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Martin Shkreli Is on Trial for the Wrong Thing

While the feds try to convict Pharma Bro for lying to fellow millionaires, it's still perfectly legal to jack up the prices of lifesaving drugs.

by Allie Conti
Jul 20 2017, 5:15pm

Update 8/4/17: Shkreli was found guilty of three of the eight charges against him—all having to do with securities fraud—and is awaiting sentencing.

Update 3/9/18: Shkreli was sentenced to seven years in prison.

Jurors in Brooklyn federal court have spent the better part of the last month receiving below minimum wage to contemplate the infamous personality of millionaire Pharma Bro Martin Shkreli. In the process of presenting their case, which centers on allegations of securities and wire fraud, the feds have painted a picture of how the 34-year-old financial wunderkind came back from a bet gone horribly wrong: lying and stalling his way into the windfall needed to pay back a coterie of well-off investors.

The vast majority of the prosecution's witnesses have been unable to show they actually lost money investing in Shkreli's hedge funds, an emotional hallmark of many white-collar criminal trials. Instead, the notorious Internet troll is chiefly accused of misleading clients by using stock from biotech company Retrophin to pay them back in what the feds say amounted to a Ponzi scheme—albeit one that kinda worked out for a bunch of clients in the end.

What we're left with is a case where smirking, frail, Gatorade-swilling Shkreli—whose own lawyer suggested might be autistic in opening arguments—is easily the most reviled man in the room, and yet jurors may still struggle to generate sympathy for his alleged victims.

To back up, Shkreli is not on trial for any of the things for which he has become so well known—and deservedly hated. The businessman became the target of online outrage in the fall of 2015 after buying the rights to a lifesaving drug with no competitors and jacking up the price by about 5,000 percent. Though he did not invent the practice of exploiting niche pharmaceutical markets, Shkreli became the public face of it. And despite the fact that US Senators Claire McCaskill and Susan Collins used Shkreli as a springboard to launch an investigation of how drugs are priced in America, little besides a report has come of that very worthwhile inquiry more than a year-and-a-half later.

Essentially, Shkreli's comeuppance might come because he deceived fellow rich people. The securities fraud charges stem from his claims about how much money was in his hedge fund's coffers at any given time; according to the government, Shkreli paid back jilted clients with stock in his company Retrophin by fraudulently having them invoice for consulting fees. Because the federal case is almost entirely built around the supposition that Shkreli knowingly lied to his investors, the trial consists of an unceasing number of excruciating close-reading sessions of his correspondence—the idea being that they essentially offer a window into his soul. On any given day, the government might go line-by-line through a series of emails over the course of an hour or so, before Shkreli's defense team does the same thing with a slightly different bent.

Which is not to say the proceedings haven't had their share of theatrical moments. Shkreli's attorney, in his opening remarks, likened his client to Lady Gaga, claiming that he was "weird" and "born this way." In another bizarre moment, a former investor who is gay claimed that Shkreli tried to warm up to him by suggesting he might "hook up" with other guys.

But none of what's taken place so far has been as gripping as the trolling streak Shkreli went on after being dubbed the 'Most Hated Man in America." This is when he bought a legendary Wu-Tang Clan album and didn't let anyone listen to it, pivoted from being a Bernie Bro to a Trump supporter, and ultimately got kicked off of Twitter for harassing a female writer.

It speaks to the relatively unsexy nature of the actual criminal charges against Shkreli that I recently spotted a juror sleeping in the courtroom.

Obviously, white-collar crimes have victims, and those victims are sometimes deeply sympathetic—like people fraudulently foreclosed on by America's big banks. That does not appear to be the case here. At one point in the trial, Shkreli's defense lawyer read an email back to a 70-year-old ranch owner named Josiah Austin that he'd received in August 2007. In the missive, Shkreli listed the acronyms of several companies in which he'd invested Austin's almost $5 million. Austin, who manages $300 million of his own money in El Coronado Holdings LLC, did not appear to remember any of them despite enduring massive losses. (Still, it didn't exactly help Shkreli's defense that, according to Austin, Pharma Bro let him help pay his own sister's rent at one point.)

Part of defense lawyer Benjamin Brafman's strategy is to paint Shkreli as a misunderstood Rain Man character—someone who obviously had his clients' best interests at heart because he would go the extra step of studying the complex science behind the biotech companies in which he invested. When asked during cross-examination, however, Austin said he couldn't really speak to the research done by the man he'd entrusted with what an average American would consider an unfathomable amount of money.

Another investor who took the stand, David Geller, was strung along for over a year when it came to getting back the $200,000 he'd invested a Shkreli-helmed fund called MSMB Capital. But after the onerous delay, Geller, who looks like a high school football coach, got back $300,000, plus 2,000 shares of stock in Retrophin he eventually sold for $315,000. So even though he had to send a bunch of emails begging Shkreli to respond, and even though Shkreli seemed to engage in deeply shady business practices along the way, the man ultimately netted $415,000 for doing next to nothing.

A third investor jurors are supposed to feel sorry for is Tim Pierotti. To be clear, Shkreli sending Pierotti's wife a threatening letter, as revealed this week, does seem unhinged and wildly inappropriate, if not necessarily criminal on its own. But Perotti's last gig before saddling up with Shkreli was at the Galleon Group, where he was involved in a trade targeted by the feds as part of a probe that sent notorious insider trader Raj Rajaratnam to prison, as the New York Times reported. Like many other Shkreli prey, Perotti did not lose money investing with him.

It often feels like the only people who should care about the outcome of this trial are the prosecutors who indicted Shkreli and, of course, the defendant himself. A high-profile case against a viral finance guy is a big opportunity for the US Attorney's Office in the Eastern District of New York, which very rarely gets to dig its claws into business bros, as Wall Street proper falls in the Southern District—a.k.a. Manhattan. Shkreli could face 20 years in prison if he's convicted.

Tempting though it may be, it would be a mistake to see Shkreli potentially going to prison for these charges as justice. The story of the Most Hated Man in America won't be resolved until pharmaceutical companies are no longer allowed to charge sick people whatever they want for the rare drugs they need to survive.

Follow Allie Conti on Twitter.