Chapter 35: Negotiations

February 2, 1988, Cincinnati, Ohio

"Steve Adams, you remember Franklin Volstead and Arthur Braun," Ben van Hoek said.

"I do. Good afternoon, Sirs. This is Jamie Ferguson. His firm, Allen & Baker, handles all of our legal matters."

There were handshakes all around and as a secretary offered us drinks, business cards were exchanged. Mr. Volstead indicated we should sit and as Jamie had predicted, Ben left the room. Jamie had assumed that the partners would want to handle this privately and whatever came of it would, Jamie had also predicted, be under a complete non-disclosure agreement.

"First of all," Mr. Volstead said, "I want to assure you that no attorney in this firm, nor any employee, had direct knowledge of, nor took any part in this scheme. Second, I need an agreement that nothing that is said or done here will be revealed to any third party unless both our firm and your company agree to reveal that information."

As we'd agreed, Jamie spoke for me.

"We can agree to that, though from NIKA's perspective, at least the Chairman of the board would need to be informed of any deal that we make."

"That's reasonable. I have a mutual non-disclosure agreement here. It's quite short, and in standard form."

He pushed a single sheet of paper over to Jamie. I was surprised to see a legal document take only half of a standard page, but it really was, simple. Jamie read it, and pushed it over to me to sign.

"Put Joyce's name and your name on the blanks," he tapped with his pen, "and then sign it."

I did, and he pushed it back across to Mr. Volstead who signed it as well.

"OK," Mr. Volstead said. "We have a settlement offer here. Please read it. If you need more time, that's fine, but if we can do this today, we think it would be best. We'll leave you two to discuss this. Just pick up the phone and dial '11' and my secretary will answer."

They got up and left and Jamie and I quickly read over the terms. This was more like a contract, and ran four pages. I let Jamie read through it, and watched as he made notes on a yellow legal pad that he took from his briefcase. When he finished, we looked at the terms together.

"Only you can decide if the financial considerations are enough, but they do note that my fee is separate from what they are paying NIKA, so you'll get this actual amount. They also agree to turn over the list of firms that received copies of your software from Braun's son. And to provide a sworn statement that he won't engage in re-selling your software in the future. BUT, notice here, you don't get to talk to him, and you can't go to court later to try to change the deal without returning all the money first. And even then, you might not get a judge to agree that you can sue."

"Will that provision hold up?"

"Probably. You never know with a judge, but most of the time when you agree to a settlement, you give up any rights to go to court about it later unless there is material fraud."

"I don't like the idea of not talking to the son," I said. "I have some pretty important technical questions for him."

"I know, but they hold all the cards on that one. If you try to use the courts to force him to talk, you'll win, eventually, but it could take years. And trust me, lawyers know how to tie things up in court forever."

"Gee, thanks, Jamie! Whatever would we do without lawyers?" I asked sarcastically.

"Ask your friend Melanie," he said simply.

He had me there. I didn't like the legal system all that much, and lawyers even less, but certain situations did call for lawyers. Including the one I was involved in at the moment.

"Fair enough," I chuckled. "But I'm not under arrest here. Do you think we can get them to change that?"

"I doubt it. We can feel them out, but I suspect that there's more to this than they're letting on. But that's not our concern. Our concern is your company and your software. Can you get the information you need some other way?"

"If we can get a look at the modified software at any of the firms that have it, I think Greg can reverse engineer whatever they've done to bypass the security. It's not quite as good, but it's close. The thing is, as you well know, the guys in Dallas absolutely refused to talk to us."

"We'll have some new leverage. We can use the list of firms that we'll receive to put pressure on all of them collectively. We can't say HOW we got the list, but we can use it."

"What do you think? Should I take this deal?"

"You have a few alternatives — settle, sue, or surrender. I'm guessing that last one is out, because I know you well enough that you aren't just going to let this go, and I certainly wouldn't recommend it. A lawsuit could potentially last years and cost you a fortune. If you won, you could probably recover your costs, but you have to spend that money up front. We can't take a case like this on contingency. Even if you win, you might not get much more than they're offering in settlement — some money and the list. And that could be a year, two years, or even five years from now."

