I laughed at the memory. “How old was she?”
“Nineteen. Showed up at court with a wad of chewing gum in her mouth, a skirt slit up to her pupick, four-inch fuck-me pumps, a skintight turtleneck, and no bra.”
“You loved it.”
“Me? You should have seen Judge Diener. When she sashayed up to the witness stand, I thought that horny bastard’s eyeballs were going to pop out of his head on springs.”
“It worked, didn’t it? He gave her the divorce.”
“The divorce? Hell, by the time she was done he would have given her his pension. The guy had a major husky under his robe.”
I smiled at the memory. “What a great case.”
“But,” said Benny, jabbing his finger at me for emphasis, “none of that showed up on my time sheets. All I wrote down was ’Bryce Carville—personal matter.’ Assuming consulting firms are the same as law firms, there’s your reason for no description of what he did on Hiram Sullivan’s personal matter.”
“But there’s one difference,” I said. “When you handled that divorce, you had a file. There were divorce papers in there, correspondence, research memos.” I gestured toward Benny’s laptop computer, which was near me on the table. “Bruce’s computer files are on those four disks. I’ve looked through them all. There’s nothing on any personal matter for Sullivan in there.”
Benny shrugged. “So maybe what he did for Sullivan didn’t require a computer. Or maybe he didn’t save the files. According to his time sheets, he worked on the project off and on over a three-day period about three weeks before he died, right? Presumably, he started and finished the project during those three days. So even if he did use the computer, maybe he just deleted the files when he was done.”
“Or maybe someone else did.” I pulled his computer to me and turned it on. “I spent two hours going through these files at work this afternoon,” I said. “Bruce Rosenthal was an organization and classification fiend.” I gestured toward the screen. “He’s got directories and subdirectories and sub-subdirectories and sub-sub-subdirectories. Every file and every document is neatly arranged. This disk,” I said, holding up the one Karen had marked DISK 2, “has the directory and all the subdirectories for the SLP deal. Presumably, it should have everything he did on the deal.” I inserted the disk, typed DIR, pushed the ENTER key and looked over at Benny. “But I don’t think it does.”
“Really?” He came over to my side of the table. “What makes you say that?”
“A couple things. First of all, let me show you how this is organized.” I pointed to the screen, which showed one directory:
CHEMITEX
To the right of CHEMITEX was the date (2/16) and the time (8:45 am) that the directory was created.
“Now look at the subdirectories within the SLP directory.”
I typed the instruction again and pushed ENTER. That gave us access to all the Chemitex files. Now the screen showed the following:
FINANCIAL
IND-PENDING
NDA-PENDING
R&D-LAB
“Okay,” he said uncertainly.
I said, “The first one—FINANCIAL—has his due diligence on the Chemitex financial records. Look.” I typed the List Files instruction for the FINANCIAL subdirectory and pushed ENTER. The screen filled with three rows of sub-subdirectories, all clearly having to do with the books and records of Chemitex Bioproducts—depreciation, state taxes, federal taxes, cash flow, receivables, payables, assets, etc.
I returned to the prior screen:
FINANCIAL
IND-PENDING
NDA-PENDING
R&D-LAB
“What’s this one?” Benny asked, pointing to the IND-PENDING directory.
“That’s for all the pending IND applications.”
“Great,” he said sarcastically. “What the hell are IND applications?”
“IND stands for Investigational New Drug. When a pharmaceutical company has finished all of its preliminary testing on animals and wants to move to the next stage of the approval process, which is testing the drug on humans, it files an IND application with the FDA. So this,” I said, pointing to the IND-PENDING director, “is for all of Chemitex Bioproducts’ pending IND applications.” I looked over my shoulder at Benny and winked. “I’ve been doing my homework.”
“What a total babe you are.”
I entered the IND-PENDING directory. “See?” I said. “There are five IND applications in that directory. Those are the ones he reviewed.” I returned to the prior screen.
“What are those directories?” he asked.
I explained what an NDA was and showed him that the NDA directory included the two pending new drug applications that Bruce had reviewed. I returned to the main screen. “This,” I said, pointing to the R&D directory, “is presumably for all of the research and development files.” I typed instructions to reveal the contents. “But look.” I pushed ENTER.
We were staring at a blank screen.
“Empty?” Benny asked.
“Completely.”
Benny scratched his chin. “Maybe he never got around to this part of the due diligence.”
“Wrong. I have his time sheets. Bruce actually spent most of his time on the R and D stuff.”
“Maybe he didn’t use the computer for that part.”
“I doubt that. His secretary said he took his computer with him everywhere.” I took the photocopies of Bruce’s time sheets off the chair next to me and handed them to Bruce. “Look how the dates on his time sheets match up with the dates on these files. According to the computer, what’s the date he created the directory for the financial records of Chemitex?”
Benny squinted at the screen. “February sixteenth.”
“Now look at his time sheets. What’s the entry for February sixteenth?”
Benny read from the time sheet for that date: “Chemitex Acquisition—Commence examination of financial books and records—eleven hours.”
