The King of Torts

The King of Torts Page 20

Bad news continued to follow the miracle drug Dyloft. Two more medical studies were published, one of which argued convincingly that Ackerman Labs cut corners on its research and pulled every string it had to get the drug approved. The FDA finally ordered Dyloft off the market.

The bad news was, of course, wonderful news to the lawyers, and the frenzy heated up as more and more latecomers piled on. Patients taking Dyloft received written warnings from Ackerman Labs and from their own doctors, and these dire messages were almost always followed by ominous solicitations from mass tort lawyers. Direct mail was extremely effective. Newspaper ads were used in every big market. And hot lines were all over the television. The threat of tumors growing wild prompted virtually all Dyloft users to contact a lawyer.

Patton French had never seen a mass tort class come together so beautifully. Because he and Clay won the race to the courthouse in Biloxi, their class had been certified first. All other Dyloft plaintiffs wanting in on a class action would be forced to join theirs, with the Plaintiffs' Steering Committee raking off an additional fee. French's friendly judge had already appointed the five-lawyer committee - French, Clay, Carlos Hernandez from Miami, and two other cronies from New Orleans. In theory, the committee would handle the large and complicated trial against Ackerman Labs. In reality, the five would shuffle paperwork and cover the administrative chore of keeping fifty thousand or so clients and their lawyers somewhat organized.

A Dyloft plaintiff could always "opt out" of the class, and take on Ackerman Labs alone in a separate trial. As lawyers around the country collected the cases and put together their coalitions, the inevitable conflicts arose. Some disapproved of the Biloxi class and wanted their own. Some despised Patton French. Some wanted a trial in their jurisdictions, with the chance of a huge verdict.

But French had been through the battles many times before. He lived on his Gulfstream, jetting from coast to coast, meeting the mass tort lawyers who were collecting cases by the hundreds, and somehow holding the fragile coalition together. The settlement would be bigger in Biloxi, he promised.

He talked every day to the in-house counsel at Ackerman Labs, an embattled old warrior who had tried to retire twice but the CEO wouldn't allow it. French's message was clear and simple - let's talk settlement now, without your outside lawyers, because you know you're not going to trial with this drug. Ackerman was beginning to listen.

In mid-August, French convened a summit of the Dyloft lawyers at his sprawling ranch near Ketchum, Idaho. He explained to Clay that his attendance was mandatory, as a member of the Plaintiffs' Steering Committee, and, just as important, the rest of the boys were quite anxious to meet the young upstart who broke the Dyloft case. "Plus, with these guys you can't miss a single meeting, else they'll stab you in the back."

"I'll be there," Clay said.

"I'll send a jet," French offered.

"No thanks. I'll get there."

Clay chartered a Lear 35, a handsome little jet about one-third the size of a Gulfstream 5, but since he was traveling alone it was quite adequate. He met the pilots in the private terminal at Reagan National, where he mixed and mingled with the other hotshots, all older than he, and tried desperately to act as if there was nothing special about hopping on board his own jet. Sure it was owned by a charter company, but for the next three days it was his.

Lifting off to the north, he stared down at the Potomac, then the Lincoln Memorial, and, quickly, all the landmarks of downtown. There was his office building, and in the distance, not too far away, was the Office of the Public Defender. What would Glenda and Jermaine and those he'd left behind think if they saw him now?

What would Rebecca think?

If she'd just held on for another month.

He'd had so little time to think about her.

Into the clouds and the view was gone. Washington was soon miles behind. Clay Carter was off to a secret meeting of some of the richest lawyers in America, the mass tort specialists, those who had the brains and brawn to go after the most powerful corporations.

And they wanted to meet him!

His jet was the smallest one at the Ketchum-Sun Valley airport at Friedman, Idaho. As he taxied by Gulfstreams and Challengers he had the ridiculous thought that his jet was inadequate, that he needed a bigger one. Then he laughed at himself - there he was in the leather-lined cabin of a $3 million Lear, and he was debating whether he should get something bigger. At least he could still laugh. What would he be when the laughing stopped?

