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FILED
6/21/2021 1:21 PM
FELICIA PITRE
3 CIT SOS ESERVE / 2 CIT ESERVE / JURY DISTRICT CLERK
DALLAS CO., TEXAS
Angie Avina DEPUTY
DC-21-07836
CAUSE NO.
VIKOR SCIENTIFIC, LLC IN THE DISTRICT COURT
Plaintiff,
116th
Vv. JUDICIAL DISTRICT
GARY ECKERBRECHT, JULIE FRASCH,
GINA MCBRIDE, PAUL NISSEL, SUSAN
MATLICK
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR TEMPORARY
RESTRAINING ORDER, TEMPORARY INJUNCTION, AND PERMANENT
INJUNCTION
TO THE HONORABLE DISTRICT COURT JUDGE:
COME NOW, Plaintiff Vikor Scientific, LLC (“Plaintiff”), and files this, its Original
Petition and Application for a Temporary Restraining Order, Temporary Injunction, and
Permanent Injunction (the “Petition”) against Defendants. In support, Plaintiff would respectfully
show this Honorable Court the following:
PRELIMINARY STATEMENT
1 To this day, the Defendants have been diverting and converting money belonging
to the Plaintiff to the tune of millions of dollars. Specifically, the Defendants have been unlawfully
diverting and converting money from Plaintiff's laboratory and payors. In addition, the Plaintiff
also respectfully seeks an accounting and expedited discovery from the Defendants. Indeed, the
Plaintiff respectfully seeks a TRO and a Temporary Injunction. That is because the Defendants
are former employees of the Plaintiff who continue to solicit, steal, usurp, redirect, and hijack the
Plaintiff's innovative business, money, and customers/business accounts. Plaintiff creates
customized pathogen panels to answer a clinical need for data that innovates the way medicine is
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 1
practiced. One of the Defendants, Defendant Eckerbrecht, is a current employee of Plaintiff that
is diverting samples from Plaintiff's lab to a competing lab. All Defendants have committed these
tortious acts by unlawfully soliciting Plaintiff's partners, clients, and employees (“Plaintiffs
Affiliates”). Indeed, the Defendants have conspired to set up an illegal scheme to divert Plaintiff's
business and employees to a competing lab known as Genetic Technology Innovations Laboratory
(“GTI”). In light of this theft which is also harming patients, Plaintiff respectfully seeks a TRO
and injunction to enjoin Defendants from:
a. Soliciting Plaintiff's business partners, clients, employees, and contractors;
b. Competing with Plaintiff and providing services on behalf of any other
organization that are the same or similar to those Defendants provided on
behalf of Plaintiff;
Contacting Plaintiff's business partners, clients, employees, and
contractors;
Contacting such personnel that Defendant knows, or reasonably should
know, are employed by affiliates and clients of Plaintiff;
Obtaining or attempting to obtain, without consent or notice, confidential
and sensitive information from Plaintiff, Plaintiff's clients, Plaintiff's
employees, Plaintiff's contractors, or any other person or entity that
Defendant knows or reasonably should know to be affiliated with Plaintiff;
Delivering, sharing, distributing, printing or in any other way processing
any information that is intended to unlawfully interfere with Plaintiff's
business;
Willfully converting the Plaintiff's confidential and proprietary
information;
Fraudulently accessing Plaintiffs confidential, proprietary information; and
Making statements about Plaintiff that are false, misleading, deceptive,
degenerative, or designed to defame Plaintiff, Plaintiff's employees,
Plaintiff's contractors, Plaintiff's business contacts, or Plaintiff's clients, or
any other person or entity that Defendant knows, or reasonably should
know, to be affiliated with Plaintiff.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 2
2 Defendants have conspired to set up an illegal scheme and divert Plaintiffs
business and employees to GTI, a competing lab.
3 All Defendants have committed these tortious acts by unlawfully soliciting
Plaintiffs partners, clients, and employees (“Plaintiffs Affiliates”).
4 Even more egregiously, Defendant Eckerbrecht is a current employee of Plaintiff
that is diverting samples from Plaintiff's lab to a competing lab while being paid by Plaintiff.
5 Additionally, as the employees are marketers, a clientele base comes with each
marketer to compete with Plaintiff directly.
6. This is all despite the fact that each Defendant has an employment agreement with
Plaintiff containing a valid non-compete and non-solicitation clause and even gives Plaintiff the
right to an injunction. Each employment agreement states in pertinent part:
“Non-Competition. With the exception of the duties and services that Employee
performs for Company or on behalf of the Company pursuant to the terms of this
Agreement, Employee agrees that during the Term of the Agreement and for a
period of one (1) year following the termination of this Agreement for any reason,
Employee shall not, within the following states that have been assigned to
Employee [STATE] (the “Restricted Territory”), provide services on behalf of
any other organization that are the same or similar to those Employee
provided on behalf of Company.” (emphasis added)
“Non-Solicitation of Clients and Customers. Employee agrees that for a period of
one (1) year following termination of this Agreement for any reason, Employe
will not directly or indirectly solicit business, accept business, contact_o
communicate with any existing client or customer of Company that Employe
serviced or had direct contact with on behalf of Company during Employee’s
employment with Company.” (emphasis added)
EE
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 3
7 Even more egregiously, Defendants have used scare tactics in order to interfere
with the Plaintiffs business. These tactics include stating that Plaintiff’s business model is
illegal which is an attempt at misdirect and a complete fabrication.
8 These stories are fabricated and designed to disrupt and interfere with the Plaintiff's
business so that the Defendants can steal, deceive, and profit.
9 Indeed, the Defendants have undisputedly, knowingly, and clandestinely
perpetuated a scheme to systematically interfere with Plaintiff's business operations.
10. The Defendants’ unlawful acts have placed the Plaintiff's business in jeopardy and
Plaintiff respectfully requests Defendant be enjoined from their unlawful, tortious conduct.
PARTIES
11. Plaintiff Vikor Scientific, LLC is a South Carolina limited liability company with
its principal place of business located in Charleston, South Carolina. It can be served by and
through the undersigned counsel of record for the purposes of this pleading only.
12. Defendant Gary Eckerbrecht is an individual residing in Arziona. Defendant
Exkerbrecht may be served by and through the Texas Secretary of State using the Long-Arm
Statute, CPRC § 17.044(b). The Texas Secretary of State is the agent for service on the non-
resident; the non-resident engages in business in Texas; the non-resident does not maintain a
regular place of business in Texas; the non-resident does not have a designated agent for service
of process in Texas, and this lawsuit arises from the non-resident’s business in Texas. The Texas
Secretary of State shall serve Defendant Exkerbrecht at 1636 W Chimayo Place, Tucson, Arizona
85704.
13. Defendant Julie Frasch is an individual residing in Texas. She can be served at her
place of residence at 25710 Loop 494, Apt 311, Kingwood, Texas 77339.
Plaintiffs Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 4
14. Defendant Susan Matlick is an individual residing in Texas. She can be served at
her place of residence at 18511 Golden Maize, San Antonio, Texas 78258.
15. Defendant Paul Nissel is an individual residing in Florida. Defendant Nessel may
be served by and through the Texas Secretary of State using the Long-Arm Statute, CPRC §
17.044(b). The Texas Secretary of State is the agent for service on the non-resident; the non-
resident engages in business in Texas; the non-resident does not maintain a regular place of
business in Texas; the non-resident does not have a designated agent for service of process in
Texas, and this lawsuit arises from the non-resident’s business in Texas. The Texas Secretary of
State shall serve Defendant Nissel at 806 SE 43rd St, Ocala, Florida, 34480.
16. Defendant Gina McBride is an individual residing in Oregon. Defendant McBride
may be served by and through the Texas Secretary of State using the Long-Arm Statute, CPRC §
17.044(b). The Texas Secretary of State is the agent for service on the non-resident; the non-
resident engages in business in Texas; the non-resident does not maintain a regular place of
business in Texas; the non-resident does not have a designated agent for service of process in
Texas, and this lawsuit arises from the non-resident’s business in Texas. The Texas Secretary of
State shall serve Defendant McBride at 2940 Crescent Ave, Unit 204, Eugene, Oregon 97408.
