Knowledge Impact Total for Month
Total for Month
1 for 10,000 $29,823.26
Now check this same month as reported on Joyce's second royalty report dated March 19, 2002 after my email to Sterken (page 16 of 19), which according to Sterken only contained additional royalties previously unreported from "early customers who converted from a version of Interchange that did not include Blueberry to one that did."
His statement is blatantly false. It only addresses the royalties reported up until the July 12, 2000 contract signing. It does not explain the royalties reported from July to December, which had never been reported before. It also doesn't explain the customers listed below who were reported from December of 2000 (see above list) – just not truthfully.
Knowledge Impact Total for Month
Total for Month
2 for 20,000 $62,088.14
It seems that the four largest customers for the month had their amounts either deleted entirely from the original report or cut in half in the case of Knowledge Impact. Thus reducing the qualifying sales by over $30,000 and Blueberry's royalties for this one month by nearly $5,000, or roughly in half. Five measly thousand dollars which would have been useful to Blueberry but that Arbortext/Sterken/Van Allen/Svechota felt compelled to cheat us out of. From the beginning of the contract. As a company PLAN. A Strategic STRATEGY. To "limit" Blueberry's royalties.
This is cheating, sure. But it's more than that. It's a sign of a compulsive, petty, and invincible arrogance of power. And also a way to inflate the company's net revenue picture by under reporting expenses.
See Exhibit C for an amalgamated Royalty Report of Joyce Svechota's eight different fraudulent bookkeeping concoctions in a seven month period. Watch those numbers, customers, and products jump through hoops, appear and disappear, and finally settle on "Eff You Blueberry" computations. Computations not contained in the original contract, not discussed with Blueberry, and not agreed to either verbally or in writing by Blueberry. Contract du jour. Bear in mind that for every customer listed that begins with a "Not on Rpt" there were five previous royalty reports that went to my ex-partner Dwan on which they were not reported either. For some real head scratchers check out the following pages:
2 - Lockheed
15 - LGS (twice) (notice invoice #17838 get deleted and appear on the next page for Compaq Computer)
16 - Compaq
18 - Cisco
21 - L & C Publishing (Whooeee!)
24 - Knowledge Impact ($10,000 for a $1,200 Interchange Fixed License!?!?! Uh, I think somebody made a typo here in an Invoice line item. Otherwise, expect a rather indignant phone call from Knowledge Impact.)
27 - AT&T (altered yet again (4th time) from the Exhibit B reports)
27 - Prosoft (altered yet again (4th time) from the Exhibit B reports)
29 - Wind River
40 - Page Wing
41 - Schlumberger
See Exhibit D for Jim Sterken's response to the author's infamous brain-dead idiot email and the "discovery" of additional royalties.
Mary and I were a bit of an odd couple.
She was a fervently spiritual person, with an unshakeable belief in God, Jesus, and Mary the Blessed Mother. Angels, too. Like her, I had been born and raised as a Catholic. But that's where the similarity ended, for I had dropped out of religion altogether at the age of twenty and had never returned. My belief system, if a self-confessed asshole can be said to have one, confined itself mainly to personal integrity and an innate common sense about what was right and what was wrong. Sort-of-ly. The big things. The small things were just character flaws. You had to live with them or you would get a character flaw trying to unflaw yourself all the time. Very annoying.
At any rate, I had great difficulty comprehending God, or Jesus, or the Blessed Mother, but wished Them well with whatever it was that They were doing vis a vis humanity. It looked like They needed some help, in my opinion. Or maybe it was all supposed to be whatever it was that it was. I was only sure of one thing. The whole ball of wad was way over my head. In four thousand years of recorded history, nobody had seemed to figure it out. Even my brother Tom, who knew everything. No sense me wasting my time on it. If it eluded Aristotle and Aquinas and Da Vinci and Newton, why should a schmuck like me think he could figure it out. Shakespeare had probably been the closest of anyone. Sherlock Holmes knew, but he wouldn't tell.
When Mary and I got married in 1990, for the sake of her children and our marriage, I accompanied her and them to Sunday Mass, which I had not attended in twenty-odd years. I can't say it was a painful exercise in duty, because it wasn't. Churches are fine places to think about the spiritual side of life. Nice quiet zones where you can spend a few moments thinking about the meaning of life, rather than the meaning of money and sex. And BMW's.
Mulling life was okay. Pleasurable. Mulling was different than Solving, which was not pleasurable at all. Headache city. Besides, what the heck would there be to do once you had solved it? Better to remain unsolved. Unlimited mulling was the way to go.
If this theological interlude seems a digression from the ultra serious evil machinations of Jim Sterken and Arbortext, I assure you it isn't. Spooky shit was about to join the party. Via an event which was to nourish our spirits and our will to carry on the fight for justice through many of the dark hours which lie ahead. Still, it was spooky shit. Not my cup of tea, to say the least.
Mary began each day by logging onto a web site called www.SpiritDaily.com. It was an interesting web site, run by Michael Brown, devoted to spiritual news around the world, but also carrying other significant news items and the occasional odd ball UFO sighting or some such. It was hard to tell if Mr. Brown was kinky or cosmopolitan. Deeply spiritual, at any rate, and an interesting site to explore.
It was on this web site that Mary ran across the uplifting story of one Louis P. Saia III (say ya), an otherwise ordinary and not particularly religious fellow in Louisiana who owned a trucking company and had invented a device which he wanted to patent. I won't go into the details of his device or his plight, you can look it up yourself in the web site's archives. Suffice it to say, the big shot corporate fellows he fell in with as partners decided to just steal his device for themselves, cut him out, and bankrupt him in order to achieve their purpose (sounds familiar, eh Sterken?).
Saia sank deeper and deeper into debt and reached a point of near suicidal despair. Then one morning while taking a walk, the Blessed Mother her very own self appeared to him, filling him with an incredible warmth of love and telling him to just trust in her son Jesus. Soon after, at the trial which would effectively ruin him, the judge was about to wield his gavel when he seemed to suddenly change his mind and wonder out loud if the bad guys were trying to use his court to ruin this man. He then stunningly ruled for Saia and Mr. Saia went on to get his patent. He also painted a depiction of St. Michael the Archangel on the side of each and every truck in his business. No driver for him has yet to have an accident.
Like I said, spooky shit.
Mary, and I admit even I, took this heart-warming story as almost a personal message to us. His refusal to knuckle under to the thieving fat cats provided us with inspiration and encouragement to fight them ourselves. And there would be more of Mr. Saia as events unfolded.
In the beginning, confirmed skeptic that I mostly am, I admit my basic thought was, "Nice story. What's for dinner?"
Dinner was far more real to me than purported heavenly apparitions. Especially in the land of Mary Tarantino. Mary truly loved to feed people, lavishly. The more people, the better. As I have mentioned, she came from a family of ten Italian kids and began helping her mother shop and cook meals from the time she was seven years old till she left home to get married and have twins at the age of nineteen. And she was not coerced into these kitchen duties. She just truly loved cooking and preparing meals. Bringing pleasure to others was as second nature to her as acting like a jerk was to me.
I got my first glimpse of this side of her about a month after we met. At that time, I was a bachelor and my food budget was somewhere around fifty or sixty dollars a week (1990 dollars). My spice shelf had salt, pepper, and Mrs. Dash. Enough. I had the Joy of Cooking on that shelf, but, like my Handyman's Book, it was rarely perused or implemented.
Mary invited six of her family over to dinner one night so they could meet me and give me the once over and I accompanied her on a shopping trip for this one dinner that came out to nearly one hundred and fifty dollars. Very scary.
But what a meal. There were sumptuous left overs for several days. Mary never, ever, made a meal where the bowls were all empty and the food was all gone and somebody was still hungry.
It was part of her basic approach to life. She never did anything half-way or cut any corners or sloughed off any responsibility. Another aspect of our odd couple status, since I rarely hesitated to avail myself of any these shortcomings. No, if she was going to do something, she was going to do it one hundred percent.
And so she continued her Internet research into Arbortext, and the piles of web site printouts piled up around her on her desk like some basement archive of a dusty old monastery with ninety year old monks bent over quill pens.
Then one day she appeared in my office with a gleam in her eye and some papers in her hand. There were light streaks coming off her hair and the air in the room began to hum.
Something was definitely afoot in our little world.
"You got a minute?" Mary asked.
I smiled and closed the computer file I was working on. Having a "sec" might mean only a minute, but having a "minute" always meant considerably more. It was when she said, "We've got to talk," that it was time to close up shop for the day.
"I discovered a product called Intermarket."
"Our product is Interchange."
"Right. Intermarket is another product."
"I'm entering into Inter-overload."
"Just pay attention."
She handed me three print out pages. One was an Arbortext announcement concerning Intermarket's imminent release and extolling its import/export capabilities (without, of course, extolling the import/export authors), among other business type bafflegab. The second announced the product's release and its availability for purchase, showing two cute, clean, business people clasping each other in a handshake. And the third was an announcement, six months later, that one P. G. Barlett, an Arbortext marketing bigwig, was hawking the product at a big New York trade show.
"It's a product all right," I said. "I take it that it doesn't appear on our royalty reports."
"Not a one," she said. "Now take a gander at this."
She flourished out one more piece of paper. It was a Resume, posted on the web by a Zoltan Gombosi. Mr. Gombosi, according to the resume, had been the lead engineer of a team of eleven programmers who had specifically worked on this Intermarket catalog management product for Arbortext, beginning in April of 2000 and concluding in November 2001. According to Mr. Gombosi, this Intermarket product had sold a million dollars in pre-sales and had sold over $4,000,000 worth before the project was eventually abandoned in late 2001.
"How much would our royalties be for this?" Mary asked.
Four million would bump us from the 10% category down to the 5% category. Why my ex-partner had negotiated a diminishing royalty percentage as success increased was definitely a puzzle for brain chemists to discern. In universes unvisited by Dwan like substances, payments increased with success, not lessened. At any rate, I responded, "Somewhere around $200,000."
"So despite our recent royalty recovery of over $30,000 in previously missing sales, this particular product is still missing and it's a whopper. For Blueberry, anyway. Petty cash to them, I suppose."
"Gombosi was working on Intermarket three months before we even signed the contract with Arbortext. Before I even finished my work on Interchange. Before Epic 4.1 was released. Those thieving little crooks. They intentionally left this product out of Appendix B, which lists the products we would be incorporated into. Wow. They meant to rip us off from day effing one."
"No wonder they jumped so fast when you threatened to stop work. They would have had to return any advance sale money. Not good for their bank account or their company image. You had them over a barrel."
"Too bad I didn't know that."
"I think that was your partner's job. All it took was a little Internet research to discover it."
"They planned to just give us a few small Epic Editor sales and keep the big ones to themselves. What a bunch of crooks."
"Makes you wonder about the other companies you had contracts with in the past, doesn't it?"
"You're depressing me. You think they all cheated us?"
"Dwan handled them all. He makes an inviting target."
"Maybe he only got dumb recently."
"Dumber, maybe. But some part of dumb was always there. It's not like a medical condition. It's a brain condition."
"I don't get it. He's a smart guy. Always has been. Smart as hell. Smarter than me, by far."
"That's not a large achievement."
"Hey! I got a college degree, you know."
"They gave you one to get rid of you. My two years of college were worth more than your four. Besides, there's book smart and life smart. His life peaked when he took his last college exam."
"Two hundred thousand potatoes," I mused. "Can you believe the thieving gall of these assholes?"
Mary pointed a stern finger at me. "Don't you even think about whatever it is you're thinking about doing."
Apparently, some sort of hissing noise was emanating from the top of my head.
"I won't do anything," I said.
"Good. I'm going to call Mr. Gombosi and verify his resume and that Interchange was included in this Intermarket product."
Mary gathered her papers and left the room and I sat there staring out the window and performed doing nothing. Nothing visible, at any rate. Inside my head, however, I was hauling a trunk down from the attic with my Rambo equipment stored inside while Mary and the children pleaded with me to stop. But I had my face set in stone, spinning the revolver chambers, sighting down the barrels, checking the shotgun shells, strapping on the cartridge belts, lacing up my stomping boots, painting grease under my eyes, and heading out to start up my faithful old truck for the long drive to Michigan.
Ten years of mortgage payments sitting there in Jim Sterken's hidden royalty pocket. Was he skimming these payments due off the top? Was he reporting these payments due on his Cost of Goods line on the company financials? If not, and how could he since we didn't get paid, wouldn't this be a case of inflating net profits to dupe the public into becoming prospective stock buyers? Were we the only vendor he was cheating or was this just business as usual at Arbortext? One thing was obvious. Prying that money owed out of his thieving pocket was going to be a Herculean task.
I decided to take a walk. It had worked for Mr. Saia, what the heck.
We lived at the base of a ridge of small hills that threaded its way through Concord, California and on out to Clayton and the majestic Mount Diablo mountain. This ridge of hills, called Lime Ridge, was protected as "Open Space." Cute. They made for a fine walk, for sure. Or you could fly a model airplane or run your dog. At the top of the ridge, you could see out across Concord, Walnut Creek, and Pleasant Hill and on to the horizon of the Oakland Hills.
I sat under a lone tree at the top of the ridge and pondered the imponderable. I admit I snuck a peek at the surroundings from time to time just in case the Blessed Mother was in the vicinity. I could sure use a little heavenly pat on the old aching back right about now. I figured I was certainly as unlikely a useless crud bucket as Mr. Saia, not that he was a crud bucket or useless, that was my specialty. But just that he wasn't, like, a Holy person or anything. Just an ordinary guy getting his balls ripped off. Certainly we had that much in common. Ah, Blessed Mother, couldn't you just sit down here beside me for a couple of seconds and spread some of that warm love through me?
That's the problem, though. I never could pray worth a shit.
If Arbortext could stiff us for Intermarket, an entire big ass product, we were going to have hell to wade through to ever force them to be honest.
Anger gave way to depression. If I stunk at praying, this was not the case with anger and depression, at which I was a virtuoso. I could steam about things for days and wallow in self-pity equally as long. Throw in some booze, and I could go weeks and months slogging around in the mud of these pathetic character flaws.
I slunk down off the ridge and back to our home. Mary had lunch waiting for me. A sandwich with all the bells and whistles – lettuce, tomatoes, pickles – the whole 100% deli/Dagwood deal. With a watermelon wedge on the side.
I gave her a hug and sat down to gobble.
"Zombosi verified that Intermarket included Interchange," Mary said. "They discontinued the product because other companies had similar technologies and Arbortext didn't want to compete."
"How sad," I said. "But they still owe us $200,000."
See Exhibit E for Zoltan Gombosi's resume. See Exhibit F for the Intermarket evidence. Arbortext would claim in the future, and still does to this day, that this product was "never developed and never sold."
It has never been reported to Blueberry, that's for sure.
If, as Arbortext and Jim Sterken strenuously claimed, the royalty reports were accurate and honestly reflected the Arbortext accounting books, then where did all that money go?
The hidden/lost/stolen $4,000,000 did not long occupy our attention, unfortunately. For one thing, we didn't know what the beans to do about it. But it was another thing that provided the main ingredient of distraction.
It would be nice to inform you that this distraction was of the pleasant variety, but no. Sorry. Not to be. Our luck had taken a turn southward and the journey was far from over.
You may have noticed that I have referred to my ex-partner Kevin Dwan by many different names. Most, if not all of them, may have seemed pejorative. Perhaps even over the top mean. Uncharitable. Out of place in this otherwise scholarly tome.
Tough toe nails, Dweebledwubbledwad.
I would have preferred to leave him out of this odyssey entirely, to save his very nice sisters embarrassment, but his actions as an ex-partner caused more harm to Blueberry, if that's possible, than his actions while still a partner. So it would not be possible to relate this woeful saga without pushing this worm directly out into the harsh spotlight of history.
And lest you think I'm picking on a guy who just wasn't too bright or had a bad moral upbringing, I offer his salient resume. A straight A student and college graduate of Loyola Marymount University with two years of post graduate work in Literature at San Francisco State University. A member of the Nevada City, California Planning Commission. Two time loser in attempts to be elected one of five City Councilpersons in Sebastopol, California. Constant crusader for Green Power and, along with his wife, firm supporters of Solar Energy. A true champion of Liberal Causes. A man fairly wearing his noble Politically Correct conscience as a public wardrobe.
But not above lying, backstabbing, and stealing a business from a friend and partner. You know the type – PHONY PHUCK.
No, Mr. Dwan deserves no sympathy from me and will get none here.
While Mary and I were attempting to salvage the mess he had made regarding the Arbortext contract and Blueberry Software itself, this reprobate rose yet again from the tomb he had dug for himself and, flaring his tail upward, began spraying his toxic venom anywhere he could point it.
Not content to develop any sort of life that was not primarily focused on ruining me, Dwan rummaged through the Santa Rosa sewer system and extracted from the foul toxic dribble a prehistoric creature named Lawrence Bernheim.
Esquire, of course.
Mary would probably warn me that I'll get booed off the stage if I keep this up. Overkill. Okay, okay. I'm done. Promise. Stick to the facts.
Mr. Bernheim – Larry, that is – was not a toxic sewer dwelling scumbag. Of course not.
He was just a lawyer.
One who no doubt specialized in cases that had been heaved off the cliff by a previous lawyer who realized there were no good legal options available for his client to abuse in the pursuit of stealing a business from his partner. That was called a Power Play. One his client had attempted and failed.
No, what was needed now was someone to conduct insane harassment. For which Larry seemed notably qualified. Lawyer number three had arrived on the scene, smoke bellowing from his tail pipe, horns ahonking, fenders rattling.
Larry introduced himself pleasantly enough by sending a letter to Arbortext and me completely out of the blue and threatening to sue them. What exactly he would sue them for was not really delineated. Unimportant details did not concern his royal Larryness. He was here to jump in your face and announce that one gigantic pain in the ass was now loudly and enthusiastically on the case that did not exist.
While old Gutless himself quietly slunk out of sight. Rarely to be heard from again. Adios, Dweebledwan. We'll deal mostly with your lawyer from here on out.
Needless to say, Bernheim's intrusion did not further our efforts to bring Arbortext to justice. In fact, it gave Jim Sterken the golden opportunity to play partnership ping pong with a vengeance. Or partnership paddle ball, excuse me. Mixed game utensils. Whatever. Now, whenever code was needed, I was the operative partner. Whenever royalties were due or complaints needed avoiding, Dwan became the operative partner. It was a fractured marriage made in Sterken heaven.
To secure Dwan's loyalty to Arbortext, rather than to Blueberry, Sterken seized on the pathetic threat of Bernheim's law suit and, trembling with feigned fear, reversed his earlier decision to send the royalty checks to me. Instead, he sent half of the April royalty check, that Mary had so strenuously yanked from his thieving pockets, to me and the other half to Dwan.
This gave Dwan all the retail income and Blueberry's web site and the potential for new business, plus a free ride on any work I did concerning the Arbortext contract. Which put him firmly in Sterken's corner, ignoring that Sterken had discarded him the previous fall and could do so again any time it suited his purpose. For now, however, Sterken had effectively granted Dwan the victory in seizing control of Blueberry that Dwan's own efforts had failed so miserably at the previous year.
Did Dwan notice and appreciate the sizeable jump in royalties that Mary had procured? Not that you would notice. In fact, he and Larry announced their displeasure over Mary and I jeopardizing the contract by complaining about its enforcement. In Dwan's world view, Blueberry was a worthless mongrel that should cower and lick boot and be thankful for any bones tossed out the window by Arbortext.
It worked perfectly. Bernheim was quite happy to announce Dwan's disagreement with each and every effort Mary and I made to force Arbortext to honor the contract. And Sterken was quite happy to agree that Mary and I were certainly behaving badly.
It did not occur to Dwan that he could increase the size of his 50% check by joining our efforts at enforcement, rather than fighting them. In fact, he never even bothered to query us as to what it was that we had discovered that was amiss. True to form to the end. Ignorance is bliss.
Lord, when a sickness unto death invades a man's soul, there is no remedy.
At any rate, Mary and I were at a crossroads moment in life. As long as both Dwan and myself could claim to be Blueberry Software, no progress would ever be made and inevitable disaster would be the only possible result. The matter of ownership had to be decided once and for all, him or me, and made legally binding. There was no chance in hell that he and I could ever cooperate again in running a business venture together.
Sterken's maneuver had demolished us. I no longer had any control over any aspect of Blueberry Software. If I quit work now, I would get no more money, Sterken would gleefully seize control of all my source code, and my life's work would be essentially erased.
"We have to sue Dwan," Mary said.
"That's about the only choice, isn't it. We can't both own this puppy."
"You look pretty down, Steve."
"It's just such a nightmare. We're fighting Sterken in the front and now Dwan in the rear. Our money's running low and we're talking about filing a law suit. And the way the courts work, who knows how it will even turn out. What a stinking mess."
"There's no way you can sit back and let Kevin Dwan and Jim Sterken steal twenty years of your work without a fight. You couldn't live with yourself if you did and neither could I. If we're going to go down, let's go down swinging."
Have I mentioned how much I love my wife?
Lawyer number four was a nice fellow named William Hansen, whom we retained to place the matter of Beigel vs Dwan before Judge D. Lowell Jensen in the Oakland Federal Court for the District of Northern California. Case No.: C-02-3116 DLJ.
Abandon All Hope Ye Who Enter Here.
You may ask yourself what we were doing in Federal Court when this was a partnership dispute, and the proper jurisdiction of a State Superior Court. Or you may not be asking yourself this question. It's a question, I suppose, only a lawyer would have interest in.
And I certainly hope some of you are, indeed, lawyers. Since I am not a lawyer, or a paralegal, or even a bright viewer of the various Court TV shows where I am always wrong when guessing what the judge's ruling will be, this story is putting me in direct peril from the ravenous legal teams that are available to Parametric Technology and Arbortext. They have eaten my lunch quite festively over the past six years. One of them even fell asleep while at the same time wiping me off the map like an inconsequential bug. Even the Cast of Villains featured in this broadcast all personally have far greater means of legal representation than is available to me. My wife Mary is my only legal team and her assessment of this situation is that we are, legally speaking, up a creek without a paddle.
But I hope that some of you are not just lawyers, but GOOD lawyers. Lawyers who care about Truth, Justice, and the American Way. Lawyers who will bristle at the descriptions of lawyers that will be sprinkled into this story as it unfolds. Lawyers who might possibly take pity on this poor wretched nincompoop and pass along a hint or two about any legal errors I most probably will make as I ramble along this road.
As you might surmise, despite all evidence to the contrary contained herein, I remain a Dreamer! May I not be dislodged from this character flaw!
At any rate, there were three reasons for this case ending up in Federal Court. Convenience, distrust, and ramifications.
Convenience involved the venue. If we brought suit in a State Superior court, the location of the trial would be Santa Rosa, California, which is located sixty-five miles from where Mary and I live in Concord, California. I had taken Dwan on as my partner and formed our business partnership while each of us was living in Sebastopol, California – a small burg about twelve miles west of Santa Rosa. Therefore, the trial would be held in the location where the business was formed. While Sonoma County is without a doubt a very lovely area of the world and I still had friends there from my many years of living in that area, neither Mary nor I was a big fan of commuting one hundred and thirty miles each day of the eventual trial. No sense overloading the Grumpy Factor. The trial itself would be torture enough.
The venue was also the leading component of the Distrust. Larry Bernheim had his law offices in downtown Santa Rosa and had been hustling and schmoozing around that town for a couple of centuries. I'm sure he had pressed the flesh, perhaps more unctiously than some would have preferred, with anyone remotely populating the legal industry in Santa Rosa during that time. William Hansen had his law offices near us in Walnut Creek and had only recently moved, with his wife and two young children, from Kansas to California. It was not a stretch at all for our Paranoid Factor to suspect we might be at a Good Old Boy networking disadvantage in Santa Rosa. This is not to impute possible bias or favoritism into whomever would have been the judge. Well, actually, yes. That possibility is precisely what we imputed. After all, this was the Paranoid Factor.
The final, and most important, reason was the ramifications. If we sued Dwan over the partnership matter alone, the judge would be forced to completely dissolve and terminate the Blueberry Software business. Since Blueberry still had remaining contractual obligations, as with Arbortext (there were others, which I will explore later), one of the partners would be appointed to Wind Up the business and the other one would be sent to the Unemployment Compensation Line. Oops. As a partnership, neither Dwan nor I was eligible for unemployment benefits. So the Line would be the one forming at the Job Seeker window, Really Old Guy Division. The Blueberry web site and retail business, and all future Blueberry business, would be terminated. Any assets would be split up and th-th-that's all folks. Only under extremely rare circumstances would one partner be able to continue the Blueberry business while the other one was removed.
One of the assets that would be split up, in fact Blueberry's main asset, was the Intellectual Property – the twenty years of computer source code that had been written primarily by me and my brother Jim Beigel, who lived in Steubenville, Ohio. Since the code could hardly be split up, as in "here's half for you, Dwan, and half for me," more likely each partner would walk off with all of it and be perfectly free to start another business based on that source code. In essence, that is what Dwan had done by forming Blue Tools Software. He had done so, and still was doing so via the Blueberry web site, while Blueberry Software still existed and he purported himself to be the owner of both. He was using this advantage to slowly, but surely, and in an orderly fashion designed to deceive the public, transfer the identity of Blueberry Software over to Blue Tools Software. When the axe finally fell on Blueberry, he would not miss a beat in continuing to run the business that would then be known by most everyone as Blue Tools Software. I, on the other hand, would have to form an entirely new and unknown business and start from absolute zero in terms of marketing and sales and world presence.
Blueberry's entire past, its vendors and resellers, its customer database – all would trot right off with Dwan. If I claimed to have equal rights to the ownership of all these things, it would only scare off past and future customers and nobody knew who the hell I was anyway. De Minimus would not begin to describe the infinitesimal value I would possess. It seemed lately to be the reigning accomplishment I was attaining with my life. "Yep, guy worked long and hard to be nothing. Damn thorough job. Pretty impressive, though I question the wisdom of the career choice."
And so it was that I sued Kevin "The Worm" Dwan for "Copyright Infringement." Copyrights were governed by federal law and this put us in nearby Oakland and in front of a wholly neutral Federal Judge. To me, this is where the case belonged and what this matter was all about. Dwan had not written a single line of computer source code for any of Blueberry's products during the entire twenty year history of Blueberry, and now he was trying to walk off with all of my work, all of my brother Jim's work, and act like he was a computer guru guy. It boiled my blood, quite frankly.
What is it with these shysters like Kevin Dwan and Jim Sterken? Don't they have any sense of pride or worth? Get your own life, you creeps! Don't you realize that getting ahead in life by stealing an idiot's stuff doesn't exactly communicate a positive spin about you!
And so it came to pass that one day in June of 2002, Mr. Kevin Dwan answered the knock at his front door and opened it to be the recipient of a law suit thrust firmly into his thieving outstretched hand. And, I like to imagine in moments of petty pleasure, with a bit of a stunned look on his face and a definite quiver in his heart.
See you in court, Mr. Dweebledwad.
In late July of 2002, the second quarter Arbortext royalty report arrived. It was not, however, accompanied by a royalty check, as required by the contract. Instead, it was accompanied by a box car's worth of data and explanations from our dear sweet Joyce Svechota.
The Director of Product Management had obviously been quite busy since passing along to us her March "We found some additional royalties" report. I'm not aware of what, exactly, a Product Manager's responsibilities are. But in Joyce's case, whatever those duties were seemed to be getting stretched farther than a pair of tights on an elephant.
Was Joyce's title some sort of Brave New World lingo. Did the entire accounting department report to her so she could manage their output? Was this really how honest businesses provided financial data to vendors, stockholders and federal, state, and local agencies? Through the Product Manager's filter?
We were beginning to wonder if, in fact, Arbortext even HAD an accounting department or any employees who worked there. But, at long last, Joyce's box car load bubbled one to the surface.
And a new co-conspirator entered the picture: Jim Haggarty, the CIO and acting CFO, had affixed his signature of approval to the royalty report sent to us. I suppose he could have done this perfunctorily, perhaps at Jim Sterken's bidding, without actually knowing what the hell he was signing his name to. Still, when the CFO signs off on a document disseminated to a vendor regarding what is due to that vendor, one has to impart some degree of culpability to the act. Sorry, Mr. Haggarty. You signed your approval of a fraudulent document. Get over there in the criminal wing of this building.
Where to begin.
We were two years into our contract with Arbortext now and Joyce was suddenly informing us that Arbortext had been utterly and totally inept in keeping proper track of the royalties we had been paid per contract. This was hardly news to Mary and me! However, in Arbortext's sweeping new enlightenment, they had come to realize not that Blueberry had been grossly underpaid, but that it had been grossly overpaid!
An overpayment amount that exceeded the entire second quarter royalties due Blueberry and thus once again tossed Blueberry into the red, owing Arbortext rather than them owing us. The $7,500 minimum guarantee provided by the contract was dispensed with also, perhaps for emphasis. In your face, little people! Get a clue! The contract is of de minimus importance! You'll get what we give you, slap, slap. And you'll take it, slap, slap. And you'll like it, slap, slap.
For some strange reason, I did not react to this news in my usual volcanic fashion. In fact, a sick part of me smiled from ear to ear. Jim Sterken had obviously blown sky high over recent events and had become so out of control that he was willing to jeopardize the entire Arbortext company, and the reputations and welfare of the people who worked there, solely to vent his rage on one little vendor who had called him out. A vent that resulted in a document that was so clearly and blatantly criminally fraudulent that no legal team in the world could possibly gloss over its damage. All they could hope to do in the future would be to cover it up.
"Why are you smiling?" Mary asked. "We just got wiped out."
"I know. I'll be angry and depressed later. Right now, I'm remembering something Sterken said to me in an email last year. He said to be careful what you put in writing because it could come back to bite you in the ass."
"Why would he tell you that?"
"He was cautioning me to watch what I wrote to Dwan in my emails. Not to get careless with my anger. He thought I might end up in court with Dwan some day."
"He was right about that for sure."
What Joyce had sent us amounted to a completely new contract, drawn up solely by Arbortext, without any input or approval from Blueberry, as to how Blueberry would be paid. Appendix C of the original contract called for Blueberry to get a percentage of the Arbortext Covered Product that it was incorporated into. Appendix B listed those Covered Products (see Exhibit A). Pretty straight forward concept. Buy E3 with Interchange and Blueberry gets a percentage of the sale.
Joyce now informed us that Arbortext had realized that it was not properly applying "discounts" to our royalty payments. She did not bother to explain where the concept of discounts was mentioned in the contract. It was an oversight, she claimed, that had occurred from Day One of the contract and necessitated recalculating the entire cumulative royalty report for the past two years.
Also, the Interchange product was being assigned a monetary value representing 20% of the value of the entire Covered Product sale, from which amount Blueberry would now be getting its percentage, not from the entire sale itself.
In other words, an E3 sale for $50,000 (the List Price) would amount to a royalty of $5,000 to Blueberry at the 10% rate of the original contract. Under the new payment system now being imposed unilaterally by Arbortext, Blueberry would only be getting 10% of 20% of $50,000 – or $1,000.
In one fell swoop of the Svechota/Sterken/Haggarty brain trust, Arbortext had reduced Blueberry's royalties by a whopping 80%! For all of the past and all of the future.
This whole scheme required that reasonable minds accept the concept that Interchange was incorporated into itself, not into an Arbortext Covered Product. Even though Interchange did not work at all unless called, via Blueberry's API, from some other Product (like Epic Editor or E3). Well, acceptance by any minds at all was not of concern to Arbortext. Jamming down throats was the only concept they were concerned with.
They already had, for instance, never paid us for the Epic Editor with Interchange full price. Only for the additional cost of Interchange itself. We had not yet gotten around to complaining about that. Nor had they ever paid us any royalties on Maintenance sales as required by item 6.1 of the contract ("Royalties are due and payable to Blueberry Software for Blueberry Software delivered by Arbortext to both existing Arbortext Customers, whether provided on an upgrade or other basis, and to new Arbortext Customers.") and by Appendix C, item 1 ("If Blueberry is offered to current or past users of Arbortext Products, or any users other than new users, at some charge, then revenue from such sales will be included in the computation of Arbortext Product Sales. Arbortext shall not provide Blueberry Software to others without payment of royalty, except upon the advance written approval of Blueberry."). Getting them to simply report all applicable sales had been our entire initial focus thus far.
And this 80% reduction was only for the sales they actually reported. Which were simply whatever amount it took to "limit" us to about $30,000 per year. It seemed to be Joyce's job to edit each and every royalty report to achieve the proper limitations. The fact that it took not reporting all sales plus an 80% reduction of the sales that were reported to achieve this limitation indicated that we were selling like hot cakes out there, just like I had envisioned when we signed the contract.
I was now, at least, not broke AND dumb. Just broke. I made a mental note to contact Guiness Records and have us removed from their list of incredibly stupid companies. And perhaps suggest to Guiness that a certain other company make their list for incredibly dishonest companies.
In addition, the box car load of invoices that Joyce sent to "prove" Arbortext's honesty were numbered contiguously, yet had huge gaps in contiguity. A hundred or more invoices missing in the sequences. Causing us to wonder what was on the invoices Joyce hadn't sent. Good old Intermarket (a.k.a. Zoltan Gombosi's catalog management product) was certainly not yet visible in their sweeping update of the past. Nor was any attempt made via the query strings Joyce provided us, that were used to extract information from the accounting system, to even locate Intermarket's SKU product code so it even could be extracted.
Mary had not understated our situation. Arbortext was responding to our complaints of their fraudulent royalty reports by creating reports that were even more fraudulent!
They were trying to wipe us out. But good.
The Invoices Joyce Svechota had sent us to prove Arbortext's honesty did little to accomplish that, but did provide Blueberry with two valuable pieces of information.
First, it gave Blueberry hard copy Invoices that fixed in time what a significant portion of the Accounting records looked like as of June 30, 2002, with entries going back two years. Should Arbortext attempt in the future to rearrange the books a tad, it would be quite a bit harder than simply shredding documents or creatively re-editing old Invoices. The mountain of Invoices we now had could not ever be erased. Nor could their Invoice numbers or contents somehow change. Not that we were thinking that affairs with them would ever get to some sort of scandalous legal and perhaps criminal level, but, well, it did enter our minds. These Invoices are carefully preserved to this day.
Second, it showed how Arbortext had gradually tweaked the way it recorded information about its sales vis a vis Blueberry related items. At the signing of the contract, E3 sales were simply recorded as a one line item on an invoice with no other description. That is, Interchange was assumed to be bundled with the product and no mention was made of it in the line item.
Along the way, however, line items and new SKU product numbers for them began to appear that specifically applied to Interchange, and even these items further experienced their own evolutionary growth through the coming months. Arbortext began to break Interchange related sales out from the complete sale and assign it a monetary value as a component of the full sale. It was this value, not the original full price value of the Arbortext Covered Product, that they began extracting from their system to pay Blueberry royalty percentages from. Of course, Blueberry had no way of knowing this bit of contract slight-of-hand. Until Joyce sent us the Invoices. But it did show the methodology Arbortext used to "limit" and keep "limiting" Blueberry's royalty amounts. A methodology still undergoing changes, as we shall see (to Blueberry's detriment, of course), as late as 2005, five years into the contract.
It was hard to get a handle on Arbortext's company flow chart regarding their accounting system output. In the beginning, Blueberry got royalty reports directly from the company controller, Cherie Van Allen. This would seem a normal and proper communication channel. Royalties were, obviously, a financial accounting matter. As we have seen in earlier chapters, and shown by Exhibit B, these reports were clearly either abysmally and comically inept or simply lies. Deceiving someone with written information that allows the person doing the deceiving to experience financial gain is one of the basic definitions of Fraud. Fraud is a crime. And a felony.
It is beyond belief that Arbortext could or even would try to claim that their company accounting system was run by a controller who didn't have a clue what she was doing. So, for purposes of argument here, we will discard that notion and discuss its alternative: Criminal Fraud.
