Sammy nodded. “They’re countersuing. We knew they’d do that, right?”
“We didn’t expect they’d raise a war-chest like the one they’ve pulled together. They have a business-plan built around suing us for the next fifteen years, Sammy. They’re practically ready to float an IPO. Have you seen this?” He handed Sammy a hardcopy of a chic little investment newsletter that was so expensive to subscribe to that he’d suspected until now that it might just be a rumor.
HOW DO YOU GET RID(E) OF A BILLION?
The Kodacell experiment recognized one fundamental truth: it’s easy to turn ten thousand into two hundred thousand, but much harder to turn ten million into two hundred million. Scaling an investment up to gigascale is so hard, it’s nearly impossible.
But a new paradigm in investment that’s unfolding around us that might actually solve the problem: venture-financed litigation. Twenty or thirty million sunk into litigation can bankrupt a twenty billion-dollar firm, transferring to the investors whatever assets remain after legal fees.
It sounds crazy, and only time will tell whether it proves to be sustainable. But the founder of the strategy, Landon Kettlewell, has struck gold for his investors more than once — witness the legendary rise and fall of Kodacell, the entity that emerged from the merger of Kodak and Duracell. Investors in the first two rounds and the IPO on Kodacell brought home 30X returns in three years (of course, investors who stayed in too long came away with nothing).
Meanwhile, Kettlewell’s bid to take down Disney Parks looks good — the legal analysis of the vexatious litigation and unfair competition charges have legal scholars arguing and adding up the zeros. Most damning is the number of former Disney Parks employees (or “castmembers” in the treacly dialect of the Magic Kingdom) who’ve posted information about the company’s long-term plan to sabotage Kettlewell’s clients.
Likewise fascinating is the question of whether the jury will be able to distinguish between Disney Parks, whose corporate citizenship is actually pretty good, from Disney Products, whose record has been tainted by a string of disastrous child-labor, safety, and design flaws (astute readers will be thinking of the “flammable pajamas” flap of last year, and CEO Robert Montague’s memorable words, “Parents who can’t keep their kids away from matches have no business complaining about our irresponsibility”). Punitive jury awards are a wild-card in this kind of litigation, but given the trends in recent years, things look bad for Disney Parks.
Bottom line: should your portfolio include a litigation-investment component? Yes, unequivocally. While risky and slow to mature, litigation-investments promise a staggering return on investment not seen in decades. A million or two carefully placed with the right litigation fund could pay off enough to make it all worthwhile. This is creative destruction at its finest: the old dinosaurs like Disney Parks are like rich seams of locked-away capital begging to be liquidated and put to work at nimbler firms.
How can you tell if you’ve got the right fund? Come back next week, when we’ll have a Q&A with a litigation specialist at Credit Suisse/First Boston.
“There’s litigation specialists at Credit Suisse?”
He was big, Hackelberg, though he often gave the impression of being smaller through his habitual slouch. But when he pulled himself up, it was like a string in the center of the top of his head was holding him erect, like he was hovering off the ground, like he was about to leap across the desk and go for your throat. His lower jaw rocked from side to side.
“They do now, Sammy. Every investment bank has one, including the one that the chairman of our board is a majority shareholder in.”
Sammy swallowed. “But they’ve got just as deep pockets as we do — can’t we just fight these battles out and take the money off of them when we win?”
“If we win.”
Sammy saw his opportunity to shift the blame. “If we’ve been acting on good legal advice, why wouldn’t we win?”
Hackelberg inhaled slowly, his chest filling and filling until his ice-cream suit looked like it might pop. His jaw clicked from side to side. But he didn’t say anything. Sammy tried to meet that cool gaze, but he couldn’t out-stare the man. The silence stretched. Sammy got the message: this was not a problem that originated in the legal department. This was a problem that originated with him.
He looked away. “How do we solve this?”
“We need to raise the cost of litigation, Samuel. The only reason this is viable is that it’s cost-effective to sue us. When we raise the cost of litigation, we reduce its profitability.”
“How do we raise the cost of litigation?”
“You have a fertile imagination, Sammy. I have no doubt that you will be able to conceive of innumerable means of accomplishing this goal.”
“I see.”
“I hope you do. I really hope you do. Because we have an alternative to raising the cost of litigation.”
“Yes?”
“We could sacrifice an employee or two.”
Sammy picked up his water-glass and discovered that it was empty. He turned away from his desk to refill it from his filter and when he turned back, the lawyer had gone. His mouth was dry as cotton and his hands were shaking.
Raise the cost of litigation, huh?
He grabbed his laptop. There were ways to establish anonymous email accounts, but he didn’t know them. Figuring that out would take up the rest of the afternoon, he realized, as he called up a couple of FAQs.
In the course of a career as varied and ambitious as Sammy’s, it was often the case that you ran across an email address for someone you never planned on contacting, but you never knew, and a wise planner makes space for lots of outlier contingencies.
Sammy hadn’t written down these email addresses. He’d committed them to memory.
Death Waits was living the dream. He took people’s money and directed them to the ride’s entrance, making them feel welcome, talking ride trivia. Some of his pals spotted him at the desk and enviously demanded to know how he came to be sitting on the other side of the wicket, and he told them the incredible story of the fatkins who’d simply handed over the reins.
This, this was how you ran a ride. None of that artificial gloopy sweetness that defined the Disney experience: instead, you got a personal, informal, human-scale experience. Chat people up, find out their hopes and dreams, make admiring noises at the artifacts they’d brought to add to the ride, kibbitz about where they might place them….
Around him, the bark of the vendors. One of them, an old lady in a blinding white sun-dress, came by to ask him if he wanted anything from the coffee-cart.
There had been a time, those first days when they’d rebuilt Fantasyland, when he’d really felt like he was part of the magic. No, The Magic, with capital letters. Something about the shared experience of going to a place with people and having an experience with them, that was special. It must be why people went to church. Not that Disney had been a religion for him, exactly. But when he watched the park he’d grown up attending take on the trappings that adorned his favorite clubs, his favorite movies and games — man, it had been a piece of magic.
And to be a part of it. To be an altar boy, if not a priest, in that magical cathedral they’d all built together in Orlando!
But it hadn’t been real. He could see that now.
At Disney, Death Waits had been a customer, and then an employee (“castmember” — he corrected himself reflexively). What he wanted, though, was to be a citizen. A citizen of The Magic — which wasn’t a Magic Kingdom, since kingdoms didn’t have citizens, they had subjects.