The King of Torts (29 page)

The plane looked brand-new, and the salesman explained that it was fresh from the shop where the exterior had been repainted and the interior refurbished. When pressed, he finally said, “It’s yours for thirty million.”

They sat at a small table and began the deal. The idea of a lease slowly went out the window. With Clay’s income, he would have no trouble obtaining a sweet financing package. His mortgage note, only $300,000 a month, would be slightly more than the lease payments. And if at any time he wanted to trade up, then the broker would take it back at the highest market appraisal, and outfit him with whatever he wanted.

Two pilots would cost $200,000 a year, including benefits, training, everything. Clay might consider putting the plane on the certificate of a corporate air charter company. “Depending on how much you use it, you could generate up to a million bucks a year in charters,”
the broker said, moving in for the kill. “That’ll cover the expenses for pilots, hangar space, and maintenance.”

“Any idea how much I’ll use it?” Clay asked, his head spinning with possibilities.

“I’ve sold lots of planes to lawyers,” the salesman said, reaching for the right research. “Three hundred hours a year is max. You can charter it for twice that much.”

Wow, Clay thought. This thing might actually generate some income.

A reasonable voice said to be cautious, but why wait? And who, exactly, might he turn to for advice? The only people he knew with experience in such matters were his mass tort buddies, and every one of them would say, “You don’t have your own jet yet? Buy it!”

And so he bought it.

__________

GOFFMAN’S FOURTH-QUARTER earnings were up from the year before, with record sales. Its stock was at $65, the highest in two years. Beginning the first week in January, the company had launched an unusual ad campaign promoting not one of its many products but the company itself. “Goffman has always been there,” was the slogan and theme, and each television commercial was a montage of well-known products being used to comfort and protect America: a mother applying a small bandage to her little son’s wound; a handsome young man with the obligatory flat stomach, shaving and having a wonderful time doing it; a gray-haired couple on the beach happily free of their hemorrhoids; a jogger in
agony, reaching for a painkiller; and so on. Goffman’s list of trusted consumer products was lengthy.

Mulrooney was watching the company closer than a stock analyst, and he was convinced that the ad campaign was nothing but a ploy to brace investors and consumers for the shock of Maxatil. His research found no other “feel-good” messages in the history of Goffman’s marketing. The company was one of the top five advertisers in the country, but had always poured its money into one specific product at a time, with outstanding results.

His opinion was shared by Max Pace, who had taken up residence in the Hay-Adams Hotel. Clay stopped by his suite for a late dinner, one delivered by room service. Pace was edgy and anxious to drop the bomb on Goffman. He read the latest revision of the class-action lawsuit to be filed in D.C. As always, he made notes in the margins.

“What’s the plan?” he said, ignoring his food and wine.

Clay was not ignoring his. “The ads start at eight in the morning,” he said with a mouth full of veal. “A blitz in eighty markets, coast to coast. The hot line is set up. The Web site is ready. My little firm is poised. I’ll walk over to the courthouse at ten or so and file it myself.”

“Sounds good.”

“We’ve done it before. The Law Offices of J. Clay Carter II is a mass tort machine, thank you very much.”

“Your new pals know nothing of it?”

“Of course not. Why would I tell them? We’re in
bed together with Dyloft, but French and those guys are my competitors too. I shocked them then, I’ll shock them now. I can’t wait.”

“This ain’t Dyloft, remember that. You were lucky there because you caught a weak company at a bad moment. Goffman will be much tougher.”

Pace finally tossed the lawsuit on the dresser and sat down to eat.

“But they made a bad drug,” Clay was saying. “And you don’t go to trial with a bad drug.”

“Not in a class action. My sources tell me that Goffman might want to litigate the case in Flagstaff since it’s a single plaintiff.”

“The Mooneyham case?”

“That’s it. If they lose, they’ll be softer on the issue of settlement. If they win, then this could be a long fight.”

“You said Mooneyham doesn’t lose.”

“It’s been twenty years or something like that. Juries love him. He wears cowboy hats and suede jackets and red boots and such. A throwback to the days when trial lawyers actually tried their cases. A real piece of work. You should go meet him. It would be worth a trip.”

