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CHAPTER FOUR

At 7:00 a.m. on Monday, January 17, 2000, Henry Holten strode into the glass-walled conference room on the thirty-second floor of Darby and Witherspoon’s Minneapolis office. The lawyers were already sitting at the elliptical marble table awaiting his arrival.

Holten was wearing a well-cut pinstriped suit. He always wore suits. He also wore his usual red bow tie, his one departure from an otherwise staid, stuffed-shirt appearance. It was a statement of his distinction from the rest of the blue bloods in whose circles he normally traveled.

Nancy Sellers had made arrangements for coffee, rolls, and fresh orange juice. The juice had been poured into a large glass decanter set on a sterling tray surrounded by tumblers. The sweet rolls were divided equally between two ceramic platters on either side of the tray. She had also set up the overhead projector at one end of the conference table and had lowered the screen from behind a valance at one end of the room. Each attorney had been provided with a legal pad as well as a product data sheet describing EnviroClean’s Leaking Underground Storage Tank business.

“Good morning, gentle people,” Holten greeted the group. “I welcome everyone’s willingness to accommodate the scheduling of this meeting on such short notice. But then, I suppose L.U.S.T. is a strong motivating factor for some of you.”

Holten looked at Allison Forbes for her anticipated chuckle. “Never before noon,” she said gaily, giving him the desired reaction.

“Of course,” Holten continued, “our associates are well acquainted with sunrises from the thirty second floor, but I suspect each of you have had to expedite your normal routines somewhat. By the way, happy Martin Luther King Day, Mr. Edwards.”

Morrison Edwards was Darby and Witherspoon’s first person of color to be promoted to full partnership. He was a member of the firm’s government regulations department. Edwards was a behemoth of a man who had played tight end for the Vikings in the 1970s while attending law school part time. Graduating at precisely the time when most of the established firms began actively seeking black attorneys, his celebrity and his minority status together insured he would be heavily recruited.

“Thank you, Henry,” he replied, “but is there some reason why you would not also wish our colleagues a happy Martin Luther King Day? Perhaps you assume this is only a day for people of color as Mother’s Day is only a day for mothers. Actually, today is a national holiday to honor a hero of monumental importance to all Americans.”

Henry Holten was rarely put on the defensive, and the others in the room took silent pleasure in his discomfiture. “No one could ever confuse today with Mother’s Day,” he said. “Now that is a serious holiday, and if you ever forget to send flowers to your mother, you will quickly be reminded of the day’s importance. King is gone, but mothers are here forever.” Holten paused briefly. “Happy King Day, everyone.”

The yellow edge of an oversized sun broke the surface of the horizon, creating a long, thin sundog in the icy blue eastern sky. Inside, the assembled team of lawyers began their work week, oblivious to everything outside the confines of their immediate world.

The attorneys in the room had been painstakingly recruited from some of the most prestigious law schools in the country. All had held distinguished clerkships for noted jurists in the circuit courts of appeals or state supreme courts. The firm published a grand four-color brochure describing its history and practice groups to lure gifted lawyers into the fold. It was stylishly laid out with a combination of photographs of the firm’s art collections and line drawings of the offices and historically significant members of the firm. Each of the seven practice groups also published its own brochure describing its practice and clients. These materials were widely distributed in law schools and courthouses across the country.

To the right of Henry Holten was Allison Forbes. After graduating at the top of her class she had been randomly assigned to Holten as her initial mentor. When she finished her training rotations through the firm’s seven practice groups, Holten requested she be assigned to his department, and she had been practicing under his tutelage ever since.

Wendi Palmer represented the corporate department. A graduate of Harvard Law School, she had clerked for a year in the eighth circuit before garnering an invitation to clerk at the United States Supreme Court. She had been with the firm for fifteen years, specializing in high-technology start-up companies.

Stephen Patton from the securities department and Thomas Dodd from the environmental law department rounded out the group. Dodd had earned an undergraduate degree in molecular biology and a master’s degree in ecology before attending law school.

