Houston plaintiffs lawyer F. Kenneth Bailey Jr. secured a temporary restraining order on Nov. 18 to prevent a Las Vegas financing company from placing liens and foreclosing on collateral he provided for a financing commitment for transvaginal mesh lawsuits.
Judge Michael Landrum of the 113th District Court in Harris County signed the TRO after Bailey and F. Kenneth Bailey PC filed a lawsuit on Nov. 18 seeking declaratory relief and the TRO.
In Bailey v. Entler,Bailey and the PC allege Robert Entler of Las Vegas and Bighorn Capital Inc. have threatened to file “fraudulent liens” and to tortiously interfere with their contracts with clients if the plaintiffs failed by Nov. 18 to pay more than $7 million for loans—loans the plaintiffs allege were never funded.
“Irreparable injury to Plaintiffs and their businesses is threatened, irrespective of any remedy at law, due to Defendants’ plan to notify Plaintiffs’ lenders, clients and the Courts of the alleged default and impending liens,” Bailey and the PC allege in the original petition, request for a temporary restraining order and request for disclosure.
Neither Bailey, a founding partner in Bailey Peavy Bailey in Houston, nor his attorney, Timothy McClosky, a partner in Carrigan, McCloskey & Roberson of Houston, returned a message seeking comment.
Entler, president of Bighorn Capital, also did not return a message.
As alleged in the petition, Bailey’s PC entered into a financing commitment with Bighorn on Aug. 22, with terms calling for Bighorn to make two loans to the PC, guaranteed by Bailey, for financing of Bailey’s caseload of several thousand transvaginal mesh cases.
The plaintiffs allege the loans were subject to negotiation, execution and delivery of agreements and other documents, and the loans would be secured by fees and reimbursed expenses paid to the firm from the transvaginal mesh cases.
They also allege the commitment would become null and void if the loans were not funded within 30 days, unless both parties mutually extended the deadline.
The plaintiffs allege the commitment expired on Sept. 22 because neither loan was funded and the commitment was not extended.
“Incredibly, on November 11, 2013, Bighorn declared Bailey in default on the Financing Commitment and threatened to lien and foreclose on all of the collateral listed in the financing Commitment, including the Transvaginal Mesh product liability cases,” the plaintiffs allege in the petition.
The plaintiffs also allege the defendants threatened to notify all of plaintiffs’ lenders associated with the collateral, courts and all of Bailey’s transvaginal mesh clients about the alleged default and impending lien.
Bighorn also demanded payment of $7,523,000 “for money that was never loaned on a Financing Commitment that is void on its face,” the plaintiffs allege. The plaintiffs allege Entler told Harris Junell, one of Bailey’s partners in Bailey Peavy, that he would take action if that money was not paid by Nov. 18.
In a Nov. 11 letter to Bailey from Entler, which is attached as an exhibit to the petition, Entler alleges Bailey breached the commitment because Bailey “blatantly violated the exclusivity provisions” of the commitment and because he “intentionally failed to provide our firm with accurate financial information.”
“We plan on seeking every available remedy at this time against either the law firm and/or the guarantor and are exploring all avenues available to us to address a variety of sins committed here,” Entler wrote in the letter, in which he demanded payment of $7,523,000 for full payment of the financial commitment.
In addition to injunctive relief, the plaintiffs seek a declaratory judgment that the financial commitment is null and void.
The TRO Landrum signed on Nov. 18 prevents Entler and Bighorn from contacting any of the plaintiffs’ lenders, contacting any of plaintiffs’ clients or courts in which the plaintiffs have pending cases, or transmitting or filing any documents that “purports to create a lien or record of any debt” against Bailey, his firm and Bailey Peavy.