“I’ll put that on my list.” The Gulfstream was just sitting in the hangar, anxious to travel.

A phone rang and Pace spent five minutes in muted conversation on the other side of the suite. “Valeria,” he said as he returned to the table. Clay had a quick visual of the sexless creature munching on a carrot. Poor Max. He could do so much better.

Clay slept at the office. He had installed a small bedroom and a bath adjacent to the conference room. He
was often up until after midnight, then a few hours of sleep before a quick shower, and back to the desk by six. His work habits were becoming legendary not only within his own firm but around the city as well. Much of the gossip in legal circles was about him, at least for the moment, and his sixteen-hour days were often stretched to eighteen and twenty by those at bars and cocktail parties.

And why not work around the clock? He was thirty-two years old, single, with no serious obligations to steal his time. Through luck and a small amount of talent he had been handed a unique opportunity to succeed like few others. Why not pour his guts into his firm for a few years, then chuck it all and go play for the rest of his life?

Mulrooney arrived just after six, already with four cups of coffee under his belt and a hundred ideas on his mind. “D-Day?” he asked when he barged into Clay’s office.

“D-Day!”

“Let’s kick some ass!”

By seven, the place was rocking with associates and paralegals watching the clocks, waiting for the invasion. Secretaries hauled coffee and bagels from office to office. At eight, they crammed into the conference room and stared at a wide-screen TV. The ABC affiliate for metro D.C. ran the first ad:

An attractive woman in her early sixties, short gray hair, smartly cut, designer eyeglasses, sitting at a small kitchen table, staring sadly out a window. Voice-over [rather ominous voice]: “If you’ve been taking the female
hormone drug Maxatil, you may have an increased risk of breast cancer, heart disease, and stroke.” Close on the lady’s hands; on the table, a close-up of a pill bottle with the word
MAXATIL
in bold letters. [A skull and crossbones could not have been more frightening.] Voice-over: “Please consult your doctor immediately. Maxatil may pose a serious threat to your health.” Close on the woman’s face, even sadder now, then her eyes become moist. Voice-over: “For more information, call the Maxatil Hot Line.” An 800 number flashes across the bottom of the screen. The final image is the woman removing her glasses and wiping a tear from her cheek.

They clapped and cheered as if the money was about to be delivered by overnight courier. Then Clay sent them all to their posts, to sit by the phones and begin collecting clients. Within minutes, the calls started. Promptly at nine, as scheduled, copies of the lawsuit were faxed to newspapers and financial cable channels. Clay called his old pal at
The Wall Street Journal
and leaked the news. He said he might consider an interview in a day or so.

Goffman opened at $65¼ but was soon shot down by the news of the Maxatil lawsuit in D.C. Clay got himself photographed by a stringer as he filed the lawsuit in the courthouse.

By noon, Goffman had fallen to $61. The company hurriedly released a statement for the press in which it adamantly denied that Maxatil did all the terrible things alleged in the lawsuit. It would defend the case vigorously.

Patton French called during “lunch.” Clay was eating
a sandwich while standing behind his desk and watching the phone messages pile up. “I hope you know what you’re doing,” French said suspiciously.

“Gee, I hope so too, Patton. How are you?”

“Swell. We took a long hard look at Maxatil about six months ago. Decided to pass. Causation could be a real problem.”

Clay dropped his sandwich and tried to breathe. Patton French said no to a mass tort? He passed on a class-action lawsuit against one of the wealthiest corporations in the land? Clay was aware that nothing was being said, a painful gap in the conversation. “Well, uh, Patton, we see things differently.” He was reaching behind him, groping for his chair. He finally fell into it.

“In fact, everybody passed, until you. Saulsberry, Didier, Carlos down in Miami. Guy up in Chicago has a bunch of cases, but he hasn’t filed them yet. I don’t know, maybe you’re right. We just didn’t see it, that’s all.”

French was fishing. “We got the goods on them,” Clay said. The government report! That’s it! Clay had it and French did not. Finally, a deep breath, and the blood started pumping again.

“You’d better have your ducks in a row, Clay. These guys are very good. They make old Wicks and the boys at Ackerman look like Cub Scouts.”

“You sound scared, Patton, I’m surprised at you.”

