Case: 1:19-cr-00864 Document #: 678 Filed: 03/21/24 Page 1 of 41 PageID #:24408
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`No. 19 CR 864
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`Judge Thomas M. Durkin
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`v.
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`UNITED STATES OF AMERICA,
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`RISHI SHAH, SHRADHA AGARWAL, BRAD
`PURDY, AND ASHIK DESAI.
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`MEMORANDUM OPINION AND ORDER
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`Rishi Shah, Shradha Agarwal, and Brad Purdy (“Defendants”) have filed
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`motions for judgment of acquittal on all counts for which they were found guilty
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`pursuant to Federal Rule of Criminal Procedure 29, and motions for a new trial
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`pursuant to Federal Rule of Criminal Procedure 33. R. 486; R. 487; R. 489. They
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`challenge the sufficiency of the evidence against them. Because the evidence is
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`sufficient to support the jury’s verdict, and none of Defendants’ arguments for a new
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`trial are meritorious, the motions are denied.
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`Background
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`Defendants are former executives at Outcome Health (“Outcome”), a company
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`that placed television screens, tablets, and wallboards that displayed educational
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`content in doctor’s offices and sold advertising space on those devices to
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`pharmaceutical companies and other clients. The superseding indictment charged
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`that from 2011 to at least 2017, Defendants and another Outcome employee, Ashik
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`Desai, knowingly and intentionally devised a scheme to defraud Outcome’s clients,
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`1
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`lenders, and investors.1 R. 14. Specifically, the indictment alleged that Defendants
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`falsely represented to Outcome’s clients that the company’s network included specific
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`doctors and doctor’s offices that the clients were targeting for advertising; lied to
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`clients about how many screens the clients’ advertisements were running on; falsely
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`inflated patient engagement metrics associated with Outcome’s tablets; caused
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`material under-delivery on advertising campaigns; caused clients to pay for
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`advertising that was not delivered; caused the material inflation of revenue in
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`Outcome’s financial statements; and used Outcome’s inflated financial statements to
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`obtain a $110 million loan in April 2016, a $375 million loan in December 2016, and
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`$487.5 million in equity financing in 2017. Id. The indictment further alleged that to
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`conceal that scheme, Defendants marginalized, undermined, and
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`ignored
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`whistleblowers who raised concerns; at times siloed information by directing
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`Outcome employees not to include salespeople who were interacting directly with the
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`clients on certain communications; discouraged clients from conducting their own
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`campaign performance studies and instead encouraged the use of Outcome’s chosen
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`measurement company; and hid under-delivery on advertising campaigns from the
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`auditor, investors, and lenders. Id.
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`Defendants were charged with mail fraud, wire fraud, and bank fraud, Shah
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`was also charged with money laundering, and Purdy was also charged with making
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`a false statement to a financial institution. Id. Defendants pled not guilty to all
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`counts, and proceeded to an eleven-week-long jury trial. Over the course of nearly
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`1 Desai pled guilty on December 9, 2019. R. 45; R. 48.
`2
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`nine weeks of evidence presentation, the jury heard from former Outcome employees
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`Desai, Sameer Kazi, Jason Ketchum, David Ma, Collin Williams, and Bridget
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`O’Donnell; pharmaceutical company victims and advertising agency representatives
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`Yesenia Bautista (Target Health), Matthew Ubriaco (Zenith), Tameka Teal (Compas),
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`Courtney Cruz (Pfizer), Joseph DiFoglio (Carat), Lyndon Chin (Assembly), Tom Coyle
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`(Initiative), Lynn Meier (Starcom), and David Dobbins (Boehringer Ingelheim);
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`lender and investor victims Ken Eberts (Goldman Sachs), James McHugh (JPMorgan
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`Chase), Todd Cozzens (Leerink), and Laela Sturdy (CapitalG); auditor Tracy
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`Harrison (Deloitte & Touche LLP (“Deloitte”)); expert Michael Petron; and FBI
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`Special Agent Megan Poelking. Shah and Purdy called one witness: data analyst
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`Amanda Malusky Krauss. Agarwal called no witnesses.
