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ROBERT M. (RANDY) ROACH, JR.
HARRIS COUNTY, TEXAS
FREDERICK H. SCHRADER AND
JUDICIAL DISTRICT
MOTION TO DISMISS PLAINTIFF’S FIFTH AMENDED PETITION
PURSUANT TO THE TEXAS CITIZENS PARTICIPATION ACT
TO THE HONORABLE JUDGE OF SAID COURT:
vil Practice and Remedies Code, Defendants
“Defendants”) file this motion to dismiss Plai
Fifth Amended Petition and in
e Fifth Amended Petition seemingly out of the blue and over
this lawsuit fundamentally
diatribe, Roach alleges a multitude of new “facts,” asserts thirteen new causes of action and several
new damages theories, completely transforms his
theories of liability, and requests extortionate equitable relief,
ars, LLC—a company in which Roach has no
represent as an attorney.
Roach’s radical, yet ostensibly random, decision to alter the entire case at this late juncture
e against Defendants for the exercise of the rights
to petition and associate freely as protected under the Texas Citizens Participation Act.
Specifically, Roach premises his claims in the Fifth Amended Petition on: (1) specific
communications in or pertaining to a pending judicial proceeding, (2) the trademarking of several
Schrader marks, including applications to the U.S. Patent and Trademark Office and
communications regarding the same, (3) Defendants’ communications relating to the joint defense
of specific judicial and governmental proceedings, (4) Schrader’s submission of an attorney ethics
grievance to the State Bar of Texas, and (5) communications relating to a California court’s
adjudication of title to Schrader Cellars, LLC’s assets.
It appears that Roach again seeks to use his own conflicted law firm to drain money and
judicial resources in an attempt to increase leverage, harass, and intimidate these out-of-state
Defendants. But the Texas Legislature forbids this type of retaliatory action, and has mandated
dismissal absent evidence that the claims have merit. Because the TCPA protects the activity and
communications targeted by the Fifth Amended Petition, and because Roach cannot bring forth
clear and specific evidence of his claims which are nonetheless barred as a matter of law, Roach’s
claims must be dismissed.
FACTUAL BACKGROUND
This case was brought by Robert M. Roach, Jr. (“Roach” or “Plaintiff”), a Houston-based
lawyer, against his longtime friend and client, Frederick H. Schrader (“Schrader” or “Defendant”)
regarding Roach’s alleged 50% ownership interest in a now dissolved California LLC. Roach
claims that around the year 2000, Schrader asked him to invest in a new project to produce wine
using grapes sourced from the To Kalon vineyard in Napa Valley, California. Though the parties
never signed any agreement, Roach alleges that the investment occurred
he had set up named Roach Brown Schrader, LLC (also referred to as “RBS LLC”) and that his
interest in the entity’s assets was converted when Schrader dissolved that LLC in 2013. Roach
further claims that Schrader’s co-defendant, Constellation, took ownership of those assets in 2017
Roach Brown Schrader, LLC
Despite the parties’ dispute over the veracity of Roach’s allegations, they do not dispute
that Schrader and Roach were close friends for almost twenty years, and the suit as originally
posed concerned a fracture and difference of opinion over the existence and purpose of the alleged
oral agreement to form RBS LLC, which was organized under California law on December 31,
. ¶¶ 7 & 8. As alleged in Roach’s initial pleading, “the primary asset of the LLC was the
specific rows of the clone 337 To Kalon vineyard Cabernet grapes and ultimately the production,
marketing, and sale of the wine produced from those grapes, together with the goodwill and the
RBS brand.” . ¶ 7. And as originally pled, the suit involved Roach’s claim to own a 50% interest
in RBS LLC—which he now claims entitles him to hundreds of millions of dollars in damages and
unspecified equity in Schrader’s other wine ventures in which Roach does not claim to be a partner:
After its formation in 2003, RBS LLC conducted zero business, generated no income, and
failed to file any tax returns—and, as Roach has admitted in briefing, the entity never recorded
Appellee’s Brief at 19, Frederick H. Schrader v. Robert M. Roach, Jr.
00183-CV (Tex. App.—Houston [1st Dist.] Jul. 17, 2020) (Stating “no profits from wine sales
Special Appearance Br., ¶ 9; , Schrader Dep., 66:5-10; , California Franchise Tax
Board Notice of Forfeiture. After ten years of dormancy, RBS LLC received a notice in November
2013 from the California Franchise Tax Board advising that due to the LLC’s failure to ever file
tax returns, it would be automatically suspended, which meant forfeiture of all rights, including
the rights to conduct business, use the entity name, or en
Forfeiture. Schrader forwarded the notices via email to Roach and Thomas Brown and advised
that he intended to dissolve the LLC given its lack of activity, and RBS LLC was dissolved shortly
thereafter on December 29, 2013. Ex. D, Dec. 6, 2013 email correspondence (RR00638);
Roach Dep., 154:17-157:2; , Certificate of Cancellation. While the Fifth Amended Petition
falsely alleges that Schrader “secretly” dissolved the entity without his knowledge and
“intentionally concealed” his desire to dissolve the entity (5AP, ¶ 18-19), Roach has already
admitted under oath that he was in fact aware of Schrader’s intention to dissolve Roach Brown
Schrader, LLC in 2013 but intentionally stayed silent.
and maintained their close friendship for years to follow—that is, until 2016, when Roach abruptly
dropped Schrader as a client due in part to his stress resulting from being involved in a “$10 billion
, Schrader Dep., 117:2-119:19; , Roach Dep. 16;
ll temporarily out of touch after Roach e
Nonetheless, Schrader later reached out to Roach to let his old friend know that he had sold
Schrader Cellars, LLC to Constellation. And while Roach still claims in pleadings that he only
learned of the sale of Schrader Cellars in a “blast email,” Roach admitted under oath that he
Thomas Brown is the long-time winemaker of Schrader Cellars wines, who was originally listed
as a member on the LLC’s formation documents, but who Roach omitted on subsequent LLC
documents that were handwritten and filed by Roach himself with the California Secretary of State.
Mar. 27, 2003 Statement of Information (listing Thomas Brown as member); cf.
Mar. 28, 2003 Statement of Information (handwritten and filed by Roach omitting Brown as
member).
received an email from Schrader persona BIG NEWS HERE!”
(SCHRADER_0165); Roach Dep., 165:10-167:19; 5AP ¶ 17. Roach responded to
Schrader’s email telling of the sale, stating “Congratulations; that’s absolutely incredible news!!
So glad you and Carol [Schrader] are being rewarded for the exce
Schrader Cellars! Can’t wait to hear everything! So when and where is the party???”
But sometime after hearing of his friend’s sale
filed his original petition (which was never served) alleging that Schrader, named as “FS,” alleging
converted “RR’s” alleged ownership interest in RBS LLC in Decembe
of cancellation with the California Secretary of State.
After the lawsuit was filed, Schrader filed a special appearance seeking dismissal on
personal jurisdiction grounds and an affidavit attesting that he does not own property in Texas,
does not have any bank accounts in Texas, does not have a registered agent in Texas, and does not,
and never has—through Boars’ View, LLC, Schrader Cellars, LLC, Roach Schrader Brown, LLC,
After extensive jurisdictional discovery, which failed to reveal evidence of any relevant
jurisdictional contacts, Roach amended his response to the Special Appearance, and for the first
time, relied on Roach Newton LLP’s prior legal representation of Schrader, Schrader Cellars, LLC,
and Boars’ View, LLC, as a basis for jurisdiction. Specifically, Roach alleged that “from RBS’
inception and through mid-2016” Roach and his “firm of Texas lawyers”—including John
Newton, Roach’s current attorney in this case—represented Schrader, Schrader Cellars, LLC, and
Boars’ View, LLC, which he reaffirmed during his deposition.
