2 CIT/ ESERVE
`
`CAUSE NO.
`
`DC-24-08094
`
`FILED
`6/4/2024 3:58 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Cheryl Watts DEPUTY
`
`IN THE DISTRICT COURT
`
`§
`§
`
`8 §
`
`RTAE HOLDINGS LLC, RYAN
`TRIMBERGER, AND AARON
`EBERTOWSKI,
`
`Plaintiffs,
`
`v.
`
`191st
`
`JUDICIAL DISTRICT
`
`DALLAS COUNTY, TEXAS
`
`§ §
`
`§ §
`
`§
`§
`§
`FOCUS INVESTMENT BANKING LLC,
`FOCUS SECURITIES LLC, AND MANAN §
`SHAH,
`
`Defendants.
`
`§
`
`PLAINTIFFS’ ORIGINAL PETITION
`
`Plaintiffs RTAE Holdings LLC (“RTAE”), Ryan Trimberger, and Aaron Ebertowskifile
`
`this Original Petition against Defendants FOCUS Investment Banking LLC, FOCUSSecurities
`
`LLC (collectively, “FOCUS”), and Manan Shah (collectively “Defendants”) and would
`
`respectfully show the Court as follows:
`
`I.
`SUMMARYOF THE CASE
`
`Stratum Technology Management, LLC (“Stratum”) and its members decidedto sell their
`
`cloud management company. They hired Defendants FOCUS Investment Banking and FOCUS
`
`Securities, and their Managing Director Manan Shah,inaseller-side engagementto assist in the
`
`marketing and sale of their company. Plaintiff Trimberger executed an exclusive seller-side
`
`engagement agreement with FOCUS,believing that FOCUS would abide byits contractual and
`
`fiduciary duties and work in the best interests of the Plaintiffs. In exchange, under the agreement,
`
`FOCUS received a $8,000 monthly fee plus a 5% success fee based on the transaction value.
`
`PLAINTIFFS’ ORIGINAL PETITION
`
`Page 1
`
`

`

`Eventually, with FOCUS’s seller-side involvement, Stratum was sold to Open Systems
`
`Technologies (“OST”), a subsidiary of Koniag, Inc. (“Koniag’’), and Plaintiffs paid FOCUS more
`
`than $500,000 in connection with the transaction.
`
`Unbeknownstto Plaintiffs, however, at the same time that FOCUSand Shah were supposed
`
`to be representing Plaintiffs’ best interests in the sale of Stratum to OST, FOCUSand Shah had a
`
`concurrent buy-side engagement with OST’s parent company Koniag. In a breach of duties owed
`
`to Plaintiffs, FOCUS and Shah allowed this material, undisclosed conflict-of-interest to infect the
`
`sale of Stratum to Koniag’s subsidiary OST. Because ofthis breach, Stratum will never know what
`
`kind of terms it could have negotiated with a truly independent and exclusive seller-side advisor.
`
`Making matters worse, Shah secretly negotiated its approximately half-million-dollar
`
`success fee to be paid by Stratum instead of FOCUS’s otherclient, Koniag, without ever informing
`
`Stratum that the issue of what party should bear the cost of the success fee was up for negotiation.
`
`These misdeeds followed in the wake of another error Shah made negotiating a non-
`
`disclosure agreement with one of Stratum’s suitors. This error permitted the suitor to poach
`
`Stratum’s Chief Technology Officer without recourse. To Stratum’s detriment,
`
`the Chief
`
`Technology Officer was poached right before Stratum wasset to close a much morevaluable sale
`
`transaction to a different buyer. FOCUS’s error left Stratum with no recourse against the poacher.
`
`Instead, Shah steered Stratum to its preferred buyer and concurrent client, Koniag, on a
`
`deal that was less favorable to Stratum, but benefited FOCUSandits other client. RTAE and its
`
`owners now bringthis lawsuit to right these egregious wrongs.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v]
`
`Page 2
`
`

