Blood Brothers (13 page)

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?”

“On certain aspects of the project, yes.”

“But not on others?”

“Correct.”

“Is it typical for a researcher working in a company the size of Bjornsen Pharmaceuticals to work on his own on significant aspects of a major new drug?”

Gunnar shrugged again. “I don’t know what’s typical at other companies. I like to work on my own on some projects, and as head of product development that was my prerogative.”

“So there are certain steps involved in making the drug that you developed entirely on your own?”

“Yes.”

“And you never shared your discoveries with other members of your team, right?”

“No, I shared the results.”

“But you never explained to them how you achieved those results, did you?”

“Not always,” Gunnar acknowledged.

“And to the best of your knowledge, the process for making XD-463 is not commonly known in the industry, right?”

Gunnar nodded. “To the best of my knowledge, it’s not known to anyone in or out of the industry except me.”

“So if you’d been hit by a bus and killed, the secret formula for how to make XD-463 would have died with you, correct?”

“I suppose so.”

“And that would be bad for the company, wouldn’t it?”

“It would have been worse for Karl to get his hands on it,” Gunnar replied, lines of irritation forming around his mouth and eyes.

“So by the time you were developing this drug, it was clear to you that the directors were going to vote you out as president. Is that right?”

“No. It wasn’t clear until they actually did it, but I knew Karl was lobbying hard for that result.”

“You knew that a vote on your continued presidency was set for the next board meeting and that there was a significant chance that you would be voted out, right?”

“I did,” admitted Gunnar.

“And that timing wasn’t a coincidence. You intentionally kept key parts of the formula to yourself so that you could use your knowledge as a bargaining chip. You—”

“That’s not true!” interrupted Gunnar, glaring at the attorney. “I—”

“Just a minute. I’m not finished with my question,” said Siwell, raising his voice slightly. “You thought that if you alone had the formula, you could force Karl to come crawling to you to make a deal, didn’t you?”

Ben stood up. “Objection, he’s arguing with the witness.”

“No, I’m quoting him,” returned Siwell. He gestured to one of his paralegals, who removed the cap from the projector, which was already on and warmed up. An e-mail chain appeared on the projection screen. At the bottom was an e-mail from Dr. Tina Corrigan to Gunnar that said,
There’s a rumor you’re leaving. Is it true? I sure hope not.
Above it was Gunnar’s response:
Don’t worry. Without me, Karl can’t make XD-463. Sooner or later, he’ll come crawling to me and we’ll make a deal.

So there’s the first sandbag,
thought Ben. Because preliminary injunctions are heard early in a case, the parties generally aren’t fully prepared and haven’t finished their investigations. Therefore, it’s easier to hit one’s opponent with a “sandbag”—a surprise witness or document that knocks out an opponent in the same way a sandbag dropped from the theater rafters can take out a stage actor. Bert Siwell was famous for his sandbagging skills.

“Your Honor, if Mr. Siwell intended to use this document, he should have produced it in discovery. He didn’t, and he should therefore not be allowed to use it here. This is a trial, not a game of ‘gotcha.’”

“What this is, as Mr. Corbin should know, is a preliminary-injunction hearing,” responded Siwell. “That means that discovery isn’t finished, and occasionally he or his client will get surprised. As it happens, however, neither of them should be—Mr. Bjornsen wrote this e-mail, of course, and Mr. Corbin got a copy of it yesterday, which was as soon as my office could copy the disk it was on and get it to him.”

“That’s simply not true, Your Honor,” rejoined Ben. “I was in my office all day yesterday and didn’t receive any documents from Mr. Siwell.”

Siwell held up a piece of paper. “Here’s the receipt from the messenger service, which shows that the package was delivered at 6:23 p.m. yesterday.” He turned to Ben. “When did you go home last night, Counsel?”

“About five minutes before that”—which Ben suspected his opponent already knew. He wouldn’t be at all surprised to learn that Siwell’s messenger had been told to wait to deliver the package until after he saw that Ben had left the building. That would be impossible to prove, however, and making the accusation without proof would look paranoid and unprofessional. There was nothing he could do except grit his teeth and take the punch.

“All right,” said Judge Reilly, “with that background, I’ll overrule the objection. Mr. Siwell, you may proceed.”

“Thank you, Your Honor. Mr. Bjornsen, you sent this e-mail, didn’t you?”

“I don’t have a specific recollection of it,” replied Gunnar, the indignation gone from his voice and replaced by wary evasiveness.

“But you don’t deny sending it?”

“I don’t recall one way or the other.”

“All right. Do you recall making statements similar to those in this e-mail?”

