• Story alerts
  • Letter to Editor
  • Pin it

Life should be peaceful at La Jolla Farms, that tony area of 100 superluxury homes adjacent to Torrey Pines State Park.But war has broken out there. One resident controls a local biotech. A former resident says she was fraudulently induced to put her life savings in the company. She has sued. Defendants say it’s premature for her to say she has lost her money; the company has cleaned house and rebounded, they assert.

Kathleen (Kitty) Jennings has filed a suit in superior court, claiming that she was wooed into investing $1.6 million in a privately held company named Biocept because of misrepresentations, primarily by the company’s former chief executive, Gordon Janko, and Jennings’s La Jolla Farms neighbor, Claire Reiss, the major shareholder.

Jennings says that she talked face-to-face with Reiss only about twice a year — at the La Jolla Farms Christmas and Fourth of July parties. One time, the socially prominent Reiss exulted that the company was on the verge of releasing a breakthrough product that would rake in money and she was offering her friends the chance to make a buck on “confidential” information, according to the suit. The company is focused on developing a diagnostic technology for the detection of Down syndrome in the first trimester of pregnancy, as well as early identification of certain cancers.

After Reiss gave Jennings the initial pitch, Janko gave her what she considers a fraudulent song and dance about Biocept’s looming success, according to the suit. Reiss and others, including chief financial officer Jennifer Crittenden, didn’t curb his hyper-enthusiasm. Email correspondence shows that Reiss promised Jennings she would return her money but later reneged.

The suit charges Biocept, Reiss, Janko, Crittenden, and others with fraudulent misrepresentation and concealment, breach of fiduciary duty, and corporate waste, among several things. Defense attorney Christopher McGrath won’t comment. “The lawsuit is at a very early stage,” he says. The company is known to have directors’ and officers’ liability insurance.

Reiss doesn’t want to comment about the suit, other than to say, “That lady [Jennings] will regret she did this.” Reiss’s late husband was a prominent biotech investor/scientist and had served on Biocept’s board. Reiss appears to have put $30 million to $40 million in Biocept. “The [financial] problems occurred last year. The company is doing beautifully. Her [Jennings’s] investment is worth a lot.”

But Jennings says she never received an audited financial statement. Says her lawyer, Erwin Shustak, “It is just a question of time before [Biocept’s] money runs out.”

The suit charges that in its 12-year history, the company burned through $84 million of money raised from investors “and has failed to generate any meaningful revenue or launch any products or technologies into the market.”

“Janko misappropriated a large portion of the company’s monies and assets to finance his own lavish lifestyle,” including million-dollar homes and luxury cars, according to the suit. Records indicate he owned four homes during the 2003–2008 years in which he headed the company, but it’s possible some were rentals. Also, he had accumulated personal wealth as a result of a corporate buyout before he joined Biocept.

The suit also charges that he owned a company that provided services to Biocept. I have tried unsuccessfully to reach Janko at several locations. Crittenden would not answer my questions.

Claire Reiss contacted Kitty Jennings in late 2007, according to the suit. Jennings, a divorcée with three teenage sons, paid $5.33 a share for Biocept stock, and Janko told her the shares would be worth $15 each in a short period of time, the suit charges. She was assured that the company would launch a prenatal diagnostic device by late 2008 or early 2009, and it would enjoy a $100 million market, according to the suit. She was also told that Food and Drug Administration approval for the product would not be necessary; the company had 100 patents, and big pharmaceutical companies coveted Biocept’s technology. All those claims were false, according to the suit. In addition, she was not told that Johnson & Johnson, perhaps the most successful health-care colossus, was in direct competition with Biocept.

Then commenced a series of emails between Jennings and Reiss. On August 7 of last year, Reiss said, “If what I hoped will not come through by next year, I will personally buy your shares from you…I never want to see my friends lose money because they know me.” But on September 9, Reiss emailed, “I can’t afford to buy your shares right now.” Jennings, citing health problems, begged her a second time to relent.

