The Litigators

CHAPTER 25


Reuben Massey’s master plan to deal with his company’s latest drug mess had been upended by the death of Senator Kirk Maxwell, who was now derisively known in the Varrick hallways as Jerk Maxwell. His widow had not filed suit, but her windbag of a lawyer was thoroughly savoring his fifteen minutes in the spotlight. He was readily available for interviews, even got himself on a few of the cable yak fests. He colored his hair, bought some new suits, and was living the dream of so many lawyers.

Varrick’s common stock had dipped to $29.50, its lowest price in six years. Two Wall Street analysts, two men loathed by Massey, had issued sell recommendations. One wrote: “After only six years on the market, Krayoxx accounts for one-quarter of Varrick’s revenue. With it off the market, the company’s near-term forecast is quite uncertain.” The other wrote: “The numbers are frightening. With one million potential Krayoxx plaintiffs, Varrick will be mired in the cesspool of mass tort litigation for the next ten years.”

At least he got the word “cesspool” right, Massey mumbled to himself as he flipped through the morning financials. It was not yet 8:00 a.m. The sky over Montville was cloudy, the mood inside his bunker was somber, but, oddly, he was in good spirits. At least once a week, and more often if possible, Mr. Massey allowed himself the pleasure of eating someone for breakfast. Today’s meal would be especially delightful.

———

As a young man Layton Koane had served four terms in the U.S. House before he was called home by the voters after a messy affair with a female staffer. Disgraced, he was unable to find meaningful work back home in Tennessee, and as a college dropout he possessed no real talents or skills. His résumé was embarrassingly thin. Divorced, unemployed, bankrupt, and only forty years old, he drifted back to the Capitol and decided to venture down the yellow brick road traveled by so many washed-up politicians. He embraced one of Washington’s time-honored traditions. He became a lobbyist.

Unburdened by ethical considerations, Koane quickly became a rising star in the game of pork. He could find it, smell it, dig it out, and deliver it to clients willing to pay his constantly rising fees. He was one of the first lobbyists to understand the intricacies of earmarks, those addictive little dishes of lard so craved by members of Congress and paid for by unwitting factory workers back home. Koane first got noticed in his new trade when he collected a $100,000 fee from a well-known public university in need of a new basketball arena. Uncle Sam pitched in $10 million for the project, an appropriation found in the fine print of a three-thousand-page bill passed at midnight. When a rival school heard about it, a brouhaha ensued. But it was too late.

The controversy put Koane on the map, and other clients came running. One was a real estate developer in Virginia who envisioned the damming of a river, thus creating a lake, thus allowing lakefront lots to be sold at hefty prices. Koane charged the developer $500,000 and instructed him to drop another $100,000 into the PAC of the congressman who represented the district where the dam was not needed. Once everyone was paid and on board, Koane went to work on the federal budget and found some spare change—$8 million—in a defense appropriation to the Army Corps of Engineers. The dam was built. The developer made a bundle. Everyone was happy but the environmentalists, conservationists, and the communities downstream.

This was business as usual in Washington and would have gone unnoticed but for a persistent reporter from Roanoke. Embarrassment and black eyes all around—the congressman, the developer, Koane—but in the lobbying trade there is no shame, and all publicity is good. Koane’s business soared. After five years in the game, he opened his own shop—The Koane Group, Specialists in Governmental Affairs. After ten years, he was a multimillionaire. After twenty, he was annually ranked as one of the three most powerful lobbyists in Washington. (Does any other democracy rank its lobbyists?)

Varrick paid The Koane Group a flat retainer of $1 million per year, and much more when actual work was done. For that kind of money, Mr. Layton Koane would come running when his client said so.

As witnesses to the bloodbath, Reuben Massey decided to use his most trusted lawyers—Nicholas Walker and Judy Beck. The three were in place when Koane arrived, alone, as per Massey’s instructions. Koane now owned a jet, had a chauffeur, and liked to travel with an entourage, but not today.

Things got off to a cordial start as they exchanged pleasantries and nibbled on croissants. Koane had gained even more weight, and his tailored suit was pulling at the seams. It was shiny gray, with a sheen similar to that usually seen on suits worn by television evangelists. His well-starched white shirt was bulging around the waist. His fleshy triple neck was straining under his collar. As always, he wore an orange tie and orange pocket square. Regardless of his wealth, he had never learned how to dress.

