When Houston mass tort lawyer Clayton Clark was sued over an advertising contract dispute, he went looking for the best trial counsel he could find and choose two from either side of the bar to represent him: plaintiffs lawyer Jim Perdue Jr. and defense attorney Alistair Dawson.
And that pair turned out to be a formidable combination because, when it came time to try the case on May 2 after three years of litigation, the plaintiff didn’t bother to show up at the Harris County courthouse, sending his attorneys in his stead to nonsuit the case.
“It was a lot of fun to work with people that I respect and it was an honor to bring it to a head. It would have been a heck of a case to try,’’ said Perdue, a partner in Houston’s Perdue & Kidd who is a personal injury attorney.
Dawson also regretted that the case settled because he’d always wanted to try a case with Perdue, who he counts as a good friend.
“It’s the first time we’ve worked together,” said Dawson, a partner in Houston’s Beck Redden who defends businesses in commercial litigation. “We brought different skills to the table, and I was really disappointed we didn’t get to trial because I really wanted to watch Jim and work with him.’’
Their client, Clayton Clark and his law firm Clark, Love & Hutson, represent plaintiffs claiming injury from pharmaceutical drugs and devices. Clark and his firm spend substantial money running television advertisements for their legal services. They were sued in 2015 by Keith Cohn, an advertising and marketing consultant who claimed he had an oral contract with Clark—first charging him 15 percent of the advertising cost, which Cohn later reduced to a 12 percent commission.
Cohn claimed that Clark ultimately offered him another deal: if Cohn would reduce the up-front commission to 8 percent, Clark would pay him a bonus worth four times Cohn’s normal fee when cases brought in through Cohn’s advertising settled.
Cohn also contended that he had a deal to locate investors in Clark’s advertising campaigns in exchange for 1 percent of any fees earned by Clark from clients obtained through the advertising campaigns.
But Perdue and Dawson convinced Tad Halbach, judge of Harris County’s 333rd District Court, that the finder’s fee arrangement that Cohn claimed he had with Clark was illegal because attorneys are not allowed to split their fees with non-lawyers—a ruling that survived an appeal to Houston’s First Court of Appeal in 2016.
And Perdue and Dawson later submitted proposed findings of fact and conclusions of law that the changing deals Cohn supposedly had with Clark didn’t make any business sense, and that the oral deal never happened.
“The plaintiff claims the oral contract was formed on Nov. 1, 2010, at Mr. Clark’s office here in Houston. And what they didn’t know was Mr. Clark wasn’t in his office that day and wasn’t even in Houston. So, our first position was there wasn’t any agreement,” Dawson said.
“And the proposed agreement makes no sense,” Dawson said of the argument that Clark owed him $1.8 million in advertising bonuses.
“What he was saying was: ‘I normally would charge you 12 percent commission. I agree to reduce it to 8 percent, and you agreed to give me a bonus of 48 percent when the cases settle.’ If you do the math and spend, say, $100,000 on advertising, he would normally get $12,000 in commission. He agrees to cut it to $8,000, but in the end he’s going to get $48,000?” Dawson said. “No sane, rational person would make that deal, and Mr. Clark did not make that deal.’’
Cohn was ultimately paid $750,000 by Clark based on a flat fee, Perdue said.
“I think our proposed findings of fact and conclusions of law let them know they were in an impossible situation,” Perdue added.
Perdue noted that less than two weeks before the May 2 trial day, the plaintiff asked for a delay after realizing they had not made a jury demand in their case—a motion that was denied.
“We were pushing for a trial, and they kept throwing furniture in front of the freight train that just kept coming,’’ Perdue said.
And on the May 2 trial date, Cohn’s lawyers agreed to dismiss his case with prejudice in exchange for Clark dropping a declaratory judgment motion seeking the court to declare their deal never existed.
John Neese, an attorney with Houston’s Meade & Neese who represents Cohn, did not return a call for comment.
“I’m pleased for my client and with the result,’’ Dawson said. “I wanted to try the case, but they offered victory so you’ve got to take victory.’’