On Tuesday the US Dept of Justice announced the return of an indictment by a federal grand jury in New Jersey, charging the former chief executive officer of a publicly-traded health care company (referred to in the indictment as Company-1) with two counts of securities fraud for his alleged participation in a scheme to mislead investors about Company-1’s procurement of COVID-19 rapid test kits in the early days of the COVID-19 pandemic.
According to court documents, Marc Schessel, 62, of Greenwich, CT, caused Company-1 to issue multiple public statements claiming that Company-1 was buying and reselling at least 48 million COVID-19 test kits, despite knowing that such statements were false and misleading.
Specifically, in early April 2020, Schessel executed a supply agreement with an Australian company (the Supply Company) to obtain two million COVID-19 test kits per week for six months beginning on April 24, 2020. The agreement was based on the Supply Company’s representations that it had the U.S. Food and Drug Administration’s (FDA) permission to distribute COVID-19 tests in the United States and was already distributing COVID-19 tests. Contemporaneously, Schessel received a purchase order from a US-based company that planned to purchase the weekly shipments of two million COVID-19 test kits from Company-1.
Despite learning new information on or about April 11, 2020, that called into question whether the Supply Company had COVID-19 tests to sell to Company-1 that could be distributed in the United States, Schessel caused Company-1 to issue a press release on April 13, 2020, in which it announced the purchase order for 48 million COVID-19 rapid test kits.
Following this press release, Schessel received additional information that further called into question Company-1’s arrangements for the COVID-19 test kits. Despite learning facts that cast significant doubt on the status of the COVID-19 test kit deals, Schessel repeatedly confirmed the status and terms of those arrangements on numerous occasions between approximately April 13, 2020, and April 17, 2020. In the wake of these announcements, Company-1’s share price surged, rising by over 400%, from approximately $2.25 to an intraday high of $14.88. As a result of this scheme, investors lost at least $116 million.
“Schessel allegedly took advantage of the COVID-19 crisis as an opportunity to scam investors and manipulate the market,” said Assistant Attorney General Kenneth A. Polite, Jr. of the Justice Department’s Criminal Division. “Today’s indictment reinforces our commitment to rooting out schemes that have exploited the pandemic and holding accountable those who have prioritized greed during an unprecedented public health emergency.”
“As alleged in the indictment, Marc Schessel exploited the scarcity of COVID-19 tests at the outset of the pandemic to defraud investors and artificially increase his company’s stock price,” said U.S. Attorney Philip R. Sellinger for the District of New Jersey. “His alleged fraud cost investors millions of dollars in losses.”
“It is unacceptable to fraudulently capitalize on a national health emergency,” said Assistant Director Luis Quesada of the FBI’s Criminal Investigative Division. “The FBI, in tandem with our law enforcement partners, will continue to investigate anyone who undermines public safety and will bring those who commit fraud to justice.”
Schessel is charged with two counts of securities fraud. If convicted, he faces a total maximum penalty of up to 45 years in prison. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.
The FBI’s Newark Division is investigating the case.
Acting Principal Assistant Chief Justin Weitz and Trial Attorneys Lucy Jennings and Spencer Ryan of the Criminal Division’s Fraud Section and Assistant U.S. Attorneys Lauren Repole and Sean Sherman for the District of New Jersey are prosecuting the case.
The Fraud Section uses the Victim Notification System (VNS) to provide victims with case information and updates related to this case. Victims with questions may contact the Fraud Section’s Victim Assistance Unit by calling the Victim Assistance phone line at 1-888-549-3945 or by emailing [email protected]. To learn more about victims’ rights, please visit: https://www.justice.gov/criminal-vns/victim-rights-derechos-de-las-v-ctimas.
An indictment is merely an allegation, and the defendant is presumed innocent until proven guilty beyond a reasonable doubt in a court of law.