Sunday, February 12, 2017

Remembering a Beloved Mentor

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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