by Alan Hruska
They are ushered into the big office immediately. Stapleton has no mind to play games with Lee Norris. But the meeting goes as predicted. Alec unfurls Judge Kane’s plan. Stapleton, suspecting something unusual, is nonetheless flabbergasted, bursts out with a boisterous laugh, and even proclaims, “Ingenious!”
“Paperwork couldn’t be simpler,” Alec adds. “All that’s required is an agreement to submit the issues of the litigation to arbitration by Judge Mansfield. One sentence. One page. In fact, I have it right here,” he says, laying the proposed stipulation on Stapleton’s desk. “You sign it; we move to dismiss the court case on the grounds that the parties have agreed to arbitrate; Mansfield reads all the evidence put in so far plus anything further either side wants to introduce; and he renders a decision which is not appealable. That’s it. A clean and final disposition of the largest, most ridiculous circus in the history of the federal courts.”
Stapleton picks the paper up carefully. Glances at it for a moment. “Of course, I will have to think about this.”
Alec says, “Let me add this to your thoughts. Everyone knows you will win before Ettinger, because they also know that he’s biased. He’s been mandamused three times by the Court of Appeals. There’s no honor to winning before a biased judge. And by this initiative, the chief judge is telling you that Ettinger’s decision is dead on arrival. It’s an ugly situation for everyone, Eric. Letting an honest judge decide the case will clean it up.”
Stapleton lays the paper back on his desk and pushes it away from him. “As I said—”
“Let me also add something,” Norris says, interrupting. “I realize you’re probably out of here by the time Ettinger’s decision gets shredded by the Court of Appeals. But you know what his decision will leave in its wake?”
“Of course. A few hundred private treble-damage actions.”
“More like a thousand,” Norris says. “Claimants hoping to cash in, even though they would know it was a baseless decision of a biased judge. And you know the cost of that? To everyone? Courts included? No, of course you don’t. It’s too big to measure. But I’m sure you know what your own case is costing the government. That’s got to be well over a hundred mil. Already. By the time we finish, it will be double that. And for that extravagant waste, Eric, the buck stops here.”
“You say baseless. My people tell me—”
“Oh, come on, Eric!” Norris says, slamming his fist to the desk. “Your entire case rests on your contention that the market is limited to the United States. And that’s palpable nonsense. The market is worldwide, and you’re smart enough to know it. Every day we’re losing ground to the Japanese. And this case is only accelerating that loss.”
“So end it today, Lee. I have a draft of a consent decree in my drawer. Damages are a mere half billion, and we break up U.S. Computer into only three different companies.”
Norris struggles to his feet. “You know what you may do with that draft,” he says quietly.
“I will think about this,” Stapleton says, pointing to the draft stipulation. And then to Alec: “You tell the chief judge I’ve taken this under advisement.”
“Sure thing,” Alec says, not hiding his assessment of the outcome of that process. He and Lee Norris start walking toward the door.
“One moment,” says Stapleton. “I have some light reading for your trip home, Alec. Please share it with Caddy Breen.”
Alec turns as Norris goes into the hall. “You’re willing to amend the old consent decree?”
“Not quite,” Stapleton says. “What I’m giving you is a new one.”
“Meaning you’ll sue us first.”
“Civil, Alec. Not criminal. And we won’t actually prosecute any case. We’ll announce the filing of the complaint and the new decree simultaneously. That will be the end of it. This sort of thing is done all the time.” Looking at Alec’s face, he adds, “Sorry. Best I could do. But you’ll like it. It reduces the risk that the rest of the public utility industry will sue.”
“Marginally,” Alec says.
“It’s a good deal, Alec. You get Caddy to sign it.”
In the car to the airport, Norris says, “What was that all about? Your Allis-Benoit thing?”
Alec nods and starts filling him in while reading the two-page decree.
Norris asks, “Is he forcing you to admit liability?”
“The opposite,” Alec says, actually surprised. “He’s allowing us to deny it.”
