Preview
FILED
4/9/2024 3:44 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Nicole Burroughs DEPUTY
CAUSE NO. DC-20-16414
MARK RAY, M_D., ET AL., IN THE DISTRICT COURT
Plaintiffs,
v.
OLIVER STREET DERMATOLOGY
MANAGEMENT LLC, OLIVER STREET 298™ JUDICIAL DISTRICT
DERMATOLOGY HOLDINGS LLC, DERM
GROWTH PARTNERS I, LLC, DERM
GROWTH PARTNERS II, LLC, DERM
GROWTH PARTNERS III, LLC, GEOFF L.
WAYNE, and J. SCOTT WELLS,
Defendants. DALLAS COUNTY, TEXAS
REQUEST FOR STATUS CONFERENCE
Plaintiffs, Dr. Mark Ray, Dr. Lisa Pruett, Dr. Jon Pruett, Trinity Dermatology,
P.A., Dr. Gil Selkin, Facial and Skin Surgery Center, P.A., Dr. Christie Matter, Dr.
Susanne Lockhart, North Texas Dermatology Aesthetic and Laser Center, L.L.C.,
and North Texas Dermatology, L.L.C. ask the Court to set a status conference to
compel this case to arbitration:
I. Introduction
Pending before this Court are
(1) Plaintiffs’ and Defendants’ separate Motions to Compel Arbitration:
plaintiffs request to be compelled to one arbitration, where AAA can
determine whether severance makes sense, while defendants request
that each plaintiff be compelled to a separate arbitration;
(2) defendants’ Motion to Dismiss: defendants argue that conflicting New
York and Delaware forum selection clauses require a New York or
Delaware court decide arbitration (since rejected by Delaware); and
(3) several defendants’ Special Appearances: some defendants ask to be
dismissed on jurisdictional grounds (since partially determined by
Dallas Court of Appeals).
Because this Court clearly has jurisdiction to compel this matter to arbitration,
plaintiffs ask the Court to compel arbitration and permit AAA to determine whether
to sever the case into separate arbitrations. See, e.g., Cypress Drilling, LLC v. Medve
Energy Ventures, LLC, 2019 WL 5656471, at *2 (Tex. App—Amarillo Oct. 31, 2019,
no pet.) (Texas General Arbitration Act confers jurisdiction on Texas court “to enforce
an arbitration agreement ...”).
As a refresher, plaintiffs are Texas doctors who sold their Dallas-Fort Worth-
area dermatology practices to defendants, who operated dermatology clinics under
the name “U.S. Dermatology Partners” (“(USDP”) and this organizational structure:
Derm Growth Partners I, LLC
T
1
Derm Growth Partners IT, LLC
T
1
Derm Growth Partners III, LLC
|
Oliver Street Dermatology
Holdings, LLC
|
Oliver Street Dermatology
Management, LLC
USDP paid for these Texas practices in both cash and equity in defendants’ parent
company, defendant Derm Growth Partners I, LLC (“DGI’). Plaintiffs later found out
that the equity was worthless and sued over related misrepresentations.
One year ago, the Court held a status conference on the three issues discussed
above, which have been pending since 2021. At that time, defendants “urge[d] the
Court to wait to rule on the[ir] Special Appearance until it can follow the precedent
Request for Status Conferenc Page 2
set by the Dallas Court of Appeals” in a related case: Robert P. Selkin v. Oliver Street
Dermatology, et. al, Cause No. DC-20-11616, pending in the 134‘ Judicial District of
Dallas County, Texas (“Bobby Selkin Case”); Dr. Robert “Bobby” Selkin is plaintiff
Dr. Gil Selkin’s brother and asserted similar claims.
On August 9, 2023, the Dallas Court of Appeals denied DGI’s special
appearance appeal. Derm Growth Partners I, LLC v. Selkin, No. 05-21-00956-CV,
2023 WL 5089286, at *1 (Tex. App.—Dallas Aug. 9, 2023, pet. denied). On January 5,
2024, the Texas Supreme Court denied DGI’s Petition for Review. With DGI’s
jurisdictional appeal in the Bobby Selkin Case over, this case is ripe to be compelled
to arbitration.
Because of the contractual Texas arbitration provision, this Court
unquestionably has jurisdiction to compel the parties to arbitration — as defendants
and plaintiffs have requested. See Tex. Civ. Prac. & Rem. Code § 171.081 (Agreeing
to arbitration agreement that cites the Texas General Arbitration Act “confers
jurisdiction on the court to enforce the agreement ...”). Indeed, the parties have even
agreed to AAA arbitration. See Exs. 1 and 2 (Letters agreeing to AAA arbitration
under the AAA Commercial Arbitration Rules). And so, plaintiffs ask the Court to
compel the parties to arbitration.
II. Factual Background
1 Defendants are entities and officers (or former officers) that, under the
USDP name, operate a nationwide chain of dermatology. The individual plaintiffs are
Texas doctors who sold their Texas assets to USDP in three separate transactions
Request for Status Conferenc Page 3
between 2017 and 2018, each becoming USDP employees as a result.! Each sale
involved substantially similar transaction documents that integrated around a dozen
agreements, including an Asset Purchase Agreement (“APA”) incorporating a
Contribution and Subscription Agreement (“CSA”) and an Employment Agreement
(‘Employment Agreement”) among other documents:
(the “Assumption Agreement”): (iv) the Interim Management Services Agreement in the form attached
hereto as Exhibit 1.6() (the “Interim 1 agement Agreemen' (v) the Succession ement in the
form attache ire 0 as Exhibit the “Succession reement Su n
er d (vii the Jc der
Ay eements in the form attached hereto as Exhibit 1.6(m) (the “Joinder Agreements’
Cae the Escrow Agreement, the Bill of Sale,
iets mn Management Ag greement, the Succession eemnent, ab
the Assumption Agreement, the
wn oind
ch het fern ction nt d, Ih
the
leu rent
his ement may be executed in one or re counterparts id with panera fac simile
signature pages. each of which shall be deemed an original. but all of which when taken together shall
constitute one and the same Agreement. The headings of Articles and Sections herein are inserted for
convenience of reference only and shall be ignored in the construction or interpretation hereof. The
representations, warranties, agreements and covenants of the parties, and the rights to indemnification
with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or
on behalf of any party or any party’s Related Parties or representatives or by reason of the fact that a
party or any of its Related Parties or representatives knew or should have known that any such
representation or warranty is. was or might be inaccurate.
E.g., Ex. GS-1 to Plaintiffs’ Response to [certain] Defendant’s Special Appearance.
These three integrated transaction documents contained conflicting forum selection
clauses: APA (Delaware), CSA (New York), Employment Agreement (Texas
arbitration).
2 Through the three transactions, the doctors became Oliver 5.01(a), Inc.
(“Oliver 5.01”) employees and Class A unitholders of DGI by virtue of accepting DGI
equity as partial consideration for their sales. Combined, plaintiffs received what
1 Plaintiffs incorporate under Tex. R. Civ. P. 58 their more thorough recitations of their
allegation and supporting exhibits in their Petition and their Response to certain defendants’
Special Appearance.
Request for Status Conferenc Page 4
defendants represented was $6.2 million worth of DGI equity. This suit concerns
primarily defendants’ representations about the then-current and future value of
DGI’s equity, as plaintiffs only learned that their DGI equity was worthless after
USDP defaulted on its credit agreement for misrepresenting key financials to its
lender.
Ill. Procedural History
3. Defendants’ actions led to a slew of litigation, including three matters
concerning plaintiffs: (1) the “Fraud Litigation,” (2) the “Employment
Litigation,” and (3) the “Delaware Action.” Plaintiffs update the Court as to the
status of each matter and seek the Court’s ruling on the pending arbitration issue:
the number of arbitrations.
4 The Fraud Litigation: This litigation started with this fraud lawsuit.
Plaintiffs and defendants have each asked this Court to compel the Fraud Litigation
to arbitration and have agreed that AAA should administer the arbitration(s) under
AAA Commercial Arbitration Rules. See Exs. 1, 2.
5 On July 14, 2021, and continued on July 29, 2021, this Court heard
arguments on the parties’ cross-motions to compel arbitration. At that time, the Court
also heard certain defendants’ special appearance and defendants’ motion to
dismiss—that ignores the Texas arbitration provision—based on the APA’s
(Delaware) and CSA’s (New York) forum selection clauses. But see Pers. Sec. & Safety
Sys. Inc. v. Motorola Inc., 297 F.3d 388, 396 n.11 (5th Cir. 2002) (“[A] forum selection
clause cannot nullify an arbitration clause unless the forum selection clause
Request for Status Conferenc Page 5
specifically precludes arbitration.”). After the hearing, the parties submitted letters
to the Court agreeing to have the arbitration administered by the AAA under its
Commercial Arbitration Rules (the applicable arbitration clause does not specify an
arbitral body) but disagreeing as to whether there should be one arbitration with all
plaintiffs, three separate arbitrations (one for each practice), or nine different
arbitrations (one for each plaintiff). The letters are attached as Exhibits 1 and 2.
