Due Diligence

by Michael A. Kahn

  Brauner was, in short, a thoroughly creepy person. Because I had been in Abbott & Windsor’s litigation department back then, I never had to work for him. Although I had my own lieutenants to serve, I was always grateful to be outside Barry Brauner’s sphere of influence.

  No longer, I thought glumly as I sat in Brauner’s office, waiting for him to finish the third leisurely telephone call he had taken, in true lieutenant form, during our meeting. The firm of Scott, Dillard & Marks occupied several floors near the top of the Sears Tower, and Barry had an east exposure with a dramatic view of the Loop and Lake Michigan. The only personal touch in an otherwise austere office was a framed photograph of his somber wife and two children. The photographer had shot them in a serious pose, staring off to the left, as if watching Barry leave the studio to return to the firm.

  Barry Brauner was grayer and balder than during my Abbott & Windsor days, but otherwise looked the same. Although Benny usually referred to him as “that sawed-off piece of shit,” I had forgotten how short Barry really was. I was five feet seven, and he was several inches shorter than me. Although he compensated in subtle ways (his desk chair seemed a little higher than normal, and mine felt a tad lower than usual), he wasn’t one of those swaggering bantam roosters or pint-sized popinjays one so often encounters in the courtroom. Indeed, I couldn’t recall him ever raising his voice. Early on in his career, Barry Brauner had perfected the ability to smile while projecting an aura of menace from beneath his hooded eyes. The talent had served him well.

  He ended the telephone conversation and shifted his gaze toward me. “The documents are now in France,” he said quietly.

  “Come on, Barry,” I said with a trace of irritation, “we were both weaned at Abbott and Windsor. They taught us never to work without a net. I assume you made a complete copy of all the documents before you shipped them to France. All I’m asking is to let me look through the documents that relate to the research and development files.”

  “Now, Rachel,” he said calmly, “you know I can’t do that. These documents are extraordinarily confidential. Your Mr. Rosenthal had to sign a strict nondisclosure agreement before he was allowed to look at any of them,”

  “I’ll be happy to sign one.”

  He sighed and shook his head. “I couldn’t even think of raising the subject with my client.”

  “Why not?” I persisted. “What if those documents hold the key to Bruce Rosenthal’s death? After all, he was working for your client at the time. Wouldn’t your client want to help bring his killers to justice?”

  “Now, Rachel,” he said with a patronizing chortle, “since when did you become Nancy Drew? As for the documents, the idea that they might contain a clue to Mr. Rosenthal’s death is pure speculation. I could never advise a client to let you rifle through highly confidential materials on so tenuous a link. Moreover, my client has very little discretion in this matter. Indeed, Société Lyons Pharmaceutique isn’t actually the real party in interest, yet. Don’t forget, the deal won’t be consummated for at least another month. Until then, the documents are the property of Chemitex Bioproducts, and thus they are the ones with the final say on the subject.” He shrugged. “You see? My hands are tied. Obviously, you are free to try to persuade Chemitex Bioproducts of the merits of your position.”

  I had only one trump card left, and now was the time to play it. “I know,” I started in a slow, even voice, “and you know I know, that somewhere in this firm is a complete set of the documents Bruce Rosenthal selected. I’m here, and your client is across the Atlantic Ocean in France. What I see today they’ll never have to know about.”

  “Good heavens, Rachel, you—”

  “Shut up, Barry. It can be done quietly and with discretion, or I can make it noisy and disruptive. That’s your choice. You stonewall me today and I will personally write a letter to Mr. Pierre Fourtou, the chairman of your client. I’ll tell him what I know and why I believe that there could be information in those due diligence files that relates to the death of one of his U.S. consultants. I’ll send copies of that letter to the chairman of the FDA, to the science editors of the New York Times and the Washington Post, and”—I paused for full effect—“to your boss, Amory Brewster.” I leaned back in my chair and crossed my arms.

  He was deadpan up until the last name, which triggered a tic on the right side of his mouth. To a true lieutenant like Brown Nose Brauner, an irritated BSD was a far more intimidating prospect than a team of investigative reporters and a suspicious regulatory agency.

  We stared at each other for a long time, and then he turned toward the window overlooking the Loop. He gazed out the window as he rubbed his chin. I waited. Eventually, he turned toward me. “I can’t let you see the documents,” he said.

  “That’s just great,” I said in disgust as I stood up.

  “Wait a moment, Rachel. I have a proposition.”

  I looked down at him. “What?”

  “Please, sit down.”

  I remained standing. “Just tell me.”

  He leaned back in his chair. “I can’t let you see the documents. It would violate our agreement with the client and, just as important, our agreement with Chemitex Bioproducts. If Chemitex discovered that breach, they could call off the deal and sue my client, this law firm, and me. Nevertheless, I am willing to push the limits of the express language of that agreement. Although I can’t let you see the documents themselves, I can have the documents searched for you. Our paralegals have prepared a comprehensive computerized index. You tell me what you’re looking for, and I can have the answer to you within hours.”