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`At the close of the government’s case and again at the close of the defense case,
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`Defendants moved for a Rule 29 judgment of acquittal, and those motions were taken
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`under advisement. On April 11, 2023, after nearly three days of deliberations, the
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`jury returned a verdict of guilty for Shah on Counts 1, 2, 4, 5, 9–19, 22, and 24–26,
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`for Agarwal on Counts 1, 2, 4, 9, 11, 13–18, 22, and 24–26, and for Purdy on Counts
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`1–4, 7–9, 13, and 22–26. R. 447. The jury returned a verdict of not guilty for Shah on
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`Counts 20, 21, 23, for Agarwal on Counts 20 and 23, and for Purdy on Counts 11 and
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`21. Id. Defendants each renewed their motions for acquittal pursuant to Rule 29 or,
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`in the alternative, for a new trial pursuant to Rule 33. R. 486; R. 487; R. 489. This
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`ruling applies to both the pre- and post-verdict Rule 29 motions.
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`3
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`Discussion
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`I.
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`Motions for Judgment of Acquittal
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`Rule 29 provides that “the court on the defendant’s motion must enter a
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`judgment of acquittal on any offense for which the evidence is insufficient to sustain
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`a conviction.” Fed. R. Crim. P. 29(a). In reviewing a challenge to the sufficiency of the
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`evidence, courts must “afford great deference to jury verdicts, view the evidence in
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`the light most favorable to the jury’s verdict, and draw all reasonable inferences in
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`the government’s favor.” United States v. Brown, 973 F.3d 667, 681 (7th Cir. 2020).
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`Courts “do not re-weigh the evidence or second-guess the jury’s credibility
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`determinations.” United States v. Taylor, 637 F.3d 812, 815 (7th Cir. 2011). Put
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`differently, a court will only overturn a jury’s verdict “if the record contains no
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`evidence, regardless of how it is weighed, from which the jury could find guilt beyond
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`a reasonable doubt.” United States v. Fitzpatrick, 32 F.4th 644, 650 (7th Cir. 2022).
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`That burden is “nearly insurmountable.” Id. at 649. Additionally, a challenge to the
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`sufficiency of the evidence proving intent “is exceedingly difficult to win.” United
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`States v. Dingle, 862 F.3d 607, 614 (7th Cir. 2017).
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`A. Mail Fraud, Wire Fraud, and Bank Fraud Counts
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`Defendants were each convicted of several counts of mail fraud (18 U.S.C.
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`§ 1341), wire fraud (18 U.S.C. § 1343), and bank fraud (18 U.S.C. § 1344). In order to
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`prove Defendants guilty of mail or wire fraud, the government had to prove the
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`following elements beyond a reasonable doubt: (1) that the defendant knowingly
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`devised or participated in a scheme to defraud; (2) with the intent to defraud; (3) that
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`4
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`the scheme involved a materially false or fraudulent pretense, representation, or
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`promise; and (4) that the defendant used or caused the use of the United States Mails
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`or caused interstate wire communications to take place for the purpose of carrying
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`out the scheme or attempting to do so. R. 444 at 23 (Instruction No. 22); Seventh
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`Circuit Pattern Criminal Jury Instructions at 538. Further, in order to prove
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`Defendants guilty of bank fraud, the government had to prove the following elements
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`beyond a reasonable doubt: (1) that there was a scheme to defraud a bank; (2) that
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`the defendant knowingly executed or attempted to execute the scheme; (3) that the
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`defendant acted with an intent to defraud; (4) that the scheme involved a materially
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`false or fraudulent pretense, representation, or promise; and (5) that at the time of
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`the offense, the Federal Deposit Insurance Corporation (“FDIC”) insured the deposits
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`of the bank. R. 444 at 235 (Instruction No. 23); Seventh Circuit Pattern Criminal Jury
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`Instructions at 635.