17. Plaintiff is currently investigating the actions of potential defendants to this case
and reserves the right to further amend this petition and request additional injunctive relief. Unless
a particular Defendant is named, whenever this Original Petition references the acts of any
Defendant or Defendants, such allegation shall be deemed to mean the acts of those Defendants
named in the particular cause of action and each of them acting individually, jointly and severally.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 5
DISCOVERY CONTROL PLAN
18. Unless otherwise provided by Court order, discovery shall be conducted under Tex.
R. Civ. P. 190.3, Level 2.
DAMAGES, VENUE, AND JURISDICTION
19. Plaintiff seeks damages in excess of $1,000,000.00. This Honorable Court has
jurisdiction over this matter because the Plaintiff's damages are in excess of the minimum
jurisdictional limits of this Honorable Court.
20. Venue in this Honorable Court is appropriate because a substantial part of the
events giving rise to the dispute occurred in this county and this Honorable Court has personal
jurisdiction over each of the parties.
21. This Honorable Court has personal jurisdiction over the Defendants because the
Defendants have been engaged in business in the State of Texas and have willfully availed
themselves of Texas jurisdiction. In addition, the Defendants have committed torts within the
State of Texas.
22. In combination, these actions touch Texas residents on an ongoing and continual
basis. Moreover, the assumption of jurisdiction by this Honorable Court over the Defendants does
not offend traditional notions of fair play and substantial justice, and does not deprive the
Defendants of due process as guaranteed by the Constitution of the United States.
BACKGROUND FACTS
23. Plaintiff seeks a TRO, Temporary Injunction, and Permanent Injunction against the
Defendants because Defendants have undisputedly, knowingly, and clandestinely interfered with
Plaintiff's existing and prospective business with the intent to usurp and arrogate Plaintiffs
business.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 6
24. Defendants have aggressively marketed their products, services, and career
opportunities by way of disparaging and lying about Plaintiff and its affiliates.
25. Defendants have published these false statements about Plaintiff in conversations
with Plaintiffs Affiliates and third parties. Defendants’ false statements have caused severe harm
to Plaintiff in the form of loss of employees, loss of business, and loss of business reputation.
26. Defendants attempt to defame Plaintiff by fraudulently stating that Plaintiff is not
in compliance with health care laws and regulations.
27. Contrary to Defendants’ defamatory allegation, Plaintiff complies with applicable
health laws and regulations and has even developed and implemented a comprehensive corporate
compliance program.
28. Plaintiff's compliance program includes written standards of conduct, policies, and
procedures for its employees and business operations. These include, but are not necessarily
limited to, a code of ethics and business conduct, a confidentiality and conflict of interest
disclosure policy, a policy affirmatively requiring employees to report misconduct, policies and
procedures for internal reporting, a written process for enforcement and discipline, and a policy
describing how the program is to be monitored and audited to ensure its effectiveness.
29. Plaintiff's code of ethics and business conduct directly addresses and promotes
safety, respect, equal opportunities, non-retaliation, avoiding conflicts of interest, data security,
patient privacy, and the reduction or avoidance of fraud, waste, or abuse. The code also promotes
compliance with all relevant healthcare laws including HIPAA, the Anti-Kickback Statute, the
Stark Law, the False Claims Act, the Anti-Inducement Statute, and the Travel Act, and the
Eliminating Kickbacks in Recovery Act of 2018.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 7
30. Additionally, the Plaintiff trains its employees on its compliance policies and
distributes copies of its policies to its employees.
31. Plaintiff requires its employees to give written acknowledgement of several of its
policies, including its code of ethics and business conduct, its duty to report misconduct policy, its
confidential information policy, its compliance training policy, its reporting compliance concerns
and non-retaliation policy, its compliance review policy, its claims submitted policy, its
confidentiality and conflict of interest disclosure policy, and its HIPAA security and
confidentiality policy.
32. Plaintiff's employees must certify in writing that they have read, understood, and
agreed to comply with all of the foregoing policies.
33. Plaintiff's compliance program is overseen by a highly experienced and competent
Chief Compliance Officer. Plaintiff's Chief Compliance Officer reports directly to management
and has over 32 years of experience in promoting, evaluating, and executing compliance programs
throughout the healthcare sector.
34. In sum, Plaintiff takes compliance very seriously and has zero tolerance for any
non-compliance with its internal policies, applicable laws and regulations, or fraud, waste, or
abuse.
35. Defendants began to visit Plaintiff's customers and employees to encourage them
to work with competitors of Plaintiff.
36. Defendants are all former employees of Plaintiff. Each of the Defendants have an
employment agreement (the “Agreements”) with Plaintiff containing a valid non-solicitation and
non-compete clause.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 8
37. The Agreements are attached hereto as Exhibits A, B, C, D, and E. In pertinent
part, the Agreements state:
“Non-Competition. With the exception of the duties and services that Employee
performs for Company or on behalf of the Company pursuant to the terms of this
Agreement, Employee agrees that during the Term of the Agreement and for a
period of one (1) year following the termination of this Agreement for any reason,
Employee shall not, within the following states that have been assigned to
mployee [STATE] (the “Restricted Territory” rovide services on behalf of
any other organization that_are the same or similar_to_those Employee
provided on behalf of Company.” (emphasis added)
“Non-Solicitation of Clients and Customers. Employee agrees that for a period of
one (1) year following termination of this Agreement for any reason, Employe
will not directly or indirectly solicit business, accept business, contact or
communicate with any existing client or customer of Company that Employee
erviced or had direct contact with on behalf of Company during Employee’:
employment with Company.” (emphasis added)
“Right to Injunction. Employee acknowledges that the confidentiality restrictions
in this Agreement are a reasonable and necessary protection of the legitimate trade
secrets and business interests of the Company. In the event of any violation of
these restrictions, Company shall be entitled to preliminary and permanent
injunctive relief, in addition to any other remedies otherwise available to it at
law or in equity.” (emphasis added)
38. However, Defendants (except for Defendant Eckerbrecht who is still an employee
of Plaintiff) joined a direct competitor, Amica Medical Solutions (“Amica”), that was created by
a former employee of Plaintiff.
39. Amica is a company mostly made up of Plaintiff's former employees and now
competes directly against Plaintiff.
40. Defendants have conspired to approach current employees of Plaintiff and attempt
to have the employees divert samples from Plaintiff's lab to a competitor’s lab even while still
under the employment of Plaintiff.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 9
41. Additionally, Defendants instructed the employees to quit Plaintiff and join Amica
where they could earn substantially more income by being paid commission instead of as a salaried
W-2 employee.
42. Each Defendant is directly violating the Agreements by not abiding by the non-
solicitation clause, thus resulting in interference with Plaintiff's business.
43. Even more egregiously, this attempt at luring Plaintiff's employees includes the
defamatory statement that Plaintiff is not in compliance with health laws and regulations.
44, By way of examples, on or about April 22, 2021, Defendant McBride reached out
to Maria Clark, a current employee of Plaintiff, to lure her away from Plaintiff and begin working
with a competitor.
45. On or about April 22, 2021, Defendant Nissel left a voicemail for Sam Schooley, a
current employee of Plaintiff, trying to lure Ms. Schooley to join GTI. Defendant Nissel spoke
over the phone to Ms. Schooley trying to persuade Ms. Schooley to leave Plaintiff and join a
competitor.
46. On or about May 18, 2021, Defendant Nissel admitted to Ms. Schooley that he
currently works for Plaintiff's competitor, GTI.
47. Furthermore, Defendants began soliciting Plaintiffs clients and offering the same
services of Plaintiff at GTI, a competing lab. This is in direct violation of the non-solicitation
clause in the Agreements between Plaintiff and Defendants.
48. Plaintiff had done all of the work to establish these accounts and Defendants are
deceiving these accounts into doing business at GTI for Defendants’ profit and to the Plaintiff's
detriment.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 10
49. On or about May 15, 2021, Defendant Matlick downloaded an active list of all
customers through Plaintiff's Microsoft TEAMS database. Defendant Matlick also did this while
she was under employment at Plaintiff.
50. Defendants hatched a plan to steal Plaintiff's accounts using Plaintiff's active
customer lists.
ole Additionally, Defendants would use the information of clients it developed while
working for Plaintiff to now interfere with and usurp Plaintiff's business after leaving Plaintiff's
employment or, in the case of Defendant Eckerbrecht, while still under the employment of
Plaintiff.
a2: Defendants would then replace Plaintiff with GTI for these accounts. Defendants
would be paid per sample submitted to GTI.