6 This Court has not issued a ruling, and so plaintiffs’ request to be
compelled to arbitration remains outstanding. As a result, plaintiffs ask the Court
to compel this case to one arbitration and permit the AAA to determine
whether to sever the arbitration into multiple arbitrations. This is facilitated
by the parties’ Agreement to use the AAA Commercial Arbitration Rules, which
permit the arbitrator to determine the number of arbitrations. See Robinson v. Home
Owners Mgmt. Enterprises, Inc., 590 S.W.3d 518, 529 (Tex. 2019) (“[We are persuaded
that ... determining whether the parties have agreed to arbitrate disputes as a class
is a threshold question of arbitrability.”);2 TotalEnergies E&P USA, Inc. v. MP Gulf
of Mexico, LLC, 667 S.W.3d 694, 710 (Tex. 2023), reh’g denied (June 9, 2023) (“The
AAA rule mandates that the arbitrator have “the power” to decide arbitrability
issues.”).
7 The Employment Litigation: The individual plaintiffs
(Drs. Lockhart, Matter, Pruett, Pruett, Ray, and Selkin) also sued Oliver 5.01(a) over
2 Robinson discusses class arbitrations, which are different than the consolidated arbitrations
plaintiffs request, as class arbitrations “include[] absent parties” like any other class
litigation. See Robinson, 590 8.W.3d at 530. Despite this, this arbitrator-decides-arbitrability
reasoning is persuasive.
Request for Status Conferenc Page 6
more recent, post-acquisition employment matters in Susanne Lockhart, MD, et al. v.
Oliver Street 5.01(a), Inc. d/b/a U.S. Dermatology Partners, Cause No. DC-21-04829
pending in the 191st Judicial District of Dallas County, Texas. Both sides asked the
191st District Court to compel the Employment Litigation to arbitration.
8. On August 27, 2021, the 191st District Court issued an email order
(attached as Exhibit 3) that, among other things, (1) ordered the parties to “arbitrate
all causes of action and/or counterclaims arising out of the Employment Agreements;”
and (2) found that the Court had authority to order consolidated arbitrations:
Ky Jurgensen
From: Marsha Sweet
Sent: Friday, August 27, 2021 4:18 PM
To: ky Jurgensen; rbirne@doorhandles.com; Matt Parks; Yvette Ostolaza; margaretallen@sidley.com:
Reid, Penny
Subject: FW: DC21-04829; Lockhart v. Oliver Street 5.01(A), Inc.
Counsel:
The Court has reviewed the pleadings and relevant statutes and makes the following rulings:
1. The parties are ordered to arbitrate all causes of action and/or counterclaims arising out of the Employment
Agreements.
2. The Court finds no evidence/insufficient evidence that the parties agreed to the American Arbitration Association as
the administering/appointing agency. The Court therefore finds that the arbitration(s) will proceed as non-administered
arbitration(s).
3. As to the number of arbitrations, the Court finds that under the discretion granted to it by Tex. Civ. Prac. & Rem. Code
171.086(a)(6), it does have the authority to potentially consolidate the individual arbitrations. The Court finds that the
potential costs, the concern about inconsistent rulings, potential and likely duplicative discovery and general efficiency
and economy fall squarely under the Court's discretion to make such orders as are necessary for the arbitration(s) to be
conducted in an “orderly manner” and in such a way as to “prevent... . delay of the arbitration.” The Court finds,
however, that it has insufficient evidence to determine the consolidation issues.
4. The Court further finds that it is unable to appoint an arbitrator or arbitrators until the consolidation issue is resolved.
5. The Court also finds that it retains authority over injunctive reliefin this case. To the extent that the injunctive relief
requested by the Plaintiffs is an anti-suit injunction concerningthe Delaware lawsuit,the Court believes such injunctive
relief may be moot in light of the Court’s Order concerning all employment related causes of action. If the Plaintiffs
believe that they need to continue to pursue such relief, the Court does not believe extensive - or even any - discovery
would be needed on that specific, limited relief. To the extent any party is requesting any additional or different relief,
the Court would request a status conference to understand what reliefis requested and what discovery is needed.
Request for Status Conference Page 7
6. The Court requests that the parties prepare and file motions and briefing regarding potential consolidation of the
arbitrations by September 8, 2021. The Court finds that it is likely that an evidentiary issue will need to be held on
consolidation, but does not believe that any discovery is needed or would be useful to the Court in making the
consolidation ruling. Once the initial motions/briefs have been filed, the parties will have until 5:00 p.m. on September
13, 2021 to file any responses. The parties are ordered to confer with each other and the Court Coordinator regarding
setting a hearing to occur on or after September 15, 2021 on this issue.
Judge Gena Slaughter
Presiding Judge, 191st Judicial District Court
Ex. 3. The parties briefed the consolidation issue but there was no oral hearing, and
the 191st District Court has not issued a further ruling.
9. Cross-over between the Fraud Litigation and the Employment
Litigation: In July 2021, defendants filed a Notice of Related Case in this Court
asking that this Court transfer the Employment Litigation to itself. No oral hearing
was held on the issue, and this Court has not issued a related order. Plaintiffs agree
to the related case transfer, so the Employment and Fraud Litigation can both be
compelled to arbitration.
10. Delaware Action: Defendants further complicated matters in July
2021 when OSDM and Oliver 5.01 filed a Verified Complaint to Compel Arbitration
against Drs. Lockhart, Matter, Pruett, Pruett, Ray, and Selkin, in Delaware’s
Chancery Court. Ex. 4. They asked that the doctors (1) be permanently enjoined from
prosecuting the Fraud Litigation and Employment Litigation in Texas, and (2) be
compelled to nine separate AAA-administered arbitrations.
3 Tronically, plaintiffs filed a Notice of Related Case in November 2020, drawing the Court’s
attention to the related, first-filed Bobby Selkin Case: Robert P. Selkin v. Oliver Street
Dermatology Management, LLC, et al., DC-20-11616, filed in the 134% Judicial District of
Dallas County, Texas. Defendants appear to want to consolidate into this Court, rather than
the 134* District Court.
Request for Status Conference Page 8
11. The doctors moved to dismiss or stay the Delaware Action to allow the
Texas Courts to determine the arbitration issue. In deference to the Texas cases, the
Delaware Court stayed the Delaware Action in February 2023. Ex. 5 (order). As this
Court has heard, the integrated transaction documents contained different forum
selection clauses. Indeed, the Delaware Court recognized the “potentially conflicting”
forum selection clauses in the APA (Delaware forum), the CSA (New York forum),
and Employment Agreements (Texas arbitration “in accordance with the Texas
General Arbitration Act’).
12. Plaintiffs have long contended that the conflict renders the so-called
New York and Delaware forum selection provisions unenforceable and trumped by
the Texas arbitration. See, e.g., Target Strike, Inc. v. Strasburger & Price, L.L.P., 2018
WL 6040022, at *11 (Tex. App.—Dallas Nov. 19, 2018, pet. denied) (“[A] forum
selection clause must contain explicit language regarding exclusivity’ to be
enforceable.); Coody Custom Homes, LLC v. Howe, 2007 WL 1374136, at *2 (Tex.
App.—Waco May 9, 2007, no pet.) (“Texas courts have held that venue, choice of law,
and forum selection clauses can be ‘harmonized’ with arbitration provisions.”).
13. When announcing its stay decision, the Delaware Court discussed the
idea that only “crystalline” forum selection clauses will be enforced, citing Duff v.
Innovative Discovery LLC, 2012 WL 6096582 (Del. Ch. Dec. 7, 2012) for the idea that
“conflicting, or potentially conflicting, forum selection provisions in multiple
agreements be [sic] signed by the parties make the parties intent as to a contract
choice of forum .. . far from crystalline.” The Delaware Court went on to state that,
Request for Status Conferenc: Page 9
“At minimum, the conflicting forum provisions here put in question the intent of the
parties.” Accord Target Strike, Inc. v. Strasburger & Price, L.L.P., 2018 WL 6040022,
at *11 (Tex. App.—Dallas Nov. 19, 2018, pet. denied) (“forum selection clause must
contain explicit language regarding exclusivity” to be enforceable).
14. The Delaware stay remains in place, and the Delaware Court has
recently requested an update on the status of the Texas cases.
IV. Requested Relief
15. These issues have been pending for nearly three years. Because the
Texas Supreme Court recently denied DGI’s jurisdictional appeal, there is no
remaining reason for this Court to wait to compel the parties to arbitration. Plaintiffs
thus ask the Court to decide the open issues and (1) set a status conference, (2) deny
defendants’ Motions to Dismiss, (3) transfer the Employment Litigation to itself, and
(4) compel the parties to AAA arbitration in Dallas, Texas, where AAA can determine
the number of arbitrations. Plaintiffs additionally request any further relief to which
they are entitled.
