Chapter 16B: Pauline

Frowley was still infuriated when Pauline called him two hours later. She was forced to endure a five-minute lecture about lack of decorum and uncouth behavior and proper legal procedures and judges who didn't know their ass from a hole in the ground.

"That's all very interesting, Frowley," she said when he finally wound down. "Now, if we could get to the point of my phone call?"

"What do you want?"

"I would like to arrange a meeting between you, myself, and at least one member of National Records management with decision-making capabilities. I would like for this meeting to take place today, preferably before the close of business hours."

"You're out of your mind," he replied. "We'll meet you in court. Round two might have gone to you but the fight will go to us and you know it."

"This meeting," Pauline said, ignoring his speculation about what she did or did not know, "will be to discuss a possible settlement to this matter, something that will get the band back to work and the next Intemperance album back in production."

There was a long pause. Finally, "If your settlement involves changing the band's contract in any way, you can forget it."

"I will discuss the terms of the settlement during the meeting and only during the meeting, and only if National management is present."

On his end of the phone line, Frowley opened his mouth to tell Pauline to take a flying fuck. He closed it before anything could come out. Something occurred to him. If they did meet and this so-called lawyer from Bum-fuck Egypt actually admitted that the band was producing sub-standard material — something it seemed quite likely she would be dumb enough to do — they would be able to go back to Judge Remington and get their court order. He smiled. "Let me see what I can do," he told her. "Is there a number I can call you back at?"

They met at the National Records Building at four o'clock. Hoping to impress and overwhelm Pauline — who they viewed as a small-town, small-time, hick lawyer similar to Gregory Peck's character in To Kill A Mockingbird — the meeting took place in the executive briefing room on the top floor. Both Casting and Doolittle were present, backed up by Frowley and his entire entourage. The lawyers and the executives were all decked out in their best power suits. They greeted Pauline warmly and sat her in a small chair that faced all of them in their raised chairs, forcing her to look upward just to talk to them.

"Is there anything we can get you before we begin?" asked Casting, ever the perfect host. "A drink perhaps?"

"No, thank you," Pauline replied.

"How about a line or two of our best cocaine? I've found that these things sometimes go smoother if everyone is a little relaxed."

"Again, no, thank you," Pauline said. "I have a nine o'clock flight back to Heritage so I'd just assume get this over with."

"As you wish," Casting said.

"Do you have any objection to the meeting being recorded?" asked Frowley.

"None at all," Pauline said. "In fact, I was going to ask you the same thing." With that, she opened her briefcase and removed a small micro-cassette recorder. She gave it a quick check, turned it on, and spoke softly into it, reciting the time, date, place, participants, and purpose of the meeting. She then sat it on the table before her, leaving it running.

Frowley gave her an isn't-that-cute look and then repeated the procedure with his own micro-cassette recorder.

"Now then," Frowley said. "It is my understanding that you have come here today with a settlement proposal. Is that correct?"

"Yes it is," Pauline said.

"Well, let's hear what you have to say and we'll consider it."

"Very well." She took a deep breath. Her wording here would have to be very cautious and very precise. To make an admission of any kind that the band was doing any of this purposefully would be an automatic disqualification from the game now afoot. Yet she still had to convey her demands to them and offer them reassurance that if they played ball things would return to normal. As such, she had carefully composed and rehearsed the manner in which she was about to present her case to them. "My clients seem to be suffering from a very bad case of creativity block, wouldn't you say?"

Frowley fielded her serve and neatly volleyed it back to her. "That is one way of putting it," he said.

"I can't think of any other way," Pauline told him. "That tape they submitted to you was awful. It was the worst thing they've ever done."

Frowley raised his eyebrows a tad. Was it really going to be this easy? "So you admit they are deliberately sabotaging their music?"

She smiled, letting him know that it wasn't really going to be that easy. "No, of course not," she said. "They are not deliberately sabotaging their music. Quite the contrary. They honestly tried their best to be creative in their latest endeavor. They are very upset that you do not consider it to be acceptable. I'm afraid they've lost confidence in their abilities to produce any more music."

"I see," Frowley said. "So this is a crisis of confidence, is it?"

"Partly," she said. "Although I think this current crisis is simply a symptom of a much larger problem."

"And what might this much larger problem be?"

"Stress," said Pauline. "Stress caused by the way they have been treated by National Records under their current contract."

Frowley rolled his eyes. "Stress caused by the contract, huh? I knew it would come down to this. My clients will not renegotiate the Intemperance contract in any way, shape, or form. That is set in concrete, my dear. We will reject any settlement offer in which that is one of the terms."

Pauline simply shrugged. "Your contract is exploiting the band quite dreadfully. You are making millions of dollars in album sales, singles sales, concert revenue, and merchandising revenue while the band is going hundreds of thousands of dollars into debt to you. They are being treated in a manner that is frightfully unfair and they are resentful of this. I, for one, know that Jake, my brother, has a particular hatred of being treated unfairly."

"So he decided to sabotage his music in response to this perceived unfairness?" Casting asked.

