by Rick Acker
Although Dr. Chatterton was not technically savvy enough to prevent her computer from being infected, she was unfortunately savvy enough to run a good spyware detector, which had spotted George’s program. Once it did, she not only removed the program from her machine, she started trying to find out where the stolen data was going. Through foolish overconfidence, George had placed only rudimentary protections on the outgoing data stream, so there had been a significant risk that she would have succeeded in following it back to him.
Now she was dead and the threat was gone, but he was still no closer to cracking Bjornsen Pharmaceuticals’ security wall and finding the Bad Thing he needed. In retrospect, his efforts had been amateurish—hardly better than a phishing expedition. He expected more of himself.
And to make his mistake even more painful, the last phone intercepts he had picked up had been very tantalizing. Something bad was brewing at Bjornsen Pharmaceuticals, but what? If only Dr. Chatterton had called or e-mailed a friend to gossip, George might have picked up the Bad Thing he needed. Instead, she had decided to run straight to Karl Bjornsen’s archenemy, leaving George with no choice. He needed Karl vulnerable, but undamaged—and Dr. Chatterton had been on her way to damage him. Her life would have been short in any event, but that action had shortened it further.
He sipped his scotch and began to unwind as he watched the Arctic breakers crashing on the rocky beach below the sunroom window. He promised himself that his next effort would be a lot better planned and executed.
CHAPTER SEVEN
SANDBAGS
The preliminary-injunction hearing began on a bright, clear afternoon in early June—though it was impossible to tell that from the blank-walled, fluorescent-lit courtroom where Ben stood. He gripped the podium in front of him and faced Judge Reilly across the courtroom’s well—the empty space faced by the bench, counsel tables, and jury box. The box was empty because, due to a quirk in the history of the law, juries are never used in civil cases that don’t involve a request for money. Since both Ben and Siwell were only asking for injunctions at this point, neither was entitled to a jury.
Noelle and Gunnar sat at the counsel table to Ben’s left, and Siwell and Karl were at the table to his right. The benches behind Gunnar and Noelle were empty, except for a few boxes containing potential exhibits. The benches on the other side of the courtroom, however, were packed with a small army of paralegals and associates from Siwell’s firm, several computers, a projector, a projection screen, and dozens of boxes. Two men in rumpled suits sat in the back row of benches. Ben was tempted to ask Gunnar if he knew who they were, but talking, even in a whisper, while the judge is on the bench is frowned on, and Ben didn’t want to start the hearing by being rude to the judge.
Judge Reilly nodded to Ben. “You may present your opening statement, Mr. Corbin.”
Ben straightened his notes for the third time and cleared his throat. He stood very straight, taking advantage of every inch of his five-foot-ten frame. “Thank you, Your Honor. The Court will have to decide two questions at the end of this hearing. The first is whether a proven embezzler should be allowed to continue to run a three-hundred-million-dollar company.”
“Objection,” said Siwell. “That’s argument, in addition to being dead wrong.”
Judge Reilly looked indecisively from Siwell to Ben. “Your Honor,” replied Ben, “I’m only saying what the facts will show at the end of the hearing. I’m entitled to do that in my opening statement.” He pointed to the empty jury box. “Besides, we don’t have a jury that might be misled by argument. Even if I were arguing, Your Honor could simply disregard it.”
The judge nodded. “Objection overruled.”
“Thank you, Your Honor. As I was saying, the evidence will establish that Karl Bjornsen has been siphoning millions of dollars out of Bjornsen Pharmaceuticals for his own use, and then falsifying the company’s accounting records to cover it up. We can document at least eight separate incidents over the past two years in which he stole more than six million dollars from the company. Six million dollars. And that’s just what we know about. We’re in the middle of discovery right now and more wrongdoing may come to light.