“That’s pretty good. What’s the bite?”
“No public announcement of prices by the manufacturers. Confidentiality provision in sales contracts, prohibiting customers from revealing prices and terms.”
“That’s it?”
“That’s it.”
“So now you can cut prices with less chance of Edison Electric finding out about it.”
“If they sign, yeah.”
“Of course they’ll sign!” Norris says. “How the hell you pull this off?” He grabs Alec’s arm. “No, don’t tell me. Stapleton’s neither that smart nor that generous. But he is a coward. So you frightened him.”
Alec smiles.
“With what?” Norris says. “Hmm. Ah. Obvious. You threatened him with going out of business—and blaming him for putting thousands out of work.”
“Wasn’t an empty threat,” Alec says. “Bob Curtis told him face-to-face he’d already lined up board support.”
“You brought Curtis to Stapleton’s office?”
Alec relates the story, from the meeting in Cleveland to the session with Stapleton.
“Jesus Christ, Alec. That’s fucking out of this world. Do something like that for us here.”
Alec’s first call from his office is to Larry Rilesman, who’s unsure how to take the news. “Sue us, settle the same day, how’s that get read? I mean by the public utilities?”
“Should get read for what it means. Stapleton wants a consent decree. So he brings a new suit instead of amending the old decree, because it makes him look more aggressive.”
“The utilities may need help understanding that.”
“We’re here to provide it.”
“That lawyer who represents them, what’s his name? Marius Shilling? He’s a friend of yours, right?”
“We get along. I’ll talk to him.”
“Better be soon. The standstill agreement is about to run out. Needs extending.”
“That it does.”
“But as I think about it, this result with the government is really fantastic, Alec. Barely a slap on the wrists for us. I’m sure Bob will be pleased. And I guess the other public utilities will stay in their cage, right? Just sign the extension? I mean from their standpoint, why not simply await the outcome in Mid-Atlantic’s case? If Mid-Atlantic wins, they get the benefit of it. We’re collaterally estopped from defending ourselves on liability. If Mid-Atlantic loses, why spend money on a losing claim?”
“That’s the analysis,” Alec says, wondering if Rilesman had just figured it out.
“And the Mid-Atlantic case will go on for years.”
“Probably right,” Alec says.
“Whatta you mean, ‘probably’?”
“What I said.”
“It’s the way you said it. Something you’re not telling me?”
“No, it’s fine, Larry. Let me get Caddy on the phone. He’s dying to hear, and we need him to agree.”
Caddy Breen’s reaction is simply, “That’s all Stapleton wants?”
“That’s it,” Alec says.
“And the whole government threat goes away? You must have put on quite a show.”
“Seems to have worked.”
“Well, I can see how your guys would like this more than mine, but it’s still a great deal for both companies. Thank you. Of course a simple amendment to the old decree would’ve been better, but there’s no reason this deal should stop the public utilities from extending the standstill.”
“Something else might,” Alec notes.
“O
h?”
“Suppose we could get Mid-Atlantic to drop its case right now? In the next few weeks. Before the standstill runs out?”
“By paying them what?” Breen says. “A hundred mil? Two? And then paying out proportionate amounts—billions—to 125 other utilities under the most-favored-nations provision of the standstill agreement? I don’t think so, Alec.”
“Not an option, no. But I think Mid-Atlantic may be peculiarly open to settlement right now.” Alec relates the news about Hannah Valley’s change of heart about being engulfed by Donald Strand. “So what do you think? What does Strand want more: a 50-50 chance of collecting treble damages from us, or living his dream of owning every public utility in the six states surrounding him?”
“Which his lawyers tell him he can’t do with our counterclaim dangling over his head.”
“Good chance they’re giving him that advice, yes,” Alec says.
“But he won’t drop his claims just because we agree to drop our counterclaims. He’ll want more.”
“So we give him a bit of a sweetener.”