I had him page slowly through the time sheets so that he could see the correlation between certain key dates in the computer records and dates in the time sheets. For example, the time sheets showed that on February 22 Bruce stopped reviewing financial records and started reviewing pending INDs. That was the same date he created the IND directory in the computer. So, too, the date he stopped reviewing INDs and started reviewing NDAs was the date he created the NDA directory.
“Okay,” Benny said, “but what’s the point?”
“Here’s the point. According to his time sheets, what did he do on March fourth?”
Benny read the entry. “It says he started examining the Research and Development files.”
I pointed at the screen. “And that’s the date he created the R and D directory, right?”
Benny looked at the screen and then back at the time sheets. He started flipping through the time sheets, nodding his head. “That’s all he did for the remaining weeks—examine R and D files.”
“Exactly. That’s the point. Bruce spent more time on the R and D files than on any other phase of his due diligence, but look—” I pressed the key to display the contents of the R&D directory. The screen showed no contents. “See,” I said, pointing. “There isn’t one file in that directory.”
Benny squinted at the screen again, and then down at the time sheets.
“Jesus,” he finally grumbled as he placed the time sheets back on the table. “Someone erased the files?”
I nodded. “Definitely.”
Benny gave me a puzzled look. “Who?”
“There are only two possibilities: either the person who killed him that night or someone at Smilow and Sullivan.”
Benny walked over to the refrigerator and took out two more bottles of Dixie beer. He handed me one and sat down at the table across from me. He unscrewed the cap, took a bi
g gulp of beer, and frowned at me. “Why?” he said.
I shook my head. “Don’t know enough, yet.”
“Where else can you look?” he asked.
“The documents Bruce copied from the Chemitex R and D files are the best bet.”
“Where are they?”
“All the documents Bruce had copied were sent to Chicago. For all I know, they’re over in France by now.”
“What else?”
“I don’t know. His computer files were deleted. His apartment was searched.” I sighed in frustration. “Even if Chemitex would let me look at their original files, which I’m sure they won’t, I wouldn’t even know where to begin. If Bruce spent six weeks looking through those files, there must be tons of records down there.”
“You’re right,” Benny said grimly. “You don’t know enough to make sense out of the files. Even if you got lucky enough to stumble across a key document, you’d probably not realize it. And you’re right about them not letting you look through those records. They must be filled with trade secrets.”
“It’s maddening,” I said. “Bruce was clearly upset about something, yet everything that could tell us what that was is gone, except for the list he gave to David.”
“You showed that list to his secretary?” Benny asked.
I nodded.
“She didn’t recognize it?”
I shook my head. “No. I was hoping that maybe she typed it.” I stopped. “Typed it,” I repeated. I smiled at Benny. “Yeah.”
“What?”
“Her computer, Benny.”
“Huh?”
“There might be R and D records in her computer. She said that sometimes she typed tapes that he dictated. The stuff she typed for him might still be in her computer.”
I found Karen Harmon’s number in the telephone book. Fortunately, she was home. I explained what I was looking for and the missing computer files.
“I definitely typed tapes for him on the SLP deal,” she said.
“He spent the last six weeks going through the R and D files,” I said. “Those are also the only due diligence materials that were erased from his computer. Did you type any tapes during those last six weeks?”
She paused for a moment. “I’m pretty sure I did.”
“Would those documents still be in your computer?”
“Oh, rats,” she said, “I don’t think so, Rachel. I’d type it, he’d edit it, and then I’d retype it in final form and copy it onto a computer disk for him. The whole process would take a few days, especially when he was out of the office. After that, though, I didn’t see much reason to keep the document in my computer. Every couple weeks, I’d go through my computer files and delete whatever I didn’t need. I’m pretty sure I deleted all those documents.”
“Darn,” I said, disappointed.
“But wait,” she said. “I bet I could still find them, or at least some of them.”
“Where?”
“At the end of each day we have to make a backup copy of our computer files. We do what they call an on-site backup during the week, but every Friday we have to do a full off-site backup.”
“What’s that mean?”
“Each secretary copies all of her computer files onto specially labeled disks. The firm collects them and stores them somewhere off the premises just in case a fire or other disaster destroys our original computer records. Rachel, I bet some of the documents I typed from Bruce’s dictation tapes are still on one of those backup disks.”
“How do you get them back?”
“I’ll just ask. The gal in charge of our computer systems is the one who takes care of the off-site storage. I’ll have her get me my old backup disks tomorrow. I’ll give you a holler if there’s anything on them.”
“That’s great, Karen.” I paused. “You need to be careful, though.”
“Why?”
“Just like I said before. Hiram Sullivan doesn’t like me poking around. You could get in a lot of trouble if he found out you were helping me.”
“I’m not afraid.”
“You need to be cautious, Karen. When you ask for those backup disks, be sure you have a plausible explanation for why you need them.”
“I’ll pretend that I accidentally deleted one of the documents. It’s happened before.”
“Good. Keep me posted.”
“Well?” Benny said after I hung up. He was in the process of cracking open his fortune cookie.
I shrugged. “We might still get lucky.”
Benny read his fortune. “Ahhh,” he said with a smile. “Talk about luck.”