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`Relevant to all three charges, intent to defraud requires proof that the
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`defendant “act[ed] knowingly with the intent to deceive or cheat the victim in order
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`to cause a gain of money or property to the defendant or another, or the potential loss
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`of money or property to another.” R. 444 at 30 (Instruction No. 28); see also United
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`States v. Faruki, 803 F.3d 847, 853 (7th Cir. 2015). Additionally, a scheme is “not
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`limited to an isolated instance of conduct” but rather understood as a “continuing
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`course of conduct, during a discrete period of time.” United States v. Thomas, 986
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`F.3d 723, 729 (7th Cir. 2021).2 Moreover, since the elements for wire fraud directly
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`2 The scheme charged in Count 1 was incorporated into each of the other counts.
`5
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`parallel those for mail fraud, the Seventh Circuit treats “‘cases construing one [as]
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`equally applicable to the other.’” United States v. Kelerchian, 937 F.3d 895, 909 n.2
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`(7th Cir. 2019) (quoting United States v. Leahy, 464 F.3d 773, 786 (7th Cir. 2006)).
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`1. Defrauding Pharmaceutical Companies (Counts 1, 2,
`4, 5, 11, 23, and 25)
`Defendants argue there is insufficient evidence of their knowing participation
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`in the scheme to defraud or intent to defraud the pharmaceutical companies or their
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`advertising agencies (collectively, “pharma-clients”). The relevant counts are as
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`follows:
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`- Count 1 charged Defendants with the February 2, 2015 mailing of a $53,790
`check from Pfizer (GX 438) to pay Outcome’s November 1, 2014 invoice for
`the Xeljanz campaign (GX 410).
`- Count 2 charged Defendants with the February 4, 2015 mailing of a
`$229,170 check from AbbVie (GX 439) to pay Outcome’s November 1, 2014
`invoice for the Humira campaign (GX 409).
`- Count 4 charged Defendants with the May 14, 2015 mailing of a $89,100
`check from Biogen (GX 466) to pay Outcome’s February 1, 2015 invoice for
`the Tecfidera campaign (GX 437).
`- Count 5 charged Shah with the November 14, 2015 email from Shah to
`Dave DiCosola and Desai stating in part, “[Y]ou have to make sure not to
`talk about total installs in the everyone email – this is a big deal because
`sponsorship is on there too and they’re selling much larger quantities for
`next year.” GX 494.
`- Count 11 charged Defendants with the July 22, 2016 mailing of a
`$1,071,202.56 check from Boehringer Ingelheim (GX 597) to pay Outcome’s
`June 1, 2016 invoice for the Jardiance campaign (GX 582).3
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` 3
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` Only Shah and Agarwal were found guilty of this charge, and thus they are the only
`defendants who challenge the sufficiency of the evidence on this count.
`6
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`- Count 23 charged Defendants with the March 16, 2017 mailing of a
`$458,261.62 check from Merck (GX 897) to pay Outcome’s December 1, 2016
`invoice for the Belsomera campaign (GX 675).4
`- Count 25 charged Defendants with the April 24, 2017 mailing of a $566,799
`check from Pfizer (GX 930) to pay Outcome’s February 1, 2017 invoice for
`the Xeljanz campaign (GX 836).
`A review of the evidence illustrates how Defendants knowingly and
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`intentionally engaged in a scheme to defraud Outcome’s pharma-clients through
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`overselling Outcome’s inventory and concealing pervasive under-deliveries. At the
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`start, by nature of its business, Outcome faced a “two-sided market.” GX 70. That is,
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`Outcome needed to install enough screens in doctor’s offices to attract advertisers,
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`while also generating enough advertising revenue to fund the installation of new
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`screens. That aspect of Outcome’s business precipitated the first part of the scheme:
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`inflating list matches. Pharma-clients sent Outcome lists of doctor’s offices they
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`wanted to target for advertising campaigns. Outcome compared the lists with its
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`inventory of offices where screens were installed and generated a “list match.” Trial
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`Transcript (“Tr.”) 2167. But instead of using current inventory, Outcome often used
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`“projected inventory” to entice clients to buy larger, more expensive advertising
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`contracts. Tr. 2170, 2172.
