EPISODE 6
“A Public Spectacle”
On March 11, 2016, Loeb & Loeb lawyers Gabrielle Vidal and Amy Koch took litigation attorney Rob Klieger to meet Sumner at his Beverly Park mansion. Southern California was uncharacteristically lashed with winds and heavy rain that afternoon, so they pulled up to the garage after navigating the entrance gates. Sumner was waiting in his favorite recliner in the living room while watching CNBC on his large-screen television.
Klieger had never met Sumner, and his physical appearance came as a shock. He looked extremely frail. Vidal did most of the talking, and when Sumner responded he did little more than grunt. Fortunately, Jagiello was on hand to translate.
Up to that point, Vidal had been leading Sumner’s legal defense in the Herzer suit. But Judge Cowan, after digesting Read’s report on Sumner’s mental acuity and calling its details painful to read, had denied Sumner’s motion to dismiss the case. He noted that both sides had agreed that Sumner was suffering from a “subcortical neurological disorder” causing “cognitive impairment” and decided that his mental competency was enough of an issue to warrant a trial. He also found it odd that Sumner would replace Herzer as his health care agent with Dauman, who didn’t live in Los Angeles, rather than with a family member like Shari. He set a trial date for the first week in May.
Because Vidal herself was a potential witness, given her presence the day Herzer was ejected, not to mention her law partner Bishop’s pivotal role in the events at issue, Sumner needed a lawyer who didn’t face any potential conflicts. Hence the choice of Klieger, a partner at the litigation firm Hueston Hennigan who’d represented Paramount, MTV, and other Viacom entities from time to time but brought a fresh eye to the recent melodrama in Beverly Park. He’d never met Sumner or Shari.
Klieger’s close-cropped hair was tinged with gray, but he still looked younger than his age, forty-four, which belied his intensity and determination. He’d grown up in Pittsburgh, the son of a hospital pathologist, living in the same modest family house until he went to Hamilton College and then Stanford Law School, where he graduated second in his class in 1997. He’d always been driven to excel as a student, and as a lawyer he was a self-described workaholic, typically billing three thousand hours a year, first at the prominent firm Irell & Manella, where he’d been named a partner at age thirty-three, and then at Hueston Hennigan.
“Could you understand a word he said?” Klieger asked as he and the other lawyers drove away from the estate. Because he hadn’t.
It wasn’t a promising start to a new lawyer-client relationship, but Klieger persisted. He came to see Sumner nearly every day the next week. On his third visit, he arrived before Vidal, and someone on the household staff told him Sumner wanted to get started. So Klieger met with Sumner without the other lawyers.
Sumner spoke with much more passion and conviction than on either of his previous visits. Jagiello was again on hand, which helped, but Klieger was beginning to understand Sumner’s words without him. The message Sumner conveyed was perfectly clear: he did not want to sell Paramount or any part of it. He was angry that Viacom directors, handpicked by him for their supposed loyalty, had supported Dauman behind his back. He asked Klieger to call Viacom board members and tell them he adamantly opposed the proposed sale.
Klieger tried to beg off, since he’d been hired for the Herzer case, and this task was unrelated. But Sumner insisted. So Klieger called Viacom’s longtime general counsel, Michael Fricklas, and told him Sumner was opposed to any sale.
The next day one of Sumner’s nurses called Klieger and put Sumner on the line. Had Klieger reached any directors? When Klieger told him he’d spoken with Fricklas, Sumner became agitated and insisted he reach out directly to board members, not to someone who worked for Viacom.
The next day Klieger called two directors, both longtime friends and confidants of Sumner’s: Frederic Salerno, the former chief financial officer of Verizon and Viacom’s lead independent director, and George Abrams, the Boston lawyer who had long represented Sumner and was a trustee of his trust.
Salerno returned the call but was wary, never having dealt with Klieger. He also felt frustrated that none of the Viacom directors besides Shari, not even his oldest and closest friends, had heard directly from Sumner. Was this really Sumner speaking—or was it Shari? Salerno had growing doubts about Sumner’s mental state. And he was suspicious of Shari’s growing influence. Salerno had been seated next to Sumner at a 2014 Viacom board dinner at Sumner’s mansion, the last time Salerno could say for sure that Sumner had his wits about him, and heard him insist then (as he had before) that Shari should not succeed him.