Request for Status Conferenc: Page 10
Respectfully submitted,
Burford Perry, LLP
/s/ Matt E. Parks
Robert R. Burford
State Bar No. 03371700
Matt E. Parks
State Bar No. 24083622
Zachary R. Carlson
State Bar No. 24116165
909 Fannin St., Suite 2630
Houston, Texas 77010
Telephone: (713) 401-9790
Facsimile: (713) 993-7739
rburford@burfordperry.com
mparks@burfordperry.com
zcarlson@burfordperry.com
Attorneys for Plaintiffs
CERTIFICATE OF CONFERENCE
I certify that I have conferred with counsel for Defendants about the above
motion and requested relief, and their position is follows:
Defendants do not oppose having a status conference. But Defendants
disagree with Plaintiffs’ characterizations of the facts, law, and
procedural history in the attached request for status conference, and
they reserve all rights to file a response thereto before any status
conference is held. Defendants also object to the request for status
conference to the extent that it supplements and re-briefs Plaintiffs’
opposition to Defendants’ pending motions to dismiss, which were fully
briefed and heard almost three years ago. If the Court requires further
argument or authorities on the pending motions, the parties can provide
supplemental briefing with Defendants getting the final reply on their
own motions.
/s/ Matt E. Parks
Matt E. Parks
Request for Status Conferenc Page 11
CERTIFICATE OF SERVICE
I certify that the above document was served upon counsel of record for the
Specially Appearing Defendants via the Court’s efiling system on April 9, 2024.
/s/ Matt E. Parks
Matt E. Parks
Request for Status Conferenc Page 12
FILED
8/3/2021 10:06 AM
FELICIA PITRE
DISTRICT CLERK
SIDLEY AUSTIN LLP DALLAS CO., TEXAS
SIDLEY
2021 MCKINNEY AVENUE, Loaidi Grove DEPUTY
SUITE 2000
DALLAS, TX 75201
+1214 981 3400
+1214 981 3400 FAX +1214 981 3401
YVETTE.OSTOLAZA@SIDLEY.COM
AMERICA « ASIA PACIFIC * EUROPE
August 3, 2021
Via Electronic Filing
Honorable Emily Tobolowsky
298th Civil District Court
George L. Allen, Sr. Courts Building
600 Commerce Street, 7th Floor New Tower
Dallas, TX 75202
Re: Pruett v. Oliver Street Dermatology Mgmt. LLC, No. DC-20-16414 (298th Dist.
Ct., Dallas County, Tex. filed Nov. 2, 2020)
Dear Judge Tobolowsky:
Subject to Specially Appearing Defendants Derm Growth Partners I, LLC, Derm Growth
Partners II, LLC, Derm Growth Partners III, LLC, and Oliver Street Dermatology Holdings LLC’s
(collectively, “Specially Appearing Defendants”) Special Appearance and Motion to Dismiss for
Lack of Personal Jurisdiction (the “Special Appearance”),' and without waiving their rights to
arbitrate or enforce the parties’ agreements to exclusive jurisdiction in Delaware and New York,
Defendants Oliver Street Dermatology Management LLC, Geoff Wayne, Scott Wells, and the
Specially Appearing Defendants (collectively, “Defendants”) write to provide the Court with an
update. As requested by the Court, the parties conferred regarding potential arbitrators and an
administrator of any arbitration.
After conferring on August 2, 2021, the parties agree on the following:
1 If Defendants’ Motion to Compel Arbitration is granted, the disputes should be
administered and submitted to binding confidential arbitration before the American
Arbitration Association (“AAA”),
The AAA Commercial Rules currently in effect (“AAA Rules”) will govern the
separate arbitration proceedings.
The parties do not agree, however, on the following:
| Without consenting that this Court has personal jurisdiction over them, Specially Appearing Defendants specially
appear, subject to, and without waiving, their Special Appearance and Motion to Dismiss for Lack of Personal
Jurisdiction or their ability to assert any defense to this action, including, but not limited to, their right to move to
dismiss based on jurisdiction and/or failure to state a claim.
ACTIVE 270959137
SIDLEY
Page 2
1 For the reasons stated in the Special Appearance, this Court lacks in personam
jurisdiction over the Specially Appearing Defendants and should dismiss the
Specially Appearing Defendants from this action.
For the reasons stated in Defendants’ Motion to Dismiss, the Court should dismiss
this action in its entirety because Plaintiffs’ claims are subject to mandatory,
exclusive forum-selection provisions requiring them to bring these claims in
Delaware or New York. Nonetheless, the non-Specially Appearing Defendants
would submit their claims previously filed with the AAA to the AAA again.
For the reasons stated in Defendants’ Notice of Related Case, the Court should
transfer Plaintiffs’ related case pending before Judge Slaughter, Pruett v. Oliver
Street 5.01 (a), Inc., No. DC-21-04829 (191st Dist. Ct., Dallas County, Tex. filed
Apr. 13, 2021) (the “Related Action”), to this Court to facilitate the orderly and
efficient disposition of the parties’ disputes by compelling all the parties’ claims to
arbitration in one order. Plaintiffs’ counsel made several key admissions during the
July 29 hearing that confirm this Court should exercise its broad discretion to
transfer the Related Action and compel arbitration of all claims:
a. With respect to the Employment Agreements under which Plaintiffs assert
claims in the Related Action, Plaintiffs’ counsel admits that “there’s no
question that the Employment Agreement was signed at the same time and
that [the Employment Agreement’s] arbitration provision sufficiently
relates to the Asset Purchase and Contribution Agreements” under which
Plaintiffs assert claims in this action. (July 29, 2021 Hearing Tr. 23:3-6.)
As conceded by Plaintiffs’ counsel at the recent Motion to Compel
Arbitration hearing, “these are unequivocally integrated transactions, and
so there is a general application of that arbitration provision to all of this.”
(Ud. at 23:6-9.) Plaintiffs’ counsel also conceded that this lawsuit was filed
first and that the Related Action before Judge Slaughter included the same
plaintiffs. (See id. at 5:25-6:7, 18:19-22, 19:18-20.) The mere fact that a
different attorney is involved in the Related Action is of no relevance
because, among other reasons, they are coordinating and their forum
shopping should not be rewarded.
Indeed, “the case law [Defendants] rely on to make this argument, that the
arbitration provision applies, which, again, we agree with, involved a series
of integrated transactions and one arbitration that arose out of it.” (/d. at
25:3-7.)
In sum, “it simply doesn’t make sense to break those integrated transactions
up past, at minimum, three arbitrations.” (/d. at 25:10-12.)
ACTIVE 270959137
SIDLEY
Page 3
Yet, Plaintiffs continue to pursue separate relief from Judge Slaughter compelling
to arbitration claims under their Employment Agreements—which they filed
several months after bringing claims in this Court that they now concede must be
arbitrated under those same Employment Agreements. As Plaintiffs’ counsel
admits, this “simply doesn’t make sense.” (/d.) The Court should instead order the
Related Action pending before Judge Slaughter transferred to this Court so that the
Court may compel all parties’ claims to arbitration in a single order. Doing so will
conserve Court and party resources and avoid disparate outcomes by placing the
arbitrability determination before just one court.
The number of arbitration proceedings that should take place. Plaintiffs would
prefer one consolidated arbitration; however, Defendants have not agreed to
consolidated proceedings. The agreements are with individuals and since
arbitration is a creature of contract, a consolidated proceeding would be reversable
error because the unambiguous language in the arbitration agreement states that
consolidated arbitration cannot be ordered absent the parties consent. Thus, this
Court can and should order an individual arbitration proceeding for each Plaintiff
against the proper Defendant(s). Should the Court determine that it will not order
separate arbitration proceedings for each Plaintiff, Defendants would agree to three
separate arbitrations, divided according to Plaintiffs’ respective practice groups, as
follows:
Gilbert Selkin, Facial and Skin Surgery Center, P.A.;
Susanne Lockhart, Christie Matter, North Texas Dermatology Aesthetic and
Laser Center, L.L.C., and North Texas Dermatology, L.L.C.; and
c. Mark Ray, Lisa Pruett, Jon Pruett, and Trinity Dermatology, P.A.
Defendants accordingly submit two proposed orders for the Court’s consideration. The
first grants the Special Appearance based on lack of jurisdiction and the Motion to Dismiss based
on improper venue, dismissing this action in its entirety. The second grants the Special
Appearance, dismisses the Specially Appearing Defendants, and transfers the Related Action to
this Court, while compelling to arbitration before the AAA, in accordance with the AAA
Commercial Arbitration Rules, the Plaintiffs’ remaining claims against the non-Specially
Appearing Defendants, in at least six separate arbitration proceedings with six separate arbitrators
using the AAA Rules, organized by Plaintiffs’ practice groups, as set forth above.
Without waiving the Special Appearance or Motion to Dismiss, Defendants respectfully
request that the Court enter one of the enclosed proposed orders.