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`The evidence showed that in the early days of the company, Shah and Agarwal
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`were heavily involved in day-to-day sales and promoted the use of projected
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`inventory. For example, with Shah’s approval, a salesperson emailed a client in
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`February 2011 that Outcome was “currently in the waiting rooms of 1/3 of all
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`4 Only Purdy was found guilty of this charge, and thus he is the only defendant who
`challenges the sufficiency of the evidence on this count.
`7
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`endocrinologists in the US.” GX 2. When Agarwal asked whether that assertion was
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`“inaccurate,” Shah acknowledged that as a standalone statement, it was. Id. And
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`when Agarwal pointed out that Shah had made that representation “a lot,” Shah
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`added, “Let’s just get to [the claimed number] quickly.” Id. In November 2012,
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`Agarwal herself, with Shah’s awareness, directed an employee to conduct a list match
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`using projected inventory, GX 67, and one year later, admitted that the list the client
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`had wasn’t the “true list” as Outcome did not have even one-third of the inventory
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`“installed at the time,” GX 265.
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`The evidence also demonstrated that by 2013, Purdy became involved, albeit
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`to a lesser extent, in the effort to sell pharma-clients on “the future,” i.e., projected
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`inventory. Outcome employee David Ma testified that Purdy taught him how to
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`conduct list matches using methods that would sweep in offices where Outcome did
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`not have installed screens. Tr. 2184–87. Ma also recounted that when he expressed
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`his concern that these methods “would yield inaccurate results” and “overrepresent
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`[Outcome’s] inventory,” Purdy shrugged, “that’s just kind of the way we do it,” and “I
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`think it’s okay.” Id. 2187–88.
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`To be sure, some pharma-clients were content with buying projected inventory,
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`either through growth schedules or weighted average delivery written into the
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`contracts.5 But the evidence showed that growth and weighted average contracts
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`5 Generally speaking, “weighted average” contracts promised delivery of a weighted
`average number of offices or devices over the duration of the contract rather than a
`specific number of offices or devices per month. For these contracts, Outcome would
`bill clients for the same amount each month, even if the actual delivery for that month
`exceeded or fell short of the weighted average amount. “Growth” contracts promised
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`were the exception, not the norm. E.g., id. 2202, 2398, 5492. And testimony from
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`pharma-clients revealed that they intended to buy existing inventory and were
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`generally not told that the list matches did not reflect Outcome’s current inventory.
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`Id. 2031–32, 6094, 6256, 8105.
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`The evidence showed that Defendants helped conceal that fact by siloing
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`information about how the list matches were created away from the salespeople who
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`directly interfaced with pharma-clients. For example, Shah wrote to Agarwal directly
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`asking whether a salesperson knew a certain list match was projected, removing that
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`salesperson from the email. GX 140. Agarwal responded that while she wasn’t sure
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`in that specific case, “generally, the team doesn’t know it’s a projection because they
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`get confused about how to represent it, even though they need not say it any
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`differently.” Id. The evidence featured additional conversations between Defendants
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`of a similar nature. See GX 494 (Count 5) (Shah instructing Dave DiCosola “you have
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`to make sure not to talk about the total installs in the everyone email – this is a big
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`deal because sponsorship is on there too and they’re selling much larger quantities
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`for next year”), 274 (Agarwal telling Desai to take salespeople off email chains when
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`discussing “what data to use,” noting “I’ve noticed their confidence level in our data
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`change dramatically when presenting to clients if they believe it’s accurate vs made
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`up.”), 1099 (Purdy stating “we should probably make some sort of barrier between the
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`delivery for a certain number of offices or devices at the start of performance and
`increasing numbers over the duration of the contract. For these contracts, Outcome
`would bill clients for the specific growth targets set by the contract. See Tr. 609–10,
`864–65, 2397–98.