"No," Pauline said. "I don't believe that to be the case at all. I believe the stress and humiliation of being little better than indentured servants to a greedy corporation has caused the band to lose their creative edge."

Frowley gave her another eye roll, a bigger one this time. "And whatever might we do, Ms. Kingsley, to give these poor boys their creative edge back?"

"It's quite simple," she said. "You need to start treating them fairly."

"And how, may I ask, might we do that?"

Pauline smiled sweetly. "Well, I think renegotiating their contract might just do the trick."

Casting and Doolittle groaned. Frowley shook his head in disgust.

"This meeting is now over," Casting said. "I should have known better than to agree to it in the first place."

"I quite agree," said Doolittle.

"Your clients have two choices, Miss," Frowley said. "They can submit acceptable material in the next two weeks and record it at National's direction or they can be sued for breach of contract. I'm sure even a small-timer like yourself knows they don't have a chance in hell of winning a breach of contract suit at trial."

"Yes," Pauline said. "I am aware of that. But if that happens they won't be the only losers now, will they?"

"We're not renegotiating," Frowley said.

Pauline looked over at Casting. "Mr. Casting, if you sue Intemperance for breach of contract and win you will get next to nothing out of them. They are musicians and musicians only. They do not know how to do anything else. If they can't play their music, they are not going to become stockbrokers and make millions buying and selling. They are not going to go to medical school or law school or engineering school. They'll end up working at gas stations and convenience stores making minimum wage. You can garnish their wages for the rest of their lives and you won't get enough to pay for a month's retainer on Mr. Frowley's firm. You understand that, don't you?"

"We understand," Casting said. "And we don't care."

"Really?" she asked. "You don't care that you'll be losing somewhere in the vicinity of eighty million dollars in revenue?"

"That argument won't work," Casting said. "We've already told your little brother this but he didn't seem to get it. So now, we'll tell you. You seem to be the smart one in the family so maybe you'll be able to grasp this. If push comes to shove we will eat that eighty million dollars and destroy Intemperance forever. We will do this without hesitation in order to avoid setting a precedent. Do you know what a precedent is, hon? Did they go over that term in whatever rural law school you attended? If we renegotiated the Intemperance contract because of this asinine and illegal stunt your clients pulled, we'd have twenty other bands in here before the ink was even dry trying to pull the same thing. That would end up costing us a hell of a lot more than eighty million in the long run. So the answer is no. No way, no how are we going to allow a band — no matter how successful or profitable they are — to blackmail us like this. It will not happen. Never!"

Pauline sat, expressionless, throughout this tirade. She had been hoping they would give in once they realized that Jake and Matt and Bill, the heart, soul, and creativity of the band, were truly prepared to go to the wall on this issue. After all, eighty million dollars was a lot of money for a corporation to throw away. But now it seemed that National was prepared to go to the wall as well. It was time to play her final card, a card that was — at least in part — bluff and bluster.

"You seem to be fond of the word 'precedent', Mr. Casting," she said. "Let's talk about that for a minute."

"I have nothing more to talk about," Casting said. "As I told you, this meeting is now over."

"Oh, I think you might want to listen to this last little bit I have to say. After that, I'll leave peacefully and quietly."

"Fine," Casting said. "But we're not changing our position."

"Understood," she said. "Now we were talking about precedent, weren't we? They did teach me about that word at that little old law school I attended and it's a very good word, a very good concept. In this particular matter it ties neatly into another little legal term I learned there, something called 'unenforceable provisions'. Have you ever heard of that one, Mr. Casting?"

Casting hadn't, but Frowley had. "Oh please," he said. "Your unsophistication at the study of law is really showing now. There is no way on God's green earth unenforceable provisions could possibly fly in this case. Not even with that drooling moron who sat in judgment this morning."

"Don't think so?" Pauline asked.

"I know so," Frowley said.

"What exactly is this unenforceable provisions thing we're talking about here?" asked Casting.

"It's nothing, sir," Frowley said. "Absolutely nothing but this ambulance chaser grasping at straws. There is no way it could even remotely be applied here."

"Probably not on initial judgment," Pauline allowed. "But on appeal... well, that could get interesting now, couldn't it?"

"You would be laughed out of the courtroom," Frowley said.

"Excuse me," Casting said, "but what exactly are we talking about here?"

"It's a pipe dream," Frowley said. "An area of the law that has no relationship to a music contract."

"Since Mr. Frowley doesn't seem to want to explain 'unenforceable provisions' to you," Pauline said, "perhaps you would allow me?" She paused and when no one spoke up to tell her no, she explained it. "An unenforceable provision is a clause or clauses put into a written contract that is considered so contrary to acceptable behavior that even if the party to the contract voluntarily signed off on it and understood it the law will not allow the enforcement of it. In effect, by its very nature, the provision is considered unenforceable. The most obvious application of this concept is when someone inserts an illegal act into a contract. For instance, if you had put in that if Intemperance does not sell enough albums to cover your initial outlay of funds, they would have to smuggle two hundred pounds of cocaine across the border for you."

"We have no such clause in our contract," Casting said.