53. Again, Defendants use the defamatory statement that Plaintiff is not in compliance
with healthcare laws and regulations to Plaintiffs customers to lure those customers to GTI.
54. One example is a business account in Dallas County. Specifically, the account is
located in Cedar Hill, Texas.
SS. Plaintiff derives significant business from this account.
56. Defendant Matlick has used her relationship with this customer account that she
developed while under the employment of Plaintiff and began sending this customer to GTI,
Plaintiff’s direct competitor.
SG Defendant Eckerbrect, a current employee, contacted Plaintiff's customer through
Defendant Eckerbecht’s wife. The Plaintiff's customer’s sales representative is Marc Yagoda.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 11
58. Mr. Yagoda has personal knowledge of a text chain that was generated by
Defendant Eckerbrecht’s wife with the intention to divert the customer’s samples away from
Plaintiff and to a competing lab.
59. It is believed that Defendant Eckerbrecht uses his wife as a shield. On information
and belief, Defendant Eckerbrecht’s wife is acting solely upon and pursuant to instructions given
by Defendant Eckerbrecht.
60. This is just some of the many examples of Defendants using their previous contacts
developed under Plaintiff to directly compete against Plaintiff.
61. Defendants’ motivation is evident. Greed, commissions, and ruthlessness drive
Defendants.
62. Put simply, Defendants want to destroy Plaintiff's reputation and operations to
selfishly take over and manage Plaintiffs accounts.
63. As a result, the Plaintiff has been damaged and continues to be damaged.
Specifically, Defendants have damaged and continue to damage the Plaintiffs business by illegally
soliciting Plaintiff's employees and customers; making false representations; lying; compromising
the integrity of Plaintiff; and forcing the Plaintiff to expend money, time, and resources in order
to remedy Defendants’ conduct.
64. Accordingly, Plaintiff seeks a temporary restraining order and subsequently the
entry of a temporary and then permanent injunction against Defendants, their agents, employers,
and representatives that prohibits them from:
a. Soliciting Plaintiff's business partners, clients, employees, and contractors;
b Competing with Plaintiff and providing services on behalf of any other
organization that are the same or similar to those Defendants provided on
behalf of Plaintiff;
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 12
Contacting Plaintiff's business partners, clients, employees, and
‘ontractors;
Contacting such personnel that Defendant knows, or reasonably should
know, are employed by affiliates and clients of Plaintiff;
Obtaining or attempting to obtain, without consent or notice, confidential
and sensitive information from Plaintiff, Plaintiffs clients, Plaintiff's
employees, Plaintiff's contractors, or any other person or entity that
Defendant knows or reasonably should know to be affiliated with Plaintiff;
Delivering, sharing, distributing, printing or in any other way processing
any information that is intended to unlawfully interfere with Plaintiffs
business;
Willfully converting the Plaintiffs confidential and proprietary
information;
Fraudulently accessing Plaintiff's confidential, proprietary information; and
Making statements about Plaintiff that are false, misleading, deceptive,
degenerative, or designed to defame Plaintiff, Plaintiff's employees,
Plaintiff's contractors, Plaintiff's business contacts, or Plaintiff's clients, or
any other person or entity that Defendant knows, or reasonably should
know, to be affiliated with Plaintiff.
CAUSES OF ACTION
COUNT ONE: BREACH OF CONTRACT
65. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
66. The Agreements are binding and enforceable between Plaintiff and Defendants.
Plaintiff performed and tendered performance under the Agreements.
67. Defendants breached the Agreements. The breaches of contract by Defendants
resulted in injury to Plaintiff.
Plaintii riginal Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 13
68. As a result, Plaintiff seeks all actual, consequential, and incidental damages that
have resulted from Defendants’ breaches of the Agreements, plus costs, expenses, pre- and post-
judgment interest as allowed by law, and attorneys’ fees.
69. Further, the wrongful acts of Defendants set forth in this Count were done
maliciously, oppressively, and with the intent to harm Plaintiff, and Plaintiff is entitled to punitive
and exemplary damages to be ascertained according to proof, which is appropriate to punish and
set an example of Defendants.
70. Accordingly, Plaintiff respectfully requests that exemplary damages be awarded
against Defendants in a sum that is not less than three (3) times the amount of Plaintiff's actual
damages.
COUNT TWO: CONSPIRACY
71. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
2a Defendants are members of a combination of two or more persons, the object of
which was to accomplish an unlawful purpose or a lawful purpose by unlawful means. All of the
Defendants combined to attempt to put Plaintiff out of business by using unlawful methods of
competition.
135 The members of the conspiracy had a meeting of the minds on the object or course
of action, and at least one of the members committed an unlawful overt act to further the object or
course of action.
74. Plaintiff has suffered damages as a result of Defendants’ conspiracy
75. Further, the wrongful acts of the Defendants set forth in this Count were done
maliciously, oppressively, and with the intent to harm the Plaintiff, and the Plaintiff is entitled to
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 14
punitive and exemplary damages to be ascertained according to proof, which is appropriate to
punish and set an example of the Defendants.
76. Accordingly, the Plaintiff respectfully requests that exemplary damages be awarded
against the Defendants in a sum that is not less than three (3) times the amount of Plaintiff's actual
damages.
COUNT THREE: AIDING AND ABETTING, ASSISTING AND ENCOURAGING,
PARTICIPATORY AND VICARIOUS LIABILITY, AND CONCERT OF ACTION
77. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
2. Each Defendant has aided and abetted the other Defendants and other parties in
committing torts against the Plaintiff.
79. Defendants had specific intent and knowledge that their conduct constituted torts.
80. Each Defendant intended to assist the other Defendants in committing these torts.
81. Defendants have given assistance or encouragement and this assistance or
encouragement was a substantial factor in effectuating torts against Plaintiff.
82. The actions of Defendants complained of herein were a proximate cause of harm to
Plaintiff and have resulted in actual damages in an amount within the jurisdictional limits of this
Court for which sums Plaintiffnow sue Defendants, who should be held jointly and severally liable
for the underlying tort.
83. Further, the wrongful acts of the Defendants set forth in this Count were done
maliciously, oppressively, and with the intent to harm the Plaintiff, and the Plaintiff is entitled to
punitive and exemplary damages to be ascertained according to proof, which is appropriate to
punish and set an example of the Defendants.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 15
84. Accordingly, the Plaintiff respectfully requests that exemplary damages be awarded
against the Defendants in a sum that is not less than three (3) times the amount of Plaintiff's actual
damages.
COUNT FOUR: JOINT ENTERPRISE
85. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
86. The Defendants had an express or implied agreement amongst themselves and a
common purpose to attempt to put Plaintiff out of business.
87. Defendants had a community of pecuniary interest in that common purpose in
increasing their own businesses at the expense of Plaintiff.
88. One or more of the Defendants committed torts against the Plaintiff while acting in
the scope of the enterprise.
89. Plaintiff has been injured by Defendants’ actions, which have resulted in actual
damages in an amount within the jurisdictional limits of this Court for which sums Plaintiff now
sues Defendants, who should be held jointly and severally liable for the underlying tort.
90. Further, the wrongful acts of the Defendants set forth in this Count were done
maliciously, oppressively, and with the intent to harm the Plaintiff, and the Plaintiff is entitled to
punitive and exemplary damages to be ascertained according to proof, which is appropriate to
punish and set an example of the Defendants.
91. Accordingly, the Plaintiff respectfully requests that exemplary damages be awarded
against the Defendants in a sum that is not less than three (3) times the amount of Plaintiff's actual
damages.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 16
COUNT FIVE: MISAPPROPRIATION OF TRADE SECRETS AND UNFAIR
COMPETITION
92. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
93. The details of Plaintiff's businesses and their client lists are trade secrets. Plaintiff
has created its confidential trade secrets and information through extensive time, labor, skill, and
money. Plaintiff's confidential trade secrets have been kept confidential and such trade secrets
have substantial commercial value from not being generally known to others in the trade who can
obtain economic value from their disclosure or use. Plaintiff uses reasonable procedures to protect
its confidential, proprietary, and trade secret information from disclosure.
94. Defendants used or disclosed Plaintiff's trade secrets in violation of a confidential
telationship with Plaintiff or after acquiring the trade secrets by improper means.
95. The Defendants have used or disclosed Plaintiff's confidential information in
competition with Plaintiff, gaining a special advantage because the Defendants bore little or no
burden of expense in its development.