`

`II.
`PARTIES
`
`1.
`
`Plaintiff RTAE is a Texas limited liability company with its principal place of
`
`business in Dallas, Texas. As of December 31, 2021, RTAE wholly owned Stratum. RTAE’s
`
`members are Plaintiff Ryan Trimberger, Plaintiff Aaron Ebertowski, and The Trimberger 2018
`
`Irrevocable Trust.
`
`2.
`
`3.
`
`4.
`
`Plaintiff Ryan Trimberger is an individual whoresides in Dallas, Texas.
`
`Plaintiff Aaron Ebertowski is an individual who resides in Weston Lakes, Texas.
`
`Defendant FOCUSInvestment Banking LLCis a Georgia limited liability company
`
`with its principal office in Atlanta, Georgia. FOCUS Investment Banking LLC may be served
`
`through its Registered Agent, Jonathan Wilfong, at 3353 Peachtree Road NE,Suite 1160, Atlanta,
`
`GA,30326, or wherever he may be found.
`
`5.
`
`Defendant FOCUS Securities LLC is a Georgia limited liability company with its
`
`principal office in Atlanta, Georgia. FOCUSSecurities LLC may be served through its Registered
`
`Agent, Jonathan Wilfong, at 3353 Peachtree Road NE, Suite 1160, Atlanta, GA, 30326, or
`
`wherever he maybe found.
`
`6.
`
`Defendant Manan Shahis an individual who, upon information and belief, resides
`
`in the Washington, DC metroarea.
`
`Il.
`
`MONETARYRELIEF
`
`7.
`
`Plaintiffs seek monetary relief in excess of $1,000,000.
`
`IV.
`
`DISCOVERY LEVEL
`
`8.
`
`Plaintiffs intend to conduct discovery pursuant to Level 3 Discovery Control Plan
`
`under Tex. R. Civ. P.190.4.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v 1
`
`Page 3
`
`

`

`Vv.
`JURISDICTION
`
`9.
`
`This Court has jurisdiction over the subject matter of this case because the amount
`
`in controversy is within the jurisdictional limits of the Court.
`
`10.
`
`Personaljurisdiction is proper over Defendants because Defendants did business in
`
`Texas by entering into contracts with Texas residents to provide services in whole or in part in
`
`Texas. Personal jurisdiction is also proper over Defendants because Defendants, including Shah,
`
`committed torts against Texas residents and directed such conductat Plaintiffs in Texas.
`
`VI.
`VENUE
`
`11.
`
`Pursuant to Texas Civil Practice & Remedies Code § 15.002(a)(1), venue is proper
`
`in this Court because all or a substantial part of the events, acts and omissions giving rise to the
`
`causes of action stated herein occurred in Dallas County, Texas. In the alternative, venue is proper
`
`in this Court pursuant
`
`to Texas Civil Practice & Remedies Code § 15.002(a)(4) because
`
`subsections 15.002(a)(1) to (3) do not apply, and Dallas County is where one or more of the
`
`Plaintiffs resided at the time of the accrual of the causes of actions asserted herein.
`
`VIL.
`
`FACTUAL BACKGROUND
`
`12.
`
`In 2020, Bank of America Merrill Lynch’s Private Sales — Middle Market
`
`Investment Banking division referred Trimberger to FOCUSfor a contemplated sale of Stratum,
`
`a company Trimberger owned alongside Ebertowski.
`
`13.
`
`On or about September 21, 2020, Trimberger — as President of Stratum — engaged
`
`Manan Shah of FOCUSasthe Seller’s exclusive financial advisor for the contemplated sale of
`
`Stratum.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v]
`
`Page 4
`
`

