Houston IP lawyer Erik Osterrieder, who is facing a lawsuit filed by his former firm that alleges he “stole” confidential client information and operated his own firm on the side, filed an answer on April 17 in which he called the suit “baseless” and said sanctions are warranted against his former firm.
Osterrieder alleged that the claims of plaintiff Matthews, Lawson, McCutcheon & Joseph “fell apart” after a deposition of Terry McCutcheon, a principal in Matthews Lawson who had filed an affidavit in support of the firm’s request for injunctive relief.
He alleged in the answer that one day after the deposition, Matthews Lawson withdrew its claim for temporary injunctive relief and agreed to dissolve a temporary restraining order it had obtained on the basis of McCutcheon’s affidavit.
“This case was nothing more than a spurious attempt to impose a non-enforceable non-compete/non-solicitation agreement on an attorney, with the side benefit of making headlines that might follow Erik Osterrieder for the rest of his career,” Osterrieder, now a partner in Rao DeBoer Osterrieder in Houston, alleged in the answer.
On April 6, Matthews Lawson filed a Rule 11 agreement, also signed by a lawyer for Osterrieder, that specifies in part that Osterrieder and his firm Osterrieder LLC will immediately cease and desist from using any confidential information from Matthews Lawson and will preserve any firm information or client information he took possession of while at the firm. Also, the agreement states that Matthews Lawson will withdraw its request for a temporary injunction and because of that, a temporary restraining order issued in the litigation would dissolve.
Kenneth Breitbeil, a shareholder in McFall, Breitbeil & Eidman in Houston who represents Matthews Lawson, did not immediately return a call seeking comment.
On March 23, Mattthews Lawson alleged in a petition filed in the 164th District Court in Harris County that Osterrieder operated his own firm, Osterrieder LLC, from his office at Matthews Lawson and other locations while employed full time at Matthews Lawson. The firm alleged that Osterrieder denied on at least two occasions in 2016 that he was operating his own firm while at Matthews Lawson.
Osterrieder’s alleges in his April 17 filing that McCutcheon “admitted” during the deposition that the employment agreement Matthews Lawson was trying to enforce violates the Texas Disciplinary Rules of Professional Conduct because it tried to restrict Osterrieder’s ability to communicate with clients after he terminated his employment.
In his answer, Osterrieder alleged that other claims in the petition rely on “false sworn statements or pure speculation.” For instance, the misappropriation cause of action relies on the fact that he emailed documents to himself from work, he said. “Unfortunately, an attorney’s day often does not end at 5:00 p.m., and lawyers often work from home to complete assignments,” he wrote, noting that McCutcheon testified in the deposition that the firm had no policy forbidding work from home.
Osterrieder also wrote that Matthews Lawson blamed him, without citing any evidence, for the fact that it could not locate several client documents. “This is more of an indictment of Matthews [Lawson]‘s own filing system and incompetence, as Osterrieder did not have these files,” the answer said.
Osterrieder also said that the firm “laughingly” tried to claim he used trade secrets when he provided potential clients with a comparison between his Matthews Lawson billing rates and his new rates. He said all of his former firm’s allegations are “spiraling” toward a no-evidence motion for summary judgment.
Osterrieder generally denied the allegations, and among several affirmative defenses alleged that not only did Matthews Lawson give him permission, it knew about his other firm and did nothing about it. He also said the Matthews Lawson’s claim for fee forfeiture should be denied because the firm has not been harmed. He is seeking a take-nothing judgment.