Respectfully submitted,
ACTIVE 270959137
SIDLEY
Page 4
/s/Yvette Ostolaza
Yvette Ostolaza
Enclosures
cc: Counsel of Record
ACTIVE 270959137
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Yvette Ostolaza on behalf of Penny Reid
Bar No. 15402570
yvette.ostolaza@sidley.com
Envelope ID: 55943543
Status as of 8/3/2021 3:38 PM CST
Associated Case Party: OLIVER STREET DERMATOLOGY HOLDINGS LLC
Name BarNumber | Email TimestampSubmitted | Status
Margaret Allen margaret.allen@sidley.com | 8/3/2021 10:06:58AM | SENT
Associated Case Party: MARK RAY
Name BarNumber Email TimestampSubmitted Status
Robert R.Burford rburford@burfordperry.com 8/3/2021 10:06:58 AM SENT
Matt E.Parks mparks@burfordperry.com 8/3/2021 10:06:58 AM SENT
Burford Perry Service service@burfordperry.com 8/3/2021 10:06:58 AM SENT
Case Contacts
Name BarNumber | Email TimestampSubmitted Status
TX Efiling Notice txefilingnotice@sidley.com 8/3/2021 10:06:58 AM SENT
Crystal Clark crystal.clark@sidley.com 8/3/2021 10:06:58 AM SENT
Nancy Cade ncade@sidley.com 8/3/2021 10:06:58 AM SENT
Diane Padilla dpadilla@sidley.com 8/3/2021 10:06:58 AM SENT
Robin Ainsworth rainsworth@hchlawyers.com 8/3/2021 10:06:58 AM SENT
Kim Hill khill@hchlawyers.com 8/3/2021 10:06:58 AM SENT
HENDERSHOT COWART PC. netdocs@hchlawyers.com 8/3/2021 10:06:58 AM SENT
Ky Jurgensen kjurgensen@hchlawyers.com 8/3/2021 10:06:58 AM SENT
Associated Case Party: DERM GROWTH PARTNERS I, LLC.
Name
Barret Armbruster
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Yvette Ostolaza on behalf of Penny Reid
Bar No. 15402570
yvette.ostolaza@sidley.com
Envelope ID: 55943543
Status as of 8/3/2021 3:38 PM CST
Associated Case Party: DERM GROWTH PARTNERS I, LLC.
Patrick Foley patrick.foley@sidley.com 8/3/2021 10:06:58 AM SENT
Penny P. Reid preid@sidley.com 8/3/2021 10:06:58 AM SENT
Mitchell BrantAlleluia-Feinberg malleluiafeinberg@sidley.com 8/3/2021 10:06:58 AM SENT
Yvette Ostolaza yvette.ostolaza@sidley.com 8/3/2021 10:06:58 AM SENT
Sophie V.Franks sfranks@sidley.com 8/3/2021 10:06:58 AM SENT
FILED
8/3/2021 6:27 PM
FELICIA PITRE
6
DISTRICT CLERK
DALLAS CO., TEXAS
Kevin Molden DEPUTY
BURFORD PERRY ur
Matt E. Parks Partner
909 Fannin St., Suite 2630 Telephone: (713) 401-9790
Houston, Texas 77010 Facsimile: (713) 993-7739
mparks@burfordperry.com www.burfordperry.com
August 3, 2021
Via Electronic Filing
Hon. Judge Emily Tobolowsky
298 Civil District Court
George L. Allen, Sr. Courts Building
600 Commerce Street, 7*+ Floor New Tower
Dallas, Tx 75202
Re: Ray, et al. v. Derm Growth Partners I, LLC, et al., No. DC-20-16414
in the 298th District Court of Dallas County, Texas.
Dear Hon. Judge Tobolowsky:
Plaintiffs submit this letter in response to defendants’ letter concerning
arbitrators, which they filed earlier today. The Court has heard the parties’
disagreements concerning defendants’ Special Appearance and defendants’
Motion to Dismiss based on conflicting forum selection clauses. Plaintiffs do
not rehash that debate.
As defendants reported, plaintiffs agreed that if the Court compels
arbitration:
(dy The arbitration(s) shall be submitted to and administrated by
the American Arbitration Association (“AAA”);
(2) The arbitration(s) will be governed by the AAA Commercial
Rules currently in effect; and
(3) If the Court compels three arbitrations, they should be divided
according to plaintiffs’ respective practice groups, as defendants
state.
August 3, 2021
Page 2 of 3
Plaintiffs submit their own proposed orders, however, because:
(1) Plaintiffs ask the Court to compel one or, alternatively, no more
than three arbitrations, which should include the Specially
Appearing Defendants; and
(2) Defendants ask this Court to compel another lawsuit, Bryan
Selkin, M.D. et al v. Oliver Street 5.01(A), Inc., Cause No. DC-
21-04829 in the 191st District Court of Dallas County, Texas
(the “Employment Suit”) to arbitration. Plaintiffs disagree that
a motion to compel the Employment Suit to arbitration was
before the Court.
The Employment Suit is a different lawsuit with a different cause
number than this suit. Without restating the suits’ differences (recited in the
previously-filed Objection to Related Case), there is no complete identity of the
parties between lawsuits, which involve different facts separated by nearly two
years. Oliver Street 5.01(A), Inc. is not a defendant in this case but is the only
defendant in the Employment Suit. Similarly, Dr. Bryan Selkin is not a
plaintiff in this case, though he is in the Employment Suit.
But even if the Court grants defendants’ Notice of Related Case and
transfers the Employment Suit, it will remain a separate lawsuit with different
lead counsel and different parties: Defendants moved under Dallas County
Local Rules 1.06 — 1.08, which govern only intradistrict transfer within Dallas
County. Consolidation is governed by Local Rule 1.04 and Texas Rule of Civil
Procedure 174(a). Defendants did not move to consolidate the two suits.
Additionally, defendants did not notice a motion to compel the
Employment Suit to arbitration in this Court. Rather, in the parties’ first
hearing, the undersigned asked whether the Notice of Related Case would be
taken up during the hearings on defendants’ Special Appearance and Motion
to Dismiss. The Court indicated it would not be, so lead counsel in the
Employment Suit did not appear at the two subsequent hearings. Because the
two suits are separate and because defendants did not file a notice to compel
the Employment Suit to arbitration, defendants’ request that the Employment
Suit be compelled to arbitration through their proposed orders is improper.
For these reasons, plaintiffs ask the Court to enter their proposed orders.
August 3, 2021
Page 3 of 3
Respectfully submitted,
/s/ Matt E. Parks
Matt E. Parks
Ce: Counsel of Record
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Matt Parks on behalf of Matt Parks
Bar No. 24083622
mparks@burfordperry.com
Envelope ID: 55976120
Status as of 8/4/2021 11:15 AM CST
Associated Case Party: MARK RAY
Name BarNumber | Email TimestampSubmitted Status
Robert R.Burford rburford@burfordperry.com 8/3/2021 6:27:55 PM SENT
Matt E.Parks mparks@pburfordperry.com 8/3/2021 6:27:55 PM SENT
Burford Perry Service service@burfordperry.com 8/3/2021 6:27:55 PM SENT
Associated Case Party: OLIVER STREET DERMATOLOGY HOLDINGS LLC
Name BarNumber Email TimestampSubmitted | Status
Margaret Allen margaret.allen@sidley.com | 8/3/2021 6:27:55 PM SENT
Associated Case Party: DERM GROWTH PARTNERS |, LLC
Name BarNumber | Email TimestampSubmitted Status
Penny P. Reid preid@sidley.com 8/3/2021 6:27:55 PM SENT
Barret Armbruster barmbruster@sidley.com 8/3/2021 6:27:55 PM SENT
Patrick Foley patrick.foley@sidley.com 8/3/2021 6:27:55 PM SENT
Mitchell BrantAlleluia-Feinberg malleluiafeinberg@sidley.com 8/3/2021 6:27:55 PM SENT
Yvette Ostolaza yvette.ostolaza@sidley.com 8/3/2021 6:27:55 PM SENT
Sophie V.Franks sfranks@sidley.com 8/3/2021 6:27:55 PM SENT
Case Contacts
Name
TX Efiling Notice
Nancy Cade
Crystal Clark
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Matt Parks on behalf of Matt Parks
Bar No. 24083622
mparks@burfordperry.com
Envelope ID: 55976120
Status as of 8/4/2021 11:15 AM CST
Case Contacts
Diane Padilla dpadilla@sidley.com 8/3/2021 6:27:55 PM SENT
Robin Ainsworth rainsworth@hchlawyers.com 8/3/2021 6:27:55 PM SENT
Kim Hill khill@hchlawyers.com 8/3/2021 6:27:55 PM SENT
HENDERSHOT COWART PC. netdocs@hchlawyers.com 8/3/2021 6:27:55 PM SENT
Ky Jurgensen kjurgensen@hchlawyers.com | 8/3/2021 6:27:55 PM SENT
Ky Jurgensen
From: Marsha Sweet
Sent: Friday, August 27, 2021 4:18 PM
To: Ky Jurgensen; rbirne@doorhandles.com; Matt Parks; Yvette.Ostolaza; margaret.allen@sidley.com;
Reid, Penny
Subject: FW: DC21-04829; Lockhart v. Oliver Street 5.01(A), Inc.
