ial fic Un of C ist ric t C ler k l D nie Da is hr C of e ffic O op y 2018-83861 / Court: 127 accomplished by serving its registered agent for service, CT Corporation System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201 or wherever this Defendant and/or registered agent may be found. JURISDICTION VENUE 4. This Court has jurisdiction of all parties to this suit becauy?efendant USA Gymnastics, Inc. was incorporated in the State of Texas, and the mattersggontroversy exceeds the minimal jurisdictional limits of this Court. 5. Furthermore, this Court has jurisdiction over pursuant 37.003 of the Texas Uniform Declaratory Judgment Act, Chapter 37?he TEX. CIV. PRAC. REM. CODE. An actual and substantial controversy exists betweeng ?attics. By this action Plainti?? seeks a declaration that under the applicable law of Tex 1%actual or imputed con?ict of interest exists. 6. Venue in this matter is propecz?je. Harris County pursuant to ?15.002 of the Texas Civil Practice and Remedies Code beca?a substantial portion of events and omissions giving rise to this cause of action occurre?rris County, Texas. BACKGROUND 7. 0n 2018, Plaintiff was offered the opportunity to join the law ?rm Abraham, Watkins, O\?ls, Sorrels, Agosto, and Aziz (hereinafter ?Abraham Watkins?) as an associate attoran?Plaintiff informed his former employer, Mehafnyeber RC. (hereinafter ?Mehafnyeber?), of his intention to accept the offered position, and submitted his resignation the following week. Upon informing Mehafnyeber of his intention to join Abraham Watkins, Plaintiff was immediately screened from all cases in which adverse parties were represented by Abraham Watkins, including those cases involving Defendant USA Gymnastics, Inc. 8. Plaintiff was employed by Mehafnyeber for approximately 1.5 years prior to his resignation. The Mehafnyeber attorney representing Defendant USA Gymnastics, Inc. in litiga- tion in which certain plaintiffs were/are represented by Abraham Watkins joined Mehatnyeber approximately three (3) months prior to Plaintiff?s resignation. Mehafnyeber did not have any involvement' 1n representing Defendant USA Gymnastics, Inc. prior to the attor- ney representing Defendant USA Joining the firm three prior to Plain- tiff?s resignation. 9. Mehafnyeber made Defendant USA GymnastR-?txare of Plaintiff?s intention to join Abraham Watkins, and his request for a waiver of a @ict of interest regarding cases in- volving Defendant USA Gymnastics in litigation in w? certain plaintiffs were/are represented by Abraham Watkins. No response to the request?\provided by Defendant USA Gymnastics at any time prior to Plaintiff?s employment rings; with Mehafnyeber on October 5, 2018. Plain- tiff executed an a?idavit attesting he n\worked on any matters, or acquired any con?dential information, involving Defendant Gymnastics while employed by Mehafnyeber. 10. On October 9, 018, Plaintiff submitted a written request and af?davit to Defen- dant USA Gymnastics, b?gg through their acting Chief Legal Of?cer, Christopher J. Schneider, of Miller Johnson Rapids, Michigan, for a waiver of any con?ict of interest so that he could join Abra?Watkins On October 18, 2018, Mr. Schneider informed Plaintiff that Defen- dant USA Gymnastics could not consent to a waiver, without providing any reasoning aside from stating ?[g]iven the circumstances?. 11. On November 2, 2018, Plainti?? sent a formal demand in which he requested a waiver of any con?ict of interest so that he could join Abraham Watkins, stating, in the alterna- tive, Plaintiff would be forced to ?le a Petition for Declaratory Judgment so the courts could de- termine whether any actual or imputed con?ict exists. On November 9, 2018, Defendant USA Gymnastics informed Plaintiff they would not execute the subject waiver, were ?ling a grievance against Plaintiff with the State Bar of Texas in connection with his request for waiver, and would vigorously defend against the Petition for Declaratory Judgment, without in??ing Plaintiff of any basis for same. Xe of the court?s time and 12. On November 15, 2018, in the interest of avoidin