Due Diligence

by Michael A. Kahn

  “Hello?” I called.

  “Shit, shit, shit, shit,” she grumbled as she walked into my office, hunched over. She had the package from Karen in her left hand. Her right hand was clutching her left breast.

  I stood up, worried. “Jacki, are you okay?”

  “No.”

  “Is it your heart?”

  “Hah,” she laughed derisively. Her blond wig was slightly askew. She placed the manila envelope on my desk. “Here’s the package from Smilow and Sullivan.” Still bent over, she turned to go.

  “Wait a minute, Jacki. Tell me what’s wrong.”

  “Never mind.”

  “Jacki!”

  She froze. After a moment, she turned to face me, her right hand still clutching her left breast. Her eyes were red.

  “Tell me, Jacki,” I said gently.

  She sighed, blinking back the tears. “If nothing else, I’ve got one helluva defective products claim.” She was wearing a long-sleeved navy blue shift with a white sailor collar. The shift was cut loose and ended just below her knees. “You ready for this?” she asked.

  She straightened up and moved her hand away from her left breast. I stared at the fabric, half expecting to see blood or an alarming discoloration, but there was nothing visibly amiss. Then I heard a faint clattering, as if someone were dropping tiny pebbles to the floor. I leaned forward over the desk to look at the floor. There were about twenty little black and white pellets scattered on the floor around her feet. They were dropping down, one by one, from under her dress.

  “What are those?” I asked.

  “Birdseed.”

  “Birdseed?” I repeated.

  “Watch this.” She placed her hands on her hips and wiggled her upper torso vigorously. When she stopped, I watched in astonishment as the birdseed came tumbling down in a torrent. When the downpour ended, there was a pile of birdseed on the floor between her legs and dozens of loose seeds strewn on the floor around her.

  Slowly, I moved my eyes upward, battling against the urge to grin. Afraid I’d lose it if we made eye contact, I paused at her chest level. Her left boob had disappeared.

  Birdseed? I glanced down at the floor and then back at her missing boob. I could feel my lips quiver.

  Please God, don’t let me laugh.

  I heard a chuckle. I looked at Jacki’s face. Her eyes were shiny with tears but she was smiling. “Can you believe this?” she asked. “Birdseed falsies. They’re supposed to look and move like real ones. I pay extra for them and then the damn seam rips. Thank God I’m not outside, or I’d be fighting the pigeons off my chest. It would have been a scene out of Hitchcock.”

  “Oh, Jacki,” I said, aiming for sympathy and almost getting there.

  I started giggling, and then both of us exploded with hysterical laughter. We laughed so hard that we ended up on our hands and knees on the floor, tears on cheeks. It was just what the doctor ordered. Both of us needed a good belly laugh.

  Twenty minutes later, when we’d cleaned up the birdseed and Jacki had headed back to the lingerie store like a Marine commando on a search-and-destroy operation, I settled in my chair and opened the package Jacki had picked up from Karen Harmon, the one containing the two documents she had typed from Bruce Rosenthal’s dictation tapes.

  Both documents were still in rough-draft form and consisted of sentence fragments, key words, and other notes that no doubt had made far more sense to Bruce than me. Reading through them, I could almost hear Bruce dictating the entries as he paged through the R&D files at Chemitex Bioproducts.

  The first document was dictated about two weeks before he died. It appeared to be notes of his review of laboratory research files on various attempts to develop antiseptics, fungicides, and psoriasis agents. His notes summarized the contents of those files in a neutral, dispassionate tone, and ended each section with the phrase: “Not promising.” In all five pages, he raised only one question, and that was in the section on fungicides:

  Need to check PDR—didn’t Squibb solve this problem w/Myco products?

  The other document, dictated eight days before he died, appeared to be notes of his review of laboratory research files on arthritis medications. Like the first document, it began in a neutral, dispassionate tone. The first section covered research on steroids and ended with the phrase, “Not promising.” The second covered something called “Newer NSAIDs” and ended with the same phrase. But the final area, which started at the bottom of page four under the heading “Other” and ended on the following page, consisted entirely of a series of increasingly agitated questions and comments:

  Primax? Where?

  Cross-referenced materials not there—Filing glitch?—Need to locate—Need to ask

  What’s going on with Guillain B?