Salerno said he’d have to verify what Klieger said and later asked to meet in person with Sumner, a request neither Klieger nor Shari was inclined to grant given the pending litigation. In any event it was pointless, because Sumner refused to meet with anyone he considered a traitor.
Abrams didn’t respond.
Hoping to defuse the tension and further explain the board’s reasoning, Dauman scheduled a meeting with Sumner and in April flew to Los Angeles. An hour before the meeting, Sumner’s office called him and canceled it.
On Klieger’s next visit, Sumner wanted to know if he’d spoken to any directors and what they’d said. He seemed pleased that Klieger had reached Salerno and left word for Abrams.
Such exchanges gave Klieger more confidence that Sumner understood what was happening and could communicate his wishes. He asked him variations of the same question, some calling for a “yes” answer, others a “no,” to be sure Sumner understood the questions. Sumner’s answers were always consistent. And Klieger found he was getting better at engaging Sumner in conversation without having to rely on a nurse to translate. Still, when it came to important decisions, Klieger confirmed Sumner’s wishes on more than one visit before acting on them.
Sumner was also keenly interested in his money and how it was being spent. He remained intent on getting his millions back from Holland and Herzer, asking Klieger about it repeatedly and demanding that he take legal action against the women.
Klieger managed to deflect him, explaining that it would needlessly complicate the Herzer case to argue that Sumner had been the victim of undue influence when he transferred millions to the women—in the presence of his estate lawyer and a psychiatrist, no less—and then argue in Herzer’s lawsuit that he was not unduly influenced by Shari when he removed Herzer from his health care directive months later. Sumner relented, at least for the time being, but nevertheless kept saying he wanted his money back.
At one point Paula, Sumner’s second wife, contacted Klieger and said Sumner had agreed as a birthday present to pay for up to $150,000 in renovations to her condominium in Florida. Where should she send the invoices?
Klieger confirmed with Sumner that he had indeed made such a promise, so Klieger told her to send the invoices to Sumner’s accountant. But now Paula said the $150,000 was just the first of six installments.
Klieger went back to Sumner. Had he agreed to pay a total of $900,000? Sumner was adamant: he’d pay $150,000 but not a penny more.
Judge Cowan’s ruling allowing Herzer’s suit to go forward unleashed a flurry of subpoenas from the Herzer camp, including one demanding testimony from Shari. Her deposition, in which Herzer’s lawyers intended to explore Herzer’s claims that Shari had organized a spy ring within the household staff and bribed and cajoled them to oust Herzer from her position, was scheduled for the second week of April. And Herzer’s lawyers continued to push for a videotaped deposition of Sumner himself—a tape they expected to be exhibit A in the upcoming trial.
The litigation onslaught gave Herzer considerable leverage, since Shari and her legal team were eager to avoid sworn testimony, especially from Sumner. The lawsuit and the possibility that Herzer might be reinstated were already making him anxious, and he was having trouble sleeping.
Nor did Shari look forward to being dragged through the mud by a lawyer like Pierce O’Donnell, Herzer’s aggressive counsel. Though she thought Herzer’s behavior had been despicable, Shari had already achieved her primary goal, which was to regain access to her father. She and her family were back in his life more than ever before. Galling though it was, she was willing to let Herzer keep the millions she had extracted from her father, including the $45 million transfer, and even pay her more, if she could get Herzer out of her life once and for all.
Herzer, too, had reasons to compromise, with an array of nurses and household employees lined up to testify against her. Shortly after Klieger was hired, the Herzer camp suggested a mediation proceeding to resolve the issues out of court. Sumner resisted, but his family all but begged him to try it. They worried that more litigation would take a further toll on his health and wanted him to focus on something positive for whatever time he had left. Anything it would cost him to be rid of Herzer was money well spent, they believed. Shari’s and other depositions were postponed while the parties negotiated.
The mediator met separately with Herzer and Sumner, and it went well considering Sumner’s hostility to his ex-lover and companion. At the end of the day, a framework was agreed upon: Herzer would get another windfall—$30 million plus the Carlyle apartment (then valued at $5 million), all tax free. She could keep everything Sumner had already given her. In return Herzer would relinquish her claim to be Sumner’s health care agent and she and her children would stay away from him for good. They would waive any claim to his estate.
