have been BDV's recommendation to invest at this time
Lucas responded to the chain on 12/18/13 Lucas asked Theranos five questions, one of which inquired for more time to consider making an investment.
“The timing was quite compressed. We wanted to understand if they truly had to close by Dec 31 or not. And indeed it did have to close…” Lucas testified.
"This time scale, approx 2 weeks between the announcment of a fundraise and the closing of a round. Where does that fall on the spectrum of pace of investment?" Bostic asked
"Very short," Lucas replied. "This was holiday time...we ended up working around the clock."
Lucas was on the Dec. 20, 2013 call w/ Holmes that investor Bryan Tolbert recorded.
He wasn't aware the call was being recorded, he testified.
"the purpose was to have this call, to have Elizabeth present, and to let any of our people ask any questions," he testified.
Those people's intention: to invest in the company, he said.
Lucas sent Holmes a Christmas Eve 2013 email.
"I have continued to have calls with our investors and have determined that there is significant interest in participating in this [investment] round," he wrote.
"I will be working through the holiday to close this financing..."
"The challenge will be getting all of the funds prior to yearend. If there is any flexibility, please let me know," Lucas wrote, as Bostic read out loud.
Holmes responded to Lucas' questions, including about timing.
The ultimate result — a requirement for BDV to invest by the New Years Eve deadline.
“Our recent milestones in entering this 150b industry and the potential our partners think we have to revolutionize healthcare, obviously also speak for themselves in this context based on everything in the public domain," Holmes wrote to Lucas in the email chain
Bostic again stresses timing.
He published an email which showed BDV's principal "acknowledging the wire," Lucas testified.
"This was the last in the process."
"This is happening on Dec. 31...the deadline for the investment correct?" Bostic asked
"Yes," Lucas replied.
We're going through the stock purchase agreement.
Bostic fronts the language that describes the investment as "highly speculative" and BDV investors as "sophisticated."
"The fact that [#ElizabethHolmes]had been able to attract partners like Walgreens and others. That's a huge factor," Lucas testified.
Bostic got Lucas to testify that he believed that the #theranos partnership w/ Walgreens was going well, and that Lucas' "good relationship" w/ Holmes gave him comfort despite his lack of financial info.
New exhibit: An email between individuals at BDV relating to the #theranos investment in 2013.
"Generally…we were saying to our group that there was a certain amount of info that we did not have access to. And we wanted them to know that, and acknowledge that," Lucas testified
“We felt that it was important to provide this additional disclosure,” Lucas testified.
With other investments BDV had provided funders with other disclosures, but, "not something like this," Lucas told Bostic.
Sounds like Lucas never received an investment binder — like others have testified to.
But he did review news articles and the Theranos website in connection with his investment, he told Bostic.
(his Dec. 2013 investment)
At the time of Lucas' investment:
"My estimate was that [Theranos tech] could do the majority of the most common tests out there…at least dozens of tests.”
"Did you understand that the #Theranos analyzer was actively being used by the military to treat soldiers in the field?" Bostic asked, of the time of his 2013 investment.
"Yes," he replied.
Would it have surprised you to hear #theranos and the military had never sent a single analyzer to the middle east?
Yes I would have been surprised
#Theranos sent its shareholders the Fortune front page article "This CEO's Out for Blood," as Bostic showed
"Great article. Great pictures, the whole thing," Lucas blurted out.
Bostic ended his direct there.
defense attorney Kevin Downey on for cross.
"I want to talk about the period you were introduced to Theranos," he starts.
In 2005, by his uncle,
"And he had been a legendary venture capitalist for many years in the valley correct?"
Can you tell us what characteristics of Ms. Holmes gave you a positive impression as you were evaluating an investment?
She was very articulate. Very passionate. She is very smart and...she was on a mission to provide some tech to the world that was very helpful
And was that impression of her important to your decision to invest in 2006?
Yes
...2013?
Yes
As it was to Don Lucas.
"It's always about the people. Its all about the people," Don would say, as Chris recalled.
He would "put a lot faith in the founders."
Don Lucas' views on Holmes/Theranos:
“Very passionate…it seems like she was gong to be able to develop the technology. And this would reflect a wonderful inv opportunity," Chris testified.
Downey moves to due diligence, and what's "customary" to review.
