Theranos investors cannot pursue class action: U.S. judge

By Jonathan Stempel

(Reuters) – A U.S. judge has ruled that investors who claimed that Theranos Inc defrauded them into investing indirectly in the company by touting revolutionary blood-testing technology that never existed cannot pursue their claims as a class action.

The ruling late on Thursday by U.S. Magistrate Judge Nathanael Cousins in San Jose, California is a setback for investors who might otherwise recover more by suing Theranos, Chief Executive Elizabeth Holmes and former Chief Operating Officer Ramesh “Sunny” Balwani as a group.

The proposed class had included more than 200 people who invested in funds between July 29, 2013 and Oct. 5, 2016 for the purpose of buying shares in the blood-testing company, once a star of Silicon Valley.

Cousins, however, said individual lawsuits were appropriate because some investors might be unable to show they relied on Theranos’ alleged misrepresentations, and instead were attracted to the company for other reasons.

“It is easy to imagine, for example, that someone invested simply because a friend suggested it, or because all that percolated down the grapevine was vague insight that Theranos was a fast-growing company, or had promising (but unspecified) technology,” Cousins wrote in a 34-page order.

Reed Kathrein, a lawyer for the plaintiffs, said he may appeal or seek reconsideration.

“It is too early to say anything other than we are very disappointed,” ahead of the scheduled depositions of Holmes and Balwani and completion of discovery this month, Kathrein said in an email.

The defendants and their lawyers did not immediately respond to requests for comment.

Indirect investors in private companies such as Theranos cannot sue under federal securities laws, which address the integrity of public markets. The Theranos investors sought to avoid this by suing under California state law.

Once valued at $9 billion, Theranos saw its fortunes darken amid reports that its technology, which offered hope that one drop of blood could help Americans control their health, didn’t work.

On March 14, the U.S. Securities and Exchange Commission charged Theranos, Holmes and Balwani with running a “massive fraud” by exaggerating their technology while raising more than $700 million from investors.

Holmes settled by agreeing to cede majority control, pay a $500,000 fine, and not serve as an officer or director of public companies for 10 years. Balwani did not settle.

Theranos also faces a criminal probe into whether it misled investors, The Wall Street Journal said in April.

The case is Colman et al v Theranos Inc et al, U.S. District Court, Northern District of California, No. 16-06822.

(Reporting by Jonathan Stempel in New York; Editing by Bernadette Baum and Phil Berlowitz)

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