Nexpera LLC v. Sage Enviro Tech Ltd. et al.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
NEXPERA LLC,
Plaintiff,
VS.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 2:25-CV-00047
SAGE ENVIRO TECH LTD., et al.,
Defendants.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is “Nexpera LLC’s Corrected Motion to Dismiss Daniel
J. Prokop, Sage Enviro Tech, LTD, and Sage Water LTD’s Counterclaims” (D.E. 130).
On August 17, 2026, United States Magistrate Judge Jason B. Libby issued a Memorandum
and Recommendation (M&R, D.E. 174), recommending that Nexpera LLC’s (Nexpera’s)
motion be granted in part and denied in part and that Respondents’ requests for leave to
amend be denied. Daniel J. Prokop (Prokop) timely filed objections (D.E. 182) to which
Nexpera responded (D.E. 190). Nexpera timely filed objections (D.E. 183) to which Prokop
responded (D.E. 184). The Court considers the objections in turn.
A. Prokop’s Objections
1. Antitrust Conspiracy
The M&R concluded that Prokop’s complaint of a conspiracy in violation of § 1 of
the Sherman Antitrust Act failed for lack of sufficient factual allegations of a conspiracy:
concerted conduct among separate economic actors. D.E. 174, pp. 7, 10. Prokop objects
United States District Court
Southern District of Texas
ENTERED
October 14, 2026
Nathan Ochsner, Clerk
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because he named Veolia Water North America Operating Services, LLC (Veolia Water)
as a co-conspirator. D.E. 182, p. 7. And the conspiracy was Nexpera and its agents and
affiliates acting in concert to pursue this litigation—not to vindicate legal rights, but to
exclude others from the KOH regeneration services market and intimidate customers from
pursuing business with Defendants. Id.
The M&R’s analysis specifically references these pleadings, on which Prokop’s
objection rests. And it finds the pleadings conclusory. The Court agrees. There are no
factual allegations to address what conduct Veolia Water engaged in—whether it agreed
to support Nexpera’s lawsuit, whether it provided any labor, funding, or informational
support, and whether its intent was the type of conduct that the antitrust statute was
designed to regulate against. Simply naming Veolia Water as an affiliate of Nexpera in
relation to the use of the KOH regeneration technology is insufficient to make
anticompetitive conduct plausible.
Prokop also objects that the M&R’s concern about the ability of affiliates, as
separate economic actors, to conspire is a matter of fact that cannot be resolved at the Rule
12 stage. D.E. 182, pp. 8-9. While the truth of economic status is a fact question, the basis
for the M&R’s recommendation is the paucity of factual allegations to support an inquiry
into any alleged conspiracy. Without allegations of specific conspiratorial conduct, it does
not matter whether the affiliates are separate economic actors. And without allegations of
each party to the conspiracy’s separate economic interests, that fact question is not
sufficiently raised in the pleadings to make the claim plausible.
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The Court OVERRULES Prokop’s objections to the recommended dismissal of the
Sherman Act § 1 claim for conspiracy to engage in anticompetitive conduct. Because
Prokop’s objections regarding his failure to plead the conspiracy element are overruled, the
Court need not and does not address Prokop’s argument that the other elements of his claim
are satisfied or Nexpera’s argument that unilateral conduct is not actionable. D.E. 190, p. 3.
2. Intentional Interference with Prospective Business Relationships
The M&R concluded that Prokop did not plead sufficient facts to make plausible
his contention that he had prospective business relationships with which Nexpera
interfered. D.E. 174, p. 19. This is in application of the element that “there was a reasonable
probability that the plaintiff would have entered into a business relationship with a third
party.” Id. p. 17.
Prokop objects, claiming that the M&R held his pleadings to the standard for
interference with existing contracts rather than prospective business relationships. D.E.
182, pp. 10-11. While the M&R’s conclusion may be read to address non-existent
contracts, the analysis leading to the conclusion amply included the absence of any
particular prospective business relationships with which Nexpera is alleged to have
interfered. Prokop’s blanket reference to “customers” and identification of the general
parameters of the types of industrial entities that use KOH regeneration services is
insufficient to support a claim that Nexpera’s wrongful conduct affected any particular
prospective business relationships—business deals that Prokop reasonably expected to
have formalized absent Nexpera’s conduct.
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Prokop treats allegations that define a market for anticompetitive purposes as the
equivalent of the identification of prospective business relationships for intentional
interference purposes. D.E. 182, p. 12. But these are two separate elements for two separate
causes of action. Prokop offers no authority for conflating the two. The elements of an
intentional interference claim are geared toward specific customer relationships, whereas
the elements for an antitrust claim are focused on a more general market manipulation.
