In the opening of a high-profile securities fraud case, investor Martin Shkreli is portrayed as just a con man on one hand and an odd duck who didn’t lose anybody any money on the other hand.
NEW YORK — An odd duck. Perhaps autistic. Weird. Maybe with Asperger’s. A guy who shuffled around his office in bunny slippers with a stethoscope around his neck because he felt comfortable that way.
This is how Martin Shkreli was portrayed Wednesday for his trial on fraud charges — by Benjamin Brafman, his own lawyer.
“Is he strange? Yes,” Brafman said of his client. But, he added, “every single government witness will concur that Martin Shkreli, despite his flaws and his personality, is brilliant beyond words.”
In a captivating opening statement, the lawyer sought to alter a narrative that the government had laid out to the jury seated in U.S. District Court in Brooklyn.
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Shkreli, 34, is best known for initiating a steep price increase on a lifesaving drug, and for his social-media antics that have drawn him enemies aplenty. He is being tried, however, on eight counts of securities and wire fraud related to his time running two hedge funds, MSMB Capital and MSMB Healthcare, and a pharmaceutical company he founded, Retrophin.
“The question is going to be whether the case is nuts: Nobody was defrauded, nobody lost any money,” Brafman argued, telling the jury that the investors in fact made money because of Shkreli’s financial prowess.
Prosecutor G. Karthik Srinivasan said in his opening argument that Shkreli had convinced investors that “he was a Wall Street genius.”
“In reality, he was just a con man,” Srinivasan said.
Shkreli falsified investor statements, backdated documents, misled investors about his record as a fund manager and misstated how much money was in the funds, “telling lies on top of lies on top of lies,” Srinivasan told the jury.
After Shkreli lost millions of dollars in a trade, draining the remaining money from MSMB Capital, a few days later he founded MSMB Healthcare, in early 2011, the prosecutor said. About the same time, he formed the pharmaceutical company Retrophin, and had MSMB Healthcare invest in Retrophin. “The defendant was on both sides of the deal,” Srinivasan said.
When his debt for the trading loss came due, “he stole money from MSMB Healthcare” to pay the debt, which the health-care fund did not owe, Srinivasan said. Shkreli then told investors that he was shutting down the two funds, and told them they could have stock in Retrophin or cash for their shares. Those who wanted cash could not get it and threatened to sue, Srinivasan said, and that is when Shkreli arranged for Retrophin to “pay off” the MSMB investors.
“Retrophin owed these investors nothing — the defendant owed these debts,” Srinivasan said. When accountants told him to stop, Shkreli arranged to hire the investors as consultants, a sham, the prosecutor said.
Investors may have made their money back, Srinivasan said, but Shkreli still committed fraud.
In his opening, Brafman flipped the setup that Srinivasan had constructed in trying to portray the investors and Retrophin board as victims and Shkreli as a villain.
Actually, Brafman said, Shkreli was pushed out of Retrophin because its board thought he did “not conform to their idea of what a public company CEO should look like or walk like or talk like,” he said.
Retrophin, he said, is now quite valuable — its market capitalization is more than $700 million — and the board is still “raping” Retrophin.
Chris Cline, a Retrophin spokesman, said: “The government has charged Mr. Shkreli with defrauding Retrophin. We will let the facts speak for themselves in court.”
Some board members at Retrophin “bullied” and “frightened” Shkreli, Brafman said, and questioned his sexuality.
“Whether Martin is gay or straight or bisexual is irrelevant; it’s 2017,” Brafman said. “Get a life, board of Retrophin. The Retrophin board? A bunch of thugs.”
Meanwhile, the investors in Shkreli’s funds were sophisticates with money to burn, Brafman suggested.
Once, after an investor encountered Shkreli in the slippers-and-stethoscope get-up when he dropped by the office, the investor said, “But Martin, you’re not a doctor,” according to Brafman. Shkreli responded, “I’m comfortable this way,” the lawyer said.
“Maybe he’s just nuts, but that doesn’t make you guilty,” Brafman said.
As for the government’s specific assertions, Brafman argued that some of the documents and arrangements in question were blessed by lawyers or board members, but allowed that Shkreli sometimes played loose with facts.
“Martin is Martin,” he said. “He sometimes said some things to an investor on a certain date, but not everything he said was 100 percent accurate, but he was truthful to the mission” of making Retrophin a success.
Shkreli, who had sat through the government’s statement often rolling his eyes, sat straight up, smiling, looking like he was watching a terrific movie when Brafman ripped through his opening statement.
When the lawyer returned to the defense table, Shkreli stood, put his arm around him, and patted him on the shoulder.
“Buckle up your seat belts, ladies and gentleman; you’re in for a good ride,” Brafman told the jury.
The first witness testifies
In 31 minutes a hedge fund managed by Shkreli in 2012 went from a roaring success to an empty shell, one of his investors told a jury Thursday.
Sarah Hassan, 27, who gave Shkreli $300,000 to invest in MSMB Capital, said she got an email at 8:13 p.m. on Sept. 9, 2012, saying she was up $135,000, a return of 45 percent. At 8:44 p.m., Shkreli sent out a second email notifying Hassan and other investors he was shutting the fund down.
“We went through operational mishaps,” Shkreli said in the email. “There is no longer any cash in the funds.
Shkreli took his clients’ money without their permission and used it to start Retrophin, according to prosecutors.
Hassan, the first witness in the fraud trial, said she felt “betrayed” when she learned the fund was closing and the money was gone, even though she ultimately made a $2.7 million profit after selling all her Retrophin holdings. Hassan insisted Shkreli “kind of forced upon me” more than 58,000 shares of Retrophin to settle.
“They were forced upon you?” Shkreli’s lawyer asked her on cross-examination. “At the end of the day you made a hefty profit.”
“Yes, even more than I asked for,” Hassan said.