Loretta read the complaint at her desk, once, the way she read everything, and then she did the thing that her firm's counsel, in New York, had learned to expect from her and that newer lawyers on the file found unnerving: she asked for the answer to be exactly as long as the truth required and not one sentence longer. The answer, when it was filed, ran to nine pages. It admitted the term sheet. It admitted the notice. It admitted the withdrawal. It denied that the condition had been satisfied or waived, and it attached the same four documents, and it asked the court to read them, and it closed with a request for a hearing at the court's earliest convenience, which, in the practice of that court, was not a courtesy but a weapon, because defendants who are bluffing do not ask for the earliest convenience of anybody.
The hearing was held on a gray morning six weeks after the filing, in a courtroom with the particular acoustics of county government, all wood and echo and radiators. The judge was a woman in her sixties who had spent eleven years in commercial practice before her appointment and who was known, in the courthouse, for reading exhibits — actually reading them, in chambers, with the complaint beside them, a habit so uncommon that lawyers spoke of it the way sailors speak of weather. Fairhaven's counsel argued first, and argued well, for the better part of an hour. He argued the company's reliance. He argued the syndicate's course of dealing, the three deferrals accepted without protest, the closing dinner scheduled, the celebration planned. He argued that a condition designed as a protection had been used as a pretext, and he was careful, throughout, never to say what the pretext was, because the complaint had been careful never to say it either, and the whole architecture of his argument rested on a word — pretext — that required another word beneath it, and the other word was not in his brief, because to put it in his brief he would have had to allege, in a pleading, the thing that everyone in Atlanta finance had by then heard in three versions, and his client had instructed him, or he had instructed his client, that the pleading would not go near it.
The judge let him finish. Then she did the thing she was known for. She picked up the exhibit binder.
"Mister Whitaker," she said — his name was Whitaker, and he was a partner in a firm whose name was on the tower across the street from Loretta's — "I have read your Exhibit D. I want to be sure I understand what it is. It is a letter, is it not, from the trustee of these trusts, addressed to your client and to the syndicate, signed by the chairman of the trustee bank, stating the funding position of the Georgia pre-need trust, computed by the trustee from the trustee's own records, as the term sheet required?"
"It is a letter from the trustee, Your Honor, which the company is reviewing, and whose methodology the company disputes, as our filings—"
"It states a figure of seventy-one percent." The judge turned a page, though she plainly did not need to. "And Exhibit B, the term sheet, conditions the closing on the trustee's confirmation of the funding ratio. And the borrower's own appendix, which I find at Exhibit C, represented the ratio to the syndicate as ninety-eight percent. Have I misread any of these documents?"
"No, Your Honor, but the question before the court is not the arithmetic, it is the conduct — the implied covenant—"
"The implied covenant," the judge said, "does not require a lender to lend five hundred and forty million dollars against a representation that its borrower's own trustee has corrected by twenty-seven points. I have read the deferral letters as well. Three times your client asked the syndicate to wait for this letter. The letter has now arrived, and your client asks this court to hold that the syndicate was obliged to disregard it. That is not a claim. That is a preference." She closed the binder. "The condition failed on the borrower's own paper, counsel. The notice said so, and the notice was right, and the complaint, which attaches the paper, proves the answer. Judgment for the defendant on the pleadings as to the breach claim. The good-faith claim fails with it, for the reasons stated. We are adjourned."