Other allegations that emerged during the trial were perhaps less criminal but just as squirrelly. Customer complaints were directed to a supervisor named Michael Johnson, a man who doesn’t exist. Print ads claimed that Enzyte was developed over thirteen years by Dr. Fredrick Thomkins, “a physician with a biology degree from Stanford,” and Dr. Michael Moore, “a leading urologist from Harvard.” Those men don’t exist, either. A top Berkeley employee testified that Warshak once directed him to falsify data to show that Enzyte users’ penises grew an average of 24 percent. And in one e-mail, Warshak encouraged his people to engage in some rather cold-blooded sales tactics. “I don’t care if the card is taken from grandma’s purse so junior can buy some Enzyte,” Warshak wrote when an employee asked whether a customer could charge a credit card bearing someone else’s name. “If the card is good, I want to ship.”
But the government’s most damning piece of evidence was an e-mail written by Warshak’s nephew Jason Cossman, in which Cossman sketched out a plan to wring more money out of dissatisfied customers. He suggested that after customers canceled, sales reps should call them back, pretending to be “a company contracted by a hospital to do health surveys.” If the ex-customer revealed they used to take a Berkeley product, the faux survey taker should suggest another cheaper product that “the hospital is promoting” (leaving out that it also happened to be made by Berkeley).
“THE POOR CUSTOMER BITES, thinking he’s gettin a deal, even though he’s actually getting taken by my company for the second time around!!!!!!” Cossman wrote. “the scheme is beautiful. dreamed it up after many a bong hit one night. these customers are fish in a barrel, man. you already spent the media dollars to get em in the barrel when you bought the enzyte spot. dont let em get away so easy. exploit the shit out of them.”
At 1:24 a.m. on February 25, 2005, Warshak forwarded that message to five Berkeley executives, adding this in the subject line: “the student has become the teacher—our company was built on this kind of creative thinking… thanks for the wake-up call jason!”
Less than three weeks later, on March 16, 2005, fifty armed agents raided Berkeley’s offices, seizing computers, business records, and eventually every dollar of Warshak’s personal family funds, totaling $24 million.
“That was something he didn’t really count on,” said Kadon. “It’s one thing to fight civil lawsuits.… But when you cross the line and the Postal Inspection Service and the FDA start looking into criminal acts, I think that was the bridge too far: his not realizing that you can only steal so much and then, all of a sudden, people start caring.”
*****
WHEN I BEGIN to list some of the evidence against him, Warshak doesn’t flinch. He says a trust fund the government alleged he used to launder money was in fact legit, set up by a fancy Washington, D.C., law firm for estate-planning purposes. He’s got an explanation for the nonexistent Michael Johnson. (“No one who sells sexual products gives out the real name of the customer-care director.”) He knows his endorsement of his nephew’s e-mail looks bad but claims it was a misunderstanding. (“I didn’t really read it. It was late at night.”) He denies the claim that customers seeking refunds were told to get a notarized my-dick-hasn’t-grown letter from a doctor, calling it a flat-out lie. He admits he pushed his salespeople to be aggressive. But he also cites a statistic that he says indicates customers were more knowledgeable about Berkeley’s automatic-billing policy than prosecutors alleged: 1 million people successfully canceled the continuity program in the window between receiving a “free” sample and getting charged for their next shipment.
Repeatedly, Warshak tells me he can’t be guilty of the felonies that landed him in jail because he was only doing what other companies do. He sounds like a schoolboy caught throwing a spitball. All the other kids did it, so why am I the only one getting punished? It’s the same brand of tangled illogic that underlies his fundamental defense: Because the rapid expansion of his company coincided with the company’s criminal behavior, Warshak says one caused the other—and should be seen as a mitigating circumstance. At Warshak’s sentencing hearing last fall, U.S. district judge S. Arthur Spiegel flatly, and testily, rejected that premise.
