had already spent more than $2 million on their defense.
Boies had come to their powwow with Mike Underhill, one of the Boies Schiller attorneys running point on the litigation. Underhill, a very tall and gangly man, broke the ice by asking Richard Fuisz if he had really grown up on a farm (the answer was yes). That led to Fuisz and Boies discussing raising cattle, which Boies had some experience with from the ranch he owned in Napa Valley. When the conversation eventually turned to the matter at hand, Underhill said both sides would be better off settling the case. If, however, the Fuiszes remained intent on pressing forward with the trial, they should know that matters would be revealed that would destroy John Fuisz. Underhill didn’t specify what nor did he say this menacingly. He made it sound as though he liked John and it would pain him to see him get hurt. There was some irony to Underhill’s threat to air dirty laundry about John. The two of them had once been colleagues at McDermott Will & Emery and had shared a secretary. Underhill had left McDermott not long after John had made a sexual harassment complaint against him on the secretary’s behalf to the firm’s human resources department. (Underhill denies any untoward behavior and says his departure from McDermott to join Boies Schiller was already in motion.)
The prospect of new damaging information coming out about his brother added yet another worry to Joe’s long list, but the truth was that he and his father had come to the meeting ready to settle. It didn’t take long for an agreement to take shape: the Fuiszes would withdraw their patent in exchange for Theranos withdrawing its suit. No money would change hands; each party would remain responsible for its legal costs. It amounted to a complete capitulation on the Fuiszes’ part. Elizabeth had won.
Boies insisted they draft the agreement right then and there. He wrote the terms down on a piece of paper and passed it to Joe, who made a few modifications. Underhill then took it upstairs to have it typed up. As they waited for Underhill to return, Richard Fuisz complained once more that Elizabeth’s theft accusation was false. Playing the part of the magnanimous victor, Boies allowed that that might be the case but he had a client to answer to.
Fuisz asked Boies if he could do something for John. His son’s reputation had been unjustly sullied, he said. Underhill had previously raised with Joe the notion that Boies Schiller could refer patent work to John if he signed a release promising not to sue Elizabeth or the firm. Boies repeated that offer. He would need to wait six months for things to quiet down, but then he could start sending work John’s way. He suggested they get John on the phone to talk it over.
Fuisz dialed John’s number in Washington and passed his cell phone to Boies. As it turned out, John was in no mood to make nice. He had been looking forward to testifying in court. He saw it as his chance to clear his name. Now this settlement would prevent him from doing that. He angrily told Boies there was no way he would ever sign a release unless Theranos issued a public statement exonerating him. Richard and Joe could see the conversation wasn’t going well: Boies was holding the phone several inches from his ear and wincing as John shouted on the other end of the line. After a few minutes, Boies passed the phone back to Fuisz. Their little side deal was dead.
But the main agreement stood. When Underhill came back with the printed settlement, Richard and Joe read it and signed it. Afterward, Richard Fuisz looked utterly defeated. The proud and pugnacious former CIA agent broke down and sobbed.
* * *
—
THE NEXT MORNING, Fuisz jotted down a note on a paper pad from the hotel and, when he got to the courthouse, asked Boies to pass it on to Elizabeth. It read:
Dear Elizabeth,
This matter is resolved now. I wish great success for you and health and happiness for your parents. We all can be wrong. Life is like that. Please know that in fact none of the 612 patent came from any of your provisionals. It derived from my brain only.
Best wishes,
Richard Fuisz
Back in Washington, the settlement didn’t sit well with John Fuisz. He was mad at everyone, including his father and brother, for agreeing to