At the time Blueberry signed a contract with Arbortext, Jim Sterken was the CEO and co-founder/owner. Cherie Van Allen was the controller. Is it really possible to postulate that Sterken knew nothing of this Fraud that Cherie Van Allen was perpetrating? In other words, did she just decide on her own to spice up the revenue picture by selecting a vendor to rip off? Not informing or consulting with her boss (Jim Haggarty?) or the owner and CEO Sterken? The one who had signed the contract and presumably ferried it back to Ann Arbor for implementation and adherence.
If this seems rather unlikely to you, it certainly did to us, also. Which would mean that the entire upper management team at Arbortext – Co-owner, Controller, CEO, and CFO – were conspiring to commit and profit from Fraud.
The question that Mary and I asked ourselves, and would someday dearly like to have an answer to, is: Did Arbortext only defraud Blueberry, or were other vendors also cheated? Was the accounting system manipulated only for us, or did it have a more pervasive policy? I suppose it's only a question that affects our own self-evaluation. Were we special (i.e., dunces, easy marks) or were we just one of many. If the latter, of course, then the question would have material interest to other companies and their own royalty reports or payables due from Arbortext.
Supporting this latter view, if only philosophically speaking, is the following.
Among the items that Joyce Svechota sent us was a copy of Arbortext's Internal Price Guide. This Guide was directed at their sales force and was a description of their products and how to gouge as much money out of potential customers as was humanly possible.
Regarding Interchange, our product, the sales people were advised that "Interchange is listed only in this 'internal' version of the Price Book because we should only sell it when we cannot sell E3 for the same purpose. Customer and Reseller versions of the Price Book omit all references to the Interchange option." The same advice and statements of omission were used to describe their Print Composer product and their Web/Wireless Composer. These three product "options" were essentially all E3 amounted to. Without them, E3 did virtually nothing except reside on a server in cyberspace.
In other words, regarding Interchange, don't let anybody know they can buy it for $1,200 as an add-on to the $695 Epic Editor product if the customer can be pushed toward purchasing the $50,000 Epic E-Content (E3) product to achieve the same Interchange functionality. Another indication that Interchange was considered by the company to be a standard, bundled (and very strategic) part of E3, and not, as their invoices would later start reflecting, an option with a posted price that could be added into the purchase. The price Arbortext started assigning to Interchange and then on to Blueberry was only visible, it seemed, after a full sale had been made and it became a listed item on the invoice. How could it be otherwise if both the Reseller and the Customer were not informed and did not know that Interchange was an option?
What a wonderful company. It was hard to tell who they screwed the most, their vendors or their customers. Fudging and scratching and clawing in the dirt for every single penny they could possibly scrounge out of the world around them. Ethics, fairness, honesty, and even legality be damned.
Perhaps I'm being naive. Maybe this is just the way large American corporations routinely do business any more, and Arbortext, except (possibly) for the fraud part, is no more or less ruthless than other companies. Parametric Technology, the company that eventually bought Arbortext, is almost routinely involved in one law suit after another for various fraudulent activities, either by them or against them. In 2007, Parametric was sued for stealing some $40,000,000 from another company through a convoluted scheme based in Japan. Parametric has been sued once, perhaps twice, by its own stockholders for making funny with the books.
My own naive view is that America used to be a place where, by and large, people conducted business honestly and fairly. Having ethics and morality was a standard necessity of functioning peaceably with the society around you. That seems to no longer be the case, and may never be again.
R.I.P. Business, as a noble profession. Snake Oil Salesman has won the day. Resoundingly.
It was humorous to note that the price of our Interchange ($1,200) was higher than the price of their actual product, Epic Editor ($695). But understandable. Epic Editor was a standalone text editor which created XML documents from scratch. A real DOG. But with Interchange capability a whole world full of already created MS Word, Framemaker, and Inteleaf documents could be imported into this barking editor converting the documents into XML during the conversion process.
Joyce also sent us a complete list of the Arbortext product SKU accounting numbers for each line item that could occur on an invoice. Mary, of course, immediately absorbed this list into her seemingly bottomless well of comprehension, while I glanced at it and glazed over. She then pointed out to Mr. Glaze Over that there were Annual License SKUs, Site License SKUs, Catalog Appication (i.e., Intermarket) SKUs, Interchange maintenance SKUs - none of which were on our royalty reports nor was any attempt made to even extract them from the accounting system in the first place.
It was undeniably clear to Mary and I that Arbortext had been methodically cheating Blueberry during the entire time Kevin Dwan was handling the account. Other than demurring over the first royalty report from Cherie Van Allen that contained no sales or invoices whatsoever, he had never again, to our knowledge, questioned any report they slopped into his mail box once per quarter.
Now that we had questioned the reports, and shown a bit of pique over their falsity, Arbortext had switched from pleasant deception to brute thievery.
Dwan's world of never challenging the powers that be, even if they were cheating him (and it's unsure if he did in fact even suspect this), ensured that at least some royalties would always come in. He would view what Mary and I were doing as suicidal and righteously, through his blow hard attorney, point to our current royalty check that was M.I.A. as proof that gutless was the correct strategy.
Mary and I did not subscribe to this notion.
In the thirteen years we had lived here, this raggedy old two car garage with one door disabled had served many purposes. It had been a bedroom for, at various times, four of the girls. It had been a game room. It had been a handyman workshop. An artist's studio. Once, for about a month, we had even actually parked a car in here. But always, and even now, it was a place to dump everything that wouldn't fit in the house.
Or simply to dump ourselves.
"We're not going to make it, are we?" Mary said. Her voice quivered and her eyes misted over and I knew she was thinking about her mom. And her kids. And the house she had bought herself and loved so much.
"God, I feel so alone," she said. "Just you and me. Versus THEM. I can't stand that they just get to rip off your whole life's work and our future and we can't do anything about it."
We sat in silence for awhile. Staring glumly at everything and nothing. Frontal Lobe paralysis. The kids were gone for the day and Mary's mother was esconced out in the custom built cottage in the back yard. It had wheel chair access, a custom handicap shower, a small kitchen, a small front porch looking out on the pool, and portable ramps for easy access to and from our house for various family occasions or just to visit.
We had a small old style ranch house built in 1954, but with a large front yard and a large back yard that contained a black bottomed swimming pool, a large cement patio which doubled as a basketball court, and a gently sloping hillside with bushes and trees that led out from the patio and up to the far corner of the yard.
When the decision was made in March of 2001 to move her mom in with us, Mary had abandoned her medical transcription courses at Cal State Hayward and we had dug out the hillside and built the cottage where her mother now lived. We had also built a huge family room where the patio and basketball court used to be, expanding our dwelling square footage from 1,500 to 2,500 square feet, knocking out a door in the kitchen wall to access the room and allow Mary a short ways to go when taking food and snacks out to her mother each day. The construction for these two additions was about one month along when Dwan had pulled his dissolution Blue Tools gambit and shut off our income pipeline for six months.
Her mother was probably watching an afternoon TV broadcast of a Giants baseball game about now. She was a devoted fan and never missed a televised game. Nor did she ever miss a Forty-Niner game during the football season. This was one area of life where she and I had great rapport.
Up on a shelf in a dark cobweb infested far corner of the garage, a cardboard box caught my eye. The box was labeled "1983 Backup." I had carted this precious box around with me for nineteen years through four changes of residence in four different cities in three different counties. Its contents contained the stuff of my life. Stuff that went back fifty-five years to the beginnings of my time on earth. The small precious stuff culled and kept through all the wandering years.
It contained the very first photographs of me, as a one year old child lying on a pillow on wooden platform outside the trailer where my parents lived while my dad attended Drake University in Iowa after returning home emaciated from a year and a half in a German prison camp during Word War II. And another one a few years later with my older sister Connie and me sitting on either side of my little baby brother Tom. The first three kids of what would eventually be nine. Five boys and four girls.
Who am I kidding by pretending that spooky shit was not my cup of tea? It was a tea I did not enjoy drinking is all. Spooky shit had marked me from Day One. For in those old Browning photos of that little boy, zooming around above him in the air, were trails and whooshes and streaks of light rays – pure and unexplainable spooky shit. Were they Good beams? Or Bad beams? Or alien beams? Or just beams of no import whatsoever.
A mystery. A spooky shit mystery.
Look at that sweet little kid. Poor sonavabitch had no idea he was going to grow up and turn into me and get into this mess.
The other contents of the box were just the ordinary nostalgia items of one more helpless digit of civilization. The little pieces of proof that I Had Been Here. The box was labeled "1983 Backup" because that was the year I gathered up my past and sealed it off. The year that I started my future that would become Blueberry Software.
This beginning moment was preserved in the box via one huge pancake sized eight and a half inch CP/M extremely floppy disk with data on it that probably could not be read any more by any computer or disk drive in the world. On that disk was the very first computer program I wrote. The one that changed my life and led to Blueberry.
"The only weapon in our arsenal," I said, "is the source code updates that Arbortext is waiting for. And they need them pretty badly or Interchange will soon be a less than satisfactory product. They won't be able to support conversions from Word XP. They'll be unable to fulfill their maintenance obligations to existing customers and new customers will not be interested in a dead product."
"Have you added that support yet?" Mary asked.
"But you haven't sent it to them?"
"Well," she said forcefully, "no money, no source code is how I see it."
"I couldn't agree more."
When Mark Lambert, the Arbortext programmer who worked with me, next inquired about when to expect the source code updates, I informed him that there was a problem with our royalty payments that might cause a delay in providing the code.
This news was dutifully relayed up the Arbortext chain of command and soon Jim Haggarty, the previously mentioned CIO and acting CFO, offered to mediate the situation on behalf of Ray Schiavone, the new CEO who had replaced Jim Sterken.
Apparently, Sterken was being removed from the loop. Sure. And a chicken has lips.
And so, in September of 2002, at our suggestion, Haggarty and an Arbortext attorney named Ted Herzog (lawyer number five quietly enters the scene) flew out to California to meet with Mary and I. Kevin Dwan was specifically excluded from attending this confab. His dissatisfaction with this arrangement was communicated loudly and threateningly from Dwan's attorney, Larry Bernheim, to our attorney, Bill Hansen. These two attorneys, now that we had sued Dwan, were fairly constantly engaged in pre-trial planning and posturing.
We had reserved a conference room at the Mariott Hotel in Walnut Creek for this tete-a-tete. We couldn't afford this extravagance, but it was necessary to promote the illusion that we were not, in fact, practically dead fish floating atop the deep pond of life. And to avoid having the meeting at an Arbortext facility in the Bay Area, as Haggarty had suggested. We did not make a counter proposal to have the meeting in our garage. A neutral setting made us feel far more comfortable, and alleviated the paranoia that Sterken might be hiding in the ceiling behind a two way mirror, eavesdropping on our every word.
Mary and I got dressed up for the occasion. She wore a black, skirted business suit with a white blouse and I wore the black pin-striped suit I had worn at our wedding, and not too often since. We actually looked like true-blue professional type people. Or true-black, if you want to be picky.
Mary was nervous and excited and very prepared. She even had a briefcase! I was just nervous, throwing up out the driver's side window on the way to the Mariott.
"Are you all right?" she asked.
"Peachie keeno," I lied.
We were five minutes late for the nine o'clock meeting. Herzog and Haggarty were already there, pouring themselves some complimentary coffee which was extravagantly concealed in the base price of the room rental. Also complementary was a tray of pastry which could be used for hammering nails at the conclusion of the meeting and in no way was intended for the human digestive system.
Herzog wore a suit, also, but Haggarty was wearing a loud and atrocious Hawaiian shirt with rumpled, casual slacks. What message this was meant to convey was not immediately discernible. I resisted the urge to peer under the table and observe his choice of footwear. What if it was sandals and no socks! Too queasy.
Herzog was a small, mousy character who spent almost the entire day bent over his notes and books, rarely saying anything. Haggarty was portly and had a dead-giveaway forehead that turned beet red whenever he was embarrassed or caught dissembling. His forehead also had a large vein of some kind, near the top of his receding hairline, that pulsed noticeably and somewhat frighteningly during these beet red moments, as though some sort of stroke might be imminent.
Mary took over the meeting from the get-go and pounded away all day with the evidence she had gathered of missing sales, unpaid maintenance and only token overseas royalties, flourishing out sample print-outs from her Internet research that usually triggered the vein throbbing on Haggarty's forehead. For every lame explanation Haggarty came up with, Mary would sock him back by producing some evidence that refuted it and confirmed that he was, excuse my bluntness, a liar. A whole lot of vein-pulsing moments.
At one point in the day, Haggarty blurted out that "This is no Enron."
At which remark, Mary and I exchanged brief, but telling, He That Smelt It Dealt It glances.
Haggarty and Herzog did not contribute much. They just listened and took notes, probably to go home and correct information on the web that Mary had located, which Arbortext had done before whenever she brought up a specific example. A classic response to a piece of evidence Mary showed Haggarty concerning a company not reported to us was that it wasn't a qualifying sale because it was a "scaled up opportunity."
Opportunity for whom? Not Blueberry. Our technology had been given away for free.
Near the end, Mary asked Haggarty point blank if she found more sales that had not been reported, would it indicate there was a problem with their accounting?
He replied yes. She asked if she found even one, would it be a problem? Yes, he said, that would be a problem. Even one. I suspect his only problem would be coming up with another piece of laughable bafflegab like "scaled up opportunities" to explain the problem away without addressing the central issue that we had been given away for free in violation of the contract. Haggarty had already lost a pound of sweat fabricating responses. One more effort could very well explode that vein on his forehead.
When we broke for lunch, Mary and I went down to the cafeteria, but Haggarty and Herzog did not immediately come down also. As we sat at a table, Mary spent her time reshuffling and sorting her evidence and preparing her presentation for the afternoon.
I tried not to spill anything on my suit. I was considerably relieved by now from my initial trepidation. Mary was handling everything with aplomb and assuredness and did not need any significant verbal input from me. I basically just had to sit there and act composed, smug, amused, offended – the whole body language ensemble that more or less was second nature to me. When you have a fear of public speaking, as I most certainly did, you have to learn how to speak with your arms, elbows, knees, nose, posture, facial expressions, and all the other non-verbal manipulations of your human torso. For some reason, from the first time I was called on in a classroom and onward throughout my entire life, whenever my mouth opened to emit words, my brain immediately shut down and provided no resources for the mouth to utter. Truly pathetic. Thus the need to become adept at body language communication.
At the very end of the lunch break, Haggarty and Herzog scurried into the cafeteria and ordered lunch, which they carried back with them to the conference room. Those two lunches sat next to them for the entire rest of the afternoon – untouched. Haggarty's was quite close to me and through the clear plastic lid I could see a big, fat, juicy kosher dill pickle just lying there begging to be enthusiastically devoured. I somehow managed to restrain myself from reaching in there, but if Haggarty had made a trip to the bathroom somewhere along the way, I can assure you that pickle would not still have been on his plate when he returned.
Near the end, Haggarty did reluctantly admit, in a classic bit of understatement, that Blueberry had been treated poorly. He did not point out the culprit in this doling out of abuse, but making no explanation for the cause was explanation enough. He assured us that the next royalty report would be a sizeable one, as large corporate customers were poised to purchase E3. He also teased us with news that E3 would be sold in multiple CPU amounts, further increasing our soon to explode royalties.
And he strongly intimated that he was the one in charge now, not Sterken.
But still, it was obviously the old dangling carrot trick.
And equally obvious was our need for the money. For the second time in two years, we had endured six months without any income and we were sliding precariously into debt.
So when the following month's royalty check came in at nearly $30,000 again, I released the source code update and Mary and I crossed our fingers that Sterken was indeed out of the equation and Jim Haggarty would be a man of his word and see to it that the contract was finally honored. Or at least that the cheating would be with a more scaled down bayonet, for the new report still did not report all sales or adhere to the contract terms.
When the fourth quarter royalty report arrived in late January of 2003, and it was back to the old measly, just above minimum amount, with no maintenance royalties, miniscule overseas royalties, no Intermarket and no adherence to the original contract terms, we knew that life at Arbortext would not change one iota with Jim Haggarty or anybody else. He had performed his duty of lying to us, schmoozing us, and coaxing the source code from us that they needed and it was now back to the business as usual of defrauding Blueberry.
Never again would we trust anything Arbortext said. This was plainly a crooked company with zero ethics, starting at the top with Jim Sterken and working its way down and sideways to who knows how many people.
A Gang of Scoundrels and Thieves.
And the evidence would only get worse as we set off now down the long, hard road of bringing them to justice.
The first stop on this wild toad ride would be a bit of a detour. To Federal Court in Oakland for the spectacle of Beigel vs Dwan. Case No.: C-02-3116 DLJ.
The copyright law suit against Kevin Dwan, with its subordinate partnership issues, had burbled slowly along since the previous June with nothing much happening that required our attention. Except writing checks each month to our lawyer. The court system was in no hurry to devour us.
In the early months of 2003, however, this crawling pace began to quicken as the date was set for the trial and depositions of the two combatants were scheduled. Absurdly enough, this change of focus from Arbortext to the evil Mr. Dwan came as a sort of relief. The cast of villains at Arbortext were a sleazy bunch, but they were way off in Michigan and I could only get my hands around their throats metaphorically. Very unsatisfying. Dwan was here in the flesh, though. Finally I had a problem I could deal with in the classic American way: High Noon, pardner. See you in the street.
The first to be deposed was yours truly. This required driving up from Concord to Bernheim's law office in Santa Rosa. My old stomping grounds where I had spent about seventeen years of my early adult life, somewhat recklessly I suppose. A little deja vu to warm my spirits as I motored up through the farm lands and grape vineyards of Sonoma County, reluctantly passing on a few wine tasting spots along the way.
I had never been deposed before, so I was a bit nervous. Not unduly, though, since there was nothing I had to lie about or cover up. The law suit was not about what I had done or not done. It was about what Dwan had done. And the day did not contain any particular surprises for me. It was as deadly long, boring, and tedious as I had imagined it might be.
Bernheim tried to rattle me at one point by playing a tape recording Dwan had made of one of our phone calls where I was drunk and cussing and angry. I don't know what this was supposed to prove, but Bernheim seemed disappointed that it didn't much disturb me. My character had many flaws and it was no secret or surprise to me that I could act like a gigantic asshole. Shrug. You caught me.
I was not in the mood to issue Dwan an apology, that's for sure. In fact, sitting in the same room with him for the first time since he had slunk out of the Arbortext contract signing meeting nearly three years ago gave me a strong urge to ask Bernheim if he had a liquor cabinet in one of his desk drawers that I could guzzle from and subsequently give a repeat performance of the one that played on the tape. Under oath this time, for emphasis. The truth was the truth. Even if a bit slurred.
Dwan's deposition came next, requiring that he and Bernheim drive down to Walnut Creek to my attorney Bill Hansen's office. Since I was basically a spectator for this event, it was certainly a far more enjoyable day. But a bit stunning.
In the thirty-five odd years I had known Dwan, his oratory powers were universally admired and the breadth of his vocabulary bordered on amazing. He devoured books and information like an enormous sponge, carrying around one paperback after another stuffed in his back pants pocket as regularly as most people carry a wallet or a snot rag there. He was truly a learned man in every sense of the word, and his tenure on the Nevada City, California Planning Commission was marked by praise and respect. I had never once seen him at a loss for words. Quite the contrary. It was sometimes difficult to shut him up.
During the entirety of his deposition, however, he was mute and contorted and almost catatonic as he agonized for long wrenching moments over virtually every question Hansen posed to him. It was brutal to observe. I had never seen a man die in front of me before.
The man I had long considered to be my best friend, one I would have for the full length of my life, was not the shriveled and shrunken dweeb sitting across the table from me now, evading and hedging, playing dumb and forgetful, and performing like a stuttering, addled-brained doofus. The man I knew seemed no longer to exist. He was gone. And a part of me missed him, and always would. Good friends do not grow on trees. And certainly not on mine. I had always preferred one or two deep comrades, rather than many acquaintance friends. That made each of my friends quite precious, and losing one of them painful.
In early July, the day of reckoning finally arrived and it was pin striped suit time again. Strip search at the door to His Eminence's Court Room 1 on the fourth floor of the District Court building at 1301 Clay Street, Oakland, California. Senior Judge D. Lowell Jensen presiding. Lawyer number six, so to speak. He, Bernheim, and Hansen – all in one room making anywhere from $200 to $500 or more an hour. Wow. Look what a couple of years in law school will get you. It can turn any anonymous Joe Blow into a money making machine.
The trial started on a Monday and concluded on a Wednesday the following week. Eight days of lawyer blarney! The court room was filled to overflowing each day by one, and usually only one, spectator. This fellow appeared to be a stooge planted at the scene by Arbortext's West Coast office to observe the proceedings and pass along any pertinent poop to old Paddle Ball. The insider guts of Blueberry. Cancerous colons and all. After all, Arbortext had a very real interest in who would be owning and running Blueberry. This stooge did not wave any "We Love Dwan" signs, but it was not hard to guess who Jim Sterken was rooting for in this case and who he would rather be dealing with. Should Dwan win the day, there would be no further questioning of Arbortext royalty reports for him to fret about.
At any rate, our trial was very boring stuff. Whatever they paid this guy, it wasn't enough. Entire days spent on the trivial lives of two jerks acting more or less unappealingly, without any real tension or high drama as would be present if murder or catastrophic evil doings were on trial.
Since I was the Plaintiff, Hansen put on our case first. This worked well for me because I was the first witness and even though I was on the stand for a day and a half, when I was through – that was it. The rest of the trial I could relax and observe the proceedings.
The only notable event during my testimony was having to rebut an Exhibit Dwan had submitted. This Exhibit was a truly pathetic effort to obscure the facts about who did the programming work at Blueberry Software, and thus strike at the heart of my Copyright Infringement claim.
When I founded the company in 1986, I also filed a copyright claim on the source code I had written which comprised the entire Blueberry product called Filtrix. No one else had contributed any code whatsoever, so I was the only claimant listed on the filing. My baby, so to speak.
By 1991, Blueberry had grown and we had hired other programmers to contribute code to the product. Reflecting this, I then filed an amended copyright claim, listing myself and Blueberry as co-claimants. That was the last filing with the Copyright Office.
Well, not quite that simple. Dwan had secretly tried to file the amended copyright himself, listing only Blueberry as the sole claimant and removing me as the sole claimant. The Copyright Office rejected this filing because I, as the only existing claimant, was the only one who could amend the original filing. I discovered this sleight of hand by Dwan when the Copyright Office sent his rejected filing back to me. I then re-filed the claim, as above, and made a mental note that Dwan was a sneaky little shit who was trying to wedge out more partnership power for himself at my expense. And in a gutless, underhanded way.
Looking back, I suppose this was the first clue that he had designs on control of Blueberry and its intellectual property. Designs that reached full blown status with his attempted takeover in 2000 and again in 2001. In 1991, though, I just shrugged it off with a "Nice try, shithead" and went on with the business of writing and directing Blueberry's source code. And learning how to be a step-father, which was quite a bit more challenging than I had anticipated when Mary and I got married.
Dwan's Exhibit to the court was yet another attempt at sleight-of-hand, and I'll deal with it in the next Chapter.
Kevin Dwan had been a busy boy. Manufacturing false evidence to make it look like he was part of Blueberry's programming team. I didn't see how this had anything to do with who owned the copyrights, but my attorney Bill Hansen was worried about it.
"We have to address it," he said.
"The whole damn thing?" I asked.
It was a list of all of our source code files. Pages and pages worth. Next to each file on this list, Dwan had assigned the name of the programmer responsible for writing the code in that particular file.
If we hadn't been in court, I would have had to grab a seat and laugh myself to death. Dwan didn't know which file went with which program and didn't have one clue at all who had written any of them. Him putting together this list was akin to a blind man watching television with the sound off.
There were two things about the list that were noteworthy. One was how few times my name was assigned as the author. The other was not only how many times Dwan's name was assigned, but that it was assigned at all. In addition to giving himself credit for other people's work, which was merely reprehensible, he had inserted into the list a bunch of DOS batch file scripts which were in no way any part of our source code. That he would proudly take credit for creating a BAT file, something any routinely competent secretary could accomplish in the old DOS, pre-Windows era, was either an indication of his ignorance or of his desperation.
When Hansen brought this list up in court and asked me about its accuracy, I said, in so many words, it was total horseshit. The judge encouraged me to expand on this horseshitness by going through the list and correcting it. The whole thing? The whole thing.
And so I did. File by file, while around the world six wars ended and twelve more began. In the end, Dwan's strategy probably backfired because it was clear that I knew unhesitatingly who had written each and every file on the list. This is not to toot my own horn. Anybody who had created a program would know all its parts and who was involved. Not rocket science. And Dwan's name was not one of the assignees of even one source code file. Ergo, he was a liar and a thief. Can we go home now, Judge? No.
Mary was called to the witness stand after me and it became clear on cross-examination that Bernheim had decided she was the one he could rattle into some sort of mistake or other. Not a good choice, Bernie. You should have asked me first. I would have strongly advised against it.
Bernheim's chief weapon of intimidation was a very fat index finger. A little sweaty looking, too, it seemed to me. Waved in extremely close proximity to the witness, where it could be buttressed additionally by halitosis. When he attempted this maneuver with Mary, she leaned back away from him and said, in her diplomatic way, "Will you please get your finger out of my face? And back off a bit. You're too close."
Bernheim stumbled back, a bit nonplused, and apologized, as though he hadn't noticed his more than ample body wedged up against the witness rail, squoozing some of his ampleness above and below said restraining fixture. He then tried to hammer at her as to whether she was concerned about my behavior toward Arbortext, such as my infamous brain-dead email to Jim Sterken (which Bernheim brought up with Mary and not with me), and that it might jeopardize our contractual relationship with them. Apparently, he expected her to admit that her husband was indeed a maniac and she had failed to curtail me.
"Not particularly," she said instead. "Why should I? It wasn't my job. There were three lawyers worrying about it already. One of which was you."
Eventually, Bernheim broke off his interrogation and quit. I would say slunk off in mid-sentence, but this might convey the impression that I was coloring the hue of the facts. His failed cross-examination was a classic reminder of why lawyers depose people before they actually testify. He had chosen not to depose Mary, assuming she would be a pushover, and had walked into a hornet's nest and been stung.
Next up was my brother Jim, who had flown all the way from Ohio to give testimony on who was who and what was what regarding the Blueberry source code. Jim and I are quite dissimilar. He's relentlessly rational and I tend toward mildly constrained insanity. I also was not a gifted programmer, while Jim was Blueberry's bona fide, whiz-bang, mathematical brainiac. My code writing was sufficient. His was a work of art. I used Math 101. He used Calculus. Also, he was a pleasant, respectful, kind and decent human being. Like I said, we were quite dissimilar.
Needless to say, Jim's testimony went pretty much unchallenged by Bernheim. When asked to describe my role at Blueberry, Jim resorted to this kind and decent streak by pointing out that Blueberry was not big on Titles. But if it were a REAL company, my title would probably be Vice President or Director of Engineering. Not being familiar with entitlement, I was unsure whether Jim was slipping in a funny or simply telling the truth.
And that was it for the Good and Noble Side. Next up, the Bad and Despicable Side. Starting off with good old Kevin Dwan. An appropriate place to start, in my view.
As I mentioned earlier, Dwan was renowned for his extensive vocabulary and ability to pontificate learnedly on virtually any subject in the known universe. I forgot to mention that sports was excluded from his knowledge system. He was a lifelong dork. He couldn't tell a catcher's mitt from a soccer ball. Dork deluxe, is what I'm saying. When the subject of sports came up, he would masterfully change the topic to psychology. The type of guy you'd definitely want on your debating team. I had once seen him talk an ant into an afternoon nap. On a hammock! I kid you not. Very scary.
But here in D. Lowell's joint, that fellow was only half there. When questioned by his own attorney, Dwan was his usual effusive, assured self. But when questioned by my attorney, he repeated almost exactly the catatonic show he had put on during his deposition.
He parked himself rigidly on the witness chair and locked his head downward and to the right into the bottom corner of the witness booth, never looking up and at my attorney. When asked a question, of any kind, he would mutely chew on one end of his wispy mustache and stare silently into this corner, his jaws muscles visibly flexing with tension and anxiety. For ungodly long moments. Dead quiet in the courtroom moments, court steno with her hands poised forever over her key pad, a cough sounding like a clap of thunder in the stillness. Eventually, my attorney would ask politely if there was anyone home in Dwanville. At which point, Dwan would snap out of his trance and stutter out that he didn't understand the question or ask that it be repeated.
At one point, Dwan said he didn't know how to reply and my attorney, in a throe of frustration, blurted out, "You could try just telling the truth."
Whoops. Sternly remanded by the Judge. Sorry, your Honor.
I don't know what the Judge was thinking about Dwan's performance, since he rarely lifted his head to make eye contact with anyone in the courtroom. I will not suggest that perhaps he was nodding off here and there, but it certainly would have been possible and no one would have been the wiser. It seemed to me that Dwan's catatonic fear of testifying about anything at all could not have made it clearer that he felt guilty, was guilty, and should just admit it and be sent to San Quentin for the rest of his life. Fair is fair.
As for the next Bad People witness, that would be Dwan's wife Rebecca.
We have not mentioned her yet. The Star Witness. The Case Breaker. The Rose Mary Woods of Beigel vs. Dwan. The tape machine strikes again.
Rebecca W. H. Dwan was her husband's antithesis on the witness stand.
Where he chose the motif of stonewalling and appearing to be extraordinarily stupid and forgetful, she could not debase herself so. Her erudite image was too fundamentally important to her to portray herself as a total blootz for the court reporter to transcribe into the record and on into the annals of history. She had not been allowed in the court room when her husband had whisked aside this concern, so did not necessarily know that mum and dumb was the word for the defense strategy.
She tried once, bless her co-conspiratorial hind quarters, but it was no go. When asked about a Blueberry overseas reseller, she feigned not to remember the company even though she had personally recruited them. When our attorney then mangled the French pronunciation of the company's name, however, she immediately corrected his mangle – with a flourish. Rolling French tongue extraordinaire.
Pride goeth before the fall.
When questioned later about the origin of Blue Tools Software. she casually explained that she and her husband had discussed what to call their rogue new business, the one replacing Blueberry – to save it from me was their rationale – and they decided it had to have something "Blue" in the name. Thus they had arrived at Blue Tools Software. Behind the scenes peek into brilliant, thieving minds at work. Probably conjured up in their kitchen over a bottle of wine. Their favorite think tank arena.
Next she explained that they answered phone calls by saying "You have reached Blue Tools Software." Once she had slipped and also claimed to be Blueberry Software. But only once. A mistake. She never did that any more. Ever.
Mary's sister, Maryann, had stopped by that day to witness the proceedings and, when a court room break occurred, Mary, antennae twitching, borrowed her sister's cell phone and dialed up the Dwan's phone number. The answering machine intoned "This is Blueberry and Blue Tools Software . . ."
Hearing this, our attorney's eyes dramatically distended themselves. Whoa, I mentioned to Mary, get a load of the orb swell there. Mary took the occasion to remind me that she was quite brilliant and I was lucky as hell to have her on my side. I declined to dispute her assessment.
Back in court, Mr. Hansen returned His Royal Muteness to the witness stand. A real Perry Mason maneuver moment. Hansen then inquired of Dwan if his wife's testimony about how they answered the phone was a truthful tale. Dwan was stuck. If he said no, his wife would be guilty of perjury and he would get a very bad whupping when they got home. If he said yes, he would be committing perjury also.
After long, long, even longer moments of corner staring catatonia, and repeated prompts to answer either yes or no, Dwan finally selected the wimpy affirmative. He nodded. Not good enough. The court steno could not put "nod" into the record. Nod must be quantified verbally. Aloud. And so Kevin Dwan at last whispered "Yes." His wife's testimony was the truth.
It was the whupping he feared most, evidently.
Mr. Hansen immediately whirled around to the judge and inquired if he could place a phone call to the Dwan business number right here in court.
For the first and only time during the week and a half long trial, Judge D. Lowell Jensen stirred from his head drooping stupor and indicated that he was actually awake and cognizant. Flinging himself upward and flopping himself backward into his chair, his arms outstretched, he gazed at the ceiling and actually laughed.
"Well," he intoned, "you could have done that any time!"
Since this event occurred very late in the trial, I believe the judge may have been dripping some sarcastic innuendo into the proceedings. Roughly translating out to, "This trial has been a trivial, ridiculous bore. Why did you wait until nearly the end to stick the smoking fork in? This should have been pried into them from the get go!"
Mary and I chose to look on the bright side. This phone call thing seemed to be a big plus for us.
And so Mr. Hansen took the proffered phone and dialed up Dwansville. Sure enough, the answering machine had the same message as it did out in the hallway. Mr. Hansen solicited assurances from all parties and the judge that they were hearing the words on the tape recording. Specifically the Blue Tools and Blueberry words. Agreement all around. Red faces to the right where the Defense sat. Happy faces to the left where the Plaintiffs sat. For some reason, I resisted the urge to turn my head towards them and gloat like hell. It must have been the courtroom atmosphere. It tended to make one feel like any indication of emotional content within oneself would be harshly dealt with.
Plus, there was Mary's foot stomping firmly atop mine own.
The Dwans had committed Perjury. Both of them. Blue Tools was not, as they had claimed, an entity separate and distinct from Blueberry. Blueberry had not been abandoned to me, while they moved on with Blue Tools. Rather, Blue Tools was simply a blatant attempt to steal Blueberry, all its customers, all its revenue, all its identity and leave me with an empty name, an empty company, and an empty wallet. They had come not to rescue Blueberry, but to filch it.
Case closed. On to the thrill packed conclusion.
Wait. First there was the Court Yard Jig of The Nimble Footed Fat Finger to experience.
The case wrapped up shortly before noon on the fateful Wednesday, so the judge called a lunch recess before delivering his verdict. Everyone elevatored down to the bottom floor, in separate efforts, and on out to the court yard in front of the building. Sandwiches were fetched from the vendors across the street, and then, while Mary, Bill, and I sat on a bench eating, the show began.
Larry Bernheim was so sure he would win the trial that he had brought his daughter with him from Santa Rosa for the final day. She was, or soon would be, a full-fledged attorney herself. This allowed her to witness her daddy's crowning moment in Federal Court.
While Mary and I munched our lunches, Bernheim suddenly got up from a bench nearby, flung his suit coat over his shoulder, holding it by the previously mentioned fizzled fat fore finger, and began to dance a little jig in front of his clients and his daughter. I will not pass judgment on his jigging abilities, since I do not wish to incur the wrath of PETA by making insensitive remarks about the nimble footedness of the sub-Saharan African mammal species known as the hippopotamus. Nor will I draw inferences that this mammal bore any physical resemblance to Mr. Bernheim.
It seemed to us, however, that this purported jig was a rather unprofessional display meant to convey "Nyah, nyah, nyah, nyah, nyah, nyah!"
Very cheesy performance, to say the least.
When court resumed after the lunch break, the Judge sprang a little surprise. Rather than make us all wait a month for his official written verdict, Jensen chose to verbalize it on the spot. Winging judgment right off the top of his old, ponderous noggin.
He first turned to Dwan and said he was going to give him what he wanted. He would be allowed to continue his Blue Tools Software business and granted his wish to dissolve his partnership with me. Blue Tools Software would not, however, be allowed to take with it any of Blueberry's assets, liabilities, or resources.
Turning to me, he said, somewhat kindly I fancied, "Mr. Beigel has worked long and hard. I'm going to let him continue with his work."
As the sole owner of Blueberry Software and all its assets and its source code.
A collective gasp ensued from the Defense table that was noticeable in its intensity by the way Dwan's note pad whooshed off his lap and impaled itself against his lips.
The judge went on to delineate more of the specifics of his decision, but I heard him little. Paying attention was Hansen's job. Mine was savoring. The three and a half year Blueberry ownership battle was, at last, resolved.
As the judge banged down his gavel and wended his way off the bench and out the door, the last words that echoed through the court room were the primal sub-Saharan bleats from the Defense table jigster: "But your Honor, but your Honor, your Honor . . ."
Apparently, the jig was up.
