On the return trip to Clive’s house, he asked Janet if she had a nice time. “I told him it was interesting, but the reason I went out with him was to meet the real Clive Cussler. I wanted to spend time talking about him, his family, and his work. We got to Clive’s and said good-bye. On the way home, I was thinking, that didn’t go very well.” A week later, Janet was surprised when Clive called, invited her out to dinner and promised he would answer any and all questions. “The restaurant,” Janet says, “was so noisy we spent the evening looking at each other, but when we got back to his house the two of us ended up having a wonderful conversation until three in the morning. This time I left thinking, here is a guy who not only has both feet on the ground, he enjoys a wonderful relationship with his family.”
Janet Horvath grew up in Fairfield, Connecticut. After graduating from Newton College of Sacred Heart (the school merged with Boston College in 1974), she worked in New York for several years before enrolling at the University of Bridgeport. After earning a teaching degree, Janet taught photography and art in the Fairfield school system. By 1998, she had one daughter, Whitney, and was divorced.
After her daughter started school, Janet went to work for her father who owned a plastic injection molding company in Bridgeport, Connecticut. “I had worked for him during the summer while I was going to school,” Janet says, “and knew how to break down a die, rebuild it, shim up the stock - whatever had to be done.” After her father died in 2000, Janet and her brother, Tom, relocated the company to Arizona. “Bridgeport was going steadily downhill,” Janet explains. “Tom and I thought the move would not only make the company more profitable, we had both spent time in Arizona and fell in love with the desert. Not long after we moved to Phoenix, the writing was on the wall - the plastic industry was moving off-shore and we sold the company. I opened a consulting business, working with art galleries and interior decorators.”
“A week after our second date,” Janet says, “Clive sent me flowers. The card was signed, ‘From your swashbuckler.’ When I called to thank him, I asked him how he knew it was my birthday. He said he didn’t, but suggested we go out and celebrate. It did not take me long to realize I was in over my head. Clive was not just a guy I wanted to go to dinner with, and I had to think long and hard if I wanted to get serious. I finally decided I did.”
While Clive and Janet’s relationship blossomed, Clive was exploring a new genre. “I always wanted to write a western,” he says. “But not a conventional horse opera with gunslingers, rustlers and a whore with a golden heart.” Originally called Wild Illusions, the novel’s setting in the western U.S in the early 1900s would allow Clive to combine classic western motifs with recently developed technology - automobiles, motorcycles, semi-automatic weapons, telephones, etc. During an interview, Clive was asked about his latest project. “The book isn’t going to be anywhere near a bestseller, but it will be a lot of fun.”
A phone call from Bert Fields would relegate Clive’s western to the back burner. Cussler v. Crusader Entertainment was finally headed for court.
Janet and Clive flew to Los Angeles in July of 2006, only to discover the trial had been rescheduled for August - the first of four delays. “It was frustrating,” Janet says. “We would fly to California, find out the trial had been postponed, turn around and fly back to Phoenix. The strain begins to wear on you. Finally, in November, the judge assured us the trial would start in January. Clive and I ended up living in the Omni Hotel until mid-May.”
Jury selection began on Monday, January 29, 2007, in Judge John P. Shook’s cramped courtroom in downtown Los Angeles Superior Court. Five days later, with eight women and four men seated in the jury box, the opposing attorneys presented their opening arguments. Bert Fields, assisted by Elisabeth Moriarty and Caroline Heindel Burgos, was raring to go. “It’s drama,” Fields says, “and you get a chance to be a director, a producer and an actor. And you have a captive audience.” Warming up to the jury, he exhorted, “For weeks, you are going to hear personal stuff about Mr. Cussler. You’ll hear them claim that he was difficult and cantankerous and grumpy and even rude. Hold your ears.”
Fields described his client as a successful, bestselling author who, having been extremely disappointed by the film adaptation of Raise the Titanic!, was determined to have some degree of control over the script and casting of Sahara. Nobody, the attorney suggested, held a gun to Philip Anschutz’s head when he agreed to what many in Hollywood considered unprecedented approval rights. In fact, it was the Baldwins and Anschutz who sought out Clive in the first place. When Crusader ignored Clive’s suggestions, Fields asserted, “They tore the heart out of the story. The story died, lost all this money because they gutted it.”