“I assume you’ve all read the materials Nancy provided you late Friday afternoon,” Holten began. “We’re about to take EnviroClean public to raise the necessary capital to permit its entry into additional markets and to fund further product development research and field trials. I spoke briefly with Stephen about this a few weeks ago, and I want him to direct the IPO team. As soon as we’re finished here this morning, I’d like him to call Deborah Dodge at Firestone and Pyne to coordinate efforts with their office. Wendi will be reviewing all the legal documentation because, as you all know, she’s responsible for the firm’s technology group. I think it best that she serves as principal liaison between this office and Boyd Campbell. His controller, Richard Blair, will provide you all the numbers you’ll need.”

“I’ve got to tell you this is an outstanding company,” Palmer said. “Another year or two of coddling it through its infancy and we’ll have a nice new client for the firm.”

“We have one minor issue that needs our immediate attention,” Holten continued. “Some of the biological processes Dr. Campbell has developed use genetically engineered microorganisms to degrade hazardous compounds. These organisms, which the company calls P-27, are dissolved in water with nutrients and injected into the ground around filling stations that have had leaking underground tanks.”

“As some of you may be aware, there are several groups of pseudoscientists who are opposed to the use of any genetically engineered organisms, despite well-documented scientific proof that no possible harm could result. It’s particularly ironic that these so-called environmentalists might object to something that will actually make the environment cleaner. But we’ve got to keep this in mind when drafting the Securities and Exchange Commission filings so there’s nothing that could conceivably arouse these sleeping tigers. We must be keenly sensitive to this issue in all contacts with anyone outside this firm. The best tactic will be to say nothing at all about genetic engineering, and to notify Wendi in the event anyone hears anything so we can respond through her to any questions deemed significant.”

“I need to hear about it immediately,” Palmer interrupted. “We’ve got a PR firm ready to assist us in quashing any potential threats, but we’ve got to react quickly.”

“In that regard,” Holten said, “there’s a matter of a letter Dr. Campbell received the other day. It’s of no legal significance, other than that it came to him at precisely the wrong time, and Campbell inadvertently mentioned the letter in front of the people at F & P. I’ve already considered our response, but I told Campbell I’d pass it by each of you for your thoughts before acting on it. Allison, could you put the letter on the overhead projector?”

The projector was turned on, the recessed overhead lighting dimmed, and the louver blinds electronically rotated to block out the rising sun. However insignificant Ruth Bergstrom’s letter may have been, it now filled the entire southern wall of the Darby and Witherspoon conference room, and six of the brightest attorneys in the state of Minnesota focused their attention on her letter, each pondering the appropriate response.

Thomas Dodd was the first to speak.

“What do we know about P-27?” he asked. “I assume the standard battery of toxicity testing has been run on this organism. Are there any data to suggest the possibility of some allergic reaction?”  

 

“I’ve spoken with both Dr. Campbell and his R and D director, Dr. Mary Frick,” said Palmer. “Both have indicated all tests are negative for any reaction of this type. In addition, they have no knowledge of any similar strains of pseudomonas causing symptoms like Mrs. Bergstrom’s. I might add that the organism cannot survive outside the carefully controlled environment EnviroClean provides to stimulate its growth. Even if it were to migrate from its underground plume, it’d quickly perish.”  

 

“There’s no way for the organism to come into contact with humans,” Holten said, “since it’s injected into the soil and penetrates deep into the subsurface where it remains until the gasoline is degraded. With the toxins gone, the P-27 organisms promptly die from lack of nutrients, causing no possible harm.”

“I doubt that anyone can say precisely where the organism might wander once it’s injected into the ground,” added Dodd. “We don’t even know where the gasoline itself goes once it leaks from the storage tanks. The easiest way to prove our point is to take some samples from the creek bed.”  

 

“It’s not that simple,” said Holten. “The sampling and testing is expensive. This could take a year or more. The public offering cannot be delayed. The company needs the infusion of capital now. It’s not worthwhile to do all this because of a single letter from one woman who has no scientific training whatever.”

“There’s another reason not to undertake any testing at this time,” interjected Stephen Snyder. “We’d be required to disclose the issue in all our SEC filings. It would reduce the value of the offering, and, given the volatility of biotechnology stocks in the current market, it could even result in an outright failure of the entire offering.”

