Case 3:18-cv-02494-WQH-MSB Case 3:18-cv-02494-WQH-MSB Document Document 134 114 Filed Filed 06/16/20 01/29/20 PageID.3186 PageID.2982 Page Page 1 1 of of 5 5 Jason M. Leviton (pro hac vice) Joel A. Fleming (CA Bar No. 281264) 1 Jacob A. Walker (CA Bar No. 271217) 2 Lauren Godles Milgroom (pro hac vice) Amanda R. Crawford (pro hac vice) 3 BLOCK & LEVITON LLP 4 260 Franklin Street, Suite 1860 Boston, MA 02110 5 (t) (617) 398-5600 6 (f) (617) 507-6020 jason@blockesq.com 7 joel@blockesq.com 8 jake@blockesq.com amanda@blockesq.com 9 lauren@blockesq.com 10 Attorneys for Plaintiff MabVax Therapeutics Holdings, Inc. 11 [Additional counsel appear on signature page.] 12 UNITED STATES DISTRICT COURT 13 SOUTHERN DISTRICT OF CALIFORNIA 14 15 MABVAX THERAPEUTICS Case No. 3:18-cv-02494-WQH-MSB HOLDINGS, INC., 16 NOTICE OF RELATED CASE Plaintiff, 17 vs. 18 SICHENZIA ROSS FERENCE LLP 19 (f/k/a SICHENZIA ROSS FERENCE KESNER LLP; f/k/a SICHENZIA 20 ROSS FRIEDMAN FERENCE LLP), HARVEY KESNER, and DOES 1 21 through 10, inclusive, 22 Defendants. 23 24 25 26 27 28 3:18-cv-02494-WQH-MSB Case 3:18-cv-02494-WQH-MSB Case 3:18-cv-02494-WQH-MSB Document Document 134 114 Filed Filed 06/16/20 01/29/20 PageID.3187 PageID.2983 Page Page 2 2 of of 5 5 1 On January 22, 2020, Defendant Kesner filed an action in the United States 2 District Court for the Southern District of New York, Kesner v. Baker Botts, LLP 3 [sic1], et al., No. 1:20-cv-551 (S.D.N.Y.) (the “Kesner RICO Action”). The Kesner 4 5 RICO Action asserts, inter alia, claims under the Racketeer Influenced and Corrupt 6 Organizations Act against Baker Botts L.L.P. and a Baker Botts partner who 7 represented Plaintiff MabVax Therapeutics Holdings, Inc. (“MabVax”) in connection 8 9 with the SEC investigation and are representing MabVax in the related action pending 10 in California state court.2 11 The gravamen of the Kesner RICO Action is Kesner’s (factually false and 12 3 13 legally invalid) assertion that, in August 2018, Baker Botts unlawfully attempted to 14 extort a settlement from Kesner by sending to Sichenzia Ross Ference LLP (“SRF”),4 15 on behalf of MabVax, a “draft complaint” that was substantially similar to that filed 16 17 by MabVax in September 2018, which was sustained by Judge Hayes in this action. 18 Compare Kesner RICO Action, ECF No. 3 ¶¶1-6 with Malin v. Singer, 217 Cal. App. 19 20 1 The law firm’s name is Baker Botts L.L.P. 21 2 MabVax Therapeutics Holdings, Inc. v. Honig, et al., 37-2019-00018398-CU-SL- 22 CTL (Cal. Sup. Ct.) 23 3 The Kesner RICO Action also alleges, in one paragraph, that undersigned counsel 24 were unwitting dupes who were “fed [a] trove of lies by … Baker Botts … to unlawfully threaten plaintiff” (id. ¶69) and, then, in the next paragraph, that 25 undersigned counsel—along with the Delaware firm acting as MabVax’s bankruptcy 26 counsel—were active “co-conspirators … who joined with Baker Botts extending the enterprise into the Chapter 11 proceedings.” Id. ¶70. 27 4 At the time, Sichenzia Ross Ference Kesner LLP. 28 2 3:18-cv-02494-WQH-MSB NOTICE OF RELATED CASE Case 3:18-cv-02494-WQH-MSB Case 3:18-cv-02494-WQH-MSB Document Document 134 114 Filed Filed 06/16/20 01/29/20 PageID.3188 PageID.2984 Page Page 3 3 of of 5 5 1 4th 1283, 1293 (2013) (“Ordinarily, a demand letter sent in anticipation of litigation 2 is a legitimate speech or petitioning activity that is protected under” California’s anti- 3 SLAPP statute).5 4 5 Although Kesner has argued in this Court that documents relating to his 6 departure from SRF are irrelevant,6 Kesner alleges in the Kesner RICO Action that 7 he “lost his partnership and employment ” with SRF as “a direct and proximate 8 9 result” of the draft allegations made on behalf of MabVax that were sent to SRF by 10 Baker Botts. Kesner RICO Action, ECF No. 3 ¶4. 