“How do you know this? What are you talking about?” Mary hadn’t even had a chance to tell him that settlement negotiations hadn’t worked this morning.
“Look, here’s the complaint. They just served it on me, here, like, an hour ago. Some guy told the nurses he was a visitor and when I came to see who it was, he handed me the papers and said, ‘Mr. Pensiera, you’ve been served!’” Simon’s words rushed out, driven by stress. “Mary, can they do this? Just lie about things I said?”
“They served you in the hospital?” Mary couldn’t imagine the cruelty it took to serve him suit papers in the Children’s Hospital. “Let me see the complaint. Do you have it?”
“Sure, yes, right, of course, I’m just so scattered, I mean, the doctors are saying that Rachel’s white count just went up, and I just can’t even think straight. Here’s what the guy gave me.” Simon reached into his back pocket, pulled out a sheaf of legal papers, and handed them to Mary. “I guess the settlement talks this morning didn’t go so well, huh?”
“No, I’m sorry, and I was going to tell you after lunch. Bennie pitched them but she doesn’t think they’re going to settle.” Mary skimmed the front page of the complaint, which had been filed in the Common Pleas Court of Philadelphia under the caption Todd Eddington and OpenSpace v. Simon Pensiera. The blanks for plaintiff’s counsel were filled in by Coburn and Wright, LLC, so Dumbarton had farmed the case out. Coburn was one of the best boutique law firms in the city, specializing in defamation and related tort actions.
“Oh no, I was really hoping they would settle, it makes so much sense to settle, and they know they were in the wrong.”
“I agree and I’m sorry, but we tried, and I will keep the pressure on toward getting a settlement down the line. A lot of people talk tough in the beginning, then they cave.” Mary didn’t update him on the fussing over the representation issue or the fact that she might leave the firm. Her personal problems were her own, and Simon had enough on his plate right now.
“Okay, listen, I really appreciate you trying and coming down here right now. I just don’t know what to do. This is incredible!”
“You know why they’re doing this, don’t you? They’re trying to intimidate us and back us down.” Mary had seen so much of this lately. More and more, corporations were using litigation as a tool to threaten, bully, and even bankrupt the little guy, like Simon. She wasn’t about to let that happen.
“Where the hell am I going to get two million dollars? We didn’t ask anywhere near that in our complaint, I never would have, and they’re a big company! I’m up to my ears in medical bills, with more on the way.” Simon flailed his hand in the direction of Rachel’s hospital room. “You should’ve heard what these doctors were telling me, the procedures she’s going to need. Her white cells are through the roof. That’s where my money should go, not to some ridiculous lawsuit! It’s her life that’s at stake!”
“Oh, Simon, I’m so sorry.” Mary’s heart went out to him, and she steadied him with her hand on his arm. “Don’t worry, we’re going to deal with this. Getting a complaint can be frightening, and that’s what they’re trying to do. It’s like terrorism by litigation. But I’m glad you called me, and just know that I can handle it and we’re going to stay the course.”
“Okay, okay,” Simon said, his forehead wrinkling under the strain. “I used to think I was good in an emergency, but things are really piling up, this is too much. My mother used to say, everybody has a breaking point, and today, I worried I was reaching mine. I thought I was helping Rachel by filing the lawsuit against OpenSpace but now I’m worried that I made everything worse.”
“No, not at all.” Mary felt terrible for him. “You did the right thing, we did the right thing in filing suit against them, and that’s what lawyers are for, to handle the stress. In fact, they’re not supposed to serve you with papers when they know you’re represented by counsel. They’re supposed to serve them on me. So much for the ethics police.”
“I just feel so helpless. Like everywhere I turn, I can’t do anything. With Rachel, with this litigation. I know it’s a cliché, that you feel so helpless, but anybody who has a sick child, they know what it’s like. Your kid’s crying and there’s nothing you can do, when they beg and they plead and they ask you to stop sticking them with needles and they want to go home. They ask, over and over, Rachel does, she asks me, she asks my father, ‘Zayde, when can I go home?’” Simon’s voice broke, but he held it together. “And there’s nothing you can do.”