“From the founding of Bjornsen Pharmaceuticals until last year, Karl Bjornsen was the chairman of the board. His brother, Gunnar”—Ben turned and gestured to Gunnar—“was president and CEO. But then Karl decided he wanted complete control of the company and forced his own brother out. When Crain’s Chicago Business asked him why he did it, he said that one of the reasons was that he was ‘tired of always having someone telling me no.’ Someone needs to tell him no, and we ask the Court to do it, either by installing a team of auditors to monitor his dealings, or—preferably—by removing him from office and appointing a suitable replacement until the board of directors can choose his successor.” Ben snuck a look at Karl and Siwell, but neither one reacted visibly to his words.
“The second question the Court has to answer is whether there is any harm in waiting until the permanent-injunction hearing to decide whether to force Gunnar to give the formula for a multibillion-dollar product to the company while it’s still controlled by Karl. As Your Honor knows, Bjornsen Pharmaceuticals isn’t entitled to a preliminary injunction unless it can prove, among other things, that it will be irreparably harmed if the injunction doesn’t issue. The facts will show that there is no harm—let alone irreparable harm—in simply waiting until the permanent-injunction hearing. Before Gunnar was pushed out, he helped the company manufacture enough of the drug to do all the testing they have scheduled over the next six months. They haven’t even been given permission to start human trials yet, and they’re years from being able to bring the drug to market. They have all of the drug they’ll need between now and the permanent-injunction hearing.
“There’s no harm in waiting. Quite the contrary; the real risk is that the company will get control of the drug formula while Karl Bjornsen is still in charge and has no one to tell him no. If he can’t be trusted with a few million dollars, should Your Honor trust him with a drug worth billions?”
Ben glanced at his notes to allow time for his last point to settle. Then he nodded to his right and continued.
“I see Mr. Siwell muttering over there, and I expect that in a couple of minutes he’ll get up here and tell you that everything I’ve said is ‘scurrilous sewage’ or something like that. But it doesn’t matter what I say, and it doesn’t matter what he says. What matters is what the witnesses say and what the documents show. Facts are hard things to argue away, even when you argue as well as Mr. Siwell, and the facts will show that the only irreparable harm that is likely to occur between now and the permanent-injunction hearing will come from Karl Bjornsen’s continued use of the company’s bank account as his personal slush fund. Thank you, Your Honor.”
Sergei would have been in the courtroom to watch opening statements, but he had other business that morning. He pulled up outside the Illinois State Police District Two headquarters, a long, low building that looked more like an elementary school than a police station. He parked the Black Russian, went inside, and greeted the receptionist. “Good morning. Could you tell Detective Munoz that Sergei Spassky is here for him?”
A few minutes later, a burly Hispanic man in his early forties appeared in the waiting room. “Sergei, it’s good to see you again. Did you want to talk here or go out someplace?”
“Good to see you too, Dan. How about the Dunkin’ Donuts I saw a couple of blocks up the road? I could use a cup of coffee, and I’d be happy to buy you a donut.”
“I’ve sworn off donuts since I took a desk job,” replied Munoz, “but coffee sounds good.”
They made small talk as they walked to the Dunkin’ Donuts, asking about each other’s lives and careers. They had worked together on a couple of cases when Sergei was an FBI agent, and they had gotten to know each other well enough to be friendly, but not well enough to be truly friends.
They arrived at the donut shop, Sergei
bought their coffee, and they found an isolated table where they could talk. “So what’s on your mind?” Munoz asked after they sat down.
“Kathy Chatterton. The doctor I mentioned in my voice mail. What’s the ISP’s take on her death?”
“I took a look at the file before I came over. It looks pretty straightforward—single-vehicle accident on the Eisenhower. Based on the crash scene, there’s no reason to believe it was a homicide. No evidence of tampering with her vehicle, no foreign paint on the wreck to indicate that she was pushed off the road, nothing like that. We’ve interviewed your Mr. Bjornsen, but we haven’t found any independent evidence of foul play.”
“Have you interviewed anyone from Bjornsen Pharmaceuticals? I wonder if they’ve got alibis that hold water.”