11 Kesner’s counsel were obliged by rule to promptly disclose the Kesner RICO 12 13 Action to this Court and to MabVax. Specifically, Local Rule 40.1(f) provides that: 14 Whenever counsel has reason to believe that a pending action or 15 proceeding on file or about to be filed is related to another pending action or proceeding on file in this or any other federal or state court 16 (whether pending, dismissed, or otherwise terminated), counsel must 17 promptly file and serve on all known parties to each related action or proceeding a notice of related case, stating the title, number and filing 18 date of each action or proceeding believed to be related, together with 19 a brief statement of their relationship and the reasons why assignment to a single district judge is or is not likely to effect a saving of judicial 20 21 5 22 Kesner is represented, in the Kesner RICO Action, by Steven S. Biss, a lawyer with a history of filing frivolous strategic lawsuits against public participation, including, 23 infamously, a suit filed on behalf of Congressman Devin Nunes against, inter alia, a 24 parody Twitter account that pretended to be a cow owned by the Congressman. See Nunes v. Devin Nunes’ Cow [@DevinCow], et al., CL19-1715-00 (Va. Cir. Ct.) 25 (asserting claims for defamation based on statements including, “Nunes is a 26 ‘treasonous cowpoke’” and “Devin’s boots are full of manure. He’s udder-ly worthless and its pasture time to move him to prison”). 27 6 See e.g., ECF No. 113 at 8. 28 3 3:18-cv-02494-WQH-MSB NOTICE OF RELATED CASE Case 3:18-cv-02494-WQH-MSB Case 3:18-cv-02494-WQH-MSB Document Document 134 114 Filed Filed 06/16/20 01/29/20 PageID.3189 PageID.2985 Page Page 4 4 of of 5 5 1 effort and other economies. … This is a continuing duty that applies not only when counsel files a case with knowledge of a related action 2 or proceeding but also applies after the date of filing whenever counsel 3 learns of a related action or proceeding. 4 Kesner and his counsel have failed to comply with this rule.7 So MabVax is 5 filing this notice and states that if the United States District Court for the Southern 6 District of New York transfers the Kesner RICO Action to this district, it would effect 7 8 a significant savings of judicial effort and other economies to assign the Kesner RICO 9 Action to Judge Hayes and Magistrate Judge Berg. There is nearly a complete factual 10 overlap between the two cases8 and Judge Hayes and Magistrate Judge Berg have 11 12 both devoted significant time to this action and are familiar with the underlying facts. 13 Dated: January 29, 2020 BLOCK & LEVITON LLP 14 By: /s/ Joel A. Fleming 15 Jason M. Leviton (pro hac vice) Joel A. Fleming (CA Bar No. 281264) 16 Jacob A. Walker (CA Bar No. 271217) 17 Lauren Godles Milgroom (pro hac vice) Amanda Crawford (pro hac vice) 18 260 Franklin Street, Suite 1860 19 Boston, MA 02110 (t) (617) 398-5600 20 (f) (617) 507-6020 21 jason@blockesq.com joel@blockesq.com 22 jake@blockesq.com 23 24 7 Kesner’s counsel in this action have represented to MabVax that they were 25 unaware of the Kesner RICO Action until after it was filed. But they should have 26 filed a notice of related case as soon as they became aware of the action. 8 27 Kesner is essentially bringing a counterclaim but is attempting to do so in New York despite this Court denying his motion to transfer to that District. ECF No. 36. 28 4 3:18-cv-02494-WQH-MSB NOTICE OF RELATED CASE Case 3:18-cv-02494-WQH-MSB Case 3:18-cv-02494-WQH-MSB Document Document 134 114 Filed Filed 06/16/20 01/29/20 PageID.3190 PageID.2986 Page Page 5 5 of of 5 5 1 lauren@blockesq.com amanda@blockesq.com 2 3 Attorneys for Plaintiff MabVax Therapeutics Holdings, Inc. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3:18-cv-02494-WQH-MSB NOTICE OF RELATED CASE