“Aw, Simon.” Mary hugged him again. “So why don’t you sit down while I read this? Just try to collect your thoughts, or do you want a water or anything? I’m sure I can get you one.”
“No thanks, I’m fine. I don’t know how much time we have to talk, I might have to go in with Rachel. My dad and everybody are in the cafeteria, and I don’t like to leave her alone.” Simon flopped into a bucket chair and took a deep breath, exhaling slowly. “Ellen used to say, ‘do your Lamaze breathing.’”
“Good idea. You keep breathing and let me take a quick look at this.” Mary flipped through the complaint, which set forth two civil causes of action against Simon: first, that he was liable for slander because he had defamed Todd Eddington on two occasions, and secondly, that he had committed trade libel against OpenSpace. Coburn must be pulling out all the stops because trade libel was a relatively rare tort, similar to defamation of a company.
“Will you read that thing! It’s ridiculous! He’s claiming I said he didn’t care about Rachel, that he was heartless, which I never ever said, I swear to you.”
“I understand,” Mary said, modulating her tone to calm him down, even though she was furious inside. She couldn’t believe that OpenSpace was retaliating at Simon so viciously. It was an overreaction, and she suspected it had something to do with Nate’s anger at her taking the representation, or something personal between him and Bennie. Or both.
Mary read the first set of factual allegations aloud:
In a conversation on February 16, Defendant Simon Pensiera defamed Plaintiff Todd Eddington by stating to Raymond Matewicz, Operations Manager at OpenSpace, that: “Todd doesn’t care about Rachel at all,” “Todd has no heart and only cares about money,” and “Todd is jealous of my abilities and all of the attention I’m getting because of Rachel’s cancer.”
Mary looked down at Simon. “Who is this Ray Matewicz and what do you have to do with him?”
“I don’t have anything to do with him.” Simon looked up plaintively, his chin in his hands. “Ray runs the plant, and I talk to him from time to time but we don’t talk about Todd. I never said anything bad about Todd, not at all. Why would I badmouth my boss to a guy I hardly know? I’m not that stupid!” Simon raked a hand through his hair. “Besides I don’t think Todd is jealous of me. The only thing I think is that he fired me to save the company Rachel’s medical expenses, that’s it! Otherwise I don’t give him a second thought. I have enough to think about!”
“I believe you, I know.” Mary turned the page, and there was another set of factual allegations in support of the defamation claim, which she read aloud again:
In a conversation on March 22, Defendant Simon Pensiera defamed Plaintiff Todd Eddington by stating to Ernie Greeley, Director of Security at OpenSpace, that, “Todd doesn’t care if Rachel lives or dies. The only thing he cares about is the numbers.”
Mary looked at Simon. “Tell me about this Ernie Greeley.”
“Same deal,” Simon said defensively, throwing his hands up in the air. “Ernie does plant security. Makes sure we’re locked up at night. Makes sure there’s no fighting on the floor. Sends somebody home if they come in drunk. I have nothing to do with him, either.”
“Do you ever talk to him?”
“Rarely, the only time I ever talked to him was, like, one or two times when I smoked out back by the loading docks”—Simon looked up sheepishly—“I know, I know, I quit a long time ago for Ellen, but lately, there have been times whe
n I really needed a cigarette.”
“It’s okay, Simon.” Mary didn’t smoke but she wasn’t about to judge him, considering what he was going through. Anyway, carbohydrates were her chosen addiction.
“So Ernie would be out back grabbing a smoke, and we would talk about sports or whatever. But I swear to you, I never said anything about Todd.”
“Understood, okay. Let me see what else this thing says.” Mary returned her attention to the complaint, turned the page, and read ahead to the factual allegations to support the claim of trade libel, which she also read aloud, so he could respond:
In a conversation on April 19, Defendant Simon Pensiera stated to Raymond Matewicz and Ernie Greeley that he had told one of his accounts that, “The quality control had fallen off the table in OpenSpace’s top-of-the-line cubicles and that OpenSpace was ripping off its best customers,” and defendant also told the two men that the account, which he declined to specify by name or location, had therefore failed to order more cubicles.
