Theranos’s Elizabeth Holmes has finally been sentenced to over 11 years in prison. Too bad our corporate law is too narrow to attribute some criminal liability to the company’s board of directors. Such luminaries as former Secretaries of State George Shultz and Henry Kissinger, Marine Corps General James Mattis, and former Secretary of Defense William Perry, once famously portrayed as “the single most accomplished board in U.S. corporate history,” should be partly culpable for Holmes’s malfeasance.
When Holmes explained away her underlying technology as “a chemistry performed so that a chemical reaction occurs and generates a signal from the chemical interaction with the sample, which is translated into a result, which is then reviewed by certified laboratory personnel,” all the board had to do was demand, “Show me.” Determining how a device or service works—exists even—as purported, would seem to be the essential obligation of a board member. A truly engaged overseer may have preserved $945 million in investors’ capital and kept a naïve, immoral, and feckless entrepreneur from bullying the press, intimidating her employees, and gambling with the lives of patients. (Read WSJ reporter John Carreyrou’s excellent chronicle, Bad Blood (2018; my summary).)
The board individually and collectively failed in their responsibilities as trustees of investors’ interests. Undoubtedly drafted as trophy directors to reinforce the company’s standing such as it was, not for any knowledge of blood testing, they now walk away with nothing more than a blot on their illustrated careers.