96. The Defendants’ use of Plaintiff's confidential information has damaged Plaintiffs
business.
97. Further, the wrongful acts of the Defendants set forth in this Count were done
maliciously, oppressively, and with the intent to harm the Plaintiff, and the Plaintiffis entitled to
punitive and exemplary damages to be ascertained according to proof, which is appropriate to
punish and set an example of the Defendants.
98. Accordingly, the Plaintiff respectfully request that exemplary damages be awarded
against the Defendants in a sum that is not less than three (3) times the amount of Plaintiffs actual
damages.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunetion- Page 17
COUNT SIX: BREACH OF FIDUCIARY DUTY
99. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
100. Plaintiff and Defendants shared a fiduciary relationship by virtue of their
employment relationship and their business relationship, respectively. Plaintiff relied on and
trusted these Defendants, and in return these Defendants abused and betrayed that trust.
101. Plaintiff had had a high level of dependence on Defendants as a result of their
relationship of trust and confidence.
102. Plaintiff reasonably relied on Defendants to guide Plaintiff and to conduct their
business relationship.
103. Defendants, by their actions and unlawful forbearance, violated this trust.
104. Consequently, Defendants owed Plaintiff a fiduciary duty, which Defendants
breached and thus proximately caused injury to the Plaintiff or benefit to the Defendants.
105. Further, the wrongful acts of the Defendants set forth in this Count were done
maliciously, oppressively, and with the intent to harm the Plaintiff, and the Plaintiff is entitled to
punitive and exemplary damages to be ascertained according to proof, which is appropriate to
punish and set an example of the Defendants.
106. Accordingly, the Plaintiff respectfully requests that exemplary damages be awarded
against the Defendants in a sum that is not less than three (3) times the amount of Plaintiff's actual
damages.
COUNT SEVEN: UNJUST ENRICHMENT/RESTITUTION/MONEY HAD AND
RECEIVED
107. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 18
108. The Defendants unjustly received benefits at the expenses of the Plaintiff through
their wrongful conduct, including Defendants’ interference with the Plaintiffs business
relationships and other unfair business practices.
109. The Defendants continue to unjustly retain these benefits at the expense of the
Plaintiff. It would be unjust for Defendants to retain any value they obtained as a result of their
wrongful conduct. The Plaintiff is entitled to full restitution of all amounts in which Defendants
have been unjustly enriched at the Plaintiff's expense.
COUNT EIGHT: FRAUD
110. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
111. By reason of Plaintiff's reliance on Defendants’ representations of material facts
and fraudulent concealment of material facts described above, Plaintiff has been damaged in an
amount within the jurisdictional limits of the Court.
112. Defendants employed a common course of conduct to defraud Plaintiff. This
common course of conduct included Defendants intentionally misrepresenting or concealing
information from Plaintiff. The misrepresentations and concealment of facts set forth herein were
material.
113. Defendants knew the misrepresentations and concealment of facts set forth herein
were false. Alternatively, Defendants acted with reckless disregard whether the representations
set forth herein were true. Defendants misrepresented and concealed facts as set forth herein with
the intent to induce Plaintiff to rely on Defendants. Furthermore, Defendants misrepresented and
concealed facts as set forth herein with the intent of gaining their own financial advantage to the
disadvantage of Plaintiff. Plaintiff relied upon the misrepresentations and concealment of facts set
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 19
forth herein. Plaintiff's reliance on these representations and concealment of facts was reasonable
and justifiable.
114. The amount of such losses will be determined according to proof at trial. The
wrongful acts of Defendants set forth in this Count were done maliciously, oppressively, and with
the intent to mislead and defraud, and Plaintiff is entitled to punitive and exemplary damages to
be ascertained according to proof, which is appropriate to punish and set an example of
Defendants. Accordingly, Plaintiff requests that exemplary damages be awarded against the
Defendants in a sum within the jurisdictional limits of the Court.
COUNT NINE: FRAUD INCONCEALMENT
55 Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
116. By reason of Plaintiff's reliance on Defendants’ fraudulent concealment of material
facts described above, Plaintiff has been damaged in an amount within the jurisdictional limits of
the Court.
117. Defendants employed a common course of conduct to defraud Plaintiff. This
common course of conduct included Defendants intentionally concealing information from
Plaintiff. The concealment of facts set forth herein were material.
118. Defendants knew the concealment of facts set forth herein were false. Defendants
concealed facts as set forth herein with the intent to induce Plaintiff to rely on Defendants.
Furthermore, Defendants concealed facts as set forth herein with the intent of gaining their own
financial advantage to the disadvantage of Plaintiff. Plaintiff relied upon the concealment of facts
set forth herein. Plaintiff's reliance on this concealment of facts was reasonable and justifiable.
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 20
119. The amount of such losses will be determined according to proof at trial. The
wrongful acts of Defendants set forth in this Count were done maliciously, oppressively, and with
the intent to mislead and defraud, and Plaintiff is entitled to punitive and exemplary damages to
be ascertained according to proof, which is appropriate to punish and set an example of
Defendants. Accordingly, Plaintiff requests that exemplary damages be awarded against the
Defendants in a sum within the jurisdictional limits of the Court.
COUNT TEN: FRAUD BY OMISSION
120. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
121. By reason of Plaintiff's reliance on Defendants’ omissions of material facts
described above, Plaintiff has been damaged in an amount within the jurisdictional limits of the
Court.
122. Defendants employed a common course of conduct to defraud Plaintiff. This
common course of conduct included Defendants omitting information from Plaintiff. The
omission of facts set forth herein were material.
123. Defendants knew the omissions of facts set forth herein were false. Alternatively,
Defendants acted with reckless disregard of the omissions of fact. Defendants omitted facts as set
forth herein with the intent to induce Plaintiff to rely on Defendants. Furthermore, Defendants
omitted facts as set forth herein with the intent of gaining their own financial advantage to the
disadvantage of Plaintiff. Plaintiff relied upon the omission of facts set forth herein. Plaintiff's
reliance on these omissions of facts was reasonable and justifiable.
124. The amount of such losses will be determined according to proof at trial. The
wrongful acts of Defendants set forth in this Count were done maliciously, oppressively, and with
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 21
the intent to mislead and defraud, and Plaintiff is entitled to punitive and exemplary damages to
be ascertained according to proof, which is appropriate to punish and set an example of
Defendants. Accordingly, Plaintiff requests that exemplary damages be awarded against the
Defendants in a sum within the jurisdictional limits of the Court.
COUNT ELEVEN: FRAUD BY MISREPRESENTATION
125. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
126. By reason of Plaintiff's reliance on Defendants’ representations of material facts
described above, Plaintiff has been damaged in an amount within the jurisdictional limits of the
Court.
127. Defendants employed a common course of conduct to defraud Plaintiff. This
common course of conduct included Defendants intentionally misrepresenting information to the
Plaintiff. The misrepresentations of facts set forth herein were material.
128. Defendants knew the misrepresentations set forth herein were false. Alternatively,
Defendants acted with reckless disregard whether the representations set forth herein were true.
Defendants misrepresented facts as set forth herein with the intent to induce Plaintiff to rely on
Defendants. Furthermore, Defendants misrepresented facts as set forth herein with the intent of
gaining their own financial advantage to the disadvantage of Plaintiff. Plaintiff relied upon the
misrepresentations of facts set forth herein. Plaintiff's reliance on these representations of facts
was reasonable and justifiable.
129. The amount of such losses will be determined according to proof at trial. The
wrongful acts of Defendants set forth in this Count were done maliciously, oppressively, and with
the intent to mislead and defraud, and Plaintiff is entitled to punitive and exemplary damages to
Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction- Page 22
be ascertained according to proof, which is appropriate to punish and set an example of
Defendants. Accordingly, Plaintiff requests that exemplary damages be awarded against the
Defendants in a sum within the jurisdictional limits of the Court.
COUNT TWELVE: CONSTRUSTIVE TRUST
130. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
131. As set forth above, Plaintiff has been damaged by Defendants due to the breach of
a special trust, fiduciary relationship, and fraud.
132. Defendants will be unjustly enriched by their conduct in obtaining and keeping
Plaintiff's business and monies obtained from Plaintiff's customers. There is identifiable property
as Defendants’ monies that have been converted from Plaintiff are particular and specifically
identified as property that rightfully belongs to Plaintiff. A constructive trust must be put over
Plaintiff's property that has been obtained by Defendants to prevent the unjust enrichment of
Defendants.