`

`14.
`
`Stratum agreed to pay FOCUSan engagement fee of $8,000 per month, as well as
`
`a success fee equal to 5% of the transaction value.
`
`15.
`
`Thereafter, Stratum’s ownership was
`
`reorganized and, pursuant
`
`to
`
`the
`
`reorganization, RTAE wholly ownedStratum.
`
`16.
`
`In July 2021, Stratum was days away from closing on a transaction with a different
`
`buyer whenall of a sudden Stratum’s Chief Technology Officer was poachedby a prior suitor of
`
`Stratum.
`
`17.
`
`18.
`
`FOCUS,through Shah, had introduced Stratum to the poacher.
`
`Stratum disclosed this to the other buyer, and the other buyer immediately
`
`terminated negotiations and did not close the purchase transaction.
`
`19. When Stratum asked FOCUS for
`
`the Non-Disclosure and Confidentiality
`
`Agreement FOCUS executed with the poacher on behalf of Stratum, Trimberger and Ebertowski
`
`were shocked to learn that Shah agreed to a provision that permitted the poacher to hire away
`
`Stratum employees whom they met during due diligence.
`
`20.
`
`This was a gross departure from industry standards and a clear breach of the duties
`
`owed by Focus and Shahto Plaintiffs.
`
`21.
`
`As a result of this error, Trimberger and Ebertowski were forced to hire counselat
`
`substantial expense.
`
`22.
`
`On December 31, 2021, RTAE sold Stratum to Open Systems Technologies DE,
`
`LLC, now known as Vervint, LLC (“OST” or “Vervint’).
`
`23.
`
`The Vervint deal was approximately $5.0 million less valuable than the other deal
`
`Plaintiffs lost.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v 1
`
`Page 5
`
`

`

`24.
`
`Unfortunately, Vervint defrauded RTAE, Trimberger, and Ebertowski, violated
`
`post-closing operational covenants eliminating an Earnings Holdback and Earnout valued at $6.0
`
`million, and breached the related promissory note which still has an unpaid balance of
`
`approximately $2.0 million.
`
`25.
`
`RTAE, Trimberger, and Ebertowski have hired counsel and initiated litigation
`
`against Vervint at substantial expense as a result of the foregoing events.
`
`26.—In the litigation with Vervint, Plaintiffs issued a subpoena for records to FOCUS.
`
`27.
`
`FOCUSproduced over 340,000 pages of documents to Plaintiffs in response to the
`
`subpoena, including many documents that appear confidential in nature and have norelation to the
`
`dispute between Plaintiffs, Vervint, Koniag, and FOCUS.
`
`28.|None of the documents, however, were produced subject to any confidentiality
`
`protections.
`
`29.
`
`Upon review of the documents produced, Plaintiffs learned for the first time that
`
`FOCUSand Shah have concealed material facts from Plaintiffs indicating that the Defendants
`
`played a biggerrole in the fraud than waspreviously understood.
`
`30.
`
`Prior to the sale to OST and without Stratum’s knowledge, OST was working on a
`
`strategic initiative to focus OST more heavily on becoming a professional IT consultancy,
`
`including by offering Epic on Azure in the healthcare industry, and less heavily on Stratum’s cloud
`
`services.
`
`31.|Unbeknownst to Stratum, Mitch Prust — who worked at OST during due diligence
`
`but now works for FOCUS — had “been doing business with Focus as a client for years.”
`
`(https://focusbankers.com/team/mitch-prust/).
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v 1
`
`Page 6
`
`

`

`32.
`
`Also unbeknownst to Stratum, OST’s ultimate parent company Koniag also had
`
`approached FOCUSand Shah on behalf of OST before the transaction and asked FOCUSfor help
`
`locating cloud companies that OST could acquire as part of its healthcare IT consultancyinitiative.
`
`33.
`
`FOCUShad been courting Koniag’s buy-side investment banking businesssinceat
`
`least 2015, which Stratum did not know.
`
`34.
`
`In January 2021, FOCUS’s efforts to court Koniag’s buy-side investment banking
`
`businessstarted to pay off when Koniag and FOCUSbegan discussing a buy-side engagement.
`
`35.
`
`On January 8, 2021, Ron Unger, Koniag’s Chairman and CEO, emailed Shah,
`
`informing him that Koniag “may be interested in hiring a firm to help [Koniag] find acquisition
`
`targets that could either roll into our subsidiary [OST] or complement OST alongside it. Does
`
`FOCUSoffer these services?”
`
`36.
`
`Shah responded: “Wehave a very strong buyside program here at FOCUS and have
`
`completed a numberof very successful buyside transactions over the years. ... [W]e can certainly
`
`assist you with your objectives here. I’m happy to schedule a call with your team and walk you
`
`through our process, capabilities and experience as a next step and also learn more about your
`
`specific acquisition objectives for OST.”
`
`37.
`
`Shortly thereafter, FOCUS and Koniag scheduled a call, during which FOCUS
`
`pitched Koniag on the buy-side engagement.
`
`No one ever disclosed this information to Trimberger and Ebertowsk1.
`
`FOCUSalso provided Koniag with a list of client references, which Koniag
`
`38.
`
`39,
`
`checked.
`
`40.
`
`On February 22, 2021, Koniag and FOCUSheld another conference call to discuss
`
`entering into a buy-side engagement.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v]
`
`Page 7
`
`