Anschutz was represented by Alan Rader, Marvin Putnam, William Charron, and Jessica Stebbins from the firm of O’Melveny & Myers. Listed as the world’s twenty-ninth largest law firm, O’Melveny & Myers employs more than 900 lawyers in fourteen offices worldwide. First up was Rader, who told the jury Clive had intentionally torpedoed what should have been a blockbuster by capriciously rejecting scripts, publicly bad-mouthing the film, and inflating the number of books he had sold. The numbers were a major source of contention since Anschutz insisted it was Clive’s highly publicized 100 million sales that convinced him to agree to the $10 million-a-book deal.
The opportunity to gawk at Hollywood stars, a steamy off-screen romance (Cruz and McConaughey), a bestselling author, a publicity-shy billionaire, and accusations of behind the scenes double-dealing and squandered millions turned the trial into a media circus. Photographers camped out in front of the courthouse and Los Angeles Times reporter Glenn F. Bunting provided the paper’s readers with a day-by-day, blow-by-blow account, as did Janet Shprintz in Variety. The internet was inundated with blogs discussing the case and anybody who had anything to do with publishing or Hollywood - real or imagined - was more than happy to share his or her opinions.
Peter Lampack was the first witness to take the stand. The agent described the meeting in June 2000, at Anschutz’s Denver office tower. After Clive had agreed to drop the price from $30 million to $10 million, he testified, both Anschutz and Howard Baldwin had agreed Clive would get “total and absolute discretion” over Sahara’s script and cast, and a consulting role on subsequent films. Rader grilled Lampack on Clive’s sales numbers. Instead of the 100 million Dirk Pitt novels Cussler, Lampack, and Putnam claimed had been sold, the figure, Rader insisted, was closer to 42 million. This glaring disparity not only “perpetrated a massive fraud” to secure an “unprecedented contractual agreement,” it meant Clive’s audience was much smaller than he asserted and the major reason Sahara bombed at the box-office.
An hour after Lampack completed his sixth day of testimony, Anschutz’s lawyers filed a lawsuit against the agent, alleging Lampack intentionally inflated his client’s book sales. Fields was outraged. “It is a typical Anschutz bullying tactic to try to intimidate a witness on the other side by suing him personally. It is disgusting and despicable.”
On February 16, the jury, attorneys from both sides, the judge and his staff, escorted by a company of sheriff’s deputies, boarded a bus in front of the court building. Their destination was a screening room at Paramount Pictures studio lot where they watched a private screening of Sahara. The field trip was Rader’s idea. “It is important for the jury to decide whether audiences enjoyed the movie or not. The only way to do that is to see it in a real movie theater with a real projection system.” Fields argued the viewing would not only put “too much emphasis” on the movie, “It’s prejudicial and pandering to the jury.” A wag suggested the jury was being “subjected to something that tilted toward the cruel and unusual.” The Los Angeles Times reported, “Sadly, no popcorn will be served.”
On February 21, it was Karen Baldwin’s turn to testify. Called as a hostile witness by Fields, she was shown several memos, including one in which she declared $10 million was a bargain for the rights to a Clive Cussler novel. When
Fields asked her to reiterate Crusader’s tortured odyssey to produce a suitable script, Baldwin admitted Paramount’s production chief Karen Rosenfelt deliberately misled Clive by telling him the studio “loved” his screenplay when, in fact, nobody liked it. In a 2003 e-mail introduced into evidence, Baldwin informed Clive, “Paramount is a studio notorious for distortion of the truth whenever necessary in order to avoid conflict or cast themselves in a good light.”
When Anschutz’s lawyers criticized Fields for attempting to “sully” Baldwin’s reputation in an effort to shift the jurors’ attention away from the facts of the case, Fields responded, “The real disruption to the movie was the breathtaking duplicity of Karen Baldwin telling one person one thing and another person another thing. I can’t help if she has no credibility.”