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`[sales] team and ops with regards to tablets and/or take off the cumulative counts.
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`With all the projecting I want [sales] to stay focused on selling the future and realized
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`that the below [data] may even be inaccurate for them[.]”); see also Tr. 2175, 3414–
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`15, 3429–30, 3436, 3473–74, 5501.
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`Other evidence indicated that on numerous occasions, Defendants knew that
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`pharma-clients were being misled. For instance, in August 2013, the same month
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`that Desai began working at Outcome, Shah, Agarwal, and Desai discussed an email
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`from Boehringer Ingelheim about “ensuring proper ROI [return on investment]
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`measurement”6 of the Pradaxa campaign. GX 263. After Agarwal admitted that the
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`Pradaxa list match wasn’t the “true list” as Outcome did not have even one-third of
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`the inventory “installed at the time” the list was provided, Shah added that if the
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`client started asking questions about the list, they could shift to a weighted average
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`approach. Id. Later in the month, Desai told Ketchum that he had spoken to Shah
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`about the Pradaxa list and shared, “In the end, we’re open to being honest if it’s
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`caught[.]” GX 284. Along the same lines, in October 2013, Shah, Purdy, and Desai
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`discussed presenting a list of offices to Novo Nordisk that included a number of offices
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`not installed at the time as if they were current inventory. GX 322, 324; Tr. 3421–22,
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`3596–3603.
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`6 Some of Outcome’s contracts included ROI guarantees, which promised a certain
`amount of return for every dollar spent on advertising. See Tr. 2400–01 (“If a
`[pharma-client] is paying us $1 million and they require 3:1, that means that we had
`to deliver $3 million in value.”). Outcome generally contracted with third party
`vendors to conduct studies of ROI, such as IMS. See id. 2414–19.
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`Ma testified that in early 2015, he shared his concerns about selling inventory
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`Outcome did not have and Agarwal’s “jarring” response were words to the effect of,
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`“we throw smoke bombs . . . to clean up our operations.” Tr. 2422–25, 3030; see also
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`GX 265. Agarwal’s comments echoed Shah’s remarks to a room full of Chicago
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`entrepreneurs in November 2012 that Outcome “threw a smoke bomb”: Outcome had
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`doctor’s offices “commit to taking the installation” of a device, while having
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`advertisers “commit to buying the network,” acknowledging “You cannot be late.
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`Otherwise it’s fraud. Right? I mean it . . . You know, you’re selling something you
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`don’t have.” GX 70.
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`Because Outcome was “selling devices that were not there,” it “had significant
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`under-delivery on a number of [its] programs, even while [it was] billing [its] clients
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`as if [it was] delivering in full. Tr. 3431; see also Tr. 2200. The evidence demonstrated
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`that under-deliveries—coined “deltas”—were pervasive, recurring, and well-known
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`by Defendants. There was evidence that Shah, Agarwal, and Purdy were each aware
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`of ongoing under-deliveries, first through emails and small groups and then through
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`formal “delta reports” and “growth models” shared with Outcome’s senior leadership
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`and discussed in off-site retreats. See, e.g., GX 357, 360, 397, 441, 442, 460, 461, 624,
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`1027, 1098, 1153; Tr. 2211–12, 2237–39, 2254, 2261–62, 2273, 2275, 3653–57, 3768–
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`69. In March 2016, Shah acknowledged the recurring nature of deltas when he noted,
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`in an email to Agarwal and his chief of staff, that he didn’t “want to spend every
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`meeting” with Outcome’s executive team [including Desai and Purdy] on the issue of
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`deltas. GX 557. He added that he didn’t want to hear “new ideas not cleared by me,”
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`concerned that it would turn into an “inquisition.” Id.