`

`No one ever disclosed this information to Trimberger or Ebertowsk1.
`
`After the call, Shah sent Koniag a draft engagement
`
`letter for the buy-side
`
`41.
`
`42.
`
`engagement.
`
`43.
`
`Like Stratum’s sell-side engagement, FOCUSagreed to act as Koniag’s exclusive
`
`financial advisor in connection with its purchase.
`
`44,
`
`Also,
`
`like Stratum’s sell-side engagement with FOCUS,
`
`the draft buy-side
`
`engagement agreement between Koniag and FOCUSincluded an engagement fee of $8,000 per
`
`month, as well as a successfee.
`
`45.
`
`The success fee was equal to 5% of transaction value up to $5.0 million, plus 4%
`
`of the next $5.0 million of transaction value, plus 3% of the next $5.0 million oftransaction value,
`
`plus 2% of the next $5.0 million of transaction value, plus 1.5% of any additional transaction value.
`
`46.
`
`On March 1, 2021, Unger asked Shah whether the buyer or seller would be
`
`responsible for the success fee if Koniag purchased a company that was concurrently being
`
`represented by FOCUSonthesell-side.
`
`47.
`
`48.
`
`Shah responded that such a scenario would occur “by mutual agreement only.”
`
`Even though Shah apparently knew Trimberger and Ebertowski’s informed consent
`
`would be required, FOCUSneverdisclosed this clear conflict-of-interest or sought their agreement
`
`for the joint-representation.
`
`49.
`
`Shah also told Unger that FOCUS “would bepaid by sellers if [Koniag] were to
`
`pursue any of [Focus’s] sell side clients.”
`
`50.
`
`Unger agreed and asked Shahto revise the Koniag buy-side agreement to ensure it
`
`reflected “no buy-side success fee if FOCUSsell-side client,” which Shah also did without
`
`notifying Trimberger or Ebertowski or obtaining their consent.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v]
`
`Page 8
`
`

`

`51.
`
`On March 4, 2021, Unger executed the Koniag/FOCUS buy-side engagement,
`
`which included a provision stating that “[iJn the event a Transaction occurs where FOCUSis
`
`representing the seller as a party to the Transaction, no Success Fee will be due by the Company
`
`to FOCUSfor such Transaction.”
`
`52.
`
`53.
`
`Once again, no one ever disclosed this information to Trimberger or Ebertowski.
`
`One of FOCUS’s other Directors, Abe Garver, had also been courting Koniag’s
`
`buy-side business for years, which Trimberger and Ebertowski did not know.
`
`54. When Garver found out that Shah signed a buy-side engagement with FOCUS,
`
`Garver becameupset that Shah was receiving credit for the engagement.
`
`55.
`
`Garver raised the issue with FOCUS’s Chief Executive Officer Rick Thomas and
`
`Shah.
`
`56.
`
`The issue was not resolved in a mannerthat satisfied Garver.
`
`57.
`
`Regarding Shah, Garver wrote to Rick Thomas on March 14, 2021:
`
`As I mentionedin the text to you and John I feel like a victim of a multi-year sexual
`assault — and I need to draw a boundary with my abuser. He numberis blocked
`from my phone. It is not safe for me to have another conversation with him without
`a 3rd party participating. I don’t want you to be disappointed in me — but I don’t
`think you'd ask a victim of a multiyear sexual assault to try and build a bridge with
`her abuser for 10 minutes let alone 2 months.
`... It’s not relevant to the sexual
`assault survivor how great his abuser is with his kids, family, or philanthropic with
`other parties. ... I will not be abused by Mananeveragain. Period end of sentence.
`Not for you, not for anyone. If I need to disappear and go away from FOCUS to
`feel safe — I accept that outcome. I am traumatized and seeing a doctor aboutthis
`on Wed. at 9:30am ET.
`
`58.
`
`59.
`
`No one ever disclosed this information to Trimberger and Ebertowski.
`
`In mid-March 2021, FOCUS and Koniag metto discuss the buy-side engagement
`
`in detail, discussing Koniag’s acquisition specifications so that FOCUS could put together a full
`
`list of targets.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v]
`
`Page 9
`
`