In early August of 2003, the Judge's official written ruling was disseminated by the Court Clerk.
It included what seemed like a small, innocuous section which appointed a Receiver to, well, Receive. All the royalty checks. And Disburse them in equal amounts to the former partners.
This fellow's name was Dick Blair. Not Richard. Dick. Just Dick.
Thusly, lawyer number seven trotted into our lives.
Did I say "innocuous?"
Oh woe unto them who have eyes to read the legal fine print and do not see the innuendo contained therein. May a curse fall upon their lives and their children be scattered to the winds and their house crumble into ruins and the very soil beneath their feet be made unsteady and viper strewn while they wander fearfully through the darkness of their days and nights.
Dick Fucking Blair. Fie uponst thee, thou evil smelling swine.
But I get ahead of myself. Back to the Judge's ruling. His appointment of the Receiver. The additional duty of said party, beyond merely receiving. And before Disbursements were carried out.
Paying himself for his Receivership time.
Mr. Blair's time. It couldn't be that much, could it? Open a letter once each quarter, deposit it, cut two checks, and mail them. A secretary's job. And Dwan was simply going to accept the verdict, collect his half of the Arbortext royalties which I would be earning for him, and go away, right?
And Elvis was still alive and living with John Lennon in a log cabin in Montana.
It was about this time that the ghost of Rod Serling took up permanent residence in our living room, sitting comfortably next to the fire place, legs crossed, smoking a pipe that mysteriously never went out. Smiling that graveyard smile.
Mary and I, at this time, were a couple of naive dolts when it came to understanding this legal swamp we had wandered into. After the court decision, we motored over to nearby Walnut Creek to press the flesh with Dick Blair, the newly appointed Receiver, and fill ourselves in on the meaning of his role in our lives. It was not a good day for the realm of inkledom.
"Oh, no," I remember my first impression of him leaping forth within me, "not a short, mousey, balding, shyster with a neat little beard!"
But I quickly scolded myself for stereotyping and put on a Politically Correct game face. Promising to promptly report myself to the World Wide Shame On You For Voicing Impure Thoughts Organization.
Mr. Blair stated that he would need some time to bring himself up to snuff on the matters before him.
How pleasant, we remarked.
He would be contacting all parties contractually obligated to the former Blueberry partnership and informing them that all future payments should be made to him.
How pleasant, we remarked.
Concerning these contractual parties, Mary now proffered some current information. There were three parties. Arbortext, as we have briefly alluded to. Island Software, a small Unix based old timer with fairly insignificant royalty obligations remaining to Blueberry. And VistaSource, formerly Applix.
Part of the fallout from Dwan's ill-conceived coup attempt, now nearly four years in the rearview mirror, was the affect it produced in Island and VistaSource. These two very concerned entities chose to immediately cease making any royalty payments to Blueberry, professing not to know which partner to mail the money to, conveniently ignoring that mailing to either party fulfilled their payment obligations. I can safely surmise that old Dweebledwad failed to factor in this fairly obvious business ploy during the implementation of his brilliant dissolution scheme.
The cessation of payments from Island was not catastrophic, since this amounted to only $233.33 per month - phone bill dough. When the contract with them was signed ten years earlier their payments were $3,500 per month. Needless to say, Island's presence in the word processing market had not met expectations.
VistaSource was a different matter.
Like Island, they had contracted with Blueberry in the early nineties, when the company was called Applix, Inc., to provide import/export for their Applix Words product. For the first few years of the contract, Applix flourished and Blueberry royalties were over $150,000 per year. For a small company like Blueberry, this was some very serious cabbage.
By the mid-nineties, however, as Microsoft Windows and its bundled Microsoft Word product began gobbling up the software universe like a ravenous beast from the Apocalypse, Applix Words began the slow, inexorable shrinkage unto nursing home/terminal ward like a slew of other word processor companies (WordPerfect, Wang, IBM Displaywriter, PFS: Professional, Volkswriter, WordStar, Multimate, Leading Edge, OfficeWriter, PC-Write, Q&A, Samna, XyWrite, and, eventually, even old geezer behemoth Interleaf itself).
Since Applix Words was a Unix based application, not a DOS based one, and Microsoft never bothered to port its Word product to the Unix world, Applix Words did not completely evaporate from the landscape. Indeed, it is still squirming marginally along as we very speak.
Its royalties to Blueberry had not completely died, either, though serious harm had come to them. By 2001, they finally dropped below the contract's Mendoza Line of a guaranteed minimum of $40,000 per year. And then the fun began.
Along the way, in a convoluted ownership change, a part of Applix called VistaSource had taken over control of the Applixware line of products, and was then purchased itself by Parallax Capital Partners.
Whereas Blueberry had a long personal, as well as business, history with Jit Saxena, the head of Applix, who most likely would have honored the contract commitment, such was not the case with the bureaucracy at VistaSource/Parallax, represented by Linda Michelman. She preferred the more modern corporate response of Eff You, Peanutsville.
Not only Eff You on the $40,000 guarantee, but, courtesy of Dwan's grand partnership schism, Eff You any payments at all.
Mary had been introduced to this problem soon after replacing Dwan and, as she had with Arbortext, began applying her dauntless efforts toward resolving it. After some pithy go-rounds with Michelman, Mary had finally found a more sympathetic brain stem in John Amico, a long timer at Applix, who acknowledged the debt and seemed inclined to push VistaSource into honoring the contract and paying what was owed.
It was this news that Mary now relayed to Dick Blair, hoping to get the go ahead to conclude her negotiations and hopefully bring home the $120,000 worth of overdue bacon for the two ex-partners to split. After the expenses of the trial with Dwan, which had drained our bank account to 1 degree centigrade, collecting this wad had become almost a life and death situation for us.
Dick Blair's immediate and unqualified response, therefore, was bone chilling.
"Oh, no," Dick delivered, "that's my money. You can't talk to them anymore."
Oh, oh. How did our money suddenly become his money? We were noticeably disappointed to hear this sentiment. In fact, Mary had to turn away so Blair could not see her eyes fill with water. Which broke my heart and made me briefly contemplate killing him on the spot. Hands around the throat, pounding his head on the desk till it popped open. A little Cave Man oozing up out of the old Id reservoir. Sublimated quickly into the civilized response of grinding an inch off my molar enamel. Ten thousand years of behavioral progress in one nanosecond.
Dick informed us he had talked to Kevin Dwan, who was cordial and did not fling any aspersions our way and considered the court verdict a draw.
I responded that Dwan was free to think anything he wanted.
This seemed like an innocuous remark to me, but turned out to be a CLUE to Mr. Blair as to which ex-partner he could safely rely on to freely and copiously exchange phone calls and emails about what the Judge had really intended with his verbiage, and how his ruling should be interpreted.
I was at first puzzled about this interpreting necessity, since the judge had used relatively simple English sentences without any arcane or idiomatic expressions, or such vagaries as ending a directive with the broad-scoped whimsy "or whatever."
Then it hit me. Of course. Interpreting was lawyer-speak for furious scribbling of hours in Dick's Timecard Fee Ledger. It was obvious to Blair that we thought the case was over with and that Dwan would love to see it continue and be re-interpreted more in his favor. This view was pure honey to Dick and would flow smoothly and relentlessly straight into his bank account.
See Exhibit G for the court ruling dissolving the partnership and appointing Dick Blair as Receiver.
Leaving Dick Blair's office, Mary and I exchanged forlorn looks and drove home in silence. She stared out the window, dabbing at her eyes and sniffling. I smoked furiously and tossed the butts out the window in open defiance of anti-littering laws and the welfare of planet earth. One such butt inadvertently ricocheted off the windshield of a passing motorist who was highly displeased and performed a well-known hand gesture in retort.
I was not in a mood for idle pursuits like virtuous living, however. Our life was turning into a Kafka novel. As I pulled into our driveway, I noticed that our house had burned to the ground while we were gone.
Just kidding. But it wouldn't have surprised me, I hate to admit.
"VistaSource owes us $120,000," Mary said. "We really, really needed that money. They were ready to pay it, too. Now Blair's going to start the negotiations all over from scratch. All my work completely trashed. We won't see that money for months. If at all. How are we going to survive?"
Elizabeth, sometimes known as Lizzie, but most commonly as just plain Liz, bounded out of the house with a hopeful smile on her face. She had stayed home today so Mary's mother wouldn't be alone while we were gone. One look at the two of us sitting dejectedly in the car in the driveway, however, caused her to perform an about-face and return to the sanctuary of her bedroom.
I stared through the windshield at the garage door, noting idly that the car needed a washing. There was a dent in the garage door courtesy of me hitting the gas pedal to go in reverse without noticing the gear shift was in the forward position. And now, all these years later, the dent was sitting there somewhat symbolizing our life.
"Did you smell sulfur in Dick's office," I said to Mary, "or was it just me?"
Wrong smart ass remark. Mary suddenly buried her face in her hands and started sobbing away. A real gusher. I felt like a turd.
I hung my head and stared at my lap. Waiting it out. There was an old coffee stain in the crotch of my jeans. It looked like I had peed my pants. Jeezus. I couldn't even wear a clean pair of pants right. How did I turn into such a loser? When had it happened? How?
I stared out the window instead. No better. The weeds were getting out of hand in the side yard. The fence gate was hanging crooked. The retaining wall was rotting and tilting downward in near collapse. The daisy bushes were unkempt and dying. The mail box was hanging off the top of its four by four by a single remaining nail. The paint was peeling off the house walls. The planter box was swarming with ants. The porch eaves were dripping with cob webs. Disaster written across everything I looked at.
And Mary sobbed on. Her shoulders shaking and convulsing. Snot and lung blasts scroobling and blurking out of her in shudders and spasms.
Useless butt ass sitting here bringing her all this grief and anguish. Kill me now, Lord. Get it over with. I'm poison. A cancerous scrudball disease bearing dung heap loser. I'm killing her. Pull the plug, Lord. Now. I can't stand this shit any more. Please don't make her cry any more. Please. I'm gonna get mad, so help me. You did this to us. I'm gonna start swearing and blaspheming any second now. I mean it. Make it stop!
Mary suddenly sat bolt upright, shook her head furiously, hoffle-snoffled one last definitive time, took a long deep breath, and started mopping the juices off her face.
"I am NOT giving up," she said.
With that, she kicked open the car door and stalked into the house.
I followed meekly behind.
The evening was fairly glum. Mary asked Liz if she would go out to the cottage and tell Mary's mom that we were home. And could she take her dinner out to her tonight, also. I suspect Liz waved off the other kids when they got home. The old wide berth treatment.
Mary consoled her spirits by playing the concert grand piano in the living room. I consoled mine by watching an old Lee Marvin and Jack Palance western, called Monte Walsh. It was a gloomy, realism piece about the end of the cowboy days and the work of cowboying drying up. I had watched it many times, hauling it out whenever I felt the world was conspiring against me. The hauntingly beautiful theme song, by John Barry and Hal David, sung by Cass Eliot, had become one of my all time favorite songs:
Oh the good times are coming
They'll be coming real soon
And I'm not just pitching pennies at the moon
Oh the good times are coming
When they come I'll be there
With my both feet firmly planted way up there
Watching it always had the consoling effect of making me feel like a hero for being trampled by the stampede of life. Lee Marvin and Jack Palance were probably put on earth for the sole purpose of portraying Hemingway's destroyed, but not defeated, man.
Tonight, however, I didn't finish watching the movie. The heroine, Monte's girl, had a little box where she kept the few, small treasures of her life. Seeing it, I suddenly remembered one of my own small treasures. It was quite a bit bigger before 9/11/2001, quite a whole lot bigger, actually, but was still reasonably impressive, especially given our circumstances.
"Mary!" I exclaimed, bursting into the living room. "My SEP-IRA! I forgot all about it. I can cash it in."
She stopped playing the piano and gave me one of those looks that remind you why you fell in love with someone way back in the past when you did.
"That's for the future," she said.
"I'd say the future is pretty much now."
"You'll get dinged on the taxes for early withdrawal."
"Only ten percent. We'll still have the other ninety per cent."
As she resumed her piano playing, a big tear rolled down her cheeks. It was an okay tear, though. Not a grief one, like the afternoon gusher.
It reminded me that every once in a great, great while it was okay being me.
And so, the following day, we cashed in the future.
Dick Blair's "interpreting" period lasted three months.
Let's see, excluding weekends, during which I presume the door was closed to the sweat shop in Dick's brain where interpretations were stretched on the rack of incredulity, this period represented roughly twelve days per page of the judge's five page Order.
Serious, extraordinary head scratching. A brain that scorched across the landscape at the speed of a one legged turtle with a torn Achilles tendon, a fractured arch, and a broken toe.
For economic reasons, Mary and I had relieved our lawyer Mr. Bill Hansen of his duties, albeit leaving him $70,000 better off after his year long handling of our court matter with Kevin Dwan, and we now embarked on a perilous, some would say suicidal, course of action known as Representing Ourselves. In Federal Court, not People's Court. Dwan continued his steadfast muteness, however, by continuing to retain his mouth piece Larry Bernheim and leaving all communications up to him. Kind of chicken shit, if you ask me.
Mary had approached him after the trial to see if he was open to both of us ditching our attorneys and dealing with the Receiver without the expense of lawyers. He had recoiled away from her like a snail squoozing itself back inside its slime tissue at the first terrifying whiff of a nearby grain of salt. Pathetic.
"He needs Bernheim," Mary said. "Larry's the master of dirt ball lawyering. He's going to do everything he possibly can to muddy up the judge's ruling. It's never going to end."
And so began our saga of being spectators at our own hanging.
It was apparent from the get-go that Blair was also a master of dirt ball lawyering and he and Bernheim quickly formed a first-name-basis relationship that bordered on footsies under the table. Email after email between the two, referring to untold amounts of mutual phone calls which did not bother to include Mary or me. We were cced only when they were ready to ram some decision down our throat. Our responses were simply ignored. Unless I made a derogatory remark about some aspect of events, in which case I received a scalding lecture from Bernheim. Proper legal etiquette required. Advice from the Pot to the Kettle.
The Receivership was confirming our worst fears. It would not be an impartial representation of two ex-partners, but a one-sided screw job. So much for the Court Case being final and definitive. Au contraire. It was merely the first step in the long, long cab ride of the illusion called Justice.
At the end of the three months, Blair set up a date to go back before the judge and get Clarification on the issues raised relentlessly by Bernheim regarding his poor, befuddled, abused and mute client. Also, Blair was quite confused himself about his own duties and responsibilities as the Receiver. Apparently the three or four sentences in the judge's Order delineating his rather pedestrian role had proved too obscure for a mere three month investigation to properly fathom.
These concerns were raised via a letter from Blair to the court. Dick's letter somehow managed to overlook any of our concerns. Rather than point this out to Dick and perhaps overburden his cranial capacity, Mary and I chose to write a letter to the court ourselves. This maneuver was undoubtedly going to incur Dick's everlasting ill-will towards us, but at this point it didn't seem like that mattered much. He had already determined which side of the ex-partnership his bread would be buttered with and adding relish to his sandwich, via enjoying having us for lunch as opposed to merely digesting us, seemed inconsequential in terms of reality.
So, what the heck, we were Lay Lawyers now. May as well go for it. See if we were going to be any good at "legalese." This would mark the first collaborative effort between us. Much to our dismay, there would be many, many more to come. Our modus operandi generally was that I would rant and rave through a first draft, then Mary would clean it all up and sound like a nice person voicing a few diplomatic concerns.
In this first effort, we suggested as tactfully as possible that Dick had forgotten to include a few concerns that we felt the judge might want to consider also. With apologies, of course, if this was improper court etiquette and to please forgive us for our boundless ignorance if that was the case. But as long as we had breached etiquette, here's what's bugging our beans.
Mainly, we thought the judge might like to know that Dwan had completely ignored his Court Order and had continued to do business as Blueberry and Blue Tools without missing a beat. He hadn't turned over control of the web site or anything else that belonged to Blueberry. We had mentioned this concern to Blair and he had done nothing about it.
Blair spent most of his letter delineating the gargantuan scope of his Receivership, which he had managed to gouge out of the few brief lines in the Order that mentioned him. The focus of his three months spent getting up to snuff was now abundantly clear. He unabashedly intended to detour as much of Blueberry's royalties into his own wallet, and away from mine and Dwan's, as he could possibly get away with.
The only thing about the two partners that concerned Blair was how to reimburse Dwan, and thus please Bernheim, while not paying me and thus being able to properly please himself. Since all of our concerns involved strict adherence to the Judge's ruling and thus a limited scope for Dick Blair, we were the de facto enemies to Dick Blair's wallet fattening agenda.
Blair and Bernheim believed that Dwan should be paid all royalties received until he reached his half of the $160,000 figure that the court had concluded was Blueberry's net worth. Not exactly a Fortune 500 amount, I suppose, but that does not justify putting this tome down for a prolonged attack of snickering. The court had not factored in the VistaSource debt, so actually Blueberry was worth more like $280,000. So there.
The judge pointed out that his Order specified Dwan was to be paid out of Arbortext and VistaSource royalties concurrently with me, not before me.
Blair then delivered a vivid example of his $350 an hour cab driving skills by employing a technique we would become all too familiar with in the days and months ahead. It was called Playing Really Really Dumb.
He pretended not to understand how to accomplish this concurrent disbursement dictum. When a royalty check came in, despite the above fairly direct explanation from His Honor, Blair still fondled the idea that he would credit half of it to me and half of it to Dwan, but he would then give my credited half to Dwan.
The judge demurred, saying his Order clearly specified that I would get my half and Dwan would get his half and the half that Dwan got would go towards retiring his half of ownership, even though he would continue to get half of the royalties after that figure had been reached. The logic for this was that if the royalties dried up before Dwan got his half, then I would owe him personally out of my own pocket for the difference. Part of my reward for getting to be sole owner of Blueberry.
It may not be possible for mere legal lay people out there in the real world to properly digest the spectacle of a $350 an hour Receiver and a taxpayer funded Federal Judge dribbling words back and forth like two remedial illiterates, but I swear they did. On second thought, maybe it's not that hard to imagine. They were both lawyers, after all.
Mary and I, sitting alone at the Plaintiff table, naked of representation, spent this interminable interlude of duncemanship carefully nudging knees and making very unobtrusive facial expressions which more or less indicated to each other that we could not believe the manure being excreted before our very eyes.
Do we dare to interject?
What the heck. May as well lawyer up and get in the game.
So, despite the risk of banishment to San Quentin, I nudged a cautious finger into the air, indicating that I would like to speak, if that was allowable. To my surprise, the Judge recognized this gesture.
THE COURT: Go ahead, Mr. Beigel.
MR. BEIGEL: I just wanted to make something clear. Let's say Arbortext sends us a royalty check for $10,000. Do I get five thousand and he gets five thousand?
THE COURT: Right.
MR. BEIGEL: Thank you.
THE COURT: That's 50/50 as we go on, but the 5,000 would be accounted – he'd get the money, but it would also retire $5,000 of the overall monies that he's supposed to get from the dissolution.
MR. BLAIR: So maybe I'm being – well, see – let's say we get 10,000 of Arbortext money, and I'm understanding the court to be saying two things. It's – from a bookkeeping standpoint, it's shared 50/50, but Mr. Beigel's $5,000 is actually paid to Mr. Dwan's –
THE COURT: No. No.
MR. BLAIR: – five thousand, so that there's five thousand –
THE COURT: No. I'm saying that when you split the 5,000 – split the 10,000, Mr. Beigel takes 5,000, puts it into his bank account. Mr. Dwan takes 5,000, puts it into his bank account. But at the same time, the 5,000 that goes to Mr. Dwan there retires $5,000 of the overarching debt of Mr. Beigel that was due as a result of the termination. Okay.
MR. BLAIR: I'm clear.
I sat back down. Okay, so it wasn't exactly an F. Lee Bailey performance, but still – it was me speaking extemporaneously. Always a dangerous and volatile situation. Mary gave me a little thumbs up under the table. I was very pleased with her approval.
After a few more minutes of Playing Dumb, Mr. Blair finally conceded that he understood. Not that he would comply. Just that he understood. Was clear. In fact, the whole charade was a fairly moot point, except for running the cab meter, since Dick was not disbursing any of the royalty checks anyway. He was simply banking them. And keeping a secret ledger of his Time.
Exhausted from the effort of Dumbness, Mr. Blair then ceded the floor to Mr. Bernheim, who proceeded to play ring around the wink-wink about the idea of placing a lien on my house to achieve the full amount of debt collection. The Judge pointedly said that this was unnecessary as he had already provided the means of debt collection in his Order. Which was the simple "50/50 as we go on" concept provided above.
At long last, Mary raised her hand and got the Judge's attention. Before she could speak, Bernheim leaped up and yelled, "Your Honor, she can't represent him. A client representing himself cannot in turn be represented by another lay person."
The Judge let out a big sigh and waved him off. "Sit down Mr. Bernheim. She's his wife. Under California law, she's therefore the co-owner of Blueberry. Either one of them can represent it."
Why would Bernheim make a point of this? Because it was central to Dwan's game plan that I be forced to do all the speaking and acting regarding Blueberry. He was certain that I would blow sky high at some point and start swearing and fulminating and go down in flames in a big way. This indicated that his brain had not entirely stopped working because it was a reasonable assumption to make. I probably would do exactly as he hoped. Actually, there was no probably about it. I would. Anyone could tell you that. Even my Mom.
But Mary wouldn't. Oh no not her. And from this point on, she did all the speaking for Blueberry. It was a major blow to Dwan's post-trial game plan. I could sit back and be just as mute as he was, without having to pay a lawyer for the privilege.
He was really ticked off about this. You could tell. At the Judge's remark, he uncrossed his legs and put down his studious jotting notes pencil and VISIBLY frowned. Wow! Was he pissed off! Look out. He might get really wild and cross his arms here and indicate extreme disapproval. Nope. Too bold. Too risky. He re-fetched his pencil, re-crossed his legs, and re-sumed his studious jotting notes.
Now that Dick and Larry were through with their evil war dance, Mary directed the Judge's attention to a list of things that Dwan had not complied with so far. He had not relinquished the Blueberry web site, nor the Blueberry phones and fax lines, nor any of the office equipment and supplies – nothing at all, actually. He was still running Blueberry and taking all the money as though there had never been a court verdict of any kind.
Did the Judge become enraged at this cavalier treatment of his Orders? Throw the bastard in jail? Cast his wife into slavery?
Nope. Too old for anger, I guess. He frowned at Dwan and suggested he get cracking on these matters. Did Dwan understand?
"Anything more, Ms. Tarantino?" the Judge asked.
"No, your Honor. Not at this time."
The Judge swiveled his chair sideways and slipped off to his quarters. Mary, bless her brazen heart, immediately went over and butted into the private conversation Bernheim and Blair were having. I believe she suggested they all do lunch. They immediately broke off and departed, not liking at all that she had presumed to lunch doing powers without an official attorney license.
Mary and I walked outside and across the street to a plaza type area near the Bart Station entrance and did lunch anyway.
"What a miserable charade," I remarked. "We didn't need to be in court for any of that crap. It was all nonsense. Blair was practically Dwan's advocate in there."
"This is going to be a nightmare, Steve."
"Can't the Judge see what's happening here?"
"He doesn't care, Steve. That's what's so frightening. He's going to let Blair do anything he wants. That was the whole point of this. Blair wanted to see how far he could push the envelope."
"We may as well forget about disbursements and VistaSource then. Blair and Bernheim are going to take it all. Our whole fate rides on getting Arbortext to pay what they owe us. And soon. Or we're dead."
We finished our lunch and boarded the Bart for the train ride home from the Oakland court house.
"We won ownership, Steve," Mary reminded me, attempting to douse the flames pouring out of my ears. "That was the main purpose of the whole thing. Remember?"
"Yes," I grudgingly agreed. "That was the purpose, wasn't it?"
"Yes. Without it, we could never get anywhere with Arbortext. It was never about punishing Dwan."
"He's a lying traitorous crook. He deserves to be hanged and quartered."
"Steve, three and a half years ago Dwan came to you and smirked in your face that he was going to take over the business and there was nothing you could do about it. He was cocky as hell. Now you own the business and he's nobody. Do you think any punishment in the world will ever remotely approach the one he suffers inside his own heart? It'll never go away."
"Aw, Jeezus. It's no fair being philosophical about him. You're taking all the fun out of venting. I'm pissed. Really, really pissed. The whole court case is being completely perverted. And once again he's the lame brain that's behind it. Blair couldn't pull any of this nonsense without Dwan egging him on. He's sabotaging us and he's sabotaging himself. The man's a pathological screw-up."
She was smiling.
"Damn you," I said. "What is this? We're ruined here."
"You have to send an official letter to Arbortext when we get home. Informing them of the ownership change. It's required by the contract."
"I'm not done stewing yet."
"Well hurry up then. Forget about Kevin Dwan. Think about Arbortext. I'm contacting them tomorrow."
"I need a drink."
"Then think about that."
Sole owner of Blueberry.
Not as impressive as Royal Duke of Westblathersbey Shire. But okayish, I suppose. In reality, I was not now nor ever could be the sole owner of anything except my clothes. Dwan had been right about that. About his notion that I could not succeed on my own. I could do just about anything necessary to starting, building, and running a business – except lead it or represent it. I had terminal failure when it came to Public Relations. It wasn't that I did not possess people skills. It was that all these skills were Negative and Disastrous. Which was fine if your business was starting barroom brawls or international conflicts. But very counter-productive to generating a living wage.
Dwan knew this. He considered it his secret weapon. The ipso facto of why, eventually, he could not fail in his quest for power and control.
Where Dwan was fatally wrong was in assuming that he was irreplaceable. He and he alone could provide the leadership and representation necessary for my survival. It never occurred to him that anyone else could possibly fill this role. Or that I could locate such a person even if I tried.
But he had overlooked Mary. Probably never even considered the notion of her being able to step right in and provide the leadership and representation that he assumed only he could provide. Within one month, she proved not only to be a replacement, but a major, major upgrade.
And now, nearly two years after she discovered Jim Sterken's thievery, which had passed unnoticed under Dwan's nose for a year and a half, and a year after our meeting at the Mariott with Jim Haggarty and Ted Herzog, she was now finally free to resume her efforts to extract an honest royalty report out of Arbortext, unhindered by Dwan and Bernheim.
We sent a notice by registered mail to Ray Schiavone, the new CEO, informing him of the Blueberry change in ownership. Then Mary emailed him and suggested that she and I fly back to Michigan and have a little pow-wow to iron out our difficulties. After all, Sterken was no longer the Boss, right? Surely Schiavone would want to clean up Sterken's mess and be able to produce, perhaps for the first time in Arbortext's history, an honest set of books and records
Schiavone responded by suggesting a conference telephone call instead.
Mary was disappointed with this approach, but not me. While it was true that I had never been to Michigan, somehow its allure had never captured my imagination. In fact, I can't say it ever even entered my imagination. I only knew about three things associated with Michigan: Magic Johnson, Jimmy Hoffa's last known address, and the place they made cars.
Plus, of course, the real reasons. A phone call was much cheaper than two round trip plane tickets and some hotel bills. And I didn't have to shave and dress up and sit around in an uncomfortable office chair. Instead, I got to sit in my rocking chair, marginally attired in suburban slob threads, while Mary chatted on the phone. This wouldn't be possible in the future, when phones had cameras embedded in them, but it was still safe in November of 2003.
Mary was a bit nervous when she found herself talking not only to Ray Schiavone, but to the new CFO, Dave Peralta, who had recently assumed the duties from Jim Haggarty. Haggarty was no doubt relieved to be out of the accounting fraud cover up business and back to providing scaled up baloney to the public as the company CIO.
According to Mary's research, good old Dave was a specialist in cleaning up sloppy books and records in order to pass muster for an IPO offering. Mary located him in an online article one day warning his readership of fellow CFO types that using editable Spreadsheets for accounting matters was something to be frowned upon. Of course, that was precisely what he was presiding over at Arbortext in terms of reporting our royalties. The actual preciselyers were down there in the Engineering and Product Management departments. But it was his Presiding and it was at his desk that the Buck ceased its torturous journey upward.
I couldn't help marveling at this kind of blatant hypocrisy. Sanctimoniously handing out expert advice while doing exactly the opposite himself. The business mind, like other professional type minds that have been referred to in these pages, was beyond my understanding. I mean, didn't these people have personal lives involving other human beings where some sort of ethical system, some sort of honesty, was required for any kind of acceptable functionability? This type of written professional effort was no spur of the moment queasy solution to an unexpected encounter in the hallway, either. It was dead solid planned and implemented. A purposeful hollow word, bullshit heaving, hypocritical performance. I just don't get it. Where does the soul corruption begin? In the womb? Puberty? College business courses? The first extraordinary fear induced by the Real World?
At any rate, one more Arbortext villain added to the roster. And more than just Schiavone and Peralta were listening in. Mary could tell she was on speaker phone back there in Michigan and distinctly suspected she heard the sound of a paddle ball paddling in the background. It could have just been a noisy heating duct, possibly.
Mary gulped and hurled herself into the phone lines. She informed Schiavone that Blueberry had decided to invoke the clause in the contract that allowed it to perform an audit of Arbortext's books. An audit that could be done by Blueberry itself, or by any number cruncher of Blueberry's choosing. And not just an audit, but a forensic audit.
This rather routine contractual right to audit royalties was something that Arbortext itself inserted into their own contracts whenever they partnered their technology with some other company. And it was plainly stated in our contract that we could do so ourselves. Royalty Audits were common place business matters throughout the world, whether for software, music, films, or whatever.
Schiavone, however, did not take kindly to our request. Instead he suggested, somewhat ungraciously, that he would sic ten lawyers on us if we tried to perform one. Apparently, he was emphatically rescinding Sterken's and Haggarty's exhortations the previous year to come and conduct an audit and find out how honest Arbortext was. Obviously, Schiavone and Peralta had a different view of Arbortext's so called honesty and preferred to keep it in the realm of public assurances, and not have it actually privately verified. In other words, the books were dirty and they knew it.
Schiavone further suggested that Blueberry choose instead to accept a $100,000 buy out of the Arbortext/Blueberry contract.
Mary covered the phone with her hand and mouthed this offer to me. I scowled. She relayed my scowling by letting Schiavone know that this offer was "not going to fly." Which we hadn't, as I've mentioned, little knowing that our untaken plane trip would turn up metaphorically on the phone.
The conference call ended soon after this, with both sides agreeing to chat again early the following week.
No such chat occurred, however. Indeed, no chatting ever occurred again between Arbortext and Blueberry.
This freeze in communications could probably be traced to a faux pas committed by either Ray or Dave. Mary had great difficulty during the phone call keeping track of which one of them was talking at any one time. It was like following the pea in the shell game. Her only clues were the occasional self-references like the following:
"Isn't that right, Ray?"
I mention this not to imply that Abbott and Costello were now running Arbortext and performing a schtick on the phone with her, but to explain why it was uncertain which of them made the egregious blunder of equating Jim Sterken and me as the parties responsible for the current problem between the two companies. And implying that there was an emotional conflict occurring between the two company leaders that made solutions difficult.
For Sterken to hear himself and me tossed into the same salad as two equal tomatoes must have pushed him into a paddle ball frenzy. He was Him. i was me. No way could he and I appear in the same sentence as equals.
Bad move, Ray/Dave.
Jim Sterken was not a man to sit around listening to chats when he had the option available to be a lying, threatening bully. A much more natural mental state for him, unable as he was to compete fairly in the game of life.
He was no doubt the type of guy who copied your homework in school and bragged about it, as though it was a greater achievement to get away with cheating than it was to learn on your own. It was a known fact, for instance, that Jimmie smeared steroid cream on his paddle ball paddle before each match. He had yet to be caught in the act, but an investigation was rumored to be quietly underway. His paddle head was getting noticeably larger than anyone else's.
As we discovered in subsequent days, not ten minutes elapsed from the end of the phone call between Mary, Ray Schiavone, and Dave Peralta before Sterken usurped the authority of this CEO / CFO tandem and their pansy chatting efforts by impulsively calling up Kevin Dwan (or his mouthpiece Larry Bernheim – details were unclear concerning the identity of the receptor). Sterken knew full well that Dwan had been butted out and had buttkiss authority vis a vis ownership of Blueberry, but this did not bother him a bit. He knew Dwan was quite susceptible to fear and intimidation, so he proceeded to threaten to sue him if Mary and I did not accept the $100,000 buy out offer.
Goodness. A bit tempestuous and EMOTIONAL if you ask me. Weird, too. Threatening to sue someone for not accepting your money was a new form of haggling that I had no experience in. Even weirder when the person you threaten to sue isn't even involved in the action or in any way a party to the liability.
He embellished his threats by making some derogatory remarks about me and my work, which Dwan needed no prompting to fully commiserate about the ugliness associated with any association with me. I felt their pain. It was tough, no doubt about it.
According to Sterken, he could force Blueberry to remunerate Arbortext for the wages of the two programmers they had hired to take over Blueberry's source code, claiming I was not maintaining it. This was a clever little half-truth designed to disguise the real truth. It was true that I had not provided any further code updates since furnishing the Word XP update after the Haggarty meeting.
What was not mentioned to Dwan was that Arbortext had not asked for any updates and, indeed, never again did so. No doubt fearing I would place some wicked little code snippet in there that would evaporate the entire state of Michigan on a certain day and hour. Which would be tempting, I admit. Perhaps not the whole state. Maybe just one little engineering office in one corporate building. But I lacked the techno skills to accomplish such a feat. My brother Jim could probably pull it off, techno-geek wise, but he was a ruthlessly decent human being somehow sharing similar genes with me. Go figure.
What was not disguised, except to Dwan's limping cognitive faculties, was that Sterken was basically admitting that Arbortext had unilaterally breached the contract by taking control of Blueberry's source code without express permission to do so, and effectively stealing it and using it for whatever purposes Arbortext chose to use it for. Like I stated in the beginning, Jim Sterken was a thief, a liar, and a scoundrel – a malignant dingleberry. And here he was, accomplishing all incarnations in one fallacious and felonious phone call.
Did Dwan scratch his chin with the process known as Suspicion? A little Hmmming? After all, Sterken had tossed him down the trash chute on more than one occasion. Could it possibly be that Sterken was LYING HIS ASS OFF? The threatening part of Sterken was no surprise to anyone. It was one of his fundamental unendearing character traits. Of which there were many. But the pleading for sympathy, while in character for its duplicity, was totally out of character for its style.
One simple phone call or email by Dwan to me – heck, to Mary – could easily have shed light on the accusations Sterken was making. Wouldn't a rational person, even an irrational one, spend at least one second verifying the facts of the matter? It was rather important.
Not our boy. Not Mr. Clueless Dwan.
Straight to his Bernheim he flew. Whimpering on the floor at his feet, licking his pant cuffs, lifting his fearful eyes upward to his savior. Help me, Larry. Please help me.
There, there my little puppy, our sage of bloviosity cooed, stroking the noggin of his trembling pet fondly, reassuringly. We shall put our two quacking mental institutions into immediate action and perform the bidding of Jim Sterken.
Did either of them pause to consider the source and do a bit of serious mulling? Over Dwan's head perhaps, but surely not a highly skilled Attorney-at-Law.
Twas nay to be noticed.
Not even the concept of dickering, sometimes known in legal circles as the Jump Up, Jump Down theory of settlement negotiating, popped into the minds of our beloved duo. If Arbortext made an opening offer of $100,000, why not jump it up to $300,000 and then jump it down to settle on $200,000?
No, Bernheim definitely favored Irrational But Seriously Loud Noise as his basic operating principle.
First, he emailed the Receiver, Dick Blair, about the situation, confiding Mr. Dwan's fears and imparting Sterken's threats and opinions of my work, and strongly suggesting that Dick assert himself into the action, in his capacity as Receiver, to protect Mr. Dwan from liability and also to rake in the offered $100,000, which could then be transferred directly into Dwan's wallet, leaving me with one big fat Zero from the Arbortext contract.