19, 47:9-22. Roach similarly pounded these allegations in his Fourth Amended Petition, which put
Roach’s past representation of Schrader, Schrader Cellars, LLC, RBS LLC, and Boars’ View LLC
After it became clear from these filings and Roach’s targeted discovery efforts that
Schrader’s former attorneys intended to continue to use Schrader’s confidential client information
offensively, Schrader filed a motion to disqualify Roach Newton LLP and John Newton. The
motion sought protection from Roach or his law firm’s further disclosure of Schrader’s
confidential information and sought return of all client files belonging to Schrader and his entities.
After Roach argued in responsive briefing that a motion to disqualify was not the appropriate
remedy for enforcing violations of attorney ethics rules such as Roach’s newly claimed “equity”
interest in his former clients, Schrader filed a grievance with the State Bar
2020, which he amended on November 23, seek
Declaration of C. Low, ¶ 2. Pursuant to the Texas Rules of Disciplinary Procedure, Roach was
Roach’s Retaliatory Fifth Amended Petition
Having failed to dredge up any indicia of Defendants’ misconduct during months of
abusive discovery and motion practice, Roach attempted to increase leverage by filing the Fifth
Amended Petition on January 11, 2021—over two years into this litigation, on the same day as
Defendants’ expert disclosure deadline, and just shy of several other key deadlines for Defendants,
including summary judgment. In the 75-page Fifth Amended Petition (“ ”), Roach radically
Similar to Schrader’s motion for disqualification, which this Court denied following Roach’s
argument that it was not the proper forum, Schrader’s ethics complaint seeks redress for Roach’s:
(1) unauthorized disclosure of confidential client information, (2) conflict of interest in suing a
former client in connection with the subject of the prior representation, (3) attempt to obtain a
financial interest in a former client’s business venture that was the subject of the prior
re to disclose an intent to seek equity in their client’s businesses, and (5)
changed the fundamental nature of his case, both adding to and substantially altering the facts,
legal theories, causes of action, and requests for relief—even resorting to ludicrous allegations of
criminal conduct.
Specifically, the 5AP asserts thirteen new causes of action. Roach’s new claims against
Constellation include “knowing participation in breach of fiduciary duty,” which claims that
Constellation “aided and abetted” and “knowingly participated in” Schrader’s alleged breach of
fiduciary duties, including by virtue of a joint tortfeasor theory. 5AP, ¶¶ 65-66. Roach also asserts
new claims for tortious interference with existing contract and “concert of action,” against
Constellation, seeking punitive damages and asserting willful misconduct, “malice” and
unconscionability in connection with each. , ¶¶ 92-98, 128, 133-37. Similarly, Roach brings
several newly pled causes of action against Schrader, including claims for breach of contract,
quantum meruit, and a hodgepodge of out-of-state partnership liability claims against Schrader.
., ¶¶ 112-18, 120-125, 130-31. Roach also injects various new theories of joint liability, veil-
piercing, and reverse veil-piercing into the 5AP, purporting to implicate several individual
Constellation employees previously unnamed.
In addition to these new causes of action, Roach asserts a variety of new declaratory
judgment claims seeking several new types of le . For example, he now
seeks punitive damages against both Defendants (including the claim that Constellation and
Schrader acted criminally under the Texas Penal Code), rejiggers his requests for a constructive
trust to include brand new assets that are not clearly defined, seeks forfeiture of these new assets,
and even asks the Court to somehow “rescind” or “set aside” the 2017 sale of Schrader Cellars,
LLC and effectively void the accompanying indemnity agreement—even though Schrader Cellars,
LLC itself has not been joined as a party. ., ¶¶ 99-103, 139-159. In other words, Roach now
wants the Court to rescind a contract to which he was not a party and undo the event forming the
entire basis for this lawsuit.
Relevant to this motion, Roach’s 5AP adds several new allegations and claims specifically
targeting several categories of protected activity, which are discussed in greater detail below.
Roach’s claims in the 5AP expressly target communications protected by the TCPA—specifically,
Roach’s amended claims for conversion, money had and received, breach of fiduciary duty, unjust
enrichment, constructive trust, and conspiracy to commit conversion and breach of fiduciary duty,
equitable accounting based on fiduciary relationship, new claims for “knowing participation in
breach of fiduciary duty,” breach of contract, tortious interference, quantum meruit, concert of
action, an unspecified claim based on the existence of a partnership relationship, a claim based on
“joint venture liability, joint enterprise liability, or partnership liability,” various requests for
equitable relief and judicial de in connection with the above,
including punitive damages. Because these claims are all based on conduct and communications
expressly protected by the TCPA, they must be dismissed.
ARGUMENT
The Fifth Amended Petition Retaliates Against the Exercise of
The TCPA is intended to “encourage and safeguard the constitutional rights of persons to
ise participate in government to the maximum
extent permitted by law and, at the same time, protect the rights of a person to file meritorious
lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002. The statute provides
defendants with an expedited procedure to enable the prompt dismissal of meritless lawsuits aimed
at chilling those rights. §§ 27.003-.007. Roach’s claims are subject to the TCPA because the
facts underlying the claims are centered on Defendants’ communications relating to the right to
petition in connection with (a) a pending judicial proceeding, (b) trademark applications under
review by the U.S. Patent and Trademark Office, and (c) issues under review and likely to
encourage review by state governmental and judicial bodies. Roach’s Fifth Amended Petition
d activity in exercising their right to association and is subject
to TCPA dismissal on those independent grounds.
A “legal action” subject to the TCPA includes “a lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal,
declaratory, or equitable relief.” § 27.001(6). A movant seeking dismissal under the TCPA
bears the initial burden demonstrating that the “legal action is based on or is in response to the
party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of
association.” § 27.005(b). The burden is then on plaintiff to provide “clear and specific”
evidence of a prima facie case “for each essential element of the claim in question.” . at §
27.005(c). Even if the plaintiff is able to meet this hurdle, the TCPA still requires dismissal if the
movant “establishes an affirmative defense or other grounds on which the moving party is entitled
to judgment as a matter of law.”
The TCPA defines the “exercise of the right to petition” as, among other things,
communications “in or pertaining to a judicial proceeding,” communications “in connection with
an issue under considera ve, judicial, or other governmental
body or in another governmental or official proceeding,” and communications “reasonably likely
to encourage consideration or review of an issue” by such bodies. § 27.001(4). A “governmental
proceeding” is defined as “a proceeding, other than a judicial proceeding, by an officer, official,
or body of this state or a political subdivision of this state, including a board or commission, or by
an officer, official, or body of the federal government.” § 27.001(4)(A)(i). In addition, the Act
association” to mean “to join together to coll
promote, pursue, or defend common interests relating to a governmental proceeding or a matter of
right to petition the U.S. Government.
