by Ron Liebman
“News flash, Carney Blake,” she said. “Our Carl didn’t get to be chairman of this firm by accident. He’s a slick son of a bitch, protecting his ass at your expense.”
You know, I really liked Anka. There was something very refreshing in her candor. She was the real thing. Big and fat and grotesque as she was, here was someone in my corner. What I saw was what I got. No pretense. No airs.
“Okay, so now what?” I asked.
“You wanna know your next move?” Anka asked.
“Yeah.”
“Think about it.”
I cleared my head and sat there thinking.
“Rule 11?” I said.
“Bingo.”
• • •
Rule 11 was in the Federal Rules of Civil Procedure.
Here’s what you did:
First you wrote to opposing counsel telling him that he needed to withdraw his claims against Dunn & Sullivan because the allegations were frivolous and had nothing to support them. Then, when he refused, you served him with a motion for sanctions under Rule 11.
And dig this? You get to name not only the individual lawyer for misconduct but his entire law firm as well. This was good. I would be able to name Peter Moss’s law firm for wrongdoing just like he had named mine.
What kinds of sanctions were we talking about?
Big ones: a substantial fine, a (verbal) bitch slap from the judge, and a removal of the troublesome allegations. And that would cripple the complaint against Dunn & Sullivan.
Yeah, that was the next move. Discovery had just begun. Whatever Peter Moss had, it couldn’t be much. Moss had fired too soon, was too far from his target, with no real ammunition to hit it.
“And the hedge fund?” I asked, explaining that I myself had only just learned about its existence while reviewing documents we were producing in discovery. Anka shrugged.
“File your sanctions. Let their lawyers handle their own client. They’ll likely piggyback onto your Rule 11 motion. Stay away from them. Deal with your shit, let them deal with theirs.”
It was time for me to start drafting.
“Thanks,” I said as I stood.
“Anytime.”
An hour or so later, I had a technical question about how to plead one of the points I was making in my motion. I called Anka. It was just a quick question, no need for a visit. I got her secretary.
“She’s out of the office at the moment,” the secretary told me.
“When will she be back?” I asked.
“She won’t be long,” she said. “She’s in with the chairman.”
Huh?
24.
No grass grew under Carl Smith’s feet either.
He knew that the New York Times was about to break the story of the fraud suit against Dunn & Sullivan. It would be the lead article in the paper’s business section. He’d been tipped off. The paper’s managing editor had called with a heads-up. They’d been undergraduates at Yale, and then later both had been elected to membership in New York’s exclusive and stuffy Union Club, where they were intermittent squash partners. The story wouldn’t change. The Times would run it as is. But the tip-off was part of the deal, the social compact among the elite.
So while I sat at my desk composing a sanctions motion, Carl was in with his IPO bankers for a little prepublication chat. They had obviously seen the earlier story in the Sunday Times about Big Law’s “weight loss.” He knew they needed to hear from him in advance of the upcoming Times article about Dunn & Sullivan and the fraud lawsuit. Trading in the law firm’s stock, when actually issued, was expected to be high. So were the bank’s fees. Still, a fraud suit on the eve of the IPO was troublesome.
Carl would play hide the ball with his bankers. What Carl wouldn’t know was that they were playing hide the ball with him as well. They had secretly videotaped the meeting. It would later be entered into evidence.
Here’s a reprint of that part of the transcript I’m talking about. It starts about ten minutes into the meeting. The bank’s CEO has just asked Carl if there was any danger that the new lawsuit would unravel the IPO, especially in light of the earlier general article.
Carl: No. None at all. Dunn & Sullivan is financially sound. You’ve seen our books. Seen the lucrative cases we’ve got stacked up like jumbo jets nose to tail on a busy runway. This new complaint? It’s nothing. I have one of our best litigating partners on it. The court will throw it out for the piece of crap that it is.
Bank CEO: Are you sure, Carl? To state the obvious, this IPO of a major law firm is a huge undertaking. A new frontier will be opened in the financial marketplace. There’s lots of money to be made here. So, Carl, we are relying on you. You need to be sure. Are you?
Carl: (ducking the question) Of course you’re relying on me. And I want you to. Just as I’m relying on my very experienced law partner who’s in charge of this case. He has assured me, and now I’m assuring you.
Bank CEO: Fine, totally understandable. But, Carl, we’re sitting with you. We’ve known each other . . . what? Fifteen years? Longer, come to think of it?
Carl: Longer. Though you’ve aged more.
Bank CEO: (laughing) You may be right about that. (turning serious again) But, Carl, you’re the guy here as far as we’re concerned. Not your partner. You need to look us in the eye and tell us there are no problems here. You understand, don’t you?
Carl: Absolutely. And I can and do assure you. Best I know. There is absolutely no problem.
Bank CEO: Great. Really appreciate that. But when you say “Best I know,” you’re not qualifying your assurances, are you?
The video shows Carl tightening the otherwise perfect knot on his necktie, twisting his neck ever so slightly. Later a body-language expert will testify that those are the signs of someone about to tell a lie.
Carl: No qualifications intended.
Bank CEO: Good to hear. So the IPO is still on green light. Now, Carl, what are you gonna do with all that money you’re about to make?