Counsel:
The Court has reviewed the pleadings and relevant statutes and makes the following rulings:
1. The parties are ordered to arbitrate all causes of action and/or counterclaims arising out of the Employment
Agreements.
2. The Court finds no evidence/insufficient evidence that the parties agreed to the American Arbitration Association as
the administering/appointing agency. The Court therefore finds that the arbitration(s) will proceed as non-administered
arbitration(s).
3. As to the number of arbitrations, the Court finds that under the discretion granted to it by Tex. Civ. Prac. & Rem. Code
171.086(a)(6), it does have t
Preview
FILED 4/9/2024 3:44 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Nicole Burroughs DEPUTY CAUSE NO. DC-20-16414 MARK RAY, M_D., ET AL., IN THE DISTRICT COURT Plaintiffs, v. OLIVER STREET DERMATOLOGY MANAGEMENT LLC, OLIVER STREET 298™ JUDICIAL DISTRICT DERMATOLOGY HOLDINGS LLC, DERM GROWTH PARTNERS I, LLC, DERM GROWTH PARTNERS II, LLC, DERM GROWTH PARTNERS III, LLC, GEOFF L. WAYNE, and J. SCOTT WELLS, Defendants. DALLAS COUNTY, TEXAS REQUEST FOR STATUS CONFERENCE Plaintiffs, Dr. Mark Ray, Dr. Lisa Pruett, Dr. Jon Pruett, Trinity Dermatology, P.A., Dr. Gil Selkin, Facial and Skin Surgery Center, P.A., Dr. Christie Matter, Dr. Susanne Lockhart, North Texas Dermatology Aesthetic and Laser Center, L.L.C., and North Texas Dermatology, L.L.C. ask the Court to set a status conference to compel this case to arbitration: I. Introduction Pending before this Court are (1) Plaintiffs’ and Defendants’ separate Motions to Compel Arbitration: plaintiffs request to be compelled to one arbitration, where AAA can determine whether severance makes sense, while defendants request that each plaintiff be compelled to a separate arbitration; (2) defendants’ Motion to Dismiss: defendants argue that conflicting New York and Delaware forum selection clauses require a New York or Delaware court decide arbitration (since rejected by Delaware); and (3) several defendants’ Special Appearances: some defendants ask to be dismissed on jurisdictional grounds (since partially determined by Dallas Court of Appeals). Because this Court clearly has jurisdiction to compel this matter to arbitration, plaintiffs ask the Court to compel arbitration and permit AAA to determine whether to sever the case into separate arbitrations. See, e.g., Cypress Drilling, LLC v. Medve Energy Ventures, LLC, 2019 WL 5656471, at *2 (Tex. App—Amarillo Oct. 31, 2019, no pet.) (Texas General Arbitration Act confers jurisdiction on Texas court “to enforce an arbitration agreement ...”). As a refresher, plaintiffs are Texas doctors who sold their Dallas-Fort Worth- area dermatology practices to defendants, who operated dermatology clinics under the name “U.S. Dermatology Partners” (“(USDP”) and this organizational structure: Derm Growth Partners I, LLC T 1 Derm Growth Partners IT, LLC T 1 Derm Growth Partners III, LLC | Oliver Street Dermatology Holdings, LLC | Oliver Street Dermatology Management, LLC USDP paid for these Texas practices in both cash and equity in defendants’ parent company, defendant Derm Growth Partners I, LLC (“DGI’). Plaintiffs later found out that the equity was worthless and sued over related misrepresentations. One year ago, the Court held a status conference on the three issues discussed above, which have been pending since 2021. At that time, defendants “urge[d] the Court to wait to rule on the[ir] Special Appearance until it can follow the precedent Request for Status Conferenc Page 2 set by the Dallas Court of Appeals” in a related case: Robert P. Selkin v. Oliver Street Dermatology, et. al, Cause No. DC-20-11616, pending in the 134‘ Judicial District of Dallas County, Texas (“Bobby Selkin Case”); Dr. Robert “Bobby” Selkin is plaintiff Dr. Gil Selkin’s brother and asserted similar claims. On August 9, 2023, the Dallas Court of Appeals denied DGI’s special appearance appeal. Derm Growth Partners I, LLC v. Selkin, No. 05-21-00956-CV, 2023 WL 5089286, at *1 (Tex. App.—Dallas Aug. 9, 2023, pet. denied). On January 5, 2024, the Texas Supreme Court denied DGI’s Petition for Review. With DGI’s jurisdictional appeal in the Bobby Selkin Case over, this case is ripe to be compelled to arbitration. Because of the contractual Texas arbitration provision, this Court unquestionably has jurisdiction to compel the parties to arbitration — as defendants and plaintiffs have requested. See Tex. Civ. Prac. & Rem. Code § 171.081 (Agreeing to arbitration agreement that cites the Texas General Arbitration Act “confers jurisdiction on the court to enforce the agreement ...”). Indeed, the parties have even agreed to AAA arbitration. See Exs. 1 and 2 (Letters agreeing to AAA arbitration under the AAA Commercial Arbitration Rules). And so, plaintiffs ask the Court to compel the parties to arbitration. II. Factual Background 1 Defendants are entities and officers (or former officers) that, under the USDP name, operate a nationwide chain of dermatology. The individual plaintiffs are Texas doctors who sold their Texas assets to USDP in three separate transactions Request for Status Conferenc Page 3 between 2017 and 2018, each becoming USDP employees as a result.! Each sale involved substantially similar transaction documents that integrated around a dozen agreements, including an Asset Purchase Agreement (“APA”) incorporating a Contribution and Subscription Agreement (“CSA”) and an Employment Agreement (‘Employment Agreement”) among other documents: (the “Assumption Agreement”): (iv) the Interim Management Services Agreement in the form attached hereto as Exhibit 1.6() (the “Interim 1 agement Agreemen' (v) the Succession ement in the form attache ire 0 as Exhibit the “Succession reement Su n er d (vii the Jc der Ay eements in the form attached hereto as Exhibit 1.6(m) (the “Joinder Agreements’ Cae the Escrow Agreement, the Bill of Sale, iets mn Management Ag greement, the Succession eemnent, ab the Assumption Agreement, the wn oind ch het fern ction nt d, Ih the leu rent his ement may be executed in one or re counterparts id with panera fac simile signature pages. each of which shall be deemed an original. but all of which when taken together shall constitute one and the same Agreement. The headings of Articles and Sections herein are inserted for convenience of reference only and shall be ignored in the construction or interpretation hereof. The representations, warranties, agreements and covenants of the parties, and the rights to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of any party or any party’s Related Parties or representatives or by reason of the fact that a party or any of its Related Parties or representatives knew or should have known that any such representation or warranty is. was or might be inaccurate. E.g., Ex. GS-1 to Plaintiffs’ Response to [certain] Defendant’s Special Appearance. These three integrated transaction documents contained conflicting forum selection clauses: APA (Delaware), CSA (New York), Employment Agreement (Texas arbitration). 2 Through the three transactions, the doctors became Oliver 5.01(a), Inc. (“Oliver 5.01”) employees and Class A unitholders of DGI by virtue of accepting DGI equity as partial consideration for their sales. Combined, plaintiffs received what 1 Plaintiffs incorporate under Tex. R. Civ. P. 58 their more thorough recitations of their allegation and supporting exhibits in their Petition and their Response to certain defendants’ Special Appearance. Request for Status Conferenc Page 4 defendants represented was $6.2 million worth of DGI equity. This suit concerns primarily defendants’ representations about the then-current and future value of DGI’s equity, as plaintiffs only learned that their DGI equity was worthless after USDP defaulted on its credit agreement for misrepresenting key financials to its lender. Ill. Procedural History 3. Defendants’ actions led to a slew of litigation, including three matters concerning plaintiffs: (1) the “Fraud Litigation,” (2) the “Employment Litigation,” and (3) the “Delaware Action.” Plaintiffs update the Court as to the status of each matter and seek the Court’s ruling on the pending arbitration issue: the number of arbitrations. 4 The Fraud Litigation: This litigation started with this fraud lawsuit. Plaintiffs and defendants have each asked this Court to compel the Fraud Litigation to arbitration and have agreed that AAA should administer the arbitration(s) under AAA Commercial Arbitration Rules. See Exs. 1, 2. 5 On July 14, 2021, and continued on July 29, 2021, this Court heard arguments on the parties’ cross-motions to compel arbitration. At that time, the Court also heard certain defendants’ special appearance and defendants’ motion to dismiss—that ignores the Texas arbitration provision—based on the APA’s (Delaware) and CSA’s (New York) forum selection clauses. But see Pers. Sec. & Safety Sys. Inc. v. Motorola Inc., 297 F.3d 388, 396 n.11 (5th Cir. 2002) (“[A] forum selection clause cannot nullify an arbitration clause unless the forum selection clause Request for Status Conferenc Page 5 specifically precludes arbitration.”). After the hearing, the parties submitted letters to the Court agreeing to have the arbitration administered by the AAA under its Commercial Arbitration Rules (the applicable arbitration clause does not specify an arbitral body) but disagreeing as to whether there should be one arbitration with all plaintiffs, three separate arbitrations (one for each practice), or nine different arbitrations (one for each plaintiff). The letters are attached as Exhibits 1 and 2. 