No. 10-11202 and consolidated cases

In the

United States Court of Appeals

for the Fifth Circuit

No. 10-11202

NETSPHERE, INC. Et Al,

Plaintiffs

JEFFREY BARON,

Defendant-Appellant

ONDOVA LIMITED COMPANY,

Defendant-Appellee

From the United States District Court

Northern District of Texas, Dallas Division

Civil Action No. 3-09CV0988-F

JEFFREY BARON’S RESPONSE TO

VOGEL MOTION TO STRIKE OR FOR LEAVE TO RESPOND TO

RESPONSE OF CARRINGTON, COLEMAN

Case: 10-11202 Document: 00512141063 Page: 1 Date Filed: 02/11/2013

Cons. w/ No. 11-10113

NETSPHERE INC., Et Al, Plaintiffs

JEFFREY BARON, Et Al, Defendants

QUANTEC L.L.C.; NOVO POINT L.L.C.,

Appellants

PETER S. VOGEL,

Appellee

––––––––––––––––––––––––––––––––––––––––––––

Cons. w/ No. 11-10289

NETSPHERE, INC., ET AL, Plaintiffs

JEFFREY BARON, Defendant- Appellant

DANIEL J SHERMAN, Appellee

––––––––––––––––––––––––––––––––––––––––––––

Cons. w/ No. 11-10290

NETSPHERE, INC. ET AL, Plaintiffs

JEFFREY BARON, ET AL, Defendants

QUANTEC L.L.C.; NOVO POINT L.L.C., Non-Party Appellants

PETER S. VOGEL, Appellee

––––––––––––––––––––––––––––––––––––––––––––

Cons. w/ No. 11-10390

NETSPHERE, INC. ET AL, Plaintiffs

JEFFREY BARON, Defendant – Appellant

QUANTEC L.L.C.; NOVO POINT L.L.C., Appellants

ONDOVA LIMITED COMPANY, Defendant – Appellee

PETER S. VOGEL, Appellee

––––––––––––––––––––––––––––––––––––––––––––

Cons. w/ No. 11-10501

NETSPHERE, INC. ET AL, Plaintiffs

Case: 10-11202 Document: 00512141063 Page: 2 Date Filed: 02/11/2013

JEFFREY BARON, Defendant – Appellant

QUANTEC L.L.C.; NOVO POINT L.L.C., Appellants

CARRINGTON, COLEMAN, SLOMAN & BLUMENTHAL, L.L.P., Appellant

PETER S. VOGEL; DANIEL J. SHERMAN, Appellees

––––––––––––––––––––––––––––––––––––––––––––

Cons. w/ No. 12-10003

NETSPHERE, INC. ET AL, Plaintiffs

JEFFREY BARON, Defendant – Appellant

QUANTEC L.L.C.; NOVO POINT L.L.C., Appellants

GARY SCHEPPS, Appellant

PETER S. VOGEL, Appellee

––––––––––––––––––––––––––––––––––––––––––––

Cons. w/ No. 12-10444

In re: NOVO POINT LLC, Petitioner

––––––––––––––––––––––––––––––––––––––––––––

Cons. w/ No. 12-10489

NETSPHERE, INC. ET AL, Plaintiffs

JEFFREY BARON, Defendant –Appellant

QUANTEC L.L.C.; NOVO POINT L.L.C., Appellants

PETER S. VOGEL; DANIEL J. SHERMAN , Appellees

––––––––––––––––––––––––––––––––––––––––––––

Cons. w/ No. 12-10657

NETSPHERE, INC. ET AL, Plaintiffs

JEFFREY BARON, Defendant –Appellant

QUANTEC L.L.C.; NOVO POINT L.L.C., Appellants

PETER S. VOGEL; DANIEL J. SHERMAN , Appellees

Case: 10-11202 Document: 00512141063 Page: 3 Date Filed: 02/11/2013

TO THE HONORABLE JUSTICES OF THE FIFTH CIRCUIT:

COMES NOW Appellant Jeffrey Baron and respectfully shows:

Vogel opens his motion with the standard vitriolic rhetoric designed to cast

erroneous and unsupported aspersions against Jeffrey Baron. Contrary to Vogel’s

wholly unsupported vitriol, the record does not support Vogel’s vitriolic mantra

that Baron has engaged in a campaign of vexatious litigation. Baron has been the

defendant, not the plaintiff, in a series of suits brought by Netsphere, et.al. Baron

prevailed on every suit, including prevailing on appeal in the Ninth Circuit. Most

tellingly, Baron has never been sanctioned for any misconduct, in any court.

Vogel’s misleading argument, makes it appear that Baron hired CCSB and

failed to pay them. To the contrary, CCSB was retained by Ondova, and submitted

a claim in the Ondova bankruptcy estate. Although he had no legal obligation to

do so, Baron agreed to fund the Ondova estate so that CCSB (and every other

Ondova creditor) would be paid in full. Baron funded and provided

approximately two Million Dollars, in cash, to pay CCSB and every other creditor,

and leave a surplus of over one Million Dollars left in the Ondova bank account.