“It’s customary to XX it’s customary to YY”
reviewing patents...reviewing documents..
Holmes did send Chris Lucas an email with seven attachments on 12/22/2005, including "various financial information,” as Downey asked and Lucas confirmed.
It was a follow up to Chris/Holmes first meeting
We're looking at an attachment. A #Theranos slideshow titled: Theranos, Redefining Healthcare
This info is customary to give to an investor whose considering an investment
Next to each iteration - an estimate of how many assays the analyzer could conduct
Next to the Theranos 2.0 — it said "Over The Counter Sales"
Downey asked if he knew how that could relate to the business side of things
No I dont, the witness testified, noting it never happened
Did you know at this time Novartis had already agreed to evaluate the tech #Theranos was using...in connection with its clinical trials?
Lucas didn't recall
It's been such a long time that you actually don't remember what Pharma companies you heard about?
Did you understand that #theranos was developing an increasing number of small sample assays?
Yes
Just an observation:
Lucas seems to understand the technical elements involved in assay development / the blood testing business much better than say DeVos family wealth manager Lisa Peterson or HALL Group V.P. Bryan Tolbert.
Breaking for 30
Downey and Schenk just returned from a chambers discussion with the judge.
They have been having frequent meetings away from the public this week.
Downey resumes his cross of Chris Lucas.
He's going over the documents #ElizabethHolmes sent to the witness in Dec. 2005.
"The 510(k) process will consist first of approval of the assays and second to approve the non-disposable reader," one line read, as downey highlighted.
Downey asked him if that process of getting such approvals is an "uncertain" one
He agreed.
And that it "can affect the value of the company"
He agreed
"RISKS RELATED TO OUR BUSINESS"
^Another section of a document Holmes shared with Lucas in 2005.
Downey is going through them ...
We are looking at a list of 7 risks.
-The rate of progress and costs of our research and dev activities leading to the production of our first generation device.
-regulatory approval
and 5 others
"If we are unable to manage growth in connection with our transition from a development company to a company that successfully commercialized its project line" read another risk under the subhead "Managing Growth
"Do you know how old Ms. Holmes was when you met her in 2005?" Downey asked.
"I believe 19," Lucas replied.
Downey then showed the terms on which BDV bought 433,304 shares for $400,000.25 in early 2006.
The document is titled: SERIES B PREFERRED STOCK PURCHASE AGREEMENT
FEB, 3, 2006
In the agreement, Downey pointed out a listing of the patents Theranos had pending at the time.
"Is this typically the data you would have access to…prior to an investment?" he asked.
"If this is accurate, yes," Lucas replied.
Holmes' name was on all but one of the patents (5 / 6) -- the earliest listed as being filed in Sept. 2004.
BDV also purchased stock in Theranos in the latter part of 2006.
328,014 shares for $924,999.48
Downey admitted the purchase agreement.
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
First Closing
Second Closing
Third Closing
Fourth Closing
Downey asked him to explain why there are four closing periods. He elicited that BDV got in on the first closing.
Then during the third closing BDV made two more investments:
425k shares for $1,198,500
And another 684,000 for $1,928,880, which was made per the request of Craig Hall of the HALL Group.
We heard his VP Bryan Tolbert testify a week or two ago.
Downey did some impromptu mental math and arrived at "a little bit over $2 million," the # BDV invested in Theranos during the first and third closing in the latter part of 2006
(separate from the Hall Group's investment)
Lucas confirmed.
"There would have been more information we potentially [would have] liked, but we didn't have access to it and we made the decision to invest," Lucas testified.
Lucas testified BDV relied at least in part on the "large document" (Downey's words) that Holmes sent over
Downey points out BDV paid less than $1 per share in Feb. 2006 and around $3 per share in fall 2006.
did that reflect that there was increasing value in the company
correct
Did that relate at all to what #theranos was doing w/ the pharmaceutical business?
After he signed the contract Downey asked,
"Theranos finalized another contract w/ a Pharma company?"
"Do you recall that you were actually asked... to prepare revenue models for the company?"
He didn't, so Downey showed a June 2007 email from Lucas to #ElizabethHolmes.
The subject: "Theranos Revenue Model"
The attachment: "Theranos Porjection-Rev4-2008.xls"
"Attached is the latest spreadsheet which shows three scenarios of cash payments," Lucas wrote.