The claims in Roach’s 5AP are based on Defendants’ communications in furtherance of
the exercise of the right to petition the U.S. government, the U.S. Patent and Trademark Office
specifically. Specifically, the 5AP expressly relies on Schrader an
and process to trademark the RBS mark,” and the trademarking of several other Schrader marks
in seeking relief. See, e.g., 5AP, ¶¶ 17, 29, 113. While Roach incorrectly claims that “RBS had no
trademark status” when the parties began due di public trademark filings
establish that the application for an RBS trademark was filed on the same day as applications for
the other Schrader marks. In an attempt to plead around uncontroverted facts, the 5AP cherry-
picks a document titled “Trademark Status Update” created by Schrader summarizing the
application, examination, and renewal status of the Schrader marks, which omits RBS from this
list as a result of a typographical error. (CONSTELLATION_2960). The 5AP also relies
on the trademarking of and communications relating to other Schrader labels, including the
trademarks for Schrader CCS and Colesworthy. 5AP, ¶¶ 29, 31. Finally, as discussed in greater
detail below, Roach’s 5AP is premised on a letter written by Constellation’s General Counsel
lating to the Schrader marks and ownership thereof, including
the RBS trademark. 5AP, ¶¶ 33, 26, 27, 29, 32;
Ex. N, RBS Trademark Registration, showing Oct. 27, 2016 filing date
cf. , CCS Trademark Registration Certificate, showing Oct. 27,
2016 filing date (CONSTELLATION_2614); , RBS Notice of Publication
There can be no dispute that an actual application to the United States Patent and
Trademark Office (U.S. PTO) for a trademark or communications relating to a trademark
application or registration are communications “in connection with . . . issue[s] under consideration
or review by a legislative, executive, judicial, or other governmental body,” and are thus protected
the TCPA. § 27.001(4)(B). The actual RBS and other
Schrader trademark applications and the parties’ communications regarding the trademarks,
including Schrader’s “Trademark Status Update,” clearly “pertain[ed] to” the trademark
applications before the PTO, and were also “in connection with . . . issue[s] under consideration
The Fifth Amended Petition and relief sought therein constitutes a legal action based on
these protected communications. First, Roach premises his claims on Defendants’ alleged
misappropriation of “RBS assets,” which Roach defines to include the RBS mark and “all
associated intellectual property”—though the only intellectual property evidenced in the record
are the trademark rights discussed in th cf. Exs. N
, Schrader trademark registrations (CONSTELLATION_0351, CONSTELLATION_2614,
CONSTELLATION_2542, CONSTELLATION_2544, CONSTELLATION_2550,
CONSTELLATION_2555, CONSTELLATION_2561);
RBS Trademark Correspondence (CONSTELLATION_0348). Roach’s request for lost profit
damages, equitable remedies like disgorgement and imposition of a constructive trust, and punitive
damages claims are all based on the use and disposition of these assets, including the RBS mark.
Further, the relief sought by Roach in connection with all of his vaguely pled causes of action
includes profits from the use of the trademarked label. 5AP, ¶¶ 7, 21, 50, 59, 76, 113, 118.
Similarly, Roach seeks to establish the parties’ liability for conspiracy and other tort claims
expressly based on communications relating to the Schrader marks and related applications.
Roach’s discovery requests and deposition questioning further evidence his intent to rely
on this protected activity. For example, Roach ques itnesses at length about
the trademark filings, introducing as exhibits the PTO’s Trademark Electronic Search System
results for the RBS trademark and emails between Schrader’s trademark attorney and the PTO
regarding the trademark applications. , U.S. PTO “RBS” Search Results (introduced by Pl.
The plain language of the statute mandates a finding that the Fifth Amended Petition is a
legal action based on or in response to communications and conduct pertaining to the right to
petition the U.S. government, as courts have also held. See, e.g., Gensetix, Inc. v. Baylor Coll. of
, 14-19-00488-CV, 2020 WL 7868126, at *2 (Tex. App.—Houston [14th Dist.] Dec. 31,
2020, no pet. h.) (accepting movant’s argument that action implicated its right to petition the
United States Patent Office in addition to its right of association, and right to free speech as defined
by the TCPA). On this basis alone, the burden now shifts to Roach to bring forth clear and specific
evidence of each of his claims, which he cannot do.
The Fifth Amended Petition is based on and in response to Constellation’s
communications in connection with a pending judicial proceeding.
Roach’s claims against Constellation in the 5AP are independently subject to TCPA
dismissal because they are premised on a letter wr neral Counsel directly
relating to a pending judicial proceeding. Roach expressly relies on several statements made by
Jeffrey LaBarge, Constellation’s General Counsel, in response to a letter from Roach’s attorney
notifying Constellation of the pending judicial proceeding against Schrader and Roach’s claims
ng to the Schrader Cellars, LLC transaction (the “ ”).
5AP, ¶ 33; see also ¶¶ 26, 27, 29, 32, 45; , Mar. 13, 2019 LaBarge Letter. In the letter, Mr.
thorough diligence on Schrader Cellars, LLC, which included “lien searches, detailed document
review, interviews with the entity’s owners and employees and inspection of the USPTO office’s
files for the RBS trademark.” . Mr. LaBarge also responded that Randy Roach was only
mentioned in one product brochure received by Constellation in due diligence, advises that “the
RBS trademark filing was in the name of Schrader Cellars, LLC and itwas never opposed by
Randy Roach or anyone else,” and states that Constellation “did not find, and were not provided
with, any materials about a Roach Brown Schrader LLC, any claim of ownership to any of the
ce that the RBS trademark was owned by any party
other than Schrader Cellars LLC.” . Finally, the letter advises Roach of Schrader’s indemnity
obligations under the agreement and that the lawsuit woul
The LaBarge Letter is a communication protected under the plain language of the TCPA,
which defines the “exercise of the right to petition” to include both “a communication in or
pertaining to ... a judicial proceeding” and “a communication in connection with an issue under
consideration or review by a ... judicial ...body.” The LaBarge Letter was, on its face, written
about a matter connected with a lawsuit pending in the District Court of Harris County, Texas,
Cause No. 2018-59845, and thus satisfies this definition. Jetall Cos., Inc. v. Johanson
00305-CV, 2020 WL 6435778, at *3 (Tex. App.—Houston [1st Dist.] Nov. 3, 2020, no pet. h.);
see also Shopoff Advisors, L.P. v. Atrium Circle, G.P., No. 04-18-00438-CV, 2019 WL 2996977,
*8-9 (Tex. App.—San Antonio July 10, 2019, no pet.) (claims based on an email sent by an
attorney to an escrow agent, which was an interested party in pending litigation, satisfied the
definition of “right to petition”). Similarly, the LaBarge Letter is a co
the RBS trademark proceedings under review by the U.S. PTO.
Roach relies on these protected communications in the Fifth Amended Petition, which
expressly references and relies on the LaBarge Letter, including Constellation’s statements
tigation” and conclusions with respect to its due diligence. 5AP,
see also ¶¶ 26, 27, 29, 32, 45. Because Roach’s claims against Constellation in the Fifth
Amended Petition are “based on and in response to” Constellation’s exercise of the right to
petition, and because Roach cannot overcome the legal bar on his claims in any event, the TCPA
mandates their dismissal.
Roach filed the Fifth Amended Petition in retaliation for the exercise of the right to
The TCPA’s purpose is to protect “citizens who petition or speak on matters of public
concern from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d
579, 584 (Tex. 2015). Here, months into this litigation and despite discovering no new facts, Roach
filed the Fifth Amended Petition asserting over a dozen new claims, seeking potentially hundreds
of millions of dollars on new punitive damages theories, and requesting new and extreme equitable
relief and specific performance, including asking the Court to “unwind” a complex sale of Roach’s
former client without giving that client any due process of law, and seeking to recover out-of-state
limits of this Court. The timeline of events and lack of
identifiable basis for Roach’s frivolous allegations and claims demonstrate that the purpose of the
5AP was to retaliate against the exercise of the right to petition, in the form of both the ethics
Though Roach’s Fifth Amended Petition asserts entirely new legal theories and causes of
action, Roach had not requested or received any new discovery from either defendant in the several
months prior to filing. Instead, Roach waited until the day of Defendants’ expert report deadline
and two weeks before Defendants’ summary judgment filing deadline to assert claims based on
newly pleaded but long-since discovered informa
newly received or requested discovery and the filing of the 5AP, the only possible explanation for
the amendment’s timing is retaliation. The timing and motivation for the 5AP becomes crystal
clear when viewed in light of Schrader’s statements and conduct in furtherance of an ethics
grievance filed with the State Bar against Roach, and knowledge that Schrader Cellars would seek
its own remedies against Roach a separate lawsuit. , Declaration of C. Low, ¶ 4. Because
the 5AP seeks to retaliate against the exercise of this protected right and because Roach cannot
provide “clear and specific evidence” of any of these retaliatory claims, they must be dismissed
under the TCPA.
