Elizabeth Holmes with Williams & Connolly attorney Kevin Downey head into the Northern District on Monday, January 13. Photo: Jason Doiy/ALM

Federal prosecutors handling the government's criminal case against Theranos founder Elizabeth Holmes have fired back at claims that they failed to allege any single fraudulent statement or misrepresentation made about the now-defunct blood-testing company.

In court papers filed Monday, prosecutors argued that they charged the wire fraud case against Holmes and her codefendant, former company president Ramesh Balwani, in a way that does not require them to prove any particular statement was false.

But the prosecutors further pointed to nine separate representations Holmes and Balwani allegedly made to investors, patients and doctors about the reliability of Theranos' blood tests and the company's financial viability that they say proved to be false. Prosecutors wrote that the defense has already been provided with interview notes from investors who said Holmes had misled them to believe that Theranos' analyzer could perform more than 100 tests using a finger prick and slide decks from presentations to investors that were "brimming with false statements."

"Common sense is all that is required for a full understanding of the allegations in this case," wrote the prosecution team, which includes Jeff Schenk, John Bostic, Robert Leach and Vanessa Baehr-Jones, all assistant U.S attorneys in the Northern District of California.

Holmes and Balwani were initially indicted in July 2018 on two counts of conspiracy to commit wire fraud and nine counts of wire fraud based on claims they knew that Theranos' blood analyzer could not deliver on the public promises they were making to provide "fast, inexpensive, accurate, and reliable" tests.

The prosecutors' filings in the case come in response to motions filed last month by Holmes' lawyers at Williams & Connolly to dismiss the case or force the government to provide more detailed information about how it intends to show that Holmes and Balwani misled investors and customers about the company's blood-testing capacities, its partnership with the Walgreens pharmacy chain and the U.S. military, and any need Theranos might have had for regulatory approval. Balwani's lawyers at Orrick, Herrington & Sutcliffe filed court papers last month indicating that their client was joining Holmes' motions.

In Monday's filings, the federal prosecutors called the defense team's maneuvers "a premature attack on the evidence or a strategic attempt to limit the government's proof at trial." The government lawyers claim there's a simple reason why they did not attach a specific date or statement regarding the defendants' representations about the company's blood-testing technology: "Theranos's devises were never capable of doing the things Defendants claimed they could do."

The prosecution team also took issue with the defense contention that the government hadn't adequately alleged that doctors and patients were victims since neither group paid Theranos directly for services. The prosecutors wrote that allegations in the indictment strike at "the core of the bargain between Theranos and its customers."

"The medical tests offered by Theranos had essentially no value if they could not be relied upon, and defendants' decision to market those unreliable tests is the definition of intent to defraud," the prosecutors wrote. They also wrote that "the existence of some accurate test results does not create a loophole in the charges."

Kevin Downey of Williams & Connolly didn't respond to a message Tuesday. Jeffrey Coopersmith of Orrick said he had no comment on the government filings.

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