Cause No.

CC-12-06268-C
____________________________________

DR. RICHARD MALOUF AND

IN THE DALLAS COUNTY

LEANNE MALOUF

Plaintiffs,

COURT AT LAW NO. 3

v.

MARY CANDACE EVANS, et al.

OF DALLAS COUNTY, TEXAS

Defendants.

Cause No. CC-14-01556-C

____________________________________

DR. RICHARD MALOUF

IN THE DALLAS COUNTY

Plaintiff,

COURT AT LAW NO. 3

v.

GRAHAM WOOD

OF DALLAS COUNTY, TEXAS

Defendant.

AOL AND GRAHAM WOOD'S OPPOSITION TO

PLAINTIFFS' MOTION FOR CONTINUANCE
Dr. Malouf frequents courthouses all across Texas and even beyond our borders. He
hires lawyers by the handful. As plaintiffs, he and his wife knowingly filed a lawsuit that
triggered a Texas statute that imposes mandatory sanctions and mandatory awards of attorneys'
fees from plaintiffs whose claims are dismissed. That case is now in its last days on this Courts
docket. The Dallas Court of Appeals decided that Plaintiffs' case against AOL should have been
dismissed and remanded to this Court to resolve two simple questions: (1) How much in

AOL AND GRAHAM WOOD'S OPPOSITION TO PLAINTIFFS' MOTION FOR CONTINUANCE

monetary sanctions do the Maloufs owe AOL? (2) How much in reasonable and necessary
attorneys' fees must they likewise pay? No appeal was taken to the Texas Supreme Court.
Plaintiffs sued AOL, Inc. and Graham Wood (together "AOL")along with a host of
other defendantsmore than two years ago for defamation. This Court and the Fifth Court of
Appeals have since recognized that Plaintiffs' claims have no basis, because the statements in
AOL's article about Dr. Malouf were substantially true and not defamatory. Indeed, not one of
Plaintiffs' claims against any of the defendants in this case has been shown to have merit. Yet
AOL has been forced to spend more than $675,000 defending these attacks on its exercise of free
speech, to say nothing of the costs borne by the judicial system and other defendants. AOL
seeks to recover its fees and expenses, which the Anti-SLAPP statute makes mandatory.
Plaintiffs have now chosenat best, curiouslyto part ways with their counsel just four
days after AOL filed its motion for fees, and two days after that motion was set for hearing on
November 23.

Plaintiffs knew that this motion was coming for months:

AOL informed

Plaintiffs on July 1 that it would seek its fees from the Court if Plaintiffs did not agree to pay
them in light of the mandatory award under the statute.

If Plaintiffs' counsel intended to

withdraw, they could have easily done so months ago rather than waiting until the week AOL
filed its motion.
Out of professional courtesy, AOL does not oppose a withdrawal. But it does oppose a
four-month delay in hearing its motion for mandatory attorneys' fees and mandatory sanctions.
Plaintiffs' motion does not offer sufficient evidence to explain why this withdrawal by counsel is
suddenly necessary. Nor do Plaintiffs claim to have even begun looking for a new attorney
much less explain why it would take so long to find one.

AOL AND GRAHAM WOOD'S OPPOSITION TO PLAINTIFFS' MOTION FOR CONTINUANCE

Dr. Malouf has plenty of experience hiring lawyers, both in his string of civil suits and in
the multiple fraud investigations and claims against him and his companies. Last week, Dr.
Malouf filed a brief with the Texas Supreme Court related to the Attorney General's pending suit
against him for Medicaid fraud; he was represented there by no fewer than four attorneys. See
November 6, 2015 Reply Brief, Malouf v. The State of Texas, ex rel., Ellis, No. 15-0373 in the
Texas Supreme Court.
Court records show that Dr. Malouf has hired more than a dozen different attorneys in
various matters, including the following:

Dr. Malouf has employed Shamoun and Norman in this case and in numerous
other suits throughout Texas.

Dr. Malouf is currently represented by three lawyers from Husch Blackwell LLP
and one lawyer from Canales & Simonson, PC in Malouf v. The State of Texas, ex
rel., Ellis, No. 15-0373 before the Supreme Court of Texas.

He was represented by two lawyers from David, Goodman & Madole, PC in ADT
Security Services Inc. v. Malouf, No. DC-10-14789 in the 134th District Court.

He was represented by attorney Susan I. Nelson in Addison v. Malouf, No. DC03-00233 in the 95th District Court.

He was represented by attorney Drew Siegel in Taylor v. Malouf, No. CC-0108829-E in Dallas County Court at Law No. 5.

