by Rick Acker
Ben sat at the back of the gallery in one such courtroom, watching the emergency-motion call of the Honorable Anthony J. Reilly, the judge who had been assigned Bjornsen Pharmaceuticals, Inc. v. Bjornsen. Judge Reilly was in the Chancery Division, the section of the Cook County Circuit Court that handled all requests for “equitable relief,” including Bjornsen Pharmaceuticals’ request for an injunction that would force Gunnar to turn over the Neurostim formula.
The judge had been on the bench for less than two years and had only been in Chancery for a few months. Ben had never had a case before him and wanted to get a sense for how he ran his courtroom before he had to appear in front of him.
At thirty-six, Judge Reilly was the youngest judge in the Daley Center courthouse. He was a tall, athletic man who had played basketball in college—albeit at a Division III school. He had bright-red hair and a fair complexion that flushed easily if he got annoyed or embarrassed, both of which happened while Ben watched. At one point, the judge, whose background was in criminal law, blushed noticeably when he stumbled over a point of civil procedure and had to be corrected by one of the lawyers. Ten minutes later, he turned crimson when a lawyer ignored his instruction to avoid repeating arguments that had already been made in writing in the briefs.
Judge Reilly’s rulings were a mixed bag. There weren’t many that were clearly wrong, but a lot of them were questionable. The judge seemed to always search for a middle ground between the parties, regardless of what the law required. That worried Ben. He was pretty sure that the blitz of motions that Karl’s lawyers had promised would be mostly meritless, but Judge Reilly wasn’t completely denying many motions, regardless of their merit. What if the judge decided to compromise by granting only some of the other side’s unreasonable requests?
Ben slipped out of the courtroom near the end of the hearing and headed back to his office. He stopped in at a deli and picked up a grilled prosciutto-and-avocado sandwich to eat at his desk while he worked. He was going to be very busy over the next few days.
He went straight to Noelle’s office and found her leafing through a fat accordion file of documents festooned with annotated Post-its. He admired her delicate, pretty profile for a moment before interrupting her. “Hi, honey. Those the documents from Gunnar?”
She nodded. “Mm-hmm.”
“Anything interesting?”
She nodded again. “It’s not what I was expecting, though. You said you thought there was WorldCom-type stuff going on at Bjornsen Pharmaceuticals. There isn’t. Or, at least, if there is, these documents don’t show it.”
Ben settled himself into one of the office chairs and took out his sandwich. “So what is going on?”
Her eyes latched onto the sandwich. “Prosciutto and avocado?”
“Yep. From the Washington Street Deli. Want some?”
She hesitated. “I probably shouldn’t.”
“I’m sure it’ll go straight to the baby.”
“Or somewhere nearby. No, thanks.” She pulled her eyes away from the sandwich and selected a document from the accordion file. “WorldCom got into trouble for trying to make their books look better than they were. They would create fake revenue and hide their expenses to boost the profits they reported. Enron used different tricks, but achieved the same basic result. That’s what virtually all public companies do when they commit accounting fraud.”
Ben swallowed a bite of his sandwich. “Except for Bjornsen Pharmaceuticals, right?”
“Right.” She gestured to the document in her hand. “It looks like they’ve actually fudged their numbers to reduce profits by three or four million dollars each of the last two years.”
Ben raised his eyebrows. “That’s weird. Are you sure?”
“No. Like I said, it looks that way. But these documents are incomplete; it seems like Gunnar just saved copies of random financial statements and wire transfers that caught his attention. Also, some of the key documents are in Norwegian. Gunnar translated them for me, but he’s not an accountant. What I’ve just told you is a guess, but it’s an educated guess.”
“So why would Karl be trying to keep profits down?” Ben asked before taking another bite of his sandwich.
“Good question. I’ve heard of executives doing that to drive down the company’s stock price, but only when they’re planning a buyout and want the company’s market value as low as possible. But that wasn’t Karl’s strategy. He’s been trying to push the stock price up to convince the shareholders that he would do a good job running the company without Gunnar. Besides, reducing or increasing their profits by this much wouldn’t move their stock price at all. Three or four million per year isn’t a lot of money to a company like Bjornsen Pharmaceuticals.”
“But it certainly could be a lot of money to a person like Karl Bjornsen, don’t you think?”
“Maybe,” conceded Noelle, “though he and Gwen seem pretty well-off already. Are you thinking of—well, what are you thinking of doing?”
“Sounds like Karl has had his hand in the company till. That should go in Gunnar’s cross-claim.”
“Don’t you think you should have Sergei look into it first?”
“Not a bad idea.”
“How long do you think that will take?”
Ben grinned. “How long would you like it to take?”
“I’ve got a meeting of the special-exhibits support committee next Monday, and Gwen will be there. It would be great if you didn’t accuse her husband of embezzlement before then.”
“I’ll see what I can do.”