resources, Plaintiff made a last attempt to resolve the issue agent a response to Defendant USA Gymnastics? rejection of the subject request, seekin?t minimum, the reasoning behind Defendant USA Gymnastics? rejection. Unfortunately?aointiff did not receive a response, and has no remedy other than ?ling the subject declaratory judgment. V. BASIS FOR RE UEST FOR DECL TORY RELIEF CONCERNING NO ACTU- AL IMP TED LICT OF INTEREST A. In re PraEducation Inte?g?nal, Inc. 13. In 2009, the Unit Qtates Court of Appeals for the Fifth Circuit held that Texas Disciplinary Rule of Profe@ Conduct 1.09 allows migrating lawyers to remove imputation of disquali?cation bm? a con?ict of interest in the absence of a personal representation or acquisition of cntial information.1 In ProEducation, Kirk Kennedy (hereinafter ?Kennedy?) ed as an associate attorney in the law ?rm of Jackson Walker L.L.P. from Feb- ruary 2003 to November 2004.2 Another attorney at Jackson Walker, Lionel Schooler (here- 1 In re ProEducation Int'l, Inc., 587 F.3d 296, 302 (5th Cir.2009) (citing and discussing Amon Burton, Migratory Lawyers and Imputed Con?icts of Interest, 16 Rev. Litig. 665, 677, 684?85 (1997) and Tex. Comm. on Prof] Ethics, Formal Op. 50] (1994)). 2 Id. at 297. ina?er ?Schooler?), was representing MindPrint, Inc., a creditor in the bankruptcy proceeding of ProEducation International, Inc., since 1999.3 Kennedy ?had no knowledge of or involvement with MindPrint? while he worked for Jackson Walker.4 In September 2006, Kennedy entered an appearance in ProEducation's bankruptcy proceeding on behalf of a creditor.5 Schooler, on behalf of MindPrint, moved to disqualify Kennedy from representing the creditor bggon an imputed con?ict of interest.6 The bankruptcy court held that Kennedy was diklgi?ed based on ?two irrebuttable presumptions: ?rst, ?con?dential information has been $80 the attorney actually doing work for the client,? and second, ?con?dences obtained. individual lawyer will be shared with the other members of his ?7 14. After examining both the Texas Disc'gjinary Rules of Professional Conduct and the ABA Model Rules of Professional Conduc?? Fifth Circuit stated that ?both require that a departing lawyer must have actually acquh? con?dential information about the former ?rm's client or personally represented the f@i)@client to remain under imputed disquali?cation.?8 Af- ter further analysis, the court ed that under Texas Rule Kennedy was conclusive- ly disquali?ed by imputatig). representing the creditor only while he remained at Jackson Walker.9 When Kenneod?aded his employment with Jackson Walker, without personally acquirId. 71d. at298. 3 Id. at 301. 9 Id. ing con?dential information about MindPrint, his imputed disquali?cation also ended)? The Fifth Circuit thus stated that the bankruptcy court should have considered Kennedy's evidence of his lack of involvement with MindPrint while at Jackson Walker, and reversed the district court?s judgment affirming the bankruptcy court?s order disqualifying Kennedy.11 K) 15. In February of 2016, the Court of Appeals of Texas?gg?pus Christi-Edingburg, 0% applied the analysis the Fifth Circuit applied in ProEducation, @ssued a memorandum opin- ion addressing a similar issue in In re National Lloyds\@lsurance Company. In National Lloyds, Plaintiffs Alfredo and Alicia Rodriguez broug@t against National Lloyds Insurance Company (hereinafter ?National Lloyds?) for Magma coverage claims arising from hail storm damages.12 Lauren Chapman (hereinafter served as an associate attorney at the law ?rm of Andrews Kurth from September 2008 to February 27, 2015.13 Andrews Kurth repre- sented National Lloyds in hail st?litigation?4 The parties to the litigation stipulated that Chapman ?did not work on any??ter of National Lloyds Insurance Company, did not personal- 0@ 10 Id. at 303 (citing R. CONDUCT R. 1.09 cmt. Burton, 16 Rev. Litig. at 684-85 (?If the erring lawyer did not represent the former client while at his former ?rm and pos- sesses no con? information material to the matter, the transferring lawyer is no longer deemed to have imputed ledge about his former ?rm's client. Accordingly, the transferring lawyer [is] enti- tled to accept the representation adverse to his former ?rm's 1? Id. at 303?04. 