I wanted to talk about all this with Freddie, but he was getting angrier with me. Ellsworth Boyle kept telephoning, and for some reason, maybe the difference in the time zones, the calls came through around three o'clock. That very afternoon, Freddie's seminar sat around the long table in the Chinoiserie, deeply engrossed in the dissection of Loch v. Confair, 372 Pa. 212(1953), Mr. Justice Horace Stern, the Supreme Court of Pennsylvania, and a bottle of ginger ale that exploded in the Wilkes-Barre A&P, spraying the plaintiff's wife with shattered glass. Nobody knew why the bottle blew up. As between the plaintiff and the bottler and The Great Atlantic & Pacific Tea Company, who should pay for the injuries? And why?

"Well, but why, Miss Königsmark? If the bottling company was not at fault, why should we hold them for damages?"

"Because . . . because they did not put the . . . what is this drink, this beer?"

"Ginger ale."

"Ginger ale. They did not put it into the bottle right."

"Do we know that? Was that proved at the trial?"

"The bottle exploded."

"But does that alone mean the bottler was negligent?"

"Yes," said Astrid.

"No!" said three other people.

There was a soft knock at the door, and Aschauer's moustache appeared.

"Gestatten die Herrschaften . . . Herr Doktor Anders . . . Ferngespräch aus Philadelphia. . . ."

Freddie pursed his lips and looked out of the window as I withdrew.

"Graham, see what you think of this," shouted Ellsworth Boyle across the Atlantic Ocean. "If the Boatwright stock goes down another two or three points, Fleischer may decide to make a cash tender offer, and then we'll be a sitting duck. So here's what we're working on now.

He began to read me something called the "Pennsylvania Take-Over Regulation Law of 1961," a statute about to be introduced in the State Senate. The preamble was sheer poetry: Whereas the Senate finds it necessary to protect Pennsylvania corporations, stockholders, and the public and to prevent fraud and deception and the dislocation of industry in the Commonwealth NOW THEREFORE . . . The teeth were in Section 4: Purchases of equity securities in any corporation incorporated in Pennsylvania or having its principal office in Pennsylvania resulting in a 10 percent ownership of any class of equity securities may be made only after approval by the Board of Directors, or a majority of the stockholders or the Secretary of the Commonwealth. The Secretary can give such approval only after a hearing to determine if the purchase is "fair and equitable," taking into account not only the price to be paid stockholders for their shares and availability of funds for future payments, but also the effects of complete or partial closing of plants or offices in Pennsylvania, the effect on tax revenues in the Commonwealth, the reasonableness of the actual or potential profits to the person seeking to accomplish the takeover. . . .

I sat at Rasmussen's desk and doodled with a pencil.

"Well, what do you think of it, Graham?"

I should have been more tactful, but I told him. "I think you're out of your mind."


"Ellsworth, that's the most ridiculous piece of legislation I've ever heard of. That wasn't prepared in our office, I hope! You're telling people they can't sell their stock to whomever they want, just because it's stock in a Pennsylvania corporation? Suppose every state started passing laws like that? My God, it would be a nightmare! And it can't be constitutional, to deprive people of their right to sell stock, it's taking their property. Ellsworth, the more I think about it, the crazier--"

"Well, you think of something better, then!" He was furious. I could hear his face getting red. "You're sitting over there on some Alp having a vacation, and we're back here doing what we can!" He knew I was right and that only made him angrier.

"Ellsworth, can I just say one thing, please? I don't blame you for being sore, I know we're in serious trouble, I know you're trying to think of every possibility, but could I just remind you of one thing my grandfather used to say? He used to say, 'Don't overidentify with the client.' He used to tell us that if we lose our objectivity, we become useless. We're supposed to stand back and give advice, not to run the client's affairs If they don't take our advice, or if the advice doesn't do any good, that's too bad, but we can't just take over the whole show. We stop being lawyers if we do that."

I paused to catch my breath. The line hummed.