Kim was enjoying her summer job. She arrived at Bjornsen Pharmaceuticals every morning at eight and put on a lab coat with “Kim L. Young, Medical Intern” embroidered on the left breast pocket. For some reason, the lab coat did more to make her feel like a real researcher than the actual work she was doing. She went to the bathroom at every opportunity during her first few days so she would have an excuse to look in the mirror and see a scientist looking back at her. She had dyed her hair back to its original glossy black and pulled it into a serious-looking ponytail. That, combined with the crisp new lab coat, made her look nothing like the fun-loving sorority girl she had been just a few weeks ago. She could see the future Dr. Young in her reflection, and she liked it.
She spent most of her days in a big room lined from ceiling to floor with animal cages. On one wall were large cages that held two or three monkeys each. The cages on the other side of the room were smaller and held only one monkey each. A lab table with various instruments and documents ran down the middle of the room.
Half of the monkeys were receiving a new drug the company was developing, and the other half were the control group. The control-group monkeys were in the multi-animal cages, while the monkeys receiving the drug were in the single cages. Ideally, all of the monkeys would have had their own cages, but doubling up the control-group animals saved money. Besides, the monkeys seemed to like it.
Each morning, Kim and one of the researchers visited the primate room to feed the animals, clean their cages, collect urine and feces samples, give them their morning dose of the drug, check whether any of them was showing adverse effects, and so on. From the hallway, Kim could hear the monkeys chattering to each other, but when she opened the door they would invariably turn up the volume, breaking into a chorus of hoots and screeches and rattling their cages. This had unnerved her at first, but soon she discovered that they were trying to get the attention of her companion, a friendly, talkative young woman appropriately named Dr. Kathy Chatterton. Dr. Chatterton was a pretty blonde in her early thirties. Like Kim, she had grown up in Southern California and had gone to a big SoCal university—graduating from USC, the crosstown rival of Kim’s UCLA. The two women immediately liked each other, and Kim thought happily that she had found her mentor for the summer.
In her pockets Dr. Chatterton carried mini marshmallows, which she distributed as rewards to animals that behaved themselves while she checked their cages. She’d confided to Kim that D
r. Gene Kleinbaum—head of animal studies at Bjornsen Pharmaceuticals—would probably blow a gasket if he knew the monkeys were getting marshmallows every day, even though the amount of sugar was minimal and wouldn’t affect the drug trial. Kim had promised to keep her secret.
The part of her work that Kim enjoyed most was when she and Dr. Chatterton took a few of their charges to the exercise room, a spare storage room that had been converted into a makeshift monkey gym, complete with balls, tree branches, and a slide and climbing bars donated by a scientist whose children had outgrown them. Visits to the exercise room were treats for both the monkeys and their keepers. The monkeys got to run free and play, and the keepers got to relax and talk while nominally watching the monkeys through a Plexiglas observation window.
When the daily exercise was done, Dr. Chatterton and Kim put some fruit or marshmallows in the cages to coax the monkeys back and then closed the gates once the animals were inside. After a few weeks, Dr. Chatterton let Kim handle this job on her own. It was a simple and safe task, perfect for an intern.
A messenger delivered the promised full-court press to Ben’s office the following Wednesday, forty-three minutes after Ben had called Karl Bjornsen’s lawyers to tell them that Gunnar wasn’t interested in their proposal. The documents nearly filled an entire banker’s box. Ben sighed and signed for it. Then he took it into the conference room, where he could spread out the papers and go through them without worrying about accidentally mixing in something from the other piles on his desk.
An hour later, Noelle walked by and noticed him in the conference room surrounded by court filings. “What’s up?”
“I got a care package from Bert Siwell. He’s teed up half a dozen motions for hearing on the emergency call tomorrow morning.”
“What kind of motions?”
Ben put down the document he had been reading and stretched. “Let’s see. There’s a motion for a temporary restraining order that would require Gunnar to immediately turn over the process for making Neurostim, a motion for a preliminary injunction, a motion for a permanent injunction, a motion for expedited discovery, one hundred and fifty-three pages of discovery requests he wants expedited, a motion to dismiss Gunnar’s counterclaim, and—last but not least—a motion for sanctions against both Gunnar and me personally.”
“Sanctions? What for?”
“For daring to bring a counterclaim that is . . . hold on a sec, I can’t do it justice.” He searched the table for the sanctions motion, found it, and flipped through it. “Here we go: ‘for bringing a counterclaim that is so ill considered, so patently frivolous, so clearly lacking any basis in fact or law, and so laughably puerile’—I’m pretty sure Bert had his thesaurus out by that point—‘that it demands sanctions.’”
Noelle stared at him, her mouth and eyes wide in angry disbelief. “Is he serious?”
Ben shrugged. “He’s obnoxious. He’s also pretty funny, usually on purpose, and he’s good on his feet, so he gets away with a lot.”
“What a piece of work. So how come all this is an emergency?”
“It isn’t. What he’s really doing is punishing Gunnar and me for rejecting his settlement offer. I’ll be working on responses all night.” He grinned. “But then, so will Bert—or at least the people working for him. I just sent them our box half an hour ago. I hope they didn’t have plans for dinner. I also hope you won’t be seeing Gwen Bjornsen again anytime soon.”