Instead of using that money to pay CCSB, and the other creditors, as had

been agreed in writing, Vogel and Sherman worked together to generate massive

attorneys fees for themselves. From the inception of the receivership, until shortly

before oral argument, Baron had no paid counsel and filed no motions pro se.

Case: 10-11202 Document: 00512141063 Page: 4 Date Filed: 02/11/2013

Yet, Vogel and Sherman emptied, literally, the millions that had been funded

into Ondova. Vogel also has also taken, for himself and his counsel, millions of

dollars in ‘fees’ from the receivership and opposes its termination. If the

receivership is continued, Vogel can extend his billing. For that reason, Vogel and

his counsel have engaged in a never ending motion practice and have now filed

more than seventy-five motions in this appeal.

In the bankruptcy court, CCSB has described the facts this way, “the cycle

seen before in this case occurs again - where a sizable corpus, which was

originally intended to pay claims, is instead eaten up by seemingly fathomless

administrative costs. This is also quite possible as fees, particularly those of the

Receiver, have been reminiscent of the mythological Thessalonian king Erysikhton

[who was inflicted by the goddess Demeter with insatiable hunger]. See Ondova

Bankruptcy Dkt. 899 at 6.

CCSB has attached a copy of Baron’s answer in the involuntary bankruptcy

case– filed by the same group of attorney “claimants” used to ‘justify’ the

receivership. In that answer is a “summary of the disputed claims” detailing the

claims, including as follows:

“e. Ms. Schurig now claims a debt from Mr. Baron of

$93,731.79, but previously swore under oath that she was paid over a

million dollars in fees and that her claim against Mr. Baron was only

for $1,331.50. Further, Mr. Baron provided Ms. Schurig over $2

Case: 10-11202 Document: 00512141063 Page: 5 Date Filed: 02/11/2013

Million to hold in trust, which funds have never been reasonably or

rationally accounted for by Ms. Schurig.”

“a. Mr. Hall had a written contract, capping his fee at $10,000

per month and containing a merger clause requiring any modification

be in writing. Mr. Hall admits being paid in full for 10 months, but

alleges that in the 11th and last month Mr. Baron orally agreed to a

$5,000.00 fee increase. Hall asserts a claim that Baron breached the

written contract by paying the amount specified in the written

agreement, $10,000, as payment in the eleventh month. In light of the

written contract’s merger clause, Mr. Hall’s claim of an oral

modification increasing the fee by $5,000 for the last month is

meritless as a matter of law.”

“b. Mr. Taylor’s contract also has a monthly fee cap, which Mr.

Taylor admits he was paid in full. Mr. Taylor, however, claims that he

is also entitled to a contingency fee. Taylor’s claim is meritless as a

matter of law as, according to Mr. Taylor, “no specific value was ever

negotiated that would be subject to the contingency-fee calculation.”

“c. Mr. Lyon refused to produce his written contract, but

claimed his fee increased from $40/hour to $300/hour as of September

2009, but that he was paid only at $40/hour and thus under-paid From

September/December 2009. Lyon’s claim is shown fictitious and

Case: 10-11202 Document: 00512141063 Page: 6 Date Filed: 02/11/2013

meritless by Lyon’s own email sent to other attorneys in October

2009, seeking more work from Mr. Baron on the basis he was only

charging Baron $40/hour and therefore provided “more bang for the

buck”. Lyon’s own email clearly states and admits that his billing rate

was the $40.00/hour he was paid, and not the $300/hour he now

claims.”

Vogel is the Court’s receiver, not a party. Vogel has no standing by which he

has any right to challenge CCSB’s response to Vogel’s petition for en banc

rehearing. Vogel has offered no reason that his 20 pages of briefing seeking en

banc rehearing are not sufficiently lengthy, and that the Court should be provided,

even more, additional briefing by Vogel.

Accordingly, Vogel’s motion should be in all things denied.

Respectfully submitted,

/s/ Gary N. Schepps

Gary N. Schepps

Texas State Bar No. 00791608

Drawer 670804

Dallas, Texas 75367

(972) 200-0000 - Telephone

(972) 200-0535 - Facsimile

Email: legal@schepps.net

COUNSEL FOR

JEFFREY BARON

Case: 10-11202 Document: 00512141063 Page: 7 Date Filed: 02/11/2013

CERTIFICATE OF SERVICE

This is to certify that this motion was served this day on all parties who receive

notification through the Court’s electronic filing system.

CERTIFIED BY: /s/ Gary N. Schepps

Gary N. Schepps

COUNSEL FOR APPELLANT JEFFREY BARON

Case: 10-11202 Document: 00512141063 Page: 8 Date Filed: 02/11/2013