`

`60.
`
`In that meeting, Koniag told FOCUSthatit “plann[ed] to deploy $60 million into
`
`IT companies over the next ~1 year” and that its acquisition objections and priorities were
`
`“acquir[e] a company whoselist of customers include high-profile clients with logos that Koniag
`
`can market to its prospective clients or clients that Koniag can cross-sell its existing services to.”
`
`61.
`
`62.
`
`No one ever disclosed this information to Trimberger and Ebertowsk1.
`
`Shah informed Koniag that they were concurrently representing Stratum in market
`
`and encouraged OSTto make an offer on Stratum.
`
`63.
`
`OST made an offer, which came in muchlater than other offers, and Shah tried to
`
`convince Stratum to select OST.
`
`64.
`
`Neither Shah, FOCUS, nor OST disclosed the extent of Koniag’s relationship with
`
`FOCUSbefore the transaction or the details of OST’s IT consultancy initiative.
`
`65.
`
`Stratum did not waive this clear conflict-of-interest.
`
`66.
`
`In November 2021, the month before the Stratum transaction was set to close,
`
`FOCUSdecided to part ways with Shah, apparently because there were issues every year with his
`
`behavior, including other FOCUS bankers not wanting to work with him, Shah’s disregard of rules,
`
`Shah’s refusal to properly train staff, and Shah’s refusal to properly mentor other bankers.
`
`67.|Upon information and belief, the issue with Abe Garver regarding credit for the
`
`Koniag buy-side engagement wasalso a factor in FOCUS’s decision to part ways with Shah.
`
`68.
`
`FOCUS knew that Shah would immediately set up his own shop in FOCUS’s
`
`market, possibly with Renovus Capital, regardless of whether FOCUS terminated Shah or
`
`permitted him to resign.
`
`69.
`
`Shah resigned in November 2021 and signed a severance agreement.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v 1
`
`Page 10
`
`

`

`70.
`
`When Shahresigned, George Shea, another Director at FOCUS,called Trimberger
`
`to inform him.
`
`71.
`
`Shea falsely told Trimberger that Shah resigned in order to leave the banking
`
`industry and start a technology company.
`
`72.
`
`In reality, Shah set up shop as a partner at Renovus Capital just like FOCUS knew,
`
`and predicted, he would.
`
`73.
`
`74,
`
`Ultimately the Stratum/OSTtransaction closed on December 31, 2021.
`
`Both OST and FOCUSknewthatthis transaction provided significant value to OST
`
`other than through Stratum’s cloud services offerings.
`
`75,
`
`First, OST bought Stratum’s Azure Expert MSPcertification and Microsoft-led
`
`Epic on Azure training, neither of which OST had or could obtain without spending millions of
`
`dollars.
`
`76.
`
`Second, OST avoided the expense of obtaining three specific ISO certifications for
`
`nearly $10.0 million.
`
`77.
`
`Third, OST was able to leverage Stratum’s status as an approved Microsoft
`
`Consulting Services (“MCS”) contractor to become an approved subcontractor for MCS.
`
`78.
`
`Stratum’s Azure Expert MSPstatus, Epic on Azure training, and status as an MCS
`
`contractor provided a material benefit to OST’s professional IT consulting and general IT support
`
`business lines, which RTAE saw nobenefit from.
`
`79,
`
`And fourth, OST absorbed Stratum, a competitor with Epic on Azure experience,
`
`and kept Stratum away from Cognizant and Accenture, its only major competitors in this space at
`
`the time.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v]
`
`Page 11
`
`