We are looking at the spreadsheet.
It shows the projected revenue from August to December 2008
What documents did you use to prepare the model that is part of [this exhibit]
"I don't remember"
This line by Downey is notable b/c many of the other investors who have testified have expressed frustration in being out of the loop financially.
Lucas on the other hand is preparing financial projections for Theranos.
We also saw an email from Lucas to Holmes which he attached two models for:
"Rev. 9 (expected) Rev. 10 (capacity)"
Lucas doesn't remember personally preparing these, he testified.
Downey made a joke about him being "modest"
"You're certainly taking me down memory lane," Lucas told Downey with a laugh.
"With the latest revisions, we are in agreement that they properly represent Theranos financial forecast based upon our discussions and assumptions. I've really enjoyed working through he process with Ruchita (Theranos internal financial person)," Lucas wrote to Holmes in 8/2007
Do you recall your uncle had introduced theranos to Safeway
I know at some point don knew someone at Safeway. One of the executives.
On Theranos entering into an agreement with Walgreens in 2013.
"Good news?"
"Great news...It means the tech was now ready to be rolled out in a commercial endeavor...that means revenue for the company, more value for the company, and we were in real business," Lucas testified.
"As part of this initiative we are completing a series of financial transactions w/ strategic partners," Theranos wrote in a 2013 letter to shareholders, which the gov showed on direct.
Did you understand that that was likely a reference among other Walgreens?
...Yes
"What was your understanding of why there was a dec 31 deadline…?" Downey asked.
"My understanding was Walgreens had an agreement to convert their stock at a predetermined price prior to the end of 2013..." Lucas replied.
Downey's line is focused on contextualizing the Dec. 31, 2013 investment deadline, which prosecutors portrayed as rushed.
An example, presumably, to add weight to their "out of time, out of money" assertion repeated during their opening statement.
"The question really for you was 'do I want to make this investment at a $15 share price'…or take a longer time to consider it and invest a larger amount in 2014?"
"Sure."
"Am I right that nothing would have precluded you from investing in 2014?"
"I would expect so"
breaking again - going until 4p today
Chris Lucas is back on the stand.
On direct Lucas told prosecutors he believed Theranos had developed "dozens" of assays for use in their clinical lab at the time of his Dec. 2013 investment.
Downey asked him if that was something Ms. Holmes told him.
Lucas didn't recall.
Lucas also admitted he knew some tests Walgreens conducted were venous
"I remember that there were some tests that theranos said they couldn’t do - so if you are [at Walgreens] for the others, than you have to draw the blood," he testified.
"In 2006 when [Craig Hall] made his investment [in Theranos] he agreed to pay a form of compensation to you for essentially being his investment manager…do you recall the terms of that?"
Downey has the terms projected.
"2.5% annual management fee on committed funds and a 16% of the upside," they read.
Lucas recalled the HALL Group wanted to invest directly later in Theranos in 2013, as Downey elicited, and we heard from Bryan Tolbert.
"That was a substantial subject between you on the one hand and Mr. Tolbert and Mr. Hall on the other in late December 2013?"
"Idk how substantial, but it certainly was a discussion yes," the witness replied
(more context for that period prosecutors portrayed as rushed)
Downey ends his cross. Prosecutor John Bostic is on for redirect.
Are you aware of whether or not your personal funds were actually included in this 2013 theranos investment
yes
Do you remember the discussion with Mr Downey about Ms. Holmes age in 2005?
You recalled that Ms. Holmes might have been approx 19 in 2005?
Bostic corrects Lucas — she actually she was 21.
Would that mean she was 29 in 2013?
yes
Would that mean Ms. Holmes had been the CEO for approx 10 years? (since 2003)
Yes
Bostic refers to her as thus a "more seasoned" CEO
Lucas agrees.
"In the years after 2007 leading up to 2013 do you recall doing any additional work on Theranos financial information."
I don't
Bostic gets Lucas to testify he didn't knew whether or not Theranos was "short on money" in 2013.
Bostic brings up the 2005 doc Holmes sent Lucas which Downey admitted on cross.
The prosecutor draws his attention to the "risks" section.
"For 2013 -- 7 years later -- Did you receive a similar list or disclosure from theranos about risks...?"
"I just don't recall."