6 This Court has not issued a ruling, and so plaintiffs’ request to be compelled to arbitration remains outstanding. As a result, plaintiffs ask the Court to compel this case to one arbitration and permit the AAA to determine whether to sever the arbitration into multiple arbitrations. This is facilitated by the parties’ Agreement to use the AAA Commercial Arbitration Rules, which permit the arbitrator to determine the number of arbitrations. See Robinson v. Home Owners Mgmt. Enterprises, Inc., 590 S.W.3d 518, 529 (Tex. 2019) (“[We are persuaded that ... determining whether the parties have agreed to arbitrate disputes as a class is a threshold question of arbitrability.”);2 TotalEnergies E&P USA, Inc. v. MP Gulf of Mexico, LLC, 667 S.W.3d 694, 710 (Tex. 2023), reh’g denied (June 9, 2023) (“The AAA rule mandates that the arbitrator have “the power” to decide arbitrability issues.”). 7 The Employment Litigation: The individual plaintiffs (Drs. Lockhart, Matter, Pruett, Pruett, Ray, and Selkin) also sued Oliver 5.01(a) over 2 Robinson discusses class arbitrations, which are different than the consolidated arbitrations plaintiffs request, as class arbitrations “include[] absent parties” like any other class litigation. See Robinson, 590 8.W.3d at 530. Despite this, this arbitrator-decides-arbitrability reasoning is persuasive. Request for Status Conferenc Page 6 more recent, post-acquisition employment matters in Susanne Lockhart, MD, et al. v. Oliver Street 5.01(a), Inc. d/b/a U.S. Dermatology Partners, Cause No. DC-21-04829 pending in the 191st Judicial District of Dallas County, Texas. Both sides asked the 191st District Court to compel the Employment Litigation to arbitration. 8. On August 27, 2021, the 191st District Court issued an email order (attached as Exhibit 3) that, among other things, (1) ordered the parties to “arbitrate all causes of action and/or counterclaims arising out of the Employment Agreements;” and (2) found that the Court had authority to order consolidated arbitrations: Ky Jurgensen From: Marsha Sweet Sent: Friday, August 27, 2021 4:18 PM To: ky Jurgensen; rbirne@doorhandles.com; Matt Parks; Yvette Ostolaza; margaretallen@sidley.com: Reid, Penny Subject: FW: DC21-04829; Lockhart v. Oliver Street 5.01(A), Inc. Counsel: The Court has reviewed the pleadings and relevant statutes and makes the following rulings: 1. The parties are ordered to arbitrate all causes of action and/or counterclaims arising out of the Employment Agreements. 2. The Court finds no evidence/insufficient evidence that the parties agreed to the American Arbitration Association as the administering/appointing agency. The Court therefore finds that the arbitration(s) will proceed as non-administered arbitration(s). 3. As to the number of arbitrations, the Court finds that under the discretion granted to it by Tex. Civ. Prac. & Rem. Code 171.086(a)(6), it does have the authority to potentially consolidate the individual arbitrations. The Court finds that the potential costs, the concern about inconsistent rulings, potential and likely duplicative discovery and general efficiency and economy fall squarely under the Court's discretion to make such orders as are necessary for the arbitration(s) to be conducted in an “orderly manner” and in such a way as to “prevent... . delay of the arbitration.” The Court finds, however, that it has insufficient evidence to determine the consolidation issues. 4. The Court further finds that it is unable to appoint an arbitrator or arbitrators until the consolidation issue is resolved. 5. The Court also finds that it retains authority over injunctive reliefin this case. To the extent that the injunctive relief requested by the Plaintiffs is an anti-suit injunction concerningthe Delaware lawsuit,the Court believes such injunctive relief may be moot in light of the Court’s Order concerning all employment related causes of action. If the Plaintiffs believe that they need to continue to pursue such relief, the Court does not believe extensive - or even any - discovery would be needed on that specific, limited relief. To the extent any party is requesting any additional or different relief, the Court would request a status conference to understand what reliefis requested and what discovery is needed. Request for Status Conference Page 7 6. The Court requests that the parties prepare and file motions and briefing regarding potential consolidation of the arbitrations by September 8, 2021. The Court finds that it is likely that an evidentiary issue will need to be held on consolidation, but does not believe that any discovery is needed or would be useful to the Court in making the consolidation ruling. Once the initial motions/briefs have been filed, the parties will have until 5:00 p.m. on September 13, 2021 to file any responses. The parties are ordered to confer with each other and the Court Coordinator regarding setting a hearing to occur on or after September 15, 2021 on this issue. Judge Gena Slaughter Presiding Judge, 191st Judicial District Court Ex. 3. The parties briefed the consolidation issue but there was no oral hearing, and the 191st District Court has not issued a further ruling. 9. Cross-over between the Fraud Litigation and the Employment Litigation: In July 2021, defendants filed a Notice of Related Case in this Court asking that this Court transfer the Employment Litigation to itself. No oral hearing was held on the issue, and this Court has not issued a related order. Plaintiffs agree to the related case transfer, so the Employment and Fraud Litigation can both be compelled to arbitration. 10. Delaware Action: Defendants further complicated matters in July 2021 when OSDM and Oliver 5.01 filed a Verified Complaint to Compel Arbitration against Drs. Lockhart, Matter, Pruett, Pruett, Ray, and Selkin, in Delaware’s Chancery Court. Ex. 4. They asked that the doctors (1) be permanently enjoined from prosecuting the Fraud Litigation and Employment Litigation in Texas, and (2) be compelled to nine separate AAA-administered arbitrations. 3 Tronically, plaintiffs filed a Notice of Related Case in November 2020, drawing the Court’s attention to the related, first-filed Bobby Selkin Case: Robert P. Selkin v. Oliver Street Dermatology Management, LLC, et al., DC-20-11616, filed in the 134% Judicial District of Dallas County, Texas. Defendants appear to want to consolidate into this Court, rather than the 134* District Court. Request for Status Conference Page 8 11. The doctors moved to dismiss or stay the Delaware Action to allow the Texas Courts to determine the arbitration issue. In deference to the Texas cases, the Delaware Court stayed the Delaware Action in February 2023. Ex. 5 (order). As this Court has heard, the integrated transaction documents contained different forum selection clauses. Indeed, the Delaware Court recognized the “potentially conflicting” forum selection clauses in the APA (Delaware forum), the CSA (New York forum), and Employment Agreements (Texas arbitration “in accordance with the Texas General Arbitration Act’). 12. Plaintiffs have long contended that the conflict renders the so-called New York and Delaware forum selection provisions unenforceable and trumped by the Texas arbitration. See, e.g., Target Strike, Inc. v. Strasburger & Price, L.L.P., 2018 WL 6040022, at *11 (Tex. App.—Dallas Nov. 19, 2018, pet. denied) (“[A] forum selection clause must contain explicit language regarding exclusivity’ to be enforceable.); Coody Custom Homes, LLC v. Howe, 2007 WL 1374136, at *2 (Tex. App.—Waco May 9, 2007, no pet.) (“Texas courts have held that venue, choice of law, and forum selection clauses can be ‘harmonized’ with arbitration provisions.”). 13. When announcing its stay decision, the Delaware Court discussed the idea that only “crystalline” forum selection clauses will be enforced, citing Duff v. Innovative Discovery LLC, 2012 WL 6096582 (Del. Ch. Dec. 7, 2012) for the idea that “conflicting, or potentially conflicting, forum selection provisions in multiple agreements be [sic] signed by the parties make the parties intent as to a contract choice of forum .. . far from crystalline.” The Delaware Court went on to state that, Request for Status Conferenc: Page 9 “At minimum, the conflicting forum provisions here put in question the intent of the parties.” Accord Target Strike, Inc. v. Strasburger & Price, L.L.P., 2018 WL 6040022, at *11 (Tex. App.—Dallas Nov. 19, 2018, pet. denied) (“forum selection clause must contain explicit language regarding exclusivity” to be enforceable). 