“I’m no expert in class actions, but I believe the main things that the court looks for before certifying a class are Numerosity, Commonality, Typicality, Adequacy of Representation and Viability of the Defendant.”
“I think I understand the first two. You have to have a bunch of people and they have to share some legal claim against the defendant. What’s that third one Typicality about?”
“It means that if you’re the lead plaintiff, you’re required to have suffered the same type of damages that the others in the group did.”
Stuart finally catches on. Legally, he’s on pretty solid ground to be a lead plaintiff in a class action, but collecting from Billy Z is the problem.
“Pete, I agree with you. But your feeling about not being good enough in this type of lawsuit isn’t justified. I think you’re a good attorney.”
“Thanks Stu, but don’t confuse Adequacy with Competency. That portion of the require-mint just requires the lead attorney to fairly represent all the members of the class without any partiality to the lead plaintiff.”
Once the law lecture ends, the rest of the evening goes quite well. Brian did a fine job of preparing my special salad, Stuart didn’t go ballistic finding out he was defrauded, and he learned a little about class actions. We decide to take things as they come, treating each problem on an individual case basis. Stuart hasn’t received one complaint from a customer yet, so things are looking rosy. My job now is to figure out a way to let Billy Z know that the scam is over, while still allowing Stuart to keep doing business. I’ll have to think this one over for a while.
I’ve still got some time before Joe Morgan’s case comes up in Federal Court, so as far as Billy Z. is concerned, maybe the time for thinking is over and it’s now time for action, so if I don’t get this mess out of the way now, I may not have time to do it for a while. I call Stuart and tell him to have his travel agent get me a first-class round trip ticket to New Jersey and back – and not to worry about the cost because Billy Z will be picking up the tab on this one. I really don’t know what to say to the guy, but it’s at least a six-hour flight from the left coast to the right coast, so there’s still some hope. Knowing Billy’s background, it will have to be handled delicately, because I don’t want to get a guy like him mad at me. He’s probably accustomed to having things done his way, so whatever I come up with will have to make sense to him. I value my kneecaps too much to try and force him into a deal he won’t be happy with.
In my opinion, all flying should be avoided. I feel the same way about elective surgery. The only exception is when I absolutely must go somewhere beyond my five hundred mile driving limit, conveniently established to include Hummer trips to San Diego, Las Vegas, and San Francisco. New Jersey definitely requires a flight, but going first class should take some of the edge off.
The flight is pleasant, but the flight attendants aren’t as attractive as they used to be when they were called stewardesses. I see that several celebrities are also on this flight in the first class area, but we seem to have made a silent agreement that if they don’t bother me, I won’t bother them. I remember that day at Patty Seymour’s lunch seminar and can appreciate what it feels like to be a celebrity. I feel their pain.
I land in Newark and go to the car rental place to pick something up. They don’t have a Hummer, so I take a Chrysler PT Cruiser. It’s become the car of choice for gangs in Los Angeles, and I wanted to fit in with Billy Z’s group of associates.
After less than an hour of driving, I see Mister Z’s warehouse. It’s amazing what one can do with the proper construction discounts. Jack B. called in advance making an appointment for me, so I’m expected. I specifically told Jack to not mislead Billy into thinking I’m there as a car buyer. I want him to believe that whatever I say is the truth, and it’s a bad idea to start our meeting with a lie.
Off to the side of the warehouse is a long, low building with several open bays, like the service areas of a car dealership. Each bay contains a car in some stage of being detailed for sale. Some are up on lifts having tires, brakes, and other bottom parts worked on. At the far end of the compound is a spray booth, and there are several chain hoists for lifting engines. All the bays are full of cars and there must be at least ten people working in the seven service areas. This is some operation he’s built. I’ll bet it would turn a profit even if it were run as a legitimate business.
I park in an open space near the warehouse’s office door and take a moment to look through the file that we prepared. It contains all of Jack’s charts, lists of previous owners, flow charts showing VIN numbers and automobile colors going from vehicle to vehicle, and the final classification and disposition of each vehicle we were able to find out about, including the thirty-five that were sold and delivered to Stuart.
Inside the warehouse, the front portion is partitioned off into two or three small offices. Entering the front door one encounters a tiny reception area, with a receptionist like I’ve never seen before. It’s a he, and he’s completely ignoring me while reading what looks like some publication that lists horses in a racetrack. Without looking up toward me, he speaks. “Whatta ya want?” I was considering bringing Vinnie with me to translate. His New Joisy dialect would have come in handy. Even without Vinnie, I understand what this four hundred pound giant receptionist is saying.
“I have an appointment with your boss.”
“What about?”
“It’s rather personal. I’d rather discuss it with him.”
One of the office doors opens and Billy Z sticks his head out. I recognize him from the mug shots. He looks much better without that number under his chin.
“You Sharp?”
When I tell him that we have an appointment, he looks at the receptionist. “He clean, Nunzio?”
