By Aron Solomon
The most important thing that came out of Monday’s late afternoon filings is a more clear and realistic sense of the timeline for the Elizabeth Holmes appeal.
Many people are upset that Holmes remains free as she awaits her appeal. The recent New York Times puff piece, in which she reinvents herself as “Liz” didn’t help rally public opinion – it just further shifted public opinion against her. This weekend’s Daily Mail piece did the same, as her Mother’s Day photos with her very young children were painted in the light of whether this “fraudster” would ever do any time.
The orders were released on Monday early evening San Francisco time on PACER (Public Access to Court Electronic Records), an electronic public access service for United States federal court documents. PACER allows paying users to obtain case and docket information from the United States district courts and courts of appeals.
The first relevant new information from Monday relates to the length of the brief Holmes and her lawyers (“Appellants,” since they are the party appealing the federal trial court’s decision) are allowed to file:
“Filed order (Appellate Commissioner): Appellant’s opposed motion (Docket Entry No. [27]) for permission to file an opening brief that exceeds by 3,024 words the 14,000-word limit set forth in 9th Cir. R. 32-1(a), is granted.”
The court’s reasoning for granting this exception is that:
“This case involves an extraordinarily lengthy record and a 46-day trial, and counsel has shown diligence in streamlining the brief.”
We can’t see this opening brief because it’s being filed “under seal,” which is a procedure allowing sensitive or confidential information to be filed with a court without becoming a matter of public record.
The Ninth Circuit is ordering that a redacted (edited to remove confidential or sensitive information) version will be made available to the public as per this part of the order:
“Within 21 days of this order, appellant is directed to submit for public filing redacted versions of the motions to seal and the sealed index to the excerpts of record.”
The next part of the timeline is really important:
“Appellee’s answering brief is due June 2, 2023.”
So the “Appellee” here is the government, as the case is officially United States v. Elizabeth Holmes.
Holmes lost at the trial court level, so she appealed to the United States Court of Appeals for the Ninth Circuit. As an aside, you don’t get to choose the circuit court – it’s automatic, based on location, and the Ninth Circuit covers San Francisco, where the trial was held. In this appeal, as noted, she is the Appellant and the United States is the Appellee.
This June date is very important – this is the deadline the government has to file their response to Holmes’ extended 17,024 word (phew!) filing.
So two things here:
The first is that I would guess the government will ask for an extension of time to answer. It’s a long brief. Today is May 16th. Replying well and thoroughly to that brief by June 2nd is going to be a serious challenge.
The second thing is even if they do reply by June 2nd (it would very likely be exactly on June 2nd), it’s not over yet:
“The optional reply brief is due within 21 days after service of the answering brief.”
This means that Elizabeth Holmes’ lawyers will have 21 days after that to file an optional (it’s an option they will almost certainly take) brief to the government’s reply brief.
Yeah, it’s getting complicated now. Just think of it as three chess moves:
1/ The court’s order granted the exemption to the size of the Holmes brief on May 15th.
2/ The government needs (maybe – we’ll see) to respond to this brief by June 2nd.
3/ Holmes has 21 days after that (June 23rd if we’re talking real days rather than business days, which the Ninth Circuit does) to reply to the government’s reply.
Okay. So that takes us at a minimum to June 23rd.
Now that’s June 23rd until the Ninth Circuit has the information they need to decide the issues in front of them, not June 23rd until they actually make the decision.
Realistically, this is something that can extend well into the summer if not Labor Day. There are always unexpected and unscheduled delays in these kinds of things.
There is one really compelling tidbit right at the end of the Ninth Circuit’s order:
“Appellant’s motion for release pending appeal will be decided by separate order.”
This means that there is a chance that Holmes will, as Sunny Balwani was, be ordered to report to prison pending this appeal.
Personally, I don’t think this will happen because it’s a bad look for the court.
I have heard the arguments that Holmes had her children as an attempted legal shield. But there’s a lot of hyperbole behind that. What we know for a fact is that she is the mother of two very young children. It’s probably best for the Ninth Circuit to ensure that all of the legal issues are as they should be and there is no basis in law for granting a Holmes appeal before they force her to report to prison to serve 11.5 years, as per her sentence.
While these current legal machinations seem to be upsetting a lot of onlookers, it’s honestly not the end of the world if Elizabeth Holmes doesn’t need to report to prison until after Labor Day if the end result is that the Ninth Circuit has done their job properly and thoroughly.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.