Roach admits that he represented Fred Schrader and his companies Boars’ View LLC and
Schrader Cellars, LLC for decades in connection with both litigation and other legal matters,
including providing legal services for Schrader in connection with sensitive personal matters, such
as a painful separation. Roach’s subsequent lawsuit against his own former client and close friend
in connection with the former re Schrader cause for pause that
their long history and years-long attorney-client relationship might be used offensively. When
confidential details of this prior representation were in fact revealed and in the face of a major
conflict of interest, Schrader filed a motion to disqualify Roach’s law firm, Roach Newton LLP.
ader had placed in him for decades and seeking
justice for his previous abuse of the same, and based on Roach’s arguments regarding the
appropriate forum for adjudication of these issues, Schrader also filed a grievance against Roach
individually with the State Bar of Texas, which he was required to recast as an appeal on January
Roach filed the Fifth Amended Petition.
Per the plain language of the statute, the TCPA “right to petition” includes an ethics
grievance submitted to the State Bar of Texas Office of Chief Disciplinary Counsel, as well as any
subsequent submission to the Board of Disciplinary Appeals, which is the body for attorney
discipline complaints appointed by the Texas Supreme Court. Tex. R. Disciplinary P. 7.01.
vances may ultimately proceed
to be heard by a state district court. Tex. R. Disciplinary P. 2.15, 3.01 et seq. Accordingly,
Schrader’s ethics grievance and subsequent filing in support thereof against Roach constitute
executive, judicial, or other governmental body or in another governmental or official proceeding,”
and “reasonably likely to encourage consideration or review” in such a proceeding and thus meet
California Lawsuit
The Fifth Amended Petition was also filed just days after Roach learned through his law
partner that claims related to Schrader Cellars, LLC would be brought in California against Roach.
On January 6, 2021, undersigned counsel spoke with Roach’s attorney, John Newton, via phone
and discussed the need for Schrader Cellars, LLC to seek its own remedies and clear title to its
California property, particularly in light of Newton’s attempts to coerce former Schrader Cellars
employees to forego the legal pr
, Declaration of C. Low. This conversation was a follow-up to prior phone conversations
concerning Schrader Cellars, LLC and Roach’s attempts to gain control over Schrader Cellars’
assets without adding Schrader Cellars, LLC as a defendant—likely due to the ethical pitfalls
presented by suing a former clie
During the January 6 call, undersigned explained to Mr. Newton that Roach’s refusal to
add Schrader Cellars, LLC as a party while seeking relief against it in
ability to assert that the current parties in the case controlled certain witnesses.
explained that while he would try to convince those witnesses to appear voluntarily, he was
unlikely to succeed, especially absent a guarantee that those non-party witnesses would not be
forced to appear twice given an imminent California action. . Mr. Newton became agitated and
n, and undersigned counsel advised that while
Schrader Cellars would consider providing these details as part of a compromise discussion, the
fact remained that Schrader Cellars, LLC had claims against Roach that were appropriate for
adjudication in California.
In direct response, less than a week later, Roach filed the 5AP seeking remedies specifically
aimed at Schrader Cellars, LLC, such as the request for declaratory relief and specific performance
asking the Court to rescind and/or unwind the Schrader Cellars, LLC transaction entirely. 5AP ¶
32, 99-105, 159. Such meritless allegations—including allegations of criminal conduct to boot in
advance of the deposition of Constellation’s CEO—are in retaliation for the actual and suggested
legal actions discussed between counsel. , Dec. of C. Low, ¶ 4. As with the ethics grievance,
filing a pleading in response to learning of a California action is obviously within the ambit of the
tion” under the TCPA. Tex. Civ. Pr
Roach’s claims in the 5AP are based on the exercise of the protected right to petition under
the TCPA. It is well-settled that courts may properly draw such a conclusion based on
circumstantial evidence, such as the filing of the cause of action. , 460 S.W.3d at 589,
591. The evidence here necessitates the conclusion that Roach filed the 5AP in response to the
ethics grievance and upon learning of the California action, which is bolstered by Roach’s
unexplained refusal to add as a defendant the sole owner of the assets sought in this lawsuit:
After opposing Schrader Cellars, LLC’s addition as a party, and representing to the Court
that he would abandon any declaratory judgment relief regarding that entity, Roach now files
thirteen new causes of action undermining Schrader Cellars’ right to seek adjudication of the
ownership of its own assets and equity. It is clear on the face of the record and from the timing and
content of Roach’s amendment that the 5AP was filed in response to both (1) the parties’ attempt
to seek clarity with respect to the status and title of Schrader Cellars, LLC and its assets and (2)
Schrader’s submission and appeal of an attorney ethics grievance against Roach. Because Roach
TCPA applies and Roach’s claims must be dismissed absent clear and specific evidence of every
essential element.
Roach’s Fifth Amended Petition is a legal action filed in response to the exercise of
Defendants’ exercise of the right of association.
Roach’s 5AP also centers on Defendants’ communications with each other, Schrader
Cellars, LLC, and employees of Schrader Cellars, LLC to collectively express, promote, pursue,
or defend common interest implicate Defendants’ exercise of the right to freely associate under
the TCPA. Specifically, Roach for the first time premises his claims on Defendants’
communications and conduct concerning the indemnification and joint defense of claims entered
into by Constellation’s subsidiary and Schrader, and the confidentiality agreement entered into by
The TCPA casts a “wide net,” covering “almost any imaginable form of communication,
in any medium...” Adams v. Starside Custom Builders, LLC
The statute defines “exercise of the right of association” broadly as “to join together to collectively
express, promote, pursue, or defend common interests relating to a governmental proceeding or a
matter of public concern.” Tex. Civ. Prac. & Rem. Code § 27.001(2). The statute’s definition of
“communication” “includes the making or submitting of a statement or document in any form or
medium, including oral, visual, wri . § 27.001(1). The Supreme
Court of Texas has held that the Act may protect both public and private communications.
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017) (per curiam) (discussing
, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam)).
For the first time in the 5AP, Roach specifically asks the Court to void the protected joint
defense and indemnification agreement itself, and further asks the Court to rescind and/or void
hrader Cellars, LLC entirely, including any corollary agreements
32, 99-105, 159. Roach also points to the parties’
execution of a non-disclosure agreement—which he falsely claims “required both parties not to
contact Roach”—regarding the transaction as evidence of both parties’ liability for his tort claims.
see also id., ¶ 108. He even seeks double recovery against both Schrader and
Constellation based on a “joint enterprise liability” theory, which he expressly premises on the
The plain language of the statute and binding precedent make clear that the TCPA covers
the indemnity and joint defense agreement forming the basis of Roach’s causes of action and
claims for relief in the 5AP. The agreement targeted by Roach provides for the joint defense of
certain types of legal actions, including claims arising from any alleged infringement by Schrader
Cellars, LLC of any intellectual property, including the RBS mark. , MIPA §§ 3.14, 8.1,
8.2. The parties also provided for joint defense of any legal actions arising from the failure of
Schrader Cellars, LLC to obtain permits required by law or non-compliance with anti-corruption
laws, such as the U.S. Foreign Corrupt Practices Act (15 U.S.C. § 78dd-1, et seq.), among other
areas. . §§ 8.2, 3.8, 3.11. In making this agreement, Schrader and Constellation joined together
to collectively promote, pursue, and defend common interests relating to specific and defined
governmental and judicial proceedings—including but not limited to the application to the U.S.
