Case 4:19-cv-02250 Document 13 Filed on 07/19/19 in TXSD Page 1 of 21

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ADAM KLIEBERT, GLORIA BLAKE, §

and GLENN BLAKE, §
§
Plaintiffs, §
§
vs. § CASE NO. 4:19-CV-02250-KPE
§
METALLICUS, INC. a/k/a Metal, §
MARSHALL HAYNER, and §
REMINGTON REYNOLDS, TREVOR §
SHORT, d/b/a PREMIER LIVE, §
§
Defendants. §

DEFENDANTS METALLICUS, INC. AND MARSHALL HAYNER’S

ANSWER AND COUNTERCLAIMS TO PLAINTIFFS’ ORIGINAL PETITION

Defendants Metallicus, Inc. (“Metallicus”) and Marshall Hayner (collectively,

“Defendants”), through their undersigned counsel, herby submit their Answer and Counterclaims

(“Answer”) to Plaintiffs Adam Kliebert, Gloria Blake, and Glenn Blake’s (collectively,

“Plaintiffs”) Original Petition, as filed in the 269th Judicial District Court of Harris County, Texas,

in Houston, cause number 2019-32946. Except as otherwise admitted in this Answer, Defendants

deny each and every allegation in the Original Petition. The numbered paragraphs below

correspond to the paragraph numbers of the Original Petition; section titles are repeated from the

Original Petition for convenience of reference.

I. PARTIES AND SERVICE

1. Admitted.

2. Defendants deny that Metallicus is a California corporation. Defendants admit the

remaining allegations in Paragraph 2.

3. Admitted.
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4. Admitted.

5. Admitted.

6. Denied.

II. DISCOVERY LEVEL

7. Paragraph 7 sets out a legal conclusion applicable to the 269th Judicial District

Court of Harris County, Texas, in Houston to which no response is necessary. To the extent a

response is required, Defendants deny that discovery should be conducted under Level 2 of the

Texas Rules of Civil Procedure § 190.4.

III. JURISDICTION AND VENUE

8. Paragraph 8 sets out a legal conclusion applicable to the 269th Judicial District

Court of Harris County, Texas, in Houston to which no response is necessary. To the extent a

response is required, Defendants deny that that the 269th Judicial District Court of Harris County,

Texas has subject matter jurisdiction over this case.

9. Defendants deny that all or a substantial portion of the events giving rise to this

case occurred in Texas. Defendants further deny that this Court properly has personal jurisdiction

over Defendants.

10. Denied.

III. [SIC] STATEMENT OF [PURPORTED] FACTS

11. Defendants admit that the Necker Cup (erroneously called the “Neckar Cup” in the

Original Petition) is a prestigious tennis tournament normally held on Necker Island, a privately

owned island in the British Virgin Islands. Defendants deny that the Necker Cup was held on

Necker Island in 2017; it was held in the Bahamas that year. Defendants admit that Adam Kliebert

was in the Bahamas during the Necker Cup event in 2017, which ran from November 27 to

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December 2, 2017. Defendants lack knowledge or information sufficient to form a belief as to the

truth of the remaining allegations in Paragraph 11 and, therefore, deny them.

12. Defendants admit that the Necker Cup is promoted by “Premier Live.” Defendants

lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations

in Paragraph 12 and, therefore, deny them.

13. Defendants admit that Metallicus is a financial services company that interacts with

cryptocurrency (i.e., digital currencies in which encryption techniques are used to regulate the

generation of units of currency and verify the transfer of funds, operating independently of

traditional banks and government issued fiat currencies). Defendants admit that Metallicus

developed a cryptocurrency called “Metal,” which is also commonly referred to by its symbol

“MTL.” MTL is a digital asset traded on third party cryptocurrency markets and functions

independently of Metallicus, and does not represent equity or any other investment in Metallicus.

Defendants further admit that Metallicus refers to itself with a D/B/A name of “Metal”.

Defendants deny the remaining allegations in Paragraph 13.

14. Defendants admit that Metallicus was one of the sponsors of the Necker Cup in

2017 and in subsequent years. Defendants deny the remaining allegations in Paragraph 14.

