                                                                                              ACCEPTED
                                                                                          05-18-01160-CV
                                                                                FIFTH COURT OF APPEALS
                                                                                          DALLAS, TEXAS
                                                                                       11/28/2018 3:17 PM
                                                                                               LISA MATZ
                                                                                                   CLERK

                              No. 05-18-01160-CV

                                                                        FILED IN
                    IN THE FIFTH COURT OF APPEALS                5th COURT OF APPEALS
                   FOR THE FIFTH DISTRICT OF TEXAS                    DALLAS, TEXAS
                               AT DALLAS                         11/28/2018 3:17:13 PM
                                                                        LISA MATZ
                                                                          Clerk


                   Richard Gehrke and Pacific Companies, Inc.,

                                                                  Appellants,

                                       v.

                      Merritt Hawkins and Associates, LLC,

                                                                 Appellee.


 APPELLANTS’ REPONSE TO APPELLEE’S EMERGENCY MOTION TO ENFORCE


                                     John Barber (Motion for Admission Pro Hac Vice
                                     Pending)
                                     Elisaveta Dolghih
                                     State Bar Number: 24043355
                                     Jason A. Powers
                                     State Bar Number: 24027745
                                     LEWIS, BRISBOIS, BISGAARD & SMITH, LLP
                                     2100 Ross Ave., Suite 2000
                                     Dallas, Texas 75201
                                     Telephone: (214) 722-7108
                                     Facsimile: (214) 722-7111
                                     John.Barber@lewisbrisbois.com
                                     Leiza.Dolghih@lewisbrisbois.com
                                     Jason.Powers@lewisbrisbois.com

                                     ATTORNEYS FOR APPELLANTS




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         COME NOW, Appellants, Richard Gehrke (“Gehrke”) and Pacific Companies, Inc.

(“Pacific”) and file this Response to Appellee’s Emergency Motion to Enforce and will respectfully

show this Honorable Court the following:

         I.        OBJECTIONS TO THE DECLARATION OF TRAVIS SINGLETON

         1.        Appellants object to paragraph 9. This information is hearsay. There is no foundation

as to how Singleton gained this knowledge since he does not testify that he personally attended the

conference.

         2.        Appellants object to paragraph 15. This information is hearsay. There is no

foundation as to how Singleton gained this knowledge since he does not testify that he personally

attended the conference.

         3.        Appellants object to paragraph 22. This information is hearsay. There is no

foundation as to how Singleton gained this knowledge since he does not testify that he personally

attended the conference.

         4.        Appellants object to paragraph 23. This information is hearsay. There is no

foundation as to how Singleton gained this knowledge since he does not testify that he personally

attended the conference.

         5.        Appellants object to paragraph 24. This information is hearsay. There is no

foundation as to how Singleton gained this knowledge since he does not testify that he personally

attended the conference.

         6.        Appellants object to paragraph 25. This information is hearsay. There is no

foundation as to how Singleton gained this knowledge since he does not testify that he personally

attended the conference.




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         7.         Appellants object to paragraph 26. This information is hearsay. There is no

foundation as to how Singleton gained this knowledge since he does not testify that he personally

attended the conference.

         8.         Appellants object to paragraph 27. This information is hearsay and speculation. There

is no foundation as to how Singleton gained this knowledge since he does not testify that he

personally attended the conference. Further, there is no foundation and pure speculation that the

“conferences require attendees to network” or that the “attendees walk among the vendor booths 3-4

times a day”.

         9.         Appellants object to paragraph 29. This information is a mischaracterization of the

prohibitions under the Temporary Injunction. Gehrke solicits healthcare facilities for searches for

physicians. While at Merritt Hawkins, he solicited only for permanent placement of physicians.

Once the healthcare organization contracts with Pacific Companies for the search, then the client is

handed off to a recruiter to find a doctor suitable for the position. This video was shared by Gehrke

and seeks a gastroenterologist for a search contract that Pacific had pre-dating the Temporary

Restraining Order. It is not soliciting a healthcare organization. The video is located at

https://www.youtube.com/watch?v=4cGfUvYRPWA. It is soliciting a doctor for an existing search,

something that is not prohibited.

       II.         RESPONSE TO APPELLEE’S EMERGENCY MOTION TO ENFORCE

               A. Attendance of industry conferences does not violate temporary injunction and
                  there is no emergency as Gehrke’s attendance happened several weeks ago.

         10.        Appellee files its motion seeking this Court to instruct the trial court to hear its

Motion to Enforce a temporary injunction. Appellee’s Motion is baseless.




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         11.       Appellee complains that Gehrke’s attendance of 3 industry conferences that the

hospitals that he is prohibited from soliciting also allegedly attended is a violation of the Temporary

Injunction.

         12.       The Missouri Primary Care Association Conference (MPCA) was held on October

25-28, 2018 and had 347 registered attendees.            Appellee contends there were 15 prohibited

customers at the conference.

         13.       Appellee does not point to any evidence that (a) the 15 prohibited customers actually

attended the conference; (b) that Rich Gehrke or anyone from Pacific spoke to them; (c) that Rich

Gehrke solicited or attempted to solicit these customers for permanent placement of physicians; or

(d) that there was any interaction among the prohibited customers and Rich Gehrke whatsoever.

         14.       This conference was held over one month ago.

         15.       The Missouri Hospital Association’s Annual Conference (MHA) was held on

November 8-9, 2018 and had 1042 registered attendees.               Appellee contends there were 15

prohibited customers at the conference.

