But what was the fireman doing with the flamethrower, anyway.
A story that does not begin in a tent.
It was a hot summer, and I was working from home in what would’ve, under different circumstances, been a really nice bedroom but had — I thought — been transformed through careful tucking, pinning, and primping and camera angles into a serviceable office.
My desk was cramped, narrow, but high enough that the laptop camera didn’t catch even a scrap of headboard, and books lined up across the top of the bureau made it look almost like a shelf.
I’d covered the sweet, old-fashioned, and deeply nicotine-stained wallpaper with deep blue fabric. It’d been tricky to get it flat, where the wall sloped up to the ceiling, under the eaves.
During a break in the deposition1, the court reporter and I chatted about the heat, and whether we thought in-person depositions would ever come back.
She thought they would.
She said she’d done three depositions where an attorney appeared from a car. Another were the deponent sat on the stairs in a hallway.
I nodded, and agreed. We were all working under such strain, in such odd circumstances. Dining rooms, living rooms, extra bedrooms.
“I just have to ask,” she smiled. “Are you…are you…in a tent?”
Hearts had broken for less.
Perhaps because I was already feeling a bit dented, by the interaction with the court reporter, after the deposition I felt there wasn’t much to lose.
I called my co-counsel, an attorney from another firm. He was smart, and collaborative, and listened to my ideas. I liked him.
Still, I was a bit shy about sharing the results of my “research.”
Although, at a previous firm, I’d been known for my ability to use public records and spec sheets and serial and model-number naming conventions to untie certain knots, litigation attorneys are used to getting their facts from discovery. Depositions of witnesses. Document subpoenas. Things with certifications attached. Things that won’t be awkward to authenticate in court.
If something needs investigation, we hire private investigators.
This case was a tricky one. The case concerned a firefighter who’d been injured using a flamethrower during a public-safety demonstration. The flamethrower was, as far as I could tell, older than any attorney currently working in my office. It might’ve pre-dated cassette tapes and contraceptive pills.
My client was a company that might’ve acquired, third-hand, the right to manufacture similar flamethrowers for five or six years in the 1980s, before passing that bit of intellectual property on to another buyer.
“Steve, what if there’s an easier answer to this successor liability thing?”2 I asked.
“Easy how?”
“What if, the original manufacturer is still around. Can’t be a successor if the predecessor remains a viable target,” I said.
Steve didn’t immediately dismiss the idea. We discussed, between ourselves, how it could have happened that the plaintiff’s counsel — serious attorneys, very careful, and experienced with tough cases — would’ve missed something so key.
“Texas, maybe,” I said. “And Delaware.”
Texas is an odd state in many ways. Its public records laws are transparent, and by and large, records clerks and officials are helpful. But it guards its corporate registrations through the imposition of a fee per search.
Delaware permits searches, but charges for the documents themselves.
If a corporation has, during its history, passed through both Texas and Delaware — and the research tools you rely on are doing this largely through Westlaw, or Lexis-Nexis, as most attorneys will — you can lose the thread.
As, perhaps, plaintiff’s otherwise-able counsel did.
But there are ways to pick up a thread.
What helped, here, was that the company our client’d acquired the troublesome intellectual property from had been, at the time of that transaction, a public company. Let’s call it “FlameCo, Inc.3”
Public companies4 are required to file reports with the Securities and Exchange Commission. These reports, even old ones, are easily obtained. And they often include lists of acquisitions. Mergers. Asset purchases.
It was only twelve or so years of quarterly reports. And annual ones. And some other things I read but didn’t understand. All I had to figure out was, where FlameCo, Inc., got the assets it sold to my client.
It took a bit. Because FlameCo, Inc., was in the incendiary business. A lot of its acquisitions could have been from a company that might’ve had the right to manufacture these flamethrowers.
Trademarks didn’t help; FlameCo was the first company to register the trademark they later sold to my client.
But. People are a bit weird, about fires. Some people even collect things that have anything to do with fires. Like magazines, and catalogues. And they sell them. On eBay. And Facebook marketplace.
And, squinting at scanned pictures of yellowing pages, I found it. FireBrat, Ltd.,5 a full-color advertisement, for the type of flamethrower that injured the plaintiff. The one for which the plaintiff sought to hold my client liable, and on the list of companies that sold assets to FlameCo.
But what happened to FireBrat?
FireBrat had merged into its parent company, a few years after the transaction with FlameCo.
Ten years later, the parent company changed its name.
Fifteen years after that, it was converted from a corporation to a limited liability company.
And under that new name — and in that new form — it existed. Quietly. Solvently. Waiting.
I told Steve I’d send him some documents.
“Let me know what you think. I’m not sure6, but I think the original manufacturer is still around.”
The case resolved fairly quickly after that.
Mass. R. Prof. C. 1.6 prohibits the use of confidential information about a client, without that client’s permission. Information is “confidential” unless it is “generally known” in the local community. The test is whether it “is known” not whether it’s “knowable” (Matter of Kelley, 489 Mass. 300, 304 (2022)) making the scope of what an attorney may discuss about client matters narrower than in other states, where matters of public record can be discussed.
However, Mass. R. Prof. C. 1.6, Comment (4), permits discussion through the use of hypotheticals, if the facts are “sufficiently scrubbed” that the listener will be able to ascertain the identity of the client or situation involved.”
The content of this essay is a pastiche of issues and incidents encountered generally as a lawyer, in the practice of law, is not intended to directly represent or reflect a single incident in the representation of any client, except that (a) the details concerning the research methods employed are true; (b) the facts of the case and client have been changed, in accordance with Mass. R. Prof C. 1.6, comment 4.
Steve is an incredibly made-up name.
This is an even more incredibly made-up name.
This is literally the only thing I know about public companies. I am a litigator, for gods sake.
Incredibly made up name. I hope I don’t have to do many more of these.
I was, in fact, very sure.