15. Denied.

16. Defendants admit that Metallicus was developing an iPhone payments application

(also known as an “app”) called MetalPay, which, among other things, enables users to send or

receive fiat currency or cryptocurrency, including MTL, to and from other parties. Defendants

admit that Marshall Hayner met Adam Kliebert in the Bahamas during the Necker Cup, and that

Mr. Hayner accurately described relevant aspects of Metallicus’s plans for the MetalPay

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application in response to Adam Kliebert’s inquires. Defendants deny the remaining allegations

in Paragraph 16.

17. Defendants admit that Metallicus’s plans for the MetalPay app included the

introduction of features whereby MetalPay would allow users to make purchases using MTL or

other cryptocurrencies. Defendants admit that the anticipated initial release date for MetalPay was

targeted for Q1 2018. Defendants deny the remaining allegations in Paragraph 17.

18. Denied.

19. Defendants admit that Adam Kliebert asked Metallicus to help him purchase MTL,

and that Metallicus arranged several purchases of MTL for Adam Kliebert as he requested.

Defendants deny the remaining allegations in Paragraph 19.

20. Defendants admit that Adam Kliebert demanded to speak to Mr. Hayner on multiple

occasions and that Mr. Hayner spoke to Adam Kliebert about Metallicus’s plans for and

development of the MetalPay app. Defendants deny the remaining allegations in Paragraph 20.

21. Denied.

22. Denied.

23. Defendants admit that alpha versions of the MetalPay app were released to select

testers beginning in March 2018, later versions were released to a larger group of alpha testers

beginning in June 2018, and the production version of MetalPay was released on the Apple App

Store in September 2018. Defendants deny the remaining allegations in Paragraph 23.

24. Defendants admit that the market exchange rate for MTL cryptocurrency, like

virtually all cryptocurrencies, has generally declined since the time period when Plaintiffs first

purchased MTL. Defendants deny the remaining allegations in Paragraph 24.

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IV. CAUSES OF ACTION

FIRST CLAIM FOR RELIEF

[Purported] Violation of the Texas Securities Act

25. Defendants repeat and incorporate by reference their responses to the previous

paragraphs as if fully set forth herein.

26. Denied.

27. Denied.

28. Denied.

29. Denied.

30. Denied.

31. Denied.

32. Denied.

33. Denied.

34. Denied.

SECOND CLAIM FOR RELIEF

[Purported] Violation of the Texas Deceptive Trade Practices Act

35. Defendants repeat and incorporate by reference their responses to the previous

paragraphs as if fully set forth herein.

36. Denied.

37. Denied.

38. Denied.

39. Denied.

40. Denied.

41. Denied.

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THIRD CLAIM FOR RELIEF [THE SECOND CLAIM NUMBERED “SECOND”]

[Purported] Fraud

42. Defendants repeat and incorporate by reference their responses to the previous

paragraphs as if fully set forth herein.

43. Denied.

44. Denied.

45. Denied.

46. Denied.

47. Denied.

48. Denied.

[FOURTH] CLAIM FOR RELIEF [MISNUMBERED “THIRD” CLAIM]

Fraudulent Inducement

49. Defendants repeat and incorporate by reference their responses to the previous

paragraphs as if fully set forth herein.

50. Denied.

51. Denied.

52. Denied.

[FIFTH] CLAIM FOR RELIEF [MISNUMBERED “FOURTH” CLAIM]

[Purported] Negligent Misrepresentation

53. Defendants repeat and incorporate by reference their responses to the previous

paragraphs as if fully set forth herein.

54. Denied.

55. Denied

56. Denied.

57. Denied

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58. Denied.

V. DISCOVERY RULE AND [PURPORTED] FRAUDULENT CONCEALMENT

59. Defendants repeat and incorporate by reference their responses to the previous

paragraphs as if fully set forth herein.

60. Denied.

61. Denied.

62. Denied.

63. Denied.

VI. [PURPORTED] DAMAGES

[PURPORTED] ECONOMIC AND ACTUAL DAMAGES

64. Denied.

[PURPORTED] EXEMPLARY DAMAGES

65. Denied.

COSTS AND ATTORNEY’S FEES

66. Denied.

VII. JURY DEMAND

67. Defendant admit that Plaintiffs have demanded a trial by jury.

VIII. REQUEST FOR DISCLOSURE

68. To the extent any response is required, Defendants deny that Plaintiffs are entitled

to disclosure under Texas Rule of Civil Procedure 194.