Simon moaned. “I never said that either. I never said anything like that. Sometimes I worry about quality control and I wrote an email to HR or Ray about that, but I’ve never said it to a client and I never would. We have so much competition and I’d never run down our product outside. I’m in sales, for God’s sake.”
“Okay, I get it.” Mary was sensing a pattern. “It sounds like these false allegations contain a grain of truth, and that lends them some credibility.”
“They’re still lies.”
“I know, I hear you.” Mary read the rest of the complaint but there was nothing else of substance except for the damages amount at the end, which really did read $2 million, which meant that Dumbarton, Nate, OpenSpace, or whoever was behind this lawsuit had just upped the ante even more, for major stakes in federal court.
“So what does all this mean, the defamation and all? Can you tell me what’s going on?”
“Of course.” Mary folded the complaint and sat down beside him. “Defamation means that you made a false statement that disparaged someone or lowered their reputation in the community. If you had made these statements, they would constitute defamation, in that they would tend to damage Todd’s reputation. You follow?”
“Yes, but I didn’t make them.”
“I know you didn’t, but this is going to be a credibility contest, and the concerning thing to me about this—not that we can’t deal with it because we can—is that this complaint suggests that both Raymond Matewicz and Ernie Greeley are going to lie for the company. My guess is there’s no proof, no contemporaneous notes like you took, and there’s probably no recording.” Mary thought a minute. “Do you have security cameras on the loading dock or anywhere else?”
“I assume so.”
Mary made a mental note. “Me too. So let’s assume that they even have a video that will show you on these three dates, talking with Ray on these two dates and with the two of them on the final date.”
“But that doesn’t prove what I said, and I didn’t say what they’re saying.”
“I know, and that’s the most they can come up with, and that’s not very persuasive. It’s something but it’s not a home run.”
“Is it as good as my contemporaneous notes?”
“No,” Mary answered firmly. “Now let me explain about the trade libel, which means that you said words that tended to disparage OpenSpace’s business, which resulted in them losing money, and the statement that they allege, if true, would constitute trade libel.”
“If I said it.”
“Exactly, if you said it, but you didn’t.” Mary thought about how she had to phrase her next thought, because she didn’t want to upset him. “I’m more concerned about the trade-libel allegation, because Ernie and Raymond will be able to corroborate each other. In other words, they are the proof that you said it.”
“But they’re lying!” Simon’s eyes flew open, and up close, Mary could see how bloodshot they were and wondered if he had gotten any sleep last night.
“I understand that. But let me talk about the underlying facts. Do you have any concerns with the quality in OpenSpace’s top-of-the-line cubicles?”
“Sure, and I write about them internally, but I never expressed that to any account and I never would. I try to listen to what the account needs and meet their needs with whatever line we can sell them. I don’t ever run down our own products to accounts.”
“Okay.” Mary processed the information. “Let’s talk about Ray Matewicz and Ernie Greeley. Are they friends? Why would they back each other up? And if they are, are they friends with Todd Eddington?”
“Yes, and I do see them together. They’re all department heads and they’ve been with the company from the beginning, longer than I have. They have management meetings with Bashir, so they must talk there.”
“Do they socialize out of work?”
“I don’t know, like I say, I’m calling on accounts, I’m on the road, or I’m at the hospital.”
“Why would they lie for the company? Who would ask them to? Todd? The president, Bashir?”
“God knows.” Simon raked his hands through his hair again. “I really thought Todd was my friend. I can’t believe he fired me and I can’t believe they’re doing this now. I never say bad things about him, I have no time to gossip.”