“What sweetener?” Breen asks. “I just said—the most-favored-nations provision kills that. We can’t pay Mid-Atlantic anything without paying off every other utility in the country.”
“Yeah, we can,” Alec says. “Reimbursement of counsel fees.”
“Ah,” Breen says. Then, “Hmm, clever. Might not trigger the MFN. But you think Mid-Atlantic would settle for that? Fees can’t be that high a figure. Freddy Musselman is probably doing this case on a contingency arrangement.”
“Let’s say Freddy were offered a lump sum? Now? Without having to do any more work? And we might also agree to reimburse Mid-Atlantic for their out-of-pocket expenses. The key is reimbursement. Of money Mid-Atlantic has already spent, or is committed to spend. What triggers the MFN is a payment settling the damage claims.”
“Whatever you call it, Alec, from Strand’s standpoint, it’s peanuts.”
“Worth a try. And it’s your play. Or your CEO’s. I got Bob Curtis to cry on Stapleton’s desk. Now you get your guy slamming on Strand’s. Okay?”
“I dunno,” Breen says. “Play it out. Let’s say we pull off this miracle, get Mid-Atlantic to drop their case for the reimbursement of peanuts. There’s nothing left for 125 other utilities to stand still for. Why won’t they just sue us? In fact, how the hell would their public utility commissions let them do anything else? And then we’re looking at 125 suits instead of one.”
“Unless,” Alec says, with a greater show of confidence than he feels, “we talk them out of it. Bring all 125 together and show them how unwise such lawsuits would be.”
“Oh, yeah?” Breen says with a bit of an edge to it. “How the fuck you plan to pull that off? I mean, even if you could somehow get them all in one room. From their standpoint, every reason says—no, shouts—‘Sue the bastards!’ ”
“I’ll think of something.”
“Great,” Breen says. “Because this would be your play.”
“Not a problem,” Alec says. “With no government case and no Mid-Atlantic case for them to take a free ride on, they should be open to reason on the subject.”
Breen laughs. “Reason, huh? Wow. You, man, are chutzpah incarnate. All right, Alec, let’s see what my client thinks about all this.”
Alec knows what they’ll think. Edison Electric does not have Allis-Benoit’s problem. Going to trial with Mid-Atlantic would not put Edison out of business. Moreover, Edison had a better chance of winning that trial than it would, if it settled, convincing 125 utilities not to bring the same suits. In fact, if Edison tried the case and beat Mid-Atlantic—demonstrating the strength of the turbine manufacturers’ defense—then, and only then, might there be a decent chance of persuading the other utilities, and their PUCs, to go away.
This whole plan, Alec thinks, is pretty damn close to hopeless. Yet Caddy has to believe in it enough to even make the argument to his client; they have to believe in it enough even to start negotiations with Mid-Atlantic; Strand must somehow want to get rid of that counterclaim so badly that he’ll take peanuts to settle the whole case; and all 125 public utilities must then desist, when every conceivable reason points to their suing the moment Mid-Atlantic drops out.
Alec’s secretary, Sweeta Gottsen, opens his door. “While you were on the phone, chief judge’s chambers called. He wants you up there. Now.”
TWENTY-FIVE
I didn’t want to discuss this on the phone,” Judge Kane says, pushing away from his desk. He beckons to the chair in front of it, which Alec takes.
“Understood,” Alec says.
“So tell me. You met? You put the proposition?”
“This morning.”
“And Stapleton’s reaction?”
“Very guarded.”
“The nature of the man, so I gather. And what is your assessment of the outcome?”
“He won’t go for it,” Alec says. “Too novel. Too risky. He’s got a sure thing while he’s in office—a sure win before Ettinger. After that—let some other assistant AG try to deal with the appeals and nasty aftereffects.”
Kane’s reaction devolves into a peevish frown. “What about the AG?” he says. “I asked you to call him.”
“I know. And I agreed. Then I thought more about it and realized how he’d take the suggestion. He expects his assistant AGs to make that kind of decision. Asking him to do it first would just annoy him.”