  Where are Primax files???—must find

  Be sure to look for LGB—Sounds like typical G-B syndrome

  Cross-reference to Phase Two Trial?—Need to check date—Phase Two Trial?—Not possible!?

  Those were the last words in the document: “Not possible!?”

  Karen called while I was still pondering Bruce’s list of questions and comments.

  “What do you think?” she asked.

  “I’m baffled. Do you know what any of these abbreviations stand for?”

  “Such as?”

  “LGB?”

  “No.”

  “PDR?”

  “I think so. There’s a big fat book called the Physician’s Desk Reference. Bruce has a copy in his office. So do some of the other guys. When they talk about it, they call it ’the PDR.’”

  “I know the book,” I said, making a note. “What about Primax?”

  “I’ve never heard of that.”

  “How about NSAIDs?”

  “Sorry.”

  “That’s okay. This stuff could be a big help, Karen. At least now I have something more to go on. Bruce seemed disturbed by what he had found in those last files.”

  “You can say that again.”

  “I assume that whatever bothered him would bother someone else with a background in pharmacology or chemistry. What I need to do,” I mused aloud, “is to get my hands on the files that bothered Bruce, and then turn them over to an expert that I trust to explain them to me.”

  “I’m already working on it,” Karen said proudly.

  “What do you mean?”

  “I called down to Chemitex just before lunch. I talked to one of the girls who helped coordinate copying documents when Bruce was down there going through their files. I told her that I needed another set of the R and D documents that they copied for Bruce if it wasn’t too much trouble. She said she’d check to see if the documents they copied for him were still tagged.”

  “Karen, I appreciate your help, but you really shouldn’t have done that. You could get in a lot of trouble.”

  “Don’t worry. I followed your advice: I have a story all set if anyone asks.”

  “Okay, but I really don’t want you doing anything more without clearing it with me first. I know you want to help, and you’ve been terrific so far, but you’re too visible down there. First of all, you could get fired.” I paused, lowering my voice. “Second of all, I don’t know what we’re dealing with. I’m assuming that something Bruce was involved with at the office got him killed. It could have been completely unrelated to this Chemitex due diligence, but probably not. You’ve already gone way beyond the call of duty, Karen. If Chemitex sends you those documents, that’ll be fabulous. But if not, don’t worry about it. I’ll find another way to get them. It’s really better for you to keep a low profile for a while.”

  “Okay,” she said dejectedly.

  “Don’t be down, Karen. You’ve done a terrific job so far. You’ve given me plenty of great leads. Let me run them down, see where they lead. I’ll figure out our next move. I prom
ise I’ll let you know everything I find. Okay?”

  She sighed. “Okay.” She sounded a little more chipper.

  ’Your fiancé would be proud of you.”

  It was almost one o’clock when I hung up. I stood and stretched as I gazed out my office window. It was a beautiful spring afternoon in the Central West End—a perfect day for walking. I strolled down Maryland to the St. Louis Bread Company, picking up the current issue of the Riverfront Times on the way. I bought myself two sourdough rolls and a cup of espresso and took my tray out to one of the sidewalk tables. I munched on my rolls and read the paper and sipped my coffee and tried to pretend that I was on the Left Bank in the 1920s, waiting at the Cafe du Dome on the Boulevard Montparnasse for Ernest and Gertrude and Alice and Scott to arrive. But I couldn’t concentrate on the newspaper or the fantasy because I couldn’t keep Bruce’s series of questions out of my mind:

  Primax? Where?

  Cross-referenced materials not there—Filing glitch?—Need to locate—Need to ask

  What’s going on with Guillain B?

  Where are Primax files???—must find

  Be sure to look for LGB—Sounds like typical G-B syndrome

  Cross-reference to Phase Two Trial?—Need to check date—Phase Two Trial?—Not possible!?

  I finished my espresso, stuffed the newspaper into my briefcase, and walked down Euclid to the library of the St. Louis College of Pharmacy, which was on the block just east of Children’s Hospital. The librarian pointed me toward the Physicians’ Desk Reference. I took the thick volume over to a study carrel and tried to make sense out of Bruce’s notes.

  I started with what I hoped would be the easy part, and I was right. The earlier of Bruce’s two documents had contained only one question:

  Need to check PDR—didn’t Squibb solve this problem w/Myco products?