"You're just full of good news," I sighed.

"Think of it this way. It's a situation like the US and USSR with Mutual Assured Destruction. Going to court could destroy both firms. So you don't go to court. Remember what I told you about judges and juries? And how the goal of a business attorney is to stay the hell out of court? You're getting a glimpse of why. Court is a crapshoot. The settlement is a sure thing."

"So your advice is to take the deal?" I asked.

"The money they're offering is basically hush money. And remember, we'll likely recover something from each of the firms which are using your software illegally. We'll do the same for them — offer them a settlement and non-disclosure agreement."

"Are there any other issues with the settlement contract?" I asked.

"In my first reading, no. What we should do is make a handshake agreement, or if they insist, sign an offer and acceptance letter that's contingent on a formal review of the contract. I want to take time to go through it with a fine-toothed comb. Lawyers have a propensity for using sneaky language."

"You're just filling me with confidence, Jamie!" I chuckled.

"Like you didn't know that already? Yes, take the deal, with the caveat that we'll sign by the end of the week."

"OK," I said, reaching for the phone.

Mr. Volstead and Mr. Braun were back in the room a minute later. Jamie spoke for me.

"We'll take the deal, though I would like some time to review the contract in my office. Barring any issues, we'll have a signed copy back to you by Friday. Will that work?"

Mr. Braun looked like he was about to say something, but Mr. Volstead put his hand on his arm.

"Yes. That will work. When we have the signed contract, we'll send a check and the list of firms to you by overnight express."

"To my office, please," Jamie said.

"We'll do that. Steve, Ben van Hoek asked that you stop in his office before you leave. Please remember, he is not privy to this conversation and you can't speak to him about it."

"Yes, Sir, I understand."

We all shook hands and Jamie walked with me to Ben's office.

"Do you have time for dinner?" he asked.

I checked my watch, and it was just after 2:00pm. If we waited until 7:00pm to leave for Chicago, we wouldn't get in until nearly midnight. That was fine with me, but I wasn't sure that would work for Jamie.

"Jamie, what do you think? We'd end up getting home around midnight."

"That's more or less what I'd expected," he said. "The meeting only taking an hour was something of a surprise."

"Good. Nothing fancy," Ben said. "There's a steakhouse about two blocks from here on Vine. Shall we say 5:00pm?"

"Sure. We'll meet you there," I said. "May I borrow the phone?"

He nodded, and I dialed Joyce's office. Nancy answered and put me right through. Joyce was available, so Jamie and I shook hands with Ben, confirmed the location of the restaurant, and then left the office building to walk the eight blocks to where Joyce had her office.

"Hi, Steve!" Nancy said happily when we walked in.

"Nancy, this is Jamie, a friend, and my business attorney. Is Joyce in her office?"

"Yes, go right in!"

We walked into Joyce's office and shut the door.

"I assume Julia filled you in on the software piracy issues," I said.

"Yes, at least up until this meeting you had today."

"We signed a non-disclosure agreement and reached a settlement. Jamie can tell you the details."

He pulled out his legal pad and read off the details from his notes.

"You can't reveal any of this to anyone, Joyce," Jamie said. "And that includes other Board members, and staff."

"So the little bastard walks away free?" she asked.

I chuckled, "Dave commented that it was too bad that my Italian friends weren't Mafiosi, because that would allow us to put a contract out on him!"

Joyce's eyes twinkled at the shared joke. She and I knew that they WERE, but Jamie sure didn't, and there was no way we were going to let him in on that little family secret.

"Yes, of course, everyone has heard of the fearsome Cincinnati Mafia!" she laughed.

"There's always George Remus," I offered. "But he was a German bootlegger during Prohibition. He pretty much single-handedly kept Cincinnati flowing in booze when the Volstead Act was in force."

"Is the lawyer we saw today any relation?" Jamie asked.

"No idea. I knew the name, but I never asked. You could ask Ben at dinner. Joyce, do you have any concerns about the settlement?"

"Not unless you do."

"No, I just wish we could talk to the kid, but Jamie suspects that there is more to this than meets the eye, and because we can address our concerns without talking to the kid, he thinks we should take the offer."