As the trial progressed, dozens of witnesses were called to testify. Among them were two experts who provided very different opinions of Clive’s talent. Robert McKee, actor, professor, and creative writing instructor best known for his bombastic, profanity-laced Story Seminars, was brought in to testify for Anschutz’s side. Asked to critique Clive’s screenplay, McKee responded, “I mean, I cannot overstate how terrible the writing is. It is flawed in every way writing can be flawed.” When he was informed Sahara, the book, was a commercial success, McKee scoffed, “Bad writing often makes a lot of money.” During Fields’s cross-examination, McKee described The Da Vinci Code as, “flawed,” and characterized Citizen Kane as, “Heartless,” “emotionally empty,” and “cold.”
Testifying on Clive’s behalf, Lew Hunter, chairman emeritus and professor of screenwriting at the UCLA Department of Film and Television, stated changes made to the screenplay, including the elimination of a scene where a hero kills a villain, were a major mistake. “We’re a justice-driven audience,” he explained. “We want to see the bad guys gone.” Hunter was also critical of the film’s “juvenile humor” and “superficial” romantic scenes he classified as “Marina del Rey-like,” not at all typical of Clive’s writing.
On April 15, the attorneys from both sides were called into Judge Shook’s office. They were shocked when he told them he might declare a mistrial.
Judge Shook’s threat of a mistrial was provoked by a special report appearing in the business section of the Los Angeles Times. Written by Glenn Bunting, the headline asked, “How do a bestselling novel, an Academy Award-winning screenwriter, a pair of Hollywood hotties and a No. 1 opening at the box office add up to $78 million of red ink?” Based on leaked confidential documents entered into evidence, Bunting provided an item by item enumeration of Sahara’s $160 million budget, exposing the mind-boggling money nonchalantly thrown around by Hollywood executives.
“The concern that I have,” Judge Shook said, “is that the jury is going to be deciding this case on something other than the evidence that was presented during the trial.” Marvin Putnam was outraged. “I’m floored that these documents could have been provided by someone, despite the fact that there is a clear agreement within the litigation ensuring that they are confidential.” Before he declared a mistrial, Shook decided he would think about it. “I hate to do it,” he said. “Both sides have spent so much money.”
“Movie budgets,” Glenn Bunting reported, “are one of the last remaining secrets in the entertainment business, typically known to only high-level executives, senior producers, and accountants.” Among the items in the purloined ledger - McConaughey was paid $8 million for the twenty-four-week shoot. He also received an additional $833,923 in “star perks,” including $179,262 for entourage travel, $114,000 for his assistant, and $72,800 for his hair colorist. Penelope Cruz earned $1.6 million. Her hairstylist took home a check for $135,550. Steve Zahn’s $2.2 million salary was augmented with perks totaling $264,153, including two fitness trainers, first-class round-trip airfare to Morocco, business-class airfare for his wife, two children, and nanny, and coach tickets for his personal assistant. Ten screenwriters shared $3.8 million, and a total of $237,386 was doled out for “gratuities” and “local bribes.” Dayna Cussler’s deleted forty-six-second crash scene cost $2 million and a list of “incidentals” included $1.4 million for catered meals, $105,556 for bottled water, and $16,744 for prop skeletons.
Judge Shook decided that the Los Angeles Times airing of Hollywood’s dirty laundry was not an adequate reason to declare a mistrial and the proceedings ground on. Thirteen weeks after the trial began, Clive was finally called to testify. Fields was able to persuade the judge to throw out testimony about Clive’s alleged use of racial and anti-Semitic slurs and any reference to a cartoon Clive drew depicting Howard Baldwin planting a kiss on Sherry Lansing’s derriere.
The unflattering cartoon was rendered on a copy of a 2002 news release announcing Paramount had signed a three-year deal to distribute Crusader’s films. Clive had sent it to Lampack who inadvertently allowed it to fall into the hands of Anschutz’s lawyers.
