After a year of uncertainty and resistance, a fight between two legal recruiters may end up on two continents after all.
In a nine-page ruling, a federal appeals court vacated a foreign anti-suit injunction from Austin federal judge Robert Pitman that halted a Hong Kong defamation lawsuit between recruiter Evan Jowers and Austin recruiter Robert Kinney.
Friday’s ruling, issued in an unpublished opinion by the U.S. Court of Appeals for the Fifth Circuit, says Judge Pitman misconstrued a prior Fifth Circuit decision in ways that would allow misuse of what was intended to be “an extraordinary remedy.” The court remanded the matter back to Pitman for further consideration based on certain guidelines.
The appellate ruling is the latest twist in a yearslong battle between the colleagues-turned-competitors.
Jowers’ departure from Kinney Recruiting (now appearing in court papers as MWK Recruiting) nearly four years ago kickstarted the twin set of lawsuits in Austin federal court and Hong Kong. Jowers worked in Hong Kong for Kinney Recruiting for nearly a decade, departing in December 2016 from what he called a “toxic employment relationship” to start his own recruiting firm.
Kinney sued Jowers in Austin a few months later on allegations that, among other things, Jowers violated his employment agreement and stole trade secrets. Last year, Jowers lodged his own counterclaims (including accusations of extortion and racketeering) against Kinney in the Austin suit and filed a new defamation suit in Hong Kong alleging Kinney had sent defamatory emails after Jowers’ departure to law firms and candidates — including false statements that Jowers had committed theft against Kinney Recruiting — in an attempt to stop potential clients from doing business with Jowers.
The Hong Kong suit has not progressed much since. Judge Pitman signed an anti-suit injunction last November that barred Jowers from pursuing his claims in Hong Kong. Judge Pitman sided with Kinney’s argument that the Hong Kong matter was a “vexatious and oppressive” duplication of the Austin litigation.
Jowers appealed Judge Pitman’s ruling to the Fifth Circuit this spring, arguing that Pitman erred when he found the anti-suit injunction was warranted based on a single factor: that a “logical relationship” exists between the domestic action and the Hong Kong action. Jowers argued the district court did this despite other factors set by Fifth Circuit precedent that it should be considered “holistically.”
Kinney countered that Pitman got it right and properly followed 50 years of precedent set by the Fifth Circuit on the matter.
In their opinion, Fifth Circuit Judges Jerry Smith, Stephen Higginson and Kurt Engelhardt sided with Jowers, ruling that Judge Pitman ruled inconsistently with Fifth Circuit precedent by erroneously applying the court’s “logical relationship test.” The appeals panel vacated and remanded the matter back to Judge Pitman for further consideration.
“The duplicative factor is about legal, not factual, similarity,” the opinion says. “We find suits to be duplicative where they involve the ‘same or similar legal bases.’”
The Fifth Circuit also questioned the trial court’s use of the logical relationship test to begin with, since its use would “erroneously increase” the volume of anti-suit injunctions (defined by the courts as an “extraordinary remedy”).
“Reliance on the logical-relationship test, therefore, lowers the bar for anti-suit injunctions, rendering them common place,” the judges wrote. “That result is contrary to our precedent.”
Jowers told The Texas Lawbook that he was “very happy” with the Fifth Circuit’s ruling.
“The defamation case in Hong Kong is very important to me and my colleagues, and many of my clients,” Jowers said. “Kinney has brought a frivolous lawsuit against me, in bad faith, in Texas and has been defaming me with written and oral statements to my clients in Hong Kong for several years now. We are confident we will successfully defend Kinney’s claims in the Texas litigation and also win in the Hong Kong litigation.”
Kinney told The Lawbook he was disappointed the parties received an unpublished opinion.
“I think they chose to issue a nonprecedential opinion addressing a perceived conceptual distinction rather than an actual one,” he said. “They didn’t say there should be no injunction; they just didn’t like how the judge got to his decision. Our case will be over long before the Hong Kong case moves forward, if he (Jowers) is silly enough to even press that case.
“It is unfortunate if the small success with that injunction appeal causes Jowers to continue wasting time and money fighting us,” Kinney added. “I know why his lawyers might be telling him he will win, but it’s not because of the merits.”
DLA Piper lawyers from Asia and Dallas are representing Jowers in the Hong Kong suit and Fifth Circuit matter, respectively. The Dallas lawyers include Marc Katz and James Bookhout. California trial lawyer Rob Tauler is representing Jowers in the Austin federal suit.
Kinney, who still maintains his legal license, is handling a large chunk of the legal work. He spearheaded his side’s efforts in the Fifth Circuit, but at the trial level, he has retained Austin attorney Raymond Mort III and New York attorney Tristan Loanzon.