PTO for trademark registrations of the Schrader marks and the obtaining and renewal of permits
with various governmental authorities, such as Certificate of Label Approvals from the U.S.
Department of the Treasury Alcohol and Tobacco Tax and Trade Bureau and dozens of permits
and registrations required by state governmental authorities.
The agreement is thus a communication expressly seeking to “promote, pursue, and defend
common interests relating to a governmental proceeding,” which is squarely protected under the
TCPA as the exercise of the right of association. The Fourteenth Court of Appeals has reinforced
this conclusion in far less straightforward circumstances. For example, in Abatecola v. 2 Savages
Concrete Pumping, LLC, the cou
Preview
ROBERT M. (RANDY) ROACH, JR. HARRIS COUNTY, TEXAS FREDERICK H. SCHRADER AND JUDICIAL DISTRICT MOTION TO DISMISS PLAINTIFF’S FIFTH AMENDED PETITION PURSUANT TO THE TEXAS CITIZENS PARTICIPATION ACT TO THE HONORABLE JUDGE OF SAID COURT: vil Practice and Remedies Code, Defendants “Defendants”) file this motion to dismiss Plai Fifth Amended Petition and in e Fifth Amended Petition seemingly out of the blue and over this lawsuit fundamentally diatribe, Roach alleges a multitude of new “facts,” asserts thirteen new causes of action and several new damages theories, completely transforms his theories of liability, and requests extortionate equitable relief, ars, LLC—a company in which Roach has no represent as an attorney. Roach’s radical, yet ostensibly random, decision to alter the entire case at this late juncture e against Defendants for the exercise of the rights to petition and associate freely as protected under the Texas Citizens Participation Act. Specifically, Roach premises his claims in the Fifth Amended Petition on: (1) specific communications in or pertaining to a pending judicial proceeding, (2) the trademarking of several Schrader marks, including applications to the U.S. Patent and Trademark Office and communications regarding the same, (3) Defendants’ communications relating to the joint defense of specific judicial and governmental proceedings, (4) Schrader’s submission of an attorney ethics grievance to the State Bar of Texas, and (5) communications relating to a California court’s adjudication of title to Schrader Cellars, LLC’s assets. It appears that Roach again seeks to use his own conflicted law firm to drain money and judicial resources in an attempt to increase leverage, harass, and intimidate these out-of-state Defendants. But the Texas Legislature forbids this type of retaliatory action, and has mandated dismissal absent evidence that the claims have merit. Because the TCPA protects the activity and communications targeted by the Fifth Amended Petition, and because Roach cannot bring forth clear and specific evidence of his claims which are nonetheless barred as a matter of law, Roach’s claims must be dismissed. FACTUAL BACKGROUND This case was brought by Robert M. Roach, Jr. (“Roach” or “Plaintiff”), a Houston-based lawyer, against his longtime friend and client, Frederick H. Schrader (“Schrader” or “Defendant”) regarding Roach’s alleged 50% ownership interest in a now dissolved California LLC. Roach claims that around the year 2000, Schrader asked him to invest in a new project to produce wine using grapes sourced from the To Kalon vineyard in Napa Valley, California. Though the parties never signed any agreement, Roach alleges that the investment occurred he had set up named Roach Brown Schrader, LLC (also referred to as “RBS LLC”) and that his interest in the entity’s assets was converted when Schrader dissolved that LLC in 2013. Roach further claims that Schrader’s co-defendant, Constellation, took ownership of those assets in 2017 Roach Brown Schrader, LLC Despite the parties’ dispute over the veracity of Roach’s allegations, they do not dispute that Schrader and Roach were close friends for almost twenty years, and the suit as originally posed concerned a fracture and difference of opinion over the existence and purpose of the alleged oral agreement to form RBS LLC, which was organized under California law on December 31, . ¶¶ 7 & 8. As alleged in Roach’s initial pleading, “the primary asset of the LLC was the specific rows of the clone 337 To Kalon vineyard Cabernet grapes and ultimately the production, marketing, and sale of the wine produced from those grapes, together with the goodwill and the RBS brand.” . ¶ 7. And as originally pled, the suit involved Roach’s claim to own a 50% interest in RBS LLC—which he now claims entitles him to hundreds of millions of dollars in damages and unspecified equity in Schrader’s other wine ventures in which Roach does not claim to be a partner: After its formation in 2003, RBS LLC conducted zero business, generated no income, and failed to file any tax returns—and, as Roach has admitted in briefing, the entity never recorded Appellee’s Brief at 19, Frederick H. Schrader v. Robert M. Roach, Jr. 00183-CV (Tex. App.—Houston [1st Dist.] Jul. 17, 2020) (Stating “no profits from wine sales Special Appearance Br., ¶ 9; , Schrader Dep., 66:5-10; , California Franchise Tax Board Notice of Forfeiture. After ten years of dormancy, RBS LLC received a notice in November 2013 from the California Franchise Tax Board advising that due to the LLC’s failure to ever file tax returns, it would be automatically suspended, which meant forfeiture of all rights, including the rights to conduct business, use the entity name, or en Forfeiture. Schrader forwarded the notices via email to Roach and Thomas Brown and advised that he intended to dissolve the LLC given its lack of activity, and RBS LLC was dissolved shortly thereafter on December 29, 2013. Ex. D, Dec. 6, 2013 email correspondence (RR00638); Roach Dep., 154:17-157:2; , Certificate of Cancellation. While the Fifth Amended Petition falsely alleges that Schrader “secretly” dissolved the entity without his knowledge and “intentionally concealed” his desire to dissolve the entity (5AP, ¶ 18-19), Roach has already admitted under oath that he was in fact aware of Schrader’s intention to dissolve Roach Brown Schrader, LLC in 2013 but intentionally stayed silent. and maintained their close friendship for years to follow—that is, until 2016, when Roach abruptly dropped Schrader as a client due in part to his stress resulting from being involved in a “$10 billion , Schrader Dep., 117:2-119:19; , Roach Dep. 16; ll temporarily out of touch after Roach e Nonetheless, Schrader later reached out to Roach to let his old friend know that he had sold Schrader Cellars, LLC to Constellation. And while Roach still claims in pleadings that he only learned of the sale of Schrader Cellars in a “blast email,” Roach admitted under oath that he Thomas Brown is the long-time winemaker of Schrader Cellars wines, who was originally listed as a member on the LLC’s formation documents, but who Roach omitted on subsequent LLC documents that were handwritten and filed by Roach himself with the California Secretary of State. Mar. 27, 2003 Statement of Information (listing Thomas Brown as member); cf. Mar. 28, 2003 Statement of Information (handwritten and filed by Roach omitting Brown as member). received an email from Schrader persona BIG NEWS HERE!” (SCHRADER_0165); Roach Dep., 165:10-167:19; 5AP ¶ 17. Roach responded to Schrader’s email telling of the sale, stating “Congratulations; that’s absolutely incredible news!! So glad you and Carol [Schrader] are being rewarded for the exce Schrader Cellars! Can’t wait to hear everything! So when and where is the party???” But sometime after hearing of his friend’s sale filed his original petition (which was never served) alleging that Schrader, named as “FS,” alleging converted “RR’s” alleged ownership interest in RBS LLC in Decembe of cancellation with the California Secretary of State. After the lawsuit was filed, Schrader filed a special appearance seeking dismissal on personal jurisdiction grounds and an affidavit attesting that he does not own property in Texas, does not have any bank accounts in Texas, does not have a registered agent in Texas, and does not, and never has—through Boars’ View, LLC, Schrader Cellars, LLC, Roach Schrader Brown, LLC, After extensive jurisdictional discovery, which failed to reveal evidence of any relevant jurisdictional contacts, Roach amended his response to the Special Appearance, and for the first time, relied on Roach Newton LLP’s prior legal representation of Schrader, Schrader Cellars, LLC, and Boars’ View, LLC, as a basis for jurisdiction. Specifically, Roach alleged that “from RBS’ inception and through mid-2016” Roach and his “firm of Texas lawyers”—including John Newton, Roach’s current attorney in this case—represented Schrader, Schrader Cellars, LLC, and Boars’ View, LLC, which he reaffirmed during his deposition. 