United States v. Theodore Farnsworth and J. Michell Lowe
PENDING CRIMINAL DIVISION CASES
United States v. Theodore Farnsworth and J. Michell Lowe
Court Docket No.: 22-20521-CR
Court Assigned: This case is assigned to U.S. District, U.S. District Court Judge Robert N. Scola, Jr for the Southern District of Florida, U.S. Federal Building and Courthouse, Wilkie D. Ferguson, Jr. United States Courthouse 400 North Miami Avenue Miami, Florida 33128
In an indictment unsealed on November 4, 2022, it charged two Florida men for their roles in a scheme to defraud investors of Helios & Matheson Analytics Inc. (HMNY), a publicly traded Florida- and New York-based company that was the parent of MoviePass Inc. (MoviePass).
According to court documents, Theodore Farnsworth, 60, of Miami, and J. Mitchell Lowe, 70, of Miami Beach, allegedly engaged in a scheme to defraud investors through materially false and misleading representations relating to HMNY and MoviePass’s business and operations to artificially inflate the price of HMNY’s stock and attract new investors. At the time of the alleged fraud, Farnsworth was HMNY’s Chairman and CEO, and Lowe was MoviePass’s CEO.
The indictment alleges Farnsworth and Lowe falsely claimed that MoviePass’s $9.95 “unlimited” plan – in which new subscribers could see “unlimited” movies in theaters with no blackout dates for a flat monthly fee of $9.95 – was tested, sustainable, and would be profitable or break even on subscription fees alone. Farnsworth and Lowe allegedly knew that the $9.95 “unlimited” plan was a temporary marketing gimmick to grow new subscribers and, in turn, artificially inflate HMNY’s stock price and attract new investors. As a result, MoviePass lost money from the $9.95 “unlimited” plan.
In addition, Farnsworth and Lowe allegedly made false claims that HMNY possessed and used technologies – like “big data” and “artificial intelligence” platforms – to generate revenue by analyzing and monetizing the data MoviePass collected from subscribers. However, the indictment alleges that Farnsworth and Lowe knew HMNY did not possess these technologies or capabilities to monetize MoviePass’s subscriber data or incorporate these technologies into the MoviePass application.
Farnsworth and Lowe also allegedly made false and misleading representations about the positive impact that multiple revenue streams (other than subscription fees) were having on MoviePass’s profitability and self-sufficiency. These statements were misleading because, as the indictment alleges, Farnsworth and Lowe knew MoviePass did not have non-subscription revenue streams that would make MoviePass self-sufficient or otherwise offset the losses MoviePass experienced as a result of the unprofitable $9.95 “unlimited” plan.
Farnsworth and Lowe are also alleged to have falsely claimed that MoviePass’s cost of goods, as reflected in the number of tickets each subscriber purchased using their subscription, was naturally declining over time consistent with their stated expectations. Behind the scenes, Farnsworth and Lowe allegedly directed MoviePass employees to implement numerous tactics to prevent certain subscribers from using the purportedly “unlimited” service for which they had paid to try to ease MoviePass’s cash shortfalls.
Furthermore, Farnsworth and Lowe allegedly made these materially false and misleading representations in press releases, SEC filings, interviews on podcasts and on television, and in print and online media, all of which were intended to reach, and at times did in fact reach, investors and the general public throughout the United States.
Farnsworth and Lowe are each charged with one count of securities fraud and three counts of wire fraud. If convicted, they each face a maximum penalty of 20 years in prison on each count. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.
For more information about the charges in this case, please see below:
Victim Impact Statement: If you would like to submit a Victim Impact Statement, you may do so by mailing the Victim Impact Statement below (or a letter to the court) to: Victim Witness Unit, U.S. Department of Justice, Criminal Division, Fraud Section, 10th & Constitution, NW, Bond Building, Room 4416, Washington, D.C. 20530. You also may submit the Victim Impact Statement via email at VictimAssistance.email@example.com or by fax at: (202) 514-3708.
The information on this website will be updated as new developments arise in the case. If you have any questions, please call the Victim Assistance Line toll-free at (888) 549-3945 or email us at VictimAssistance.firstname.lastname@example.org.
Presumption of Innocence: It is important to keep in mind that a criminal complaint is merely an allegation, and defendants are presumed innocent until proven guilty and that presumption requires both the court and our office to take certain steps to ensure that justice is served.
Crime Victims’ Rights Act and Right to Retain Counsel: The Crime Victims’ Rights Act (18 U.S.C. § 3771) applies only to victims of the counts charged in federal court, and thus individuals may not be able to exercise all of these rights if the crime of which the individual is a victim was not charged. Section 3771(c)(2) of this Act requires that we advise you that you have the right to retain counsel. Although the statute specifically sets forth your right to seek advice of an attorney with regard to your rights under the statute, there is no requirement that you retain counsel. The Government may not recommend any specific counsel, nor can the Government (or the Court) pay for counsel to represent you. Government attorneys represent the United States.
If you elect to obtain counsel to represent your interests, please have your attorney notify this office in writing at: U.S. Department of Justice, Criminal Division, Fraud Section, 10th & Constitution Avenue, NW, Bond Building, 4th Floor, Washington, DC 20530, Attention: Victim Witness Unit; fax: (202) 514-3708; or email: VictimAssistance.email@example.com. If you elect not to retain counsel to represent your interests, you do not need to do anything.
Plea Agreements: Please be aware that many criminal cases are resolved by plea agreement between the Department of Justice and the defendant. You should also know that it is not unusual for a defendant to seek to negotiate a plea agreement shortly before trial is scheduled to begin. Plea agreements can be made at any time and as late as the morning of trial, leaving little or no opportunity to provide notice to you of the date and time of the plea hearing. If the court schedules a plea hearing in this case, we will use our best efforts to notify you of available information as soon as practicable. If you want to inform the prosecutor of your views regarding potential plea agreements, or any other aspect of the case, please contact the prosecutor assigned to this case or call the Victim Assistance Line toll-free at (888) 549-3945 or email us at VictimAssistance.firstname.lastname@example.org.