Pleading one does not equate to pleading the other.
As Nexpera points out in its response, Prokop’s attempt to address a particular
business relationship involves Nexpera’s complaint that Sage took one of Nexpera’s
accounts. That factual allegation is irrelevant. D.E. 190, p. 5 n.3. Prokop’s claim depends
on Nexpera (not Sage), interfering with Prokop’s (not Nexpera’s) customer account(s).
Prokop’s objections to the recommended dismissal of his intentional interference with
prospective business relationships are OVERRULED.
3. Breach of Contract: Third-Party Beneficiary
Prokop claims that he is a third-party beneficiary of a Settlement Agreement and
Release executed by Veolia Water in connection with a trade secrets case filed in Florida
and resolved in December of 2008. See D.E. 174, p. 22 (referring to D.E 129-2). He claims
that Nexpera is bound by the agreement as a successor or assignee of Veolia Water. And
he states four objections to the M&R’s analysis in recommending dismissal of the breach
of contract claims. The Court takes them in logical order.
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First Objection: Nexpera Is a Corporate Successor to Veolia Water. Prokop
objects to the M&R’s failure to determine that—based on judicial admissions—Nexpera is
bound by the 2008 Settlement Agreement as a successor or assign. D.E. 182, p. 17. Instead,
the M&R based its recommendation to dismiss the breach of contract claim on (a) the
inapplicability of the non-disparagement clause to Prokop and (b) Prokop’s failure to allege
facts that implicate the neutral-reference clause. D.E. 174, p. 24. Both arguments assume—
without deciding—that Nexpera is bound as a successor to the terms of the Settlement
Agreement.
The Court finds no error in this approach. The M&R states the limitations of the
factual allegations regarding Nexpera’s prior corporate structure. See D.E. 174, p. 22 n.5.
Because they are not determinative in this context, the Court need not treat Nexpera’s
general assertions—formulated to address Prokop’s allegations—as binding specific
admissions at this time. Prokop’s objection is OVERRULED.
The Two Clauses. The Settlement Agreement contains two provisions that Prokop
has placed at issue here:
1. A neutral-reference clause specifically identifying Prokop and two other
individuals as employees who separated from Veolia Water. D.E. 129-2,
⁋ 4. It requires that references be limited to dates of employment and last
position held.
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2. A non-disparagement clause prohibiting “negative reference to the
character or the business reputation of the non-corporate parties to this
Settlement Agreement.” D.E. 129-2, ⁋ 7.
Prokop’s second and third objections require that we construe the meaning and intent of
these two provisions.
The Settlement Agreement, by its terms, “shall be interpreted and controlled by the
substantive law of the state of Florida without reference to the principles of conflicts of
law.” D.E. 129-2, ⁋ 8(C). Florida law includes standard contract construction rules by
which the court is to read terms according to their ordinary meaning, construe the contract
as a whole, give each word and provision effect, and avoid an interpretation that renders
any term superfluous. Paraiso CU-1, LLC v. PRH Paraiso Four, LLC, 414 So. 3d 271,
274–75 (Fla. Dist. Ct. App. 2025) (citing cases), reh'g denied (July 8, 2025). Here, there
are two different clauses addressing two different types of conduct relating to two different
classes of individuals. As set out more fully below, the Court gives effect to each of those
provisions by refusing to conflate them.
Second Objection: the Non-Disparagement Clause. The M&R recommends
dismissal of any breach of contract claim related to the non-disparagement clause because
it is undisputed that Prokop is not a signatory to the Settlement Agreement. Prokop objects
because it is axiomatic that he does not have to be a party in order to assert a third-party
beneficiary claim. This, he argues, is the precise context in which third-party beneficiary
claims are made. D.E. 182, pp. 13-14, 16.
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But Prokop misunderstands the application of the nonparty issue to his breach of
contract complaint. As Nexpera points out, the non-disparagement clause unambiguously
applies to a specific class of persons: “non-corporate parties to this Settlement
Agreement.” D.E. 190, pp. 6-7 (emphasis added). Because this clause is so limited, it
cannot reasonably be construed as intending to apply to a class that also includes (a) other
nonspecified nonparties or (b) former employees named in a different clause, but who are
not signatories to the agreement.1 Such an application is contrary to the plain language the
parties chose and other contract construction rules, set out above.
Prokop’s discussion of this clause is misdirected. He addresses “non-corporate
parties,” leaving out the remainder of the sentence that states the qualifier: “to this
Settlement Agreement.” He thus seeks to treat “non-corporate parties” as equivalent to
“individuals.” He then seeks to apply the benefit offered to any individual involved in the
case, including himself as a former Veolia Water employee, enforceable through a third-
party beneficiary theory.