         16.       Appellee does not point to on instance where (a) the 15 prohibited customers actually

attended the conference; (b) that Rich Gehrke or anyone from Pacific spoke to them; (c) that Rich

Gehrke solicited or attempted to solicit these customers for permanent placement of physicians; and

(d) that there was any interaction among the prohibited customers and Rich Gehrke whatsoever.

         17.       This conference was held 14 days before Appellees filed this emergency request.

         18.       The Illinois Staff Physician Recruiters Conference (ISPR) was held on November 14-

16. There were 65 registered attendees. Appellee contends 2 prohibited customers attended the

conference.




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         19.       Appellee does not point to on instance where (a) the 2 prohibited customers actually

attended the conference; (b) that Rich Gehrke or anyone from Pacific spoke to them; (c) that Rich

Gehrke solicited or attempted to solicit these customers for permanent placement of physicians; and

(d) that there was any interaction among the prohibited customers and Rich Gehrke whatsoever.

         20.       This conference was held 6 days before Appellee filed this emergency motion.

         21.       Appellee has made these same allegations in its Motion to Leave to Supplement filed

in the trial court on November 19, 2018.

         22.       Appellee’s Motion is far from an emergency and based solely on speculation and a

misconstruing of the Temporary Injunction. There is not one scintilla of evidence showing that

Gehrke or Pacific Companies, Inc. solicited any prohibited employees for permanent placement.

         23.       Further, Appellee misrepresents the scope of the Temporary Injunction. Appellee

states that “The TI Order is clear that Gehrke may not solicit customers on the Prohibited Customer

List for any type of physician recruitment activity, whether it is for locum tenens or permanent

physician placement.” ¶ 21 of Appellee’s Motion. In fact, the temporary injunction does not prohibit

locum tenens solicitation, i.e. temporary placement.

         24.       In fact, it would be impossible for the Court to prohibit locum tenens solicitation by

Gehrke since locum tenens is not handled by Merritt Hawkins, but is handled by a separate company

– Staff Care. Therefore, there never was any prohibition from Gehrke soliciting locum tenens after

he left Merritt Hawkins.

               B. Posting of a YouTube recruiting advertisement on LinkedIn does not violate the
                  temporary injunction and there is no emergency as the video was originally
                  posted on October 1, 2018.

         25.       Appellee attempts to further expand the Temporary Injunction by asserting that

Gehrke is prohibited from sharing a video advertising a physician position opening. However, this

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video is not solicitation of hospital organizations. It is an advertisement of an existing job opening at

a hospital.

         26.        While at Merritt Hawkins, Gehrke solicited hospitals only for permanent placement

of physicians. At Pacific, he solicits hospitals for both permanent placements and locum tenens

placement. Gehrke’s job is to solicit healthcare organizations that are looking for physicians. He is

not a recruiter – a person who actively looks for candidates to fill an open physician position at a

hospital. Indeed, Gehrke has never been a recruiter and physician recruiting is outside Gehrke’s

wheelhouse. The video that Gehrke shared seeks a gastroenterologist for a pre-existing search

contract that Pacific had pre-dating the Temporary Restraining Order. It is not a solicitation of a

healthcare organization. Furthermore, the video was posted on YouTube on October 1, 2018 at

https://www.youtube.com/watch?v=4cGfUvYRPWA. It is a general advertisement soliciting a doctor

for an existing physician search – something that is not prohibited by the temporary injunction order.

         27.       There is no evidence that Appellants have violated the Temporary Injunction. Simply

attending a conference where hundreds of non-prohibited potential customers attend is not prohibited

by the Temporary Injunction. Appellee’s interpretation is that Rich Gehrke could not attend any

conference, in the world, in which a prohibited customer is also a registered attendee. That is

unreasonable and is a misinterpretation and misrepresentation of the prohibitions set forth in the

Temporary Injunction.

                                             III.    PRAYER

         WHEREFORE, PREMISES CONSIDERED, Appellants pray that this Honorable Court deny

Appellee’s Emergency Motion to Enforce.




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                                                Respectfully Submitted:




                                                _________________________________
                                                John Barber (Motion for Admission Pro Hac Vice
                                                Pending)
                                                Elisaveta Dolghih
                                                State Bar Number: 24043355
                                                Jason A. Powers
                                                State Bar Number: 24027745
                                                LEWIS, BRISBOIS, BISGAARD & SMITH, LLP
                                                2100 Ross Ave., Suite 2000
                                                Dallas, Texas 75201
                                                Telephone: (214) 722-7108
                                                Facsimile: (214) 722-7111
                                                John.Barber@lewisbrisbois.com
                                                Leiza.Dolghih@lewisbrisbois.com
                                                Jason.Powers@lewisbrisbois.com




                                        CERTIFICATE OF SERVICE


       This shall verify a true and correct copy of the above and foregoing document has been
provided to the following counsel of record on this the November 28, 2018.

              John C. C. Sanders, Jr.
              Thomas M. Melsheimer
              Hayden L. Duffy
              WINSTON & STRAWN, LLP
              2121 N. Pearl Street, Suite 900
              Dallas, Texas 75201
              jsanders@winston.com
              tmelsheimer@winston.com
              hduffy@winston.com




                                                       ____________________________
                                                       Jason A. Powers


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