“What’s it say?”
In a silly Chinese accent he read aloud, “Soon you will savor pleasures of heavily sedated JAL stewardess in Hong Kong basket.”
I broke open my fortune cookie and pulled out the fortune. “Ahhh. ‘Soon obnoxious friend will receive full frontal lobotomy he so urgently requires.’”
Chapter Nine
Karen called the following morning with news that she had been able to retrieve two documents from Bruce’s R&D directory: one created two weeks before his death, the other about a week before his death. She had printed them both for me. I worked out the pickup arrangements and then called down to the clerk’s office at the U.S. District Court to leave a message for Jacki, who was on her way there to file a brief for me. Jacki called ten minutes later, and I told her to drop by Smilow & Sullivan for a package that would be waiting out at the front desk with her name on it.
As I waited for Jacki’s return, I pulled out the folder of materials she had copied for me last night at the St. Louis University Law School library after her evening class. I had asked her to find me some information on Phrenom, the drug Bob Ginsburg had described as the crown jewel of Chemitex Bioproducts. Jacki had copied the relevant pages from the Physicians’ Desk Reference. I skimmed through the listings for Phrenom Injection, Phrenom Capsules, and Phrenom Tablets, all three of which were also identified by their generic name: Phenylpyrrole Sodium. According to the heading entitled “Indications and Usage,” the drug was to be used for “the relief of symptoms associated with the following conditions, but only after other therapeutic measures have been tried and found unsatisfactory: active rheumatoid arthritis, active juvenile rheumatoid arthritis, active osteoarthritis, and acute attacks of degenerative joint diseases of the hips and knees.”
I had also asked Jacki to find me some biographical materials on Douglas Armstrong’s days as head of what had then been known as Armstrong Bioproducts. She had photocopied seven pages from a New Yorker profile than ran several months ago. I settled back to read it. Most of the story was already familiar to me—and no doubt to thousands, or even millions, of others. Indeed, Jacki’s cover note to me stated that Armstrong had also been profiled in recent issues of Vanity Fair, People, and the New York Times Sunday Magazine. Obviously, the senator’s spin doctors and PR flacks had been hard at work getting their candidate ready for the big announcement.
According to the article, Douglas Armstrong was a thirty-three-year-old physician when he founded Armstrong Bioproducts in 1970. During the early 1960s, young Dr. Armstrong had spent three years in the Peace Corps stationed in Costa Rica. He worked in a clinic in the poor section of San Jose and his wife Edie taught mathematics in a village school outside of town. He had long been intrigued by botanical drugs, and on many weekends he traveled into the rain forests with Indian guides to gather samples of the plants that formed the basis of many of the folk cures of the country.
One folk medicine that had particularly fascinated him was the tuber of the peloto plant, which grew only in the Monteverde Cloud Forest. Although the tubers had an extremely bitter carrot flavor that made them nearly inedible, they were nevertheless eaten raw by the women in the tribe. As Armstrong observed, all of the women shared one thing in common: a total absence of any symp
toms of rheumatoid arthritis, a painful and crippling form of arthritis that afflicts millions of women every year, most of whom develop it between the ages of thirty and fifty.
His fascination with native pharmacology remained strong after he returned to the United States. In 1970, he mortgaged everything he owned to start Armstrong Bioproducts. His goal was to replicate and manufacture in the laboratory the more promising botanical drugs he had observed in the rain forests of Costa Rica. He was convinced that somewhere within the bitter tubers of the peloto plant was the active ingredient of a powerful arthritis medicine that could bring relief to millions of people, if only he could figure out how to isolate it and produce it in large quantities in a laboratory.
The early years at Armstrong Bioproducts were lean ones. Twice creditors of the company tried to force it into bankruptcy, and both times the company fought them off with the brilliant legal maneuverings of Armstrong’s attorney, Sherman Ross. Operating on a shoestring budget, Armstrong and his small staff of researchers worked on isolating the active ingredient in the peloto tubers. In 1977, the company received FDA approval for Phrenom Injection—the drug that transformed the fortunes of Armstrong and his company almost overnight. He took the company public in 1979 and, in the six hours it took for the initial public offering to sell out, he went from a net worth of $57.25 to a net worth of $12 million.
Eighteen months later, his wife of twenty-one years died of ovarian cancer. Their marriage had been an extraordinarily close one, the intimacy actually enhanced by Edie’s inability to have children. Her death threw him into a depression that lasted nearly a year. “I lost my bearings when I lost Edie,” Armstrong told the reporter for the New Yorker. When he regained them, he announced his candidacy for the U.S. Senate, sold all of his holdings in Armstrong Bioproducts, crisscrossed the state of Missouri in a marathon campaign, and won his very first election by an astonishing fifty-eight percent of the vote.
The article made a passing reference to Sammy Heller’s hostile takeover of Armstrong Bioproducts several years later. According to the reporter, Douglas Armstrong was no longer a shareholder of the company at the time. As I was making a note to do some further checking on Sammy Heller, the outer door opened and Jacki came in, grousing under her breath. I heard her fumbling around in the other room.
Due Diligence Page 9