19, 47:9-22. Roach similarly pounded these allegations in his Fourth Amended Petition, which put Roach’s past representation of Schrader, Schrader Cellars, LLC, RBS LLC, and Boars’ View LLC After it became clear from these filings and Roach’s targeted discovery efforts that Schrader’s former attorneys intended to continue to use Schrader’s confidential client information offensively, Schrader filed a motion to disqualify Roach Newton LLP and John Newton. The motion sought protection from Roach or his law firm’s further disclosure of Schrader’s confidential information and sought return of all client files belonging to Schrader and his entities. After Roach argued in responsive briefing that a motion to disqualify was not the appropriate remedy for enforcing violations of attorney ethics rules such as Roach’s newly claimed “equity” interest in his former clients, Schrader filed a grievance with the State Bar 2020, which he amended on November 23, seek Declaration of C. Low, ¶ 2. Pursuant to the Texas Rules of Disciplinary Procedure, Roach was Roach’s Retaliatory Fifth Amended Petition Having failed to dredge up any indicia of Defendants’ misconduct during months of abusive discovery and motion practice, Roach attempted to increase leverage by filing the Fifth Amended Petition on January 11, 2021—over two years into this litigation, on the same day as Defendants’ expert disclosure deadline, and just shy of several other key deadlines for Defendants, including summary judgment. In the 75-page Fifth Amended Petition (“ ”), Roach radically Similar to Schrader’s motion for disqualification, which this Court denied following Roach’s argument that it was not the proper forum, Schrader’s ethics complaint seeks redress for Roach’s: (1) unauthorized disclosure of confidential client information, (2) conflict of interest in suing a former client in connection with the subject of the prior representation, (3) attempt to obtain a financial interest in a former client’s business venture that was the subject of the prior re to disclose an intent to seek equity in their client’s businesses, and (5) changed the fundamental nature of his case, both adding to and substantially altering the facts, legal theories, causes of action, and requests for relief—even resorting to ludicrous allegations of criminal conduct. Specifically, the 5AP asserts thirteen new causes of action. Roach’s new claims against Constellation include “knowing participation in breach of fiduciary duty,” which claims that Constellation “aided and abetted” and “knowingly participated in” Schrader’s alleged breach of fiduciary duties, including by virtue of a joint tortfeasor theory. 5AP, ¶¶ 65-66. Roach also asserts new claims for tortious interference with existing contract and “concert of action,” against Constellation, seeking punitive damages and asserting willful misconduct, “malice” and unconscionability in connection with each. , ¶¶ 92-98, 128, 133-37. Similarly, Roach brings several newly pled causes of action against Schrader, including claims for breach of contract, quantum meruit, and a hodgepodge of out-of-state partnership liability claims against Schrader. ., ¶¶ 112-18, 120-125, 130-31. Roach also injects various new theories of joint liability, veil- piercing, and reverse veil-piercing into the 5AP, purporting to implicate several individual Constellation employees previously unnamed. In addition to these new causes of action, Roach asserts a variety of new declaratory judgment claims seeking several new types of le . For example, he now seeks punitive damages against both Defendants (including the claim that Constellation and Schrader acted criminally under the Texas Penal Code), rejiggers his requests for a constructive trust to include brand new assets that are not clearly defined, seeks forfeiture of these new assets, and even asks the Court to somehow “rescind” or “set aside” the 2017 sale of Schrader Cellars, LLC and effectively void the accompanying indemnity agreement—even though Schrader Cellars, LLC itself has not been joined as a party. ., ¶¶ 99-103, 139-159. In other words, Roach now wants the Court to rescind a contract to which he was not a party and undo the event forming the entire basis for this lawsuit. Relevant to this motion, Roach’s 5AP adds several new allegations and claims specifically targeting several categories of protected activity, which are discussed in greater detail below. Roach’s claims in the 5AP expressly target communications protected by the TCPA—specifically, Roach’s amended claims for conversion, money had and received, breach of fiduciary duty, unjust enrichment, constructive trust, and conspiracy to commit conversion and breach of fiduciary duty, equitable accounting based on fiduciary relationship, new claims for “knowing participation in breach of fiduciary duty,” breach of contract, tortious interference, quantum meruit, concert of action, an unspecified claim based on the existence of a partnership relationship, a claim based on “joint venture liability, joint enterprise liability, or partnership liability,” various requests for equitable relief and judicial de in connection with the above, including punitive damages. Because these claims are all based on conduct and communications expressly protected by the TCPA, they must be dismissed. ARGUMENT The Fifth Amended Petition Retaliates Against the Exercise of The TCPA is intended to “encourage and safeguard the constitutional rights of persons to ise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002. The statute provides defendants with an expedited procedure to enable the prompt dismissal of meritless lawsuits aimed at chilling those rights. §§ 27.003-.007. Roach’s claims are subject to the TCPA because the facts underlying the claims are centered on Defendants’ communications relating to the right to petition in connection with (a) a pending judicial proceeding, (b) trademark applications under review by the U.S. Patent and Trademark Office, and (c) issues under review and likely to encourage review by state governmental and judicial bodies. Roach’s Fifth Amended Petition d activity in exercising their right to association and is subject to TCPA dismissal on those independent grounds. A “legal action” subject to the TCPA includes “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief.” § 27.001(6). A movant seeking dismissal under the TCPA bears the initial burden demonstrating that the “legal action is based on or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.” § 27.005(b). The burden is then on plaintiff to provide “clear and specific” evidence of a prima facie case “for each essential element of the claim in question.” . at § 27.005(c). Even if the plaintiff is able to meet this hurdle, the TCPA still requires dismissal if the movant “establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.” The TCPA defines the “exercise of the right to petition” as, among other things, communications “in or pertaining to a judicial proceeding,” communications “in connection with an issue under considera ve, judicial, or other governmental body or in another governmental or official proceeding,” and communications “reasonably likely to encourage consideration or review of an issue” by such bodies. § 27.001(4). A “governmental proceeding” is defined as “a proceeding, other than a judicial proceeding, by an officer, official, or body of this state or a political subdivision of this state, including a board or commission, or by an officer, official, or body of the federal government.” § 27.001(4)(A)(i). In addition, the Act association” to mean “to join together to coll promote, pursue, or defend common interests relating to a governmental proceeding or a matter of right to petition the U.S. Government. The claims in Roach’s 5AP are based on Defendants’ communications in furtherance of the exercise of the right to petition the U.S. government, the U.S. Patent and Trademark Office specifically. Specifically, the 5AP expressly relies on Schrader an and process to trademark the RBS mark,” and the trademarking of several other Schrader marks in seeking relief. See, e.g., 5AP, ¶¶ 17, 29, 113. While Roach incorrectly claims that “RBS had no trademark status” when the parties began due di public trademark filings establish that the application for an RBS trademark was filed on the same day as applications for the other Schrader marks. In an attempt to plead around uncontroverted facts, the 5AP cherry- picks a document titled “Trademark Status Update” created by Schrader summarizing the application, examination, and renewal status of the Schrader marks, which omits RBS from this list as a result of a typographical error. (CONSTELLATION_2960). The 5AP also relies on the trademarking of and communications relating to other Schrader labels, including the trademarks for Schrader CCS and Colesworthy. 5AP, ¶¶ 29, 31. Finally, as discussed in greater detail below, Roach’s 5AP is premised on a letter written by Constellation’s General Counsel lating to the Schrader marks and ownership thereof, including the RBS trademark. 