Due to the time of the year and the humidity, I’m not wearing a suit or sport coat. I decided to wear a Soprano-style golf shirt and a pair of Dockers trousers. It’s obvious that I’m not wearing a gun or a wire, so in Nunzio’s eyes I pass the ‘cleanliness’ test and he grunts a yes toward Billy, who then motions for me to follow him into the office. This is good, because it’s the only part of the entire building that has an air conditioner sticking out of a window. I follow his instructions and sit down opposite his desk. His opening remark gives me an idea of his sophistication.
“That little bald Jewboy called and told me you’d be comin’ to talk to me. What’s it about?”
So much for small talk. His description of Jack confirms my thoughts about his sensitivity and I can tell that this isn’t going to be easy. I probably won’t even get a chance to tell him that I met one of my father’s friends back in Chicago years ago, and he was a nice guy, even though he was a gangster. Too bad, because I’m sure he would have enjoyed that story.
“Mister Z, can I call you Billy?” I take his glaring silent stare as consent to the familiarity. “Billy, I’m a lawyer from Los Angeles, and I’d like to give you about fifteen minutes of legal advice. Do you have a single dollar bill?”
He looks at me like I’m crazy, which is very perceptive on his part. Slowly, he opens his desk drawer, reaches in and removes a one-dollar chip from Donald Trump’s Atlantic City Taj Mahal Casino that is lying with many others, right next to a shiny revolver. He tosses the chip onto the desk in front of me.
I pick up the chip, put it in my pocket, and start my pitch. “Billy, I hope I can trust you, because I’ve just broken the law.”
If I had any connections with Pay-per-view, I’d arrange for a poker game between Suzi and this guy. It would be a world-class stare-off. No expressions, just straight poker faces.
“You got twelve minutes left, lawyer.”
At least I know he was listening. I wonder what happens when my fifteen minutes are up. I realize I’m not in the Marina surrounded by gentlemen members of the yachting community. This place must have been the inspiration for the Bada Bing Club, and they have their own way of showing people the door.
“Billy, I’m not licensed to practice law in New Jersey, so any advice I give you can get me into trouble, because outside of California, I’m considered to be practicing law without a license. That’s only a misdemeanor, but it can still get me suspended from practicing in California, and that would cost me a lot of money. Anyway, whether I’m licensed to practice here or not is beside the point. The attorney-client privilege attaches to anything said in this room, so now that you’ve paid me a retainer, I’m going to show you a file we’ve prepared.”
I open the file and spread the contents down on his desk in front of him. He doesn’t look down at the stuff – he keeps his eyes on me. I sit down again and go on.
“The material in that file shows exactly what you’ve been up to. Every recovered stolen you purchased at auction, every total wreck you bought at the salvage yard, every re-purchased lemon you took bought the factory rep, every color, every VIN, and statements from all the previous owners.
“I want you to know that the attorney-client privilege we’re working under here applies to every car in this file, but it does not apply to similar acts you might commit in the future – and I’m advising you here and now to stop committing them… at least with respect to one particular customer you have in Southern California.
“Oh yeah? And who might that be?”
“Stuart Schwarzman. He’s my friend and client. You sold him thirty-five cars, and we found a dead body in one of the trunks. He appreciates that free option, but would rather you didn’t do it anymore.”
I must have hit a sore spot by mentioning the dead body because suddenly Billy jumps up and slams his fist down on the desk in protest. The door springs open and Nunzio’s head pops in. “You okay, boss?”
Billy signals that everything is under control, so the conversation continues.
“I don’t think you had anything to do with that body, because we sent the bullet, dental records, and other identification to your local police agencies, and they said it wasn’t a New York or New Jersey crime, so we don’t have to talk about it any more.”
This seems to take the pressure off a little. I now realize that I shouldn’t have mentioned anything about the body. As I heard those words, I was saying to myself “what idiot just said that?” I figure there’s less than nine minutes left, so I go on.
“As I was saying, I don’t care what you do here with your cars, wrecks, and customers. All I care about is my client in Van Nuys. He’s doing quite well selling those cars you send him, and he’d like very much to continue doing business with you, so here’s what I’d like to suggest. First, please don’t sell him any cars that have had the VINs switched. He doesn’t mind buying recovered stolens or re-purchased lemons, as long as he knows what he’s getting. If it’s a recovered stolen, please let him know how many miles were on it when it was recovered. If it’s a re-purchased lemon, please let him know what the reason for the buy-back was so he can check to make sure the proper repairs have been made. If you’ll play it straight with him, he can transfer the remaining warranties over to his buyers, and everyone will be happy.”
Billy continues his stare. “And what if your client isn’t happy?” I now realize that the rubber has just hit the road. This is the showdown, where all the cards are laid out on the table. I take my time and make sure that this comes out right, because I don’t want it to be my last words on this earth.
“Billy, we’re talking about used cars here. I know that they’re late models, but they’re still used cars and sooner or later, one of Stuart’s customers is going to experience some car problems. If we can’t straighten out the problem, then the customer will sue Stuart and if his lawyer has half a brain, he’ll name you as a defendant. Lawyers on breach of contract cases don’t work on a contingency, they bill by the hour. That means that some schmuck attorney will be subpoenaing all the information we have that’s in the file on your desk. Once the word gets out, the rest of the customers will smell blood and their attorneys will join in to make it a feeding frenzy. The only way to avoid that is to know that you’ll be a gentleman and do the right thing.”