Without waiting for a response, Bernheim then contacted Arbortext's law firm, specifically Ted Herzog, who had attended the meeting we had with Jim Haggarty at the Walnut Creek Mariott, and sent him a copy of the Judge's post-trial ruling involving the partnership dissolution.
I was cced in these emails to Blair and Herzog, and that is how Mary and I discovered what had happened, Sterken-wise, after she concluded her conference call with Schiavone and Peralta. Neither of us had ever attended any Remedial Brain Functioning classes, so we were both suitably perplexed by Bernheim's tactics.
"Why is he sending the court's ruling to Ted Herzog?" Mary wondered. "He already has the original. We sent it when we informed Arbortext of the Blueberry change in ownership. For another, it clearly states that Dwan no longer has any ownership rights in Blueberry, which means Bernheim has no authority to involve himself in our business. What am I missing here?"
"Confoundimitimidation. The Art of Confounding and Intimidating. It's Larry's specialty."
"It's a repeat performance of when Bernheim first came onto the scene. When he appeared out of nowhere threatening to sue Arbortext. Without mentioning what exactly he could sue them for."
"I'm still not getting you."
"There were no good legal options for Dwan then. Just like there aren't any now, either. Back then, he had booted himself out of the action. Now he's been booted out by the Judge. Dwan can't stand being de minimus. Especially to me."
"Bernheim's trying to wedge Dwan back into the action. By scaring Arbortext again?"
"Not scaring them. Just forcing them to deal with him. If they do, then Dwan's back in the action. Because Arbortext wants him back. Sterken wants him back."
"He doesn't have any Blueberry rights anymore."
"They don't care about that. Sterken just wants to use him to harass me. To drive me crazy."
"You already are crazy. Don't those idiots understand that?"
"Not like you, ma cherie."
"Knock it off," Mary said. "I'm not in the mood for your poor Maurice Chavalier impersonation."
"He's not one of my better ones, you're right."
"You don't have any better ones. They all stink."
"Even my John Wayne walk?"
"Especially that one."
"You dirty rat . . ."
"Dick Blair is walking on air today, wouldn't you guess? He's getting the green light from Dwan to barge into our affairs."
"What's the point of these court verdicts? They're totally useless. Nobody obeys them."
"Except us. We must be totally stupid or something."
"What is wrong with Dwan? Has his mind just completely stopped working?"
I sleuthed down into Dwan's brain. The gear's weren't turning. Cobwebs all around. Bat poop on the floor. An old broom with a broken handle. Dark and echoey.
I don't know if Dick Blair was an unethical scoundrel as a general rule, or if he just donned the black hat while acting as Blueberry's Receiver. It did appear to me, however, that he exhibited a comfort level with his twisted machinations that strongly suggested he had quite a bit of prior practice in scoundreling. And not just a comfort level. No, this was a man who enjoyed what he did.
Morgan, Miller, and Blair was a very successful, hoity-toity law firm in Walnut Creek. Why would a full partner in this firm bother himself much with a small potatoes Receivership for a poor, beat up little dissolution matter? A dissolving company with very marginal assets, either for the company or for the two individuals in the company. As I said earlier, Blair's secretary could have handled his Receivership duties without breaking a sweat.
Mary and I had a few theories about this. Well, I did anyway. Mary basically had only one: I don't want to talk about that horrible little man. It was her standard reply when I broached one of my theories with her.
The theory that to me seemed closest to the truth was a simple one. Dick had discovered fairly early in his legal career that he was a lousy lawyer and he could make a whole lot more money skimming it out of dissolving companies than he could by representing clients. It was easy work, nobody was watching, the money was there, just reach in and grab a handful. Handling a law suit could max out a lawyer for a year or more. But a lawyer could handle scads of Receiverships all year long, week in week out, without even working on Fridays. Even tiny tots like Blueberry had some free money to shift into his pockets with a little creative time-card stretching. And for Dick, no money was too small for his appetite.
Lending credence to this theory was Dick's reaction, when we first visited him in his office and informed him of the $120,000 that VistaSource owed Blueberry. He promptly gazed towards the ceiling and began stroking his beard fondly. "That's a nice chunk of change," he murmured.
Real lawyers don't speak folksy like that. Con artists do.
Combining that sentiment with his previously mentioned remark about the VistaSource money being "his" money, not Blueberry's, and I believe I'll rest my case here on the viability of my best guess theory. No exotic psychological space flights necessary. He was just a shyster, let's face it.
As January of 2004 wended its way over the horizon, Dick's Receivership plans fell into place as neat as an inside straight. When Arbortext laid $100,000 on the table, combined with the $120,000 due from VistaSource, his game plan was clear. He could force the Buy Out, which would get Dwan his half of the dissolution money and leave me with virtually nothing, and gouge his own retirement fund out of the VistaSource money. The only purpose Mary and I served was to provide Blair with the personal satisfaction that he had ruined us but good.
We had Blair, Bernheim, and Dwan chewing at us from behind, and Sterken, Schiavone, and Peralta barricading the doors in front of us. All six trying to determine the fate of a contract and a company that none of them had any ownership rights to.
And Judge D. Lowell Jensen was deaf to our pleas to him to kindly enforce his ruling and inform Blair that he was completely out of order.
So there we sat in the middle of the mayhem, watching our life crumble around us. Six months after winning sole ownership of Blueberry and its source code, I effectively owned nothing. Given the responsibility of maintaining and administering the Arbortext contract, I was prevented from doing so. Blair was simply ignoring the Court Ruling and making up his own. With the active and enthusiastic help of Bernheim and Dwan.
Our dispute with Arbortext had come up in the court trial with Dwan and the Judge had remarked, "Sounds like a possible law suit."
That was six months ago, yet Blair had not yet asked to be briefed on the case or examine our evidence. He had managed to examine virtually everything else about Blueberry and certainly all of Dwan's endless list of complaints and fears. But the one item that represented serious concern and monetary improvement for Blueberry – and thus both of the two ex-partners – did not interest him at all. It involved helping me and cooperating with me and that was a Dick Blair taboo. He preferred instead to cooperate with the party he should be looking into possibly suing.
Dick's own agenda was all that mattered to him. And after we had openly questioned his motives and performance, destroying us had elevated itself from mere amusement to lethal intent.
After a few phone calls with Peralta, bringing himself up to snuff on the Arbortext/Blueberry dispute, without even once discussing with Mary or me the Blueberry version of the dispute, Dick Blair was ready to launch his assault. Clever shyster that he was, Dick enticed Peralta to write him a letter explaining Arbortext's viewpoint, which Dick could submit to the Judge, making Dick a passive conduit of news, rather than an active advocate. Needless to say, his conduit did not include any counter-balancing viewpoint letter from Mary and me.
Peralta's letter (see Exhibit H) was surely not intended to be read as high comedy. He was, after all, a CFO business type guy. Not exactly a profession known for humor.
Still, the letter was, if not humorous, certainly comedic. Arbortext didn't just want to buy Blueberry out of the contract, they wanted to end making royalty payments and yet continue to have absolute rights to all of Blueberry's source code in perpetuity. Even though "we expect the need for the Blueberry technology in our client base to lessen dramatically over the next 2–3 years."
Peralta even went so far as to predict the declining royalties Blueberry would be experiencing in the future. On royalties! What omniprescience had Dave been endowed with? "For 2003 product sales, Arbortext paid Blueberry royalties of $33,520 under the existing contract. For a similar level of product sales in 2004 and future years, Arbortext will pay Blueberry annual royalties of $29,112 under the existing contract."
Why would "annual royalties of a similar level of product sales in 2004" be less "under the existing contract" than they were now in 2003? Because Dave asserted Arbortext would be applying an 8% discount rate to them. Where was this mentioned in the "existing contract"?
I won't point out that $29,112 represents a 13% discount, not an 8% discount. No sense further embarrassing this highly skilled MBA. Besides, Dave wasn't hired for his arithmetic skills. He was hired to cover up a fraudulent accounting system.
America's businesses. Purring along with all this high-powered, highly educated, superior CFO brain power. Makes you want to rush out and by some stocks – in foreign companies.
Let me pause for what appears to be some simple arithmetic. If Blueberry's royalties would certainly decline, why would Arbortext not simply let them decline? Or force them to with Discount Dave's magic eraser? Why pay us $100,000 instead, if simple declination cost less? This did not appear to be a sound business proposal. Unless, of course, the hidden motive was to Shut Blueberry Up. Permanently. And to prevent the discovery that, just as Mary and I suspected, the royalties owed were far greater than $100,000.
Which Dave did not address.
Why any of them, especially old $350 an hour wizard attorney Dick Blair, could not come to awareness of the absurdness of Peralta's statements and his offer was a leading indicator that Blair and Bernheim and Dwan SIMPLY DIDN'T GIVE A CRAP WHETHER IT MADE SENSE OR NOT.
Mary and I, on the other hand, demurred.
Not to be demurred lightly, Dick decided to haul out the Judge for an In Camera session disguised as a "bringing the court up to date on his receivership" agenda (oh, right. VistaSource. We'd almost forgotten it. Whatever happened with that, anyway?). And to discuss Peralta's letter with the Judge. Try to get his okay to ram it down our throats.
Hi ho, hi ho. It's back to court we go.
In Camera. Very insidersville deal. Down the hallway from the court room and around the corner into the Judge's Chambers them very selves.
A row of chairs was arranged in front of the Judge's desk for the Principals – me, Mary, Bernie, and Dwan. The Aptly Named Dick Blair ensconced himself in a chair to the right of the Judge's desk, facing us. The Judge sat at his desk intently pondering its blottered top beneath him.
Dick would be running the show. This was not a good sign. Had it been pre-arranged? Judge to Receiver on the sly? The Good Old Boy deal?
I barged up immediately and asked the Judge if it was okay if Mary represented me and Blueberry. He nodded his acceptance.
This was very good, for I was not. My depression and despair over the gradual and relentless decimation of our lives had taken a seismic turn recently. Into the bottle of liquid doom. I had become virtually useless to Mary or anyone else. She was fighting the war pretty much by herself. She was disgusted with me, and rightly so. Basket case. Pure and simple.
It was only ten in the morning, but I was wickedly liquored up and in need of a haircut and a shave. Every nuance of me screamed disdain for the whole mockery of justice surrounding me in this sanctimonious room full of treacherous agendas. The Feigned Dignified Discourse Room. Yecchh! Fortunately, I was able to confine myself to nuance and kept my mouth utterly shut, thus avoiding being arrested and jailed on the spot.
Dwan sat at one end of the row, legs crossed, lips pursed, the ever present notepad prop he scribbled upon to indicate his scholarly and diligent seriousness. Jeezus! Did he ever turn my stomach. I briefly considered staggering over and ramming a pencil into his ear hole. See if there was any anatomical resistance to the probe or any facial recognition of enemy penetration. Jot this down on your notepad, you Dwork!
I looked around the room with evil intent. Stick a cactus on the Judge's desk so he could nod right down into it. Light a match the next time Bernheim opened his Hot Air Valve and watch him explode all over the ceiling. Walk over to Blair with a red hot blacksmith's tongs and fetch him by the nose and drag him all the way out to the street where I could toss him under a passing SUV. Oh, oh. There was Dwork's lying wife, sitting back by the windows, dressed in some sort of Queen Victoria black tent, feigning regality. Here you go, babe. Let's see if you can keep your composure when I shove the Judge's desk all the way across the room and ram you out through the window for a four story fall to earth.
Mary gave me an extremely sharp elbow to the ribs. Grrr.
Bernheim sat next to Dwan blustering away at every opportunity while he and Blair essentially carried on a private conversation as though Mary did not exist. The Judge kept his head down, pondering and pondering, occasionally dragging the full weight of his noggin up to nod in acknowledgment of some point or other.
Mary outshone them all, nevertheless. She had a Rembrandtian gift of public composure that could not be rattled even in the face of heinous defeat. To observe her performance, you could never suspect that her life, her home, her children, her mother, her sanity, and perhaps our marriage were being ripped from her with each and every fetid breath of these conniving, dissembling, ruthless assholes.
Blair opened the meeting by revealing that eight months of communication and three separate Ultimatum Letters had failed to produce one single penny from VistaSource. Left unsaid was how many pennies this Dicking around period had produced for Blair's bank account. Despite his abysmal failure thus far, he was now somehow convinced that if he made one more Ultimatum, they would produce a check for $100,000.
Where have we heard that figure before? There must be something magical about it in the business world. MBA 101? I hadn't taken that course. Being a Business Major was the death blow to a young man's social life. May as well wear a sign around your neck: I lack all imagination and expect nothing out of life but a positive bank balance.
Bernheim enthusiastically concurred with Aptly Named's scenario, and Mary quietly accepted it, also.
The Judge lifted his head and looked at her. "Good choice," he said.
What an effort. Back drooped his head to blotter pondering.
Stirring the cauldron of boiling poison in my head, I could not help railing at the cavern walls. VistaSource owed $120,000 plus interest. Why did a rich corporation get to discount its accounts payable by simply refusing to pay the bill? Shouldn't it be getting punished, rather than rewarded? As in Interest charges?
This was no place for reasoned consideration, though. Let alone booze soaked brain rot reasoning. We're in a quasi-court of law, for chrissakes! There's no sanity required here. Just one Rule: do not under any circumstances indicate that you are completely aware that THIS WHOLE THING IS A FARCE. You couldn't get away with this crap at a Cub Scout meeting.
Dick then moved on to the Arbortext buy out offer, pushing Bernheim eagerly forward in his seat practically panting to deliver a long winded bloviation about Mr. Dwan's never ending fears of Blow Back Litigation, caused by my surly incompetence, equaling Let's Take The Money and kill off the contract. Pushing forward is not quite accurate. Squooging pimple infested butt flab toward the front edge of his seat is more like it.
Mary calmly pointed out that she disagreed with Bernheim's assessment and would like to address it more formally in a Brief to the court.
I practically drooled on my shirt. Straight to Heaven, Mary. To hell with St. Peter's Gate. The Lord eagerly awaits his prize creation.
This attorney-like maneuver took Blair and Bernheim by complete surprise, producing two open mouths stuck in mid-air with darting eyeballs scampering around above the chasms. And their mouths hung even more open when the Judge immediately popped up his head, accepted her request, and adjourned the meeting.
As the Judge was trudging out of the room, I broke my silence. "Your honor," I said. "When do we get a bill from Mr. Blair and a disbursement?" It had been eight months now, and neither had yet occurred.
The Judge turned and looked balefully at me. "When he's done."
Ah. Of course. When he's done. Which would not occur until either the Arbortext buy out ended the contract and virtually all of the money was handed to Dwan, or, sometime way off in a future full of Dick's Time Cards, the last of the royalties trickled into his bank account. Either way, there was little chance at all that we would ever be receiving any more money from the Arbortext contract. And certainly none in the foreseeable future. Like now, or next week, or next month, or even all stinking year.
Sole owner of nothing.
I hissed at Dwan as I passed him in the hallway while departing from the chambers. He shriveled back fearfully. Jotting down my threatening behavior in his notebook.
We were dead, dead, dead in the water.
But Mary would not give up. She dragged me back to life and together we wrote our four page Brief to the court. In it we tactfully stressed that we did not necessarily oppose a buy out, but that it made no sense, businessly speaking, to accept an offer without making some effort to determine whether the offer was appropriate. Which led us to propose that an audit would be the next logical step to take.
And that we would pay for the audit ourselves. Free cab ride for the Dwanman. How could he resist?
Neither of us expected our Brief to carry the day, anyway. Or even be read by the Judge. We both felt that we were about to be destroyed. Neatly and lethally by Blair and Bernheim and a nodding Judge who seemed to have no interest in the events billowing out from his original Order. A Judge who had ruled that I owned the contract, but was now willing to entertain an action that would overrule that ownership and simply dispose of the contract against my wishes.
After we mailed the brief, Mary logged onto www.SpiritDaily.com seeking spiritual comfort. I logged onto a six pack of Rainier Ale for the same purpose. Her choice was much more rewarding. The web site had a reprint of the Louis P. Saia III story featured. It had been two years since Mary had first read it.
She prayed it was a message to us of hope.
I prayed I would get run over by one of Saia's trucks as soon as possible.
See Exhibit I for our brief to the court concerning the buy out offer and additional evidence of suspicious Arbortext behavior.
During the preceding months of the charade of business and justice at work, Mary's mother's health had declined rapidly. As was mentioned in our Brief (see Exhibit I), she passed away on March 11. Mary sat by her bedside suffering along with her through her long, last night. The two life long compatriots, alone together at the end.
Marge had witnessed all of our struggles with Dwan and Arbortext, which began almost at the same time as her moving in with us. Her repeated assessment of each step of the insane process succinctly said it all: "What's the matter with them?" Rest in peace, Marge Tarantino. Mother of ten children, archery champ, professional dancer, and wife of Pete Tarantino, a legendary figure of honesty and incorruptibility in the San Francisco Fisherman's Wharf industry. The difference between these two people's life long character and integrity juxtaposed with the seedy cast of characters that had invaded our life was enough to make one hurry to the bathroom and lower one's head into the barfing pool.
Mary was heart-broken. She and her mother had carried on virtually a daily relationship for Mary's entire life. Hardly a day went by that they did not talk on the phone or visit each other. Her passing left a hole in Mary's world a mile wide. Her frequent daily trips to and from the cottage in the back yard to feed and tend to her mother suddenly ceased.
Unlike me, however, Mary did not possess Basket Case genes. Her grief would surface in occasional spasms of heart-wrenching sadness in the days and months ahead, but for now she simply carried on.
We took some solace in the fact that we had fulfilled our promise to her mother to provide her a home for the rest of her life. But her passing forced us to face reality. We could no longer afford to keep our home. Indeed, we were borrowing money from Mary's brother Father James Tarantino simply to pay the mortgage.
So, we sadly began the process of putting our house up for sale. The family home full of holidays and grandchildren to come, would not. Mr. Bread Winner had utterly failed to fulfill his prime responsibility. Failed. Failure. F–. Flunked.
A dark cloud settled down upon our lives. Going through the motions of living, towards a future that seemed blank and unknown, and probably bleak.
JohnPaul, Mary's youngest, had moved on campus at Santa Clara University in the fall of 2002, courtesy of a full tuition scholarship and grant money available for a stepson with a stepfather who had zero reportable income. Whatever came in to my bank from the retail Blueberry web site went straight back out to the legal system. The two girls who still remained at home with us, Liz and Katie, now 22 and 24 respectively, began to make plans to move to San Francisco and get an apartment together.
It was a devastating turn of events for Mary. Home and family had been her whole world for all of her adult life. She loved taking care of her mother. She loved being a mother. And she was thrilled to have grandchildren. All of it now erased by these evil, remorseless people.
Suddenly, we were scrambling for our lives. Our credit was shot, so we could not even rent an apartment. We had to buy something out right or live on the street. At first, we toyed with the idea of a houseboat. In the end, we settled on an RV to maximize our limited finances and hopefully ride out the storm.
In early April, Mary dialed into the Oakland court for the conference call with the Judge, Dick Blair, and Larry Bernheim to rule on our Briefs concerning the Arbortext Buy Out proposal. We had little hope that this session would be anything more than the Judge rubber stamping Blair's agenda and terminating our Arbortext investigation.
Mary liked to pace and gesture constantly with her free arm while she phone fested. I could tell a whole bunch about what was going on by just watching her, even without hearing her words. What I saw and heard now was definitely not what I expected. She was animated and blabbing away with the Judge like it was one of her woman friends. She most definitely was explaining the entire Arbortext situation to the Judge, and he was definitely curious about it.
When Mary got off the phone, she skipped gleefully across the room and plunged herself onto my lap as I sat in my rocking chair. The chair immediately produced a loud crack and the back collapsed, spewing us both onto the floor, where a fit of laughter ensued.
"So this is what they mean by Rolling On The Floor Laughing," I remarked as I lay there on my back.
"Sorry about your chair," she said.
"Tut, tut. One less thing to haul off to storage. We can burn it in the fireplace instead. What happened?"
"Jensen gave us the go ahead on the audit. He cut Blair and Bernheim off and spent the whole call asking me questions about the Arbortext contract. He was very curious about the whole thing. He was like a totally different person than he was at the In Camera session."
I started to reply, but she put her hand over my mouth.
"Don't say one word about him."
"You think I might make some cynical remark?"
"I know you would. Just don't."
"Fine by me. I'm pretty much speechless anyway. What did Blair say?"
"He was speechless, too. He kind of slunk off the phone at the end. Jensen didn't leave him or Bernheim any room to say anything. As soon as Blair finished his opening spiel, Jensen focused the rest of the call on me. It was unbelievable."
We got up off the floor and moved out to the front porch swing.
"It sure is nice to win one of these court merry-go-rounds for a change," I said. "We've been eating it every since Blair rolled onto the scene."
"I was scared to death on the phone."
"You sounded fine to me."
"Good. I was faking it big time."
"I guess Blair has a shit-faced phone call to make to Dave Peralta. Probably assured him he had everything under control."
"Are we finally done with him?"
"God, I hope so. I truly, truly hope so."
Fat chance. But today we could afford to dream a little dream.
Panic in Peraltaville.
"Dick Blair speaking."
"Dick. It's Dave Peralta. What the hell's going on? I thought we had a deal."
"What can I say? The judge had an attack of sanity."
"You mean his brain surfaced? You said no one was home any more."
"No one has been up to now. It was a complete surprise."
"I don't pay you for surprises, Dick."
"It's not my fault. I had him in my pocket."
"Dick. Let me explain something to you. You have a wife. You have a home. You have two ears. These are not divine rights. Capisci?"
"Gotcha. Could you send me another email threatening to get rid of Blueberry unless they accept the buy out offer?"
"What for? I've already sent five or six."
"I can say it's brand new information."
"What's new about it?"
"Nothing. But I can say it's new. It'll get me back into the judge. Maybe he'll be back in Nana Land again."
"Pretty lame, Dick."
"Trust me. It'll work."
Editors Note: The preceding conversation is not an actual transcript. The author was kidding around. What probably occurred was:
"You have reached the office of Dick Blair. I am not available at the moment. Please leave a message at the tone."
The Judge gave Mary a month to find an auditor and get the audit under way. He scheduled another conference call in early May to assess her progress.
No problemo. She immediately began sleuthing the Internet searching for a suitable auditor to pry into Arbortext on our behalf. Not just any auditor, though. A Forensic Auditor. Forensic auditing was a relatively new field in the CPA world and involved not only adding up the figures to see if everything was accurate, but digging down behind the figures to investigate their origins and stretch marks.
She came up with a fellow named Mike Kessler, who owned a company called Kessler International. He was even a Certified Forensic auditor. Boffo!
Naturally, after acquainting me with her research and acquiring my dullard nod of approval, Mary simply picked up the phone and called Kessler. Where do these Bold genes come from that she possessed in abundance and I possessed not at all? Were they learned or inherited? I would add it to the list of questions I was keeping for presentation to St. Peter on the Inevitable Day, hoping that a very long list could be used for a defense of Severe Confusion, should a defense be necessary. And surely one would.
Mr. Kessler was very warm, sympathetic, humorous, and actually wanted to undertake our case. Mary was thrilled. Slightly astounded, even. Because Mr. Kessler was not the least bit surprised by Mary's list of Arbortext infamies. Apparently it was, in his vast experience, more or less business as usual in corporate America.
A hundred years ago, inventors were revered and remunerated in this country. Maybe even got a Highway named after them. But no more. Now they were cheated out of their inventions and thrown along the side of the road like anonymous litter while dogbreaths like Jim Sterken laid claim to their work and roared down the road with a trailing gangster limousine of hired gun lawyers firing shotgun blasts at anyone who dared follow them.
Essentially, regarding Arbortext, we're talking about a company where almost, if not all, of the top level management were aware of and participating in a blatant accounting fraud and deliberate royalty underpayment. The Controller, the Owner, the CEO, the CFO, the CIO, the Director of Product Management and who knows who else? The Systems Analyst was a guy named Philip Van Allen who coincidentally enough was married to Cherie Van Allen, the crooked Controller. When the contract with Blueberry was signed, Jim Haggarty had emailed these two Van Allens so Philip could set up the "logic" of the royalty payments – payments which eventually oozed out of Cherie's office and, as we have previously proved, were blatantly fraudulent (see Exhibit B). Arbortext was beginning to look like The Dalton-Younger-James Gangs.
One might fairly surmise that this vast collection of white collar crooks sitting atop the horse of twenty million dollars in yearly revenue might hold an occasional family barbecue where more than little old Blueberry Software was the featured roast. They did, after all, have contracts with other vendors.
At any rate, it was definitely a relief to Mary and I at finally hearing an opinion from a reputable outside source that we were not paranoid delusionists. After a steady diet of skeptical and accusatory garbage from Dwan, Bernheim, Blair, Dave Peralta, and everyone in Ann Arbor, Michigan regarding our Arbortext suspicions – Dwan had even assured us the folks at Arbortext were "Rotary Club" fellows – it was psychologically soothing to hear Kessler's matter-of-fact assurances, from a man who had performed countless forensic investigations, that white collar crooks were not rare so much as they were common place.
While we awaited the May conference call with the Judge, Mary gathered up her evidence and faxed it to Kessler so he could begin looking it over.
Dick Blair in the meantime had wrapped up his attempts to collect the $120,000 from VistaSource. He announced this amazing breakthrough in a very short letter to the Judge (see Exhibit J).
Well, the VistaSource matter itself was not wrapped up – just Blair's involvement in it.
Without any consultation with Mary and I, confirming our status as mere spectators in the poignant puke of Dick Blair's Receivership, he had appointed our dear old adversary gas bag Larry Bernheim to take over the VistaSource collection matter on a 20% contingency fee! Dick shares the wealth! Here, Larry, have some of the pie yourself. All lawyers in the room now fully squatting in the spa of Dwan and Beigel's money. Bask away boys! Hey, Count Dweeble, do you see the steam rising in the air from the spa? That's your money evaporating. See it waft to the sky and float away. Is anyone at home in Dweebleville any more?
Up to now, Blair had sought court approval for each and every decision or thought process of his. Apparently feeling he, as Receiver, needed to get permission each time he was required to simply do his court appointed job. This accomplished the illusion that he was a meticulously careful, fair and square guy. And also allowed him to ring up a whole day of $350 an hour charges. Dick was no amateur when it came to padding his Time Card.
Now, however, Dick was passing the torch to Larry quietly, without court approval (or our approval), at all! He also took the opportunity to pretend that the Judge had not already ruled that we could perform the Arbortext audit and suggested the Judge reconsider Dick's position that we should accept the Buy Out proposal instead. Dick's greed now was firmly focused on a whole new pie.
Perhaps this quietness was mere embarrassment. Because all his careful and skilled $350 an hour eight month wooing of a sure-fire $100,000 payment from VistaSource had disappointingly resulted in an actual offer from them of only $29,000. You da man, Dick! Only 71% wrong in your guaranteed outcome. Probably a little lower than your normal client failure rate. But eight months to the good on the Time Ledger. Eight months to accomplish Squat. And still be paid. Still have the GALL to charge a fee for this production of Squat!
Mr. Average American Worker, what sayest thou? Do you get paid, and retain your job, when you produce Squat for eight consecutive months? Squat with an Attitude?
Dick could not continue at this point, obviously, since it would require actual lawyering skills. Papers would have to be filed in court and a legal process started. Over Dick's head. Onto Larry's platter. What a team. Keep the spa steam in house. Some sort of Time Share arrangement.
So, eight months after Mary had VistaSource prepared to pay the bill, we now got to see Larry Bernheim start the process all over yet again.
I took a small break at this juncture in life, which Mary did not disapprove of. I called 911 one afternoon and had myself committed to the nearby Contra Costa Health Services ward in Martinez – a euphemistic title for The Looney Bin. Being strapped down in the ambulance that came to fetch me was temporarily soothing and peaceful, so I felt I had made the right decision. A return to health and sanity was just over the horizon inside the straight jacket.
This might seem a tad over the line in solution providing, but that's the point. I self-diagnosed myself as being in a tad over the line situation. There were hyenas in my brain chewing on all the wiring.
Unfortunately, this trip resulted in a rendezvous with the old Catch-22 syndrome. The wire splicers determined that if my wiring was bad, I couldn't make logical decisions to get it fixed. And if it wasn't bad, I shouldn't be there. My mistake was in self-diagnosis. I should have bribed a neighbor to turn me in. Only people who didn't want to be here could be admitted. Everyone else had to go buy a shrink.
After a pleasant night's sleep (courtesy of several Valiums), I awoke, nourished myself with a Dead Bread and It Might Be Meat sandwich and a pint of milk, which I noticed another patient using as hair cream, and was then ushered out the exit door to a small area next to the street that had very comfortable cement benches to sit on. Good, solid pondering blocks.
I assumed the pose of The Thinker and toyed with the idea of walking the ten miles between me and home. However, it was cold and raining and I had not bothered to exercise for several years. I also had not thought to bring any cigarettes or money with me when I began this excursion. This seemed a possible clue that my wiring was indeed bad, not logical, and that maybe I could get back inside and convince them to give me a second chance. The exit door did not have any entrance knobs, though.
Reluctantly, I located a phone and dialed up Mary to come and get me. She declined. So did Liz. I deduced that I was being sent a Message. Eventually, Katie was tracked down exiting her afternoon JC classes and she mercifully accepted the burden of retrieving her stepfather from the Looney Bin. She did not bring any of her friends along for the ride.
Needless to say, there were no Welcome Home banners awaiting my return.
The phone conference with Judge Jensen on May 13 was brief.
Mary reported to him that we had retained Kessler International to perform the Arbortext audit and they were ready to begin work. The Judge was pleased with this news and once again gave us the go ahead to get cracking on the matter.
Aptly Named Dick Blair's attempts to get the Judge to reverse his thinking and accept a Buy Out were also once again swept aside. As were Bernheim's strenuous attempts to gain the floor.
Strike two, Dick. Are we done yet?
Not by the hair of his chinny, chin chin.
Scarcely a week after the conference call, Dick huffed up to the plate waving his bat for one more crack at knocking us out of the ball park.
On May 21, we received a fax from Blair informing us that he had received a voice mail from Dave Peralta that concerned him so much he felt the need to schedule another phone conference with Judge Jensen to revisit Arbortext's Buy Out offer and stop the audit.
What breathtaking news had been relayed by Peralta? Nothing more than his confidence that Judge Jensen would support the Buy Out, especially if Dick let the Judge know that Arbortext thought they had a "viable alternative" to Blueberry that would be less expensive. (See Exhibit K for Dick's brief letter and Dave's brief voice mail transcript.)
This development was about as stunning as NASA reporting that the earth was still round.
Once again, however, we get a glimpse into the wondrous logic of one Dave Peralta, CFO. If Arbortext had found a cheaper alternative to Blueberry, why not take it and cancel not only the Blueberry contract but the Buy Out offer itself! Dave was new at the semi-extortion racket, apparently. In all fairness, it was a backwards sort of extortion in that the extorter was the one demanding that his money be taken and the threat was to give his money to someone else. Confusing badness, for sure.
Since this information from Peralta was not new in any way, shape, or form – even to the tortured residence of Aptly Named Dick's brain – some embellishments obviously had to be provided to this bare plate of stale baloney in order for the Judge to find it appetizing.
Ergo, to make it look new and dramatic, Blair sent the judge a three page letter buttressed with forty-five pages of exhibits. All of which had already been submitted to the judge in the past. Blair even included the Arbortext/Blueberry contract, which had been submitted so many times in the past year that everyone probably had it memorized by heart. What was new about the contract was entirely within the warped and evil bean holder atop Blair's shoulders. Evidently, he felt that the sheer weight of these forty-five pages would tilt the judge's head forward upon the blotter once again.
Blair did not stop there, though. He also sent a communique to Mike Kessler ordering him to cease and desist in his attempt to perform an audit. Where Blair presumed to conjure up his authority to make this demand was, once again, somewhere in the warped and evil area we have just alluded to. Up to this point in his Receivership, Dick had been painfully attentive to each and every breath of the Judge's decrees (how else to cleverly subvert them), but this straightforward "do the audit" decree had pushed Dick into the realm of pointedly defying the Judge by refusing to step aside, shut up with the Peralta machinations, and allow the audit to proceed.
I suppose it would not be appropriate to openly question what motivated Dick Blair to be an avid supporter and abettor of Arbortext's views and wishes instead of the Blueberry clients he purportedly Received And Disbursed For, or to insinuate that perhaps Arbortext had some sort of gift dangling out there for Dick's Christmas stocking if he were to succeed in quashing Blueberry's audit attempt. So I will reluctantly not mention or speculate on these fairly obvious issues. Besides, ethical behavior and Dick Blair could not be reasonably associated in the same sentence.
Mary was outraged by Blair's ruthless and obsessive determination to sabotage our audit. Not to imply that I wasn't outraged also. But that goes without saying. I mention Mary because she refused to let Blair have a one sided presentation to the Judge. In fact, she took the opportunity to not only present our side, but to excoriate Blair's letter, his motives, and his abuse of power as Receiver.
I have to say this was about as point blank pissed as I had ever seen Mary get in a written document. See Exhibit L for Dick's three page letter and Exhibit M for Mary's response. Fun reading, ladies and gentleman. IMO. In fact, lest you opt not to click on these exhibits, let me quote from Mary's letter a rather succinct and classic, if somewhat sarcastic, distillation of Dick Blair in action:
"Mr. Blair now coins this proposal as a 'threshold approach,' which from what we can gather, will allow him to look at certain documents, question certain questions, in other words, comb, sift, discern, agree, argue, wonder, if in fact, he can affirm that your ruling to allow this audit to take place is the wise approach."
Okay, so indulge me. I had quite a tee-hee over that one.
And so another phone conference with the Judge was scheduled for June 15 and another month went by with zero progress accomplished.
This month-per-matter time frame vis a vis Court Proceedings was becoming all too familiar. Every time an attorney sneezed (and they all seemed to get the sniffles with great regularity), there would be at least a month's recess, often times six weeks, while the other attorney formulated a Gesundheit response and the Court located a free spot on its calendar to resume the proceedings. It is not litigants that are clogging up the court systems – it is the court system's very own HUMONGOUS NONSENSE that is accomplishing this clogging phenomenon. And all for one reason alone: Attorney coffer bloating. Padding the time card. Wedging the dough out of the schmo. If a schmo ran out of money, his case got concluded at the speed of light.
We passed the days till this next phone conference by dismantling our existence at 995 Court Lane. Mary concentrated on the packing things up phase and I concentrated on the hauling packed up things to storage phase.
It was super duper fun. Sealing up inside boxes all fifteen years of our memories here in our wonderful home, and taking them to a dark storage room to remain unviewed and unappreciated for who knows how long. Very soul cleansing. Yes, indeed. Thank you so much, Jim Sterken and Dick Blair and Dave Peralta and Kevin Dwan and all the other mutant cesspool bugs crawling around in this woeful saga.
What to store, what to take with us, what to give away, what to leave behind, what to put in the dumpster. What a mess.
On June 15, despite Blair's forty-five pages of non-new previously digested new developments, the judge reiterated that we had the right to perform the audit and could proceed with it.
Why he did not simply disbar Dick Blair and toss his butt into jail for shysting above and beyond the call of greed and wasting taxpayer money with his utterly obvious and ridiculous new-evidence ploy should have been puzzling to me, but it wasn't. I had, by now, come to expect utter nonsense from the justice system and the ham actors strutting across its stage. I was becoming Jaded. It was probably an appropriate time for me to attempt passing the Bar exam and becoming a paid cab driver myself.
Aptly Named Dick had to content himself with a double dip of the coffer bloating and step aside. Having lost most of his worth to Dave Peralta and Arbortext, he slunk quietly into the background. Tail between his legs. But fat wallet smile upon his sinister little face.
I watched in my imagination the slow motion effects of my knuckles forcefully contacting his physiognomy and pooshing his smile clear across his cheek and directly into his ear hole.
Strike three, Dick. Now take your bat and get the eff out of here.
