Anti-SLAPP action brought against Texas Children’s Hospital

By David Yates | Jan 16, 2019

HOUSTON – On Jan. 14, the law firm of Kwok Daniel and the firm Martin, Disiere, Jefferson & Wisdom jointly filed a motion to dismiss under the Anti-SLAPP provisions of Texas law for a retaliatory lawsuit brought by Texas Children’s Hopital through their lawyers at Baker Botts against Kwok Firm, and both partners, Robert Kwok and Thomas Daniel.

According to a press release, Kwok Firm and the ancillary court are victims of TCH’s retaliatory Temporary Restraining Order and lawsuit designed to strong-arm and silence free speech rights on matters of public concern, namely the death of a 17-day-old infant at Texas Children’s Hospital West Campus. Rather than express concern for the Jacot family, Texas Childern’s Hospital’s counsel Baker Botts filed suit against Kwok Firm over an alleged trademark dispute.

Just three days after Kwok Firm filed a TRO to preserve video and medical records from Texas Children’s Hospital arising from a baby fatality in the Jacot case, TCH filed their own lawsuit against Kwok Firm, and got their TRO signed at close of business on Dec. 21, the Friday before Christmas break.

The previous day, Kwok Firm had issued a press release on the Jacot story and a major news network interviewed Defendant Kwok and the Jacot family for a 10 p.m. story.  But after speaking with TCH and/or their lawyers at Baker Botts, the media elected to bury the news story, the press release states.

By TCH’s own judicial admission, the proper affiant to support TCH’s application for TRO and temporary injunction was Stacey Cook—but she was allegedly “unavailable” (contrary to her sworn testimony) to sign the affidavit on December 21, 2018. So instead, TCH directed their in-house counsel, Tina Conlon, to sign the defective affidavit before rushing to the courthouse, the release states.

Due to the late hour and impending holiday, the ancillary Court was rushed to sign the TRO because TCH’s lawyers failed to confess they had presented a defective affidavit. 

On Jan. 10, the Court dissolved TCH’s TRO, finding it “void from its inception” and based on a “defective” affidavit. And today, the Court denied TCH’s application for temporary injunction, vindicating Kwok Firm who has contended from the beginning their use of the “Broken Promise” mark (see below) was free speech linked to the Jacot news story, the release states. 

On Jan. 14, Kwok Firm & Jefferson Firm filed their joint anti-SLAPP motion shortly after the Judge denied TCH’s temporary injunction.

TCH’s frivolous claims are precisely what the Legislature intended to weed out by mandating early dismissal of strategic lawsuits against public participation (“SLAPPs”), the release states. 

Kwok Firm merely reported news of a baby’s death at TCH seeking a TRO to preserve key video evidence depicting the baby’s treatment. Rather than simply defending their conduct, consoling the Jacot family, or producing the requested video evidence, TCH retaliated with their own lawsuit against Kwok Firm.

As in any SLAPP, TCH seeks to burden Kwok Firm with wave after wave of legal filings.  TCH alleged that Kwok Firm’s use of the “Broken Promise” mark linked to the Jacot news story somehow infringed on their “promise” trademark.  However, TCH had not registered their “promise” trademark with the United States Patent Office before suing Kwok Firm, and TCH’s promise campaign ended in November 2018.  So TCH sought to protect a trademark they didn’t have for a campaign that no longer exists – a strategic lawsuit.  Moreover, Baker Botts through their public filings put the following allegedly offensive “Broken Promise” mark into the public domain five (5) times, thereby waiving any complaints against Kwok Firm:

Fortunately for Kwok Firm, Texas law offers a remedy for SLAPP victims. Immediate dismissal and a fee awards are mandatory if either (a) Kwok Firm proves any valid defense by a preponderance of the evidence or (b) TCH fails to supply “clear and specific” proof for every element of every claim. Both grounds require dismissal in this case.

Says Kwok: “It’s been a long three weeks defending our Firm and our partners from TCH’s frivolous lawsuit, strategically designed by TCH to censor free speech, stop the press and ‘chill’ our momentum on the Jacot wrongful death investigation.  We will not stop until the truth comes to light and we get the Jacot family the video evidence they deserve.”

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