In those emails, Reiss admitted to Jennings that Janko did not tell the truth in hyping Biocept’s immediate prospects. In August of 2008, Reiss said Janko “is a great salesman and that is it.” She lamented his “country club style.” She told how she was lining up investor votes for his ouster.

Jennings wrote back to say, “Remember, you ultimately control the company because you control the money.”

By mid-August, the company was talking to Stephen Coutts, a San Diego biotech executive who has a Ph.D. in biochemistry from Harvard and a master’s of business administration from New York University (although for 11 years he was head of research and development for La Jolla Pharmaceutical, which failed in its attempt to bring out a product). On August 17, Coutts said in an email to a former Biocept official that “no products [are] ready for commercialization” and there is “no apparent market analysis or financial modeling.” Coutts would not comment to me.

In early fall of 2008, a lawyer representing Biocept told Janko that if he didn’t depart, the company might go out of business — one reason the lawsuit says Biocept was almost insolvent by mid-2008.

Coutts was named chief executive on October 6, 2008. Reiss then thanked the departing Janko for his five years as chief executive. The company went about correcting its deficiencies and raising more investor funds. On July 1 of this year, Biocept named to its board one of San Diego’s most distinguished businesspersons, M. Faye Wilson, a banker who was instrumental in the founding of Home Depot and served as both a senior officer and board member of that huge retailer. Wilson had invested funds in Biocept in 2008 and had helped recruit Coutts. Other investment funds have come in to the company.

She won’t comment on the suit but says, “I am pleased with the progress the company is making and excited about the prospects for the company. It is solvent, has adequate funding — very good angel support.”

Jennings can clearly show that she was fed hype that didn’t pan out. But did that constitute fraud? And can she show that she has lost money at this point?

  • Story alerts
  • Letter to Editor
  • Pin it

More from SDReader

More from the web

Comments

SanDiegoParrothead Dec. 3, 2009 @ 12:23 p.m.

It's tough to feel sorry for anybody from La Jolla Farms.
BTW, who's who in the pictures?

0

calreb1 Dec. 3, 2009 @ 1:08 p.m.

It sounds like folks have been victimized by "glory hole" greed.

0

Don Bauder Dec. 3, 2009 @ 3:53 p.m.

Response to post #1: Jennings is on the left, Faye Wilson on the right. Jennings no longer lives at La Jolla Farms. Best, Don Bauder

0

Don Bauder Dec. 3, 2009 @ 3:55 p.m.

Response to post #2: In essence, that is the plaintiff's charge. Best, Don Bauder

0

Ponzi Dec. 3, 2009 @ 6:50 p.m.

Since Kitty Jennings is the president of executive search firm, ET Search Inc., I wonder if the company utilized her services for recruiting executive talent?

http://www.etsearch.com/aboutus.htm#president

0

Don Bauder Dec. 3, 2009 @ 7:23 p.m.

Response to post #5: We do good work. Best, Don Bauder

0

Don Bauder Dec. 3, 2009 @ 7:25 p.m.

Response to post #6: I saw the emails between Jennings and Reiss, and I saw no evidence that Jennings's company was used. Best, Don Bauder

0

calreb1 Dec. 4, 2009 @ 4:15 p.m.

Reply to Post 4: I meant to indicate the double edge to my "glory hole" comment. Both parties are motivated by greed in that type of scheme. I worked for 3 months at the "Imperial Hotel" in Cripple Creek, Colorado. Cripple Creek was the gold mining center of Colo post-Civil War to the turn of the century. Large rooms at the "Imperial Hotel" were wall papered in Mining Co. stock certificates. So much for getting rich quick. By the by, Cripple Creek in 1971 when I was there made a museum of the remaining leaping house from days of yore.

0

Don Bauder Dec. 4, 2009 @ 9:18 p.m.