"I suspect that they want to protect the son, and he might be doing more than just reselling NIKA's software," Jamie said. "I would expect Mr. Braun to handle it in his own way. It doesn't really affect us, and my only job is to make sure that NIKA is protected. I think the most important thing we can get is the list of other firms who are using unlicensed software. The money is really just their way of inducing us to settle and not sue."

"How will you handle those other law firms?" Joyce asked.

"We'll contact them, let them know what we know, and offer a settlement with the obvious threat of legal action and public exposure if they don't settle with us."

"Are you going to try to convert them as customers?" Joyce asked me.

I nodded, "That will be part of the settlement. The terms will be generous if they agree to legally license the software. Basically, if they 'fess up and pay up, we'll let bygones be bygones."

Jamie was taking notes on his ever-present yellow legal pad as Joyce and I were talking.

"And if they don't?" Joyce asked.

"Then I'll have to find some REAL Italian friends," I teased. "Or maybe have a word with Mr. King at the union!"

Jamie stopped writing, "I'd advise not even joking about that."

"And that's why Grandfather hated lawyers!" Joyce laughed.

"And Penny tells ME that I'm no fun!" I grinned.

Jamie sighed, "Sure, beat up on the lawyers!" but he was smiling.

"Forget all that crap for now," I said. "How's the baby coming along, Joyce?"

"I'm due in five or six weeks," she said.

"How are you handling things with Jake?"

"He has enough leave to spend two weeks with me when I have the baby. The trick will be getting here in time. He has an aviator friend who can fly him from the Naval Air Station at Jacksonville to Wright-Patterson Air Force Base in Dayton."

"Our tax dollars at work!" I chuckled.

"His buddy needs some cross-country time in the F-14 for his proficiency test, and he's saving it for when Jake needs a lift."

We spent about an hour with Joyce before I hugged and kissed her and Jamie and I headed to meet Ben van Hoek for dinner. We walked into the restaurant and a very excited Becky greeted me with a hug and a quick kiss on the cheek.

"Jamie, this is my friend Becky," I said. "We used to play chess against each other back in High School."

"Nice to meet you," he said.

"You look really handsome in that suit, and the suspenders just make it perfect!" Becky gushed.

After getting the gift of suspenders, I'd had the tailor sew buttons into each of my new suits to accept them. Kara and Jessica had both really liked the look, and Becky certainly did.

"Thanks!" I said with a smile.

Ben came in a few minutes later and we were seated. We had a good conversation, though we avoided the software piracy issue because of the non-disclosure agreement. I was pleased to hear that Becky had her full-time teaching job, and that everything was going quite well for her. I picked up hints that she was seeing someone, but didn't feel it was my place to ask, and she didn't volunteer anything. I hoped that was true, and I hoped that whoever he was, he could make her happy. When we finished dinner, Jamie and I shook hands with Ben, and I got another hug and kiss on the cheek from Becky.

"Steve, I'm sorry for any trouble this has caused," Ben said.

"It's not your fault, Ben. It'll all work out OK in the end."

"Thanks."

"Next time tell me you're coming to Ohio!" Becky said, sounding a bit cross.

"I expected to be in a meeting all afternoon at your dad's firm, and I have to be back in Chicago tonight. Besides, he knew I was coming!"

She gave her dad an evil look, but he just laughed it off.

"Princess, it was a quick business trip. And Steve's right; we expected the meeting to take longer. I did call you once I knew he was available for dinner."

"Call me, Steve, and do come see me when you have a chance," she said sweetly.

"I will," I said.

Jamie and I took our leave of them and headed back to my car for the long drive back to Chicago.

February 3, 1988, Chicago, Illinois

"8 pounds, 2 ounces, 22 inches long," Dave said when I answered the phone just after 7:00am on Wednesday morning.

Before Kimmy came in, the phones were on the 'Night Bell' and could be answered from any desk.

"Congratulations. Does this baby have a sex and a name?" I chuckled.

Dave laughed, "Sorry, it's Peter David Kallas. Named for our paternal grandfathers."

"I assume Julia's doing OK?"

"Absolutely. Though she's beat because she went into labor about 10:00pm last night and delivered an hour ago."