IX. PRAYER

Defendants deny that Plaintiffs are entitled to any relief, whether sought in the Prayer or

otherwise. Plaintiffs’ Prayer should therefore be denied in its entirety and with prejudice.

Plaintiffs should take nothing from Defendants, and Defendants should be awarded their costs.

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GENERAL DENIAL

Defendants deny each and every allegation in the Original Petition not expressly admitted

above.

DEFENSES, INCLUDING AFFIRMATIVE DEFENSES

Defendants assert, without assuming any burden of pleading or proof that would otherwise

rest on Plaintiffs, the following additional affirmative defenses to the Original Petition and each

purported claim for relief set forth therein. Defendants assert these affirmative defenses on the

basis of their information and belief. In so doing, Defendants reserve their right to assert additional

defenses and to otherwise supplement, amend, or modify their Answer and affirmative defenses

as additional information becomes available in discovery. Defendants repeat and incorporate by

reference each of their answers to the allegations in the Original Petition with each of the following

defenses as if fully set forth herein.

FIRST DEFENSE

Plaintiffs’ Original Petition fails to state a claim on which relief may be granted.

SECOND DEFENSE

Plaintiffs’ Original Petition fails to plead fraud and fraud-based allegations with

particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure.

THIRD DEFENSE

Plaintiffs’ claims are barred in whole or in part because Plaintiffs have not been harmed by

any alleged acts of Defendants.

FOURTH DEFENSE

If Plaintiffs suffered damages, they were the proximate result of the actions or inactions of

Plaintiffs and/or parties other than Defendants and for which Defendants are not responsible.

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FIFTH DEFENSE

Plaintiffs fail to allege, and cannot prove facts sufficient to demonstrate that Defendants

made any actionable false or misleading statement of material fact or otherwise engaged in

fraudulent or deceptive conduct because, without limitation: (a) Defendants made no untrue

statements of material fact to Plaintiffs; (b) Defendants did not omit or state any material fact to

Plaintiffs that would be necessary in order to avoid rendering any statement misleading; (c) any

statements Defendants made to Plaintiffs were true and not misleading at the time they were made;

(d) Defendants had no duty to disclose any purportedly omitted facts; (e) any alleged untrue or

misleading statements constituted non-actionable statements of opinion and/or good faith

statements of optimism and/or puffery; (f) any statements Defendants made to Plaintiffs were

accompanied by statements that bespoke caution about the risks of the matters at issue; and

(g) Plaintiffs did not purchase MTL cryptocurrency in reliance on any purported false or

misleading statement by Defendants.

SIXTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, to the extent that Plaintiffs’ allegations

are based on alleged projections, forecasts or predictions of future events or results because such

projections, forecasts or predictions were forward-looking statements that were not false when

made, were made in good faith, and had a reasonable basis when made.

SEVENTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, because the purported untrue or misleading

statements did not cause Plaintiffs to purchase MTL cryptocurrency (no transaction causation),

and did not cause their asserted losses in connection with MTL cryptocurrency (no loss causation).

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EIGHTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs knew the truth of the

matters complained of.

NINTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, to the extent that Plaintiffs would have

purchased MTL cryptocurrency even with full knowledge of the purportedly misstated facts.

TENTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, because Defendants exercised reasonable

care and neither knowingly nor negligently made any untrue or misleading statements. At all times

with respect to all matters alleged in the Original Petition, Defendants acted in good faith,

exercised reasonable care, and did not know, and in the exercise of reasonable care would not have

known, of any purported untruths or misleading statements.

ELEVENTH DEFENSE

Plaintiffs’ purported claims under the Texas Securities Act are barred because, among other

reasons: (a) Plaintiffs did not purchase any securities from Defendants; (b) the MTL

cryptocurrency that Plaintiffs purchased is not a security; (c) Defendants did not offer or sell any

securities to Plaintiffs; (d) MTL cryptocurrency was not required to be registered or qualified as a

security; (e) MTL cryptocurrency, if it were a security, would be exempt from registration under

the Texas Securities Act, including (without limitation) by reason of the exemptions under Section

5 thereof and Chapters 109 and 139 of the Rules of the Texas State Securities Board; (f) Defendants

were not required to register under Sections 12 or 18 of the Texas Securities Act for multiple

reasons, including (without limitation) that they were not dealers, were not agents of dealers, did

not offer or sell securities in Texas, and by reason of the exemptions under Section 5 of the Texas

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Securities Act and Chapters 109 and 139 of the Rules of the Texas State Securities Board; (g)

Plaintiffs’ purchases of MTL cryptocurrency were not solicited by Defendants; and (h) for all the

reasons set forth in the Fifth Defense, recited above.