“From our perspective in Government Regulations,” added Edwards, “we most definitely don’t want to create any suspicions about the safety of P-27. If any of the EPA people take an interest in this question, they’ll indefinitely delay the issuance of further permits. P-27 could be temporarily removed from the market. Worse yet, if the do-gooder pseudo-scientists get wind of this issue, we’ll become firmly enmeshed in a regulatory quagmire.”

“My thoughts exactly,” said Holten. “There can be no doubt about our need to keep this matter under wraps. I’ve already prepared a draft response to the letter. Nancy’s typing it as we speak. I’ll have her bring it in for your review.”  

 

“Perhaps,” Allison Forbes said, “I might play the devil’s advocate for a moment. I think there’s an ethical consideration here. What if the P-27 actually is causing Mrs. Bergstrom some problems? We have some responsibility to her, as well as to thousands of others who could become infected as well. I think it’s dangerous for us to bury our heads in the sand and pretend there’s no problem when we don’t really have any definitive answers. Have we not …”

“Ms. Forbes,” Holten said rising from his chair, “I doubt there’s a law firm in the state that is as concerned as we are with promoting the highest standards of professional responsibility. But ethics is not some vague philosophical ideal, it’s such an important part of the fabric of this profession that it’s published in the Code of Professional Responsibility, as you well know. If there’s anyone in this room who thinks the action we’re proposing compromises even a single word of that code, then I’d like to hear about it now.”

Holten paused for a few seconds to create the impression that he actually wanted to hear such a citation, even though he knew full well there would be none.

Allison sat quietly, her hands on the table, a slight frown on her face.

“On the other hand,” he continued, “if the code does not specifically prohibit our advice, then we’re mandated by our duty of loyalty to our client to take whatever steps are most prudent in furthering his business objectives. We’re not social judges of the niceties of corporate responsibility. We’re sworn to be advocates for our clients’ interests.”

Nancy Sellers entered the room with an overhead transparency of Holten’s proposed letter to Mrs. Bergstrom. She removed Mrs. Bergstrom’s letter and placed Holten’s on the projector.

Dear Mrs. Bergstrom,

Your letter of January 11 to EnviroClean, Inc., has been forwarded to my attention for response.  

EnviroClean manufactures a product called P-27. This is a biological product that is used extensively in treating soil and ground water that have been contaminated by gasoline leaking from underground storage tanks throughout the United States. The product has undergone extensive testing and evaluation. It has been approved for use by the Environmental Protection Agency, and it has been reviewed and issued permits by the Minnesota Pollution Control Agency. P-27 has been found to be both entirely safe as well as extremely effective in cleaning up toxic materials. Our team of scientific advisors has concluded there is no possibility the product could cause any allergic reactions or other medical symptoms in humans or other animals.

As counsel for EnviroClean, we take very seriously any allegations that it could be responsible for a health hazard caused by its product. Please understand that we would vigorously defend EnviroClean and its products against any such frivolous charges to the fullest extent of the resources of this firm. I trust, however, that such pointless litigation and expense will not be necessary.

We are very sympathetic to your recent medical problems, and we wish you the speediest of recoveries.

Sincerely,

Henry Holten

Morrison Edwards was the first to break the silence. “I think this is an outstanding letter, Henry. It’s quite to the point and very convincing that P-27 has been thoroughly tested and is safe. I don’t know about the paragraph referring to litigation possibilities, but I certainly defer to your judgment. My only suggestion would be to delete the reference to both the EPA and the MPCA. I’d substitute ‘federal and state regulators’ in their stead. If this woman should want to pursue this matter further, giving her the names of the appropriate agencies to contact merely invites that possibility.”

“Good point. I can live with that change.” Holten glanced around the room, conspicuously avoiding eye contact with Allison Forbes.

“Are there any other suggestions?”

“I agree with Morrison,” said Thomas Dodd. “But I’d go a step further. I see no reason to mention the product by name. If she should call someone to make further inquiries and not know the name of the product, it’ll be that much more diffcult for her to gain any additional information. Furthermore, we should delete the reference to P-27 being a biological product since this is a red flag for some groups and individuals. She may even become disconcert-ed to know a biological organism has been used next door to her residence.”

