by Rick Acker
The judge didn’t rule at the end of the preliminary-injunction hearing. Instead, he took the matter “under submission” and told the parties to return at eight thirty the next morning to hear his ruling. So both sides boxed up their extra copies of exhibits, highlighted transcripts, Post-its, pens, accordion folders, and other detritus that litters the legal battlefield.
Ben, Noelle, and Gunnar, who had insisted on helping to carry files back from court, trooped back to Ben and Noelle’s offices. They stacked the boxes against one wall of the conference room and sat down to do a postmortem on the hearing. “The judge didn’t rule right away,” observed Gunnar as he eased onto one of the padded chairs. “Is that good or bad?”
Ben shrugged. “It’s bad in that it means that none of us is likely to be able to focus on anything for the rest of the day. Beyond that, I doubt it means anything one way or the other. This is a big decision for him as well as us. Whatever he does will probably show up in the papers and may even affect his reelection chances. I would have been surprised if he’d ruled without taking some time to think it over first.”
“What do you think he’ll do?” asked Gunnar.
“Tough call,” replied Ben. “I’ve been wondering about that for the past few days. On the one hand, your brother and his legal team don’t have any real response to those financials you found. I think it’s pretty clear to Judge Reilly that fraud was committed and that Karl either knew about it or intentionally didn’t know about it. Either way, he shouldn’t be running the company, at least not without a team of outside auditors keeping a very close eye on him.
“On the other hand, Bert Siwell did a good job of hammering home that the XD-463 formula belongs to Bjornsen Pharmaceuticals. He also managed to use that e-mail pretty effectively against you to make it look like you’re withholding information as a power play, not because you’re concerned about what would happen if Karl got hold of that information.”
Gunnar stirred in his seat and the leather chair creaked loudly. “I . . . I suppose I can see how the judge might have gotten that impression,” he admitted. “So, how do you think he’ll rule?”
Ben grinned. “Sorry, I was taking a while getting to the point, wasn’t I?”
“You’re a lawyer,” Noelle said. “We expect you to take the scenic route.”
“Well, we’re almost there now,” continued Ben. “The gutsy thing to do would be to grant both injunctions—let the company have the formula, but remove Karl or install an auditor to make sure none of the profits disappear into some secret account. I don’t know if Judge Reilly is the type to make that kind of ruling, though. He’s new to the bench, and I don’t know whether he’s got the decisiveness to do something like that.
“All of that is a long-winded way of saying that I really don’t know what he’ll do. He could grant both injunctions, he could deny both, or he could come up with some compromise that he thinks is fair. The only thing I don’t think he’ll do is grant one side’s injunction request completely and completely deny the other side’s. That’s not his style. There won’t be a big win for you or Karl, only a small victory or a minor defeat.”
“I thought so,” said Gunnar. “All right, I think I’ll go home and pace a lot. It will be good exercise.”
“Bjornsen Pharmaceuticals versus Bjornsen,” the clerk announced at 8:35 the next morning. Ben and Siwell got up from the court benches and stood behind the podium, each a little to one side. A scattering of lawyers sat on the benches behind them, waiting for their cases to be called. Gunnar had come downtown to hear Judge Reilly announce his verdict and sat on the bench behind Ben. Karl wasn’t in the courtroom, which surprised Ben a little. Apparently, he had more important things to do.
“Good morning, Counsel,” said the judge. He held several typewritten sheets in his hands. “I’ve prepared a written decision, which you can get from the clerk after this hearing is over. I’ve considered the evidence and argument presented by the parties, including the demeanor and credibility of the witnesses while they testified, and I’ve decided to deny both injunctions. My reasons are laid out in my opinion, but in essence my decision is based on two facts. One, both sides raise substantial claims, but there will not be substantial prejudice to either from waiting for a full trial to resolve them. Two, both sides seek dramatic remedies. Neither party is asking me to preserve the status quo; you’re asking me to change it, and you’re asking me to change it in substantial ways. That may be appropriate after a permanent-injunction trial where all the evidence is fully developed and presented to a jury, but not now.