On June 16, Dick Blair finally threw in the towel of sabotage and sent Dave Peralta a fax informing him that the Judge had okayed the audit and Blueberry had hired Kessler International to perform it. He even requested Peralta's prompt and full cooperation.
The next day, Dick sent another fax. This one to me, Bernheim, and Dwan which informed us he had spoken with Peralta and Peralta had agreed to cooperate fully and expeditiously with the audit. Peralta also said he would be discussing this latest development within the company and that very likely Arbortext would proceed to give two years notice of termination of the contract and would discontinue using Blueberry's software.
And a hollow threat. Instead of canceling the contract, Arbortext chose instead to change its mind about Dave's assurances that they would cooperate with the audit. They decided to refuse to let Kessler International perform the audit.
My word, these clowns sure were deathly afraid of being audited.
At first, Arbortext said Kessler couldn't audit because there were outstanding ownership issues with the Blueberry partners. This ridiculous tactic was debunked by a letter from me and a reminder that ownership issues had been resolved by a court trial. Which Arbortext had known about for nearly a year.
Finally, on July 30, 2004, Peralta faxed me a letter which expressed Arbortext's great concern about close adherence to the terms of the contract with Blueberry. Pardon me, I have to leave the room for a moment and die of laughter. Attempting to foist the notion that Arbortext had any concern about abiding by the contract after all they had done to NOT abide by it was a performance of SHEER GALL that defied comprehension.
Hey Dave, try closely adhering to this line in the contract: "Arbortext's records shall be open to examination and copying by Blueberry or its independent auditors upon reasonable notice." Section 6.3: Records and Reports.
But Dave was not done heaving epic smelling manure. No, he went on to explain that this great concern had led Arbortext to reject Kessler International's qualifications to perform the audit because Kessler International was not an "independent auditor." A term he believed had a well-defined meaning.
The next paragraph of Peralta's letter must be read to be believed. It is the most extraordinary hair-splitting abuse of the English language I have ever witnessed. Coupled with the most insanely illogical conclusion ever attempted by a supposedly rational person in the entire history of planet earth. See Exhibit N. Be sure to wear a bib. Dave is going to quote from three dictionaries to nail down this term "independent auditor." All three examples amount to the auditor not being a member of Blueberry and not being a member of Arbortext. Which pretty much describes Kessler International. Except to Dave. Dave thinks these definitions rule out Kessler. I know I've had some issues lately, but seriously Dave, have you been letting Hannibal Lector play doctor with your brain?
I have mentioned Alice In Wonderland, Kafka, Rod Serling, and Spooky Shit in attempting to convey the atmosphere surrounding Mary and my life herein. This letter leaves me without any historical or literary or mystical inspiration to draw on for comparison. Guinness Records, I have a submission for you. I just don't know how to classify it. Good luck.
Good thing we had a Receiver and a Judge who could remind Arbortext that they were required to obey the law. And the contract.
Quite the contrary. On September 1, 2004, Dick Blair resurfaced as Peralta's subversive henchman and for the fourth time sent a letter to Judge Jensen trying to get the Judge to reverse his audit okay and let Blair negotiate the Buy Out instead. See Exhibit O for this letter.
Arbortext wasn't a software company, it was a Mel Brooks movie with Peralta playing Dr. Frankenstein and Blair in the role of Igor. It had been five months since we'd hired Kessler International and Arbortext was going to the mat to prevent the audit from occurring.
This led Mary and I to conclude we'd better hire a Michigan attorney to assist us back there in Ann Arbor, since it was obvious Arbortext was never going to pay much attention to two unrepresented poor and powerless people located way out in California hounded by an evil Receiver at every turn.
Enter one Claudia Rast. Lawyer Number Eight. Mary trotted through the Internet, as was her wont, and located Claudia practicing law right there in Ann Arbor, the scene of the crime. Mary related our tale of woe, which was becoming second nature to her by now, and Claudia was very sympathetic and accepted our case for a small retainer. Her job would be to oversee the audit and deal with Dave Peralta somewhat more forcefully than we were able to do ourselves. As in trotting down to the court house for various types of Orders, if necessary.
In examining Dave's absurd communication, Claudia remarked that, though he would not accept Mike Kessler and his Sherlockian magnifying glass, he did state he would accept a "top ten auditing firm" and Arbortext would split the bill. Mary and I had read this to mean "very prohibitively beyond Blueberry's means expensive auditing firm."
Claudia saw it differently. For one, in order for us to get Mike Kessler in the door we would most likely have to go all the way to Arbitration to simply point out that the contract expressly gave us the right to audit and to choose our auditor. Heck, the contract said Mary and I could do the audit ourselves. Even when that was accomplished, Arbortext could still refuse to cooperate and we would have to go to a Michigan court to enforce the Arbitration ruling. If all this sounds incomprehensible, it is. Except for one thing. Money. Arbortext had lots of it and we didn't. They could play ridiculous court games till we had died of old age. Using the legal system not to gain justice, but to avoid it. Subvert it.
Certainly, Arbortext's actions in desperately trying to prevent us from forensically auditing them did not scream out the words HONESTY IS OUR POLICY. Oh, no. They were leaking stinky numbers like an old jalopy with bad O-Rings. And how far back did it go? It stretches credulity to think that Jim Sterken and Cherie Van Allen had awakened on the wrong side of the bed on the day of our contract signing and decided to go bad where oncest they'd been good.
But play out the game we must. For Wyatt Earp has left the planet.
And so, Claudia suggested we ram Dave's promises up his parental guidance suggested bodily cavity by simply hiring a top ten auditing firm. One such existed right down the street named Plante Moran. Number nine in the nation, at that particular moment. In fact, they had been the lead auditors in the investigation of the Enron scandal and she personally could suggest an auditor there named Mark Robinson. In the end, this would be a far less expensive solution than spending all our money simply trying to get Kessler in the door and then incurring his expenses on top of it. We'd be broke before he started.
It seemed like a good idea. At the time.
Claudia then went about introducing herself to Dick Blair and Dave Peralta as our Michigan attorney and informing them that we were taking Peralta up on his offer. It could have been a flashback from my days living near farms in Iowa, but I distinctly thought I heard the sound of cud choking somewhere off toward the north east that evening while sitting on the swing with Mary. She thought I was being utterly ridiculous.
We were out there enjoying our final days of enjoying the swing. For hiring Mike Kessler, we had borrowed five thousand from JohnPaul's savings account, knowing we could pay him back when the house sold. For Claudia's retainer, we borrowed money from Mary's ex-husband. Hang my head. Now, for Plante Moran, we borrowed money from two of my sisters and one of my brothers. And Mary's brother James was still fronting the mortgage payments. Negative financing had become a staple of our lives.
Perhaps we should form a Dot Com company while we were hot. Wait! Blueberry was a dot com company. But it had been formed before Dots were the rage. Before they were lucrative disasters. Before Windows. Before the Internet World. Back in the Unix sub-society. We had missed the boat by rafting out to sea too soon.
Well, the raft part was at least accurate. For our life now, anyway. We were about to be set adrift into the vast and unpredictable ocean of America.
The most heart wrenching contribution we received during these final days, however, was the smallest. One day we found in our mailbox an envelope, without a return address, containing one hundred and seven dollars and seventy-five cents – in cash and three quarters. The handwritten note inside simply said, "I heard you could use some help."
This anonymous Samaritan had given us all he/she had in the piggy bank. An extraordinary and selfless act of mercy and generosity. Truly amazing. Whoever you are, kind person, Mary and I thank you from the bottom of our hearts. You brought both of us to tears and reminded us, at a time we sorely needed reminding, that good people really do exist out there in the larger world around us.
The inevitable day arrived.
After putting the house up for sale, we discovered that Larry Bernheim had ignored the Judge's Order about how Dwan would be reimbursed through the Arbortext royalties and simply, sneakily, put a lien on our house. It was all perfectly legal. Just some routine underhanded slime maneuvering on Bernheim's part.
Protecting myself from a thieving ex-partner's attempt to steal the business and all my source code had now placed nearly two hundred thousand over on the red side of my bank account without a penny to show for the black side. Just a piece of legal paper saying I was sole owner of Blueberry – without being allowed to actually conduct any business or receive any payments, thanks to Dick Blair.
The lien would be wiping out half of the equity we would be realizing from the sale of our home. With ten grand of interest on top of it, which had definitely not been called for anywhere in the Judge's order. Had we waited ten or fifteen years to sell the house, due to the gathering interest, we would have gotten nothing out of it – all proceeds directly to Dwan. A comfortable nest egg entirely wiped out for us or the kids. And delivered to him.
So, we were thankful we had been destroyed and had to sell our house now, while there was still some value to it. Life was surely getting bizarre when a victory over evil plotting involved losing a hundred grand. What a wonderful fellow my erstwhile ex-partner had ripened into.
Ah, Kevin Dwan. Wherefore hast thou gone in thy journey of self?
Mary and I stood briefly on the threshold of our nice, comfortable suburban residence, gazed sadly around the starkly empty and echoing living room, and then closed the front door for the last time. We had shed our tears along the way, quite a few if you must know. The kids had all come by for a final sad good-bye to the family home and collected a few mementoes to carry on into their futures. For now, Mary and I were alone and merely walked stoically to our car and drove away.
So long, Home.
Off to Martinez for an overnight in a motel. Then bright and early the following morning we boarded the Amtrak for a journey south to Los Angeles.
Mary had scoured the Internet – her eyes were becoming cyberspace Brillo pads – and located a 1978 twenty-seven foot refurbished motor home for sale down in Smogsville for $7,500. We were on our way to pick it up.
Our new dwelling.
The train ride ended in Bakersfield, where we were escorted off and onto a bus for the next leg of the journey. The bus took us to the L.A. downtown train station, where we caught a commuter train to Downey, one of the forty-two million city designations crowded into the Los Angeles Metropolitan area. The fellow we were buying the RV from did not know what we looked like, nor we him, so we engaged in a cell phone homing-in comedy. Wandering around the train depot getting closer and closer until we were standing right next to each other talking on our cell phones.
Nice fellow, nice wife, nice house, and let's hit the road.
We handed over an envelope with seventy-five one hundred dollar bills in it and averted our gaze so he could count it without seeming to be rude or untrusting. He handed over the pink slip, gave us a quick tour of the RV, a little caution about oil usage, and off we varoomed.
I had never driven anything bigger than a pickup truck, so driving this big old baby down a narrow suburban street was, basically, scary as hell. The steering wheel had a lot of I'm-turning-it-but-the-wheels-ain't-moving idiosyncrasy to it. Or perhaps just a delayed reaction mechanism humorously installed where it would suddenly turn the tires at precisely the point you decided it wasn't ever going to and you had just begun to turn it some more. It took two blocks to get the hang of it. To drive straight, one simply turned the wheel in a constant right and left rhythm. Or was it starboard and leeward, since this vehicle was far more boat than car?
Two gas tanks. A twenty gallon and a forty gallon. Serious cabbage would be falling out of the wallet. What kind of gas mileage are we talking here? Don't even think about it. I stopped for gas and a chance to bring my heart rate under control.
We had driven about one mile.
Only three hundred eighty-four to go.
Dark had descended upon the land as we looked at the freeway on ramp a block away. Mary fetched a bottle of Holy Water from her purse, brought along precisely for this occasion, and circled the RV, sprinkling it and praying for protection and safe journeying. I might normally have scoffed a bit, but right now, hey, it couldn't hurt. Spooky Shit was becoming the norm. Toss a little drop on me while you're at it, Mary. I didn't have to ask. She did it unrequested.
I climbed into the saddle and buckled up. "Hi-yo Silver, away!"
"I'm scared. Are we going to make it home all right?"
"This is our home."
"You know what I mean."
"Piece of cake."
"Okay. The truth. We're about to be involved in a twenty-two car pile up and be burned beyond recognition."
"I'll get us there, Mary. I promise."
She got out her Rosary beads to indicate that her fears were assuaged.
Up the on ramp and into the herd of thundering, galloping death traps we drove, wedging ourselves into the slow lane and hunkering down with a sullen single-minded fifty mile an hour pace straight ahead and get out of my way if you value your life.
Mary was kind enough at regular ten second intervals to inquire of me if I was doing all right. Shit no! Do I look all right? Take a gander at my knuckles on the wheel. They're white as the cliffs of Dover looming in your face at higher than you altitude.
Ten miles along the vicious L.A. freeway system some incredibly insane motorist drove up an on ramp and evidently expected me to slow down or speed up. You blithering idiot! This is a four hundred ton hunk of shit here! It don't slow down and it don't speed up. I stared straight ahead, wincing, while Mary sucked in air next to me as the idiot came within two inches of plowing into the side of us before some flicker of sanity convinced him to back off and fall in behind. There was blood all over the floor which had once resided in our faces.
Slowly, ever so slowly, the traffic began to thin out as we climbed up the Grapevine Highway and finally down the other side of the Tehachapi Mountains to the barely inhabited flatlands of central California. Up Highway 5 with the truckers blasting by us in a steady stream, shaking the RV from side to side as they passed, hauling America's vittles hither and yon.
I limped off the freeway at the appropriately named town of Lost Hills and parked behind a gas station with a convenience store attached. We went in and grabbed some sandwiches and a six pack and settled down for our first night in our new home. Scaled down from twenty-five hundred square feet of living space on a third of an acre to one hundred and fifty on four tires. But our backyard was now the world around us, not the fenced in yard of yore.
"How far have we come?" Mary asked.
"Downward in life or lengthwise on the road?"
I looked at the odometer. "One hundred fifty-six miles."
"I thought that guy was going to ram us. I don't know how he missed. I looked down out the window at his car and it looked like he was only an inch away."
"We made it out of that hell hole. I'm exhausted. Every muscle in my body is sore."
"You seemed to be doing better as we went along."
I nodded. "It's never going to be a one hand on the wheel deal, though. I guarantee you that."
"You looked pretty tense, all right."
"Thank God for the Holy Water. It worked."
"I'm sure it did."
"We're alive, aren't we?"
"It must have been the Holy Water."
"You hate it when the Holy Water works, don't you?"
"What makes you say that?"
"The last fifteen years."
"I don't hate it."
"Yeah. You do."
She was smiling. That was good, at least. She loved having me in a discussion quandary that I couldn't get out of. We all do, I guess. Maybe. Who knows?
She looked around the interior. "Well, it's cozy, I suppose."
"Yeah. It's cozy."
"It's pretty small."
"It's a large closet. Except when we're driving it. Then it's the Titanic."
"I guess we'll get used to it."
"I hope not. Should we take a picture of it and send it to Jim Sterken? I know he'd be tickled at what he's done to our life."
"And one to Dwan and Blair. I wonder which of them would be happiest?"
"Giving pleasure to others. Aren't we just the swellest folks? Maybe we should put some Holy Water on the picture so it'd rub off on them."
"See. I was right. You hate it."
"Shall we take a tour and check out all the dealiebobs and gadgets?"
"I think I'll call the kids. You take a tour."
"All of them."
"All six? Maryjoan's in New York. It's past midnight back there."
She gave me the look. "You haven't learned much, have you? It's Friday. She's twenty-seven. The day ain't over yet."
Right. Youth. I'd forgotten it. The day was sometimes not over till the following dawn.
"It's no fun dealiebob checking alone."
But she had already unsheathed the phone and made no reply.
In the morning, the adventure continued. In the day light. Which made driving the RV on up the freeway back to Concord considerably less stressful.
Back in Concord, we picked up our car from the Amtrak lot where we'd left it and Mary drove it to her oldest twin Julie's house, while I followed in the RV. Along the way, I had christened the RV "The Rhinoceros Palace," to which Mary showed more or less no visible sign of interest or approval. Or that she had even heard me.
I parked Rhino on a side street around the corner from Julie's house and soon Mary and Julie and her four year old daughter, Juliet, came calling. Julie tried valiantly to put on a happy face at our stylish new digs, but little Juliet was unabashedly enthused. The Rhinoceros Palace was "totally cool."
Tut, tut, kid. You can have one yourself when you grow up and have your life squashed like a bug.
No sooner had they departed back to Julie's house than the Concord Police arrived to welcome us back to the area by informing me that I couldn't park here on the street in this residential neighborhood. The home owners were concerned their property values would collapse over night with a Rhinoceros grazing about on the street. Move along, pal.
Mary arrived back at the RV during the police interrogation, fearful that I had managed to find some way to cause trouble during her brief absence. The cops were much nicer about things with her arrival, lowering their evil-suspecting barometers considerably.
Still, it was a vivid reminder that we were no longer respectable home owning citizens and were instead part of the driftwood cluttering the pristine beaches of America.
From Julie's place, we drove east to Bethel Island, just east of the juncture of the San Joaquin and Sacramento Rivers which then emptied into the San Francisco Bay. I drove the Rhino and Mary followed in the Honda. Rhino with baby rhino in tow. Very cute.
Mary had made week long reservations for us at Lundborg Landing, a flat, grassy RV park alongside a slough off the San Joaquin River. We paid the fee and helped ourselves to a slot with no one to the right or left of us.
Time to begin learning about RV living.
I located the pump out hose in one of the side storage compartments along the bottom of the Rhino's exterior and connected it to Rhino and then to the sewer pipe sticking out of the ground at our spot, arranging it along little gradually smaller plastic props so that gravity could do its waste removal work properly. Next I plugged the Rhino's electrical cord into the available outlet at our site and opened the valve of the propane tank which supplied us with heat and stove top fire. And finally, I unfurled the awning from a tube along Rhino's roof line and propped up the legs.
Voila! Homesville. And even I could do it. No wonder there were so many of these humongous beasts prowling the roads of America. Anybody could do it! The industrial revolution had spiffed up and civilized Gypsy living as well as rooted living.
While Mary busied herself with the Rhino's interior decor, I unfolded a camping chair and sat down outside under the awning with the manuals pertaining to all of the Rhino's various gizmos. The manuals were mostly for show. They were placed on the ground next to me. My real purpose at hand was popping open a beer, lighting a cigarette, and staring off into space while getting a feel for whether this new life would be acceptably pleasant or just glumly tolerable.
Which, in reality, would be entirely dependent on how Mary coped with it. If she was okay, I would be okay too. If she wasn't, neither would I. So I suppose my first act in RV life was to sit on my ass and loaf. A familiar activity.
What we planned to do was take full advantage of the fact that Blueberry was now an entirely mobile business. After selling the house, we had paid off all our borrowings and entered the modern world by purchasing two cell phones, one for business and one for personal, two laptops, and a wireless Internet access account. The Rhinoceros Palace was now the de facto world wide headquarters of Blueberry Software.
Northern California was a Mecca for camping and hiking and vacationing outdoors type of stuff. Who would know that a tech support call was being handled by a guy sitting in front of a camp fire with a laptop on his knees and a cell phone in his ear?
Lundborg Landing. An interesting name. I wondered who Lundborg was. It sounded sort of like a sea-faring, peg-legged old gnarly guy. Probably wandered off course from the San Joaquin River while boating around drunk on a foggy night and run his tugboat aground here and then staggered overboard and drowned. Something like that anyway. If I drove the Rhino off a cliff, maybe they would call the crash site Beigel's Bottom. It would be poetic fate for someone like me.
Which was the part I couldn't understand. It didn't surprise me that life had gathered together a company full of crooks for the express purpose of handing me some karmic comeuppance. It was no secret that my life had not always featured swell performances. I wasn't deluded about it. Someday, I knew I'd have to pay for my choices and actions. That's the way the big old wad ball worked.
But why Mary? Why did my punishment fall on her too? She was a decent as hell person. Her behavior was pretty much always virtuous, generous, helpful, and caring. Marrying me might have shown some severely poor judgment, but that was no sin. Ultimately, my life wasn't that important to anyone. But hers was. She had six kids and grandchildren galore to come who really depended on her being okay.
It was definitely a puzzlement. I kept trying to concoct up scenarios where I would get my just desserts, but it would turn out great for her. It was tough on my concocting center, though. The closest I'd come so far to a fair scenario was the one where Arbortext finally paid us all the money they owed us, I put the check in our joint business account, then as I was leaving the bank a skateboarder would smack into me on the sidewalk, causing me to stumble backwards into the street and get run over by a city bus.
It balanced out everything.
I mentioned this solution to The Big Guy in one of my poor praying efforts, just in case He needed a helpful tip. So we'll see if He was listening. Down the road. Some day. Bus squashing was the kind of thing that made the newspapers, so keep an eye out for it.
"I see you've made yourself right at home."
It was Mary.
"Just resting my brain from studying these manuals. They're hard to understand."
"Get up and come inside. I need some help hanging pictures."
Rats. Duty calls.
We barbecued some burgers for dinner and sat outside in front of a campfire. Very quiet and lots of stars.
"The place looks great," I complimented.
"It'll have to do."
"I guess we could look at it like we're just on an extended camping vacation."
"I guess we could."
"It makes me feel better."
"It doesn't do anything for you, I guess."
"I don't want to talk about it."
"The audit will be starting any day now. Finally."
"I don't want to talk about it."
"You sure can see a lot of stars when you get away from the city. Look, there's Orion."
"Shut up, will you?"
Good idea, Mary. Reality was settling in. We were homeless. There was no place where we could feel safe anymore. Where we could lock the door and hide from the world. It was a scary feeling.
In the morning, whatever nomadic, great outdoors plans we had in mind came crashing to earth also. The cell phones didn't have coverage out here in sticksville. Don't ask me why. I'm no satellite whiz. They just didn't work. Our lifeline to the world was cut off.
And so it was that the Rhinoceros Palace tottered back to Concord and settled its tires down in an exotic mud hole named Sunny Acres Trailer Park. The trailer park was located in south Concord at the base of a ridge of hills called Lime Ridge. It was across the street from the Bart train maintenance yard.
Yes. Lime Ridge. The same ridge where our old house was located. Only our house was on the other side of the ridge, the north side, the prime real estate side.
A mere quarter mile walk away, but another solar system in reality.
But at least it felt like we lived somewhere.
Mark Robinson was not just any old auditor at Plante Moran. He was an actual Partner. His Internet bio explained his expertise thusly (bold added):
Mark has professional experience in litigation services, valuation services and management consulting projects with significant experience in the following areas: damage quantification in breach of contract, business interruption, construction, dealer/distributor termination, and intellectual property infringement litigation matters; business and intangible asset valuation; fraud and forensic investigations, expert deposition and trial testimony in arbitration, state and federal court.
It appeared to us that he was certainly qualified to go into Arbortext and find the answers to where a multi-million dollar company had hidden $4,000,000 in Intermarket sales and quantify how many other sales were being excluded from our royalty reports. We did not expect him to weigh in with his opinion about the 80% discount Arbortext had applied to our contractual terms in order to shrink our reported royalties to microscopic levels.
One step at a time. First, we had to prove they were committing fraud. Second, we would give them the chance to rectify their thievery or have it dragged into an Arbitration hearing.
With his significant experience, Robinson should be able to sleuth in there, pop the hood on the Thiefmobile, and easily diagnose and quantify the fraud. Surely he would, wouldn't he?
Oh, ye optimistic and gullible idealists. Have ye nae yet learnt the warld's gied gyte and nae richt? Wrang and dooble wrang. Caught in the loon's muckle neb.
Mary provided him with a list of some of our more basic concerns. And could he please check on those pesky zero dollar give-aways. Or, as Jim Haggarty liked to call them, Scaled Up Opportunities. As though this wondrous bit of business-speak butchery somehow addressed and exonerated the issue of giving us away for free – without payment of required royalties. Haggarty was Chief Information Officer, which like many phrases in the business world meant exactly the opposite. His effective responsibility was Chief Disinformation Officer.
Scaled Up Opportunities. What the hell was that supposed to mean? What was the key to decipher this code phrase? Making opportunities larger. What opportunities? And in what way did giving Blueberry away for free, in clear violation of the contract, help create larger opportunities? Certainly not for Blueberry, whose "opportunity" was ZERO. Intellectual Property Theft is what it was, plain and simple.
Robinson began his audit in November of 2004, just as we were settling into RV Living. Thanks to the previously chronicled excellent blotter nodding from the Judge, Blueberry was allowed to proceed with the audit on the condition that Blueberry (Mary and I) footed all the costs (good choice, us), while Dwan got a free ride for half of any rewards that might occur (bad choice, Judge).
Where the logic of Dwan's participation in the rewards, while not participating in the expense of gaining the rewards, was located on the Judge's blotter will forever remain a mystery of the judicial process and the meandering brain waves of an occasional mind. Dwan, through Bernheim, had fought the audit tooth and nail from day one. Insisting all the while that Arbortext was a clean, Rotary Club type company. But if he was wrong and they did owe us money, he sure wanted a hunk of it. Shame had ceased to hold value in Dwan's world.
So, there was quite a crowd gathered around the trough panting hungrily for the results. Dick Blair was straddling the trough, as he prepared to either jump in face first with full support of our efforts which he had tried so mightily to squash, or to enthusiastically pull the guillotine lever on our outstretched necks. Dwan and his faithful Geyser Spout were on either side of the trough, steadying Dick's balance, and prepared to follow his lead wherever it led. The Judge probably had no more than prurient interest in the outcome. Dave Peralta and Jim Sterken were no doubt busy, very busy, performing whatever evil machinations were necessary to escape indictment.
Mary filled the time by continuing her Arbortext Internet investigations.
I filled the time by staring out the RV window at a trailer court filled with one hundred and twenty-six other lives that had their own shit-happens tale to them. Ungodly sagas of the twists and turns of fate that could heave one off the paved road of America and into the marginal byways in the blink of one bad choice or one bad break.
I was tired. Dead tired. Mentally fried. Almost five years now of nothing but one catastrophic event after another. Jerking our life around on a daily basis. Relentless, bulldozing insanity. My brain and psyche were not built for speed. I digested life slowly. Even somewhat ponderously.
Mary, on the other hand, whether by nature or years of motherhood, could cope with ideas and events almost instantaneously. She rarely broke a sweat or seemed flustered by any of the endless shocks zapping us day after week after month. But it was wiping me out. As some of my previously mentioned behavior most surely indicated. I was not now the man who had before pretty much handled the bulk of my life with aplomb and enjoyment.
There were two types of people in life. Those who turned to the Lord to pray for help and those who turned to the Lord to complain. The Beigel/Tarantino household represented both types of people. I'm sure I need not burden you with identifying which of us was which.
But, for once, despite my overwhelming sense of outrage, I forswore my swearing. I didn't want to contaminate this Louis P. Saia inspiration emanation that seemed to have taken root in our souls. Just in case, you know. Just in case. Bet hedging, I suppose.
"Will you please stop muttering to yourself?" Mary suggested. "It's driving me crazy."
"How's Julie these days?"
"How about Jenni?"
"Stop it. They're all fine. Take a walk or something."
But I did it anyway.
At the back of Sunny Acres, there was a hole in the chain link fence you could climb through and find yourself on the Contra Costa Canal Trail. If you were a serious Bike Duding Any Gender type, this was your baby. It was an eight foot wide asphalt bikeway that started in north Concord and wound southward along the base of Lime Ridge and down through Walnut Creek and then came back north through Pleasant Hill, concluding at the south end of Martinez. Fourteen and a quarter miles of mostly flat terrain. The trail wound through suburban home areas, with an occasional City Park junction. A must peddle deal.
Or you could walk on it and stay out of the way to the left or right side of the trail.
I walked along to the point where a path went across the low point in Lime Ridge and came out on the north side precisely at the top end of our old street. Court Lane. I walked over at this point and then downward far enough so that I had an overlook view of our old home. Right about at the area where Mary and I had done some serious necking during our courting days. Before new dwellings had been built to erase this sweet little spot's allure.
There it is. Or was. The white birch trees in the front yard, along with the olive tree, the maze-like hedges, the rose bushes, the rolling terrain – all were gone! The yard had been leveled out and covered with lawn and surrounded with a four foot high chain link fence. It now looked precisely like all the other front yards. Basic blah. Fifteen years of our hands in the dirt landscaping utterly erased in less than one month.
They kept our swing right where we left it on the front porch. Placing their imaginationless butts where ours belonged.
I believe there's a message here, Steve old boy. Just for you.
But, I have to admit, my message unraveller was superseded by my eyeball reactors. They sprung a leak. Real tears. Big slobber blobs. Right on the curb where I sat, drooling between my knees. Sometimes, when nobody was looking, this unbelievable shit was really grinding me down. It hurt like hell. Oh, God, it hurt. And there wasn't a humorous band aid anywhere to be found.
I wanted to kill every one of the sonsabitches who had done this to us, I swear I did. Right then and there.
With a fucking sledge hammer.
A Paul Bunyan one.
As December neared, word got around to Blair, who was probably harassing Mark Robinson on the sly, that the audit was nearing first draft completion. This news produced some white bubbles at the corners of Dick's thinly veiled orifice. And, following suit rabidly, huge gusts of hot air from the canyon located under Bernheim's nose.
They began a war dance around the precise day in mid December, with the ink still wet on the Plante Moran Audit Report pages, that the Judge could be summoned to hear the results and let the feast or beheading begin. At the very least, Dick wanted to make sure that he, not us, the ones paying for the audit, gained control of the results. Like this was his show, not ours. Aptly Named had turned Lecherous Wallet and lethal sabotage into an art form.
Never mind that the results would be merely a first draft report. One that Mary and I, through some hints from Claudia Rast, would definitely have some additional queries to pose.
Well, it was more like one big hint. And not a very reassuring one. Claudia reported to us that, in a conversation with Mark Robinson, he had asked her "how is this going to play out?"
This did not seem to us like an appropriate concern for an impartial auditor to be posing. It sounded like some sort of Slanting Things agenda might be coming into play. Of course, the slant could be towards Blueberry, but I doubt that even a resident of a Tribe Untouched By Civilization would consider that to be even a remote possibility.
"I don't like the smell of this," Mary said. "We've bet everything in our life on this audit. We know Arbortext is crooked. He shouldn't have any trouble proving it."
"He said Arbortext was being very cooperative."
"That means they're showing him what they want him to see and he's not looking where we want him to look."
"I wish Kessler International was in there, to tell you the truth. I had a lot better feeling about their forensic promises than I'm getting from Mark Robinson and Plante Moran."
"It still galls me the way Blair tried to explain to the Judge that insane letter from Dave Peralta about why Kessler didn't qualify as an independent auditor. 'Arbortext is concerned that Kessler will perform an audit which would reflect a predilection towards certain findings.' "
"Jeez, you got that memorized?"
"Burned in my mind. Audits aren't fictional stories or news articles with slanted opinions. Numbers are numbers. Pure and simple. An auditor is only going to find what is already there. Why isn't Arbortext concerned that Plante Moran will find those same numbers?"
"This whole torture job on the meaning of 'independent' reminds me of Orwell's book 1984. He called butchering the English language Newspeak. To Peralta and Arbortext, Kessler International is not an independent auditor because they are in fact independent auditors. That must mean to them that Plante Moran is an independent auditor because they aren't in fact independent."
"If they're not independent, what are they?"
"Dependent on what?"
"On two local businesses doing business together in harmony. Having lunch in the same chic bistros. Having kids in the same schools. Having a feast over our California carcass in their Michigan milieu."
Mary sighed. "My Dad used to tell me he thought our family was under spiritual attack. Sometimes, I'm not so sure he wasn't right."
"Jeez, now you're scaring me. Dick Blair and Dave Peralta are enough evil for me to deal with, let alone the pointy tailed red guy."
The can of beer I'd been drinking abruptly slid across the top of the table between us. Unaided by human hands or earthquakes. Just decided to move itself about a foot, from the right of the table to the center.
I stared at it. Then looked at Mary. "Did you see that?"
"What the hell does THAT mean?"
She shrugged. She was also smiling. It was a "So there" smile, I was sure of it.
"It has to mean something."
"No it doesn't," she said.
"Beer cans don't just move themselves across a flat, level table."
"That's right. They don't."
"But it just did."
"That's right. It did."
"Crap. I don't need this shit. You did it. Somehow, you did it."
"Did you see my hands move?"
I picked up the can and looked underneath it. Nothing but can bottom. Not even wet. Regular ass beer can. And nothing more.
"Cripes. Saia gets the Blessed Mother and I get an ice skating beer can."
"Don't run down Saia."
"I'm not running down Saia."
"Then don't compare."
"Well, I guess I've just had my first paranormal experience in life. Whizzo."
"The first you've noticed."
"Oh, right. There were the flying saucer skid marks on our lawn that I sloughed off as Santa's sleigh tracks."
She was grinning from ear to ear. "You're really bugged, aren't you? Mr. Everything's A Joke ain't laughing now."
I grabbed the beer and brought it to my lips.
"You sure you want to drink that?" she asked. "Maybe it's an evil spirit."
"Why does it have to be evil?"
"You notice any good spirits in our life lately?"
"Piss on it. One more won't hurt then."
I drained the beer and fetched another. Casper the Friendly beer can. What the hell next?
On December 8, 2004, Robinson sent a draft audit report that found Arbortext pennies all present and accounted for and virtually nothing wrong except it was his opinion they should be paying Blueberry for maintenance sales. A sop to us, I suppose, for our half of his fee. And perhaps they should be paying us per contract, instead of per their own formula which had been implemented probably by System Analyst Philip Van Allen back in Punishment 2002, signed off on by Jim Haggarty.
Noticeably missing, at least to us, was his addressing any of the issues Mary had provided to him at the onset that seriously disturbed us. And were the reason we had hired him to do the audit in the first place. The Forensic part of his expertise was M.I.A. Indeed, everything about his expertise was missing.
While Blair and Bernheim and, most probably, the hidden unmentionable person, salivated gleefully over our apparent comeuppance, Mary and I performed what was becoming a standard ritual of extracting our flattened carcasses out from under the safe that had fallen on us from the tenth floor window ledge and inserting the tire pump into a use your imagination input valve. We had transmogrified into Toons.
Dueling agendas MCCXLVIII. Blair hurriedly scheduled a session with the Judge. Mary contacted Robinson. Peralta and Paddle Ball puddled with pleasure. They had passed through the detox of an audit and come out clean. It would be a white, white Christmas in Ann Arbor. Peralta even sent another missive to Dick Blair reproposing the $100,000 buy out offer, even though the audit was supposedly clean and why in hell would they still want to give us a hundred grand?
Not so fast, boys.
Into the fray burst a new barrister named Ken Pritikin, hired by Mary and I, after another round of her Internet interviewing, for the sole purpose of interjecting us into the Berrnheim / Blair axis and applying some brakes to their blitzkrieg. Also, we wanted him to put pressure on Blair to disburse the royalties he was holding, which had grown to nearly $50,000. Our hair brained, albeit necessary, journey of self-representation came mercifully to an end. And in came Lawyer Number Nine.
Improbably, our tiny impoverished little company was busy furnishing the homes of every legal type beagle on the planet, it seemed like: Dick Blair, Larry Bernheim, Pritikin, Rast, the Nodding Judge, our first lawyer Bill Hansen, Dwan's first lawyer Frank Bailey the III, Arbortext's lawyer, Mark Robinson – step right up, everyone's a winner at the Blueberry fire sale. We had become involved with more attorney types than O.J. Well, close anyway. Who am I kidding? The man's on some other planet. Even we couldn't get there.
The presence of Pritikin did not please the Dick & Larry hog festers. Very reluctantly, they were dissuaded from dragging us before the Judge merely to announce that a first draft of the Audit had been completed. And, thanks to Mary, there would most certainly be some amendments to it before the next draft. Mary's call to Robinson had reminded him that none of our concerns had been addressed by his first draft. He promised to go back in and get some answers for her.
Why he needed prodding to do his job in the first place was no doubt connected to the "playing out" tippy-toe dance. Which meant we were once again dealing with a Professional who Wasn't. A Game Player. Scales weighted heavily for Big Business. Impartiality just a bogus word on a CPA license.
And thus we all adjourned for Christmas.
After the Christmas holidays, Robinson informed Arbortext he was returning for another forensic poke around to placate our concerns. After one day of poking, Arbortext closed its doors to him for nearly two months. He could not get back in to follow up on his fact finding. A return to the Kessler Barricade philosophy. Whenever any real investigation occurred or threatened to occur to the Arbortext accounting system, they freaked out and locked the doors.