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`Yet, testimony from the pharma-clients revealed that they were not made
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`aware of under-deliveries. See, e.g., Tr. 2032, 2200–01, 3313, 3519, 6094. Some
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`evidence indicated that pharma-clients were unaware because of active concealment
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`at Defendants’ direction or with their approval. The jury saw several examples of
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`Desai working with Defendants to conceal the deltas from pharma-clients by
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`reassigning inventory from one client to another, e.g., GX 330, 337, 1928; inflating
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`patient-engagement data on Outcome’s tablets, e.g., GX 345, 432, 1144, 1908; Tr.
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`3024; and filtering data used in ROI studies, e.g., Tr. 3568–69, 5514–15. Later, when
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`Outcome was faced with even larger deltas, Desai began changing performance data
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`received from the third-party vendor IMS such as “the total number of doctors
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`studied, the percentage lift, the ROI” before sharing it with clients. Tr. 3870–71,
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`3883–84, 3917. By November 2016 at the latest, Shah and Agarwal were aware of
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`reports by a salesperson named David Jundt that Desai was changing ROI data. GX
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`673, 747; Tr. 3916–17. Indeed, they discussed with Desai how to address ongoing
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`talks between the offices about the legitimacy of the ROI data. GX 673. But neither
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`Shah nor Agarwal ever confronted Desai about the accusation. Tr. 3925.
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`All the while, Outcome continued billing its clients as if it had delivered what
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`was asked. Tr. 2210–11, 3431, 3651–52. The evidence, viewed in the light most
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`favorable to the verdict, further indicates that Defendants knew this was happening.
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`Desai testified that he discussed revenue at meetings with Shah and Agarwal and
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`sent all three Defendants regular revenue reports, showing Outcome meeting its
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`revenue targets and some including campaign-specific billing data. E.g., Tr. 3652,
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`3831–32, 3833, 3838–40; GX 1035, 1036, 1037, 1038, 1039, 1040, 1041, 1043, 1044,
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`1044a, 1045, 1046, 1047, 1048. Further, despite frequent reminders about massive
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`inventory shortages in certain therapeutic categories, like rheumatology and
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`neurology, Defendants knew that Outcome continued to sell larger advertising
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`campaigns, with growing deltas, year after year. GX 107, 136, 193, 205, 221, 330, 357,
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`359, 461, 461a, 594, 594a, 704, 1098, 1153. Moreover, Shah supplied the revenue
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`goals, Tr. 3844, and pushed for increasing sales goals despite deltas, id. 3027–29. See
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`also id. 2348–49, 3033, 3628–29.
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`In June 2016, Shah, Agarwal, and Desai encountered a “massive” issue, where
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`there was “essentially no delivery” of advertising for two months of a campaign for
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`the brand Invokana. GX 588, 589 (Shah texting Agarwal that “all of [the campaigns]
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`may be totally under delivering”). A few weeks later, the three received the results of
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`an internal audit of what Outcome was “delivering versus what was in the contract”
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`for “2016 programs.” Tr. 3781–82; GX 594. The audit revealed under-deliveries of 10%
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`or more on 77 of 137 active campaigns and six campaigns with “dark” periods during
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`which no advertisements were played, even though clients were billed in full. GX 594,
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`594a; Tr. 3782. The audit further found 31 exam-room tablet and 12 waiting-room TV
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`campaigns with under-deliveries of 50% or more. GX 594a. Yet, none of the under-
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`deliveries were disclosed to the pharma-clients. Tr. 3787–88.