Bostic ends his redirect and Downey comes on for recross.
"first of all we established ms holmes was actually 21," Downey starts.
(We're looking at the fortune Mag article which Bostic used to correct his testimony from Holmes being 19 to 21)
Downey shows these grafs:
The first time I heard about this, I thought it was snake oil and mirrors,” says David Helfet, the chief of orthopedic trauma at the Hospital for Special Surgery in Manhattan..It’s real data,” he says. “It’s not their interpretation.”
Witness is excused.
Next witness: Lynette Sawyer. The other lab director the defense brought up in their cross of Dr. Dhawan.
"Have you ever met Elizabeth Holmes?"
No.
"As far as you know is this the first time you've been in a room with Elizabeth Holmes?"
Yes.
Prosecutor Robert Leach is emphasizing Sawyer's lack of involvement at the #Theranos lab on direct examination
Leach ends after a very brief direct. Wade is on for redirect.
we have a hard stop at 4.
"You worked with a gentleman named (Jerry Hearst?), correct?"
And Mr. Hearst has a lab consulting company
right
you're aware that he was a longtime california dept. of health inspector?
yes
"You're aware ultimately there was an agreement by which you provided services to the [#Theranos]; right?"
"Yes."
"Lets take a look."
THERANIOS, INC.
"Consulting Agreement"
1. services and compensation (EXHIBIT A)
It's signed by Mr/ Balwani and Mr. Hurst,* Wade shows.
"Consultant's principal Company contact: Sunny Balwani. President and COO," the agreement indicated.
Did you hear from Mr. Hurst, that Mr. Balwani from a management standpoint was in charge of the lab?
No.
You understood he was a senior leader in the company?
Yes
“Sometime labs have — kind of — pinch hitter lab directors?” Wade asked.
"I suppose you could call co-directors that," Sawyer responded.
Perhaps Wade's wording lent to the fact that Judge Edward J. Davila is a big baseball fan
Davila sustains an objection.
"You can ask another question, but why dont you do that tuesday?" Davila told wade.
"That's a great idea," Wade shot a finger gun at Davila.
We'll all be back Tuesday for more Lynette Sawyer.
The government anticipates another lab director after Dr. Sunil Dhawan "who was at theranos at the time theranos received the CMS inspection report (exhibit 2567) -- he's also the lab director who voided all of the tests on #theranos Edison Device," AUSA Robert Leach said.
Dr. Kingshuk Das, is the witness, Leach was referring to.
Wade asks to move Das to Wednesday...
Wade cited "a lot of thorny legal issues" with Das.
"It sounds like it could be one long day," Wade said, in an estimate of his cross of Dr. Das.
Leach estimated his direct would last 1-2 hours
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Dr. Henry Kissinger's longtime lawyer Dan Mosley, who personally invested $6 million in Theranos after the former Secretary of State asked him to vet the company, is back on the stand Wednesday morning where he will likely complete his testimony.
In pretrial arguments, Judge Edward J. Davila said he will "very well likely" grant the defense's motion to exclude testimony from patient "B.B." who received purportedly inaccurate results from an assay not included in the government's indictment or bill of particulars.
"It sounds like the government was confused as to its assays," Defense attorney Katie Trefz told the court.
“This is the U.S. government, this is a criminal case, they should be held to a higher standard.”
Schenk pulled up the "Certification of designation of series c-2 preferred stock" and is going through it with Mosley.
Breaking until 2 ish PT.
Mosley is back on the stand, and Schenk is having him decipher some handwritten notes he took about #Theranos at an unspecified time.
His hand writing is worse than mine.
Schenk ran Mosley through a slide deck he received from #Theranos. He highlighted many of the statements we have seen from other slide decks in other investors' binders.
They touch on accuracy etc.
The AUSA is asking him if the statements are consistent with his understanding.
More Dan Edlin. Defense attorneys told the judge yesterday they may cross the former sr. project manager for most of the day today.
Then we will get Dr. Shane Weber, director of diagnostics at Pfizer who once evaluated Theranos's tech.
Defense + prosecution continue to debate the admissibility of an internal Pfizer report which contains an "unfairly prejudicial" assessment of Theranos' tech, according to defense attorneys.
Prosecutor Robert Leach called the document a "A definitive absolutely not," to moving forward with Theranos.