`

`80.
`
`Unlike OST and FOCUS, Stratum did not know the extent to which this transaction
`
`provided significant value to OST other than through Stratum’s cloud services offerings.
`
`81.
`
`If Stratum had known what OST and FOCUS knew,it would not have sold to OST,
`
`and it would not have done so on the terms FOCUShelpednegotiate.
`
`82,
`
`After the Stratum transaction closed in December 2021, consistent with the Koniag
`
`buy-side agreement, and true to Koniag’s plan to acquire more IT companies — which would result
`
`in additional success fees being paid to FOCUS — Koniag, OST, and FOCUScontinuedto hold
`
`regular check-in meetings and closely track acquisition targets in the IT sector.
`
`VILL.
`
`CAUSES OF ACTION
`
`Breach of Fiduciary Duty
`
`Plaintiffs incorporate by reference all
`
`the factual allegations contained in the
`
`A.
`
`83.
`
`preceding paragraphs.
`
`84.
`
`85.
`
`86.
`
`Defendants owed Plaintiffs fiduciary duties as their exclusive financial advisor.
`
`Defendants materially breached their fiduciary duties.
`
`As a direct and proximate result of Defendants’ breaches of fiduciary duties,
`
`Plaintiffs have suffered damages in excess of the minimum jurisdictional limits of this Court and
`
`are entitled to recover their damages from Defendants.
`
`B.
`
`87.
`
`Negligence
`
`Plaintiffs incorporate by reference all
`
`the factual allegations contained in the
`
`preceding paragraphs.
`
`88.
`
`Defendants owed Plaintiffs duties of care as their exclusive financial advisor.
`
`89,
`
`Defendants materially breached their duties.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v 1
`
`Page 12
`
`

`

`90.
`
`As a direct and proximate result of Defendants’ breaches their duties of care,
`
`Plaintiffs have suffered damages in excess of the minimum jurisdictional limits of this Court and
`
`are entitled to recover their damages from Defendants.
`
`Cc.
`
`91.
`
`Gross Negligence
`
`Plaintiffs incorporate by reference all the factual allegations contained in the
`
`preceding paragraphs.
`
`92.
`
`Defendants owed Plaintiffs duties of care as their exclusive financial advisor.
`
`93.
`
`94.
`
`Defendants materially breached their duties,
`
`Defendants’ breaches, when viewed objectively and from the standpoint of the
`
`Defendants at the time of their occurrence, involved an extreme degree of risk, considering the
`
`probability and magnitude of the potential harm to others.
`
`95.
`
`Defendants had actual, subjective awareness of the risk involved, but nevertheless
`
`proceeded with conscious indifference to the rights, safety, or welfare of others.
`
`96.
`
`As a direct and proximate result of Defendants’ breaches their duties of care,
`
`Plaintiffs have suffered damages in excess of the minimum jurisdictional limits of this Court and
`
`are entitled to recover their damages from Defendants.
`
`D.
`
`Fraud
`
`97.
`
`Plaintiffs incorporate by reference all
`
`the factual allegations contained in the
`
`preceding paragraphs.
`
`98.
`
`As detailed above, Defendants made false representations,
`
`including overt
`
`misrepresentations, deliberate concealments of material fact, and were silent when they had a duty
`
`to disclose certain facts to Plaintiffs.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v]
`
`Page 13
`
`

`

`99.
`
`Defendants knew that their representations were false or, alternatively, made the
`
`representations with reckless indifference as to theirtruth.
`
`100. Defendants made these representations and acted in this manner with the intent to
`
`induce Plaintiffs into entering into an agreementto utilize Defendants’ services in connection with
`
`the sale of Stratum.
`
`101.
`
`In making their decision to enter into an agreementto utilize Defendants’ services
`
`in connection with the sale of Stratum, Plaintiffs justifiably and reasonably relied on the
`
`affirmative misrepresentations, concealments, and silence to their detriment and were damaged
`
`and fraudulently induced.
`
`102.
`
`Plaintiffs entered into and continued an agreement with Defendants.
`
`103.
`
`Plaintiffs were damaged as a result of Defendants’ fraud in an amount to be
`
`determinedattrial.
`
`F.
`
`Negligent Misrepresentation and Equitable Fraud
`
`104.
`
`Plaintiffs incorporate by reference all the factual allegations contained in the
`
`preceding paragraphs.
`
`105. Defendants had a duty to supply accurate information to Plaintiffs in connection
`
`with the sale of Stratum.
`
`106. As detailed above, Defendants supplied material information that was false to
`
`Plaintiffs, deliberately concealed material facts from them, and were silent when they had a duty
`
`to disclose in connection with the sale of Stratum with the intent that Plaintiffs rely on the false
`
`information, concealments, and silence.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v]
`
`Page 14
`
`