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`Several months later, on Christmas Eve 2016, Shah sent Purdy and Desai a
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`Voxer (a voice memo sent between employees) summarizing “grave concerns” that
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`Purdy had shared about Outcome’s “ability to fulfill the current standing of 2017
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`contracts.” GX 701. Desai replied two days later, observing how Outcome had, for
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`years, sent monthly proof-of-performance affidavits to clients, which falsely attested
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`all contractual requirements had been met despite recurring under-deliveries. GX
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`704. Desai recommended they “change this practice,” so that affidavits are a “source
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`of truth as to what, in fact, ran in the 30-day period.” Id. He also noted that, for “a
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`longtime [therapeutic] category” like rheumatology where Outcome had been under-
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`delivering on campaigns for years, “starting to call attention to massive inventory
`
`gaps” by suddenly submitting accurate affidavits would “open up a whole and
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`historical legacy of potential issues,” including recalling revenue and “more drastic
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`impact[s]” like losing clients entirely. Id. In response, Shah tasked Purdy and Desai
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`with finding a solution that balanced “the goal[s] . . . of correctly reporting on
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`affidavits while not . . . causing a bunch of account-level issues.” GX 707.
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`Viewing this evidence altogether and drawing all reasonable inferences in the
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`government’s favor, a jury could conclude that Defendants knowingly participated in
`
`a scheme to defraud and intended to defraud Outcome’s pharma-clients. Nonetheless,
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`Defendants contend that the convictions on these counts cannot stand.
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`First, they claim that a rational jury could not have found them guilty of these
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`charges without evidence they were specifically aware of (1) the terms of each
`
`contract in question and whether it allowed for growth or weighted average delivery;
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`14
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`Case: 1:19-cr-00864 Document #: 678 Filed: 03/21/24 Page 15 of 41 PageID #:24422
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`(2) what Outcome delivered on each contract during the relevant time period; (3) that
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`Outcome was providing each client with false proof of performance documents; and
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`(4) what Outcome billed each client during the relevant time period. See R. 489 at 5;
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`R. 486 at 6–9, 11. But those requirements are found nowhere in the case law cited by
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`Defendants. Instead, the jury had to find beyond a reasonable doubt that Defendants
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`knowingly participated in the scheme with the intent to defraud. And here, as
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`described, there was significant evidence that Defendants knew and intended to
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`deceive or cheat pharma-clients. Considered in the light most favorable to the verdict,
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`the evidence showed that Defendants knew that Outcome was consistently inflating
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`list matches, under-delivering on its contracts, and concealing that under-delivery
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`through a variety of means. That there may not have been evidence that Defendants
`
`knew the precise terms of each contract and delivery and billing data does not mean
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`that they did not knowingly participate in the scheme with the intent to defraud
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`Outcome’s clients. Further, the jury was properly instructed that they had to find
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`beyond a reasonable doubt that each Defendant acted with the intent to defraud. R.
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`444 at 23, 30, 42.
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`Relatedly, Defendants assert that the government invited the jury to speculate
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`about their knowledge and intent. Defendants claim there was no evidence that they
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`knew that clients were billed in full despite under-deliveries and knew there had been
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`no make goods7 in 2015. It is true that the Court “must take special care to guard
`
`
`7 “Make goods” refer to offers made to clients to compensate, or “make good,” for what
`was under-delivered. It may take the form of a credit back to the client or running
`15
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`Case: 1:19-cr-00864 Document #: 678 Filed: 03/21/24 Page 16 of 41 PageID #:24423
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`against the possibility that a defendant may be found guilty by either speculation or
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`mere association.” United States v. Garcia, 919 F.3d 489, 503 (7th Cir. 2019). But
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`that’s not what happened here. Instead, the jury made a reasonable inference based
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`on Defendants’ awareness of ongoing and pervasive under-deliveries and their
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`simultaneous knowledge of Outcome’s increasing revenue quarter after quarter
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`through Desai’s revenue reporting. If Outcome was only billing on what was
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`delivered, it would not have met its revenue targets. Likewise, Desai testified that
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`there were no make goods in 2015 and when Outcome began giving make goods in
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`late 2016, Shah and Agarwal talked about them extensively. The reasonable
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`inference from the absence of any conversations between Defendants about make
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`goods in 2015, in stark contrast to 2016, is that they knew there were no make goods
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`in 2015.