TWELFTH DEFENSE

Plaintiffs’ purported claims under the Texas Deceptive Trade Practices Act (“DTPA”) are

barred, in whole or in part, by: (a) the exemptions under the DTPA §§ 17.49(f) and (g) because

Plaintiffs’ transactions, individually or in aggregate, are contract-based transactions exceeding

$100,000 and/or together total more than $500,000; and (b) the exemptions under the DTPA

§§ 17.49(c) and (d) to the extent the claims are based upon professional services, advice allegedly

given, and/or judgments and opinions allegedly rendered by Defendants.

THIRTEENTH DEFENSE

Plaintiffs fail to allege, and cannot prove facts sufficient to demonstrate, that an award of

Plaintiffs’ attorneys’ fees is warranted.

FOURTEENTH DEFENSE

Plaintiffs are barred from recovering for their alleged losses, if any, because they failed to

take available, reasonable, and practical actions to mitigate or otherwise to lessen or reduce the

injuries and damages alleged. Such failure to mitigate was the proximate cause of any such

damage or injury to Plaintiffs and is thus a complete or partial bar to any recovery by Plaintiffs.

FIFTEENTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, to the extent that Defendants are not liable

for the actions of third parties.

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SIXTEENTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, to the extent they seek to impose liability

under Texas law for alleged conduct that occurred outside Texas, and/or beyond the territorial

reach of Texas law and/or to redress asserted injuries that occurred outside Texas.

SEVENTEENTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, by the applicable statutes of limitations.

EIGHTEENTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, by the equitable doctrines of laches,

ratification, waiver, estoppel, unjust enrichment, unclean hands, and/or other equitable doctrines.

RESERVATION OF DEFENSES

Defendants hereby give notice that they may rely on other defenses if and when such

defenses become known during the course of the litigation, and hereby reserve the right to amend

their Answer and to assert any additional defenses, cross-claims, counterclaims and third-party

claims as they become known or available. Defendants reserve any and all additional defenses

available by statute or under the rules, regulations, and laws related to the Federal Rules of Civil

Procedure, the Rules of this Court, or otherwise in law or equity, now existing, or later arising.

COUNTERCLAIMS

Counter-Plaintiffs Metallicus, Inc. (“Metallicus”) and Marshall Hayner (“Mr. Hayner” and,

together with Metallicus, “Counter-Plaintiffs”), on personal knowledge as to their own acts, and

on information and belief as to all others based on their own and their attorneys’ investigation,

allege Counterclaims against Counter-Defendant Adam Kliebert (“Kliebert”) (collectively,

“Counter-Defendant”) as follows:

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THE PARTIES

1. Metallicus is a Delaware corporation headquartered in California.

2. Marshal Hayner is an individual residing in California.

3. On information and belief, Kliebert is an individual residing in Texas.

JURISDICTION AND VENUE

4. This Court has jurisdiction over these counterclaims under 28 U.S.C. § 1332.

Complete diversity of citizenship exists between the parties as alleged in Counter-Plaintiffs’

Notice of Removal (Dkt. No. 1), this action involves claims for actual damages, treble damages,

exemplary damages, attorneys’ fees, and other relief that exceeds $75,000, and Counter-Plaintiffs’

counterclaim seeks relief that exceeds $75,000.

5. This Court also has supplemental jurisdiction over these counterclaims under 28

U.S.C. § 1367 as all claims asserted herein are based on a common nucleus of operative facts.

6. This Court has personal jurisdiction over Counter-Defendant because he resides in

this District.

7. Venue for these counterclaims is proper in this District as alleged in

Counter-Plaintiffs’ Notice of Removal (Dkt. No. 1) and under 28 U.S.C. §§ 1367 and 1391.