“I realize that this is an important matter to both of your clients, so I will give this case priority on my trial calendar. Mid-August works best for me, but check your calendars and talk to my clerk to set a trial date. I also want you to submit a stipulation regarding pretrial dates within seven days.”
Karl Bjornsen sat in his office, waiting for a phone call he didn’t want to come. Today was the thirtieth day since Bjornsen Pharmaceuticals had submitted its Investigational New Drug application for Neurostim. If the FDA wanted to issue a “clinical hold”—effectively a denial of the application—they had to act by today. The standard FDA procedure for issuing a clinical hold was for the responsible-division director and project manager to call the applicant to discuss the hold, and then follow up with a letter a few days later.
So when Karl had arrived at the office that morning, he’d told his secretary to screen his calls and take messages, unless the caller was from Bert Siwell’s office or the FDA. Bert’s call had come four hours ago, delivering the news—which Bert had predicted the day before—that Judge Reilly had denied both preliminary-injunction requests and was setting the case for trial as soon as possible. Bert was confident that he would win that trial, so his news had been essentially good from Karl’s perspective.
Now he waited for more good news—or, more accurately, non-news. He tried to read sales reports, but he couldn’t concentrate. At two thirty, he gave up and put the reports back into his in-box. He got up and walked over to the floor-to-ceiling windows that lined two sides of his office, which was situated on the top floor of the combined office building and production plant that formed the heart of Bjornsen Pharmaceuticals. The research labs, warehouses, and other ancillary structures were clustered below him in a closely built complex, like the stronghold of an ancient king. He and Gunnar could have allowed more space between their buildings, but they had planned to keep growing and didn’t want to have to scatter their facilities around the Chicago area like other companies. One of their favorite pastimes had been to sit in this office and debate where each new building would go and what it would look like. Karl looked down and pictured where the Neurostim wing of the factory would rise from the parking lot below him. “Now I can dream alone,” he murmured.
But Karl’s dreams were interrupted with ever-increasing frequency by glances at his watch. By three forty-five, he could no longer even concentrate on his pleasant visions of the future. All he could do was stare at the clock on his credenza and wait for the minutes to tick by.
Finally, four o’clock came. The business day was done at the FDA’s East Coast headquarters, and he knew there was no longer any risk that they might call. He waited five more minutes to be sure his clock wasn’t fast. Then he strode across his office, opened his door, and smiled broadly at his secretary. “Michele, call the kitchen and tell them to pop the corks, cut the cake, and get the big conference room set for a party. We’re starting human trials tomorrow!”
CHAPTER NINE
DISCOVERY
“So, what do we do now?” asked Gunnar. It was the morning after the preliminary-injunction hearing had ended, and he, Ben, and Noelle had assembled around the table in Ben and Noelle’s conference room. A plate of breakfast pastries sat in the middle of the table, and Gunnar and Ben had each taken one. Noelle contented herself with caffeine-free tea, though Ben had noticed her eyeing a lemon poppy-seed muffin.
“
I’ve been giving that some thought,” replied Ben. “We need to get ready for the permanent-injunction trial, of course. August fifteenth is only about two months away, and we’ve got plenty to do between now and then. But before we dive into trial prep, we need to decide what we want that trial to be about. If it’s about whether you should give the formula for XD-463 to the company, we’ll probably lose. If it’s about whether Karl can be trusted with a multibillion-dollar asset, we have a shot at winning. We need to find a way to convince the jury that Karl is not fit to run the company.”
“I thought you did a good job of that at the hearing,” said Gunnar. “If a jury had seen that, I don’t think they would have let him run a gas station by the time he left the witness stand.”