5AP, ¶¶ 33, 26, 27, 29, 32; Ex. N, RBS Trademark Registration, showing Oct. 27, 2016 filing date cf. , CCS Trademark Registration Certificate, showing Oct. 27, 2016 filing date (CONSTELLATION_2614); , RBS Notice of Publication There can be no dispute that an actual application to the United States Patent and Trademark Office (U.S. PTO) for a trademark or communications relating to a trademark application or registration are communications “in connection with . . . issue[s] under consideration or review by a legislative, executive, judicial, or other governmental body,” and are thus protected the TCPA. § 27.001(4)(B). The actual RBS and other Schrader trademark applications and the parties’ communications regarding the trademarks, including Schrader’s “Trademark Status Update,” clearly “pertain[ed] to” the trademark applications before the PTO, and were also “in connection with . . . issue[s] under consideration The Fifth Amended Petition and relief sought therein constitutes a legal action based on these protected communications. First, Roach premises his claims on Defendants’ alleged misappropriation of “RBS assets,” which Roach defines to include the RBS mark and “all associated intellectual property”—though the only intellectual property evidenced in the record are the trademark rights discussed in th cf. Exs. N , Schrader trademark registrations (CONSTELLATION_0351, CONSTELLATION_2614, CONSTELLATION_2542, CONSTELLATION_2544, CONSTELLATION_2550, CONSTELLATION_2555, CONSTELLATION_2561); RBS Trademark Correspondence (CONSTELLATION_0348). Roach’s request for lost profit damages, equitable remedies like disgorgement and imposition of a constructive trust, and punitive damages claims are all based on the use and disposition of these assets, including the RBS mark. Further, the relief sought by Roach in connection with all of his vaguely pled causes of action includes profits from the use of the trademarked label. 5AP, ¶¶ 7, 21, 50, 59, 76, 113, 118. Similarly, Roach seeks to establish the parties’ liability for conspiracy and other tort claims expressly based on communications relating to the Schrader marks and related applications. Roach’s discovery requests and deposition questioning further evidence his intent to rely on this protected activity. For example, Roach ques itnesses at length about the trademark filings, introducing as exhibits the PTO’s Trademark Electronic Search System results for the RBS trademark and emails between Schrader’s trademark attorney and the PTO regarding the trademark applications. , U.S. PTO “RBS” Search Results (introduced by Pl. The plain language of the statute mandates a finding that the Fifth Amended Petition is a legal action based on or in response to communications and conduct pertaining to the right to petition the U.S. government, as courts have also held. See, e.g., Gensetix, Inc. v. Baylor Coll. of , 14-19-00488-CV, 2020 WL 7868126, at *2 (Tex. App.—Houston [14th Dist.] Dec. 31, 2020, no pet. h.) (accepting movant’s argument that action implicated its right to petition the United States Patent Office in addition to its right of association, and right to free speech as defined by the TCPA). On this basis alone, the burden now shifts to Roach to bring forth clear and specific evidence of each of his claims, which he cannot do. The Fifth Amended Petition is based on and in response to Constellation’s communications in connection with a pending judicial proceeding. Roach’s claims against Constellation in the 5AP are independently subject to TCPA dismissal because they are premised on a letter wr neral Counsel directly relating to a pending judicial proceeding. Roach expressly relies on several statements made by Jeffrey LaBarge, Constellation’s General Counsel, in response to a letter from Roach’s attorney notifying Constellation of the pending judicial proceeding against Schrader and Roach’s claims ng to the Schrader Cellars, LLC transaction (the “ ”). 5AP, ¶ 33; see also ¶¶ 26, 27, 29, 32, 45; , Mar. 13, 2019 LaBarge Letter. In the letter, Mr. thorough diligence on Schrader Cellars, LLC, which included “lien searches, detailed document review, interviews with the entity’s owners and employees and inspection of the USPTO office’s files for the RBS trademark.” . Mr. LaBarge also responded that Randy Roach was only mentioned in one product brochure received by Constellation in due diligence, advises that “the RBS trademark filing was in the name of Schrader Cellars, LLC and itwas never opposed by Randy Roach or anyone else,” and states that Constellation “did not find, and were not provided with, any materials about a Roach Brown Schrader LLC, any claim of ownership to any of the ce that the RBS trademark was owned by any party other than Schrader Cellars LLC.” . Finally, the letter advises Roach of Schrader’s indemnity obligations under the agreement and that the lawsuit woul The LaBarge Letter is a communication protected under the plain language of the TCPA, which defines the “exercise of the right to petition” to include both “a communication in or pertaining to ... a judicial proceeding” and “a communication in connection with an issue under consideration or review by a ... judicial ...body.” The LaBarge Letter was, on its face, written about a matter connected with a lawsuit pending in the District Court of Harris County, Texas, Cause No. 2018-59845, and thus satisfies this definition. Jetall Cos., Inc. v. Johanson 00305-CV, 2020 WL 6435778, at *3 (Tex. App.—Houston [1st Dist.] Nov. 3, 2020, no pet. h.); see also Shopoff Advisors, L.P. v. Atrium Circle, G.P., No. 04-18-00438-CV, 2019 WL 2996977, *8-9 (Tex. App.—San Antonio July 10, 2019, no pet.) (claims based on an email sent by an attorney to an escrow agent, which was an interested party in pending litigation, satisfied the definition of “right to petition”). Similarly, the LaBarge Letter is a co the RBS trademark proceedings under review by the U.S. PTO. Roach relies on these protected communications in the Fifth Amended Petition, which expressly references and relies on the LaBarge Letter, including Constellation’s statements tigation” and conclusions with respect to its due diligence. 5AP, see also ¶¶ 26, 27, 29, 32, 45. Because Roach’s claims against Constellation in the Fifth Amended Petition are “based on and in response to” Constellation’s exercise of the right to petition, and because Roach cannot overcome the legal bar on his claims in any event, the TCPA mandates their dismissal. Roach filed the Fifth Amended Petition in retaliation for the exercise of the right to The TCPA’s purpose is to protect “citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). Here, months into this litigation and despite discovering no new facts, Roach filed the Fifth Amended Petition asserting over a dozen new claims, seeking potentially hundreds of millions of dollars on new punitive damages theories, and requesting new and extreme equitable relief and specific performance, including asking the Court to “unwind” a complex sale of Roach’s former client without giving that client any due process of law, and seeking to recover out-of-state limits of this Court. The timeline of events and lack of identifiable basis for Roach’s frivolous allegations and claims demonstrate that the purpose of the 5AP was to retaliate against the exercise of the right to petition, in the form of both the ethics Though Roach’s Fifth Amended Petition asserts entirely new legal theories and causes of action, Roach had not requested or received any new discovery from either defendant in the several months prior to filing. Instead, Roach waited until the day of Defendants’ expert report deadline and two weeks before Defendants’ summary judgment filing deadline to assert claims based on newly pleaded but long-since discovered informa newly received or requested discovery and the filing of the 5AP, the only possible explanation for the amendment’s timing is retaliation. The timing and motivation for the 5AP becomes crystal clear when viewed in light of Schrader’s statements and conduct in furtherance of an ethics grievance filed with the State Bar against Roach, and knowledge that Schrader Cellars would seek its own remedies against Roach a separate lawsuit. , Declaration of C. Low, ¶ 4. Because the 5AP seeks to retaliate against the exercise of this protected right and because Roach cannot provide “clear and specific evidence” of any of these retaliatory claims, they must be dismissed under the TCPA. Roach admits that he represented Fred Schrader and his companies Boars’ View LLC and Schrader Cellars, LLC for decades in connection with both litigation and other legal matters, including providing legal services for Schrader in connection with sensitive personal matters, such as a painful separation. Roach’s subsequent lawsuit against his own former client and close friend in connection with the former re Schrader cause