"Ellsworth, on the plane coming over, I read that press release that Fleischer's people put out about the Warfield acquisition. They said that Boatwright is now being operated by its lawyers. And they said the same thing in the complaint, the one you sent me. And they're right, aren't they? It's my fault, not yours, I'm the one who dreamed up the Warfield thing, but it goes 'way back, we've been telling Malcolm Hopkins and the rest of the Board what to do for so long that we've in effect taken over the management. And we're lawyers, Ellsworth; we're not business executives, we can't practice law and run Boatwright at the same time. At least you can't. And I can't. I don't know what the answer is, but I don't think we can get so involved with this fight that we have the laws of Pennsylvania rewritten to keep a raider away from our door. I think maybe we're going overboard a little, don't you?"

The line hummed.

"Are you still there?"

"Yes. I'm here." A long pause. "All right, Graham. I'l, think about it. And just for the record, that Take-Over Law isn't my idea, it's something the Manufacturers Association dreamed up. There has been a lot of abuse, you know, with these tender offers. Some of these jokers haven't even got the money to pay for the stock, they borrow the money someplace, take over the company with a tender offer, and then use the cash in the company to pay off their loan. That's what this is getting at. But you're right, it sounds like an act of desperation, and it won't hold up in court. . . . Okay, I've got to go into a meeting now. I don't suppose you had any other ideas about Fleischer's complaint?"

"I wrote you a letter about it, Ellsworth, I made a couple of suggestions but nothing earthshaking. You should have it tomorrow."

"Okay then. Graham?"

"Yes, sir?"

"Never mind." He sounded tired. "I'll keep you posted. Have a good time over there."

previous chapter, next chapter



1961 - A Point of View
[1] The annual meeting of the stockholders of the Boatwright Corporation
[2] What are you going to do about Boatwright and what are you going to do about yourself?
[3] Have we learned anything this evening, Doctor?
[4] Producing results?
[5] Alexander's Feast
[6] How'd you like to go over to Salzburg for a month with me?

1947 - An Island
[7] You're not going to Berlin. You're staying here.
[8] All right, we're the Military Government.
[9] The Americans are teaching us to be democratic instead of fascistic.
[10] Well, this is Fasching.
[11] Letters after Ash Wednesday
[12] Say Boris is at Schloss Fyrmian.
[13] THE AMERICAN ACADEMY IN EUROPE - Prospectus for the First Session
[14] Learn to think of people as individuals.
[15] Parlez-moi d'amour, redites-moi des choses tendres.
[16] Not one thing left to show that you've ever been on earth? - "Sources of Soviet Conduct"
[17] A Countess, a Prussian Officer and a Ländler
[18] Now this part of your life is over and I'm sending you home.
[19] A father who's too busy to watch his son die. - The Spring of 1961
[20] I cannot sell Schloss Fyrmian to the Academy.

1961 - A Change of Air
[21] The first thing I saw was the Festung Hohensalzburg far in the distance, silhouetted against the shadowy curtain of the high mountains.
[22] Next day at the Academy we got to work - Graham, you know what Fleischer did?
[23] Im weißen Rößl am Wolfgangsee
[24] Brockaw writing a thesis on Austrian baroque architecture? - Boatwright Corporation and Boris Fleischer, plaintiffs
[25] You know there a Mr. Devereaux? Mr. Armistead Devereaux?
[26] I think always of Peter Devereaux.
>[27] It sounds like an act of desperation, and it won't hold up in court.
[28] In those Oklahoma Hills WHERE AH WAS BOW-AHHHN!
[29] ... that we should meet again like this . . . I think perhaps there is a reason.
[30] "Is there here an American by name of Brockaw?"
[31] This is Boris Fleischer!
[32] "Does Hans work for Gehlen?" Paola shook her head. "More the other way around."
[33] Won't you please come home? Everybody needs you, I most of all.
[34] With this Waffenstillstand you have time now.
[35] You're going to regret this for the rest of your life!
[36] We Europeans would not do it. None of us. - People think you need medical attention.
[37] Will they trust you?
[38] Some things about the U.S.A. are perhaps rather important, and to us impressive.
[39] You're going to need a good lawyer.

version: March 2, 2004
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Arthur R.G. Solmssen, Joachim Gruber