`

`107. Defendants negligently made these inaccurate and misleading representations to
`
`Plaintiffs with the purpose of inducing them to use Defendants’ services in connection with the
`
`sale of Stratum.
`
`108.
`
`Plaintiffs justifiably, reasonably, and detrimentally relied on Defendants’ negligent
`
`representations in connection with the sale of Stratum.
`
`109. As a direct and proximate result of Defendants’ negligent misrepresentations and
`
`equitable fraud, Plaintiffs have sustained damages in an amountto be determinedattrial.
`
`G.
`
`Aiding and Abetting Fraud
`
`110.
`
`Plaintiffs incorporate by reference all
`
`the factual allegations contained in the
`
`preceding paragraphs.
`
`111. Vervint defrauded RTAE, Trimberger, and Ebertowski in connection with the sale
`
`of Stratum.
`
`112. Defendants knew about Vervint’s fraud.
`
`113. Defendants provided Vervint substantial assistance in achievement of Vervint’s
`
`fraud.
`
`114.
`
`Plaintiffs were damaged in an amount to be determined at trial as a result of
`
`Vervint’s fraud.
`
`115. Defendants’ substantial assistance in Vervint’s fraud was a proximate cause of
`
`Plaintiffs’ damages.
`
`IX.
`
`ATTORNEY’S FEES
`
`116. Asa result of Defendants’ actions and inactions, Plaintiffs have engaged the law
`
`firm of Clark Hill PLC. All conditions precedent to Plaintiffs’ right to recover attorneys’ fees from
`
`Defendants have beensatisfied or will be satisfied priorto trial of this lawsuit.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v]
`
`Page 15
`
`

`

`117.
`
`Plaintiffs are therefore entitled to recover their reasonable attorney’s fees incurred
`
`in the prosecution of this action under the agreement between the parties and any applicable law,
`
`including Chapter 38 of the Texas Civil Practices and Remedies Code.
`
`xX.
`CONDITIONS PRECEDENT
`
`118. All conditions precedent to Plaintiff's right to assert the claims and causes ofaction
`
`in this action have occurred or have beensatisfied, waived, or excused.
`
`XI.
`PRAYER FOR RELIEF
`
`Wherefore, Plaintiffs request that Defendants be cited to appear and answerherein and that
`
`upon final hearing hereof, Plaintiffs be granted:
`
`1.
`
`2.
`
`3.
`
`4,
`
`5.
`
`6.
`
`Judgment against Defendants for an amountto be determinedattrial;
`
`Pre- and post-judgmentinterest as provided by law;
`
`Punitive damages;
`
`Recovery of Plaintiffs’ reasonable attorney’s fees and expenses incurred in
`this bringing this action;
`
`Costs of suit; and
`
`Such other and further relief to which Plaintiffs may be justly entitled.
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v]
`
`Page 16
`
`

`

`Respectfully submitted,
`
`CLARK HILL PLC
`
`Pha
`
`
`
`TATE L. HEMINGSON
`State Bar No. 24064370
`
`themingson@clarkhill.com
`901 Main St., Suite 6000
`Dallas, Texas 75202
`(214) 651-4300 (telephone)
`(214) 651-4330 (facsimile)
`
`Attorneyfor Plaintiffs
`
`PLAINTIFFS’ ORIGINAL PETITION
`467721\277478894.v 1
`
`Page 17
`
`

`

`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the personslisted below. The rules governing
`certificates of service have not changed. Filers muststill provide a
`certificate of service that complies with all applicable rules.
`
`Mary Hammett on behalf of Tate Hemingson
`Bar No. 24064370
`mhammett@clarkhill.com
`Envelope ID: 88435535
`Filing Code Description: Original Petition
`Filing Description:
`Status as of 6/9/2024 7:41 AM CST
`
`Case Contacts
`
` Mary EllenHammett P| mhammett@clarkhill.com|6/4/2024 3:58:25 PM|SENT
`
`