They parked next to a familiar plane, one with the tail number 000MT. Zero, Zero, Zero, Mass Tort, the home away from home of Patton French himself. It dwarfed Clay's ride, and for a second he looked up in envy at the finest luxury jet in the world.

A van was waiting, with what appeared to be an imitation cowboy behind the wheel. Fortunately, the driver was not much of a talker, and Clay enjoyed the forty-five-minute ride in silence. They twisted upward on roads that became narrower. Not surprisingly, Patton's spread was postcard perfect and very new. The house was a lodge with enough wings and levels to host a good-sized law firm. Another cowboy took Clay's bag. "Mr. French is waiting on the deck out back," he said, as if Clay had been there many times.

Switzerland was the topic when Clay found them - which secluded ski resort they preferred. He listened for a second as he approached. The other four members of the Plaintiffs' Steering Committee were lounging in chairs, facing the mountains, smoking dark cigars and working on drinks. When they realized Clay was present, they hopped to attention as if the judge had entered the courtroom. In the first three minutes of excited conversation, he was called "brilliant,"

"shrewd,"

"gutsy," and, his favorite, "a visionary."

"You gotta tell us how you found Dyloft," Carlos Hernandez said.

"He won't tell," French said as he mixed some vile concoction for Clay to drink.

"Come on," said Wes Saulsberry, Clay's newest friend. Within just a few minutes, Clay would learn that Wes had made about half a billion on the tobacco settlement three years earlier.

"I'm sworn to silence," Clay said.

The other lawyer from New Orleans was Damon Didier, one of the speakers at a session Clay had attended during his Circle of Barristers weekend. Didier was stone-faced and steely-eyed and Clay remembered wondering how this guy could ever connect with a jury. Didier, he found out soon enough, had made a mint when a river-boat packed with fraternity boys sunk into Lake Pontchartrain. Such misery.

They needed patches and medals, like war heroes.

This one here they gave me for that tanker explosion that killed twenty. I got this one for those boys who got burned on the off-shore drilling rig. This big one here was for the Skinny Ben campaign. This, the war against Big Tobacco. This, the battle against HMOs.

Since Clay had no war stories, he just listened. Tarvan would blow them away, but he could never tell it.

A butler in a Roy Rogers-style shirt informed Mr. French that dinner would be served in an hour. They moved downstairs to a game room with pool tables and big screens. A dozen or so white men were drinking and talking and some were holding pool cues. "The rest of the conspiracy," Hernandez whispered to Clay.

Patton introduced him to the group. The names, faces, and hometowns quickly blurred. Seattle, Houston, Topeka, Boston, and others he didn't catch. And Effingham, Illinois. They all paid homage to this "brilliant" young litigator who'd shocked them with his daring assault on Dyloft.

"I saw the ad the first night it was on," said Bernie somebody from Boston. "Never heard of Dyloft. So I call your hot line, get a nice guy on the other end. I tell him I've been taking the drug, feed him the line, you know. I go to the Web site. It was brilliant. I said to myself, 'I've been ambushed.' Three days later I'm on the air with my own damned Dyloft hot line."

They all laughed, probably because they could each tell similar stories. It had never occurred to Clay that other lawyers would call his hot line and use his Web site in order to steer away cases. But why did this surprise him?

When the admiration was finally over, French said there were a few things to discuss before dinner, which, by the way, would include a fabulous selection of Australian wines. Clay was already dizzy from the fine Cuban cigar and the first double vodka bomb. He was by far the youngest lawyer there, and he felt like a rookie in every way. Especially when it came to drinking. He was in the presence of some professionals.

Youngest lawyer. Smallest jet. No war tales. Weakest liver. Clay decided it was time to grow up.

They crowded around French, who lived for moments like this. He began, "As you know, I've spent a lot of time with Wicks, the in-house guy at Ackerman Labs. Bottom line is they're going to settle, and do it quickly. They're getting hit from every direction, and they want this to go away as soon as possible. Their stock is so low now they're afraid of a takeover. The vultures, including us, are moving in for the kill. If they know how much Dyloft will cost them, then they can restructure some debt and maybe hang on. What they don't want is protracted litigation on many fronts, with verdicts landing everywhere. Neither do they want to fork over tens of millions for defense."