  “PDR” meant Physicians’ Desk Reference, and Squibb was the pharmaceutical company. As for the “Myco line,” the Physicians’ Desk Reference listed various Squibb medications starting with the prefix “Myco”—Mycolog Cream, Mycostatin Oral Suspension, Mycostatin Oral Tablets, Mycostatin Pastilles, and Mycostatin Vaginal Tablets—all for treatment of yeast infections. Based on Bruce’s notes, the folks at Squibb had apparently overcome the obstacle that had stymied the Chemitex scientists.

  Next on my list was “NSAIDs,” which turned out to be short for a broad group of medications known as nonsteroidal antiinflammatory drugs. NSAIDs ranged from over-the-counter products such as aspirin and ibuprofen to others available only by prescription, such as Tolectin, Butazolidin and Phrenom, the crown jewel of Chemitex Bioproducts.

  I pulled out the second dictation document, the one with all the questions and comments. “Primax” sounded like it might be a drug. I searched through every index in the Physicians’ Desk Reference: the manufacturer’s index, the product name index, the product category index, the generic and chemical name index, even the discontinued products index. No Primax anywhere.

  “Guillain B” sounded less like a drug than a name—a French name, to be specific. Nevertheless, I searched for it in all the indices. No Guillain listed in any index. I glanced back at Bruce’s question: “What’s going on with Guillain B?” The name certainly sounded French. I wrote a reminder on my legal pad: Be sure to look for someone named Guillain B at Société Lyons Pharmaceutique.

  I looked back at Bruce’s questions and comments: “Be sure to look for LGB—Sounds like typical G-B syndrome.” I found no LGB in the Physicians’ Desk Reference. I glanced back at the note I had just made: Be sure to look for someone named Guillain B at So-ciete Lyons Pharmaceutique. I looked over at Bruce’s comments: “Be sure to look for LGB.” I added the following to my note: Look for someone with initials LGB.

  I could only guess at Bruce’s references to “Phase Two Trial.” It was a term I had heard in connection with class actions and mass tort cases, including ones involving pharmaceutical companies. Bruce seemed quite agitated over the subject: “Cross-reference to Phase Two Trial?—Need to check date—Phase Two Trial?—Not possible!?” It made no sense at all. I wrote a note on my legal pad: Check litigation reports on SLP and on Chemitex Bioproducts.

  On my way out of the library I dropped by the general reference section on a hunch. They had complete sets of Sorkins’ Directory of Business and Government and Standard& Poor’s Register of Corporations, Directors& Executives. Neither had a listing for any business called Primax or LGB. The Standard& Poor’s entry for Société Lyons Pharmaceutique listed its five top officers. No Mssr. Guillain B, and no one with the initials LGB. But then again, I reminded myself, the list in Standard & Poor’s included only the top five officers of the company. LGB and/or Guillain B could be somewhere else within the company, such as head of R&D. Or, for that matter, he or she or they could be within Chemitex Bioproducts. The French heritage of St. Louis was still evident in the names of its streets (Bellefontaine, Chouteau, Debaliviere) and its suburbs (Creve Coeur, Des Peres) and its inhabitants (including, perhaps, Guillain?).

  ***

  It was close to six o’clock when I got back to my office. My secretary was gone and my message light was blinking. I pressed the play button and waited for the tape to rewind:

  “Rachel, this is Karen Harmon.” She spoke in a hushed voice. “I’m in really big trouble. Mr. Sullivan found out about my call down to Chemitex for those R and D records and he’s totally furious with me. He had me in his office for a half hour ranting and raving. It was just terrible. I was crying and apologizing like crazy, but don’t worry, I never told him about you or us. I don’t think I’m fired, but I’m not exactly sure. He told me to report to work tomorrow morning. He has meetings out of the office in the morning, but I’m supposed to report to his office right after lunch and he’ll decide what to do with me. Anyway, I’ve got my aerobics class tonight, which is good, and then I’m going to just try to get my mind off all this stuff for a while. I’m just going to veg out. I’ll call tomorrow after I see Mr. Sullivan. Phew! Some day, huh. Bye-bye, Rachel.”