Hey, Mark. Old number head. Seem a little suspicious in your Significant Experience?
And no wonder. His one day in there getting a perhaps unexpected print out of the License Key database, which recorded the licenses given to customers who had bought or been given the right to use our software technology, had, in Robinson's phone call words with Mary, "significant discrepancies" compared to the licenses reported to Blueberry on its royalty reports.
Arbortext had been fully prepared to snow job him during his non-forensic efforts (forensic was apparently not standard procedure for him, but had to be Begged for), but they were caught off guard by his sudden return and the cracks in the facade of honest books appeared almost immediately.
This was bad enough, but, as we would eventually discover, Arbortext had a much larger concern on its greasy hands. For, coinciding with Blueberry's audit, a no doubt thorough examination of their company was being conducted by a billion dollar company named Parametric Technology. An examination toward finalizing a $194,000,000 acquisition of Arbortext.
But more on that later. For the nonce, we only knew we had hit a nerve and Arbortext was suddenly not cooperating with the audit and had gone back to stonewalling. I will not suggest that this time was used to purchase shredding machines or to concoct alternative databases. No, that would be irresponsible and unprofessional speculation. More informally known as "Duh, Ya Think So?"
It was enough to make Dick Blair edge away from his 100% espousal of Dave Peralta's $100,000 deal, though, which was quite an achievement. A year in the making. And even more stunning, old Hippopotamus Mouth Bernheim had not a peep of pop off from the profuse pontificatorium passing as his puss.
Mary and I waited patiently. More or less.
By late February of 2005, we grew restless with the delay and prodded Claudia Rast to send an official demand to Arbortext to re-open its doors. This seemed to do the trick and a week later Robinson returned and soon finished his fact finding forensing.
On March 21, nearly three years after we had first discovered Arbortext chicanery, the Plante Moran audit was issued. In final form. No input from us asked for. Just here it is and I'm done and here's the bill.
It was a complete white wash. A Cover Up.
No mention was made of the "significant discrepancies" between the License Key Database and the licenses on the Royalty Report. That was apparently just for telephone wires. Not for the actual audit report. The Report itself can be viewed at the end of this chapter.
Robinson spends the first eight pages of his eleven page report explaining how he familiarized himself with Arbortext and its products vis a vis Blueberry. Then he begins to deal with the issues. My comments follow his.
5. Specific items that were reviewed at the request of Blueberry.
19 SKUs from an old SKU listing
We were requested by Blueberry to investigate 19 specific SKUs that were part of an older SKU list that is in the possession of Blueberry. Exhibit D lists the 19 SKUs, an indication as to whether the SKU is still a current SKU, a description of the product, and the Arbor-text sales, by year, for the products.
Stressing the word "old" here is irrelevant and purposefully misleading. If an SKU existed, it was used and products were sold that required royalty payments to Blueberry. This list of SKU revenues amounts to $711,945. None of it was reported to Blueberry. Mark Robinson has no further comment on our "request" to investigate these SKUs or why none of this revenue was reported to Blueberry. In addition, it appears as though only ONE Site License was ever sold to a customer!
Mark, the words needed here are: More Investigation Called For.
E-Catalog (a.k.a. Intermarket), as well as the Arbortext Site License and the Arbortext Site License maintenance, relate to Arbortext's August 2000 Application Development & Software License Agreement with MRO.com (WP-10). Arbortext was developing a product called Content Manager by extending the functionality of Arbortext programs and integrating them with MRO's Intermat product. Soon after the agreement and some licensing of software to MRO in September 2000, the joint development effort was abandoned. The total revenue that Arbortext received that was related to E-Catalog and Site License was obtained from MRO.com (refer to Exhibit D for amounts).
E-Catalog (a.k.a. Intermarket) relates to much more than MRO.com, Mark. As the evidence we sent to you (see Exhibit E and Exhibit F) most surely indicates. However, the $100,000 received from MRO.com is paid in 2001 and not reported to Blueberry, which you do not mention. Your comments regarding the agreement and its abandonment come straight from the emails of Karen Sharplin, the new Arbortext Controller and Head of Finance – not from your forensic efforts.
Her email informs you that this product was never developed and never sold. After we provided you with an SKU to look for, you discovered the MRO sale, and then Ms. Sharplin emailed you the baloney you are repeating here.
What you don't mention Mark is that she lied to you in the email which denied the existence of the Intermarket product, and attempted to cover up the lie and confuse the issue afterwards. See Exhibit P for the email.
The MRO joint effort may have been abandoned in September of 2000, but Intermarket itself was not. Zoltan Gombosi and eleven other programmers continued to work on this product for another year. It was released in January of 2001. You can type "Arbortext Intermarket" into your Google search bar as I type these words and find pages and pages of references to this product. Hurry! They're disappearing fast.
Or you can simply visit this web site page http://web.archive.org/web/20010604124514/www.arbortext.com/Think_Tank/think_tank.html and enjoy the splendid PowerPoint presentations concerning E3 and Intermarket. We recommend E-Content Power-Hour #7. You will come across a suggestion therein to phone up Vice-President of Product Marketing Mr. P. G. Barlett for information on Purchasing Intermarket. If this site has somehow disappeared when you click on it, just drop me an email at email@example.com and I will get it restored.
Robinson's statement that the MRO sale reflects the "total revenue that Arbortext received that was related to E-Catalog" is totally false.
More Investigation Needed would not suffice to flesh out your comments here, Mark. This section goes beyond a White Wash and amounts to a Cover Up, plain and simple.
We selected 15 Arbortext Partners in order to examine the quantity of software that was distributed to those Partners. The Partners that were reviewed and the type of relationship to Arbortext are as follows:
. . . list of partners . . .
Exhibit E shows the quantity and type of software that has been distributed as demos to each Partner as well as any software sales. In the two cases where a Partner purchased the software, we verified that software purchase in the Cumulative Royalty Report sent to Blueberry, Exhibit A.
So, in only two of fifteen cases on your Exhibit E did an Arbortext Partner actually purchase the software and generate a royalty for Blueberry. The other thirteen were evidently given away for free. Demos. Scaled Up Opportunities. Whatever.
In order to review the software distribution and the recording of sales, we reviewed the customers listed in Exhibit F. Exhibit F shows all products that were distributed to the particular customer as well as the associated revenue. We verified that the Active Licenses identified in the "Key Database" (WP-19) had revenue associated with them in the Total Arbortext Sales Database (WP-1), We also verified the number of Active Licenses with the number of licenses reported in the Cumulative Royalty Report sent to Blueberry, Exhibit A.
During our preliminary review of the "Key Database" we found several instances where a customer had additional licenses available to them as compared to purchased licenses. This discrepancy was mainly attributable to poor record keeping practices at Arbortext prior to 2003. The current key distribution system is linked with the current product sales and is automated versus manual and is less prone to errors.
After our initial findings Arbortext performed a review of the "Key Database" to fix these errors. We reviewed the corrections to the key database with a sample of customers that had been recorded in error. Testing included matching active license keys to purchased license keys for the sample (WP-19).
In reviewing the revised active license keys database (WP-19) related to Blueberry software, we identified a total of 2,245 active licenses through Q3 2004. Based on the Blueberry royalty report (Exhibit A) there were a total of 2,284 purchased licenses through Q3 2004.
The discrepancies from purchased licenses to active licenses are mainly attributable to customers not utilizing all products purchased (one specific customer accounts for a substantial portion of this difference). Additionally, Arbortext has put procedures in place to review purchased licenses to active licenses as each renewal maintenance occurs.
So, Mark Robinson essentially allowed Arbortext to clean up their accounting system "errors" without providing any information as to what those errors were and what impact they had had on Blueberry's royalties. Mark, Blueberry is not concerned with how many licenses were in the database after Arbortext cleaned it up, we are interested in how many were there before they cleaned it up.
And the current "automatic" system, which now has replaced the old "manual" system is still prone to errors! In fact, the active licenses still did not match the royalty report.
Robinson focuses on the words "active licenses." This is irrelevant except for purposes of a cover up. Whenever a purchase is made, a license is recorded in the License Key database. It remains there whether the license is ever "activated" by the customer or not. Blueberry itself has unactivated licenses in this database. All of these licenses have been purchased and royalties are owed. This is the only fact of relevance to Blueberry and Robinson does not address it. Even though it is obvious that the License Key Database and the Royalty Report do not match. Not even a hint that More Investigation Is Absolutely Imperative!
Your Conclusion here is missing this point, Mark: Blueberry's contention that Arbortext's Royalty Report is not accurate is CORRECT. That is an inescapable fact and if you had mentioned it, it would have vastly changed the impact of this entire audit report.
Exhibit G lists five specific customers that are believed to have Blueberry software based upon references found by Blueberry on the internet. Exhibit G also shows the results of our comparison of the Key Database, the Total Arbortext Sales Database, and the Cumulative Royalty Report.
o LRN – The Internet reference suggests that LRN has Interchange. The Key Database, the Total Arbortext Sales Database, and the Cumulative Royalty Report are in agreement that LRN purchased Interchange and Blueberry was paid a royalty (WP-15).
Blueberry did not ask about this customer. It was merely part of an email thread in an exhibit we sent to Robinson about a customer (Trellis Neutech in Singapore) that we did ask about. Making this the first entry here smacks of an attempt to trivialize Blueberry's concerns. IMO.
o Planetgarden – In a description contained on Arbortext's website under "Our Customers," it is suggested that Planetgarden.com has the ability to achieve results that are the same as what is accomplished with Interchange. From a review of the Key Database, there are no active licenses with Planetgarden.com for a Blueberry product. The Total Arbortext Sales Database shows that they did, however, purchase Adept Editor, Epic Editor, training, and consulting services from Arbortext (WP-16).
Well, since Adept Editor, Epic Editor, training and consulting do not provide Interchange capability, yet Planetgarden has this capability, perhaps it should be noted that More Investigation Is Needed.
o U.S. Coast Guard – A solicitation notice from the U.S. Coast Guard requests maintenance on 2 E3 single processor licenses and 2 E3 quad processor licenses (WP-18). Our review of the Key Database and the Total Arbortext Sales Database both agree that only one E3 single processor license and 1 E3 quad processor license were ever sold to the U.S. Coast Guard. This finding agrees with the Cumulative Royalty Report as well.
In other words Mark, the solicitation notice from the Coast Guard (which we sent to you) requests maintenance on 4 E3 licenses, yet only 2 are in the Sales Database, the Key Database, and the Royalty Report. Thanks for glossing over this point that Blueberry did not receive royalties on HALF of the Coast Guard sales. In fact, these sales seem to be missing from Arbortext's records entirely, just like the $4,000,000 in Intermarket sales. You don't seem to be mentioning that this is a PROBLEM.
o DFAS SB/FPA (Hill AFB) – This was another customer that was serviced by the same distributor that handled the U.S. Coast Guard order. Our review of the Key Database and the Total Arbortext Sales Database both agree that only one E3 Print/Web/Interchange license was sold. This finding agrees with the Cumulative Royalty Report states as well.
Once again, Blueberry did not stress this customer as a problem.
o Trellis Neutech S. Pte Ltd (Singapore) – The internet reference suggests that Trellis Neutech has E3. Our review of the Key Database and the Total Arbortext Sales Database both agree that Trellis Neutech has never been a customer of Arbortext. It is uncertain as to how Trellis Neutech may have obtained E3.
The "internet reference" does not "suggest" that Trellis Neutech has E3. It flatly states it, via a Trellis Neutech employee asking for internet tech support (from LRN) for his on going use of E3. If it's uncertain how he got E3, perhaps More Investigation Is Needed.
Are we seeing a Pattern here of the need to Investigate Arbortext's books and records? I'm sure you'll mention this in your Conclusions section, right Mark?
Or maybe you won't.
Robinsons's Conclusions are quite remarkably bland of, well, conclusions. Except to limit them to only three areas of potential discrepancies! Allocation of E3 Revenue, Maintenance Revenue, and the MRO.com relationship.
On the first two, if Arbortext's explanations and reasoning are correct, everything's fine. Otherwise, it's not. Gee, Mark. I think we all knew that before we paid you one half of your $28,000 fee to do some actual forensic auditing.
The third conclusion regarding MRO.com is particularly galling and represents Robinson's second attempt to cover up the Intermarket product (bold again added):
MRO.com Relationship – As detailed in Exhibit D, Arbortext received revenue from E-Catalog and a Site License. It is unclear as to what software components are contained in E-Catalog or are part of a Site License. Plante & Moran has certain documentation regarding this relationship and sales revenue (WP-10) but will defer to Arbortext as to what information can be provided to Blueberry.
The above paragraph, carefully disguised, is Mark's way of discussing our evidence of the $4,000,000 in hidden/missing Intermarket sales. We had not initially sent him any of our evidence about Intermarket, hoping he would just discover it on his own, but in his first examination of Arbortext, he had failed to find any sign of it. Or perhaps didn't even look for it, even though it was pretty "significant" to us. So, in late February, before he went in for his final forensing, we faxed him Zoltan Gombosi's resume and our Intermarket evidence. See Exhibit Q for our faxed remarks to Robinson.
Subsequently, he came up with the MRO.com transaction and how does he address our evidence and our faxed concerns regarding this? By claiming not to know what software is contained in E-Catalog (Intermarket) nor what is contained in a Site License, even though he has documentation regarding it and WILL NOT ALLOW BLUEBERRY TO SEE THIS DOCUMENTATION UNLESS ARBORTEXT OKAYS IT!
This also finishes off his attempt to limit any investigation of Intermarket entirely to this one MRO.com sale, just as Arbortext itself attempts to do – after getting caught in a lie about its existence. The fact is, we never asked about MRO.com. The relationship between Arbortext and MRO has no bearing on Intermarket's existence or sales.
Is it okay for me to suggest that Plante Moran is not behaving as an "independent auditor" here?
Sheesh. What a rip-off. Obviously, our half of Robinson's fee was not nearly as equal in significance as was Arbortext's half. In fact, it seems more that Robinson's report succeeded in pointing out to Arbortext the problems in their accounting system and record keeping so they could fix them and be more presentable for things like an IPO filing or an Acquisition or a day in court. Which meant Blueberry's money helped fund a clean up of Arbortext!
Exactly 180% from what we spent our money to obtain.
Well, Mr. Robinson, Blueberry will eventually see this documentation and all the other Working Papers you gathered but somehow managed not to address or investigate and we will discuss your audit report in far greater detail at that time. When it "plays out," so to speak. In Chapter 45: The Smoking Gun to be precise.
For now, you really put the screws to us, Mr. Mark Robinson. Thanks a whole bunch.
It was interesting to note that Jim Sterken, the mastermind behind the fraudulent books, did not appear on the list of Arbortext personnel that Robinson interviewed. Nor was the Controller and implementer, Cherie Van Allen. She had evidently been replaced as Controller by a Karen Sharplin. Jim Haggarty was still around, and so was Cherie Van Allen's husband, Senior Systems Analyst Philip Van Allen, who had performed the "logic" of the royalty reporting scheme.
Robinson was not going to be the one who sounded the alarm on a local Michigan business. Not during its time of Acquisition. And the audit we had fought through hell to achieve had turned into just one more outrageous abuse of legal and business ethics.
Toon time for the two of us. Bartender, make that a quadruple double.
See Exhibit R for Mark Robinson's Plante Moran audit report.
The Audit at least produced one positive result.
The tiny sop from Mark Robinson that Arbortext might not be Interpreting the contract fairly for Blueberry and clearly owed us royalties on Maintenance sales and renewals, though cheering Mary and I but little, had a major impact on Dick Blair and Larry Bernheim and their espousal of Arbortext's Buy Out offer.
The $100,000 Buy Out offer had never had any validity even by Dave Peralta's skewed logic. In his initial presentation of the attractiveness of this offer, he figured Blueberry's royalties over the three years he was placing on the Contract's remaining length at $77,000. To offer a hundred grand instead was, to him, a magnanimous gesture.
Arbortext wasn't going to cease using Blueberry's technology because of the Buy Out. They wanted to own PERPETUAL RIGHTS TO BLUEBERRY'S INTELLECTUAL PROPERTY! To use any way they wanted. Making them direct competitors to Blueberry using Blueberry's own technology for the ridiculous amount of $23,000 (100,000 – 77,000).
Of course, Dwan and Blair and Bernheim didn't give a rat's rear end about Blueberry's future. Only Mary and I did. It was our livelihood. Our company. So Blair and Bernheim's insistence for nearly a year that this was a real good offer was total, vicious baloney meant only to deceive a nodding, half-interested Judge. And to make money for Dwan, Bernheim, and Blair while destroying me.
But the Audit now wiped out any chance that this ludicrous Buy Out offer could be foisted off as an attractive offer even upon a ten year old child, let alone the Judge. The unpaid maintenance royalties alone amounted to more than $100,000. A proper interpretation of the contract would add several hundred thousand more on top of it. The 80% that had been lopped off way back in July of 2002 by a vindictive Jim Sterken. Plus, you know, that pesky $4,000,000 Intermarket disappearance thing.
Not that Arbortext accepted Mark Robinson's professional analysis and started paying us for all the maintenance sales (which would also point toward unreported previous sales). That would amount to contractual compliance and a definite Scaled Up Opportunity for Blueberry royalties. Not gonna happen on Jim Sterken's watch. No baby. Arbortext's response to the audit (and later Parametric Technology's) was to ignore it completely and proceed as though it had never been developed and never was released. It, like the Contract, was just another piece of paper they had no qualms about ignoring.
Which did not surprise Mary or me. What we had needed from Robinson was a direct indication of wrong doing that we could take to Arbitration, assured of a victorious outcome. His white washed Audit Report cover up merely hinted at the extent of the problem and then snuck out the back door leaving the burden entirely on us to finish the "forensic" investigation we had hired him to do. To "play out" the scenario.
But at least Bernheim and Blair were derailed. The Buy Out offer was never mentioned by these two charmers again. Never existed and never sold and never shoved down our throats for over a year. Welcome to Never Never Land. Bernheim and his despicable client jumped on our bandwagon like they had been there all along in rabid support. No donations to the cause, of course. But we love ya, Mary, go get 'em.
And Blair. Good old Aptly Named Dick. There was no way he wanted to ever revisit a year long power play to trumpet an offer that was exposed as absurd and have it, and his failure to jam it through, rubbed in his face like a, well, like a nice hot Blueberry Pie, which was known to provide protection against degenerative brain diseases and actually would have been good for him to eat, spiritually and physically. Much better for him than Crow.
No, Dick had a much more significant topic to discuss with the judge now.
His pay check.
He was DONE.
It was time for the "nice chunk of change."
Wondrous Larry Bernheim, after a year of lawyer diddling, had succeeded in pushing the VistaSource debt collection through a few papers and systems and they finally signed off and agreed to pay us the $120,000 they owed.
It had taken almost two years for the combined incompetence/plain old gouging of both Blair and Bernheim to accomplish a simple debt collection matter that Mary or I or Dwan or all three of us together could have accomplished with ease. At no cost to any of us. Two years from that fateful day we had walked out of Blair's office with a sinking feeling that his Receivership intended to thwart the court ruling and wipe us out. As it had. As he had. Two years after Mary had the deal almost done, but was ordered by Blair to cease and desist because, in his fateful and evil words, it was "his money."
Yes, indeedy weedy, it sure was.
The serious coins were now at last right there on the table for attorney hands to grovel over. This cab ride was at an end. All Bar heads to the till. Stand aside or be trampled.
Bernheim reached in first and took his 20% off the top.
His client, my dear absconded friend Kevin Dwan, should have ruefully noted by now that his association with Bernheim and the disastrous counsel provided by Bernheim was certainly turning out well for Larry. If not for himself.
And now, at long last, after two years of strenuous failure and incompetence and repugnant ethics and sabotaging and virtual inaction and playing dumb, the consummate Dickster presented his Time Card. He had failed to collect from VistaSource and he had failed to stop the Audit and he had failed to disburse any royalties. The only thing he had succeeded in doing over the two years of his Receivership was turning a secretary's marginal task into a full-blown windfall for the Dick Blair bank account.
Included, of course, were the various and copious attorney gouges for "Reviewing Status." This was an attorney concept of viewing their brains as batteries that needed to be recharged out of their client's wallets at various intervals to keep said brains from simply forgetting what the hell they had already done and learned about the client's case. Continually charging for no work and no progress. Simply to remain current. Up to date. On the job. Remembering, without secretarial assistance, what the hell the client's name was.
But Dick was not one to confine himself to standard gouges, of which there were a "significant" amount. No, Dick was bold. Dick actually had entries on his Time Card for "Thinking." I kid you not.
Did Dick consider this an additional function of his brain? Something only highly skilled $350 an hour lawyers had developed? Did this ancient art occur at a desk? In the shower? Mowing the back yard? Fully clothed?
What was he doing when he was actually doing? Was the thinking turned off? Scary.
The sum total of all this sinister Time Card bloating was nearly $70,000! The cost of the original year long court trial itself! The unbelievable gall of this miserable, foul smelling, oil spill, wild life poisoning little huckster. Hey Dick! Bend over and look around and upward between your legs for a vivid view of the essential you.
Let's see. $70,000 for Dick. $24,000 for Larry. Out of $120,000 from VistaSource. A small tasteful $94,000 for the venerable esquire thieves and a whopping $26,000 left for myself and Dwan, the owners of the collectible debt, to split. Some day, that is. Not now. Only attorney disbursements occurred now. Disbursements to Dwan and myself did not occur until nine months later in May of 2006. After two more court sessions, two more Judge's rulings, and countless attorney emails back and forth attempting to grapple with the enormous concept of a 50/50 split of the remaining money.
After every last nickel that could be squeezed out of the case of Beigel vs Dwan had been layered like a frosted smile across the top of Dick Blair's massive cake.
What a job, attorney boys. What a masterful job. Hey, Dwan! All that intercession you panted after Blair for. That produced ABSOLUTELY NOTHING. Are you getting a clue yet? Is the light filtering into the long lost city between your ears?
Were there any embarrassed sentiments from Dick and Larry over the Net to Clients? Not even a whisper. Not so much as a tiny flush of red around the gills. After all, there was money lying there on the table. It was their Divine Right to reach in and fistful it into their suitcases.
Lord. I know Mary wouldn't question You about this ugly fact of life. And I'm not either, actually. I would, however, really like a Saia-like Hint from You of absolute assurance that THIS KIND OF HORSE PUCKY GETS PUNISHED IN THE HEREAFTER. WITH GUSTO. LOTS OF IT. WADS AND WADS OF IT. Thank you. Best Regards, Me. The kid you caused. Remember?
Oh verily I say unto thee unsuspecting seeker of justice through lawyers and legal thoroughfares: THINK TWICE. Give your outrage and anger a chance to subside. Remember that dinosaurs lived for 260 million years and nobody wonders one whit about which of them stepped on whom's head.
Then THINK TWICE AGAIN. Seriously consider just eating shit and moving on.
AND AGAIN ONCE MORE.
It is an Unclean Land. Full of Unclean Hands.
And once you step through the door to it, there is no way back. For there is no back to return to.
Watching Blair and Bernheim enrich themselves at our expense was pretty disgusting. But digesting the Plante Moran audit was even more so.
"I still don't understand the MRO.com Intermarket thing," I mentioned to Mary one morning. "Mark Robinson doesn't find any evidence of it on his first pass at Arbortext's books, then we fax him our evidence of it, then he finds one example. MRO. Was it always there and he missed it? Or did Arbortext stick it in there so he could trivialize our evidence? Like they've got two sets of books."
"I don't know. It's a red herring. What he said about it is pretty ridiculous, too. Where is his audit? I need to read it again."
After a brief search, it was located on the floor underneath the dinette table. Our filing system in the Rhinoceros Palace was a wee bit less organized than it had once been while living in an actual home with an actual office.
Mary paged through the audit and then read the first MRO reference:
E-Catalog (a.k.a. Intermarket), as well as the Arbortext Site License and the Arbortext Site License maintenance, relate to Arbortext's August 2000 Application Development & Software License Agreement with MRO.com (WP-10). Arbortext was developing a product called Content Manager by extending the functionality of Arbortext programs and integrating them with MRO's Intermat product. Soon after the agreement and some licensing of software to MRO in September 2000, the joint development effort was abandoned. The total revenue that Arbortext received that was related to E-Catalog and Site License was obtained from MRO.com (refer to Exhibit D for amounts).
"So," Mary said, "he admits there is an E-Catalog/Intermarket, just like Zoltan Gombosi says on his resume, but he shrinks all the other evidence of Intermarket that's all over the web and the $4,000,000 Gombosi mentions this product hauled in and explains it all by this one and only one contract with MRO. Is that preposterous or what?"
"That's the word Jim Sterken used when we first complained about missing sales. Right before a whole year of them magically turned up in their records."
"Look at his concluding sentence. He states any and all revenue relating to E-Catalog is solely obtained from this MRO relationship. Now look at his Exhibit D for the amounts. There's $100,000 for an E-Catalog Application License and $417,643 for a Site License. Those are Arbortext products! MRO got billed for purchasing them. And Robinson says 'some licensing of software' like it's a couple of bucks. We're talking over a half million dollars here. Then he says the 'joint development' was abandoned, like that's all to that story. Implying no other companies bought Intermarket and the Intermarket product was abandoned. Only the joint relationship with MRO was abandoned. The joint development was not to create Intermarket, it was to integrate Intermarket into MRO's Intermat product. But not before they paid over half a million to Arbortext for Arbortext products, i.e., E-Catalog. What's really bizarre is that, according to Robinson's Exhibit D, this supposedly abandoned development continued to generate revenue to Arbortext in 2001, 2002, 2003, and 2004. Mostly from Partnership fees and Maintenance fees. Meaning MRO continued to pay Arbortext for these Licenses, this supposedly abandoned relationship. There's even a Maintenance Initial in 2002. And a couple of Technology Partner fees and Maintenance in 2002, 2003, and 2004. MRO is continuing to pay Arbortext for its software right up to the audit! Four years after Robinson says the whole thing's canceled. The joint development might be abandoned, but the customer – MRO – is still paying for Arbortext software licenses. It even says on the Exhibit that E3 Standard Option/PWDO is included. That means our technology, Interchange, is included! Yet Robinson has the gall to profess ignorance about what was in a Site License. Look at your own exhibit Robinson! (See page 18, Exhibit R, the Plante Moran Audit) E-Catalog is still listed as an active SKU product license! In 2005. How can Robinson ignore this?"
"Robinson also doesn't mention that Karen Sharplin initially said that E-Catalog and Intermarket were never developed and never sold. Which was a lie and he knows it."
"This audit gets worse every time I look at it. Robinson is bending over backwards to cover up this whole thing. His report never mentioned the clear and convincing evidence we gave him regarding this product. It was one of the main things we stressed to him and he never addressed it! Worse, he tries to erase it."
"Even after he found it."
"Even then. 'It is unclear as to what software components are contained in E-Catalog or are part of a Site License.' What utter nonsense. Look at the invoices, look at the product descriptions. What is he doing in there auditing them if he can't even say what the heck is in a site license? Look at your own Exhibit, Mr. Robinson. There's a line called 'Partner Program Marketing Fee – Consulting' with payments for this consulting in 2002, 2003, and 2004. How can Arbortext be getting money for consultation from an abandoned joint development relationship? Everything Robinson says is refuted by his own evidence. Incredible."
"I bet Kessler International wouldn't come back with some lame ass report like that. It's total bullshit."
"That's why Peralta wouldn't let Kessler come in for the audit. Kessler would actually DO one."
"If Dick Blair had simply done his job, which the Judge told him to do, Peralta could never have kept Kessler out. This whole nightmare is directly Dick Blair's fault. So, what are we going to do about Arbortext now?"
"I've got a call into Claudia. We'll see what she advises."
After conferencing with Mary and I, she decided it was time to send a Demand Letter to Arbortext. For payment. Of $750,000. To Blueberry. A greatly understated, but gentlemanly amount.
The meat and potatoes of her Demand Letter were provided by Mary. She was the only one who truly understood what the Audit had revealed and what it had hidden. And the only one who could do the math. And had the evidence. Three and a half years of her research and Internet sleuthing were finally ready to be officially presented.
And so satteth Mary down. On the RV couch at her laptop perched atop a long, narrow card table (Kmart green, for you color aficionados – the obligatory one wobbly leg), coffee mugs all around, Life Channel movies murmuring in the background, papers of evidence piled high hither and yon to the left and right and on the floor and up in the cabinets and over in the bedroom closet and under the bed and out in the tool shed and across the lane in the trunk of the car and beyond the park to the storage rental space – to compose her J'Accuse!
Mr. Me's contribution to this opus? Executive Assistant. In charge of fetching, feeding, cleaning, shopping, sounding boarding, commiserating, encouraging, swatting flies and stepping on spiders, getting out of the damn way, and any other type of action that contributed to her humming along the road to completion.
So this is what it's like to be a lowly, unsung, housewife, I mused. It has an anonymous comfort to it, I suppose. Not much plotting or conniving involved. Steady, meaningful work. Very brief moments of satisfaction. Very brief. Lots of room for day dreaming. It was definitely not as enjoyable as being a useless male asshole, but I think I could learn to live with it, if such should become my fate.
When Mary had completed her work, she emailed it, along with pages and pages of evidence, to Claudia. Who then organized and composed it in legalese, attached all Mary's evidence as exhibits, and mailed it to Peralta.
We high fived and sat down to wait.
Was this the Moment? Was this the Day? Was this the Time? Today? That Greatest Moment of Them All?
Nay. Nope. Nada. Nyet. Non. Nae. Nein und abermals nein! Fuhgeddaboudit!
When Claudia informed us that she had received a response to her Demand Letter, there appeared a new wrinkle in our inkle.
The response came from Parametric Technology, not Arbortext. The entire cast of evil, sneaking, entrails dwelling Arbortext characters we had learned so much about and grown to loathe so passionately had disappeared out the back door, wallets stuffed to overflowing.
In their stead was one person at Parametric. Paul Cimino. Parametric's corporate counsel.
His response foreshadowed by a couple of years O.J.'s book proposal idea of If I Did It. In Cimino's case, it was "If We're Guilty . . ., so what? It all washes out if Blueberry accepts, ta da, a pay off of $100,000."
See Exhibit S for Claudia Rast's Demand Letter to Arbortext.
See Exhibit T for a picture of my brains splattered against the RV wall. Just kidding! Exhibit T is still available for use in a later chapter.
Wherefore Comes the Behemoth from out of the East.
Goliath on Steroids.
When Mary and I first learned that Arbortext had been acquired by Parametric Technology, we had an initial hopeful reaction. Maybe this was good. Maybe they would just pay us honestly. Maybe they were different. Maybe they were so big they didn't really give a hoot about a few hundred thousand one way or the other.
Proving we had learned very little from our association with Arbortext and Applix/VistaSource/Parallax (and Corel Corporation, the vendors of WordPerfect, but that's another story of corporate thievery – one at a time here) about American Corporate Policy. Which was, resoundingly and without qualification, Eff You Peanutsville. The laws and the truth be damned. Contract-schmontract. That's why we have ten thousand lawyers on call at all times. Whom we'd rather pay than you. Even if litigation costs more than the bill owed.
It's the principle of the thing, you see. We're important and you're not. And we never, ever miss a chance to pound that into a small potato's skull. It makes us feel Superior.
Parametric was different, for sure. But only in style. Where Arbortext concocted lies and accounting records, Parametric simply ignored us. Where Arbortext provided elaborate royalty reports that were utterly false, Parametric changed the entire format and provided reports that were undecipherable, with wholly new product names. Albeit not so undecipherable that it could hide the fact that maintenance royalties were still not forthcoming, despite Mark Robinson's audit conclusions. Where Arbortext had names and faces, Parametric was pure Amoeba. The Anonymous Blob.
Claudia Rast's phone calls and emails in an attempt to further discuss her Demand Letter to Arbortext were so much fodder for the ozone layer.
Not clever enough for the eagle eyes of Mary Tarantino, however. The big old Blob secreted an interesting bit of slime. Names and Faces pay attention to detail and make small mistakes like Joyce Svechota's $464 editing error that had opened up the whole can of worms. Big Old Blobs make whopping errors from lack of attention to, or concern for, the details.
One error was quite pleasant for us. They apparently weren't aware of Dick Blair and his Receivership and sent their royalty report and the accompanying royalty check to us, not him. The first royalty income we had received in two and a half years. Dick Blair had either lost his "thinking" cap or stopped caring now that he had gotten paid or actually accepted the Judge's directive that all future royalties should go to us until we matched up with Dwan's disbursements from the sale of our home. Whatever. We did not seek out the answer. Straight to our poor emaciated bank account we flew, endorsement signatures firmly scribbled on the back side of the check. Dinner and the movies, darling? Why yes, I believe that would be fine.
The other error was quite revealing. Parametric's second royalty report, delivered in January of 2006, included royalties for an Arbortext product called Epic Architect. A fairly goodly amount of royalties. Blueberry, that is Mary, was most certainly aware of this product. It had existed from the very beginning of the contract in July of 2000. Arbortext had never reported any royalties for it, however, and even Mary did not associate it with Blueberry's technology. I won't speculate whether Asleep At The Wheel was aware of it. That would be a cruelty to animals violation.
Astoundingly, Parametric had casually and voluntarily plopped into Blueberry's lap clear and convincing evidence of five and a half years of Arbortext thievery. Whoops. Excuse me. Breach of Contract. Unjust Enrichment. Fiduciary Misconduct. Fraud.
Jim Sterken could not possibly have advised Parametric to include what he had not, so it seemed that Parametric had deduced Blueberry's royalties for this product from simply reading the contract and then ascertaining what Arbortext products included our technology. A deducement that had eluded Mark Robinson completely during his strenuous forensing. Parametric was unaware that Architect was on the Arbortext hush-hush list. The list that also contained Intermarket.
How would they know about this subterranean list? After all, in the acquisition agreement, dutifully reported to the Securities and Exchange Commission and Parametric's stockholders, Arbortext had provided warranties and covenants that they were clean and that there were no disputes of a litigable nature anywhere in their known universe that could possibly impact Parametric. This despite the Acquisition being negotiated while Blueberry was seeking to verify its long running complaint of Arbortext misconduct, and signed shortly after Blueberry's audit was completed, and the ink on the acquisition agreement not even dry before Parametric received Blueberry's Demand Letter.
In other words, Arbortext's warranties and covenants were total bunk and Parametric Technology's stockholders had been gouged $194,000,000 of company cash for a crooked company with a false and inflated revenue picture.
Parametric was no dummy, though. It probably didn't take any rocket scientist on their staff to recognize fairly quickly that Jim Sterken was a shifty-eyed scumbag with a very dirty closet. So the agreement contained a Provision (perhaps these were just ordinary acquisition type dealiebobs that people in the know knew and people like Blueberry didn't) that $19,000,000 of the acquisition price would be set aside in an insurance holding tank to pay for any unexpected surprises like an IRS tax deficit or a discovery that the covenants and warranties were incredible horseradish.
Parametric was covered no matter which way the cookie crumbled.
Parametric did take the precaution of informing its stockholders, in their January 2006 report about the Acquisition, that a potential royalty dispute could add further to the Acquisition price tag. This information was spewed forth on page 86 of their report, where eagle-eye Mary discovered it.
Blueberry was not mentioned by name, of course. And none of the multitude of stockholders apparently inquired as to who exactly would be disputing royalties and for what amount. And why. At least, no one contacted Blueberry for this information.
Technically, the Acquisition was yet another breach of Arbortext's contract with Blueberry. Which required that each contracting party inform the other in the event of a change in ownership. Which Blueberry had done when Dwan was expunged, but Arbortext had not when Parametric gobbled them up.
Contract disobedience was, by now, a given with Arbortext. To them, this document was primarily a legal maneuver to steal all of Blueberry's source code and turn a lousy product into a profitable one. They enforced all provisions which obligated Blueberry and ignored or abused any that pertained to them. Contracts, as we were sadly learning, were worthless without the means of enforcing them. Which Arbortext, and now Parametric, had and Blueberry did not.