“Not scared at all. But if you have a hole in your theory of liability, they’ll eat you alive. And, don’t even think about a quick settlement.”

“Are you in?”

“No. I didn’t like it six months ago, don’t like it now. Plus, I got too many other irons in the fire. Good luck.”

Clay closed and locked his office door. He walked to his window and stood for at least five minutes before he felt the cool moisture of his shirt sticking to his back. Then he rubbed his forehead and found rows of sweat.

   CHAPTER 28   

The headline in the
Daily Profit
screamed: A LOUSY HUNDRED MILLION AIN’T ENOUGH. And things got worse after that. The story began with a quick paragraph about the “frivolous” lawsuit filed yesterday in D.C. against Goffman, one of America’s finest consumer products companies. Its wonderful drug Maxatil had helped countless women through the nightmare of menopause, but now it was under attack by the same sharks that had bankrupted A.H. Robins, Johns Manville, Owens-Illinois, and practically the entire American asbestos industry.

The story hit its stride when it went after the lead shark, a brash young D.C. hotshot named Clay Carter who, according to their sources, had never tried a civil lawsuit before a jury. Nonetheless, he had earned in excess of $100 million last year in the mass tort lottery. Evidently, the reporter had a trusted stable of ready
sources. The first was an executive with the U.S. Chamber of Commerce, who railed against lawsuits in general and trial lawyers in particular. “The Clay Carters of the world will only inspire others to file these contrived suits. There are a million lawyers in this country. If an unknown like Mr. Carter can earn so much so fast, then no decent company is safe.” A law professor at a school Clay had never heard of said, “These guys are ruthless. Their greed is enormous, and because of it they will eventually choke the golden goose.” A windy Congressman from Connecticut seized the moment to call for immediate passage of a class-action reform bill he’d authored. Committee hearings would take place, and Mr. Carter just might be subpoenaed to testify before Congress.

Unnamed sources within Goffman said the company would defend itself vigorously, that it would not yield to class-action blackmail, and that it would, at the appropriate time, demand to be reimbursed for its attorneys’ fees and litigation costs due to the outrageous and frivolous nature of the claims.

The company’s stock had declined 11 percent, a loss of investors’ equity of about $2 billion, all because of the bogus case. “Why don’t the shareholders of Goffman sue guys like Clay Carter?” asked the professor from the unknown law school.

It was difficult material to read, but Clay certainly couldn’t ignore it. An editorial in
Investment Times
called upon Congress to take a serious look at litigation reform. It too made much of the fact that young Mr. Carter had made a large fortune in less than a year. He
was nothing but a “bully” whose ill-gotten gains would only inspire other street hustlers to sue everyone in sight.

The nickname “bully” stuck for a few days around the office, temporarily replacing “The King.” Clay smiled and acted as if it was an honor. “A year ago no one was talking about me,” he boasted. “Now, they can’t get enough.” But behind his locked office door he was uneasy and fretted about the haste with which he had sued Goffman. The fact that his mass tort pals were not piling on was distressing. The bad press was gnawing at him. There had not been a single defender so far. Pace had disappeared, which was not unusual, but not exactly what Clay needed at the moment.

Six days after filing the lawsuit, Pace checked in from California. “Tomorrow is the big day,” he said.

“I need some good news,” Clay said. “The government report?”

“Can’t say,” Pace replied. “And no more phone calls. Someone might be listening. I’ll explain when I’m in town. Later.”

Someone might be listening? On which end—Clay’s or Pace’s? And who, please? There went another night’s sleep.

The study by the American Council on Aging was originally designed to test twenty thousand women between the ages of forty-five and seventy-five over a seven-year period. The group was equally divided, with one getting a daily dose of Maxatil, the other getting a placebo. But after four years, researchers abandoned the project because the results were so bad. They found
an increase in the risk of breast cancer, heart disease, and stroke in a disturbing percentage of the participants. For those who took the drug, the risk of breast cancer jumped 33 percent, heart attacks 21 percent, and strokes 20 percent.

The study predicted that for every hundred thousand women using Maxatil four years or more, four hundred would develop breast cancer, three hundred would suffer some degree of heart disease, and there would be three hundred moderate to severe strokes.