  I grabbed the phone and dialed her home number. It rang four times and then her taped message started. I checked my watch. It was almost six-thirty. She was still at her aerobics class. I waited for the beep.

  “Karen, this is Rachel. I feel just awful. Please call me at home tonight if you want to talk about it. And don’t worry about that jerk Sullivan. If he fires you tomorrow, you can come work for me until you find another job. Please call if you need someone to talk to.”

  I called her again at nine o’clock, but got the answering machine. I hung up without leaving a message. I called again just before bed. Once more I got the answering machine.

  “Karen,” I said after the beep, “this is Rachel. If you’re there, please pick up the phone.” I waited. Nothing. “Call me when you get home. I don’t care how late it is. Call me, Karen.”

  I clicked off the reading light. It took a long time to fall asleep.

  Chapter Ten

  The Honorable Kevin “Mad Dog” Madigan, the spooky and senile United States District Judge for the Eastern District of Missouri, once told me that during World War I the second lieutenants in the Romanian army had to wear lipstick and rouge and were required, in Mad Dog’s words, “to perform infamous crimes against nature upon their commanding officers.” If that’s true, then Barry “Brown Nose” Brauner would have flourished in the old Romanian military.

  Not because he was gay, which he wasn’t, at least to my knowledge. And not because he performed infamous crimes against nature upon his commanding partner, which he didn’t, at least to my knowledge. No, Barry Brauner would have flourished because he was the consummate second lieutenant, and every major American law firm needs a supply of consummate second lieutenants. As the old saying goes, behind every great rainmaker is a Barry Brauner.

  The rainmakers are the Great White Hunters of the law firm, the ones wh
o bring in the big clients and the big fees. For the ambitious young associate at any major law firm, an understanding of the subtle nuances of the rainmaker/lieutenant relationship is a far more essential piece of knowledge than an understanding of the subtle nuances of, say, federal securities law. That is because most partners in most major law firms are merely glorified employees—the legal profession’s equivalent of middle management, and thus vulnerable cogs in the law firm machinery. By contrast, the rainmakers own the machinery, and their lieutenants run it.

  In the Abbott & Windsor lingo, a rainmaker is a BSD, the acronym for Big Swinging Dick. Barry Brauner’s BSD was Amory Brewster, former head of A & W’s mergers and acquisitions department, now the managing partner of the new Chicago office of Scott, Dillard & Marks. Brewster’s surprise move to Scott, Dillard after more than two decades at Abbott & Windsor rated a page-two blurb in the National Law Journal (“L.A. Powerhouse Acquires Acquisition Maven To Anchor Windy City Office”) and a feature article in the American Lawyer (“Brewster and the Friendly Takeover: A Merger Made In Heaven?”). The National Law Journal feature mentioned that Brewster had taken along “a junior partner from Abbott & Windsor.” Although the junior partner was not identified in the article, any lawyer, paralegal, or secretary who had ever worked at the Chicago office of A & W at any time during the past ten years immediately knew who it was. Just as Richard Nixon required a Haldeman and Henry VIII required a Cromwell, Amory Brewster required a Brown Nose Brauner.

  As with any BSD/lieutenant relationship, Brewster and Brauner had struck the usual Faustian bargain. Brewster gave his lieutenant a partnership in the firm, a nice share of the profits, and a membership in the Union League Club. Brauner gave Brewster his immortal soul.

  Back when I was a young associate in Chicago at Abbott & Windsor, there was no lieutenant as masterful as Brauner, and none as despised. He was a virtuoso at positioning himself to get all credit and avoid all blame. Even worse, he had an uncanny ability to detect an associate’s Achilles’ heel and exploit the tactical advantage such knowledge conferred. So, too, he had no qualms about manipulating the lives of those he summoned onto one of the matters of his BSD’s clients. By virtue of his BSD, Barry Brauner had the power to destroy a young career. Accordingly, every aspiring A & W associate knew that a summons from Brauner was a command from on high, even when that summons arrived—as so often it did—at five o’clock on a Friday afternoon or on Thanksgiving morning or on the day before the associate’s two-week vacation. “Mr. Brewster needs this on his desk the day after tomorrow,” he would tell you in that serene but ruthless tone, adding, “and I assured him that you would meet the deadline.” There was no escape hatch for those who hoped to become partner someday.