GENERAL ALLEGATIONS

8. Metallicus is a financial services company that interacts with cryptocurrency (i.e.,

digital currencies in which encryption techniques are used to regulate the generation of units of

currency and verify the transfer of funds, operating independently of traditional banks and

government issued fiat currencies). Mr. Hayner is its CEO. In 2016 and 2017, Metallicus

developed a cryptocurrency called “Metal,” which is also commonly referred to by its symbol

“MTL.” MTL began circulating in July 2017. MTL is a digital asset traded on third party

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cryptocurrency markets and functions independently of Metallicus, and does not represent equity

or any other form of investment in Metallicus.

9. Counter-Plaintiffs first encountered Kliebert in late November or early December

2017 at the Necker Cup, an exclusive pro-am tennis tournament in the Bahamas, of which

Metallicus was one of the sponsors. Kliebert portrayed himself as a wealthy and sophisticated

playboy who was extremely interested in cryptocurrency. Soon Kliebert asked Metallicus to help

him purchase MTL, since he did not then own Bitcoin or any other virtual currencies or fiat

currencies paired to MTL (as would be necessary to purchase MTL), or have his own digital wallet

set up to hold cryptocurrency.

10. Kliebert purchased MTL in and after December 2017. Kliebert decided how much

to purchase and when, and he made all of his purchases at the market exchange rates for MTL.

11. As Kliebert knew, market exchange rates for MTL and other cryptocurrencies are

highly volatile. MTL’s price shot up within days after Kliebert’s initial purchases, and he was

thrilled. Later the price of MTL fell, and Kliebert became angry. He decided to try to manufacture

some way to blame Counter-Plaintiffs, even though he had no basis to do so.

12. Beginning in or about the late Summer or early Fall of 2018, Kliebert launched an

increasingly vituperative campaign of defamation, intimidation, threats, on-line stalking, and

harassment against Counter-Plaintiffs through social media, public and private on-line forums, and

direct communications, texts and telephone calls, for the apparent sole purpose of seeking to extort

Metallicus into purchasing MTL from him at an above-market exchange rate or otherwise paying

him money. This began as bizarre behavior, with Kliebert contacting Metallicus personnel and

alternating between praise and condemnation of Metallicus and MetalPay, then descended into a

vicious smear campaign in which Kliebert actively sought to disrupt Metallicus’s relationships

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with its customers, potential customers, personnel, and vendors, and others who might conduct

business with Metallicus, and to injure the reputation of Metallicus and Mr. Hayner through false

accusations of fraud and other criminal and despicable behavior, all in an effort to gain money for

himself to which he has no right. Kliebert’s campaign included, by way of example and not

limitation, the following tortious conduct:

13. On or about October 17, 2018, Kliebert accused Mr. Hayner and others at

Metallicus in writing of running a “con game,” said that he knew unspecified secret information

about them (“I’ve had people who have invested with you and people who have known you for

many years reach out to me and tell me what’s going on. I know it all!!!”), and threatened

[referring to Mr. Hayner] that he was “going to take your a** down[.] It’s not only going to be

financially, but you’re f****** crooked a** is going to be in a jail cell in Texas. I’m going to

have fun with this and I will sacrifice the cash I’ve been swindled out of just to see you exposed

as the crook you are! I want my money back by end of day Friday or my plan goes into action.”

(Vulgarities in Kliebert’s message have been censored here with asterisks.)

14. Kliebert’s threats and allegations were and are utterly baseless and false, as he

knew.

15. Kliebert had never “invested with” Counter-Plaintiffs, as he knew. (In fact,

Kliebert had once expressed interest in making an investment in Metallicus, but then changed his

mind and decided not to proceed with that discussion, for which Counter-Plaintiffs are thankful.)

16. Counter-Plaintiffs did not have any money of Kliebert’s, as he knew.

17. Kliebert’s conduct constituted attempted extortion.

18. Counter-Plaintiffs asked Kliebert to leave them alone, but he would not.

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19. On information and belief, at or around this time Kliebert contacted Premier Live,

the organizer of the Necker Cup event, and made similar false accusations and baseless threats,

designed to interfere with and leverage Counter-Plaintiffs’ relationship with Premier Live in a

further effort to extort a payment from Metallicus to which Kliebert had no right.

20. Kliebert’s effort to extort a payment was nearly successful. Counter-Plaintiffs

wished to protect their relationship with Premier Live and preferred to avoid conflict with Kliebert.