Massey loathed Layton Koane and viewed him as a rube, a dope, a hack, a huckster who was lucky enough to be in the right place at the right time. But then, Massey loathed almost everything about Washington: the federal government and its stifling regulations; the horde of staffers who wrote them; the politicians who approved them; the bureaucrats who enforced them. To survive in such a dysfunctional place, he figured, one had to be as greasy as Layton Koane.

“We’re getting hammered in Washington,” Massey said, stating the obvious.

“Not just Washington,” Koane replied with his twang. “I own forty thousand shares of your stock, remember?”

True, Varrick Labs had once paid The Koane Group with stock options.

Massey picked up some notes and peered over his reading glasses. “Last year we paid your company over $3 million.”

“Three million two,” Koane said.

“And we contributed the maximum amount to either the reelection campaign or the PAC of eighty-eight out of a hundred members of the U.S. Senate, including, of course, the late great Maxwell, may he rest in peace. We maxed out to over three hundred members of the House. In both houses, we maxed out to both parties’ central slush funds, whatever the hell they’re called. We maxed out to no fewer than forty PACs, all supposedly doing God’s work down there. In addition, two dozen of our senior executives did their own version of maxing out, all under your guidance. And now, thanks to the wisdom of the Supreme Court, we are able to funnel into the electoral system vast sums of cash that cannot be detected. Over $5 million last year alone. If you tally all this up, and you include all payments of all types, reported and unreported, above the table and below, Varrick Laboratories and its executives forked over almost $40 million last year to keep our great democracy on the right track.”

Massey dropped the papers and glared at Koane. “Forty million to buy one thing, Layton, the one and only product you have to sell. Influence.”

Koane was nodding slowly.

“So please tell us, Layton, with all this influence that we’ve purchased over the years, how in hell does the FDA pull Krayoxx off the market?”

“The FDA is the FDA,” Koane replied. “It’s a world of its own, immune from political pressure, or so we’re led to believe.”

“Political pressure? Everything was fine until a politician died. It looks to me like his buddies in the Senate pressured the hell out of the FDA.”

“Of course they did.”

“Then where were you? Don’t you have former FDA commissioners on your payroll?”

“We have one, but the important word is ‘former.’ He no longer gets a vote.”

“So, it appears to me as if you got outpoliticked.”

“Perhaps for now, Reuben. We’ve lost the first battle, but we can still win the war. Maxwell’s gone and he’s being forgotten by the minute. That’s what happens in Washington—they forget about you real fast. They’re already campaigning in Idaho to replace him. Give it some time and his death will be forgotten.”

“Time? We’re losing $18 million a day in sales because of the FDA. Since you arrived here this morning and parked your car, we’ve lost $400,000 in sales. Don’t talk to me about time, Layton.”

Nicholas Walker and Judy Beck were, of course, taking notes. Or at least scribbling something on their yellow legal pads. Neither looked up, but both were enjoying this little workout.

“Are you blaming me, Reuben?” Koane asked, almost desperately.

“Yes. Absolutely. I don’t understand how that rotten place works down there, so I hire and pay you a bloody fortune to guide my company through the minefield. So, yes, Layton, when something goes wrong, I blame you. A perfectly safe drug has been yanked off the market for no valid reason. Explain that to me, can you?”

“I can’t explain it, but it’s not fair to blame me. We’ve been on top of this matter since the first lawsuits were filed. We had solid contacts up and down the line, and the FDA showed little interest in pulling the drug, regardless of how loud the trial lawyers were screaming. We were safe. And then Maxwell collapsed in fine fashion, on video. That changed everything.”

There was a pause as all four reached for their coffee cups.

Koane never failed to bring along some gossip, some inside knowledge that was passed along in whispers, and he couldn’t wait to share it. “A source tells me the Maxwell family does not want to file a lawsuit. A very good source.”

“Who?” Massey demanded.

“Another member of the club, another senator who’s very close to Maxwell and his family. He called me yesterday. We had a drink. Sherry Maxwell does not want a lawsuit, but her lawyer does. He’s pretty shrewd, realizes he’s got Varrick in his crosshairs. If the lawsuit is filed, it’s another round of bad news for the company, more pressure on the FDA to keep the drug off the market. But if the lawsuit goes away, then Maxwell will soon be forgotten. One headache down, more to follow.”

Massey flipped his right hand in circles. “Keep going. Spill it.”

“For $5 million, the lawsuit will go away. I’ll handle it through my office. It will be a confidential settlement, no details whatsoever.”

“Five million? For what? For a drug that did no harm?”

