I remember the first time I met Dave Fix. The year was 1987. I had just taken a new job as a litigator at
the Federal Trade Commission, specializing in suing companies involved in
investment fraud. When I saw Dave on
the 2nd floor of the FTC building, I honestly thought he was a manual
laborer. He dressed the part. And he spoke like a blue collar guy. I had no clue at first that he was an
attorney with my office. But even though
I was just a few years out of law school and Dave was one of the most highly decorated
professionals in the agency, his title was the same as mine – Staff Attorney. He never sought out a promotion, nor would he
have wanted one. Dave was one of the three least pretentious
people I’ve ever known, the others being my wife and my father.
It didn’t take long for me to get to know Dave well,
or at least as well as you can get to know Dave. He did, after all, live in his own little
world. An important part of that world
was his office on the Constitution Avenue side of the FTC Building. Dave didn’t spend as much time in the office
as the other lawyers on our hall. After
he showed up in the building, which was typically hours after the rest of us
arrived (he spent the early morning working on his golf driving range in
Virginia), Dave would mostly go from one office to the next, mentoring the
young lawyers. He’d make a few jokes, ask
you about your cases, provide just about the best litigation advice you could
possibly receive, cough and snort more than a few times (Dave was never in the
best of health), and then move on to the next office. Back then, our Division had two Assistant
Directors, but combined, they supervised fewer people than Dave did, despite
his lack of a title.
If you found Dave in his office, he was probably
lying down on the couch, perhaps with some court pleading in his hand. Perhaps not.
The most recognizable objects in the office weren’t his couch, or even
his desk, which seemed pretty useless. I’m
referring to the two impressive silver bowls he kept on top of a file cabinet.
Why Dave needed a file cabinet I never knew.
It wasn’t like he wrote briefs himself; he simply advised people and
edited their writing. Dave’s bowls
commemorated his two Louis Brandeis Awards, the honor that the FTC gives out to
a single lawyer each year to recognize achievements in litigation. Receiving the Brandeis in 1995 was one of the
greatest honors I’ve ever received.
Dave, however, used his Brandeis Awards as ashtrays. He liked to smoke. And drink.
Probably not a wise course of conduct for an overweight diabetic. But it suited Dave.
With the possible exception of Donald Trump, nobody
could slay you with a nickname better than Dave Fix. One by one, thanks to Dave, I would come to
know certain individuals by a single moniker – a word or a short phrase. Dave’s nicknames sliced into people like paper
cuts; believe me, they were surgical. You
could see from the way he would capture a person’s foibles why he was so good
at identifying precisely what was wrong with a fraudulent scheme or precisely
what legal theory would work to confront that scheme. With every other successful attorney, the practice
of law is 99 percent perspiration and one percent inspiration. With Dave, it was the other way around.
Dave was fiercely loyal. And he inspired loyalty in return. I’ll never forget the lunch I had with Dave
and two of our colleagues, one of whom was the head of the division, Mike
McCarey. To set the scene, I worked for Mike’s
office from 1987 to 1989, and then left for two years while I worked in the
field of education. In 1991, I decided
that I wanted to go back to my old job at the FTC, and the lunch I’m
referencing was essentially my job interview.
Mike said to me, quite understandably, “_____ [the other colleague at
the lunch] says that you weren’t very happy when you worked here before. Why do you think you’ll be happy now?” Before I had a chance to answer, Dave turned
to me and said, “I just have one question.
Can you promise you’ll work here for nine months?” “Excuse me?” I said, puzzled by his
question. So Dave asked it again. “Can
you promise you’ll work here for nine months?”
“Yes,” I said, not knowing where he was going. And at that point Dave turned to Mike and
practically yelled, “So what the f--- are you doing? Hire him!”
Dave’s use of the F word in that context was hardly
surprising. He frequently salted his
language with earthy words. He was, in
all respects, a regular guy. He may have
lived his adult life in the Washington DC area, but I always associated him
with Idaho, where he came from. Sure, he
went to Harvard as an undergrad and Stanford for law school, but there was
nothing at all hoity-toity about Dave.
One of Dave’s most common refrains was that instead
of relying on the judgment of an FTC bureaucrat, we should just ask the
cleaning crew what they think. Because
Dave always mixed in a few colorful nicknames and other flourishes, these
comments always came across as jokes. The
thing is, though, he wasn’t joking.
My wife remembers a story about how she visited me
in the office in 1987 and I was wearing a ripped sweater. “You can’t dress like that at work,” she
said, to which I responded, “Why not? My
boss does.” Sure enough, a few minutes
later, Dave came into the office wearing something worse. I went with the rips, he went with the
stains.
I realize that what I’m describing sounds a bit like
the Keystone Kops. And truly, there were
times back in those days when I felt like the lunatics were running the asylum. But let’s put this in perspective. Our Division,
the Division of Service Industry Practices, was undeniably the flagship office
of the Bureau of Consumer Protection, if not the entire agency, for many
years. And this was in no small part
because Dave Fix had a vision about how broadly courts can act whenever a
statute confers upon them so-called “equitable powers.” Specifically, because the FTC Act entitles the
Commission to obtain injunctive relief (an equitable remedy) in order to
address deceptive trade practices, Dave convinced judges that they were
empowered to award ANY equitable relief necessary to redress such deceptive
practices. These powers include providing, without prior notice to a defendant,
an independent receiver to oversee a business accused of fraud, a temporary freeze
of the defendant’s assets, and immediate access for FTC officials to inspect
the books and records of a defendant – not to mention restitution to the
consumers victimized by the fraudulent scheme.
As a legal pioneer who waged war against corporate
fraud, Dave was big time. But he
was also a big time mentor. One after
another, young lawyers would learn from Dave what it means to put aside the
customary B.S. that so often fills the rooms in Washington, D.C. and get to the
bottom of every dispute. He reminded us
that while we happen to work as lawyers for a government agency, our jobs were
to work for the people, and not for some institution that sits above the people. Dave was the antithesis of a bureaucrat. If you couldn’t buy into what he was
selling, you needed to have your soul examined.
On Wednesday, February 8, 2017, the FTC Daily sent
out an e-mail that began as follows: “It
is with great sadness that we report the recent loss of members of our FTC
family: Dave Fix, a long-serving
attorney in the FTC’s Bureau of Consumer Protection who retired a few years
ago, passed away over the weekend.
During his decades with the FTC, Dave helped transform the agency’s
consumer protection mission. He was one
of the architects of the use of Section 13(b) to combat fraud, and ... he mentored
a number of BCP attorneys through the years.
Dave was awarded the agency’s Louis D. Brandeis Award twice for his
extraordinary litigation skills. Dave
will be greatly missed by his colleagues in BCP and throughout the FTC.”
Actually, Dave is the type of lawyer who will be
missed not only by his own colleagues but even by his opposing counsel. As indicated above, anyone with a soul loved
the guy. And even though he as much as anyone
else taught me what it means to be a true public servant, I will miss his
friendship above all. You see, David
didn’t just have a big body and a big brain.
He had one hell of a heart.
Rest in peace, Big Guy. I look
forward to your Irish Wake. And to
continuing to go to the office and behave as non-bureaucratically as possible
in your memory.
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