“I appreciate these suggestions,” said Holten, “and they can readily be incorporated into the letter.” He finally looked at Allison, his facial expression clearly intimating he felt no need to hear further from his junior partner. “Allison, do you have anything that might cast additional light on this discussion?”

“Not at the present,” she said slowly, recognizing her cue.

“Good,” said Holten. “Since we’re all in agreement, Allison, let me suggest you put together a second draft of our letter and circulate it to all of us for further comment. Dr. Campbell will be here at 1:30, so I hope you can get right on it. Does anyone have anything further?”

No one did. The group broke from the meeting, and Allison returned to her office to write a second draft of the reply letter.

“I apologize for speaking brusquely with you,” Holten said, appearing suddenly in the doorway to Allison’s office. “I shouldn’t have rebuked you publicly.”

“It doesn’t pay to have thin skin in this business,” she replied.

“Will it be difficult for you to take on this assignment, under the circumstances, that is?”

Forbes turned from her computer and calmly smiled at her mentor. “I can write a script for Arnold Schwarzenegger as readily as for Mother Teresa.”

Holten moved from the doorway and sat on the edge of Allison’s desk. He looked directly at her, and she met his gaze straight on.

“I suppose every gifted lawyer has a touch of schizophrenia,” he said after a few seconds. “Just how many personalities do you have in your repertoire?”

“How many do you want me to have?”

“Well, there’s not much need for the Mother Teresa routine at the moment,” he said, “but you might work on a character with a bit more tact than Schwarzenegger.”

Holten walked across Allison’s office and paused a few moments, staring out her window. “Look at the magnificent clock tower of the old courthouse. When it was originally constructed, long before either of us was born, this majestic building could be seen from anywhere in the city. It was an architectural monument to an era when government was still capable of erecting buildings of substance and style, before government budgets were devoted primarily to interest obligations and entitlement programs. Look at the grand promenade of granite steps fanning out from the arched entryway to the sidewalk below.”

Holten paused for a few moments, but he had obviously not completed his thought, so Allison remained silent in her chair facing the window.

“Today the law is little more than a confusing morass of regulations imposing absurd restrictions on our freedoms and destroying our creativity. God, I feel sorry for entrepreneurs like Boyd Campbell.”

“It all seems so unnecessary, doesn’t it?” said Allison. “Especially all the senseless lawsuits. People certainly should be able to work out their differences without hauling each other off to court all the time.”

“Yeah, but it’s sure damn good for the law business,” Holten said, turning from the window.  

 

Holten leaned against the window ledge as Allison sat in her chair facing the window a few feet away. She pulled her skirt down to the knees of her crossed legs, but several inches of thigh still drew Holten’s attention.

Allison smiled and rotated her chair back toward her desk. “I suppose I’d best get on with the job at hand if you want me to have the project done by noon.”

“No doubt there’ll be another opportunity for us to wax philosophical,” Holten said, patting her on the arm and walking out of her office.

Allison contemplated softening the tone of the letter somewhat. She had no doubt that the safest approach for her to take was to stay close to Holton’s draft. But there was also no doubt that Mrs. Bergstrom was a woman of some sensitivity. She did not deserve harsh or threatening language. She decided to write as one woman to another, with a gentle but firm denial of the possibility of any involvement from Campbell’s process.

She rang Mr. Holten’s secretary. “Nancy, does Henry have a squash game at noon today?”

Hearing the expected affirmative response, she told Nancy she would have the revised draft on Holten’s desk by the time he returned.

 

Boyd Campbell stood in the reception area waiting for Holten to arrive. He looked anxiously at his watch and then glanced out the window of the thirty-second floor and saw Holten crossing the street from the Bengal Club. It was 1:30.

“You’re certainly punctual, Boyd,” Holten said as he entered the room and walked directly in front of his client to the corridor leading to his office.

“Are you ready for me?” Boyd asked.

“Well of course. Come on back. Allison’s been working with me on our response to Mrs. Bergstrom’s letter.”

Holten arrived at the door of Allison’s office several paces ahead of his client. “Have you completed the re-draft?” he asked her.