Munoz shook his head. “We haven’t, and we’re not likely to unless we open a homicide investigation, which I’m not inclined to do. There’s just not enough here—no threats, no physical evidence, no witnesses to the death.”
“She died on the Eisenhower and no one saw it?” said Sergei. “I know it was late at night, but doesn’t that seem a little odd to you?”
Munoz shrugged. “Not really. I’m sure people saw it, but they didn’t call the police. That happens a lot. It doesn’t change the bottom line—we have no witnesses. All we have is a guy who says the woman must have been killed because she was on her way to give him something important. It’s a close call, but without more we’re not going to open an investigation. If my budget hadn’t been cut, I might look into it further, but we just don’t have the resources.”
“I hear you,” said Sergei, who had been half expecting that response. “By the way, did you find anything in the car that looked like lab reports or a tissue sample? And were you able to pull images from her cell-phone camera?”
“No, but that doesn’t mean much. The car was heavily damaged by fire. The interior was completely burned out and the phone was fried.”
“That could destroy evidence of some types of vehicle tampering, couldn’t it?” asked Sergei. “And if the exterior was scorched badly enough, paint from another vehicle could be charred off, couldn’t it?”
“Maybe,” conceded Munoz. He put down his coffee and looked Sergei in the eye. “Why are you pushing this? Is it just because your client is paying you to, or is there something you haven’t told me yet?”
Sergei looked back at Munoz silently for a moment, debating how much to tell him. “Dan, do you know Alex Geist?”
“Not personally, but I’ve heard the name. High-priced PI-slash-security-consultant, right?”
Sergei nodded. “He’s working for Bjornsen Pharmaceuticals. I’m pretty sure he’s on the other side of the same lawsuit I’m working on.”
“You think he killed her?”
“I doubt it, but when I first got involved in the case, I got a strange call from him. He told me to watch myself, and I asked if he was threatening me. He said he wasn’t, but that I might run into people who don’t bother to threaten. I wonder if Kathy Chatterton ran into them first.”
Munoz finished his coffee and stared thoughtfully into the empty cup for a few seconds. “Maybe I can free up some time to dig into this a little further.”
Bert Siwell stepped up to the podium. He wore a carefully tailored navy-blue suit that hid his ample stomach and emphasized his wide shoulders. He gave the judge a confident, relaxed smile. “Good morning, Your Honor. ‘Desperate drivel’ is probably a more accurate description of Mr. Corbin’s opening, but I can live with ‘scurrilous sewage.’ By the end of this hearing, it will be patently clear to everyone in the courtroom that Karl Bjornsen has engaged in no financial wrongdoing. Mr. Corbin’s client has not been involved in Bjornsen Pharmaceuticals’ finances for years, and frankly never understood them. In fact, he nearly drove the company into bankruptcy before Karl intervened and appointed a CFO.
“Gunnar Bjornsen is a scientist, not an accountant, but as a courtesy, the new CFO continued to allow Gunnar full access to the company’s financial records. Based on the discovery we’ve received so far, it looks like Gunnar has spent the last several years saving copies of documents from every transaction he didn’t understand and taping them together into a paranoid tapestry of alleged fraud. The company’s CFO will be here tomorrow to explain each transaction in as much or as little detail as Your Honor desires, but for now, suffice it to say that no competent accountant looking at all the facts could possibly conclude that there was any fraud here.
“Turning to the injunction my client is requesting, it was interesting to hear what Mr. Corbin didn’t say. He didn’t say that the Neurostim formula isn’t a trade secret. He didn’t say it isn’t Bjornsen Pharmaceuticals’ property. He didn’t even say that my client won’t be entitled to have its property returned at the end of this case. All he said was that there’s no harm in depriving Bjornsen Pharmaceuticals of its property until then.
“No harm? Bjornsen Pharmaceuticals’ stock price is down ten percent since the markets discovered that Gunnar Bjornsen is withholding information on how to manufacture Neurostim. That’s harm. Every time the financial press covers the company, they bring up this litigation. That’s harm.”