Mary touched his shoulder. “I understand, and please try to put this out of your mind, as hard as that may be. I will stay the course in the meantime. I’m going to send a complaint letter to the EEOC to start the ball rolling on our ADA case, and I’m going to draft an answer to this complaint.” Mary thought a minute about legal strategy. “I haven’t decided yet if I’m going to try to remove this case to federal court and combine it in the same action, so let me give that some thought. That would be hardball, which is the only thing these guys know.”
“Thank you, really, I appreciate it.” Simon straightened up, rallying with a shaky smile. “I never really thought of you as a hardball type before.”
“Oh, you have no idea,” Mary said, but truth to tell, she didn’t either. She’d handled tough cases before, but never one like this, with Simon’s future, her career, and Rachel’s very life on the line.
She had to get busy.
CHAPTER SIXTEEN
Bennie woke up drowsily, with Declan’s arms around her, his naked body curved to fit hers under the sheet. The late-day sun shone through the window, flooding the bedroom with dark gold light, burnished to bronze. A portable fan whirred on a nearby table and made a pleasant, if artificial, breeze across her skin. They had made love and fallen asleep, happy and satisfied, but as soon as her eyes came fully open and her consciousness caught up with her, her mood spiraled down. It had been fun to stave off reality in his arms, but she couldn’t deny the fact that she was losing Mary and her firm was coming apart.
Bennie let herself wallow in self-pity for a little longer, a self-indulgent emotion she rarely allowed herself, but this was hitting her hard. She hadn’t seen it coming and it happened much too fast. She already missed Mary, and the money was an issue. Declan had been sweet to offer to fill in the gap, but that wouldn’t be wise and she would never accept a loan. She had to resign herself to Mary’s leaving, plan her next moves, and mitigate the damage.
She felt struck by a horrible thought, one she probably would’ve had before if not for the beer, the man she loved, and this very soft bed beckoning to her. Mary and Judy were best friends, having worked together since they’d left Stalling & Webb as young associates. They’d only gotten closer over the years, and nobody would take Mary’s leaving the firm harder than Judy. And Bennie realized suddenly that Judy might leave the firm with Mary, which would be a terrible prospect in every way. Bennie had come to really enjoy having Judy around, even though she was out there as a personality, and Bennie assigned her a ton of cases.
She shifted upward in bed, as the realization began to dawn on her. She was able to trust Judy with anything and kept her busy twenty-four/seven.
More importantly, Judy had a brilliant legal mind that could analyze even the most sophisticated of legal issues, as well as the patience to research endlessly. Plus her legal writing skills were the perfect blend of analysis and language, and one of the amicus briefs that Judy had written had been quoted in a slew of law reviews, cited with approval.
Bennie couldn’t lie around in bed feeling sorry for herself for another moment. It wasn’t like her, and she was about to lose her entire firm. She looked around for her phone.
Declan stirred behind her. “You awake, babe?” he asked, his voice low.
“Yes.” Bennie took her phone off the night table. “Sorry if I woke you.”
“No worries. I can’t believe how late it is. It’s all your fault.” Declan chuckled softly.
“I just realized I have to make a quick phone call. I’ll be right back.”
“You can do it here if you want to. I don’t mind. I’m up.” Declan shifted up in bed, resting his back on the headboard. “I want to catch the end of the ballgame. They played in the afternoon today. I watched it on mute. Make your call.”
“Okay, thanks.” Bennie shifted upward next to him, in no hurry to get out of bed. She scrolled to Judy’s number and pressed Call, just as Declan picked up the remote, aimed it at the TV on his bureau, and flipped the channels to the Phillies game. Bennie looked away from the TV so she could focus better on the call as the phone rang and rang.
Judy picked up. “Hello, Bennie,” she asked, and Bennie could tell from the tone of her voice that she was upset too.
“Hi, I’m calling to talk to you about this situation with Mary. I guess she’s really thinking about leaving the firm.”
“I know,” Judy said, but it came out like a moan. “It’s just terrible. I mean, everything is so good and I think we’re such a good firm. We all work so well together. I know that she’s in a real bind, but I don’t want her to go, I really don’t want her to go. And I know you don’t want her to go either.”
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