“It’s possible I said something like that,” Gunnar conceded.

“In fact, you remember doing it, don’t you?”

Gunnar opened and closed his mouth. He looked up at the screen for a long moment, as if hoping that the damning words might change if he watched them long enough. “Now that I see that e-mail, I do have a general memory of saying something like that,” he said at last.

Siwell closed his notes. “No further questions, Your Honor.”

“Your witness, Mr. Corbin,” said the judge.

“Thank you, Your Honor,” Ben said as he walked up to the podium to do whatever damage control he could. “Mr. Bjornsen, were you angry at your brother when he was trying to have you removed as president of Bjornsen Pharmaceuticals?”

“I was.”

“Would you have liked to see your brother come crawling to you to make a deal?”

Gunnar smiled. “I confess occasionally daydreaming about that possibility.”

“Does any of that mean it would be a good idea for Karl Bjornsen to have control of XD-463?”

“No.”

“Why not?”

“Objection, Your Honor,” said Siwell. “That question calls for a narrative and rank speculation. Also, Mr. Corbin has laid no foundation whatsoever for the testimony his client is about to give.”

Ben glanced at the clock. “I hadn’t planned to put on my case-in-chief today, Your Honor, but I’m happy to do it if the Court would like. Once I do, it will be clear that Mr. Bjornsen’s testimony is neither speculation nor foundationless. But that will take a while, and I see that it’s four forty-five.”

“Well, now I have another ground for my objection,” said Siwell before Judge Reilly could respond. “Mr. Corbin is not entitled to put on his case-in-chief in the middle of mine.”

“That’s something that Mr. Siwell should have thought of before he opened the door on this subject by blindsiding my client with that e-mail,” Ben shot back. “We’re entitled to fully respond to—”

“This is ridiculous,” interrupted Siwell. “I didn’t—”

Judge Reilly flushed and held up his hand. “We’re not doing this again, Counsel. Mr. Corbin, I recognize that your client was surprised today, and you can respond fully in your case-in-chief, but that will have to wait until Mr. Siwell is done with his case. Court is now in recess until tomorrow morning at nine o’clock.”

“Thank you, Your Honor,” Ben and Siwell said in unison.

C
HAPTER
E
IGHT

S
MALL
V
ICTORIES

It was two in the morning and the sun had sunk as low as it was going to go. It hung near the horizon, casting long shadows in the sleeping town of Torsknes and turning the choppy waters of the quiet harbor into a million flashes of deep gold. A handful of crab boats chugged in or out between two battered stone-and-concrete seawalls that protected the harbor from the full fury of the Arctic Sea during winter. Two long rows of boats, mostly rigged for crab or cod, floated in their berths along a massive concrete pier.

One of them was Tor Kjeldaas’s
Agnes Larsen
. She had been patched and repainted after her encounter with sea ice two months ago. Captain Kjeldaas had done as much of the work as possible himself, but the repair bills still had been more than he could afford, particularly after paying the fine necessary to get his boat back.

The grizzled old man sat on his boat’s deck in dirty denim overalls, watching and waiting as a heavily loaded blue pickup truck turned off of Havnegate, Torsknes’s main street, and onto the pier. The truck slowly rumbled up to his boat and stopped. “You are late, Ola Magnus,” he called out as the truck’s engine coughed to a stop. “I should have been out to sea by now.”

“What could I do?” replied the other man as he got out of the truck. He was younger and cleaner than the fisherman but had the same weathered look. “The shipment was late coming in from Oslo. Here, I can help you load. That will make up some time.”

The two men worked in silence for the next half hour, taking boxes from the back of the truck and stowing them in one of the boat’s holds. When they were through, they spread an old tarp over the boxes and took several hundred pounds of cod from another hold and dumped it on top of the tarp. The sun was warm, but the refrigerated holds were dark and cold. Both men were shivering and blowing on their hands when they finished working. The truck driver yawned and stretched. “Time for bed.”

“For you, maybe,” Kjeldaas replied as he squinted into the rising sun. “Cast off that rope at the bow before you leave.”

The captain primed the engine and gunned it to life. He eased the little ship out of its berth and guided it toward open water and the shipping lanes that carried traffic between Norway and Russia. During the Cold War, the Norwegian-Soviet maritime border had been vigilantly patrolled by wary destroyers, bristling with weapons and sensors, which made undetected travel through these Arctic waters impossible. Now, there were only a few lightly armed ships of the Kystvakt keeping a leisurely eye on the bustling traffic between Russian and Norwegian ports. Their main purpose was to protect their national fisheries from poaching, so they tended to cruise the fishing grounds and mostly ignored coastal traffic.