He was represented by two lawyers from Morris, Nichols, Arsht & Tunnell LLP
and one lawyer from Akin Gump Strauss Hauer & Feld LLP in ASDC Holds.,
LLC v. Malouf, No. 6462-VCP in Delaware Chancery Court.
He was represented by attorney Martin Rubin in Dallas County Misdemeanor
Case No. MC12B7559, filed Nov. 2, 2012.

Dr. Malouf has employed yet other attorneys in connection with criminal investigations into his
Medicaid billing practices. See, e.g., Brief in Support of Motion to Quash 14, ASDC Holds.
LLC v. The Richard J. Malouf 2008 All-Smiles Grantor Retained Annuity Trust, No. 15-MC-89
(N.D. Tex. Aug. 19, 2015), ECF No. 2 (stating that Dr. Malouf was represented by criminal

AOL AND GRAHAM WOOD'S OPPOSITION TO PLAINTIFFS' MOTION FOR CONTINUANCE

defense attorney Michael P. Gibson "in connection with a Federal Health Care investigation in
the Northern District of Texas"). Neither Plaintiffs' motion nor Dr. Malouf's affidavit explain
why it would supposedly take months to find replacement counsel here.
The motion also ignores the Anti-SLAPP statute and facts in this case. As soon as AOL
filed its motion to dismiss, all discovery was automatically suspended. TEX. CIV. PRAC. & REM.
CODE 27.003(c). AOL has not responded to discovery requests because there are no live
requests in the case, and it is questionable whether any discovery would even be appropriate on a
remand for the award of mandatory fees and mandatory sanctions to AOL. In any event, all
relevant information is already reflected and produced in AOL's fee motion and supporting
affidavits.
The Court should deny the continuance. Plaintiffs can hire an attorney to represent them
for the November 23 hearing, or they can choose to proceed pro se. But they should not be
allowed to use gamesmanship to delay resolution of a long-anticipated, statutorily-required
motion by terminating their counsel, failing to secure a replacement, and then claiming prejudice.

AOL AND GRAHAM WOOD'S OPPOSITION TO PLAINTIFFS' MOTION FOR CONTINUANCE

Dated: November 11, 2015

Respectfully submitted,
/s/ Van H. Beckwith
Van H. Beckwith (State Bar No. 02020150)
Christopher Norfleet (State Bar No. 24070338)
BAKER BOTTS L.L.P.
2001 Ross Avenue
Dallas, TX 75201
Tel: 214-953-6505
Fax: 214-661-4505
van.beckwith@bakerbotts.com
christopher.norfleet@bakerbotts.com
Jessica Ring Amunson (admitted pro hac vice)
JENNER & BLOCK LLP
1099 New York Avenue NW, Suite 900
Washington, DC 20001
Tel: 202-639-6329
Fax: 202-661-4914
jamunson@jenner.com
ATTORNEYS FOR DEFENDANTS
AOL INC. AND GRAHAM WOOD

AOL AND GRAHAM WOOD'S OPPOSITION TO PLAINTIFFS' MOTION FOR CONTINUANCE

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on November 11, 2015, a true and correct copy of
the foregoing document was served on all counsel of record in accordance with the Texas Rules
of Civil Procedure.
C. Gregory Shamoun
Jonathan Cunningham
John David Reed
Shamoun & Norman, LLP
1755 Wittington Place, Ste. 200, LB 25
Dallas, TX 75234
g@snlegal.com
jjc@snlegal.com
jd@snlegal.com

George W. Bramblett Jr.

Haynes & Boone, LLP
2323 Victory Ave., Ste. 700
Dallas, TX 75219
george.bramblett@haynesboone.com

Alicia G. Curran
Cozen O'Connor
1717 Main Street, Suite 3400
Dallas, TX 75201
Telephone: 214.462.3021
Facsimile: 866.248.5742
Email: acurran@cozen.com
John Holman Barr
Leonard H. Plog, II
Burt Barr & Assoc., LLP
P.O. Box 223667
Dallas, TX 75222-3667
jbarr@bbarr.com
lplog@bbarr.com

David Vassar
Nesbitt, Vassar & McCown, L.L.P.
15851 Dallas Parkway, Ste. 800
Addison, TX 75001
dvassar@nvmlaw.com

James Rusty Tucker

Law Offices of James R. Tucker, P.C.
3100 Drexel Dr.
Dallas, Texas 75205
rusty@rustytuckerlaw.com

/s/ Christopher Norfleet

AOL AND GRAHAM WOOD'S OPPOSITION TO PLAINTIFFS' MOTION FOR CONTINUANCE