As he had done earlier with Lampack, Putnam clobbered Clive on his sales numbers. Anschutz had paid a litigation consulting firm, Freeman & Mills, $200,000 to examine Clive’s royalty statements and sales reports from three publishing houses. Their “forensic” report suggested the 100-million number was actually half of that. When Putnam asked Clive if he pulled the 100-million figure out of thin air, Clive replied, “Pretty much.” Clive also admitted Lampack had warned him in the late 1990s against mentioning the number of books he had sold since the actual amount was not known. Instead, he should talk about the number of books “in print.”
There is a big difference between books printed and books sold. Not only do publishers often hype the numbers to create interest, stores can return unsold copies to the publisher and receive full credit. When books were shipped to thousands of small stores, nobody knew how many copies were sold except the publisher and the author - and sometimes not even the author.
In 2001, Nielsen BookScan was launched, a service that tracks and reports information gathered from approximately 70 percent of the U.S. book market. Although BookScan has added a new level of accuracy, the actual number a book sells still depends on how much information publishers are willing to share. Commenting on Clive’s sales numbers, Albert Greco, professor of marketing, communications, and media management at Fordham University stated, “If Anschutz was willing to pay Freeman & Mills Inc. $200,000 to investigate Clive’s sales numbers, he probably should have done it before agreeing to spend $10 million for the rights to Sahara. If you don’t do your due diligence, this is what you end up with - a lawsuit.”
“When it came time for me to testify, Burt and his girls really screwed up,” Clive says. “They didn’t prime me. Just wanted me to play the kindly old grandpa and not come off like a curmudgeon. ‘Say yes, no, or you don’t remember.’” Clive insisted neither he nor Lampack had mentioned the 100-million number during their original meeting with Anschutz in Denver. Putnam’s habit of constantly asking the same questions over and over exasperated Clive to the point where, at one point, he buried his head in his hands. “I did all right the first four days,” Clive says, “but the last day, they kept harping on the numbers and slaughtered me. There’s a photograph taken after I finished testifying and I look like I’ve just been mugged.”
During the trial, Clive’s family was a steadfast presence in the courtroom. Dayna, living in Los Angeles, attended three or four times a week. “The LA County Courthouse is old and dirty,” Dayna says. “I couldn’t help but feel for the poor jury who gave up three months of their life, especially with some of the nonsense that went on. I almost got kicked out of the courtroom for laughing when they put Karen Baldwin on the stand. When Clive’s lawyer asked her if it was her signature on a contract, which it obviously was, all she could say was, ‘I’m not sure.’”
Dayna’s decision not to attend Sahara’s premier proved to be a wise move. During her deposition by Anschutz’s lawyers, they asked her what she thought of the movie. When Dayna told them she had never seen it, they insisted she had rec
eived the tickets and somebody was sitting in those seats. “When I explained the tickets were given to a couple of tourists,” Dayna says, “Those lawyers didn’t know what to say.”
Janet spent almost every day in the courtroom. “The experience,” she says, “was extremely tedious - I must have finished a million crossword puzzles - and often turned ugly. Anschutz’s lawyers were trying to make Clive out as a confused old man and a liar. We were all worried about the toll it was taking on him.” Marvin Putnam took everybody by surprise when he unexpectedly rested his case after the lunch break on Clive’s fifth day of testimony. “This case,” Putnam announced to the press, “doesn’t have to go a minute longer. I don’t think there is a soul in that courtroom that believes what Cussler was saying.”
On May 1, Fields presented his closing arguments. First, he countered Putnam’s portrayal of his client. “They have tried to smear Clive with all kinds of side issues that don’t go to the main point - the breach of contract.” He then went on to ask, “Of course, we have the $64-billion question, ‘Where is Philip Anschutz?’” By resting his case, Fields reminded the jury, Putnam ensured Anschutz would not have to testify. “Cussler,” Fields said, “took his lumps. You really got to know him. He sat there and took it. Yes, he has a bad memory. Yes, sometimes he struggles for words. I think you will conclude he is not an evil man . . . Mr. Anschutz failed to take the heat off. [Yet] it is Mr. Anschutz that wants you to enrich him at Mr. Cussler’s expense.”