“But that was only because I caught him by surprise,” said Ben. “Karl actually did pretty well during most of his testimony, but once those reports knocked him off balance, he fell apart. That won’t work twice, though.”
“So you need a new surprise for him,” said Gunnar. “I still have a lot of friends at the company. I’ll call them to see what kind of useful documents they can find. Is there anything in particular you’re looking for?”
“Actually, don’t do that,” replied Ben. “Remember, you’re not an officer or employee of the company anymore; you’re an adverse litigant. You could get in a lot of trouble by trying to get confidential documents from the company without going through their lawyer.”
“But if we have to go through their lawyer, how can we have the element of surprise?” asked Gunnar.
“We may not be able to,” conceded Ben. “Surprise witnesses and evidence are a lot more common in movies than in real courtrooms.”
“If Gunnar were still an officer of the company, would that make a difference?” asked Noelle.
“Uh . . . probably,” replied Ben. “But he isn’t. Or is he?”
“Not Bjornsen Pharmaceuticals, but maybe the Norwegian sub, Bjornsen Norge. One of the boxes I looked through had the board resolution removing him as president of Bjornsen Pharmaceuticals, but it didn’t say anything about Bjornsen Norge. The preamble said it was a joint board meeting of the two companies, so I assume that if they had voted him out of Norge’s presidency, they would have done it then.”
Gunnar’s eyes lit up and he leaned forward in his seat. “That preamble is part of the form we use for all our minutes and resolutions. I don’t think anyone has read it in years, except you. Bjornsen Norge has its own separate corporate structure. When we set it up, all the officers and directors were the same as for Bjornsen Pharmaceuticals. I doubt that its formal organization has ever been updated—there’s never been any reason to. All the stock is owned by the parent company, and all the decisions are made there; the Norwegian operation is basically just a sales office and warehouse. I wouldn’t be at all surprised if nobody thought to remove me as president when Karl staged his coup.”
“Let’s confirm that as quickly and quietly as possible,” said Ben. “If the company’s president gives us permission to go through the corporate records, Karl and Bert will have a tough time arguing that we’ve done anything illegal or unethical. I’ll bet we could find some very interesting nuggets if we poked around in Norge’s files, especially if Karl and Bert don’t have a chance to sanitize them first.”
“Any change to the officers or directors of a Norwegian company should be a matter of public record,” said Gunnar. “I can help you check the relevant databases.”
“And I’ll track down those documents I saw,” said Noelle.
“That sounds good,” said Ben. “I’m glad you read their corporate records more closely than they did. I’ll do a little legal research to make sure we’re playing by the rules.” He paused. “You know, if this all pans out, we should probably make at least one trip to Norway to interview witnesses and review documents. That will be a significant expense.”
“That won’t be a problem,” said Gunnar immediately. “As a matter of fact, I would have been concerned if you had said that you weren’t going to Norway. I’ve worked in international business long enough to know how essential it is to actually be on-site. I’ll help you set up witness interviews. I’m also friends with a senior accountant at Bjornsen Norge. He’s semiretired now, but I think he still goes into the office regularly. He speaks good English, and I’m sure he will be happy to help you.”
The meeting ended a few minutes later, and Noelle and Ben walked Gunnar to the elevator. As they headed back to their offices, Noelle turned to Ben. “So you managed to swing the Norwegian trip you wanted when you took this case. Nice job.”
“Hey, you heard Gunnar. It’s ‘essential’ that we go. Besides, I couldn’t have done it without you; I owe you for figuring out that Gunnar might still be president of the Norwegian sub. That could turn out to be a very valuable piece of information.”
“Just let me eat as much salmon as I want while we’re there and we’ll be even.”
Ben laughed. “Deal. And you can have that lemon poppy-seed muffin in the conference room. You earned it.”
She smiled luminously, but shook her head. “No way. I’m saving myself now.”
When Noelle got back to her office, she was surprised to find a message waiting for her from Anne Bjornsen. She put down her notes from the meeting and returned the call.