  “I’m not completely sure what I’m looking for.”

  “That’s okay,” he said with what he must have hoped was a reassuring smile. It looked more like a grimace. “You tell me what you’re looking for at this stage, Rachel, and I’ll get back with the answer. If you have followup questions, I’ll have the documents searched for them as well. Fair enough?”

  I stared down at him. It wasn’t much of a proposal, but it was better than nothing, and it would sure yield quicker results than any other option I had at the moment.

  “Well?” he asked.

  “I’ll give it a try. But if I don’t like the results, or if I think you’re holding out on me, the deal is off.”

  He uncapped his Mont Blanc fountain pen and reached for a legal pad. “Where do we start?”

  “Primax,” I said. I spelled it for him.

  He looked up with a curious expression. “What is it?”

  “I have no idea. But whatever it is, it seemed to bother Bruce.”

  “How do you know that?”

  “Trust me,” I said. I didn’t want to reveal any more than I had to.

  “Okay,” he said. “Anything else?”

  “Yes. Guillain.”

  “Who or what is that?”

  I shrugged. “Check the documents. If you draw a blank there, have someone check your client’s list of employees. He or she might work for your client. Guillain is probably a first name. Last name begins with a B. Also, check for someone with the initials LGB.”

  He finished writing and looked up. “Is that it?”

  I mulled it over. “One more thing.” I reached for my briefcase and removed a photocopy of the Beth Shalom/Labadie Gardens list. “See if there’s any reference to this.” I handed him the document.

  He studied it with a frown. “Where did you get this?” he finally asked, still studying the document.

  I shook my head. “Just tell me what’s in the files.”

  He looked up at me. “Whose document is this?” he asked, clearly bothered.

  “Why, do you recognize it?”

  He stared at the Beth Shalom/Labadie Gardens list for a moment. “No,” he said without looking at me.

  I couldn’t tell whether to believe him or not.

  “I�
��m going back to St. Louis this afternoon.” I placed a business card on his desk. “Call me as soon as you have any answers.”

  ***

  For most of the short flight home I stared at the set of questions that Bruce had dictated during his due diligence review of the R&D files. His reference to “Phase Two Trial” reminded me of one of the items that Bruce had apparently wanted legal advice on, namely some sort of statutory limits. If the “Phase Two Trial” was in fact a litigation matter, presumably one that arose out of a pharmaceutical matter, then perhaps there was a statute that limited the amount of damages that could be recovered in such a case.

  “Need to check date” could thus mean the date the statute was enacted. The insurance industry lobbyists in several states had been able to get statutory damage limits enacted in a variety of products liability and medical malpractice contexts over the past several years. I scribbled a note to myself to check the Missouri statute books for statutes that limited the amount of damages a plaintiff could recover in such a case.

  It was close to five o’clock when the plane landed in St. Louis. I called my secretary from a pay phone in the terminal to see whether I had any message from Barry Brauner. No word from him, but plenty of nonurgent messages from others, all of whom could wait until tomorrow.

  “What about Karen Harmon?” I asked.

  “No word from her, Rachel.”

  I dialed Karen’s home number and let the phone ring until her answering machine clicked on. I hung up without leaving a message. I checked my watch. 5:03 p.m. Maybe Karen hadn’t lost her job after all, I thought. Maybe that jerk Hiram Sullivan decided to give her a second chance. I might still be able to catch her at the office. I dialed the number.

  “Karen Harmon, please,” I said when the Smilow & Sullivan receptionist answered.

  “Oh.” There was a pause. “Are you a friend?” she asked awkwardly.

  I gripped the receiver and closed my eyes. “What happened to Karen?”

  “Well, she’s—oh, God, I’m so sorry. Karen’s dead.”

  Chapter Eleven

  At 9:50 that night, I was standing in the lobby of the Berkeley Police Station waiting for Patrolman Dan Roland. According to the desk sergeant, Roland would be out of roll call any minute.

  What I knew so far I had learned from the Missouri Highway Patrol, which had ceded jurisdiction to the Berkeley police. According to the Highway Patrol, Karen Harmon was killed instantly when her car hit a bridge embankment on Highway 170 out near the airport. The one-car accident occurred around midnight, which was about seven hours after Karen had left the message on my answering machine.

  I turned at the sound of voices and footsteps. Several uniformed cops were walking out of a large room down the hall. Each was carrying a briefcase and a shotgun.

  “Danny,” the desk sergeant called to one of them. “Got a lady over here to see you about that traffic fatality last night.”

  Patrolman Dan Roland turned toward me. He was tall and stocky, with sleepy eyes and a neatly trimmed blond mustache.

  “Ma’am?” he said in a polite but neutral tone. He was in his twenties.

  I introduced myself, explained that I was an attorney, and told him I wanted to talk to him about the accident. He nodded and set the briefcase on the ground between his feet. He placed the shotgun next to it.

  “What would you like to know, ma’am?”