12 In re Nar?l Lloyds Ins. 13-] 5-00521-CV, 2016 WL 552112, (Tex. App?Corpus Christi Feb. 10, 2016, no pet.) ?3 Id. 14 Id. 1y represent National Lloyds Insurance Company, and did not personally receive any con?dential information of National Lloyds Insurance Company.?15 16. Chapman was then hired by the Mostyn Law Firm, which represented Plaintiffs Alfredo and Alicia Rodriguez and other litigants in hail storm litigation against?ational Lloyds and other insurance companies.?5 National Lloyds moved to disqualify Cha? and the Mostyn Law Firm from representing the real parties in interest on grounds th??hapma?s prior firm, Andrews and Kurth, represented National Lloyds in the same ando?gglar cases.17 The trial court denied the motion for disquali?cation, and National Lloyds aged to the Court of Appeals of National Lloyds? argument was as follows: ?Lauren Chapman (?Chapman?) was eryed as an associate attorney for An- drews Kurth, LLP (?Andrews Kurth? til approximately February, 2015. Since 2012, Andrews Kurth has been ir@nately involved in the defense of ?rst party bad faith insurance lawsuits against National Lloyds Insurance Company 1 Texas, Corpus Christi-Edingburg.18 (?National Lloyds?). As iate of Andrews Kurth, Chapman has taken as her own the con?dences upon her through her employment with Andrews Kurth. Chapman now National Lloyds's opponents in a substantially related matter. Namelyg around March 2015 Chapman was hired by the Mostyn Law Firm (?Mosty 00 represent individual plaintiffs against National Lloyds in ?rst- party had nsurance lawsuits. In fact, Mostyn touts her prior experience as a yam-my? as providing a ?signi?cant bene?t to her clients in each phase 0 aseId. Because there is a con?ict of interest pursuant to Texas Disciplinary Rule of Pro- fessional Conduct 1.09, Chapman is undeniably disqualified. Because she is dis- quali?ed, the entire Mostyn Law Firm must also be disquali?ed.? 19 17. The court disagreed with National Lloyds? analysis.20 Applying the Fifth Circuit's analysis under Texas Disciplinary Rule of Professional Conduct 1.090)), the Court of Appeals of Texas, Corpus Christi-Edingburg ruled Chapman was disquali?ed from represge?g the real par- ties while she remained at Andrews Kurth 21 However, the Court further that when Chap- man ended her af?liation with Andrews Kurth, without having actua?cquired con?dential in- formation about National Lloyds or having personally been h?ved in representing National Lloyds, her imputed disquali?cation also ended. 22 18. The court then examined the evidence ning to actual disquali?cation rather than presuming imputed disquali?cation.? The @eviewed Chapman's involvement with Na? tional Lloyds and any con?dential infonnati?g at she might have obtained regarding National Lloyds to determine whether actual diso??cation occurred. The court ruled that since the par- ties stipulated that Chapman ?did @ork on any matter? regarding National Lloyds and she ?did not personally represent @nal Lloyds Insurance Company, and did not personally re- ceive any con?dential i1??a?tion of National Lloyds Insurance Company,? the evidence was 0 suf?cient to ?ning that Chapman did not have a con?ict of interest in representing the See TEX. DISCIPLINARY R. CONDUCT R. 1.09 cmt. 7; In re ProEducation Int Inc, 587 F.3d at 303; see also Burton, 16 Rev. Litig. at 684?85. 23 In re Nar'l Lloyds Ins. Co., at 6. plaintiffs when she joined the Mostyn Law Firm.24 The court ruled that, in light of this evidence, Chapman successfully showed that her imputed disquali?cation ended when she left Andrews Kurth; therefore, her representation of the plaintiffs did not present a con?ict of interest requiring her disquali?cation.25 ETS EXISTS 19. Plaintiff mcorporates by reference the facts stated ab%? 20. As the above case law cited indicates, there' IS Kg] or imputed con?ict of m- terest based on the Plaintiff?s previous employment with @?yWeber and potential future em- 0 ployment with Abraham Watkins. Speci?cally, underxas Disciplinary Rule of Professional Conduct 1.09, when a departing lawyer has no?