“What’s the right thing, lawyer. You asking for money now?”
“No Billy, I’m not asking for any money. What I’d like to know is if you’ll cover Stuart’s back and take back a car once in a while if the situation warrants it. You send out the replacement with an unaltered VIN, and we’ll put the exchange on the truck to be brought back to you.
“That’s it?”
“Yeah Billy that’s it. And if you really want to be a prince, here’s a copy of the invoice for my plane ticket and car rental. It would be nice if you could discount the next car Stuart buys by that amount.”
The air conditioning isn’t working as well as I would have liked it to, because I feel soaked in perspiration. As I slowly leave Billy’s private office, I close the door behind me and politely nod towards Nunzio. This scene of me leaving reminds me of a scene in an old movie where some world war II prisoners disguised themselves as German officers and then casually strolled toward the prison’s main exit. Everyone watching that film was sitting on the edge of their seats. We saw close-ups of the prison guards looking down at the phony officers, and we were afraid that the prisoners would be recognized and never make it to the gate and to freedom. Slowly walking out of Billy Z’s place, I now know how those prisoners felt.
Stuart doesn’t believe I pulled it off. He made me recount the whole conversation word for word, and when I tell it again for Jack and Vinnie, Stuart listens in as if it were the first time. I leave out the parts about me breaking the law in New Jersey, my intense perspiration, and also where Billy Z told me he liked the way I handled myself and would refer some business to me out here.
With the Billy Z and Stuart situation under control, I’ve got to concentrate on getting Joe Morgan off of the hook. I feel in my heart that he’s innocent, but with the political climate being what it is nowadays, I can imagine how an experienced Federal prosecutor can turn a jury into a lynch mob - especially faced with a Muslim who is allegedly part of conspiracy to kill our President. With a convincing argument, even a jury member not in the President’s political party might vote for conviction.
Somewhere in the back of my mind is the feeling that some answers are at the dealership where Joe works. My feelings about Eaton’s guilt are as strong as my feelings about Joe’s innocence. I certainly hope Jack B. comes up with some holes in Eaton’s timeline alibi.
I drive over to the dealership to snoop around. Maybe I’ll get lucky with some talkative low-level employee who has no love for his general manager.
If you’ve seen one new car dealership, you’ve seen them all. They’ve all got their fanciest models in the showroom, a front line of beautiful used cars that they want you to believe were traded in, and the cash cow service department with numerous repair bays and a cashier behind thick glass who’s more secure than a bank teller.
This particular dealership has one extra feature that I’ve never noticed in any other one before – a security guard posted near a closed garage door. He isn’t just one of the dealership employees wearing a jacket with the word ‘security’ on its back, he’s a true rent-a-cop and he’s wearing a gun.
I know that Vinnie and Olive carry unloaded weapons in their holsters, but they do it for show only. This guy looks like he means business. I ask a couple of mechanics if they know anything about the security guy or what he’s guarding, but the only information I can gather is that the garage is ‘off limits’ to all customers and employees, and that I should avoid going over there. They tell me that whatever’s in there was wrapped up and offloaded from a large truck, and that it was done inside the building, after the guard was posted.
Columbo is my favorite television detective. He has a method to get information out of guilty people. He just keeps dogging them until they make the mistake that shows him how to solve the case. I might as well take a page out of his book and start working on Eaton. One method Columbo us
es is to ask for the suspect’s help in solving the crime, so I think I’ll ask if Eaton can get me inside that area that security guy is guarding. It may not help the case, but even if it’s not connected in any way, my curiosity will be satisfied and Eaton will think my investigation is going in some direction other than his.
They page Eaton is over the dealership’s PA system and he meets me at the service department’s sign-in area. I can tell he’s on his guard when talking to me. He wants to appear to be helpful, but he’s got something to hide and we both know it.
I tell him that I’m curious about that security guard and would like to get into the garage to see what’s so important. Eaton lets me know that there’s no way I’m getting in that garage. The dealership has some contract with the Federal government for emergency repairs on their vehicles and that garage is a secure area. His answers don’t sound right to me, so it’s time for a little out-of-court cross-examination.
“If it’s that secure, how do your mechanics get in there to work on the vehicles?”
“They don’t. When a government vehicle is in there the government mechanics come to work on it. All we do is provide a secure garage facility for them.”
“That’s ridiculous. They’ve got plenty of garages in the Federal Buildings.”
“Yes, they do, but the July Fourth parade will be coming down this street, and there’s not a federal building within fifteen miles of this dealership.”
“Are you trying to tell me that there are federal vehicles in that garage?”
My last question stops him for a second. He hesitates before answering.
“I’m not supposed to tell anyone about this, but since this is a privileged communication… it is privileged isn’t it?”
“Of course it is.”
“Well, it’s a special vehicle that’s going to be in the parade. The President might even ride in it.”
A Class Action Page 10