for pause that their long history and years-long attorney-client relationship might be used offensively. When confidential details of this prior representation were in fact revealed and in the face of a major conflict of interest, Schrader filed a motion to disqualify Roach’s law firm, Roach Newton LLP. ader had placed in him for decades and seeking justice for his previous abuse of the same, and based on Roach’s arguments regarding the appropriate forum for adjudication of these issues, Schrader also filed a grievance against Roach individually with the State Bar of Texas, which he was required to recast as an appeal on January Roach filed the Fifth Amended Petition. Per the plain language of the statute, the TCPA “right to petition” includes an ethics grievance submitted to the State Bar of Texas Office of Chief Disciplinary Counsel, as well as any subsequent submission to the Board of Disciplinary Appeals, which is the body for attorney discipline complaints appointed by the Texas Supreme Court. Tex. R. Disciplinary P. 7.01. vances may ultimately proceed to be heard by a state district court. Tex. R. Disciplinary P. 2.15, 3.01 et seq. Accordingly, Schrader’s ethics grievance and subsequent filing in support thereof against Roach constitute executive, judicial, or other governmental body or in another governmental or official proceeding,” and “reasonably likely to encourage consideration or review” in such a proceeding and thus meet California Lawsuit The Fifth Amended Petition was also filed just days after Roach learned through his law partner that claims related to Schrader Cellars, LLC would be brought in California against Roach. On January 6, 2021, undersigned counsel spoke with Roach’s attorney, John Newton, via phone and discussed the need for Schrader Cellars, LLC to seek its own remedies and clear title to its California property, particularly in light of Newton’s attempts to coerce former Schrader Cellars employees to forego the legal pr , Declaration of C. Low. This conversation was a follow-up to prior phone conversations concerning Schrader Cellars, LLC and Roach’s attempts to gain control over Schrader Cellars’ assets without adding Schrader Cellars, LLC as a defendant—likely due to the ethical pitfalls presented by suing a former clie During the January 6 call, undersigned explained to Mr. Newton that Roach’s refusal to add Schrader Cellars, LLC as a party while seeking relief against it in ability to assert that the current parties in the case controlled certain witnesses. explained that while he would try to convince those witnesses to appear voluntarily, he was unlikely to succeed, especially absent a guarantee that those non-party witnesses would not be forced to appear twice given an imminent California action. . Mr. Newton became agitated and n, and undersigned counsel advised that while Schrader Cellars would consider providing these details as part of a compromise discussion, the fact remained that Schrader Cellars, LLC had claims against Roach that were appropriate for adjudication in California. In direct response, less than a week later, Roach filed the 5AP seeking remedies specifically aimed at Schrader Cellars, LLC, such as the request for declaratory relief and specific performance asking the Court to rescind and/or unwind the Schrader Cellars, LLC transaction entirely. 5AP ¶ 32, 99-105, 159. Such meritless allegations—including allegations of criminal conduct to boot in advance of the deposition of Constellation’s CEO—are in retaliation for the actual and suggested legal actions discussed between counsel. , Dec. of C. Low, ¶ 4. As with the ethics grievance, filing a pleading in response to learning of a California action is obviously within the ambit of the tion” under the TCPA. Tex. Civ. Pr Roach’s claims in the 5AP are based on the exercise of the protected right to petition under the TCPA. It is well-settled that courts may properly draw such a conclusion based on circumstantial evidence, such as the filing of the cause of action. , 460 S.W.3d at 589, 591. The evidence here necessitates the conclusion that Roach filed the 5AP in response to the ethics grievance and upon learning of the California action, which is bolstered by Roach’s unexplained refusal to add as a defendant the sole owner of the assets sought in this lawsuit: After opposing Schrader Cellars, LLC’s addition as a party, and representing to the Court that he would abandon any declaratory judgment relief regarding that entity, Roach now files thirteen new causes of action undermining Schrader Cellars’ right to seek adjudication of the ownership of its own assets and equity. It is clear on the face of the record and from the timing and content of Roach’s amendment that the 5AP was filed in response to both (1) the parties’ attempt to seek clarity with respect to the status and title of Schrader Cellars, LLC and its assets and (2) Schrader’s submission and appeal of an attorney ethics grievance against Roach. Because Roach TCPA applies and Roach’s claims must be dismissed absent clear and specific evidence of every essential element. Roach’s Fifth Amended Petition is a legal action filed in response to the exercise of Defendants’ exercise of the right of association. Roach’s 5AP also centers on Defendants’ communications with each other, Schrader Cellars, LLC, and employees of Schrader Cellars, LLC to collectively express, promote, pursue, or defend common interest implicate Defendants’ exercise of the right to freely associate under the TCPA. Specifically, Roach for the first time premises his claims on Defendants’ communications and conduct concerning the indemnification and joint defense of claims entered into by Constellation’s subsidiary and Schrader, and the confidentiality agreement entered into by The TCPA casts a “wide net,” covering “almost any imaginable form of communication, in any medium...” Adams v. Starside Custom Builders, LLC The statute defines “exercise of the right of association” broadly as “to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern.” Tex. Civ. Prac. & Rem. Code § 27.001(2). The statute’s definition of “communication” “includes the making or submitting of a statement or document in any form or medium, including oral, visual, wri . § 27.001(1). The Supreme Court of Texas has held that the Act may protect both public and private communications. ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017) (per curiam) (discussing , 462 S.W.3d 507, 509 (Tex. 2015) (per curiam)). For the first time in the 5AP, Roach specifically asks the Court to void the protected joint defense and indemnification agreement itself, and further asks the Court to rescind and/or void hrader Cellars, LLC entirely, including any corollary agreements 32, 99-105, 159. Roach also points to the parties’ execution of a non-disclosure agreement—which he falsely claims “required both parties not to contact Roach”—regarding the transaction as evidence of both parties’ liability for his tort claims. see also id., ¶ 108. He even seeks double recovery against both Schrader and Constellation based on a “joint enterprise liability” theory, which he expressly premises on the The plain language of the statute and binding precedent make clear that the TCPA covers the indemnity and joint defense agreement forming the basis of Roach’s causes of action and claims for relief in the 5AP. The agreement targeted by Roach provides for the joint defense of certain types of legal actions, including claims arising from any alleged infringement by Schrader Cellars, LLC of any intellectual property, including the RBS mark. , MIPA §§ 3.14, 8.1, 8.2. The parties also provided for joint defense of any legal actions arising from the failure of Schrader Cellars, LLC to obtain permits required by law or non-compliance with anti-corruption laws, such as the U.S. Foreign Corrupt Practices Act (15 U.S.C. § 78dd-1, et seq.), among other areas. . §§ 8.2, 3.8, 3.11. In making this agreement, Schrader and Constellation joined together to collectively promote, pursue, and defend common interests relating to specific and defined governmental and judicial proceedings—including but not limited to the application to the U.S. PTO for trademark registrations of the Schrader marks and the obtaining and renewal of permits with various governmental authorities, such as Certificate of Label Approvals from the U.S. Department of the Treasury Alcohol and Tobacco Tax and Trade Bureau and dozens of permits and registrations required by state governmental authorities. The agreement is thus a communication expressly seeking to “promote, pursue, and defend common interests relating to a governmental proceeding,” which is squarely protected under the TCPA as the exercise of the right of association. The Fourteenth Court of Appeals has reinforced this conclusion in far less straightforward circumstances. For example, in Abatecola v. 2 Savages Concrete Pumping, LLC, the cou