$lly acquired con?dential information about the former ?rm?s client or personally repres the former client, no actual con?ict of interests exists, and any imputed con?ict of itggi?qms when a departing lawyer?s employment with the former ?rm ends. As such, no a@ con?ict of interest exists based on Plaintiff?s former employ- ment with Meha?yWebeSQecause Plaintiff did not actually acquire any con?dential information concerning Defen SA Gymnastics, and never personally represented Defendant USA Gymnastics. rmore, any imputed con?ict of interest with regards to Defendant USA Gym- nastics ended on October 5, 2018, when Plaintiff?s employment with Meha??yWeber ended. 2? Id. 25 Id. 22. Therefore, Plaintiff seeks a declaratory judgment by this Court that no actual or imputed con?ict of interest exists with regards to litigation involving Defendant USA Gymnas- tics, and certain adverse plaintiffs represented by Abraham Watkins, and Plaintiff may be em- ployed by Abraham Watkins without any basis for disquali?cation based on Plaintiff?s previous Sr VII. APPLICATION FOR TEMPORARY AND IN- JUNCTIVE RELIEF 23. Based on Defendant?s responses to corresponder?nceming this matter, and employment with Mehafnyeber. continued lack of any attempt to resolve this matter without @rt intervention, Plaintiff asserts that Defendant USA Gymnastics will continue to atter$??rmpede Plaintiff?s ability to become employed by Abraham Watkins, including but not ed to ?ling a motion to disqualify Plain- tiff and/or Abraham Watkins in cases in whi?ertain plaintiffs are represented by Abraham Watkins against Defendant. 24. Plaintiff therefore rqu?t?g that the Court enter an order restraining Defendant, including their agents, servants, $?Dl>oyeea contractors, contract employees, attorneys, and those acting in concert with or ir?esentation of said Defendant, from impeding Plainti??s ability to become employed by K??ham Watkins, including but not limited to ?ling any motion to dis- qualify Plainti?' Abraham Watkins in cases in which certain plaintiffs are represented by Abraham Wat?? against Defendant, which would irreparably harm Plaintiff. 25. There is no adequate remedy at law available to the Plaintiff to prevent Defendant ?om impeding Plaintiff?s ability to become employed by Abraham Watkins, including but not limited to ?ling any motion to disqualify Plainti?? and/or Abraham Watkins in cases in which cer- 10 tain plaintiffs are represented by Abraham Watkins against Defendant, unless this Court grants immediate relief restraining such conduct. Plaintiff would pray that this Court enter a Temporary Restraining Order preserving the status quo by restraining Defendants from impeding Plaintiff?s ability to become employed by Abraham Watkins, including but not limited to ?ling any motion to disqualify Plaintiff and/or Abraham Watkins in cases in which certain plaing?re represented by Abraham Watkins against Defendant. 6* for temporary injunction for a 26. Plaintiff requests this Court to set his appliaax hearing, and a?er the hearing, issue a temporary inj gum? der against Defendant. WHEREFORE, for the foregoing r?ns, Plainti?? respectfully requests judgment against Defendant as follows: 1) A declaration that no? 0 or imputed con?ict of interest, or basis for disquali?- cation, exists as it guns to Plaintiff?s previous employment with Mehafnye- ber and future e%nt with Abraham Watkins, involving litigation in which Defendant US ics, Inc. is a named defendant, and certain plaintiffs are represented raham Watkins; 2) Pre-jud and post-j udgment interest as provided by law; 3) Co osts; and 4) @ch other and further relief to which Plaintiff may show himself justly entitled, including the issuance of the temporary restraining order and temporary injunc- tion requested herein. Respectfully submitted, Efrain Gongalez Jr: EFRAIN GONZALEZ JR. 11 State Bar No. 24084739 1168 Beasley Hills Lane Houston, Texas 77008 Phone: 713-417?5015 Email: egjlaw@gmail.com ATTORNEYAT LAW 12