He pulled a news clipping out of his notebook. “Just last week, the company announced that its second-quarter numbers were better than expected and that it was raising its earnings forecast for the remainder of the year. Here’s what Bloomberg said: ‘Despite legal clouds over the ownership of its new flagship product, Bjornsen Pharmaceuticals reported strong earnings for the second quarter. It also raised its forecast for the rest of the year by two cents per share.’”
He put down the clipping and pointed to the two men on the back bench. “There are two members of the press corps here today, doing research for more stories that will run in tomorrow’s papers. That, Your Honor, is harm.” He turned and looked back. “No offense, fellas.”
“None taken,” said the older journalist with a smile.
“And the harm will continue every day until those news stories say that the Neurostim formula is back in the control of Bjornsen Pharmaceuticals. We ask the Court to order Gunnar Bjornsen to turn it over immediately. Thank you, Your Honor.”
“All right,” said Judge Reilly. “Mr. Siwell, are you ready to call your first witness?”
“Yes, Your Honor. We call Gunnar Bjornsen.”
Ben and Gunnar glanced at each other in surprise. This was an aggressive move and one that caught Ben off guard. Lawyers almost never start their cases by putting the opposing party on the stand. A litigator’s first goal is usually to put on his client’s side of the dispute—a project the opposing party generally won’t help accomplish. Siwell had given no hint that he’d planned to lead off by calling Gunnar, and Ben had therefore scheduled Gunnar’s final witness prep for that evening.
Gunnar walked up to the stand, where the bailiff swore him in. When he sat down in the witness chair, his knees jutted up and he looked like an adult sitting in a child’s chair. He felt under the seat for a knob that would adjust the height, but he couldn’t find one that would work.
“Good morning, Mr. Bjornsen,” said Siwell.
“Good morning,” replied Gunnar as he gave up fiddling with the chair.
“You founded Bjornsen Pharmaceuticals thirty years ago with your brother Karl, isn’t that correct?”
“Thirty-two years ago.”
“I stand corrected. I take it you remember it well?”
“I do.”
“And the two of you spent three decades building up the company together, didn’t you?”
“Yes.”
“You and Karl turned it into a decent company, didn’t you? Not Eli Lilly, but not bad, right?”
“Oh, I’d say we’re better than Lilly. They’re a good company, but we’re more nimble and I think we’ve got a better scientific team.”
“I think I hear some pride in your voice,” observed Siwell.
“I am very proud of the company,”
replied Gunnar. “Or at least I was until shortly before I left.”
“You want what’s best for the company, don’t you?”
“Of course.”
“And you’re proud of the company’s product-development team, right?”
“They are very fine scientists.”
“In fact, you were the head of product development at Bjornsen Pharmaceuticals, right?”
“That’s right.”
“Were you directly involved in developing any of the company’s drugs?”
“I was involved in developing all of them.”
“Directly involved?”
“Directly involved.”
“So you were directly involved in developing Neurostim?”
“I was, but I didn’t call it that.”
“You called it XD-463, right?”
“Right.”
“XD-463 is a very valuable drug, wouldn’t you agree?”
“Potentially, yes. A lot of drugs that look good in early trials are ultimately failures, however.”
“But you saw no indication that XD-463 would be a failure, did you?”
“Not in the early trials I oversaw, no.”
Ben started to relax. So far, Siwell was just rehashing familiar and relatively harmless territory from Gunnar’s deposition. He had rattled Ben and was getting in the basic background facts he wanted, but he wasn’t doing any real damage.
“It would be fair to say you invented XD-463, wouldn’t it?” Siwell asked.
Gunnar shrugged modestly. “I developed the process for isolating the active compound from plant material and manufacturing it, if that’s what you mean.”
“Thank you, that’s exactly what I mean. You had help from other scientists during your work, didn’t you?”