By then, Kliebert had shown himself to be an aggressive and unstable individual in numerous

increasingly concerning interactions with Counter-Plaintiffs and other Metallicus personnel.

Counter-Plaintiffs learned that Kliebert prominently displays his collection of automatic and

semi-automatic weapons and other firearms on Facebook and Instagram and, as a Google search

shows, has been the subject of substantial publicity and numerous appearances in the Houston

press regarding litigation and spite campaigns in which he has engaged against neighbors and

enemies made in his nightclub business. But Kliebert’s extortion attempt ultimately did not

succeed.

21. Cross-Plaintiffs repeatedly told Kliebert to leave them alone and stop contacting

them. He refused.

22. On December 13, 2018, Kliebert told Metallicus’s counsel that he was in California

“just down the road from the metal headquarters” and proposed to pay a visit to Metallicus. He

then called a Metallicus employee and said “I have a message for Marshall [Hayner] and you.”

His message was: “See you soon, m***** f*****” followed by more obscenities and a slur

referencing Mr. Hayner’s wife, who Kleibert called a “Chinese b****.” (Again, Kliebert’s

vulgarities have been censored.)

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23. Kliebert’s threats to visit Counter-Plaintiffs caused them to take additional,

extraordinary security precautions at the Metallicus office and to warn its personnel.

24. Also as part of his campaign, Kliebert also published false and defamatory

statements about Counter-Plaintiffs on social media, public internet forums, and private on-line

discussions groups, in furtherance of his continuing efforts to harm Counter-Plaintiffs’ reputations

and extort a payment from them. These included the following examples, which Kliebert

published on the Apple App Store, where Metallicus’s MetalPay app is distributed to the public:

25. On or about December 14, 2018, Kliebert published a “review” on the Apple App

Store page for MetalPay stating (with regard to the hundreds of favorable reviews): “These are

ALL made up reviews. Notice they all diss venom! This is a scam! Marsahl Heyfag is a crook.

Do not download this!!” and left a one star rating.

26. On or about January 23, 2019, Kliebert published a “review” on the Apple App

Store page for MetalPay stating: “Most of these reviews seem to be made up. They all talk about

how Venmo and PayPal are being replaced by this app. In reality there are only few ppl who have

it and only available in 38 states. They will say the rest of the US is coming but they don’t have

the money to complete it. Heyner is a total fraud. Look at the employee turnover. Don’t put your

money here. It will disappear.” and left a one star rating.

27. Kliebert’s publications and ratings on the Apple App Store were received or viewed

by persons using the Apple App Store to consider downloading Metallicus’s MetalPay app.

28. Kliebert’s foregoing statements were false because, among other reasons: (a) the

MetalPay reviews on its Apple App Store page are not “made up;” (b) MetalPay is not—and never

was—a “scam;” (c) Kliebert refers to Mr. Hayner by a false and derogatory name, designed to

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make readers think Mr. Hayner is homosexual; (d) Mr. Hayner is not a “crook;” and (5) Mr. Hayner

is not a “total fraud” or any other kind of “fraud.”

29. Kliebert made additional false and defamatory posts on social media, including but

not limited to Instagram posts directing viewers of Metallicus’s Instagram page for MetalPay to

Kliebert’s false and defamatory review of MetalPay on the Apple App Store.

30. Kliebert knew that his statements as alleged above were false.

31. Kliebert intended by his course of conduct to injure Counter-Plaintiffs’ reputation

and harm their business relationships with customers, potential customers, vendors, and others.

32. Counter-Plaintiffs are informed and believe that Kliebert’s misconduct as alleged

herein occurred in California and was directed by Kliebert at Counter-Plaintiffs in California, such

that Counter-Plaintiffs’ claims are governed by California law.

COUNTERCLAIM COUNT I
Defamation

33. Counter-Plaintiffs repeat and incorporate by reference each of the allegations in the

foregoing paragraphs of this Counterclaim as if fully set forth herein.

34. Kliebert made numerous false statements about Metallicus and Mr. Hayner,

including but not limited to those identified above.

35. Kliebert’s false statements about Metallicus and Mr. Hayner were defamatory

because, among other reasons, they impugned Counter-Plaintiffs’ character, integrity, and business

standing, accused them of crimes and other moral turpitude, and otherwise disparaged their

reputations.