Herzer’s lawyer, O’Donnell, considered it one of the best settlements he’d ever negotiated. It would be a windfall for his firm as well: a nearly $13 million contingency fee.
But just as the settlement seemed in hand, Herzer made more demands. She and her three children wanted to see Sumner in person at least once again. She wanted her legal fees paid if any member of the extended Redstone family ever sued her. And she wanted a guarantee that she and her children could attend Sumner’s funeral.
O’Donnell was dumbfounded. He all but begged Herzer to accept the settlement he’d negotiated. The mediator also weighed in, warning Herzer that the Redstones had made their final offer and she risked losing everything by holding out for more. But Herzer wouldn’t budge.
Her new demands were duly conveyed to the Redstones. As the mediator had foreseen, this was a bridge too far: there was no way the family would allow Herzer and her children to attend Sumner’s funeral. Sumner himself was furious. He hadn’t really wanted to settle anyway.
Little more than twenty-four hours later, with no word from the Redstone camp and the clock ticking, Herzer changed her mind. She agreed to accept the earlier offer.
But it was too late. The $35 million offer was gone.
Sumner also made clear he wanted Shari to replace Dauman as his health care agent. But some of his lawyers worried that replacing Dauman with Shari would only reinforce Herzer’s claim that Shari was taking over Sumner’s life.
Klieger saw the point but argued that some things are more important than litigation. In what might be his waning days, Sumner was entitled to having anyone he wanted make life-and-death decisions for him. In early April, Sumner duly modified his health care directive and installed his daughter. In an ominous sign for Dauman, he was no longer named an alternate.
With the trial date looming, Judge Cowan ruled on May 2 that Herzer’s lawyer could depose Sumner, on the condition that the session be videotaped at Sumner’s home and last no more than fifteen minutes. The tape could be played at the trial, but only behind closed doors, so the public would not witness Sumner’s debilitating decline.
“Nobody deserves to have a career tarnished by having been taken to a courthouse and made a public spectacle of when he would not allow that to happen had he the strength himself to stop it,” Cowan stated.
On May 7, the day before the scheduled videotaping, Klieger and Vidal met with Sumner to practice. Sumner seemed to recognize the seriousness of the proceeding but was relaxed and in good spirits. He performed well and his speech was easier to understand than usual.
Klieger played the role of O’Donnell, Herzer’s lawyer.
What was his favorite movie? Klieger began.
“The Godfather.”
“Why?”
“My friend Robert Evans produced it.”
What was his favorite team?
“The Yankees.”
And his least favorite team?
“Any team playing the Yankees.”
The lawyers thought the flash of humor was a healthy sign.
(Sumner’s choice of the Yankees as his favorite team nonetheless caused some consternation in the family because Sumner had been a lifelong Red Sox fan. But Sumner could be fickle. If the Red Sox fell hopelessly behind in the pennant race, Sumner switched his allegiance to the Yankees. One year he even cast his lot with Tampa Bay. When push came to shove, winning trumped loyalty.)
The next morning Sumner’s living room looked like a scaled-down set for a Paramount film, with a video crew, an interpreter, and the opposing lawyers. To keep the crowd to a minimum, only one lawyer attended from each side, Vidal for Sumner and O’Donnell for Herzer. In contrast to his appearance at the previous day’s rehearsal, Sumner looked tired, pale, and gaunt.
A worried Vidal called Klieger from the house to report that Sumner hadn’t slept at all the night before. He was having trouble focusing. But it was too late to postpone the deposition.
O’Donnell’s questioning began at 11:55 a.m.
“Good morning, sir. I’m Pierce O’Donnell, attorney for Manuela Herzer. It’s a privilege to meet you. How are you today?”
“Fine. I’m fine,” Sumner responded.
“I want to ask you some questions. Who is Manuela Herzer?”
Sumner didn’t answer.
The interpreter suggested he ask again and speak more slowly.
“Who is Manuela Herzer?” O’Donnell repeated.
“She is . . . ,” Sumner began, then paused. “Manuela is a fucking bitch.”
It was downhill from there. The much-anticipated deposition was over in eighteen minutes.