(Laughter all around the table.)
• • •
A few days after Carl’s bank meeting, Jeremy and Gloria returned to New York from India with the documents they had selected in tow. Most everything was in English, the GRE documents that Dipak had procured as well as the Indian court proceedings. English is the official language of the law in India. Given the twenty-two diverse ethnic languages recognized in India’s constitution, there was no apparent alternative.
There was nothing in what my guys saw or brought back that showed any wrongdoing on Dipak’s part, or on the Indian trial judge’s for that matter. That was helpful. They never got to see Dipak. He hadn’t set foot in his own law office the entire time they were there.
The guy needed to be seen. Anka was right.
And speaking of Anka. She called me back. I asked her point-blank had she said anything to Carl when she met with him.
“Listen,” she said, her voice rising in anger. “If I say you can trust me to keep your confidences, then you can trust me to keep your confidences. If that’s not good enough, you can go fuck yourself. Don’t come by again.”
She was about to hang up on me. I apologized. Anka said nothing. It was awkward. Both of us on the line, Anka pissed and me embarrassed. To fill up the dead air, I told her about Jeremy and Gloria’s trip to India. And Dipak’s disappearing act.
“Call him. E-mail him. Send him a fucking letter,” Anka said. “Tell him he doesn’t meet with you? You drop the case.”
“Can I do that? I mean, this is the law firm’s case, not mine alone.”
“It’s your case, Carney. Time for you to own up to it.”
25.
I did.
Own up to it, I mean. I e-mailed Dipak Singh and also sent him a DHL Express–delivered letter. In no uncertain terms, I advised him that he needed to come to New York a
nd meet with me “without further delay,” or I would dismiss the GRE case.
That got me a call. But not from him.
“Hold for Mr. Smith,” his secretary said after I picked up the phone.
I waited a good three to four minutes before Carl got on the line. I held. I would have liked to hang up and force him to call me again, but I swallowed my pride and waited. When he did get on—surprise, surprise—no greetings, right to business.
“What are you doing with that Indian lawyer?” he asked. There was no mistaking his annoyance.
“What am I doing?”
“It’s not a difficult question, Blake.”
“I’m trying to meet with him.”
If I had to pick a time and place where I first began to think that something was really off here, I’d pick that call. The firm’s chairman—keeping me at arm’s length until now—wanting to crawl into my case?
“You’ve sent your associates to him. They’ve returned with his documents. I would think that should be sufficient.”
Do you, now? I was thinking. And how did you know about Jeremy and Gloria going to India? Did some dapper subcontinent lawyer reach out to you after getting my e-mail and/or letter?
“Please don’t take this the wrong way,” I told Smith. “But you put me in charge of this case. And that’s what I’m doing. I need to see this guy. It’s simply imprudent for me not to under the circumstances.”
“Imprudent?”
That did it.
“If you’d like, Carl,” I said, “I’d be happy to prepare a detailed memorandum about where we are on this matter, what the problems seem to be, and where I think we need to go. I could have that on your desk before the close of business today.”
He hung up on me.
Okay, now what? Run to Anka? Call Smith back and try to iron out whatever needed ironing out?
Or simply leave it be. Do nothing.
And that’s what I did. Nothing.
Three hours later I received an e-mail from the ever-elusive Dipak. It was the middle of the fucking night in India, but the guy sends me an e-mail. Wonder how that happened?
Here it is:
My dear Mr. Carney Blake,
It is my understanding that you are desirous of meeting me. I would be only too happy to present myself to you for that convivial opportunity. However, it is also my understanding that, with the pendency of litigation in New York, I could be subpoenaed to give testimony were I to present my humble self within the borders of your country.
Thus, I would be honored to meet with you at the Four Seasons Hotel, Hamilton Place, Park Lane, London W1J 7DR on Tuesday next. Please allow me the courtesy of your prompt reply.
Yours faithfully,
Dipak Singh
Law Offices Dipak Singh
27 Mahatma Ghandi Road
Guwahati, Assam, India
(Mahatma Ghandi Road is to India, I think, what MLK Boulevard is to America.)
My prompt reply followed.
Dear Dipak:
It’s a date. I suggest lunch on Tuesday in the hotel dining room at 12:00 p.m.
Please confirm.
Regards,
Carney Blake
Partner
Dunn & Sullivan, LLP
One Times Square
New York, NY 10036
He didn’t respond, didn’t confirm. Radio silence. Was he going to stand me up like he did Jeremy and Gloria? Should I write him again and press for a confirmation? If I did that and he again didn’t respond, then what? No, I had a better idea. A surer way to put his ass in my presence.
I sent another e-mail.
Hi, Carl:
Mr. Singh has e-mailed me and offered to meet in London on next Tuesday. I e-mailed him that I’d be there and have arranged for a luncheon meeting at the Four Seasons hotel at noon on that day.
Just wanted you to know.
Regards,
Carney Blake
Partner
Dunn & Sullivan, LLP
One Times Square
New York, NY 10036
Then it was back to business.