“And asking him after Stapleton turns this down?”
“I think you know the answer, Judge.”
Kane rises with displeasure. Begins his ritual pacing. After some moments of scuffing the carpet, he turns and says, “What about getting Stapleton fired?”
“Great,” Alec says. “Can you do it?”
“Hmm,” says the jurist. “Probably not.”
“Can you get him promoted?” Alec asks. “Say, to deputy AG. There’s an opening.”
“Really?” Kane seems to like that idea. “You know I might. Might actually be able to do that. You have a candidate for the Antitrust Division?”
“I do, as it happens. But isn’t that a bit over the line, my proposing him?”
“What line?” says the judge in a tone scoffing at the notion that any line should stand in the way of something he wanted.
“My firm’s got two huge cases pending there, Judge.”
“So you do. Very respectable, Alec.” Judge Kane issues a barking laugh at what he evidently considers an overly nice, and punctilious, sentiment. “So what are we looking for?”
“Smart. Gutsy. An original thinker.”
“Well,” says Kane expansively, “those criteria should certainly narrow the field.”
“Probably too big a hint on my part.”
“No doubt,” says the judge. “I can’t identify such a person offhand, but with that lead, I’m sure to find him soon enough.”
“You might want someone with both trial experience and academic credentials.”
“Now,” says Kane with another laugh, “you’re probably pointing right at him!”
“Not at all,” Alec says. “There are at least six or seven people I can think of who fit that profile.”
“And are original thinkers?”
“Well, that, I agree—that’s more difficult to find. Can be done only by someone having the same characteristic.”
“Leaves me out, you’re saying,” Kane says with a smile.
“On the contrary, Judge. Means you’re about the only one who can do it.”
Kane gives a guffaw. “How the hell do you get away with that stuff, such blatant flattery?”
“It’s just knowing your audience, Judge. Like anything else.”
Harvey Grand sits waiting in Alec’s office. He has carte blanche to use it. Anything there still confidential has probably been supplied by Harvey himself.
Always good to see Harvey, Alec thinks, though his visit without notice likely means trouble.
“So, what’s
up?” Alec says, bracing.
“We’ve seen some of Sal’s men near the school.” Harvey beckons Alec into the facing chair. “That’s the bad news.”
“What’s the good?” says Alec.
“They’re biding their time,” Harvey says. “They know we’re watching them. The chances they’ll try to snatch are a bit less when they know we’re there.”
“Is it time to call in the cops?”
“What’re the odds you can do that without Sal finding out almost immediately?”
“Very low,” Alec admits.
“And how long will the cops stay on it if Sal’s people don’t appear?”
“Couple of days.” It’s a rueful comment.
“So we’d gain a little time,” Harvey says, “which in this case means little, and we’d maybe lose some credibility.”
“Can you add people?” Alec asks.
“Sure,” Harvey says. “But when Sal’s ready to move—if that’s his plan—they can outnumber us very easily.”
“I ought to get Sarah out of this country.”
Harvey breathes deeply with glumness and fatigue. “Where?”
“You’re saying, Sal can find her wherever.”
“And when he does,” Harvey points out, “it’ll be easier for him to grab her.”
“So what’re you suggesting we do?”
“What we are doing, Alec. I just wanted you to know how it is.”
Alec arrives home, carrying, as usual, a full attaché case. It’s battered and old and nearly dilapidated, which is pretty much how he feels.
“Tell me about your day,” Jesse says from the kitchen. She looks to him settled in now, standing there in her jeans and T-shirt, perfectly right where she is. Balancing his life. Filling it, despite everything, with an undercurrent of joy.
“My day,” he repeats in the doorway while dropping his bag. “Well….” And then he abruptly tells her about Harvey’s report.
A plate goes smash on the counter, fallen from her hand. She doesn’t move. “So it’s started,” she says. “How do we deal with this?”
He spells out the depressing alternatives. But then adds, “Sal knows we know. He may go away.”