36. Kliebert published his false and defamatory statements about Metallicus and Mr.

Hayner in public forums and made them to persons and entities doing business with and

considering doing business with Metallicus. The recipients of these false and defamatory

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statements included, without limitation, persons using the Apple App Store considering whether

to download the MetalPay App, Premier Live, viewers of other internet forums, and Metallicus

customers and personnel.

37. Kliebert intended to cause harm to Counter-Plaintiffs’ reputations through his false

and defamatory statements.

38. Kliebert’s false and defamatory statements constituted libel per se.

39. Kliebert’s false and defamatory statements caused injury and harm to

Counter-Plaintiffs’ business and reputations, and the loss of business or economic opportunities,

in an amount according to proof.

40. Kliebert acted maliciously, and with the intent to oppress and intimidate

Counter-Plaintiffs, warranting imposition of punitive and exemplary damages in an amount

according to proof.

41. Counter-Plaintiffs pray for relief as set forth in the Prayer, below.

COUNTERCLAIM COUNT II
Intentional Interference

42. Counter-Plaintiffs repeat and incorporate by reference each of the allegations in the

foregoing paragraphs of this Counterclaim as if fully set forth herein.

43. Kliebert knew that Counter-Plaintiffs had economic relationships with vendors,

including but not limited to Premier Live; and with customers and potential customers, including

but not limited to visitors to the Apple App Store and the MetalPay Instagram page. These

relationships had the probability of future economic benefit to Counter-Plaintiffs.

44. Kliebert intentionally engaged in the campaign of threats, defamation, extortion,

stalking, and harassment described above for the purpose of disrupting Counter-Plaintiffs’

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economic relationships. In the alternative, Kliebert knew that his campaign described above was

substantially certain to disrupt Counter-Plaintiffs’ economic relationships.

45. Kliebert’s campaign described above has disrupted Counter-Plaintiffs’ economic

relationships.

46. Counter-Plaintiffs were harmed by the disruption of their economic relationships,

in an amount according to proof, and Kliebert’s campaign described above was a substantial factor

in causing that harm.

47. Kliebert acted maliciously, and with the intent to oppress and intimidate Counter-

Plaintiffs, warranting imposition of punitive and exemplary damages in an amount according to

proof.

48. Counter-Plaintiffs pray for relief as set forth in the Prayer, below.

DEMAND FOR JURY TRIAL

Counter-Plaintiffs demand a trial by jury of all issues so triable in this action.

PRAYER FOR RELIEF

Defendants and Counter-Plaintiffs pray for the following relief:

A. That Plaintiffs’ claims against Metallicus and Mr. Hayner be dismissed with

prejudice and that Plaintiffs take nothing by way of their Original Petition;

B. That judgment on the Counterclaim Counts be rendered in favor of

Counter-Plaintiffs and against Kliebert, and that Counter-Plaintiffs be awarded damages according

to proof against Kliebert;

C. That Counter-Plaintiffs be awarded punitive and exemplary damages against

Kliebert;

D. That Counter-Plaintiffs be awarded their costs incurred in this action;

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 Case 4:19-cv-02250 Document 13 Filed on 07/19/19 in TXSD Page 21 of 21

E. That Counter-Plaintiffs be awarded their attorneys’ fees in defending pursuant to

Section 17.50(c) of the Texas Deceptive Trade Practices Act; and

F. For such other and further relief as this Court deems just and proper.

Dated: July 19, 2019 Respectfully submitted,

MORGAN, LEWIS & BOCKIUS LLP

/s/ Elizabeth M. Chiaviello

Elizabeth M. Chiaviello
Texas Bar No. 24088913
Southern District of Texas No. 3097493
1000 Louisiana Street
Suite 4000
Houston, TX 77002
Tel. +1.713.890.5000
Fax: +1.713.890.5001
Email: elizabeth.chiaviello@morganlewis.com

ATTORNEY-IN-CHARGE FOR
DEFENDANTS METALLICUS, INC. a/k/a
Metal and MARSHALL HAYNER

CERTIFICATE OF SERVICE

I hereby certify that on July 19, 2019 a true and correct copy of the foregoing instrument

was served on all counsel of record who are deemed to have consented to electronic service via

the Court’s CM/ECF filing system.

/s/ Elizabeth M. Chiaviello

Elizabeth M. Chiaviello

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