14. The Delaware stay remains in place, and the Delaware Court has recently requested an update on the status of the Texas cases. IV. Requested Relief 15. These issues have been pending for nearly three years. Because the Texas Supreme Court recently denied DGI’s jurisdictional appeal, there is no remaining reason for this Court to wait to compel the parties to arbitration. Plaintiffs thus ask the Court to decide the open issues and (1) set a status conference, (2) deny defendants’ Motions to Dismiss, (3) transfer the Employment Litigation to itself, and (4) compel the parties to AAA arbitration in Dallas, Texas, where AAA can determine the number of arbitrations. Plaintiffs additionally request any further relief to which they are entitled. Request for Status Conferenc: Page 10 Respectfully submitted, Burford Perry, LLP /s/ Matt E. Parks Robert R. Burford State Bar No. 03371700 Matt E. Parks State Bar No. 24083622 Zachary R. Carlson State Bar No. 24116165 909 Fannin St., Suite 2630 Houston, Texas 77010 Telephone: (713) 401-9790 Facsimile: (713) 993-7739 rburford@burfordperry.com mparks@burfordperry.com zcarlson@burfordperry.com Attorneys for Plaintiffs CERTIFICATE OF CONFERENCE I certify that I have conferred with counsel for Defendants about the above motion and requested relief, and their position is follows: Defendants do not oppose having a status conference. But Defendants disagree with Plaintiffs’ characterizations of the facts, law, and procedural history in the attached request for status conference, and they reserve all rights to file a response thereto before any status conference is held. Defendants also object to the request for status conference to the extent that it supplements and re-briefs Plaintiffs’ opposition to Defendants’ pending motions to dismiss, which were fully briefed and heard almost three years ago. If the Court requires further argument or authorities on the pending motions, the parties can provide supplemental briefing with Defendants getting the final reply on their own motions. /s/ Matt E. Parks Matt E. Parks Request for Status Conferenc Page 11 CERTIFICATE OF SERVICE I certify that the above document was served upon counsel of record for the Specially Appearing Defendants via the Court’s efiling system on April 9, 2024. /s/ Matt E. Parks Matt E. Parks Request for Status Conferenc Page 12 FILED 8/3/2021 10:06 AM FELICIA PITRE DISTRICT CLERK SIDLEY AUSTIN LLP DALLAS CO., TEXAS SIDLEY 2021 MCKINNEY AVENUE, Loaidi Grove DEPUTY SUITE 2000 DALLAS, TX 75201 +1214 981 3400 +1214 981 3400 FAX +1214 981 3401 YVETTE.OSTOLAZA@SIDLEY.COM AMERICA « ASIA PACIFIC * EUROPE August 3, 2021 Via Electronic Filing Honorable Emily Tobolowsky 298th Civil District Court George L. Allen, Sr. Courts Building 600 Commerce Street, 7th Floor New Tower Dallas, TX 75202 Re: Pruett v. Oliver Street Dermatology Mgmt. LLC, No. DC-20-16414 (298th Dist. Ct., Dallas County, Tex. filed Nov. 2, 2020) Dear Judge Tobolowsky: Subject to Specially Appearing Defendants Derm Growth Partners I, LLC, Derm Growth Partners II, LLC, Derm Growth Partners III, LLC, and Oliver Street Dermatology Holdings LLC’s (collectively, “Specially Appearing Defendants”) Special Appearance and Motion to Dismiss for Lack of Personal Jurisdiction (the “Special Appearance”),' and without waiving their rights to arbitrate or enforce the parties’ agreements to exclusive jurisdiction in Delaware and New York, Defendants Oliver Street Dermatology Management LLC, Geoff Wayne, Scott Wells, and the Specially Appearing Defendants (collectively, “Defendants”) write to provide the Court with an update. As requested by the Court, the parties conferred regarding potential arbitrators and an administrator of any arbitration. After conferring on August 2, 2021, the parties agree on the following: 1 If Defendants’ Motion to Compel Arbitration is granted, the disputes should be administered and submitted to binding confidential arbitration before the American Arbitration Association (“AAA”), The AAA Commercial Rules currently in effect (“AAA Rules”) will govern the separate arbitration proceedings. The parties do not agree, however, on the following: | Without consenting that this Court has personal jurisdiction over them, Specially Appearing Defendants specially appear, subject to, and without waiving, their Special Appearance and Motion to Dismiss for Lack of Personal Jurisdiction or their ability to assert any defense to this action, including, but not limited to, their right to move to dismiss based on jurisdiction and/or failure to state a claim. ACTIVE 270959137 SIDLEY Page 2 1 For the reasons stated in the Special Appearance, this Court lacks in personam jurisdiction over the Specially Appearing Defendants and should dismiss the Specially Appearing Defendants from this action. For the reasons stated in Defendants’ Motion to Dismiss, the Court should dismiss this action in its entirety because Plaintiffs’ claims are subject to mandatory, exclusive forum-selection provisions requiring them to bring these claims in Delaware or New York. Nonetheless, the non-Specially Appearing Defendants would submit their claims previously filed with the AAA to the AAA again. For the reasons stated in Defendants’ Notice of Related Case, the Court should transfer Plaintiffs’ related case pending before Judge Slaughter, Pruett v. Oliver Street 5.01 (a), Inc., No. DC-21-04829 (191st Dist. Ct., Dallas County, Tex. filed Apr. 13, 2021) (the “Related Action”), to this Court to facilitate the orderly and efficient disposition of the parties’ disputes by compelling all the parties’ claims to arbitration in one order. Plaintiffs’ counsel made several key admissions during the July 29 hearing that confirm this Court should exercise its broad discretion to transfer the Related Action and compel arbitration of all claims: a. With respect to the Employment Agreements under which Plaintiffs assert claims in the Related Action, Plaintiffs’ counsel admits that “there’s no question that the Employment Agreement was signed at the same time and that [the Employment Agreement’s] arbitration provision sufficiently relates to the Asset Purchase and Contribution Agreements” under which Plaintiffs assert claims in this action. (July 29, 2021 Hearing Tr. 23:3-6.) As conceded by Plaintiffs’ counsel at the recent Motion to Compel Arbitration hearing, “these are unequivocally integrated transactions, and so there is a general application of that arbitration provision to all of this.” (Ud. at 23:6-9.) Plaintiffs’ counsel also conceded that this lawsuit was filed first and that the Related Action before Judge Slaughter included the same plaintiffs. (See id. at 5:25-6:7, 18:19-22, 19:18-20.) The mere fact that a different attorney is involved in the Related Action is of no relevance because, among other reasons, they are coordinating and their forum shopping should not be rewarded. Indeed, “the case law [Defendants] rely on to make this argument, that the arbitration provision applies, which, again, we agree with, involved a series of integrated transactions and one arbitration that arose out of it.” (/d. at 25:3-7.) In sum, “it simply doesn’t make sense to break those integrated transactions up past, at minimum, three arbitrations.” (/d. at 25:10-12.) ACTIVE 270959137 SIDLEY Page 3 Yet, Plaintiffs continue to pursue separate relief from Judge Slaughter compelling to arbitration claims under their Employment Agreements—which they filed several months after bringing claims in this Court that they now concede must be arbitrated under those same Employment Agreements. As Plaintiffs’ counsel admits, this “simply doesn’t make sense.” (/d.) The Court should instead order the Related Action pending before Judge Slaughter transferred to this Court so that the Court may compel all parties’ claims to arbitration in a single order. Doing so will conserve Court and party resources and avoid disparate outcomes by placing the arbitrability determination before just one court. The number of arbitration proceedings that should take place. Plaintiffs would prefer one consolidated arbitration; however, Defendants have not agreed to consolidated proceedings. The agreements are with individuals and since arbitration is a creature of contract, a consolidated proceeding would be reversable error because the unambiguous language in the arbitration agreement states that consolidated arbitration cannot be ordered absent the parties consent. Thus, this Court can and should order an individual arbitration proceeding for each Plaintiff against the proper Defendant(s). Should the Court determine that it will not order separate arbitration proceedings for each Plaintiff, Defendants would agree to three separate arbitrations, divided according to Plaintiffs’ respective practice groups, as follows: Gilbert Selkin, Facial and Skin Surgery Center, P.A.; Susanne Lockhart, Christie Matter, North Texas Dermatology Aesthetic and Laser Center, L.L.C., and North Texas Dermatology, L.L.C.; and c. Mark Ray, Lisa Pruett, Jon Pruett, and Trinity Dermatology, P.A. Defendants accordingly submit two proposed orders for the Court’s consideration. The first grants the Special Appearance based