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`Defendants recast the evidence in a number of ways to argue that there was
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`insufficient proof of their knowing participation in the scheme and intent to defraud.
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`Primarily, they maintain—as they did at trial—that the fraudulent scheme was
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`wholly of Desai’s making and hidden from them. Similarly, Shah claims that the
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`evidence at most shows that he had a general sense that Outcome occasionally had
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`“operational errors.” GX 489 at 5. But contentions “that the evidence supports equally
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`rational inferences are unavailing, giving this court’s obligation to view the evidence
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`in the light most favorable to the government.” United States v. Moede, 48 F.3d 238,
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`advertising for a longer period of time or at additional offices at no cost. See, e.g., Tr.
`2036, 2941.
`
`
`
`16
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`Case: 1:19-cr-00864 Document #: 678 Filed: 03/21/24 Page 17 of 41 PageID #:24424
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`241 (7th Cir. 1995); see also United States v. Huels, 31 F.3d 476, 479 (7th Cir. 1994).
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`In addition, this argument runs headlong into the evidence showing Defendants’
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`involvement in manipulating list matches before Desai arrived at the company. E.g.,
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`GX 67, 265. While there was evidence that Desai kept the fact that he changed ROI
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`data from Defendants, there was other evidence showing how Desai directly
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`collaborated with Defendants and sought their guidance in executing the scheme.
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`Desai testified at length about how he followed Defendants’ model and
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`conducted the fraud with their direction and approval. That testimony did not stand
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`alone. It was extensively corroborated by other evidence, including the testimony of
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`Ma regarding Defendants’ knowledge and lies to clients (e.g., Tr. 2371, 2393, 3036,
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`3396, 3927); the testimony of Ma and pharma-clients undermining the inference that
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`Defendants believed Outcome routinely entered growth or weighted average
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`contracts (id. 2202, 2398, 3173–75, 3279, 6043–44, 6049, 6092, 6144, 6241–42);
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`communications showing the general practice before Desai’s arrival of siloing
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`information from salespeople (e.g., GX 140, 183, 274, 326, 494); Desai’s grand jury
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`testimony (Tr. 5649–73); and the emails, Voxers, and text messages shown to the jury
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`that matched Desai’s assertions. A large part of the defense case was to portray Desai
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`as a master criminal and that he was lying about Defendants’ involvement in the
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`fraud. The jury apparently found Desai credible, and it is not the province of this
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`Court, in weighing a Rule 29 motion, to “reweigh the evidence or ‘second guess’” that
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`determination. United States v. LeBeau, 949 F.3d 334, 346 (7th Cir. 2020) (quoting
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`United States v. Coscia, 866 F.3d 782, 795 (7th Cir. 2017)).
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`17
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`Case: 1:19-cr-00864 Document #: 678 Filed: 03/21/24 Page 18 of 41 PageID #:24425
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`Additionally, Defendants highlight how the government largely ignores
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`Ketchum’s testimony. But the favorable testimony they highlight reveals the pitfall
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`of their argument. That Ketchum answered “yes” or “correct” to several helpful
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`propositions on cross-examination after reviewing select documents does not do the
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`work that Defendants claim. E.g., Tr. 1342 (answering “correct” that certain emails
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`shown on direct examination did not include any instruction from Shah to tell a client
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`that the list match had projections), 1325 (answering “yes” to whether he would agree
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`that in “2012, back when Mr. Shah was in the room with the clients, Outcome is
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`explicitly disclosing how many sites it is currently in and what it projects to be in the
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`future”). Rather, Ketchum’s willingness to answer “yes” dozens of times and to nearly
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`every question posed by both the government and defense suggests that the jury in
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`all likelihood did not find him credible. As previously stated, it is not the job of this
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`Court to “second guess” that conclusion. LeBeau, 949 F.3d at 346.
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`In its simplest form, Defendants engaged in a scheme to over-sell, under-
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`deliver, and

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