They did, however, make exceptions for known smugglers. As the fishing boat rounded a small cape of lichen-and-moss-encrusted stone, a cutter flying the Norwegian flag hove into view. A moment later, the radio in the fishing boat’s pilothouse crackled to life. “This is Kystvakt vessel
KV Farm
calling fishing vessel
Agnes Larsen
. Come in,
Agnes Larsen
.”

“This is
Agnes Larsen
,” replied Captain Kjeldaas. He looked out the streaked window and saw two sailors emerge from a forward hatch to man the gun on the
Farm
’s deck. He could also see that the cutter was swinging around to match course and speed with his boat.

“What is your cargo,
Agnes Larsen
?”

“Cod for the fish market at Yuragorsk.”

“We see no crew on your decks.”

“This is the captain. It was late, so I made port in Torsknes and dropped them off. I am taking our fish to market by myself.”

The radio was silent for several minutes, and Captain Kjeldaas began to hope the
Farm
would leave him alone. But then the radio squawked again. “
Agnes Larsen
, prepare to be boarded for inspection.”

The fisherman sighed and watched as the cutter let down an inflatable rubber speedboat with three sailors in it. The launch crossed the short distance between the vessels, pulled alongside the fishing boat, and tied up at the base of a rusty ladder. This maneuver, which had remained substantively unchanged for centuries, was necessary because it is virtually impossible to bring two vessels of any size close enough together on the open sea for sailors to cross between them without one ship bumping into the other and damaging both.

The captain greeted the sailors at the top of the ladder. To his dismay, he saw a familiar face.

“Good morning, Captain Kjeldaas,” said a dour-faced ensign. The man had been on the previous inspection that had uncovered a hold full of unauthorized vodka on its way to a black-market distributor in Torsknes. “What are you carrying this time?”

“Cod. I already told you.”

“We will see.” The ensign took his men back to the holds and kicked open the hatches. He shone a large flashlight into each. One held only cold darkness and a puddle of foul water. In the other, the beam revealed a layer of gleaming cod. The familiar, thick smell of hundreds of fish floated up through the open hatch. He turned to the fisherman. “What will I find under those fish?”

“More fish.”

“Mmm,” the ensign grunted. He looked down into the hold again. “Today, I will trust you. But if you were going the other way, I would go in there and move the fish or make you do it. Liquor smuggling is a serious offense.”

“If you want to inspect me again when I go back to Torsknes this afternoon, go ahead. You won’t find any vodka.” This was true. He had made his regular vodka run two days ago and would not be doing so again for another week.

The ensign made no reply. He and his men returned to their launch and motored back to the cutter. The fisherman returned to the pilothouse and watched them go with a carefully expressionless face. Once the men were aboard the
Farm
and the launch was stowed, the sailors manning the deck gun went inside and the Kystvakt ship turned and headed back for the fishing grounds, leaving a broad white wake.

As the cutter receded into the distance, Captain Kjeldaas allowed himself a triumphant grin. He opened a drawer under the radio and pulled out a bottle of vodka and a chipped glass. He poured himself a drink and raised a victory toast to the cutter’s rapidly receding stern.
“Skål!”

Fifteen hours later, and more than four thousand miles away, Karl Bjornsen sat in the chair on the witness stand in Judge Reilly’s courtroom. He wore a well-tailored charcoal-gray suit with a red silk tie and a cream shirt that set off his tan. He smiled and looked relaxed as he testified. Despite being nearly as tall as Gunnar, he managed to find a way to look comfortable in the awkwardly designed chair. In fact, he gave such a favorable visual impression from the stand that Ben suspected he had worked with an acting coach.

Siwell stood at the podium, conducting his direct examination of Karl. Both men were doing a good job, which was no surprise. Direct exam is usually carefully scripted and practiced. Ben was certain that Karl and his lawyers had rehearsed Karl’s testimony several times—just as he had rehearsed with Gunnar and would do so again before Gunnar took the stand a second time.

Because Siwell had put in a fair amount of background testimony through Gunnar, Karl’s testimony focused on the two main issues in the case: whether he was defrauding the company and whether Bjornsen Pharmaceuticals would suffer any irremediable harm if their injunction request was denied. Accompanied by a slick PowerPoint presentation from Siwell’s graphics consultant, Karl talked at length about the financial controls at his company, the quality of their outside auditors, how stupid it would be for him to commit fraud in light of his large stock holdings in the company, and so on. Ben objected from time to time, but there was little he could do to keep Karl’s testimony from turning into a marketing presentation on his responsible and ethical management style.