“No. Five million to soothe a big headache,” Koane replied. “He was a senator for almost thirty years, an honest one, so his estate is not too impressive. The family needs a little cash.”

“Any news of a settlement will trigger an avalanche with the tort boys,” Nicholas Walker said. “You can’t keep this quiet. There are too many reporters watching.”

“I know how to manipulate the press, Nick. We shake hands on a deal now, sign the papers behind locked doors, and wait it out. The Maxwell family and their lawyer will have no comment, but I’ll make sure there’s a nice leak to the effect that the family has chosen not to file suit. Look, there’s no law, not even in this country, that they have to sue. People walk away from lawsuits all the time for all sorts of reasons. We cut the deal, sign the papers, promise them the money in two years, plus interest. I can sell it.”

Massey stood and stretched his back. He walked to a tall window and surveyed the fog and mist seeping through the woods. Without turning around, he said, “What do you think, Nick?”

Thinking out loud, Walker said, “Well, it would certainly be nice to get the Maxwell matter out of the way. Layton’s right. His pals in the Senate will forget about him quickly, especially if there’s no lawsuit on page 2. Five million sounds like a bargain, in the scheme of things.”

“Judy?”

“Agreed,” she said without hesitation. “The priority is getting the drug back on the market. If making the Maxwell family happy speeds this along, I say go for it.”

Massey slowly returned to his seat, cracked his knuckles, rubbed his face, sipped his coffee, obviously a man in deep thought. But he was anything but indecisive. “Okay, Layton, do the deal. Get rid of Maxwell. But if this settlement blows up in our faces, I’m terminating our relationship immediately. Right now, I’m not happy with you and your firm, and I’m looking for a reason to shop around.”

“No need to do that, Reuben. I’ll make Maxwell go away.”

“Super. Now, how long before Krayoxx is back on the market? How long and how much?”

Koane gently rubbed his forehead and removed a few tiny beads of sweat. “I can’t answer that, Reuben. We need to go one step at a time and run out some clock. I’ll shove Maxwell under the rug, then let’s meet again.”

“When?”

“Thirty days?”

“Great. Thirty days is $540 million in lost revenue.”

“I got the math, Reuben.”

“I’m sure you do.”

“I got it, Reuben, okay?”

Massey’s eyes were flashing, and his right index finger was jabbing through the air, in the direction of his lobbyist. “Listen to me, Layton. If this drug is not back on the market in the very near future, I’m coming to Washington to fire you and your firm, then I’ll hire a whole new bunch of ‘government affairs specialists’ to protect my company. I can get a meeting with the vice president and the Speaker of the House. I can have drinks with a dozen or so senators. I’ll take my checkbook and a truckful of cash, and if I have to, I’ll take a carload of hookers to the FDA and turn ’em loose.”

Koane offered a fake smile as if he’d heard something funny. “No need for that, Reuben. Just give me a little time.”

“We don’t have a little time.”

“The quickest way to get Krayoxx back on the market is to prove it’s not harmful,” Koane said coolly, wanting to divert the chatter away from being fired. “Any ideas?”

“We’re working on it,” Nicholas Walker said.

Massey stood again and returned to his favorite window. “Meeting’s over, Layton,” he growled, and did not turn around to say good-bye.

As soon as Koane was gone, Reuben relaxed and felt better about the morning. Nothing like a human sacrifice to get a hard-nosed CEO in good spirits. As Nick Walker and Judy Beck checked their e-mails on their smartphones, Reuben waited. When he had their attention, he said, “I suppose we should discuss our settlement strategy. What’s the timeline now?”

“The Chicago trial is on track,” Walker said. “There is no trial date, but we should hear something soon. Nadine Karros is watching Judge Seawright’s calendar, and there’s a nice gap in late October. With some luck, it might happen then.”

“That’s less than a year after the lawsuit was filed.”

“Yes, but we’ve done nothing to slow it down. Nadine’s putting up a stiff defense, going through all the motions, but no real obstacles. No motion to dismiss. No plans for summary judgment. Discovery is proceeding nicely. Seawright seems to be curious about the case and wants a trial.”

“Today is June 3. They’re still filing lawsuits. If we start talking settlement now, can we string it out until October?”

Judy Beck responded. “No problem at all. Fetazine took three years to settle, and there were half a million claims. Zoltaven took even longer. The tort bar is thinking about one thing—the $5 billion we charged off last quarter. They’re dreaming of that much money hitting the table.”

“It will be another frenzy,” Nick said.

“Let’s get it started,” Massey said.