"Poor guys," someone said.

"Business Week mentioned bankruptcy," someone else said. "Have they used that threat?"

"Not yet. And I don't expect them to. Ackerman has far too many assets. We've just completed the financial analysis - we'll crunch the numbers in the morning - and our boys think that the company has between two and three billion to settle Dyloft."

"How much insurance coverage is on the table?"

"Only three hundred million. The company has had its cosmetics division on the market for a year. They want a billion. The real value is about three -fourths of that. They could unload it for half a billion and have enough cash to satisfy our clients."

Clay had noticed that the clients were rarely mentioned.

The vultures squeezed around French, who continued: "We need to determine two things. First, how many potential plaintiffs are out there. Second, the value of each case."

"Let's add 'em up," drawled someone from Texas. "I got a thousand."

"I have eighteen hundred," French said. "Carlos."

"Two thousand," Hernandez said as he began taking notes.

"Wes?"

"Nine hundred."

The lawyer from Topeka had six hundred, the lowest. Two thousand was the highest until French saved the best for last. "Clay?" he said, and everyone listened intently.

"Thirty-two hundred," Clay said, managing a grim poker face. His newly found brethren, however, were quite pleased. Or at least they appeared to be.

"Attaboy," someone said.

Clay suspected that just under their toothy smiles and "Attaboys!" were some very envious people.

"That's twenty-four thousand," Carlos said, doing the quick math.

"We can safely double that, which gets close to fifty, the number Ackerman has pegged. Fifty thousand into two billion is forty thousand bucks per case. Not a bad starting place."

Clay did some quick math of his own - $40,000 times his 3,200 cases came to something over $120 million. And one third of that, well, his brain froze and his knees went weak.

"Does the company know how many of these cases involve malignant tumors?" asked Bernie from Boston.

"No, they don't. Their best guess is about one percent."

"That's five hundred cases."

"At a minimum of a million bucks each."

"That's another half billion."

"A million bucks is a joke."

"Five million a pop in Seattle."

"We're talking wrongful death, here."

Not surprisingly, each lawyer had an opinion to offer and they did so simultaneously. When French restored order, he said, "Gentlemen, let's eat."

Dinner was a fiasco. The dining room table was a slab of polished wood that came from one tree, one grand and majestic red maple that had stood for centuries until it was needed by wealthy America. At least forty people could eat around it at one time. There were eighteen for dinner, and wisely they had been spread out. Otherwise, someone might have thrown a punch.

In a room full of flamboyant egos, where everyone was the greatest lawyer God created, the most obnoxious windbag was Victor K. Brennan, a loud and twangy Texan from Houston. On the third or fourth wine, about halfway through the thick steaks, Brennan began complaining about such low expectations for each individual case. He had a forty-year-old client who made big bucks and now had malignant tumors, thanks to Dyloft. "I can get ten million actual and twenty million punitive from any jury in Texas," he boasted. Most of the others agreed with this. Some even one-upped by claiming that they could get more on their home turf. French held firm with the theory that if a few got millions then the masses would get little. Brennan didn't buy this but had trouble countering the argument. He had a vague notion that Ackerman Labs had much more cash than it was showing.

The group divided on this point, but the lines shifted so fast and the loyalties were so temporary that Clay had trouble determining where most of them stood. French challenged Brennan on his claim that punitive damages would be so easy to prove. "You got the documents, right?" Brennan asked.

"Clay has provided some documents. Ackerman doesn't know it yet. You boys have not seen them. And maybe you won't if you don't stay in the class."

The knives and forks stopped as all seventeen (Clay excluded) started yelling at once. The waiters left the room. Clay could almost see them back in the kitchen, hunkering low behind the prep tables. Brennan wanted to fight someone. Wes Saulsberry wasn't backing down. The language deteriorated. And in the midst of the ruckus, Clay looked at the end of the table and saw Patton French sniff a wineglass, take a sip, close his eyes, and evaluate yet another new wine.

How many of these fights had French sat through? Probably a hundred. Clay cut a bite of steak.