"Get it in writing" was an American myth. Writing did little more than provide fodder for attorneys to wrangle over in exchange for wads of money. This is probably why legal papers are not written in English, which can be parsed for grammar and understanding. The term "Legalese" is not a joke which refers to someone who has no concept of the English language and its proper use and should never have been given a high school diploma. No, legalese is a purposeful bastardization of language solely intended to destroy centuries of human effort to achieve communication and understanding, for the sole purpose of making lawyers rich, and powerful people immune from prosecution while subjecting unpowerful people to it.
This fact is not taught in school. What is taught is that we have a Legal System which exists to provide Justice. This is utter hogwash. We have a Legal System to keep the Rich rich and secure and the Poor poor and insecure. Pure and simple.
And when too many poor people get perilously close to joining the rich, we have the Stock Market and Prime Rate adjustments to wipe them back out to poor.
Too simplistic? Fine, muddle your head with the Wall Street Journal and Congressional Hearings and Federal Reserve Reports and all that ilk of doubletalk and have a ball being erudite and sophisticated. While they steal you blind and keep you right where you are – or lower.
"What are you doing?" Mary remarked, looking over my shoulder as the sweat dripped off my forehead onto the keyboard.
"Ranting," I responded.
"Are you crazy? Snap out of it."
Grouse. Grouse. Okay, I take it all back. Grumble. America is wonderful. The greatest country in the world. Full of honest, hard working, decent law abiding citizens with a splendid government of the people, by the people, and for the people.
Except in Ann Arbor, Michigan, Walnut Creek, California, and Cambridge, Massachusetts. The nesting locales of Arbortext, Plante Moran, Dick Blair, and Parametric Technology.
No offense to any normal people who may live in those vicinities.
Grrrruff, grrrrruff. Grrrrrrrrrrrrrrrrrrr.
Mary and I sat down to have the Big Talk.
It was February of 2006. Parametric had clearly drawn the curtains on any further discussions. Eff You, Peanutsville, loud and clear. The ball was in our court. Fish or cut bait. Sink or swim. Pony up or shut up.
"I figured out why everyone keeps offering us $100,000," Mary said.
"It sounds a lot bigger than $99,999.99?"
"It's the largest amount that is acceptable as an expense that is not deemed to have a Material Effect on the company and its stockholders. Petty cash limit, in other words. It doesn't have to be accounted for. In the stockholders' report."
"A Miscellaneous Expense?"
"Blueberry's petty cash limit is twenty-five dollars."
"I'm sure Parametric is aware of that. My brother Don says they know everything about us, all the way down to whether we use one ply or two ply toilet paper."
"Get serious, will you? We've got an important decision to make."
"You're right," I said. "Machete or shot gun. You're a Tarantino, by the way. How come you don't know any Mafiosos? We sure could use one."
"We have to either give up or file for Arbitration."
"So we file for Arbitration."
"We? I don't see you filling out any forms."
"Well, . . ."
"Or coming up with any money."
"Well, . . ."
"It'll cost us about ten grand to get the Arbitration process started. Six thousand for the fee and then we have to pay for the Arbitrator, too."
"I thought it was two thousand to file."
"That's for an expedited case and limited Discovery. Six thousand allows you to ask for more than $500,000 in awards. It's considered a Complex case then."
"And more Arbitrator money and more lawyer money."
"You're learning. And we don't have even two thousand, let alone ten. Just to get the process started. Who knows how much more it will cost to get it concluded."
"Where's the good news?"
"I'm not done with the bad. We also owe Claudia Rast $15,000. Which she has been nice enough not to hound us for. We have to pay her bill before we can ask any more help from her for the Arbitration process."
"I'll give Dweeble a call. I'm sure he'll offer to help."
"I said get serious."
"Twenty-five grand, huh. Wow. Well, there's the Disbursement money. Blair's got to hand it over some day."
"With him, you never know. He's not a well person."
"He's not Italian, though. Maybe we could break his kneecaps."
"That thirty-one thousand Disbursement money would get us in the Arbitration door. After paying Claudia, we'd have six grand left to our name."
"Well, thirty-one thousand ain't good for much else, is it?"
"You have a point. So, we use it for Arbitration. That brings up the next problem."
"How many more are there?"
"Lots. But only one that matters now. The remaining six thousand won't be enough to pay Claudia to handle the Arbitration. That means we have to do it ourselves. Little us against giant Parametric. Not good odds."
"You're forgetting one key point."
"And what would that be?"
"We don't have any other choice."
Mary got up and paced back and forth. She looked a little sweaty. I'd never seen this side of her before. She stopped in front of me.
"I can do this, right?"
"You can do it."
"You're going to help me, right?"
"You're sure I can do this?"
"You can do it, Mary. You're brilliant. Fearless. Eloquent. You'll whip their ass. Seven lawyers or twenty. It don't matter. You know this case better than anyone."
"I can't do this."
"Okay. We give up, then."
"I'm not giving up."
We looked at each other. Every now and then in life there was a moment that needed no words and no amount of words could convey what a simple look between two people who knew each other inside and out could express. Such a moment occurred now. And the only visible sign of communication was the two sad little smiles that emerged on our faces after a long, long journey down through the windows to our souls.
"Screw it," I said. "Let's beat these sonsabitches."
"We can do this," she said.
"We have to."
Claudia Rast was quite pleased with our payment of the severely overdue bill. She also graciously agreed to provide her legal expertise if and when we needed it during our self-representation efforts. For an additional two thousand dollar retainer. Fair enough.
Here we go again. Little legal beagles, jumping into the shark infested waters of the justice system to dog paddle our way to the promised land.
And so, in June of 2006, Mary and I prepared our Arbitration filing using our tried and true technique: She prepared and I waved pom poms. It was getting harder and harder to remember that I had once been a very bright boy and a useful member of society. Parts of society, anyway. Maybe not all of it. Some of it. A pretty small part. Still, it was a part. Okay, so it wasn't. Society was for ants and bees. I was a mountain goat. In my dreams. Probably, I was more like a mole – snerking around underground eating worms and making holes in the dirt that went everywhere and nowhere, biding my time till someone stuck a pitchfork through my neck and put an end to the disruptive mess.
These last few years my usefulness was certainly much, much diminished. Where I had once driven the car, now I was just a passenger. Gazing out the window at the scenery blurring by while someone else focused on the road ahead and the gas in the tank.
And a very strange thing was settling inside of me. With each new disaster came also, inexplicably, a growing sense of peace. A sense that I had driven as far as I could as long as I could as well as I could and was simply done being the driver. I had released control. I was eight years older than Mary and for the first time in our life it made a difference. She was younger, faster, fresher, smarter, tougher.
Blueberry was now more her company than mine. I was just the maintenance man now. She was the driver.
The last court session had closed the book on me and Kevin "The Worm" Dwan. Who had won and who had lost meant practically nothing to me any more. He was finally gone. That was all that mattered. Flushing this miserable turd from my life was a resounding relief. So long, Jerk. Have a good life. Any where else but in mine.
In July we finished our Arbitration filing and sent it off to Claudia for her expert attorney eyeballing. She gave it the okay. After all, according to the Arbitration Guidelines about all you had to do was say you had a beef and wanted it arbitrated. It wasn't necessary to lay out your whole case, like you would have to do if it was a court trial.
The filing was mostly a restatement of the Demand Letter we had sent the previous year. Mark Robinson's white washed, cover up Plante Moran Audit Report had severely crippled our ability to make the filing stronger with a direct accusation of the Accounting Fraud that was surely going on. We were confident, though, that this Fraud would be unearthed during the Discovery process of the Arbitration proceedings and the Cover Up, as well as the Fraud, would be exposed.
We had four thousand left at this point. Which would not be enough to pay for the entire Arbitration process. We would have to come up with additional money somewhere, somehow along the way. Something we had been doing for quite a long time now. One more journey into the unknown with our Have Faith bumper sticker stuck to the rear of our Hopemobile. If thirty-one thousand wasn't really much use for anything but the Arbitration, then four thousand that wouldn't be enough wasn't much use for anything either.
So we took a thousand of this remaining four and rented a four bedroom condo in North Lake Tahoe's Incline Village which was owned by a friend of Mary's who gave us a fabulously discounted deal on a week's rental.
All of Mary's six kids, two husbands, a couple of boy friends, and by now four grandchildren joined us for a week long vacation. For the first time in two years, the entire family was all together in one place at one time. And who knows how long it would be till the next time.
In early September of 2006, nearly five years in the making, we at long last filed for Arbitration against the Thieves of Arbortext/Parametric.
Paul Cimino, Parametric's corporate counsel who had refused to return any of Claudia's follow up phone calls during the past year, phoned us a few days after we filed our Arbitration papers.
Gee, that was easy.
He exchanged pleasantries with Mary and asked if she knew why he'd called. She said she did, that it was to check her out. See if she had any brains. Tee hee. Again he offered $100,000 to settle the matter. Mary again refused and informed him that our evidence indicated they owed much, much more. He said we'd never get any more. But if we were owed money, the Parametric stockholders would want him to pay us. Since these two sentiments were diametrically opposed statements, Mary responded by some exorbitant eye-ball rolling for my benefit. Scaled up lip spew.
A short time after the phone call, we were introduced to Lawyer Number Ten – oops, Eleven. I forgot to add Cimino to the list. Michael Palizzi was a Michigan lawyer whom Parametric hired to handle their side of the Arbitration case. He and Mary were introduced to each other in a phone call with Hannah Cook, the Arbitration Association representative who would be moderating our case.
The first order of business was picking an Arbitrator from a list provided by Ms. Cook. Each side was to select three and then come to agreement as to which one they could both settle on. A few days before the deadline for providing our selections, Palizzi phoned Mary and the two of them agreed, after very little discussion, on Mary's second choice, Kathryn J. Humphrey, to be the Arbitrator. She was a lawyer from the Michigan law firm of Dykema Gossett.
Hannah Cook had mentioned that each party could begin the Discovery process without waiting for the initial conference call with Humphrey. When Mary told Palizzi she would like to request Mark Robinson to send his Working Papers, however, Palizzi did not agree to this and said there would be plenty of time later.
Then Palizzi and Mary discussed the matter of having twins, which his wife had just done and Mary had already done quite a few years earlier. Mary gave him some parenting advice, which he thanked her for since he was tearing his hair out trying to keep up with the new found largesse in his family.
And so it came to pass that Lawyer Number Twelve entered our life in the form of Kathryn J. Humphrey. This fine upstanding Michigan attorney was submitted to Hannah Cook as the chosen Arbitrator for Blueberry vs Parametric, and the first telephone conference session among the parties was scheduled for the early days of February, 2007.
"Well," I remarked to Mary, "we did it. We finally did it. We've fought our way through Kevin Dwan, Larry Bernheim, Judge D. Lowell Jensen, Dick Blair, Jim Sterken, Joyce Svechota, Cherie Van Allen, Jim Haggarty, Ray Schiavone, Dave Peralta, and Mark Robinson. The only thing we have to worry about now is a crooked Arbitrator. She's the only ringer left in the deal."
"Please don't say that," Mary replied.
"She's going to be fair. This is her audition for becoming a real judge. She has no reason to do anything weird."
"That's what we thought about Mark Robinson and Plante Moran. What if they dangled the magic hundred grand in her face?"
"They wouldn't do that."
"They do it all the time. Judges are no different than politicians. They're all for sale. Easiest way to get justice is to buy it."
"You've been watching too many movies."
"That's what the Mafia always says. Before they're indicted."
"Great. Now you're going to tell me they'll put out a contract on us."
"I was thinking about checking out the price of Kevlar vests. But they'd probably shoot us in the forehead or blow up our car. No sense wasting money."
"Steve. Please. I'm going crazy. I'm already scared to death. Please stop."
"Okay. I'm sorry. Don't be scared, though. This case is pretty simple and you've proved they're crooks beyond a shadow of a doubt. Hell, they've proved it themselves by all their actions to thwart us from performing the audit. That's not the way honest people act. If this arbitrator can't see the truth, then she's just another crook herself. And I wouldn't be at all surprised if she is and that's how it turns out."
"Then why are we doing it?"
"Because it's the right thing to do. Life isn't about getting rich. It's about doing the right thing. You know that better than me."
She shook her head and smiled. "We've given them a hellava run for their money, haven't we?"
"Yes you have, Mary. Yes you have. And we're not through yet. When all is said and done, no matter what happens, you'll be proud of yourself. And so will I and so will your kids. The rest of these cockroaches will have to live with who they are and what they did. They'll be running for cover the rest of their lives every time the lights come on."
"More like running for their lawyers."
"Amen to that."
It was almost over.
How many times in the past five years had I had that thought only to see the end grow farther away, not closer. And the picture get murkier, not clearer. In some ways it was a microcosm of life, shoved down my throat resoundingly to close out my last five years in my fifties. The pursuit of Understanding and Wisdom, the chosen foundation that I had built my life upon, at the expense, if necessary, of any other worldly gain or achievement, seemed no closer to fulfillment now than it did the first time I put my hand in the fire and learned that it burned and it hurt.
Six months ago, I had turned sixty. Wow. No way around it. I was now an old man. A Senior Citizen. From here on out, I would be an irrelevant member of the bustling young world I had thrown my weight around in for oh so many years.
I had thought to cruise into this awesome plateau, absorbing it slowly as it neared, putting myself and my life into some sort of historical and philosophical perspective. Instead, it had swooshed in upon me, almost hidden amidst the most intense and brutal period of my entire life.
It was therefore fitting that the final hand of this awful game of fate would now at last be played.
I went outside when Mary got on the phone for the Arbitration conference call. I didn't want to screw her up with some goofball facial or bodily reactions.
Besides, the phone call would go faster if I wasn't listening in. It was like grass. If you watched it grow, it wouldn't. Or your favorite football team. If victory was improbable, it could only be achieved it you turned off the TV and didn't watch it happen.
It was a tip about life I would have passed on to my son if I'd had one. JohnPaul was my stepson, but step tips didn't work. They lacked the blood bond that could make a kid actually believe some total horse malarkey idea from his old man. Step kids always rolled their eyes at step tips. It had been kind of disappointing to me to find out that being a stepdad didn't carry any automatic powers that made a kid your own personal totally gullible disciple. It was probably a relief, though, too. He couldn't blame anything in his life on a misplaced trust in me.
Mary came outside after the phone call. She had a tossed salad face. I couldn't tell if there were too many carrots or not enough tomatoes.
She walked over and sat down next to me on the swing. It wasn't as good a swing as the one we had at Court Lane, but it was good enough. It was a swing. They were all good. Except the ones that were tires hanging from a tree limb by a rope. Those were torture chambers you stuffed fat kids into when you were feeling really mean.
She adjusted her legs four or five times, and stared off into space.
"Well?" I asked finally. Mary liked to make me sweat a little before delivering news. It was the cat in her. She liked to toy with my brain like it was a ball of yarn. It had taken me awhile to learn to be patient with my impatience. She was always happier after a little harmless toying around. And my brain didn't work any better or worse whether it was raveled or unraveled.
"It went okay, I think."
"Great. Did they apologize profusely and put the check in the mail?"
"Palizzi dropped all his counter claims and reduced it all to one. He wants Humphrey to dismiss the whole case since the one year statute of limitations in the contract has expired on our complaints."
"So Cimino's assurance that the stockholders would want Parametric to pay us if we were owed any money was a crock of beans. They don't even want to find out if they owe us anything. They just want to cover up the whole mess. No surprise there. The higher up you go in a company, the bigger the liar you'll find. There seems to be some sort of direct correlation between power and baloney."
"Palizzi even told Humphrey point blank he would appeal her decision if she ruled against him."
"He threatened her? Whoa. Did she give him the finger?"
"She was a little cheeky. She asked him what about the other nine points he had made in his filing. He stuttered around and said, well, you know. Right, she said. Then she said she wasn't born yesterday. She asked Palizzi if she granted his motion was he saying that there wouldn't be anything left to deal with. He said no. She sort of mused out loud that it could be argued that this was all an on going thing. I said that at least a year existed under the contract for us to have arbitrated, so how could the whole case be dismissed. I also reiterated that this was indeed an on going dispute, not a one time event several years ago. It happens every time they send us a Royalty Report."
"What'd Palizzi say to that?"
"He just kept saying, nope, nope, none. Pretty cocky."
"What happened to the nice guy with twins?"
"I guess that was off the record. He's just doing what Parametric wants him to do now. It's his job."
"Wonderful. Hi Mary one minute and erase you the next. Do these guys have an on/off switch for human versus ruthless mode? What did Humphrey decide?"
"She asked me if I understood what he was asking. I told her yes, he wanted to file a motion to dismiss the case and that I'd anticipated that this might happen. I said if he was going to do that, I would need to see the Plante Moran audit Working Papers from Mark Robinson in order to properly respond. I don't know where the inspiration for that came from. It just popped out of me."
"Didn't you and Palizzi already discuss getting those papers?"
"Yeah, but he refused to cooperate without the Arbitrator okaying it. Humphrey asked me if I thought Palizzi would be enlightened by the Working Papers. It was kind of a weird remark. I said I didn't know what was in them, so I couldn't say."
"What do you think is in them?"
"Hopefully, some explanation to the difference between what Robinson told me on the phone and what he wrote in his report. The 'significant discrepancies' between the Sales Database and the License Key database. Humphrey said she tended to agree with me and asked Palizzi what he thought. He started stammering like mad and said it might be boxes and boxes of stuff that would take forever to go through and it would cost his client a lot of money for his time."
"You've got to be kidding. He wants mercy for Parametric's poor billion dollar wallet?"
"Humphrey laughed at him and said she hardly thought it would be boxes and boxes. She okayed it, Steve. It was a huge win for me."
"I told you you'd do great."
"It's all so weird. We have a contract governed by Michigan law, using Michigan lawyers, and arbitrated in Michigan, and I'm not even a lawyer."
"And we're in a trailer park in California, roughly two thousand three hundred and thirty-seven miles from the scene of the crime."
"You've been MapQuesting, I see."
"Google Maps. I love that program. You can use the Satellite view and see our RV sitting here with cigarette smoke wafting out the window. If I could find out when the satellite photo gets taken, I could climb on the roof and bare ass the world."
"You would think of that. Thirty years ago, you'd have put a Peace sign up there."
"Ouch. You're right. I've been degraded by life."
"I don't think you can blame it on life."
"So what's the next step?"
"Palizzi gets two weeks to file his Motion to Dismiss. Then we get two weeks to file a reply and he gets two weeks to file a reply to our reply and two weeks later, on April 3rd, we have another phone conference and she announces her ruling."
"He gets two filings and we only get one?"
"That's the way it works."
"When do we get the audit Working Papers?"
"Right away. I'll send an email to Mark Robinson tomorrow."
"So if Humphrey denies Palizzi's Motion, he doesn't have any cross complaint left?"
"Yep. Nothing. The next step would be Discovery. We'd give her a list of all the things we want to examine and she'd decide how much of it to allow."
"Then what are you worried about?"
"What makes you think I'm worried?"
"You're talking too slow, there's a wrinkle over your eyebrow, and you're looking over my ear top when you speak."
"Your ear top?"
"Yeah. You know, past me. The old out of focus deal."
Mary laughed. "Okay Sherlock, you're right. I am worried. About Humphrey. How can she entertain a motion to dismiss the whole case, based on a clause in the contract when that same clause clearly gives us the right to arbitrate at least for a one year period. I guess I could have argued against allowing the motion, but that would have led to having to argue the technical points on the spot with Palizzi, which I might have botched without some legal help at my disposal. By allowing him to argue it in writing, I got Humphrey to okay me getting the Working Papers."
"Parametric is having the same fear of arbitration as Arbortext did of audits."
Mary changed the subject. "I ran across an advertisement for a PTC User World Event schedule the other day about the user group conference concerning Parametric and Arbortext. Sterken's partner Paul Grosso is a Doctor and still prominently around, even a featured speaker at the event, but Sterken was just lumped in with some other leftover Arbortext personel and did not appear to be a speaker of consequence."
"He's becoming de minimus."
"I'd say so. Actually, that's been happening since the venture capitalists broke out their wallets in 2000 and immediately replaced him as the CEO."
"Smart move. They've gone from a failing business to a big winner since that decision."
"Blueberry had something to do with that. And some creative bookkeeping."
"Let's hope the Arbitrator manages to grasp that."
Mark Robinson mailed us his Working Papers. Part of them, that is. After some delays caused by Palizzi dragging his feet over what Robinson could send us.
Palizzi presumed himself into the Arbitrator's chair and decided that Robinson couldn't send any privileged communications with Arbortext that were in his possession. Not without Palizzi going over them to decide if they could or could not be released. Sort of like a criminal's attorney getting to decide what evidence against his client the prosecutor could look at.
Robinson dutifully followed these "orders."
Mary and I briefly considered ratting on Palizzi to Humphrey, but decided it wasn't worth the effort. Our experience with Judge Jensen had taught us that judges didn't like being reminded of their orders and asked to please enforce them. It sometimes made them feel like adversely changing their orders out of spite.
It wasn't really necessary, either. What Robinson did send contained the Smoking Gun Mary was hoping would be there. Not one Gun, but several. I won't interrupt the action packed, death defying, throat clutching narrative at this point to pore over this evidence, however. It will all be discussed a bit later when we sit down to compose our response to Palizzi's Motion To Dismiss.
In the meantime, inkles began to lightly sprinkle down upon us that indicated the barometer was falling and fair weather might not be tomorrow's forecast.
The conference call with Humphrey occurred on February 6th, 2007. A Tuesday. On the following Monday, February 12th, we received an email from Hannah Cook which passed along to us a PDF letter from Humphrey which summarized the phone call. See Exhibit T.
The letter also informed us that we could amend our original filing claim if we wanted to. Apparently this was to make sure we got the same privilege as she had given Palizzi when he amended his own filing during the conference call. Getting the old fair and square deal. Due to Palizzi's delays, however, we had not yet received Robinson's Working Papers, so there was nothing new that we could add to our claim.
And there was a problem with the dates.
Humphrey's letter was dated February 7th. Which meant it was written by Humphrey, but not sent for five days. Or Hannah Cook didn't pass it along to us for five days. A mystery that would be no big deal were it not for the fact that we were given only until Tuesday February 13th to file this amended claim – the very next day. Giving us only five business days to make this filing was as fast as I had ever seen the court system work, but having only one day to effectively do it was beyond speedy and off into the realm of stinky winky.
Mary pointed out this sleight-of-hand to me and we sat down to ruefully examine our paranoia about whether we were dealing with a marked deck of cards or was this just the standard ineptitude that one could expect of the document processing sectors of American life.
"What difference does it make?" I asked. "You don't have to list your whole case in your filing anyway. Didn't you reserve the right to amend your complaint along the way depending on what we discovered?"
"I said it on the phone to Humphrey. She said she understood."
"So this is just a formality type thing."
"I'm not so sure. I didn't have the heart to tell you some of the things I've learned about Humphrey."
"Oh great. It can't be good then."
"I read an article she wrote advising companies of the difficulty in getting Summary Judgments in Arbitration to hold up on appeal. She advised that businesses put it directly into their contracts that both parties allow the arbitrator to wield this sort of power. It's a very aggressive pro-business stance."
"Not vendor friendly."
"And here she is, contemplating doing the very thing she says normally would likely get overturned on appeal. Of course, it takes money to file appeals and attorney knowledge to argue them. In her own attorney life at Dykema Gossett, she's had great success in reducing or eliminating huge liability claims against big corporate clients. Let me read you a short blurb on her work.
Mary did some Google magic and read:
She has successfully defended product liability claims concerning chemicals, natural gas, automobiles, trucks, general aviation aircraft, airline, executive jet and cargo aircraft, paper-making machinery and materials handling equipment.
Mary looked at me. "Pretty pro-corporate girl. Not consumer or environment friendly. And let me show you the article I just told you about. It's called "Eight Tips For Drafting Better Arbitration Clauses."
Mary Googled forward again and showed me the article. It is contained at the following link:
I will quote here section number two of her article:
2. How should dispositive legal questions be resolved? The arbitrators could be authorized to determine the equivalent of motions for summary judgment, but the award could be overturned because of the failure of the arbitrators to hear evidence that otherwise would be relevant to the claim or defense. If you believe that the ability to bring a dispositive motion would be useful, despite this risk, include in your arbitration agreement a sentence indicating that, for example, "the arbitrators may hear and determine any preliminary issue of law asserted by a party as dispositive, to the same extent that a court could hear and determine a motion for summary disposition.
"Shit," I said. "The fix is in. Remember I said the only ringer left would be the Arbitrator?"
"Don't remind me. I hate it when your pessimistic ideas come true. I'm not giving up on her just yet. She's an Arbitrator now, not an advocate for big business. She knows the difference between federal court rules and arbitration rules. I'm praying she'll just be fair. That's all I ask."
Fair. What a laugh. There was no such thing as "fair" in the legal dictionary. Fair was for the world of sports. And marriage. Playgrounds. Normal life. Probably Heaven. De minimus in the hallowed halls of justice. More like hollowed halls.
In the past seven years, we had seen Fair take a hellava beating. My ex-partner Dwan had started the slaughter seven years ago this very month. An eternity ago. Along the way we had seen our Blueberry business virtually destroyed, we had lost our home and were living in an RV, and all because we had resolutely and continuously insisted on Fair Play. Fair Play from Dwan – nada. Fair Play from Dick Blair – nada. Fair Play from Jim Sterken – nada. Fair Play from Dave Peralta – nada. Fair Play from Mark Robinson and Plante Moran – nada. And now, at the cost of everything we owned in life, one last attempt at Fair Play from Kathryn J. Humphrey. And right off the bat another NADA looming in our faces.
I looked across the room at Mary, who was back on the computer doing her dogged research. Man, what a trooper! She had been whipping the scoundrels at Arbortext and the scoundrels of Dwan/Bernheim/Blair for FIVE years now. Almost single handedly. And the more she whipped them, the dirtier they had to play to beat her. And they were probably going to beat her again. Because they could. They owned the casino and the dice were loaded, the table rigged, and the cards marked.
Well, old trooper girl, let's just whip them again anyway. One last time. Because we can.
Palizzi duly filed his Motion to Dismiss (see Exhibit U). It was seven pages long and made no real effort to dispute Blueberry's claims of Arbortext wrong doing. Its sole focus was that whether Blueberry had been cheated for seven years or not didn't matter, because Blueberry had waited too long to bring the dispute to Arbitration. The twelve month statute of limitations in the contract had expired on any and all of our complaints and our case was no longer arbitrable. In addition, Parametric requested reimbursement of costs and fees incurred in responding to our claims.
Waited too long. What a laugh. It wasn't waiting, Palizzi, it was being prevented from. By an endless procession of dirty tricks, lies, denials, and cover ups. In fact, both Paul Cimino and Palizzi pointed to Robinson's Plante Moran audit as a key component of repudiating Blueberry's claims. The audit that was an out and out Cover Up. One more Fraud in an ongoing stream of them.
Before we made our response to Palizzi's Motion, we needed to pay the Arbitration Association another $4,600. We had paid them $6,000 back in September of 2006 for the Initial Administation Fee. Now we had to come up with another $2,500 for a Case Service Fee, plus $2,100 for our portion of the Neutral Compensation Deposit – the Arbitrator's fee covering 15 hours of Study.
Arbitration was touted to be less expensive than filing a law suit and going to Court, but initially that was entirely a false tout. It cost less than $500 to file a law suit. Sometimes, that's all it took to grease the Settlement gears. That had, in fact, occurred for us in our Copyright Infringement suit against Corel, which I did not include here in this particular rape of Blueberry tale. As I mentioned earlier, one rape at a time.
So, at least initially, this less expensive toutedness was out-and-out bullshit. It was costing us $10,600 just to start the Arbitration case!
Mary and I had come to the conclusion that any contracts we signed with companies in the future would not under any circumstances contain the innocuous Binding Arbitration feature. What a rip-off! Got a complaint about the contract? No problemo. Cough up a mere $10,000 and you can get it discussed. All contractual complaints with a value of less than $10,000 are more cost effective to just eat it with spoons. Nice little buffer for cheating companies like Arbortext to work with.
At any rate, $4,600 due and payable. Our bank balance indicated we were about $4,252.39 shy. Roughly speaking.
To get this far, we had already borrowed money from virtually every known member of either of our Family Trees, even an ex-member of the Tree. We had paid them all back, true, but asking to borrow yet again was not exactly thrilling the hell out of either Mary or me.
Humble Pie was growing quite stale as a constant menu item in our lives. From whence would come the next stale slice?
Mary and I now had two weeks to write the most important document we had ever attempted to write – legally speaking.
We were aided somewhat by two events. One which occurred while we awaited Palizzi's Motion To Dismiss, and one which occurred as we began to write our response.
The first event involved money. More precisely, the lack of it. What's new?
While we were in the midst of ignoring thinking about not having enough of it to finish the Arbitration case, Mary looked up from her computer one morning and said, "I just got an email from somebody who wants to buy our Domain Name."
"Which one?" I asked.
We had two. Blueberrysoftware.com, which we had purchased following Dwan's theft of the Blueberry.com name which was located at our Blueberry web site. You may recall from the Beigel vs Dwan trial, that a value of $20,000 was placed on the Blueberry.com domain name and I had been ordered to pay Dwan $10,000 for his share of that value as the name then became owned entirely by me. Blueberry now had both domain names parked on each other at our one web site.
"Blueberry.com. They are offering $40,000. I did some research a while ago and a company that appraises the value of domain names said blueberry.com was worth between $79,500 and $94,000. Amazing, huh?"
"You're kidding. Is it a serious offer?"
"Sure looks that way. It's from an Ashley Saddul at ImpressiveDomains.com."
"Jeez. We've had blueberry.com for a long, long time. It goes way back to the early nineties – maybe even the late eighties. That's how people have been reaching us for years."
"They reach us through our web site mostly. That's all blueberrysoftware.com now. I don't think losing the other one will hurt us."
"I suppose it's a moot point," I said. "We sure need that money. Even if it's worth twice that much down the road."
"It's an answered prayer. I'm going to call her and accept it."
I knew what Mary's prayers were like. They were direct to Jesus. Please help us, if that is Your will for us. Mine? I was never sure if it could be called praying when I wandered around inside my skull screaming, "What are we gonna do? We're dying here. Five years down the drain because we can't pay the Arbitrator. Somewhere, somehow, something's got to happen or we're dead. Aaaarrrrggghhh!!!"
Mary whirl-winded into the phone and after a few days of haggling, posturing, doing the Jump Up/Jump Down tango, and running some careful bluffs, she got Ms. Saddul to bump the offer up to $44,000. Which covered her commission and left us with the original offer of $40,000. It seemed so much bigger than $36,000. And I guess an extra four grand to two broke bums was indeed a lot bigger.
Answered prayer, indeed. We're alive!
Not only alive, but a bit beyond that. Enough so to look around at our meager and depressing dwelling accommodations in the RV and make a fairly quick decision to temporarily move ourselves and all our files and equipment to a far more spacious room at a nearby Best Western Heritage Inn, where we could concentrate on the task at hand of replying to Palizzi's Motion.
The room was quite spacious – compared to our RV. About three times more so. It felt like we'd moved into a palace. It even had a full sized tub with Jacuzzi jets. Heavenly! There were two queen size beds and we used one of them to spread out all our papers and evidence. There was a Starbucks down the street, but the complimentary coffee was pretty good, too. And free. Along with the ample breakfast buffet and equally ample evening buffet. What a joint!
We signed up for the weekly rate and settled in for two weeks of some serious fake lawyering.
Our first action was to send Palizzi's Motion to Claudia Rast for her opinion. Then we spent a couple of days freaking out. The only thing we knew regarding this one year liability limitation in the contract was what every lawyer we'd talked to had said: it's an on going fraud, not a one time contract dispute. A crime. But how the heck do we write about this in a legal fashion? What was the appropriate mumbo jumbo needed for the pompous zoo of wherefores and prithees. On Going wasn't mentioned much anywhere on the web as a legal term. It sounded too much like ordinary English. Not enough blohungusinebriatrocity.
Then came event number two. Claudia provided not only the proper legal terms, but some court cases to cite in support of them. The terms were Fraudulent Concealment and Fraudulent Misrepresentation. Talk about relief! These two terms perfectly described the entire history of the contract between Arbortext and Blueberry. To a TEE. Since Fraud was involved, and it had just now been provably discovered in Arbitration, the statute of limitations in the contract would be, as the lawyers say, tolled.
The first Fraudulent Concealment occurred during and after the contract signing itself when the product Intermarket/E-Catalog was being concurrently developed by Zoltan Gombosi and his team of eleven programmers. This product, which included our technology, was not listed on Appendix B of the Blueberry/Arbortext contract, though Arbortext knew full well that it was a qualifying Arbortext Covered Product. In addition, none of its sales (nearly $4,000,000 according to Gombosi's Resume) were ever reported to Blueberry, or its existence even admitted – indeed its existence, despite overwhelming evidence to the contrary, was and is still denied. Concealed. During the history of the contract, Arbortext had made the concealment of qualifying royalty sales practically an evil art form. We had caught them at some of the concealed sales, but there were still many more occurring with each and every royalty report.
If you have any doubts about Intermarket's existence, click here. Use the PgDn key to quickly go to Page 21. The remaining fourteen pages are all about Intermarket, including screenshots of a functioning software product – a fully developed product. Wherever you see the words Framemaker, MS Word, and Interleaf – that refers to Blueberry's conversion technology. The question remains to this day: what happened to the $4,000,000 this product generated? During its never developed and never sold and never reported existence. Isn't anyone but Blueberry concerned about this missing money? Is four million dollars some sort of slop error factor these days? Chump change. The financials are accurate plus or minus four million, give or take, around that much, sort of close. Is there a new CPA system in the country with elephantine elastic bottom line figures?
The first Fraudulent Misrepresentation occurred in September of 2000 – two months after the contract had been signed. This Misrepresentation was made by none other than Jim "Paddle Ball" Sterken. Who else? The Mastermind of the Fraud performing his duty of deception and thievery.
I have not devoted any previous verbiage to this event for fear of muddling up the narrative of an already seriously muddled story. This event, however, stalked the entire history of the Blueberry/Arbortext contract. And its time on the stage has now arrived.
Sterken attempted, via a phone call and subsequent email to Kevin Dwan, to rewrite the contract, more favorably to Arbortext than it already was, scarcely two months after the initial signing. Kevin Dwan, utterly asleep at the wheel, but also completely duped by Sterken's statements, agreed via email to this new royalty accounting proposal. See our Exhibit R (the Plante Moran Audit), "Appendix C". I'll quote the relevant portions here:
Rather than configure the Interchange capability (which makes use of your Blueberry technology) as a $10,000 optional module of E3 (Epic E-Content Engine), our new plan is to bundle it into E3 by default and allow customers to delete it if they don't want the capability.
In the new configuration, E3 will sell for $50,000. If the customer chooses to delete the Interchange capability, then we will charge them $40,000.
So, for each E3 that the customer chooses not to delete the Interchange capability, we will credit you with a $10,000 Interchange sale and pay you a royalty against the $10,000 . . .
This email achieved an 80% reduction in Blueberry royalties since Blueberry, per the original contract, was slated to be paid a percentage of the entire E3 product we were incorporated into ($50,000), as opposed to a percentage of one-fifth of the entire sale ($10,000). Essentially a percentage of our own technology, not a percentage of the Arbortext incorporated product.
There is a Fraudulent Misrepresentation problem with this email that helps explain why Dwan would agree to this ridiculous 80% lessening of royalties. Sterken lies to Kevin Dwan about the E3 product and its configuration vis a vis Interchange. He claims that Interchange is a $10,000 optional module of E3 that they will now "bundle it into E3 by default." Yes, it's listed as an option – but no price for it is ever listed. Yet up to the point of this phone call with Dwan, all E3 sales have Interchange already bundled into them. In fact, no line item on any Invoice has yet broken out the three components of E3 (Web, Print, Interchange). That comes later as Arbortext invents and evolves its Invoicing schemes in ways to limit Blueberry's royalties, and all based on this email.