Ben’s dinner that night was leftover Giordano’s pizza from the office fridge, washed down with the flat remains of a two-liter bottle of Diet Coke. He was on his second slice when Gunnar called. “I just read through the court papers you e-mailed to me. Some of the things they say are completely outrageous! Aren’t there ethical standards against this kind of garbage?”
“Sure. Some of them are cited in the sanctions motion against you and me for daring to countersue Karl. I’m not too worried about that motion, though. It’s not likely to be granted, so the best thing to do is ignore it.”
“So you don’t recommend asking for sanctions against Karl and his lawyers? I don’t like letting someone punch me without punching back. It sends the wrong signal.”
“Not in court,” Ben replied. “Judges generally hate sanctions motions. Except in really extreme cases, like destruction of evidence or lying under oath, judges view this type of motion as the written equivalent of a temper tantrum. Throwing our own tantrum in return isn’t likely to do us any good. I know it’s tempting to respond in kind to this sort of insulting trash, but it really isn’t a good idea. We shouldn’t let it distract us from the motions that really matter.”
“Like the motion for a temporary restraining order?”
“Yes. Exactly. That’s the one that worries me the most. If they get the TRO they want, you’ll have to tell them how to make this new drug, and their case against you will basically be over.”
“I thought that’s what it meant,” said Gunnar. “Do you really think the judge would do that to me?”
“He could. This judge has a real instinct to split the baby in every case that comes before him.”
“Split the baby?”
“Yes. It’s a reference to the Old Testament story of King Solomon and two women who were arguing over a baby.”
“I know the story.”
“Okay. Well, lawyers use the phrase ‘split the baby’ to refer to judge-ordered compromises, especially when the compromise isn’t particularly fair or smart. For example, Judge Reilly might think he was compromising by denying the sanctions motion and granting the TRO, but that wouldn’t be a compromise—it would be a total victory for Karl.”
“I see,” Gunnar said slowly. “Yes, I see. So how will you keep this judge from splitting my baby?”
Three monkeys played in the exercise room—two from the control group and one of the test subjects. All three were related and knew each other well. The oldest and largest of the three had been the leader of their troop at the ranch where they’d been raised. He was named Bruce, because he had been the boss of the group—a Bruce Springsteen reference that Kim was too young to understand without explanation. The younger two monkeys were cousins and Bruce’s nephews. They weren’t twins, but they were so similar that they had been named Tweedledee and Tweedledum. Tweedledee had been injected with the drug; Tweedledum (Bruce’s cage mate) was in the control group.
Kim looked forward to playtime today. She and David had spent an hour on the phone last night talking about medical school. He had just received his final grades from his first year, and they had not been good. Now she sipped her chai latte and explained the situation to Dr. Chatterton. “So he’s really stressed,” she concluded. “He’s afraid he’s going to flunk out next semester. What do you think? Does it get easier after your first year, or is he in real trouble?”
“The first year is always a big adjustment,” replied Dr. Chatterton. “You’re not in college anymore, that’s for sure. I don’t think I slept more than twenty hours a week during my first year. Does it get easier after that?” She shrugged. “I don’t know. There are a lot of people who don’t come back after the first year, but most of those who do, graduate.”
“I’ll tell him that. Maybe it will calm him down some. He’s a great guy and everything, but he can be kinda intense sometimes. So, do you have any more words of wisdom for him?”
“Yeah. If he flunks out of med school, there’s always law school.”
Kim laughed. “I want to cheer him up, not make him shoot himself.”
“Then you may not want to mention the law-school thing. Just tell him he’ll get through it.”
Half an hour later, Dr. Chatterton headed back to her office to take care of some paperwork, and Kim entered the exercise room to retrieve the monkeys. Bruce went back into his cage without much complaining, but Tweedledee and Tweedledum were still playing and needed a lot of coaxing. Technically, Kim should have checked the ID number tattooed on each animal’s abdomen to make sure the right monkey went
in the right cage, but the numbers were hard to read and the animals didn’t like it. Besides, Kim was pretty sure she could tell them apart.
Judge Reilly held his emergency-motion call at 8:30 a.m., so Ben and Gunnar arrived in his courtroom at 8:15 and sat on the hard wooden benches while the judge worked through the cases ahead of theirs. At 9:05, the clerk announced, “Bjornsen Pharmaceuticals versus Bjornsen.”
Bert Siwell and Ben approached the bench and made their appearances. Karl and Gunnar Bjornsen were both in the courtroom and moved to the front benches when the case was called, nodding curtly to each other as they sat down. “Good morning, Counsel,” said the judge. “Between the two of you, you’ve filed no less than eleven emergency motions. Let’s start at the top of the stack. You’ve both moved for TROs. Mr. Siwell, you filed your motion first, so I’ll let you argue first.”
“Thank you, Your Honor.” Bert Siwell was a large man in height, width, voice, and ego. Thirty years ago, he had played right tackle at Northwestern. He had been a good offensive lineman for the same reason he was a good litigator: he was quick and could overpower most opponents. Also, he knew how to play dirty without getting caught. “My client, Bjornsen Pharmaceuticals, is asking for something that is both simple and crucial: it wants its trade secrets back. That’s all we want in this motion.