She looked at him with an exaggerated frown. “Have I ever missed a deadline?”

“Good. Bring that ready wit of yours into my office,” Holten said, turning and walking away.

A decanter and glasses were on a coffee table in Holten’s office. “Would either of you care for some iced tea?” Holten asked, pouring two glasses without waiting for a response.

“No thanks,” Allison said.

He picked up three copies of the re-draft, which had been placed at the center of his otherwise empty desk. He handed them to Allison and Boyd, and they each took a few moments to read the letter.

Dear Mrs. Bergstrom,

Thank you very much for your letter of January 11. The president of EnviroClean has asked me to respond to the questions you raised in your letter.

EnviroClean manufactures a product which is used to clean up gasoline that has leaked from underground storage tanks threatening contamination of the ground water. We are pleased that EnviroClean has been able to treat the soil in your neighborhood and rid it of this hazardous substance. We are sure you and your husband will notice a reduction in the noxious odors around your creek next spring after the snow melts.

Our product has been used extensively in cleaning up similar contaminated sites throughout the United States. Naturally, we have subjected it to extensive testing and evaluation. It has been approved for use by federal and state regulators, and it has been reviewed and issued permits by the State of Minnesota. All testing has proven it to be both entirely safe and extremely effective in cleaning up toxic materials. We have discussed your questions with our team of scientific advisors, and you will be pleased to know there is no possibility the product could cause any allergic reactions or other medical symptoms.

EnviroClean takes very seriously any concerns people like you may have about the safety of its product. After all, the very foundation of the company is to prevent possible health hazards. Because of EnviroClean’s unblemished record of product safety, we are very comfortable representing the company and its outstanding products. I trust, however, that our explanation will satisfy your curiosity so you and your doctors can focus your attention on whatever may actually be causing your symptoms.

Thank you for writing EnviroClean. We are very sympathetic to your recent medical problems, and we wish you the speediest of recoveries.

Yours truly,

Allison Forbes

“Well, I see you’ve made a few changes, Allison.” Holten’s voice and tone were mild, but the steely glare of his eyes betrayed his disapproval.

“Henry, this is very good,” Campbell commented, still looking at the letter. “I really appreciate your sensitive approach. I also like the idea that Allison will be signing the letter. I think it’s better to have the response come from a woman.”

“Allison’s a very talented young lawyer,” Holten replied. “Of course, there are a few minor changes I’d like to make to insure Mrs. Bergstrom is persuaded to give no further thought to this matter. We can have that taken care of as soon as you leave, and get the letter in the mail this afternoon.”

“Good,” Campbell said.

“And I do think the letter should come from me,” Holten added. “In case the response finds its way into the office of some unscrupulous lawyer, he’ll quickly know who he’s really up against.”

“Whatever you think best,” Boyd said. “You haven’t steered me wrong yet.”

“I expect you’re going to be meeting with Wendi Palmer this afternoon to get the public offering started,” said Holten. “Allison, why don’t you take Boyd down to Wendi’s office while I put a few finishing touches on the letter.”

As Holten rose from his chair to close the meeting, Allison recalled their earlier dialogue about further testing of the P-27. “This morning we discussed setting up a continued testing protocol for …”

“Thank you for reminding me, Allison,” Holten interjected. “Boyd, we all agree you should continue with your research and development program for P-27. No doubt part of that program will include renewed toxicity testing of this and other strains you may develop. However, and I believe we are all unanimous on this, it would undoubtedly be more productive to proceed as usual with your standard testing protocol rather than to attempt any sampling at the Bergstrom’s creek. I suspect that would only dilute your testing program for no real scientific gain, and, from a legal perspective, field testing at Bergstrom’s is clearly inadvisable at this time.”

Campbell rose from his chair and took a final sip of iced tea. “Sounds good to me. I’ll discuss this with Mary Frick when I get back to the office. Thanks for your help, Henry.”

“That’s what I’m here for, Boyd.” Henry walked his client the few steps down the hall to Allison’s office. “I’m sure this is the last you’ll hear from Mrs. Bergstrom,” he said, shaking Boyd’s hand and heading off to his next meeting.

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