Two months after a federal judge awarded an Austin legal recruiter $3.64 million in a trade secrets case against a former employee, the litigation, already more than five years old, seems far, far from over.
Since U.S. District Judge Robert Pitman in Austin ruled Sept. 15 that Evan P. Jowers improperly poached business from his former boss, legal recruiter Robert E. Kinney, Jowers – as is common for losing parties – has filed a notice of appeal. But he has also filed a new lawsuit in Florida and a motion before Pitman for a protective order, alleging that Kinney threatened Jowers’s family.
Meanwhile, Kinney is seeking sanctions against Jowers and his current and former lawyers for “wanton discovery abuses and clear violations of ethical duties.” And he’s alleging that Jowers is trying to shield assets by making “fraudulent transfers” to “flush cash” and evade paying Kinney’s recruiting company, Counsel Holdings Inc. (previously known as MWK Recruiting Inc.), the judgment and attorney fees it is owed under Pitman’s ruling.
“I’m not going to get played by this joker any more,” Kinney wrote in a Sept. 22 email to one of Jowers’ lawyers. “He needs to pay up. I will literally spend the rest of my life or his coming after his business. … I’ll take his trademarks, I’ll take his website, and I’ll take his used dental floss.”
He continued: “We just offered a reasonable settlement and Evan’s response was to go buy a $90K car” – an Audi for his mother – “and brag about it on Facebook. … I’m coming after his wife’s mink coat that he spent $20K on, his bank accounts, everything.”
As for the Audi, Kinney wrote, “I’m going to have the sheriff take that car away from his mom while she is watching with someone there to videotape the scene and then I’m going to put it on YouTube and send it to all to see that I did it.”
Kinney later acknowledged in a filing before Pitman that “the tone and content” of his email were “harsh, and regrettable in hindsight.” However, he added, “there is nothing illegal or immoral about stating that counsel intends to exercise its right to execute on every available asset of Jowers to satisfy the judgment if the matter cannot be resolved.”
In addition to being a legal recruiter, Kinney is a lawyer, representing his own company in the suit, along with Raymond W. Mort III of Austin. They declined to comment.
Attempts to set up an interview with Jowers and his lead counsel, Robert Tauler of Tauler Smith in Los Angeles, were unsuccessful.
‘This case has hit many of the low notes’
The Florida lawsuit, the appeal of Pitman’s ruling, the motion for sanctions and the motion for a protective order – all of which are pending – are but the latest of many twists in a five-year war of writs between two colleagues-turned-competitors.
For a labor dispute over a few million bucks (according to the only judge who’s assessed its valuation), the case has drawn inordinate attention among lawyers and journalists who’ve discovered the colorful language heavily sprinkled through its pages.
You can read a lot of case files before finding a description of a lawyer as “metaphorically speaking, a terrorist.”
Or one lawyer telling another, “It’s been a slow and easy walk kicking your ass up and down the block.”
Or someone telling a judge, “I find your conduct to be alarming. … You are seeking media attention. … You have been grossly negligent in your duties.”
The Austin lawsuit accused Jowers of using contacts he’d made during 10 years at Kinney’s recruiting company, and confidential information he obtained during his final year there, to earn hundreds of thousands of dollars in placement fees after he helped launch a competing legal recruiter, Legis Ventures. Jowers left Kinney’s company in December 2016. (The two men disagree even on the circumstances of Jowers’s departure. He says he was fired, but the company has on file a resignation letter he wrote.)
Kinney sued Jowers in March 2017 in state court in Austin, claiming Jowers engaged in a “calculated scheme of deception and dishonesty” to generate extra compensation for himself as he was preparing to depart.
The case was removed to federal court and assigned to Pitman in May 2018. Pitman conducted a bench trial last December, then in September ruled in favor of Kinney’s company, Counsel Holdings.
Kinney’s “used dental floss” email, sent a week after Pitman’s ruling, led Jowers to seek a protective order, claiming his adversary’s comments constituted a threat to his family. Separately, Jowers used the email and two related ones as the basis to sue Kinney and his recruiting company in state court in Gainesville, Florida. (Jowers claims Florida as his state of residence.) That suit – which Kinney called frivolous – alleges that Kinney violated Florida’s Consumer Collections Protections Act, which prohibits debt collectors from using “profane, obscene, vulgar, or willfully abusive language” in communicating with a debtor or a member of the debtor’s family.
Jowers’s suit argues that he is, under Pitman’s judgment, an alleged “debtor” to Kinney’s company. He’s demanding a jury trial. And he predicted that Kinney’s continuing improper conduct “will result in a multiplicity” of additional suits.
Kinney said in an Oct. 3 declaration to Pitman that “there is no rational basis” for the claim that he engaged in illegal debt collection “and there certainly is no basis for jurisdiction over me in Florida on a suit related to Jowers’s employment relationship with MWK.” The suit, he said, appears to be “just more of the same” from Jowers and his lawyers.
Then, on Oct. 17, Counsel Holdings filed a motion for sanctions against Jowers; his lead counsel, Tauler; and his former lead counsel, DLA Piper’s managing partner in Dallas and a second DLA Piper partner.
“From discovery obstruction, to hiding of documents, to falsification of declarations, to harassment of third parties, this case has hit many of the low notes,” said the motion.
Sanctions for the type of conduct alleged in the motion could include a court order to pay excess costs, expenses and attorneys’ fees incurred because of the conduct.
Jowers’ DLA Piper lawyers, until they withdrew from the case June 4, 2020, were Marc D. Katz and James C. Bookhout. In addition to managing the firm’s Dallas office, Katz chairs its U.S. employment practice.
Counsel Holdings’s motion for sanctions said, “DLA Piper was the architect of a bad faith litigation strategy designed to avoid the merits by multiplying the proceedings.”
The public court file gives no specific reason for the firm’s withdrawal, saying only that “DLA Piper and Mr. Jowers are unable to reach agreement with respect to the continued development of this matter.”
Katz and Bookhout, it said:
- “Added numerous parties and claims to the case without any reasonable basis for doing so” as a way to make discovery onerous.
- “Pursued multiple frivolous claims and defenses that were obviously time barred or otherwise fatally flawed.”
- Made “excessively burdensome” discovery demands, while helping their client avoid discovery.
- Filed an answer and counterclaim that included “11 claims and 18 affirmative defenses against seven different defendants,” most of which had no legitimate purpose but still were time-consuming to address. At trial, “no evidence at all was presented to support most of them, and there was almost no argument in post-trial briefing.”
Tauler, as Jowers’s new lead counsel, “was happy to continue and even increase the strategy of harassment and waste DLA Piper had set in motion,” the motion said.
DLA Piper’s counsel, Fields Alexander, a Beck Redden partner in Houston, said the firm “vigorously denies the assertion that its representation of Mr. Jowers was in any way improper or would warrant the imposition of sanctions.”
In his response to the motion for sanctions, Alexander wrote that “DLA Piper has done nothing wrong” and called the motion “a meritless attempt to locate a deep pocket from which to collect, long after DLA Piper exited from this litigation.”
He added that Kinney’s company “has submitted no credible evidence to this court (much less clear and convincing evidence) that DLA Piper in any way acted in bad faith, with an improper motive, or with reckless disregard to its duty to the court.”
Tauler, responding for himself and Jowers, said granting Kinney’s motion for sanctions “would fundamentally alter the role of defense counsel in any case, and have far reaching implications that would inhibit any defense counsel from forcefully advocating for their client within established ground rules.”