I had finished the Rule 11 sanctions motion and had also sent the obligatory letter (it was by e-mail) to Peter Moss, demanding that he withdraw the Dunn & Sullivan complaint because the allegations were “frivolous and without any basis in fact” (that’s the phrase the courts used in the cases I read while preparing the motion). I got this long, meandering e-mail back. It took up two full pages when I printed it out. What it said in socially acceptable lawyer’s jargon was that I could go fuck myself. Nothing would be withdrawn.
I vetted my draft motion with Jeremy, who made changes that tightened the pleading considerably. Man, was he good. I also sent the draft to Anka. I don’t think she actually read it. She turned it around too quickly, her one-word, hand-scribbled note saying only “Fine.” (I kept that business with Carl Smith to myself. Didn’t share it with her.)
Then I filed the sanctions motion under Rule 11.
I think it’s fair to say that Peter Moss had upped the ante by bringing a separate case against Dunn & Sullivan. Anka got me to the right place, helped me figure out the next step. Now I had made that next step. I mean, two could play at this game. He had taken a swing at my law firm. I had just taken a swing at him and his law firm.
What did Moss do?
He sued me.
26.
Jeremy and I were on a British Airways red-eye flight.
We left JFK around dinnertime and were due to arrive at Heathrow the next morning London time. Jeremy was with me for a reason. I didn’t want to meet with Dipak alone. I wanted a witness. In case.
We were booked in business class. On BA that gets you a flat-bed seat. Drinks and dinner had been served, the cabin lights dimmed. My seat was all the way back in the bed position. I was on my side with the blindfold on from the little travel pack each passenger got, trying for a couple of hours’ sleep before we landed. The next day was sure to be hectic. Jeremy and I were booked back to New York late in the afternoon following our lunch meeting with Dipak. So no need even for a hotel room.
The plane’s jets were droning, the cabin was filled with sleeping passengers. But not me. Couldn’t sleep. My stomach was churning. By suing me, Peter Moss had put my skin in the game. I was now a named defendant alongside Dunn & Sullivan. It’s a ploy, I kept telling myself. Keep your eye on the ball; don’t let Peter Moss trick you into swinging at the wrong pitch.
I think I actually did sleep a little, because I was startled when the cabin lights came back on and the flight attendants appeared in the aisles with juice, coffee, and breakfast trays. Jeremy was already up. Had he slept any?
We landed quickly and in no time were parked at the gate, the seat-belt sign was switched off, and we made our way to fast-track customs and immigration (a BA business-class perk).
No need for a visit to the baggage carousel. We had only the briefcases we’d carried on. So we walked to the lounge in the arrivals hall (another BA perk), where we showered, shaved, and had our suits pressed. Then it was on to the Heathrow Express train to central London, and before we knew it, Jeremy and I walked into the Four Seasons Hotel at Park Lane. It was 11:15 a.m. London time. The weather was colder and damper than what we’d left in New York, but we wouldn’t be outside except to get on a train or into a cab.
We sat in the lobby and waited for Dipak to show up. Assuming he did.
“Pardon. Mr. Blake?”
I opened my eyes. Jeremy and I had been seated side by side on a lobby sofa, and I guess we’d dozed off. An elegantly dressed young man was standing before us with his head cocked like he was at the zoo trying to make out the nature of the species behind the glass enclosure.
“Dipak?” I said, rising to shake hands. His grip was fragile, his hand cool. But he was smiling, fr
iendly.
Jeremy stood as well.
“This is my colleague Jeremy Lichtman from our New York office,” I told Dipak as they, too, then shook.
“So, gentlemen,” Dipak said, rubbing his hands together like he couldn’t be more pleased to be in our presence. “May I escort you to the dining room? I have booked a table. It was for two, but no matter.”
Dipak led the way. The hotel’s Amaranto Restaurant was empty. It seemed that noon was on the early side for lunch here. The maître d’ showed us to a table. The room was all violently red-upholstered chairs with black-lacquered trimmings. More bordello than I would have expected from a five-star hotel. We took our seats, and immediately a waiter appeared.
We studied our menus, small-talked, ordered. My body clock told me it was the middle of the night, so I asked for an omelet, thinking that might work. Jeremy had only toast and coffee. It turned out Dipak was a vegetarian, so he ordered accordingly. We quickly finished our meals. It was time now to get down to business.
Dipak had been cordial throughout, though there was this distinct sense of noblesse oblige about him. Not that he was speaking down to Jeremy and me, but there was no mistaking the air of privilege and superiority wafting off this very young guy like thin mist off melting ice. He was polished, even elegant-looking with that fashionable stubble beard, the expensive suit, and so on. I think at first I might have subconsciously given him more credence than he deserved.
That didn’t last long.
I had asked Dipak to take Jeremy and me through the case, how it had been prepared by him, and how it had been tried. And he did, at length. When Dipak got to the expert reports that he told us the judge found very persuasive, I stopped him.
“Dipak,” I said, “there is an allegation that you wrote the report for the expert and submitted it to the judge as though your expert had written it, not you.”
This was the first what I’d call “probing” question. Dipak’s demeanor instantly changed. I could see him stiffen.
“I have already vetted this with your firm chairman. All was aboveboard. Of that I can assure you, good gentlemen.”