It is this email that they begin to use in lieu of the contract language as a percentage based system of Interchange value rather than Interchange incorporation to reduce Blueberry's royalties. It is evident from Dwan's acceptance of this email that he had been duped by Sterken into believing E3 customers had to request the Interchange module be included in their purchase and that most customers did not make this request, and it would be to Blueberry's benefit that each customer have to request OUT and not IN, which would be taking advantage of the customer's carelessness or ignorance or laziness. Not only was this false, in that all E3 sales contained this module, but this request was not possible either, since as we have seen earlier from Arbortext's Internal Price Guide, Interchange was never to be mentioned as an option to either customers or resellers. Impossible to opt in or out when you are unaware of that an option exists.
My own view of why Sterken felt this slight of hand was necessary is that the Intermarket product's great initial success in pre-sales, combined with the failure of Bob Brueck, at the contract signing, to get Dwan and me to agree to be purchased for $400,000 left Arbortext in a quandary.
I don't believe Sterken ever thought the contract would be significant or that he would have to pay any royalties to Blueberry because he thought Dwan and I would accept being purchased. After all, Dwan already had accepted the offer before we even signed the contract. But when I did not go for the buy out offer, the contract suddenly had lucrative value to Blueberry. Not only would Arbortext be forced to pay large sums of royalties to Blueberry, but these sums would also provide all the funds needed for Blueberry to proceed to further develop its own product by adding XML and PDF import/export capability and in a very short time be capable of directly competing with Arbortext's Interchange product, both products essentially consisting of Blueberry's technology. Since Blueberry sold its product for $189 and Arbortext sold the more limited Epic Editor Interchange product for $1,200 (or the exact same capability on the E3 server edition for $50,000), Sterken's concerns were real that we would end up snaring some of the very market he hoped to exploit and gouge. A healthy Blueberry was anathema to Sterken and to Arbortext's Epic software.
I was not privy to the phone conversation between Sterken and Dwan and merely cced on Dwan's affirmative response. It wasn't until Mary took over Dwan's former duties and began unearthing Arbortext's fraudulent activities that this email's impact, and its misinformation, became apparent to me.
And this email vividly demonstrates yet again that Arbortext would not adhere to a contract whenever and however they choose to ignore it. Because they did not adhere to the email agreement either!
As can be seen in Exhibit B, Arbortext began by reporting zero royalty sales to Blueberry, then (after a Blueberry complaint from Dwan) changed that to a portion of royalty sales, and later, after a Blueberry complaint from Mary in 2002, changed the changed portion to report an even greater proportion of sales. The sales that were reported during this fraudulent behavior seemed to adhere to the email in that Blueberry was credited on some E3 sales with $10,000, as was promised in the email.
In the July 2002 report, however, when Arbortext decided to punish Blueberry for discovering that they were cheaters and forcing Sterken to admit it (see Exhibit D), the $10,000 guarantee from the email was mostly erased from their royalty reports – for the entire past and future. See Exhibit C. Replaced by an entirely new tortured concept of percentages, concocted from the email's actual values, that now included applying discounts to Blueberry's already 80% reduced royalties. For this new system of reporting, Arbortext didn't even bother with the sham of contracts and email agreements – they simply imposed it.
There was a legal problem, however, with this email. The clear language in the original contract mandated that any amendments to the contract had to be made in writing, with signatures from both parties. No such signatures were ever obtained from Blueberry or provided by Arbortext. Thus, legally speaking, the email agreement was invalid. So was the new system set up unilaterally by Arbortext in July 2002. The only valid contract was the one Blueberry and Arbortext had jointly signed in July of 2000. Which had never once in seven years of royalty reports been adhered to.
So, from the very beginning of the contract, we have Arbortext employing Fraudulent Concealment and Fraudulent Misrepresentation. These two illegalities permeated the entire history of the Blueberry/Arbortext relationship. Indeed, Palizzi's Response to our Response to his Motion To Dismiss would still repeat the denial that the Intermarket product had ever been developed or sold. A claim that was blatantly, criminally, false.
But the Fraudulent Concealment and Misrepresentation reached epic new heights during the Plante Moran audit, as Mary and I discovered while examining Mark Robinson's Working Papers. Which we will discuss in the next chapter, The Smoking Gun.
It was now up to us to write our response to Parametric's Motion To Dismiss, using these two legal concepts as a basis for denying the motion.
Before we started, we walked down the street to a Starbucks for a cup of coffee. All great and terrifying enterprises should begin with a reasonably good cup of coffee. As we sat by the window sipping and pumping each other up for the task at hand, Mary looked out the window and her mouth fell open.
"Look," she said, pointing.
I looked. Outside in the parking lot of a Carl's hamburger stand was a big rig semi. Printed on the back of this truck was one word: SAIA.
As I previously mentioned, the Working Papers of Plante Moran's Mark Robinson produced the Smoking Gun we had been looking oh so long and hard for. He had this evidence when he concluded his audit, but did not include it in his report. Worse, his conclusion found no significant problems with Arbortext's accounting practices at all.
As I promised earlier in Chapter 36: The Plante Moran Cover Up, we will now revisit Robinson's Audit Report in light of his Working Papers. While the initial entries may seem tame fudging, and even somewhat tedious, I include them here to demonstrate the all encompassing travesty of Robinson's eventual "clean" conclusions, especially in conjunction with the final exhibit, Working Papers #19, which will completely explode the validity of his audit and demonstrate beyond any doubt the fraudulent accounting practices of the thieves and scoundrels at Arbortext.
Working Papers #1:
This has only one page which says "WP-1 is the electronic version of the Sales Database." Mark Robinson therefore has a computer file of the Sales Database. He omitted sending this file to us to examine. Pity. It would have been a possibly damning piece of evidence, since this database can be compared to the Royalty Report and the License Key database. I presume it is still somewhere in Plante Moran's offices. Or should be.
Working Papers #2: (See Exhibit V)
This is a list of the Query statements used by Arbortext to extract Blueberry's royalty related information from the Accounting System/Sales Database Invoices. The first page lists the SKU product numbers to include in the search. Robinson says in his report that:
Plante & Moran reviewed the code (WP-2) associated with performing the extract and did not identify any errors. Plante & Moran also reviewed Arbortext's complete Product SKU Listing (WP-3) to ensure all SKUs associated with software products that contain Blueberry software are incorporated in the code that is used in performing the extract.
Perhaps Robinson "did not identify any errors," but certainly there were problems that he left unmentioned. He mentioned uncertainty about whether the Email modified the contract, but did not report that the percentage based system Arbortext was using did not reflect either the contract OR the email. It was simply an Arbortext invention.
The second and third pages are divided into two sets of different programming "if…else" queries. The first set focuses on all invoices that have a date greater than 9-30-04 – the cutoff date of the Plante Moran audit. The second set will pick up all invoices prior to this date that the audit will actually be examining.
This audit period second set has several formulas based on the number of CPUs involved in the license sale, with the top end of the set being 20% for a 1 CPU sale and scaled downward to 14% with a 4 CPU sale. This is the percentage of the total sale that will be extracted to the Royalty Report, where it will then have Blueberry's royalty percentage applied to it. This entire concoction has no basis in the Contract and was invented and first applied by Arbortext on the July 2002 Royalty Report which punished Blueberry for catching Arbortext cheating.
The post-audit set of formulas produces a top end royalty percentage of 16% and is scaled downward to 11%. Yet another reduction in Blueberry's royalties unilaterally imposed by Arbortext with no input or acceptance by Blueberry and placed into action immediately beyond the scope of the Audit.
No comment was made by Mark Robinson about this double set of queries. He mentions that there could be a case made that Arbortext's formulaic percentage based system has no justification in the Contract, but he does not mention that the system itself is still undergoing a downward adjustment solely at Arbortext's whim, for their financial gain and Blueberry's financial loss.
Working Papers #4: (See Exhibit W)
These are Consolidated Financial Statements from Arbortext's auditor KPMG, covering the years 2000 – 2003.
They are curious. For what is there, and what isn't.
The first report, issued February 28, 2001, covers the year 2000. The Table of Contents for this, and all of the reports, refers to six following pages. Only the first three are included. Pages 4, 5, and 6 are excluded. These pages cover Shareholder's Equity and Comprehensive Income, Statements of Cash Flows, and Notes to Consolidated Financial Statements. It is unclear why these pages are missing.
The "Independent Auditor's Report" page, which leads off the reports, all have the exact same boilerplate first three paragraphs. The first Report, however, has a fourth paragraph which reads thusly:
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 12 to the consolidated financial statements, the Company has suffered recurring losses from operations and has a working capital deficiency that raise substantial doubt about its ability to continue as a going concern. Management's plans in regard to these matters are also described in note 12. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
This was the precarious financial condition of Arbortext prior to gaining the technology of Blueberry Software to translate MS Word, Framemaker, and Interleaf documents into its Epic Editor and E3 products, which proved so successful that Parametric Technology forked over $194,000,000 in cash five years later to acquire Arbortext.
The three boilerplate paragraphs are standard auditing disclaimers. The above paragraph is an opinion of the auditor. The reports for 2001, 2002, and 2003 do not have any opinion from the auditor. Only the three boilerplate paragraphs. Why no comments/opinions from KPMG on these reports? Are the totals on these reports the same as the ones in KPMG's own records? Did Robinson get these reports from Arbortext or straight from KPMG? He uses them as a cross reference verification in his audit.
There is, for instance, a one million dollar difference in the Cost of Revenues and Gross Profit figures listed for 2001 on the 2001 report and the 2001 figures listed on the 2002 report. How did these figures change? And what's on the missing three pages from each report? What Notes are we not getting to examine?
I won't mention that all the reports have little binder ticks on the left side of the pages, except for the December 31, 2002 and 2001 report pages, which have none. To draw attention to this curiosity might seem like I was having a false, paranoid projection.
Oh well. We'll find out more when we proceed to Discovery in Arbitration and get to subpoena the actual records of KPMG. Right? Surely we will. Won't we?
Working Papers #5: (See Exhibit X)
This section was a print out of, I guess, Total Revenue covering the period Q1 2000 through Q3 2004. The period examined by the Audit. I mention guessing, because there is no Header on any of these pages identifying what exactly they are. It appears they are from a spreadsheet, and not a report blurted forth from the Accounting System, with Company Name and Logo, Headers, Footers, dates, and all that mundane official report type stuff. Apparently, after twenty some years in business, nobody in the accounting department had thought to put together an official Total Revenue report. I wonder if Robinson thought that this was a bit funky, to say the least.
At any rate, the report was, to be quite blunt, a phony doctored submission given to Plante Moran by Arbortext. Not only the suspicious non-professionalism mentioned above, but it also contains clearly edited and inserted entries. Robinson even referred to these edits and insertions: "Plante & Moran verified certain write-offs against the bad debt reserve (WP-5 and WP-6) that resulted in the reduction of royalties that were paid in earlier periods." Isn't a Revenue print out a strange place to verify bad debt reserve write-offs? Isn't that a General Ledger type of deal?
The dollar amounts involved here aren't hugely significant. Which makes the tortured effort of deceit even more pathetic. Arbortext needed these Revenue amounts, vis a vis Blueberry, to match up with the Cumulative Royalty Report and give it validity. In other words, Arbortext's whole effort with its audit submissions begins with the Royalty Report and works upward to the Accounting system, not vice versa as would be the norm. Given the year long head start that Peralta and Blair's delaying tactics had given Arbortext to prepare for this audit, to still produce such an amateurish sham speaks volumes about the scarcity of intellect roaming the hallways in this company.
To begin with, these are Revenue reports, not General Ledger or Profit and Loss Statements. There should be no entries here other than Revenue. Yet on many of the pages, down near the bottom, there are accounting entries such as "check - $60, Inv# 18006 -Raymark Xpert" (page 3, Q3 2000 report). This type of entry is a General Ledger type of entry and is out of place in a Revenue report. It's a manually inserted comment.
Another type of non-revenue report insertion is the frequent notation at the bottom of the License Revenue list "Write-off's Against Bad Debt Reserve," which Robinson referred to above as a verification technique. This notation is indented at the same level as the licenses listed in the License Revenue portion, but occurs beneath the non-indented sections titled "Revenue-Maintenance" and "Revenue Professional Services." Out of place in location and by existence on a revenue report. Each one of these entries achieves a reduction in royalties owed to Blueberry, making the Revenue Report totals match the actual royalties paid on the Royalty Report. Sort of.
Another concoction is fairly laughable and occurs on the Q3 2000 page. All of the licenses listed on these pages are the exact line item descriptions from the SKU numbers in their accounting system (and Robinson's WP-3). Except for ONE: "Publishing Site License, exluding [sic] interchange". There is no such SKU line item description anywhere in their accounting system. IT'S A PHONY. It was even mistyped when it was phonied up! It's sole purpose is to proclaim loudly: We don't owe Blueberry any money for this $453,643.00 site license figure.
Q1 2003 has one of the entries "Write-offs's Against Bad Debt Reserve." It deducts $8,400 from the total Interchange sales that the License Revenue report spit out. Once again, presumably to match the Royalty Report itself. Except that it doesn't. The Royalty Report lists $104,585.36 in applicable Interchange royalties for this period. The License Revenue Report lists $102,777.13. After the Write-off, the Revenue Report lists $94,377.13. This represents a $10,208.23 discrepancy between the Revenue Report and the Royalty Report.
Additionally, this page has an entry at the very bottom "ATI paid minimum - $7,500." This isn't even a General Ledger type entry. More like just a sticky back note, supposedly generated by the Revenue print out. And for what purpose?
Q3 2003 has an entry "Reseller Commission due on Sale" which deducts $9,000 from the total Interchange revenue. Even with this bogus entry, the total on the License Revenue report is $184,955.10, while the total on the Royalty Report is $151,740.29. Since the Royalty Report already HAS the $9,000 Reseller Commission deducted from its total, this entry is a double dip and these two reports are $33,214.81 different – and not in Blueberry's favor. Mr. Robinson's comment? No problemo. ZZZZZZzzzzzzzzzzzzzz.......
These revenue reports clearly indicate that Robinson did not generate them himself. He merely examined, somewhat, the information Arbortext gave him to examine. Or perhaps just stuck the stuff in his binder without a glance. That is not performing an audit and it certainly is not performing any forensic work. Twelve of the nineteen pages here have been visibly doctored.
Enough on the WP-4 Revenue print outs. The only thing they prove is that Arbortext has submitted false documents to a licensed CPA and Certified Fraud Examiner conducting an "independent" audit. Since these reports are VISUALLY suspect, without even getting out the calculator, that Robinson failed to raise a red flag, or any kind of note at all, is not particularly due diligence in the performance of an audit.
Working Papers #10: (See Exhibit Y)
Let's revisit Corporate Controller Karen Sharplin's email about the Intermarket product at this point. Her email to Robinson said, "Epic Intermarket was a new product that was to be developed some years ago, however it never was developed. There have never been any sales of this product."
After this email, Mary faxed Robinson our Intermarket evidence (Zoltan Gombosi's resume and several web page print outs describing Intermarket and announcing its release) and concluded by saying, "I do not know if this additional information [our Intermarket evidence we sent to him] will aid you in locating 'Epic Intermarket' sales. Since Arbortext, through Karen Sharplin, has stated that they never even completed development of the product, we would at least like the record to show that this most certainly appears to be false."
We heard nothing more from Robinson except his two MRO explanations in his Audit report. He did not mention in that report that Sharplin had lied about Intermarket.
In his audit report conclusions, Robinson stated "it is unclear as to what software components are contained in E-Catalog or are part of a Site License" and he had further information about MRO, but deferred to Arbortext as to whether he could release it. This left the impression that this information would further support his conclusion.
However, the further information turned out to be the MRO / Arbortext Contract and it completely refuted his conclusion and Sharplin's email and thus the Audit's entire "explanation" about E-Catalog/Intermarket. The first paragraph of this contract states (emphasis added):
Whereas, ATI has designed and developed and licenses its proprietary EPIC and eCatalog computer software programs (the "ATI Programs") which are further defined in Section 1.5 below, and is experienced in the design and development of customized software. MRO wishes to license the ATI Programs from ATI for incorporation into an MRO-branded content management product ("MRO.com Content Manager").
Doesn't get any clearer than that, Mr. Robinson. E-Catalog, very first sentence, very first paragraph, designed, developed, and licensed. Appendix D, page 18 of your Audit Report, payments made for E-Catalog License ($100,000 in 2001) and payments made for Site License for this E-Catalog License. Why do you attempt to deny this in your Audit Conclusion? These are Arbortext products SOLD to MRO and PAID for by MRO and the nature of the two companies' relationship and its abandonment is irrelevant.
Working Papers #19: (See Exhibit Z)
The Smokingest Barrel-Melting Gun of All.
An indictment of both Arbortext and the Plante Moran Audit.
These pages represent a print out of the License Key database. AFTER it was cleaned up and fixed by Arbortext. The original database print out, the one Robinson said on the phone to Mary had "significant" discrepancies with the Royalty Report, is missing from the Working Papers. Either it was destroyed by Robinson or he purposefully did not include it.
The single most important piece of evidentiary proof of Arbortext Fraud and the vindication of our reasons for hiring Robinson to perform the Royalty Compliance Audit was shredded or withheld.
Yet even this fixed up and altered print out of that database proved that Arbortext was cheating us and that Robinson lied about it on his report.
Robinson says in his report (emphasis added):
We verified that the Active Licenses identified in the 'Key Database' (WP-19) had revenue associated with them in the Total Arbortext Sales Database (WP-1). We also verified the number of Active Licenses with the number of licenses reported in the Cumulative Royalty Report sent to Blueberry, Exhibit A.
(See our Exhibit AA for the actual Royalty Report referenced above and throughout these pages.)
So, Robinson compared licenses in the Key database to the Sales database - pronouncing them as pretty close to matching, but did not compare the licenses in either database to the Royalty report – the subject of the entire audit! He only compared the NUMBER of licenses.
Perhaps because six of the first ten customer licenses listed in the Key Database, that Robinson "verified" had revenue associated with them in the Sales Database, are not on the Royalty Report!
Hard to miss that, Mark. And if you "verified" that these licenses had revenue associated with them in the Sales Database, then it's clear Arbortext stiffed Blueberry for payment of royalties on them.
And this was the "cleaned up" version of the Key Database. Which is still a phony and is readily identifiable as such by simply looking at it. The first 211 licenses are visually doctored entries. The dates are all December 31, 1999 and in a different column and a different font size than the entire rest of the license key list. Blueberry didn't sign a contract with Arbortext until July 12, 2000 and the product descriptions in these 1999 licenses contain products that weren't released by Arbortext until 2002 and 2003!
What was Arbortext hiding/obscuring/manufacturing here? Surely doesn't seem to justify Robinson's remark that "the current key distribution system is linked with the current product sales and is automated versus manual and is less prone to errors."
A further damning revelation of this cleaned up Key Database and Mark Robinson's report concerns the U.S. Coast Guard. The following is what Robinson said about this customer in his audit and the remarks I made about it (Chapter 36: The Plante Moran Cover Up).
o U.S. Coast Guard – A solicitation notice from the U.S. Coast Guard requests maintenance on 2 E3 single processor licenses and 2 E3 quad processor licenses (WP-18). Our review of the Key Database and the Total Arbortext Sales Database both agree that only one E3 single processor license and 1 E3 quad processor license were ever sold to the U.S. Coast Guard. This finding agrees with the Cumulative Royalty Report as well.
In other words Mark, the solicitation notice from the Coast Guard (which we sent to you) requests maintenance on 4 E3 licenses, yet only 2 are in the Sales Database, the Key Database, and the Royalty Report. Thanks for glossing over this point that Blueberry did not receive royalties on HALF of the Coast Guard sales. In fact, these sales seem to be missing from Arbortext's records entirely, just like the $4,000,000 in Intermarket sales. You don't seem to be mentioning that this is a PROBLEM.
The cleaned up WP-19 License Key Database now contains ZERO Coast Guard licenses!
They have disappeared. I'm sure the Coast Guard will be quite unhappy to learn that they no longer have valid licenses for any of the products they purchased. In fact, the above statement by Robinson in his Audit Report is a flat out lie. His review of the Key Database and the Total Arbortext Sales Database DO NOT agree with the Cumulative Royalty Report.
Perhaps Robinson's statement above was made from viewing the Key Database before it was cleaned up, not afterward. And if there were 2 Coast Guard licenses in the original Key Database and 2 in the Sales Database, then the new Key Database no longer matches the Sales Database, either. There is thus no agreement amongst any of the three critical databases.
Making Mark Robinson's Plante Moran Audit and its findings a total hoax and a fraud.
So, if we have a shadow database for Licenses and another one for Royalties and likely a third one for Sales (since E-Catalog has never been found in there), then the phoniness of these three databases makes the Revenue printouts, which were keyed to match the Royalty Reports, also completely phony. It also makes the financial statements of KPMG phony because the Cost of Goods/Services, where Blueberry payments would be recorded, is not accurate. Which makes five years of Arbortext tax returns reported to the IRS false, and the information provided to the SEC during the Acquisition false.
Virtually all of the information provided by Arbortext in Robinson's Audit Working Papers was a fabrication, a partial-truth, an admission of guilt, or an outright forgery. Since the veracity of all of it depends ultimately and entirely on the veracity of the Royalty Report, and that report is demonstrably false, I rest my case of deliberate Fraud by Plante Moran and Arbortext.
How bad was this Fraud and its Cover Up? See for yourself by downloading the following Excel spreadsheet. This Excel file contains a merger of the License Key database entries and the Royalty Report entries. In Black letters are the Royalty entries; in Red are the License Key entries. Not to spoil the drama, but there are 761 discrepancies between the two databases! How many more existed before Arbortext "fixed" things up and made their system "less prone to errors"? The discrepancies involve both sales that were reported to Blueberry, but have no license in the Key Database, and licenses in the Key database that have no corresponding sale in the Royalty Report. These two databases simply DO NOT EVEN REMOTELY MATCH.
If any of you have remained skeptical of the accusations I have made throughout this saga concerning Arbortext and Plante Moran, this file presents Clear and Convincing Proof of the truth of my claims. You don't need to be a CPA to easily see the breadth and scope of this cheating.
You can still, however, entertain the opinion that I have been a little too forceful in my choice of adjectives, adverbs, and metaphors while describing this sordid tale. That's fair. In my defense, though, I've been a little ticked off by this whole long running nightmare and the devastation it has caused to me, to Mary, and to our family.
Click Exhibit AB to view or download this Excel file and draw your own conclusions.
After examining this file, if you live in Michigan, call your Representative and demand an investigation. Oh, wait. That won't be necessary. We have Kathryn J. Humphrey, Michigan Super Lawyer of the Year 2006, from the prestigious judge-providing law firm of Dykema Gossett, sitting right here in the Arbitrator's chair. She'll get to the bottom of this skullduggery. Surely she will. Won't she?
See Exhibit AC for Blueberry's Response to Parametric's Motion To Dismiss. We made a little boo-boo on the first page, inadvertently accusing Palizzi of Fraudulent Concealment himself, which he dutifully scolded us for. Oops. Hey, we're not lawyers, old boy, we're just prey. Slack off and chill.
The day before our Response to Parametric's Motion was due, we received an email from Palizzi containing a document which he wanted us to sign in return for him allowing Mark Robinson to release to us the material in his files that had so far, in defiance of the Arbitrator's orders, been withheld.
The document was a legal paper entitled "Stipulated Protective Order."
Palizzi tried to foist this off as just some ordinary legal horseradish necessary so he could promptly release the suppressed evidence to us. The fact that he waited until the next to last day of our filing deadline to fling his foist was a bit comical. Apparently, he felt that we were so desperate to get this info that we would quickly sign the document and then spend the final day of our filing hastily rewriting our whole Response in light of the new evidence.
Which proved two things. One, he thought we were idiots. Two, he didn't understand much about the case. Sitting on his desk under his nose was all the evidence of fraud that we had needed for our Response. Of course, he probably wasn't paying a fly's attention span to the facts of the case. All he had been hired to do was squash it – whatever the heck the whole thing was about.
His foist impressed Mary and I so much that, after some polite tittering, and a quick skim through, we tossed the paper into a corner. It was only after we had finished our filing, emailed it to Hannah Cook, and returned to our humble abode in the Rhinoceros Palace that we read it.
What a sneaky little boy you are, Mr. Palizzi. Carefully threaded throughout the Order was the all encompassing attempt to place every piece of evidence and all arbitration proceedings – past, present, and future – under a strict Confidential seal. Never to be spoken of or revealed to the public. Had we signed it, you would not now be reading about this case of Accounting Fraud and Audit Cover Up.
The old Smoke Filled Back Room ploy. Parametric sure didn't want anybody to ever get wind of this case. Even though there was no case, according to them, and they were innocent as lambs. Not to the point they would welcome that the case be heard so they could be resoundingly exonerated, of course.
Judicial courts are indeed alien realms, hell bent on ticky-tacking over precisely worded ambiguities and loop hole options at the utter expense of obvious reality. Parametric knew it owed us money, acted like it owed us money, and was choosing to wiggle out of the debt on a technicality. The Arbitrator knew this from the second Palizzi adopted his dispositive strategy. And we knew it. If there were 600 people in the court room, all 600 would know it, too. Making the entire effort allowed by Humphrey nothing more than a ridiculous and woeful sham. For the sole purpose of allowing a billion dollar corporation to stiff two people out of their rightful earnings. Entertaining the thought of strictly and brutally enforcing one single part of one single clause in the Contract which immensely favored Parametric/Arbortext, while blissfully ignoring the multitude of other clauses in the Contract that Arbortext had systematically, ruthlessly, intentionally, and criminally violated for 84 consecutive months.
Nevertheless, we felt our evidence could not be ignored and the next three weeks crawled by with our hopes at an all time high. Finally, on April 4, 2007, Mary dialed in for the conference call with the Arbitrator which would wrap up the matter of Palizzi's Motion. Ms. Humphrey had promised to give her ruling two days later.
The phone call lasted nearly three hours!
Mary emerged from the RV at long last, sat down next to me on the swing, placed her hand in mine, and stared sadly off at the horizon.
I waited awhile, then asked quietly, "What happened?"
"It was not good. Not good at all. She practically ignored me."
"What did Palizzi say?"
"He wasn't there any more. It was someone else. A woman named Kristen Spano. A really snotty lady."
"She and Humphrey spent practically the whole time talking about Parametric's side of the case and what was the proper way to rule according to FRCP regulations."
"What the hell is FRCP?"
"The Federal Rules for Civil Procedures. They govern district and federal court proceedings. They don't govern arbitration proceedings, though. They shouldn't even be discussed. Kathryn Humphrey is going to rule against us. I just know it. She postponed giving a ruling now like she promised. She wants us to submit some more briefs."
"Briefs about what?"
"How she should rule. Can you believe that. She's asking both of us how she should rule. She also wondered out loud if either side would accept her ruling without appealing it. But the worst part was when I butted in at one point after she and Spano had been talking for what seemed like forever. I started off with an apology for not being a lawyer. Before I could say what I wanted to say, Humphrey said ,'That's all right. We expected that.'"
"We? As in her and Spano? Like they'd been talking to each other before the conference call?"
"You're getting the picture. It popped out of her mouth really fast."
So that's how it was going to be. Five years and every dime in our lives and everything we owned to bring our case before an Arbitrator and the wretched, putrid, gutless little woman was going to refuse to hear it.
Mary and I dutifully filed our briefs explaining to Kathryn J. Humphrey, Michigan Lawyer of the year 2006, what an Arbitrator's job responsibilities were. Duh! We dial into a conference call to get her ruling and she says she doesn't know what or how to rule. Baloney had now achieved mythical proportions in our lives.
See Exhibit AD and Exhibit AE for our responses to her. We did not mention in them that an Arbitrator was supposed to find an EQUITABLE solution, even if that required bending a few FRCP rules. She knew this was an Arbitration guideline item. Pointing it out might seem insulting, or worse, like we were begging. We preferred to leave the begging to Spano and Parametric.
Then we waited. And waited. And waited. After three phone calls from Hannah Cook requesting the status of Humphrey's final ruling, the first two of which were ignored or put off, fully three and a half months later, on July 13, 2007, Kathryn J. Humphrey dismissed our case. See Exhibit AF for her ruling.
She was required under Arbitration rules to deliver a ruling in 30 days or less. Apparently, it wasn't enough entertainment for her to simply destroy us by sweeping under the rug the blatantly fraudulent actions of two corporations; she felt compelled to torture us also. And thumb her nose at the Arbitration Association's toothless guidelines and administration.
Regarding the evidence of continuous and long running Fraud which we have painstakingly detailed, Kathryn J. Humphrey ruled that even though this evidence was discovered with her permission and approval (see our Exhibit T), and occurred under her watch and in her "court room," and was a critical component of the Audit that she referenced as the starting point of the clock she used to torpedo us, it was outside her scope to consider any of it. What mind-boggling, toad-sucking bullshit.
WHAT ARE YOU TALKING ABOUT, MS. HUMPHREY!!!!!!!!! What system of judicial Logic are you employing here? First you allow evidence to be introduced, then you say you can't look at it. This isn't an Arbitration Court or an FRCP Court. I believe the correct term is Kangaroo Court.
And oh, by the way, Ms. Humphrey concluded that the email that Arbortext had used as a pretext for all the various royalty calculations over the entire history of the contract was NOT VALID. Meaning Blueberry had not ever been paid properly. And since this was the first time this email issue had ever been officially questioned, it was "timely" and the interpretation of the contract could now be decided by an Arbitrator. That's you, Kathryn. You can decide what we should have been paid for the past seven years. And most certainly for the past ONE year provided by the contract clause you are using to dismiss the entirety of our arbitration case. A year in which, by your ruling, Parametric has not paid Blueberry proper royalties.
I guess making fair and unbiased rulings is just "outside your scope" Kathryn. The only scope you seem to have developed in your life is protecting rich thieves from any sort of culpability.
July 13 had two "coincidental" items of significance. It turned the page on one more entire year of liability for Arbortext since the contract signing date had been July 12, 2000. And it also coincided with Mark Robinson's departure from Plante Moran, either voluntarily relinquishing his partnership status – or perhaps involuntarily. I'm sure it's just a coincidence. Right? After a career working for both KPMG and Plante Moran, Robinson now formed his own consulting agency. Need some shady audits? For the right price, he's your man.
Ray Schiavone oozed off sideways to become the CEO of Quark and had "quietly" brought along some former Arbortext personnel such as Jim Haggarty and P. G. Bartlett. I'd advise the public to take his company pronouncements with a large grain of salt.
Dave Peralta had moved his "independent auditor" dictionaries and fear of audits across town to NanoBio Corporation in Ann Arbor, where he was now Vice President, COO, and CFO. Nothing like presiding over some wholesale Fraud to provide career opportunities and advancement.
Jimmy "The Crook" Sterken continued his massive assault on malignant phoniness by becoming the Treasurer and Vice President of the Board of Directors of Habitat For Humanity of Huron Valley. He still maintained his title as VP of Engineering at Arbortext, but now had his hands firmly on another set of funds. Might want to keep your eye on the books, Habitat people. Don't want any funds leaking out the back door into a BMW glove compartment.
The irony of Sterken's new public image of concern for people's habitats, while showing none for mine or Mary's, was not lost upon us. Perhaps he had experienced a spiritual awakening. Even Remorse! Okay, nada on that last thought. Nada on both, actually, since he hadn't yet bothered to pay us what he owed us and had let three corporations and quite a cast of co-conspirators pay the price of shame and infamy for helping to cover up his criminal behavior rather than rectify his wrong doing and accept responsibility for turning out to be such a louse. You da man, Jimbo.
The American Arbitration Association. What a hoax. Kathryn J. Humphrey should never be allowed to disgrace this organization again. Get her off the Arbitrator list. Now. And get some "guidelines" that an Arbitrator can't simply ignore. Unless that's precisely the point of your whole off-the-record, quasi-secret Association. In which case, congratulations. You picked the right girl for your team.
And dear sweet Parametric, perhaps you really didn't know how crooked Arbortext was, and in particular how crooked Jim Sterken was, when you acquired them. If so, I hope this story has enlightened you and motivates you to do the right thing and pay us what you owe us. Your stockholders would be pleased.
As for Mary and myself, we have a new life now – smaller, more humble than the one we had before. But gone are the lawyers, the courts, the corporations, the constant ugliness, and the endless assault on sanity and wallet. The wondrous road of life is once again open and safe to travel. And we still have our swing.
During our long battle with the forces of white collar crime, we received a lot of empathy – but usually with the telltale shake of the head that indicated we were crazy to fight City Hall. They would crush us. And they had. No doubt about it.
Neither one of us, however, regretted our choice. If one's life wasn't worth fighting for, then one's life wasn't worth much. And neither of us saw our lives as too worthless to bother defending, or too precious to risk the consequences.
"We gave them one heck of a fight, didn't we?" Mary said, as we sat on the swing one night, feeling the anger and outrage ebb away into the mists of time.
"We certainly did, Ollie," I said. "We certainly did indeed. And we beat them, too."
"Get real. They walloped us."
"They had to cheat, though. It's not a victory if you cheat."
"This wasn't a football game, Steve. We lost our house and all of our money."
"But we proved they were crooks. Nobody believed us at first. Now they do. All of them."
"I wish they'd just paid us what they owed us. That's all we ever asked."
"What do you think all that spooky Saia stuff meant?"
"Exactly what it was. No more, no less."
"Trust in my son Jesus?"
"That's what the message was."
"I guess we weren't supposed to prosper and become philanthropists then."
"I guess not."
"Rats. I kinda liked that ending."
"Maybe you'll like the one that's ahead even more."
The companies listed in the table below have licenses to use Blueberry Software's technology via the Arbortext product Interchange. Their licenses are recorded in Arbortext's License Key Database. See Exhibit AB if you wish to verify any of these listed companies.
Arbortext, however, did not report these sales to Blueberry nor pay Blueberry any royalties on these sales, as specified in the Blueberry/Arbortext Royalty Contract. This makes these licenses a form of pirated software.
Blueberry makes no complaints or accusations against these companies or entities, some of whom are State and Federal agencies, and is quite certain these companies paid Arbortext for their software in good faith.
It is Arbortext that is the guilty party. Although they have a contractual right to distribute Blueberry's technology, they may only do so if Blueberry is paid royalties on the sale. Regarding the list below, this did not happen. Blueberry was given away entirely or in part without remuneration and the sales were hidden from Blueberry in the Arbortext Royalty Reports.
Bear in mind, the following list is only a partial list of Arbortext piracy. Due to the audit cover up by Mark Robinson of Plante Moran and the highly suspicious ruling by American Arbitration Association arbitrator Kathryn J. Humphrey of the Michigan law firm of Dykema Gossett, Blueberry was prevented from a full investigation of Arbortext's fraudulent accounting system. Blueberry obtained this partial list from the working papers of Mark Robinson's Plante Moran audit report, which were uncovered during Arbitration Discovery proceedings two years after his report was issued. He did not mention this piracy at all in his official audit report. Quite the opposite. He said everything was hunky-dory. See Chapter 36 and Chapter 45.
The licenses herein were extracted from the License Key Database – after Robinson allowed Arbortext to destroy and/or edit the original database, which he described on the phone to us as having "significant discrepancies," and then allowed Arbortext to submit this altered database version to Robinson for his report.
Blueberry is convinced that there are many more licenses issued by Arbortext that were not reported. If this list is not considered by Robinson to contain "significant discrepancies," what oh what did the original database contain! Only a full and complete investigation of Arbortext's records will suffice to determine the extent and duration of criminal behavior by this company.
Software Piracy and Accounting Fraud are crimes, and these crimes have been delineated in great detail in this story. It's time for an official investigation of this company and the individuals who commit these crimes with impunity. Stockholders deserve to know what kind of company they are investing in and what kind of people are running that company.
AAI Set Corporation
Jouve Aviation Solutions