"That was just a simplified example of illegal provisions," Pauline said. "I made it so you would understand the concept. Another example would be outrageous acts. The example they like to give in law school — at least at the hick law school I went to — is a company puts in a clause that says if a supplier does not deliver on schedule he has to cut off his right arm. Just because the supplier signed and consented to such a clause does not make it enforceable."

"We have nothing like that in our contract either," Casting said.

"Of course you don't," said Frowley. "I told you she was grasping at straws."

"Again," said Pauline, "those were just simplified law school examples used to teach the basic concept of unenforceable provisions. Why don't we talk real world here for a minute? I personally have worked on three unenforceable provisions cases in my career and have taken two to litigation, one of which I won, the other I lost. In the first case, a fertilizer firm — I know, that hick thing again — put into its supply contract with one of our farming conglomerates that if they, the supplier, failed to deliver the promised amount of fertilizer on time and in the proper amount, they were still entitled to payment in full. The conglomerate signed this contract voluntarily — this was before my time or I would have advised against it — and then, one day, a train derailed and destroyed an entire shipment. The supplier demanded full payment under the contract. The conglomerate refused and I challenged the clause on the grounds it was an outrageous concept for a client to have to pay for a lack of delivery that was in no way their fault. The judge agreed and the clause was stricken from the contract."

Frowley clapped his hands contemptuously. "Bravo for you. You've wiped out injustice at the hands of those dreaded fertilizer cartels and made the state safe for good farming. But that has absolutely nothing to do with the Intemperance contract."

"It has more to do with it than you think, Mr. Frowley, but let me tell you about the other case I litigated — and lost. It will perhaps hit a little closer to home. You see, one of our clients is a large warehouse type of store — I'm sure you'd know the name if you heard it. Well, in northern California a few years ago there was this amateur inventor who designed and built these little brown gardening wagons."

"Gardening wagons?" Frowley cried. "How much more of this backwoods pseudo-law do we have to listen to?"

"Just this one more," Pauline said. "I promise."

"Sir," Frowley said to Casting, "she's trying to bluff you because that's all she has left."

"Maybe," Casting said thoughtfully. "But let's hear her out. Continue, Ms. Kingsley."

"Thank you. Anyway, this amateur inventor showed his little brown gardening wagon to some folks at the local warehouse store and they agreed to sell it for him. He delivered ten of them and apparently people really liked them. They snatched them up inside of a week. The store was intrigued and they asked him to make ten more. These too were snatched up. The store manager realized he was onto something here so he told his boss about the little brown gardening wagon. His boss told his boss and soon this warehouse store offered the inventor a contract to produce sixty of these wagons a week to be sold in eight stores throughout the region. The inventor's cost for materials for each wagon, at the time, was six dollars. The store promised to pay him twenty dollars for each wagon and they sold them for forty-five dollars.

"This went on for almost a year and then along came that whole spotted owl issue. I'm sure you've heard about that. The spotted owl is an endangered species and it just happens to live in some of the most productive timberland in the United States. Vast tracts of this timberland were placed off-limits to logging, thus ensuring that there was not as much timber available on the market. This, according to the law of supply and demand, drove up the price of timber, particularly the prime cuts our inventor needed, and it was now costing him almost twelve dollars to produce each wagon instead of six. This brought the inventor's profit margin down from $840 per week to $420. This was not enough for the inventor to live on. He asked the warehouse store to please increase his per-unit fee so he could offset the cost of timber but they refused, stating it was not in his contract to do so.

"So, since he could not live on $420 per week, he stopped making little brown gardening wagons for the warehouse store and went back to his old job. The warehouse store then claimed he was in breach of contract and activated another clause their shifty lawyers — of which I was one — had put into his contract. It was a clause that said if the inventor failed, for whatever reason, to live up to his end of the contract and give them sixty wagons per week, the warehouse store would then assume all patent and marketing rights to the little brown gardening wagon. With our blessing the warehouse store shipped the design for this wagon to Taiwan, where they were able to make cheap copies of it for three dollars a unit, including overseas shipping, and sell them in every warehouse store in the nation at the same forty-five dollars, which amounted to forty-two dollars of profit per unit nationwide. A pretty good coup for the warehouse store, isn't it?"

Nobody said anything. They just continued to stare at her.

"Sometimes," she said, "I'm not real proud of what I do for a living. This was one of those times. There is a reason why we lawyers are vilified in our society. There is a reason why my own brother wrote a song called Living By The Law — a song you folks put on the first Intemperance album — bashing everything lawyers stand for. You see, when we wrote that contract with that small-time inventor — someone who just wanted to sell one of his inventions, to get something he'd produced with his own hands and brain on the market — we put those clauses in there with the express hope and intention that something like rising timber costs or sickness or getting tired of working for 'The Man' would make him breach. We wanted him to breach so we could obtain the rights to his invention and market it to Taiwan and make millions from it instead of hundreds. That was why we wouldn't let him raise the price. We deliberately skewed this contract so it was outrageously in our favor and so the small-time inventor, not knowing better and with no other choice anyway, would sign off on it no matter what we put in there. Is any of this starting to sound familiar, gentlemen?"