  “To begin with, how it happened.”

  He nodded, crossing his arms over his chest. “It appears that the driver lost control of the vehicle. She wasn’t wearing a seat belt at the time. The force of the impact threw her body through the windshield and against the concrete embankment.”

  “How did she lose control of her car? Was there something wrong with it?”

  He shook his head. “I don’t think so, ma’am. The decedent appeared to be intoxicated.”

  “Karen was drunk?” I asked in disbelief.

  He nodded firmly. “That’s my conclusion, ma’am. We won’t have the blood alcohol count until the autopsy results are in, and that won’t be for at least a week, but she appeared to be intoxicated at the time of the accident.”

  “Why do you say that?”

  He raised his eyebrows. “It seemed pretty obvious, ma’am. There was a strong odor of alcohol in the vehicle interior and on the decedent. There was an empty bottle of rum and an empty bottle of Diet Coke on the floor of the vehicle. Judging by the damage, the vehicle impacted the embankment at a speed in excess of fifty miles an hour. There were no skid marks in front of the collision site.” He paused, a hint of sadness showing through his cool facade. “She’s my third one, ma’am, and they all pretty much look the same. The last two had blood alcohol counts between point-one-eight and two. I’m assuming hers will be up in that range.”

  “What if it isn’t?”

  He frowned. “I’m not following you, ma’am.”

  “Did you know she was a Mormon?”

  “No, ma’am.”

  “Her religion prohibits alcohol.”

  He nodded slowly, his face expressionless. “Okay.”

  “Doesn’t that bother you, Officer?”

  He tugged at his mustache. “She appeared to be intoxicated, ma’am. That happens sometimes, even to Mormons.” He took a small notebook out of his breast pocket and clicked his ballpoint pen. “I might put that information into a supplemental report.” He jotted something in the notebook.

  “What about the car?” I asked. “Are you going to examine it?”

  “We’ve looked in the vehicle, ma’am. That’s where we found the empty bottles.”

  “No, I mean the engine, the steering device, the accelerator. What if someone tampered with the car? What if it was sabotaged?”

  As I asked the questions and watched his reactions, I realized it was pointless to try to convince this local patrolman that what appeared to be a routine drunk driving fatality on a stretch of interstate that ran through his town might actually be connected to two completely different deaths in two other jurisdictions, especially given that I hadn’t yet been able to find any hard evidence of a connection between any of the deaths.

  “Well, ma’am,” Patrolman Roland said, “we don’t normally do much with the vehicle in an accident of this type. The vehicle was pretty much totaled. In fact, it may have already been hauled off for scrap.” He paused to make a note. “If you give me your name and telephone number, ma’am, I’ll certainly be happy to call you with her blood alcohol count when it comes through.”

  ***

  Hiram Sullivan answered the front door in his bathrobe and slippers.

  “I want to talk to you,” I said.

  “Do you have any idea what time it is?” he snapped. “It’s almost eleven o’clock.”

  “So what?” I said through clenched teeth. “What did you do to Karen?”

  He stared at me, his eyes narrowing.

  A woman called from the second-floor landing, “Who is it, Hi?”

  He turned toward her voice. “Go back to bed. I’ll be up in a minute.” He turned back to me and crossed his arms. “I should have known,” he said, grimly shaking his head.

  “What are you talking about?”

  “Karen acted quite improperly when she requested those documents from Chemitex, and she was punished accordingly for her misconduct.”

  “You think death is an appropriate punishment?”

  “Don’t be absurd, Miss Gold. I am referring to the disciplinary action for her misconduct. She had a ludicrous excuse, claiming that she wanted a backup set of documents. Obviously, I regret her unfortunate death. My firm mourns her demise. However, we certainly will not accept any blame for it. People who drink and drive must accept the consequences of their behavior.” He narrowed his eyes. “So it was you, eh? She was trying to get those documents for you?”

 
“Why is everyone so uptight over those documents?”

  “I certainly can’t speak for others, Miss Gold. My firm is concerned because we assumed certain confidentiality obligations with respect to those documents. Unlike some people, I happen to take such obligations quite seriously.”

  The conversation was going nowhere. Barging in on him was a stupid idea—an angry, impulsive act that was looking dumber every moment. I decided to end with a shot from left field. “What was Bruce doing for you before he died?”

  He took a step back. “What?”

  I stepped forward. “He was working on a personal matter for you. What was it?”

  “How do you know that?”

  “Answer my question. What was he doing for you?”

  Hiram Sullivan scrutinized me as he got himself under control. “A personal tax matter,” he said calmly. “Good night. Leave now or I shall call the police.”

  He closed the door in my face. I heard him turn the deadbolt lock.

  ***

  “How ’bout some more wine?” Benny asked.

  “I’ve had enough,” I said, wiping my eyes. Frustrated and depressed, I’d come directly to Benny’s place after my encounter with Hiram Sullivan. Thank goodness he was home, and alone. Two glasses of wine and a half box of Kleenex later, I was almost under control again.