COUNT THIRTEEN: CONVERSION, TRESPASS TO CHATTELS, THEFT OF
PROPERTY, AND VIOLATIONS OF THE TEXAS THEFT LIABILITY ACT
133. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their
entirety herein.
134. Defendants unlawfully appropriated, secured, or stole personal property belonging to
the Plaintiff and to which Plaintiff had a possessory right. The unlawful taking was made with the
intent to deprive Plaintiff of the property and was made without Plaintiff's consen
Preview
FILED 6/21/2021 1:21 PM FELICIA PITRE 3 CIT SOS ESERVE / 2 CIT ESERVE / JURY DISTRICT CLERK DALLAS CO., TEXAS Angie Avina DEPUTY DC-21-07836 CAUSE NO. VIKOR SCIENTIFIC, LLC IN THE DISTRICT COURT Plaintiff, 116th Vv. JUDICIAL DISTRICT GARY ECKERBRECHT, JULIE FRASCH, GINA MCBRIDE, PAUL NISSEL, SUSAN MATLICK Defendants. DALLAS COUNTY, TEXAS PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION, AND PERMANENT INJUNCTION TO THE HONORABLE DISTRICT COURT JUDGE: COME NOW, Plaintiff Vikor Scientific, LLC (“Plaintiff”), and files this, its Original Petition and Application for a Temporary Restraining Order, Temporary Injunction, and Permanent Injunction (the “Petition”) against Defendants. In support, Plaintiff would respectfully show this Honorable Court the following: PRELIMINARY STATEMENT 1 To this day, the Defendants have been diverting and converting money belonging to the Plaintiff to the tune of millions of dollars. Specifically, the Defendants have been unlawfully diverting and converting money from Plaintiff's laboratory and payors. In addition, the Plaintiff also respectfully seeks an accounting and expedited discovery from the Defendants. Indeed, the Plaintiff respectfully seeks a TRO and a Temporary Injunction. That is because the Defendants are former employees of the Plaintiff who continue to solicit, steal, usurp, redirect, and hijack the Plaintiff's innovative business, money, and customers/business accounts. Plaintiff creates customized pathogen panels to answer a clinical need for data that innovates the way medicine is Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 1 practiced. One of the Defendants, Defendant Eckerbrecht, is a current employee of Plaintiff that is diverting samples from Plaintiff's lab to a competing lab. All Defendants have committed these tortious acts by unlawfully soliciting Plaintiff's partners, clients, and employees (“Plaintiffs Affiliates”). Indeed, the Defendants have conspired to set up an illegal scheme to divert Plaintiff's business and employees to a competing lab known as Genetic Technology Innovations Laboratory (“GTI”). In light of this theft which is also harming patients, Plaintiff respectfully seeks a TRO and injunction to enjoin Defendants from: a. Soliciting Plaintiff's business partners, clients, employees, and contractors; b. Competing with Plaintiff and providing services on behalf of any other organization that are the same or similar to those Defendants provided on behalf of Plaintiff; Contacting Plaintiff's business partners, clients, employees, and contractors; Contacting such personnel that Defendant knows, or reasonably should know, are employed by affiliates and clients of Plaintiff; Obtaining or attempting to obtain, without consent or notice, confidential and sensitive information from Plaintiff, Plaintiff's clients, Plaintiff's employees, Plaintiff's contractors, or any other person or entity that Defendant knows or reasonably should know to be affiliated with Plaintiff; Delivering, sharing, distributing, printing or in any other way processing any information that is intended to unlawfully interfere with Plaintiff's business; Willfully converting the Plaintiff's confidential and proprietary information; Fraudulently accessing Plaintiffs confidential, proprietary information; and Making statements about Plaintiff that are false, misleading, deceptive, degenerative, or designed to defame Plaintiff, Plaintiff's employees, Plaintiff's contractors, Plaintiff's business contacts, or Plaintiff's clients, or any other person or entity that Defendant knows, or reasonably should know, to be affiliated with Plaintiff. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 2 2 Defendants have conspired to set up an illegal scheme and divert Plaintiffs business and employees to GTI, a competing lab. 3 All Defendants have committed these tortious acts by unlawfully soliciting Plaintiffs partners, clients, and employees (“Plaintiffs Affiliates”). 4 Even more egregiously, Defendant Eckerbrecht is a current employee of Plaintiff that is diverting samples from Plaintiff's lab to a competing lab while being paid by Plaintiff. 5 Additionally, as the employees are marketers, a clientele base comes with each marketer to compete with Plaintiff directly. 6. This is all despite the fact that each Defendant has an employment agreement with Plaintiff containing a valid non-compete and non-solicitation clause and even gives Plaintiff the right to an injunction. Each employment agreement states in pertinent part: “Non-Competition. With the exception of the duties and services that Employee performs for Company or on behalf of the Company pursuant to the terms of this Agreement, Employee agrees that during the Term of the Agreement and for a period of one (1) year following the termination of this Agreement for any reason, Employee shall not, within the following states that have been assigned to Employee [STATE] (the “Restricted Territory”), provide services on behalf of any other organization that are the same or similar to those Employee provided on behalf of Company.” (emphasis added) “Non-Solicitation of Clients and Customers. Employee agrees that for a period of one (1) year following termination of this Agreement for any reason, Employe will not directly or indirectly solicit business, accept business, contact_o communicate with any existing client or customer of Company that Employe serviced or had direct contact with on behalf of Company during Employee’s employment with Company.” (emphasis added) EE Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 3 7 Even more egregiously, Defendants have used scare tactics in order to interfere with the Plaintiffs business. These tactics include stating that Plaintiff’s business model is illegal which is an attempt at misdirect and a complete fabrication. 8 These stories are fabricated and designed to disrupt and interfere with the Plaintiff's business so that the Defendants can steal, deceive, and profit. 9 Indeed, the Defendants have undisputedly, knowingly, and clandestinely perpetuated a scheme to systematically interfere with Plaintiff's business operations. 10. The Defendants’ unlawful acts have placed the Plaintiff's business in jeopardy and Plaintiff respectfully requests Defendant be enjoined from their unlawful, tortious conduct. PARTIES 11. Plaintiff Vikor Scientific, LLC is a South Carolina limited liability company with its principal place of business located in Charleston, South Carolina. It can be served by and through the undersigned counsel of record for the purposes of this pleading only. 12. Defendant Gary Eckerbrecht is an individual residing in Arziona. Defendant Exkerbrecht may be served by and through the Texas Secretary of State using the Long-Arm Statute, CPRC § 17.044(b). The Texas Secretary of State is the agent for service on the non- resident; the non-resident engages in business in Texas; the non-resident does not maintain a regular place of business in Texas; the non-resident does not have a designated agent for service of process in Texas, and this lawsuit arises from the non-resident’s business in Texas. The Texas Secretary of State shall serve Defendant Exkerbrecht at 1636 W Chimayo Place, Tucson, Arizona 85704. 13. Defendant Julie Frasch is an individual residing in Texas. She can be served at her place of residence at 25710 Loop 494, Apt 311, Kingwood, Texas 77339. Plaintiffs Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 4 14. Defendant Susan Matlick is an individual residing in Texas. She can be served at her place of residence at 18511 Golden Maize, San Antonio, Texas 78258. 15. Defendant Paul Nissel is an individual residing in Florida. Defendant Nessel may be served by and through the Texas Secretary of State using the Long-Arm Statute, CPRC § 17.044(b). The Texas Secretary of State is the agent for service on the non-resident; the non- resident engages in business in Texas; the non-resident does not maintain a regular place of business in Texas; the non-resident does not have a designated agent for service of process in Texas, and this lawsuit arises from the non-resident’s business in Texas. The Texas Secretary of State shall serve Defendant Nissel at 806 SE 43rd St, Ocala, Florida, 34480. 16. Defendant Gina McBride is an individual residing in Oregon. Defendant McBride may be served by and through the Texas Secretary of State using the Long-Arm Statute, CPRC § 17.044(b). The Texas Secretary of State is the agent for service on the non-resident; the non- resident engages in business in Texas; the non-resident does not maintain a regular place of business in Texas; the non-resident does not have a designated agent for service of process in Texas, and this lawsuit arises from the non-resident’s business in Texas. The Texas Secretary of State shall serve Defendant McBride at 2940 Crescent Ave, Unit 204, Eugene, Oregon 97408. 17. Plaintiff is currently investigating the actions of potential defendants to this case and reserves the right to further amend this petition and request additional injunctive relief. Unless a particular Defendant is named, whenever this Original Petition references the acts of any Defendant or Defendants, such allegation shall be deemed to mean the acts of those Defendants named in the particular cause of action and each of them acting individually, jointly and severally. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 5 DISCOVERY CONTROL PLAN 18. Unless otherwise provided by Court order, discovery shall be conducted under Tex. R. Civ. P. 190.3, Level 2. DAMAGES, VENUE, AND JURISDICTION 19. Plaintiff seeks damages in excess of $1,000,000.00. This Honorable Court has jurisdiction over this matter because the Plaintiff's damages are in excess of the minimum jurisdictional limits of this Honorable Court. 20. Venue in this Honorable Court is appropriate because a substantial part of the events giving rise to the dispute occurred in this county and this Honorable Court has personal jurisdiction over each of the parties. 21. This Honorable Court has personal jurisdiction over the Defendants because the Defendants have been engaged in business in the State of Texas and have willfully availed themselves of Texas jurisdiction. In addition, the Defendants have committed torts within the State of Texas. 22. In combination, these actions touch Texas residents on an ongoing and continual basis. Moreover, the assumption of jurisdiction by this Honorable Court over the Defendants does not offend traditional notions of fair play and substantial justice, and does not deprive the Defendants of due process as guaranteed by the Constitution of the United States. BACKGROUND FACTS 23. Plaintiff seeks a TRO, Temporary Injunction, and Permanent Injunction against the Defendants because Defendants have undisputedly, knowingly, and clandestinely interfered with Plaintiff's existing and prospective business with the intent to usurp and arrogate Plaintiffs business. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 6 24. Defendants have aggressively marketed their products, services, and career opportunities by way of disparaging and lying about Plaintiff and its affiliates. 25. Defendants have published these false statements about Plaintiff in conversations with Plaintiffs Affiliates and third parties. Defendants’ false statements have caused severe harm to Plaintiff in the form of loss of employees, loss of business, and loss of business reputation. 26. Defendants attempt to defame Plaintiff by fraudulently stating that Plaintiff is not in compliance with health care laws and regulations. 27. Contrary to Defendants’ defamatory allegation, Plaintiff complies with applicable health laws and regulations and has even developed and implemented a comprehensive corporate compliance program. 28. Plaintiff's compliance program includes written standards of conduct, policies, and procedures for its employees and business operations. These include, but are not necessarily limited to, a code of ethics and business conduct, a confidentiality and conflict of interest disclosure policy, a policy affirmatively requiring employees to report misconduct, policies and procedures for internal reporting, a written process for enforcement and discipline, and a policy describing how the program is to be monitored and audited to ensure its effectiveness. 29. Plaintiff's code of ethics and business conduct directly addresses and promotes safety, respect, equal opportunities, non-retaliation, avoiding conflicts of interest, data security, patient privacy, and the reduction or avoidance of fraud, waste, or abuse. The code also promotes compliance with all relevant healthcare laws including HIPAA, the Anti-Kickback Statute, the Stark Law, the False Claims Act, the Anti-Inducement Statute, and the Travel Act, and the Eliminating Kickbacks in Recovery Act of 2018. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 7 30. Additionally, the Plaintiff trains its employees on its compliance policies and distributes copies of its policies to its employees. 31. Plaintiff requires its employees to give written acknowledgement of several of its policies, including its code of ethics and business conduct, its duty to report misconduct policy, its confidential information policy, its compliance training policy, its reporting compliance concerns and non-retaliation policy, its compliance review policy, its claims submitted policy, its confidentiality and conflict of interest disclosure policy, and its HIPAA security and confidentiality policy. 32. Plaintiff's employees must certify in writing that they have read, understood, and agreed to comply with all of the foregoing policies. 33. Plaintiff's compliance program is overseen by a highly experienced and competent Chief Compliance Officer. Plaintiff's Chief Compliance Officer reports directly to management and has over 32 years of experience in promoting, evaluating, and executing compliance programs throughout the healthcare sector. 34. In sum, Plaintiff takes compliance very seriously and has zero tolerance for any non-compliance with its internal policies, applicable laws and regulations, or fraud, waste, or abuse. 35. Defendants began to visit Plaintiff's customers and employees to encourage them to work with competitors of Plaintiff. 36. Defendants are all former employees of Plaintiff. Each of the Defendants have an employment agreement (the “Agreements”) with Plaintiff containing a valid non-solicitation and non-compete clause. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 8 37. The Agreements are attached hereto as Exhibits A, B, C, D, and E. In pertinent part, the Agreements state: “Non-Competition. With the exception of the duties and services that Employee performs for Company or on behalf of the Company pursuant to the terms of this Agreement, Employee agrees that during the Term of the Agreement and for a period of one (1) year following the termination of this Agreement for any reason, Employee shall not, within the following states that have been assigned to mployee [STATE] (the “Restricted Territory” rovide services on behalf of any other organization that_are the same or similar_to_those Employee provided on behalf of Company.” (emphasis added) “Non-Solicitation of Clients and Customers. Employee agrees that for a period of one (1) year following termination of this Agreement for any reason, Employe will not directly or indirectly solicit business, accept business, contact or communicate with any existing client or customer of Company that Employee erviced or had direct contact with on behalf of Company during Employee’: employment with Company.” (emphasis added) “Right to Injunction. Employee acknowledges that the confidentiality restrictions in this Agreement are a reasonable and necessary protection of the legitimate trade secrets and business interests of the Company. In the event of any violation of these restrictions, Company shall be entitled to preliminary and permanent injunctive relief, in addition to any other remedies otherwise available to it at law or in equity.” (emphasis added) 38. However, Defendants (except for Defendant Eckerbrecht who is still an employee of Plaintiff) joined a direct competitor, Amica Medical Solutions (“Amica”), that was created by a former employee of Plaintiff. 39. Amica is a company mostly made up of Plaintiff's former employees and now competes directly against Plaintiff. 40. Defendants have conspired to approach current employees of Plaintiff and attempt to have the employees divert samples from Plaintiff's lab to a competitor’s lab even while still under the employment of Plaintiff. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 9 41. Additionally, Defendants instructed the employees to quit Plaintiff and join Amica where they could earn substantially more income by being paid commission instead of as a salaried W-2 employee. 42. Each Defendant is directly violating the Agreements by not abiding by the non- solicitation clause, thus resulting in interference with Plaintiff's business. 43. Even more egregiously, this attempt at luring Plaintiff's employees includes the defamatory statement that Plaintiff is not in compliance with health laws and regulations. 44, By way of examples, on or about April 22, 2021, Defendant McBride reached out to Maria Clark, a current employee of Plaintiff, to lure her away from Plaintiff and begin working with a competitor. 45. On or about April 22, 2021, Defendant Nissel left a voicemail for Sam Schooley, a current employee of Plaintiff, trying to lure Ms. Schooley to join GTI. Defendant Nissel spoke over the phone to Ms. Schooley trying to persuade Ms. Schooley to leave Plaintiff and join a competitor. 46. On or about May 18, 2021, Defendant Nissel admitted to Ms. Schooley that he currently works for Plaintiff's competitor, GTI. 47. Furthermore, Defendants began soliciting Plaintiffs clients and offering the same services of Plaintiff at GTI, a competing lab. This is in direct violation of the non-solicitation clause in the Agreements between Plaintiff and Defendants. 48. Plaintiff had done all of the work to establish these accounts and Defendants are deceiving these accounts into doing business at GTI for Defendants’ profit and to the Plaintiff's detriment. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 10 49. On or about May 15, 2021, Defendant Matlick downloaded an active list of all customers through Plaintiff's Microsoft TEAMS database. Defendant Matlick also did this while she was under employment at Plaintiff. 50. Defendants hatched a plan to steal Plaintiff's accounts using Plaintiff's active customer lists. ole Additionally, Defendants would use the information of clients it developed while working for Plaintiff to now interfere with and usurp Plaintiff's business after leaving Plaintiff's employment or, in the case of Defendant Eckerbrecht, while still under the employment of Plaintiff. a2: Defendants would then replace Plaintiff with GTI for these accounts. Defendants would be paid per sample submitted to GTI. 53. Again, Defendants use the defamatory statement that Plaintiff is not in compliance with healthcare laws and regulations to Plaintiffs customers to lure those customers to GTI. 54. One example is a business account in Dallas County. Specifically, the account is located in Cedar Hill, Texas. SS. Plaintiff derives significant business from this account. 56. Defendant Matlick has used her relationship with this customer account that she developed while under the employment of Plaintiff and began sending this customer to GTI, Plaintiff’s direct competitor. SG Defendant Eckerbrect, a current employee, contacted Plaintiff's customer through Defendant Eckerbecht’s wife. The Plaintiff's customer’s sales representative is Marc Yagoda. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 11 58. Mr. Yagoda has personal knowledge of a text chain that was generated by Defendant Eckerbrecht’s wife with the intention to divert the customer’s samples away from Plaintiff and to a competing lab. 59. It is believed that Defendant Eckerbrecht uses his wife as a shield. On information and belief, Defendant Eckerbrecht’s wife is acting solely upon and pursuant to instructions given by Defendant Eckerbrecht. 60. This is just some of the many examples of Defendants using their previous contacts developed under Plaintiff to directly compete against Plaintiff. 61. Defendants’ motivation is evident. Greed, commissions, and ruthlessness drive Defendants. 62. Put simply, Defendants want to destroy Plaintiff's reputation and operations to selfishly take over and manage Plaintiffs accounts. 63. As a result, the Plaintiff has been damaged and continues to be damaged. Specifically, Defendants have damaged and continue to damage the Plaintiffs business by illegally soliciting Plaintiff's employees and customers; making false representations; lying; compromising the integrity of Plaintiff; and forcing the Plaintiff to expend money, time, and resources in order to remedy Defendants’ conduct. 64. Accordingly, Plaintiff seeks a temporary restraining order and subsequently the entry of a temporary and then permanent injunction against Defendants, their agents, employers, and representatives that prohibits them from: a. Soliciting Plaintiff's business partners, clients, employees, and contractors; b Competing with Plaintiff and providing services on behalf of any other organization that are the same or similar to those Defendants provided on behalf of Plaintiff; Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 12 Contacting Plaintiff's business partners, clients, employees, and ‘ontractors; Contacting such personnel that Defendant knows, or reasonably should know, are employed by affiliates and clients of Plaintiff; Obtaining or attempting to obtain, without consent or notice, confidential and sensitive information from Plaintiff, Plaintiffs clients, Plaintiff's employees, Plaintiff's contractors, or any other person or entity that Defendant knows or reasonably should know to be affiliated with Plaintiff; Delivering, sharing, distributing, printing or in any other way processing any information that is intended to unlawfully interfere with Plaintiffs business; Willfully converting the Plaintiffs confidential and proprietary information; Fraudulently accessing Plaintiff's confidential, proprietary information; and Making statements about Plaintiff that are false, misleading, deceptive, degenerative, or designed to defame Plaintiff, Plaintiff's employees, Plaintiff's contractors, Plaintiff's business contacts, or Plaintiff's clients, or any other person or entity that Defendant knows, or reasonably should know, to be affiliated with Plaintiff. CAUSES OF ACTION COUNT ONE: BREACH OF CONTRACT 65. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 66. The Agreements are binding and enforceable between Plaintiff and Defendants. Plaintiff performed and tendered performance under the Agreements. 67. Defendants breached the Agreements. The breaches of contract by Defendants resulted in injury to Plaintiff. Plaintii riginal Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 13 68. As a result, Plaintiff seeks all actual, consequential, and incidental damages that have resulted from Defendants’ breaches of the Agreements, plus costs, expenses, pre- and post- judgment interest as allowed by law, and attorneys’ fees. 69. Further, the wrongful acts of Defendants set forth in this Count were done maliciously, oppressively, and with the intent to harm Plaintiff, and Plaintiff is entitled to punitive and exemplary damages to be ascertained according to proof, which is appropriate to punish and set an example of Defendants. 70. Accordingly, Plaintiff respectfully requests that exemplary damages be awarded against Defendants in a sum that is not less than three (3) times the amount of Plaintiff's actual damages. COUNT TWO: CONSPIRACY 71. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 2a Defendants are members of a combination of two or more persons, the object of which was to accomplish an unlawful purpose or a lawful purpose by unlawful means. All of the Defendants combined to attempt to put Plaintiff out of business by using unlawful methods of competition. 135 The members of the conspiracy had a meeting of the minds on the object or course of action, and at least one of the members committed an unlawful overt act to further the object or course of action. 74. Plaintiff has suffered damages as a result of Defendants’ conspiracy 75. Further, the wrongful acts of the Defendants set forth in this Count were done maliciously, oppressively, and with the intent to harm the Plaintiff, and the Plaintiff is entitled to Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 14 punitive and exemplary damages to be ascertained according to proof, which is appropriate to punish and set an example of the Defendants. 76. Accordingly, the Plaintiff respectfully requests that exemplary damages be awarded against the Defendants in a sum that is not less than three (3) times the amount of Plaintiff's actual damages. COUNT THREE: AIDING AND ABETTING, ASSISTING AND ENCOURAGING, PARTICIPATORY AND VICARIOUS LIABILITY, AND CONCERT OF ACTION 77. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 2. Each Defendant has aided and abetted the other Defendants and other parties in committing torts against the Plaintiff. 79. Defendants had specific intent and knowledge that their conduct constituted torts. 80. Each Defendant intended to assist the other Defendants in committing these torts. 81. Defendants have given assistance or encouragement and this assistance or encouragement was a substantial factor in effectuating torts against Plaintiff. 82. The actions of Defendants complained of herein were a proximate cause of harm to Plaintiff and have resulted in actual damages in an amount within the jurisdictional limits of this Court for which sums Plaintiffnow sue Defendants, who should be held jointly and severally liable for the underlying tort. 83. Further, the wrongful acts of the Defendants set forth in this Count were done maliciously, oppressively, and with the intent to harm the Plaintiff, and the Plaintiff is entitled to punitive and exemplary damages to be ascertained according to proof, which is appropriate to punish and set an example of the Defendants. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 15 84. Accordingly, the Plaintiff respectfully requests that exemplary damages be awarded against the Defendants in a sum that is not less than three (3) times the amount of Plaintiff's actual damages. COUNT FOUR: JOINT ENTERPRISE 85. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 86. The Defendants had an express or implied agreement amongst themselves and a common purpose to attempt to put Plaintiff out of business. 87. Defendants had a community of pecuniary interest in that common purpose in increasing their own businesses at the expense of Plaintiff. 88. One or more of the Defendants committed torts against the Plaintiff while acting in the scope of the enterprise. 89. Plaintiff has been injured by Defendants’ actions, which have resulted in actual damages in an amount within the jurisdictional limits of this Court for which sums Plaintiff now sues Defendants, who should be held jointly and severally liable for the underlying tort. 90. Further, the wrongful acts of the Defendants set forth in this Count were done maliciously, oppressively, and with the intent to harm the Plaintiff, and the Plaintiff is entitled to punitive and exemplary damages to be ascertained according to proof, which is appropriate to punish and set an example of the Defendants. 91. Accordingly, the Plaintiff respectfully requests that exemplary damages be awarded against the Defendants in a sum that is not less than three (3) times the amount of Plaintiff's actual damages. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 16 COUNT FIVE: MISAPPROPRIATION OF TRADE SECRETS AND UNFAIR COMPETITION 92. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 93. The details of Plaintiff's businesses and their client lists are trade secrets. Plaintiff has created its confidential trade secrets and information through extensive time, labor, skill, and money. Plaintiff's confidential trade secrets have been kept confidential and such trade secrets have substantial commercial value from not being generally known to others in the trade who can obtain economic value from their disclosure or use. Plaintiff uses reasonable procedures to protect its confidential, proprietary, and trade secret information from disclosure. 94. Defendants used or disclosed Plaintiff's trade secrets in violation of a confidential telationship with Plaintiff or after acquiring the trade secrets by improper means. 95. The Defendants have used or disclosed Plaintiff's confidential information in competition with Plaintiff, gaining a special advantage because the Defendants bore little or no burden of expense in its development. 96. The Defendants’ use of Plaintiff's confidential information has damaged Plaintiffs business. 97. Further, the wrongful acts of the Defendants set forth in this Count were done maliciously, oppressively, and with the intent to harm the Plaintiff, and the Plaintiffis entitled to punitive and exemplary damages to be ascertained according to proof, which is appropriate to punish and set an example of the Defendants. 98. Accordingly, the Plaintiff respectfully request that exemplary damages be awarded against the Defendants in a sum that is not less than three (3) times the amount of Plaintiffs actual damages. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunetion- Page 17 COUNT SIX: BREACH OF FIDUCIARY DUTY 99. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 100. Plaintiff and Defendants shared a fiduciary relationship by virtue of their employment relationship and their business relationship, respectively. Plaintiff relied on and trusted these Defendants, and in return these Defendants abused and betrayed that trust. 101. Plaintiff had had a high level of dependence on Defendants as a result of their relationship of trust and confidence. 102. Plaintiff reasonably relied on Defendants to guide Plaintiff and to conduct their business relationship. 103. Defendants, by their actions and unlawful forbearance, violated this trust. 104. Consequently, Defendants owed Plaintiff a fiduciary duty, which Defendants breached and thus proximately caused injury to the Plaintiff or benefit to the Defendants. 105. Further, the wrongful acts of the Defendants set forth in this Count were done maliciously, oppressively, and with the intent to harm the Plaintiff, and the Plaintiff is entitled to punitive and exemplary damages to be ascertained according to proof, which is appropriate to punish and set an example of the Defendants. 106. Accordingly, the Plaintiff respectfully requests that exemplary damages be awarded against the Defendants in a sum that is not less than three (3) times the amount of Plaintiff's actual damages. COUNT SEVEN: UNJUST ENRICHMENT/RESTITUTION/MONEY HAD AND RECEIVED 107. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 18 108. The Defendants unjustly received benefits at the expenses of the Plaintiff through their wrongful conduct, including Defendants’ interference with the Plaintiffs business relationships and other unfair business practices. 109. The Defendants continue to unjustly retain these benefits at the expense of the Plaintiff. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. The Plaintiff is entitled to full restitution of all amounts in which Defendants have been unjustly enriched at the Plaintiff's expense. COUNT EIGHT: FRAUD 110. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 111. By reason of Plaintiff's reliance on Defendants’ representations of material facts and fraudulent concealment of material facts described above, Plaintiff has been damaged in an amount within the jurisdictional limits of the Court. 112. Defendants employed a common course of conduct to defraud Plaintiff. This common course of conduct included Defendants intentionally misrepresenting or concealing information from Plaintiff. The misrepresentations and concealment of facts set forth herein were material. 113. Defendants knew the misrepresentations and concealment of facts set forth herein were false. Alternatively, Defendants acted with reckless disregard whether the representations set forth herein were true. Defendants misrepresented and concealed facts as set forth herein with the intent to induce Plaintiff to rely on Defendants. Furthermore, Defendants misrepresented and concealed facts as set forth herein with the intent of gaining their own financial advantage to the disadvantage of Plaintiff. Plaintiff relied upon the misrepresentations and concealment of facts set Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 19 forth herein. Plaintiff's reliance on these representations and concealment of facts was reasonable and justifiable. 114. The amount of such losses will be determined according to proof at trial. The wrongful acts of Defendants set forth in this Count were done maliciously, oppressively, and with the intent to mislead and defraud, and Plaintiff is entitled to punitive and exemplary damages to be ascertained according to proof, which is appropriate to punish and set an example of Defendants. Accordingly, Plaintiff requests that exemplary damages be awarded against the Defendants in a sum within the jurisdictional limits of the Court. COUNT NINE: FRAUD INCONCEALMENT 55 Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 116. By reason of Plaintiff's reliance on Defendants’ fraudulent concealment of material facts described above, Plaintiff has been damaged in an amount within the jurisdictional limits of the Court. 117. Defendants employed a common course of conduct to defraud Plaintiff. This common course of conduct included Defendants intentionally concealing information from Plaintiff. The concealment of facts set forth herein were material. 118. Defendants knew the concealment of facts set forth herein were false. Defendants concealed facts as set forth herein with the intent to induce Plaintiff to rely on Defendants. Furthermore, Defendants concealed facts as set forth herein with the intent of gaining their own financial advantage to the disadvantage of Plaintiff. Plaintiff relied upon the concealment of facts set forth herein. Plaintiff's reliance on this concealment of facts was reasonable and justifiable. Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 20 119. The amount of such losses will be determined according to proof at trial. The wrongful acts of Defendants set forth in this Count were done maliciously, oppressively, and with the intent to mislead and defraud, and Plaintiff is entitled to punitive and exemplary damages to be ascertained according to proof, which is appropriate to punish and set an example of Defendants. Accordingly, Plaintiff requests that exemplary damages be awarded against the Defendants in a sum within the jurisdictional limits of the Court. COUNT TEN: FRAUD BY OMISSION 120. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 121. By reason of Plaintiff's reliance on Defendants’ omissions of material facts described above, Plaintiff has been damaged in an amount within the jurisdictional limits of the Court. 122. Defendants employed a common course of conduct to defraud Plaintiff. This common course of conduct included Defendants omitting information from Plaintiff. The omission of facts set forth herein were material. 123. Defendants knew the omissions of facts set forth herein were false. Alternatively, Defendants acted with reckless disregard of the omissions of fact. Defendants omitted facts as set forth herein with the intent to induce Plaintiff to rely on Defendants. Furthermore, Defendants omitted facts as set forth herein with the intent of gaining their own financial advantage to the disadvantage of Plaintiff. Plaintiff relied upon the omission of facts set forth herein. Plaintiff's reliance on these omissions of facts was reasonable and justifiable. 124. The amount of such losses will be determined according to proof at trial. The wrongful acts of Defendants set forth in this Count were done maliciously, oppressively, and with Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 21 the intent to mislead and defraud, and Plaintiff is entitled to punitive and exemplary damages to be ascertained according to proof, which is appropriate to punish and set an example of Defendants. Accordingly, Plaintiff requests that exemplary damages be awarded against the Defendants in a sum within the jurisdictional limits of the Court. COUNT ELEVEN: FRAUD BY MISREPRESENTATION 125. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 126. By reason of Plaintiff's reliance on Defendants’ representations of material facts described above, Plaintiff has been damaged in an amount within the jurisdictional limits of the Court. 127. Defendants employed a common course of conduct to defraud Plaintiff. This common course of conduct included Defendants intentionally misrepresenting information to the Plaintiff. The misrepresentations of facts set forth herein were material. 128. Defendants knew the misrepresentations set forth herein were false. Alternatively, Defendants acted with reckless disregard whether the representations set forth herein were true. Defendants misrepresented facts as set forth herein with the intent to induce Plaintiff to rely on Defendants. Furthermore, Defendants misrepresented facts as set forth herein with the intent of gaining their own financial advantage to the disadvantage of Plaintiff. Plaintiff relied upon the misrepresentations of facts set forth herein. Plaintiff's reliance on these representations of facts was reasonable and justifiable. 129. The amount of such losses will be determined according to proof at trial. The wrongful acts of Defendants set forth in this Count were done maliciously, oppressively, and with the intent to mislead and defraud, and Plaintiff is entitled to punitive and exemplary damages to Plaintiff's Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction- Page 22 be ascertained according to proof, which is appropriate to punish and set an example of Defendants. Accordingly, Plaintiff requests that exemplary damages be awarded against the Defendants in a sum within the jurisdictional limits of the Court. COUNT TWELVE: CONSTRUSTIVE TRUST 130. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 131. As set forth above, Plaintiff has been damaged by Defendants due to the breach of a special trust, fiduciary relationship, and fraud. 132. Defendants will be unjustly enriched by their conduct in obtaining and keeping Plaintiff's business and monies obtained from Plaintiff's customers. There is identifiable property as Defendants’ monies that have been converted from Plaintiff are particular and specifically identified as property that rightfully belongs to Plaintiff. A constructive trust must be put over Plaintiff's property that has been obtained by Defendants to prevent the unjust enrichment of Defendants. COUNT THIRTEEN: CONVERSION, TRESPASS TO CHATTELS, THEFT OF PROPERTY, AND VIOLATIONS OF THE TEXAS THEFT LIABILITY ACT 133. Plaintiff incorporates all the preceding paragraphs as if they were set forth in their entirety herein. 134. Defendants unlawfully appropriated, secured, or stole personal property belonging to the Plaintiff and to which Plaintiff had a possessory right. The unlawful taking was made with the intent to deprive Plaintiff of the property and was made without Plaintiff's consen