“Noelle, I just heard what happened with the Field Museum,” Anne said a moment later. “I’m terribly sorry. Charitable boards can be very uncharitable.”
Noelle felt as if a cold wind had just blown through. She had been so caught up in the litigation that she hadn’t thought about Emily Marshall and her committee for days. It wasn’t pleasant to be reminded of them. “It’s not your fault.”
“I still feel responsible. This all happened because you and Ben are helping my husband. Would you like me to talk to some people for you? I doubt that you’ll want to be involved with that committee again, but the Field is a fine institution and there are other opportunities there. There are also a lot of other good organizations in town, and I have friends at most of them. Gunnar and I are very supportive of the Brookfield Zoo, for example.”
“Thanks, but I’m pretty busy with Gunnar’s case right now, and my baby is due in three months. This probably isn’t the best time for me to get involved in something new. I really appreciate the offer, though.”
“Well, I’m in the Loop today. Can I at least take you out to lunch?” Anne asked.
“Lunch would be great.”
Two hours later, the two women sat at a table in the Walnut Room, the flagship restaurant in the State Street Macy’s. Panels of richly stained walnut wood lined the restaurant’s walls, and spotless white linen cloths covered each table, even at lunchtime. The Walnut Room was not the place to grab a quick lunch during a busy workday, but it was the perfect place to have a quiet conversation over a good meal.
Anne looked at home in the Walnut Room. She had the mature, slightly stately beauty of a wealthy woman who has aged gracefully. Her hair and nails looked as if she had just left a high-end salon. She wore a stylish white twinset and pearl necklace that set off her light tan and flattered her trim figure. I hope I look like that in twenty-five years, Noelle thought.
“So you’re due in September?” Anne asked.
“September 28,” Noelle confirmed.
“How exciting! Is this your first?”
“It is. Ben and I are really looking forward to meeting him or her. We’re already spending our weekends outfitting the nursery. Ben is building a chest of drawers in his workshop in the basement. Right now it’s just a bunch of boards with markings on them, but it looks great in the pictures he showed me.”
“I remember when Gunnar and I were young and looking forward to the birth of our first son. He built a crib—or at least he started to. I think there are still some old, half-finished pieces of wood in a corner of our attic.”
Noelle laughed. “Now that Ben’s busy again, I wouldn’t be surprised if the same thing
happens to us. I guess it’s the thought that counts.”
“You’re in such a great time of your lives. Everything is new. Everything is in front of you. So many things are possible.” Anne smiled. “I’m a little envious of you.”
“And I’m a little envious of you,” replied Noelle. “And not just because no one would dream of kicking you off a committee because of something your husband was doing.”
“Oh, I wouldn’t mind being thrown off a committee or two. It would be something of a blessing, really. These things can take on a life of their own, and getting off of them can be complicated.”
“Really? I hadn’t thought about it much, but I kind of figured you could quit whenever you wanted to. There are always plenty of people wanting to get on them.”
“Which is actually one reason it’s hard to leave them,” Anne replied with a sigh. “Every invitation to join a board or committee I’ve ever received has been a compliment from a friend or, especially when I was younger, somebody doing me a favor. It’s hard enough to say no to the invitation, but it’s even harder to quit after you join. You make friends and take on responsibilities. Unless you have an almost unarguable reason, you really can’t pull out without causing hurt feelings or giving offense.”
“I’ll keep that in mind the next time I’m thinking about joining something,” said Noelle. “It’s easy to overcommit, isn’t it?”
“It is. Or maybe a better way to put it is that it’s easy to make commitments and sacrifices without realizing you’re doing it. When I was your age, I tried to meet all the right people, worked at getting invited to all the right events, and volunteered for all the right causes. By the time I was forty, I had something scheduled four or five days a week, and if I didn’t have an engagement for a particular evening, Gunnar would invite an important customer over for dinner.”