Karl then turned to the grave danger to Bjornsen Pharmaceuticals’ stock price if the company did not have the full and unquestioned ability to produce Neurostim. Despite good news on all other fronts, he claimed, Gunnar’s actions were dragging the stock down. If Gunnar wasn’t ordered to turn over the formula immediately, Karl warned, the stock price could drop still further, doing damage to thousands of stockholders.

Siwell sat down, and Ben Corbin took his place at the podium. Ben took a few seconds to arrange his notes before looking up at Karl. “Good morning, Mr. Bjornsen. Your company has a Norwegian subsidiary, doesn’t it?”

“Yes.”

“Do the auditors you mentioned review the subsidiary’s financial statements and work papers?”

“Not the originals, but we give them translations.”

Ben turned and pulled a stack of documents from a box on the table to the left of the podium. He handed copies to Karl, the judge, and Siwell. “Mr. Bjornsen, I’ve just handed you what’s been marked as Defendant’s Exhibit A. Do you recognize this document?”

Karl flipped through it. “Yes, this is a set of accounting-detail reports from Bjornsen Norge AS, the subsidiary you mentioned. It covers the first quarter of 2015.”

“These are some of the work papers that provide the backup for the financial statements?”

“That’s right. This document is also used as a report for executives, so it contains more information than is typical of other detail reports I’ve seen.”

“But the bottom-line numbers from this document become entries in the financial statements, correct?”

“Yes.”

“And your auditors get English translations of documents such as this?”

“Yes.”

“But they don’t actually audit the detail reports, do they?”

“I think they only audit the financial statements, not backup materials like this. Our CFO will know more about that, though.”

Ben turned and pulled out another document, which he handed around. “I’ve just handed you a copy of Defendant’s Exhibit B. Do you recognize this document?”

Karl froze and his face turned gray beneath his tan. “Where did you get this?”

Ben suppressed a smile. Gunnar had brought this document to Ben’s attention and partially translated it for him. Siwell apparently didn’t have anyone on his litigation team who read Norwegian and therefore had neither recognized the significance of the document nor discussed it with Karl. “I believe it came from the file cabinet behind the desk in your office. By the look on your face, am I correct in guessing that you recognize it?”

Siwell jumped to his feet. “Your Honor, I object. This document was apparently stolen from Bjornsen Pharmaceuticals. It should not be received into evidence, and Counsel should be sanctioned for attempting to use it.”

“Your Honor,” replied Ben, “this document was not stolen. While my client was still employed by Bjornsen Pharmaceuticals, he asked Karl Bjornsen’s secretary for a copy of Bjornsen Norge’s accounting-detail reports for the first quarter of 2015. She went into his office and found this in the file cabinet behind his desk.”

“And your client will so testify when he takes the stand again?” asked Judge Reilly.

Gunnar nodded and Ben said, “Yes, Your Honor.”

“All right, with that representation, I’ll overrule the objection. You may proceed.”

“Thank you. Mr. Bjornsen, this is also a set of accounting-detail reports for Bjornsen Norge for the first quarter of 2015, isn’t it?”

“It, um, it appears to be. I can’t say for sure.”

“Well, let’s compare it to Exhibit A. The first pages of both documents are the same, except that the first page of Exhibit B has the words
‘Kun Internt Bruk’
in the upper-right corner. Do you see that?”

“Yes.”

“That means ‘Internal Use Only,’ doesn’t it?”

“It can be translated that way,” Karl acknowledged.

“Now look at page eighteen of both exhibits. That’s a table showing the net profits from Bjornsen Norge’s largest customer accounts, isn’t it?”

“That’s what it looks like.”

Siwell stood up again. “I object to this whole line of questioning. These documents speak for themselves.”

Ben opened his mouth to respond, but the judge beat him to it. “Yes, but they speak in Norwegian. These appear to be key documents, and I want to hear the witness’s interpretation of them.”

“Thank you, Your Honor,” said Ben. “Mr. Bjornsen, the third account listed on Exhibit B is Cleverlad.ru. Bjornsen Norge made a profit of 3,100,493 kroner on that account. Do you see that?”

Karl shifted in his seat and hunched forward. “I do.”

“Three million kroner is worth about five hundred thousand dollars, isn’t it?”

“That, uh, that sounds about right, though you’d have to check today’s exchange rate.”

“Now I’d like you to look at page eighteen in Exhibit A. That’s the same list of accounts, isn’t it?”

Karl shook his head. “No, there seem to be some differences.”

“Cleverlad.ru is gone and the profit total at the bottom is lower by 3,100,493 kroner. Do you see any other differences?”