When things settled down, Bernie from Boston told a joke about a Catholic priest and the room erupted in laughter. Food and wine were enjoyed for about five minutes until Albert from Topeka suggested the strategy of forcing Ackerman Labs into bankruptcy. He had done it twice, to other companies, with satisfactory results. Both times the target companies had used the bankruptcy laws to screw their banks and other creditors, thus providing more cash for Albert and his thousands of clients. Those opposed voiced their concerns, to which Albert took offense, and soon there was another fight.

They fought over everything - documents again, whether or not to press for a trial while ignoring a quick settlement, turf, false advertising, how to round up the other cases, expenses, fees. Clay's stomach was in knots and he never said a word. The rest seemed to enjoy their food immensely while carrying on two or three arguments simultaneously.

Experience, Clay told himself.

After the longest dinner of Clay's life, French led them downstairs, back to the billiards room where the cognac and more cigars were waiting. Those who had been swearing at each other for three hours were now drinking and laughing like fraternity brothers. At the first opportunity, Clay sneaked away and, after considerable effort, found his room.

The Barry and Harry Show was scheduled for 10 A.M. Saturday morning, time for everyone to sleep off the hangovers and choke down a heavy breakfast. French had made available trout fishing and skeet shooting, neither of which drew a single lawyer.

Barry and Harry had a company in New York that did nothing but analyze the finances of target companies. They had sources and contacts and spies and a reputation for peeling back the skin and finding the real truth. French had flown them in for a one-hour presentation. "Costs us two hundred grand," he whispered proudly to Clay, "and we'll make Ackerman Labs reimburse us. Imagine that."

Their routine was a tag team, Barry doing the graphics, Harry with the pointer, two professors at the lectern. Both stood at the front of the small theater, one level below the billiards room. The lawyers, for once, were silent.

Ackerman Labs had insurance coverage of at least $500 million - $300 million from their liability carrier, and another $200 million from a reinsurer. The cash-flow analysis was dense and took both Harry and Barry talking at once to complete. Numbers and percentages spewed forth and soon drowned everyone else in the room.

They talked about Ackerman's cosmetics division, which might fetch $600 million at a fire sale. There was a plastics division in Mexico that the company wanted to unload for $200 million. The company's debt structure took fifteen minutes to explain.

Barry and Harry were also lawyers, and so were quite adept at assessing a company's likely response to a mass tort disaster like Dyloft. It would be wise for Ackerman to settle quickly, in stages. "A pancake settlement," Harry said.

Clay was certain that he was the only person in the room who had no idea what a pancake settlement was.

"Stage one would be two billion for all level-one plaintiffs," Harry continued, mercifully laying out the elements of such a plan.

"We think they might do this within ninety days," Barry added.

"Stage two would be half a billion for level-two plaintiffs, those with malignancy who don't die."

"And stage three would be left open for five years to cover the death cases."

"We think Ackerman can pay around two-point-five to three billion over the next year, then another half-billion over five years."

"Anything beyond that, and you could be looking at a chapter eleven."

"Which is not advisable for this company. Too many banks have too many priority liens."

"And a bankruptcy would seriously choke off the flow of money. It would take from three to five years to get a decent settlement."

Of course the lawyers wanted to argue for a while. Vincent from Pittsburgh was especially determined to impress the rest with his financial acumen, but Harry and Barry soon put him back in his place. After an hour, they left to go fishing.

French took their place at the front of the room. All arguments had been completed. The fighting had stopped. It was time to agree on a plan.

Step one was to round up the other cases. Every man for himself. No holds barred. Since they accounted for half of the total, there were still plenty of Dyloft plaintiffs out there. Let's find them. Search out the small-time lawyers with only twenty or thirty cases, bring them into the fold. Do whatever it takes to get the cases.

Step two would be a settlement conference with Ackerman Labs in sixty days. The Plaintiffs' Steering Committee would schedule it and send notices.

Step three would be an all-out effort to keep everyone in the class. Strength in numbers. Those who "opted out" of the class and wanted to have their own trial would not have access to the deadly documents. It was as simple as that. Hardball, but it was litigation.

Every lawyer in the room objected to some part of the plan, but the alliance held. Dyloft looked as if it would be the quickest settlement in mass tort history, and the lawyers were smelling the money.