on lack of jurisdiction and the Motion to Dismiss based on improper venue, dismissing this action in its entirety. The second grants the Special Appearance, dismisses the Specially Appearing Defendants, and transfers the Related Action to this Court, while compelling to arbitration before the AAA, in accordance with the AAA Commercial Arbitration Rules, the Plaintiffs’ remaining claims against the non-Specially Appearing Defendants, in at least six separate arbitration proceedings with six separate arbitrators using the AAA Rules, organized by Plaintiffs’ practice groups, as set forth above. Without waiving the Special Appearance or Motion to Dismiss, Defendants respectfully request that the Court enter one of the enclosed proposed orders. Respectfully submitted, ACTIVE 270959137 SIDLEY Page 4 /s/Yvette Ostolaza Yvette Ostolaza Enclosures cc: Counsel of Record ACTIVE 270959137 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Yvette Ostolaza on behalf of Penny Reid Bar No. 15402570 yvette.ostolaza@sidley.com Envelope ID: 55943543 Status as of 8/3/2021 3:38 PM CST Associated Case Party: OLIVER STREET DERMATOLOGY HOLDINGS LLC Name BarNumber | Email TimestampSubmitted | Status Margaret Allen margaret.allen@sidley.com | 8/3/2021 10:06:58AM | SENT Associated Case Party: MARK RAY Name BarNumber Email TimestampSubmitted Status Robert R.Burford rburford@burfordperry.com 8/3/2021 10:06:58 AM SENT Matt E.Parks mparks@burfordperry.com 8/3/2021 10:06:58 AM SENT Burford Perry Service service@burfordperry.com 8/3/2021 10:06:58 AM SENT Case Contacts Name BarNumber | Email TimestampSubmitted Status TX Efiling Notice txefilingnotice@sidley.com 8/3/2021 10:06:58 AM SENT Crystal Clark crystal.clark@sidley.com 8/3/2021 10:06:58 AM SENT Nancy Cade ncade@sidley.com 8/3/2021 10:06:58 AM SENT Diane Padilla dpadilla@sidley.com 8/3/2021 10:06:58 AM SENT Robin Ainsworth rainsworth@hchlawyers.com 8/3/2021 10:06:58 AM SENT Kim Hill khill@hchlawyers.com 8/3/2021 10:06:58 AM SENT HENDERSHOT COWART PC. netdocs@hchlawyers.com 8/3/2021 10:06:58 AM SENT Ky Jurgensen kjurgensen@hchlawyers.com 8/3/2021 10:06:58 AM SENT Associated Case Party: DERM GROWTH PARTNERS I, LLC. Name Barret Armbruster Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Yvette Ostolaza on behalf of Penny Reid Bar No. 15402570 yvette.ostolaza@sidley.com Envelope ID: 55943543 Status as of 8/3/2021 3:38 PM CST Associated Case Party: DERM GROWTH PARTNERS I, LLC. Patrick Foley patrick.foley@sidley.com 8/3/2021 10:06:58 AM SENT Penny P. Reid preid@sidley.com 8/3/2021 10:06:58 AM SENT Mitchell BrantAlleluia-Feinberg malleluiafeinberg@sidley.com 8/3/2021 10:06:58 AM SENT Yvette Ostolaza yvette.ostolaza@sidley.com 8/3/2021 10:06:58 AM SENT Sophie V.Franks sfranks@sidley.com 8/3/2021 10:06:58 AM SENT FILED 8/3/2021 6:27 PM FELICIA PITRE 6 DISTRICT CLERK DALLAS CO., TEXAS Kevin Molden DEPUTY BURFORD PERRY ur Matt E. Parks Partner 909 Fannin St., Suite 2630 Telephone: (713) 401-9790 Houston, Texas 77010 Facsimile: (713) 993-7739 mparks@burfordperry.com www.burfordperry.com August 3, 2021 Via Electronic Filing Hon. Judge Emily Tobolowsky 298 Civil District Court George L. Allen, Sr. Courts Building 600 Commerce Street, 7*+ Floor New Tower Dallas, Tx 75202 Re: Ray, et al. v. Derm Growth Partners I, LLC, et al., No. DC-20-16414 in the 298th District Court of Dallas County, Texas. Dear Hon. Judge Tobolowsky: Plaintiffs submit this letter in response to defendants’ letter concerning arbitrators, which they filed earlier today. The Court has heard the parties’ disagreements concerning defendants’ Special Appearance and defendants’ Motion to Dismiss based on conflicting forum selection clauses. Plaintiffs do not rehash that debate. As defendants reported, plaintiffs agreed that if the Court compels arbitration: (dy The arbitration(s) shall be submitted to and administrated by the American Arbitration Association (“AAA”); (2) The arbitration(s) will be governed by the AAA Commercial Rules currently in effect; and (3) If the Court compels three arbitrations, they should be divided according to plaintiffs’ respective practice groups, as defendants state. August 3, 2021 Page 2 of 3 Plaintiffs submit their own proposed orders, however, because: (1) Plaintiffs ask the Court to compel one or, alternatively, no more than three arbitrations, which should include the Specially Appearing Defendants; and (2) Defendants ask this Court to compel another lawsuit, Bryan Selkin, M.D. et al v. Oliver Street 5.01(A), Inc., Cause No. DC- 21-04829 in the 191st District Court of Dallas County, Texas (the “Employment Suit”) to arbitration. Plaintiffs disagree that a motion to compel the Employment Suit to arbitration was before the Court. The Employment Suit is a different lawsuit with a different cause number than this suit. Without restating the suits’ differences (recited in the previously-filed Objection to Related Case), there is no complete identity of the parties between lawsuits, which involve different facts separated by nearly two years. Oliver Street 5.01(A), Inc. is not a defendant in this case but is the only defendant in the Employment Suit. Similarly, Dr. Bryan Selkin is not a plaintiff in this case, though he is in the Employment Suit. But even if the Court grants defendants’ Notice of Related Case and transfers the Employment Suit, it will remain a separate lawsuit with different lead counsel and different parties: Defendants moved under Dallas County Local Rules 1.06 — 1.08, which govern only intradistrict transfer within Dallas County. Consolidation is governed by Local Rule 1.04 and Texas Rule of Civil Procedure 174(a). Defendants did not move to consolidate the two suits. Additionally, defendants did not notice a motion to compel the Employment Suit to arbitration in this Court. Rather, in the parties’ first hearing, the undersigned asked whether the Notice of Related Case would be taken up during the hearings on defendants’ Special Appearance and Motion to Dismiss. The Court indicated it would not be, so lead counsel in the Employment Suit did not appear at the two subsequent hearings. Because the two suits are separate and because defendants did not file a notice to compel the Employment Suit to arbitration, defendants’ request that the Employment Suit be compelled to arbitration through their proposed orders is improper. For these reasons, plaintiffs ask the Court to enter their proposed orders. August 3, 2021 Page 3 of 3 Respectfully submitted, /s/ Matt E. Parks Matt E. Parks Ce: Counsel of Record Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Matt Parks on behalf of Matt Parks Bar No. 24083622 mparks@burfordperry.com Envelope ID: 55976120 Status as of 8/4/2021 11:15 AM CST Associated Case Party: MARK RAY Name BarNumber | Email TimestampSubmitted Status Robert R.Burford rburford@burfordperry.com 8/3/2021 6:27:55 PM SENT Matt E.Parks mparks@pburfordperry.com 8/3/2021 6:27:55 PM SENT Burford Perry Service service@burfordperry.com 8/3/2021 6:27:55 PM SENT Associated Case Party: OLIVER STREET DERMATOLOGY HOLDINGS LLC Name BarNumber Email TimestampSubmitted | Status Margaret Allen margaret.allen@sidley.com | 8/3/2021 6:27:55 PM SENT Associated Case Party: DERM GROWTH PARTNERS |, LLC Name BarNumber | Email TimestampSubmitted Status Penny P. Reid preid@sidley.com 8/3/2021 6:27:55 PM SENT Barret Armbruster barmbruster@sidley.com 8/3/2021 6:27:55 PM SENT Patrick Foley patrick.foley@sidley.com 8/3/2021 6:27:55 PM SENT Mitchell BrantAlleluia-Feinberg malleluiafeinberg@sidley.com 8/3/2021 6:27:55 PM SENT Yvette Ostolaza yvette.ostolaza@sidley.com 8/3/2021 6:27:55 PM SENT Sophie V.Franks sfranks@sidley.com 8/3/2021 6:27:55 PM SENT Case Contacts Name TX Efiling Notice Nancy Cade Crystal Clark Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Matt Parks on behalf of Matt Parks Bar No. 24083622 mparks@burfordperry.com Envelope ID: 55976120 Status as of 8/4/2021 11:15 AM CST Case Contacts Diane Padilla dpadilla@sidley.com 8/3/2021 6:27:55 PM SENT Robin Ainsworth rainsworth@hchlawyers.com 8/3/2021 6:27:55 PM SENT Kim Hill khill@hchlawyers.com 8/3/2021 6:27:55 PM SENT HENDERSHOT COWART PC. netdocs@hchlawyers.com 8/3/2021 6:27:55 PM SENT Ky Jurgensen kjurgensen@hchlawyers.com | 8/3/2021 6:27:55 PM SENT Ky Jurgensen From: Marsha Sweet Sent: Friday, August 27, 2021 4:18 PM To: Ky Jurgensen; rbirne@doorhandles.com; Matt Parks; Yvette.Ostolaza; margaret.allen@sidley.com; Reid, Penny Subject: FW: DC21-04829; Lockhart v. Oliver Street 5.01(A), Inc. Counsel: The Court has reviewed the pleadings and relevant statutes and makes the following rulings: 1. The parties are ordered to arbitrate all causes of action and/or counterclaims arising out of the Employment Agreements. 2. The Court finds no evidence/insufficient evidence that the parties agreed to the American Arbitration Association as the administering/appointing agency. The Court therefore finds that the arbitration(s) will proceed as non-administered arbitration(s). 3. As to the number of arbitrations, the Court finds that under the discretion granted to it by Tex. Civ. Prac. & Rem. Code 171.086(a)(6), it does have t