Response to post #9: Cripple Creek is full of historical buildings and gambling casinos these days. Most if not all Colorado mining towns of the 19th century had houses of ill fame. Most towns still boast about them. Best, Don Bauder

0

jenjen Dec. 5, 2009 @ 4:06 p.m.

So Jennings thought she was getting advice based on "confidential" insider information she wasn't supposed to have, didn't do independent research into the company's prospects and competition, and then is suing because it didn't work out. Huh. Strikes me as the upper crust equivalent of calling the cops because someone stole your marijuana.

0

Burwell Dec. 5, 2009 @ 5:28 p.m.

So Jennings thought she was getting advice based on "confidential" insider information she wasn't supposed to have, didn't do independent research into the company's prospects and competition, and then is suing because it didn't work out. Huh.

Biocept is privately held and its stock does not trade on the public markets. As a result, SEC rules do not apply to Jennings or Biocept. Biocept can legally provide "confidential" information to Jennings or anyone else for that matter. Jennings did nothing wrong by buying the stock with this supposedly confidential information.

0

Don Bauder Dec. 6, 2009 @ 9:01 a.m.

Response to post #11: I don't know that the pitch Jennings got was technically inside information. It would depend whether Reiss and Janko were giving the same information to the public. But what you cite could be a defense. Best, Don Bauder

0

Don Bauder Dec. 6, 2009 @ 9:06 a.m.

Response to post #12: Government agencies including the SEC go after private companies because the stock is not registered or fraud was committed -- whether or not the firm has a public market. Best, Don Bauder

0

Burwell Dec. 6, 2009 @ 10:14 a.m.

Response to post #12: Government agencies including the SEC go after private companies because the stock is not registered or fraud was committed -- whether or not the firm has a public market. Best, Don Bauder

==========

I disagree with reference to the facts in this case. Biocept made a sales pitch to Jennings using company information that was not available to the public. Biocept broke no laws in providing this information to Jennings because the company was privately held, and she broke no laws when she acted upon this information. She is not an "insider trader" who acted upon illegally obtained information. The SEC cannot go after her because she received this information, nor can the SEC go after Biocept for providing it to her. No SEC laws have been violated. Jennings is without fault. If her accusations against the company are true, she is entitled to recover her investment.

0

joemamma42 Dec. 6, 2009 @ 5:29 p.m.

Investing is basically semi educated gambling, there are no guarantees. The reason you make money for doing nothing is because there is risk. I've never heard of an investment where you are certain to make tons of money, and if you don't you can call foul and sue to recover your original investment.

0

Don Bauder Dec. 6, 2009 @ 5:34 p.m.

Response to post #15: I did not say that the SEC could go after her for acting on inside information, or after the company. I simply said that the SEC does pursue individuals and companies that are peddling stock that is not traded in an organized market, from pink sheets to Big Board. Best, Don Bauder

0

Don Bauder Dec. 6, 2009 @ 5:38 p.m.

Response to post #16: Right now the big banks are borrowing from the Federal Reserve for almost zero percent interest and buying stocks, bonds, commodities, and particularly currencies. If their gambles fail, they will be bailed out. They don't have risk. Moral hazard be damned. It is deplorable. Best, Don Bauder

0

SurfPuppy619 Dec. 7, 2009 @ 12:32 p.m.

Right now the big banks are borrowing from the Federal Reserve for almost zero percent interest and buying stocks, bonds, commodities, and particularly currencies.

Don't leave out that they are "lending" debt to consumers at 20%-30% interest rates either.

0

Don Bauder Dec. 7, 2009 @ 3:32 p.m.

Response to post #19: That is if they can get a loan at all. Similar for small business. Did you notice that the Treasury admits that its program to hold back the flood of foreclosures isn't working because banks are not cooperating? Best, Don Bauder

0

Sign in to comment

Join our
newsletter list

Enter to win $25 at Broken Yolk Cafe

Each newsletter subscription
means another chance to win!

Close