Prokop’s application of the terms is inappropriate and an unreasonable construction.
The non-disparagement provision clearly states that it applies to parties. Yet, he seeks to
apply it to nonparties by way of a third-party beneficiary theory, which requires that the
1 Prokop objects that the Magistrate Judge applied the wrong standard of review in describing his argument as a
“stretch.” He claims this expressed the conclusion that his pleading was not convincing rather than not plausible. The
Court reads this statement as an expression that Prokop’s pleading of a breach of this clause exceeds the bounds of
contract construction—a proposition the Court agrees with. A pleading of breach of contract is not plausible when it
is based on a clear misconstruction of an unambiguous contract term. To the extent that Prokop objects to the
Magistrate Judge’s use of an incorrect standard of review, the objection is OVERRULED.
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intent to benefit the third party be apparent on the face of the contract.2 And the language
of the contract refers only to parties. The language of the entire clause leaves no room to
infer that it was intended to apply more broadly than stated. This is not a matter of an
ambiguity of intent to be deferred to trial.
The M&R’s concern about Prokop’s signatory status was addressed to the stated
scope of beneficiaries of the clause at issue: “parties to this Settlement Agreement.” The
M&R did not recommend denying third-party status simply because Prokop was not a
signatory to the agreement. It is because he was not a party to the Settlement Agreement
and thus not a member of the class of persons that the non-disparagement clause was meant
to benefit. Without such an intended benefit, the third-party beneficiary theory does not
apply. The Court OVERRULES Prokop’s objection to the M&R’s limitation of the non-
disparagement clause to those who were parties to the Settlement Agreement.
Third and Fourth Objections: the Neutral-Reference Clause. The M&R
analyzes both contractual clauses in the same section, alternating between them throughout.
But the analysis does not apply equally to both. Separating the recommended holdings by
clause, it appears that the M&R recommends dismissal of Prokop’s breach of contract
theory as addressed to the neutral-reference clause because “Prokop has failed to allege
Nexpera gave Prokop a reference that was not neutral or consisted of anything more than
his dates of employment or last position held.” D.E. 174, p. 24.
2 One element of Florida’s adoption of the third-party beneficiary doctrine is “the clear or manifest intent of the
contracting parties that the contract primarily and directly benefit the third party.” D.E. 174, p. 23. Prokop did not
object to this statement of governing law.
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Prokop objects to this holding in part because it rests on a ground not raised in
Nexpera’s motion. D.E. 182, pp. 18-19 (referencing D.E. 130, pp. 30-33). He contends that
the only issues Nexpera raised were his status as a third-party beneficiary and the litigation
privilege. Id. While the motion emphasizes that the conduct of which Prokop has
complained is in a “public pleading,” that observation was not made to challenge whether
the conduct was proscribed by the neutral-reference clause. Instead, it was made to justify
the application of the litigation privilege. This distinction matters. The objection to resting
dismissal on an argument not raised in the motion is SUSTAINED.
The Court must therefore consider whether the briefing of the objection and
response render the claim for breach of the neutral-reference clause pretermitted. Prokop
objects to dismissal, claiming that Nexpera’s allegations in this public lawsuit regarding
his past employment, termination, and character do, in fact, violate the neutral-reference
provision. D.E. 182, pp. 17-19. Nexpera responds that the M&R was correct because the
neutral-reference clause must be interpreted to govern responses to private requests for
employment references in order to give it effect alongside the separate non-disparagement
clause. D.E. 190, p. 7.
These arguments do not present the same clarity that the non-disparagement clause
presented with its provisions benefiting only parties to the Settlement Agreement. The
neutral-reference clause benefits Prokop, but may not do so to the extent required for third-
party beneficiary status under Florida law. And the public/private communication
distinction may or may not hold up in relation to the separate non-disparagement clause
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after full briefing of contract construction principles. The objection to the characterization
of the conduct precluded by the neutral reference clause is SUSTAINED.
Alternative Grounds/Litigation Privilege. By sustaining Prokop’s objection to the
dismissal of his breach of contract claim regarding the neutral-reference provision of the
Settlement Agreement on the merits, the Court has triggered Nexpera’s conditional
objection that the M&R erred in refusing to apply the litigation privilege to the
disparagement allegations in Nexpera’s pleading—the act constituting the alleged breach.
D.E. 190, pp. 7-8. Anticipating this, Prokop objected in advance to any ruling that uses the
alternative ground of immunity based on the litigation privilege for the reasons stated in
the M&R. D.E. 182, p. 19.
This issue turns on an understanding of Sun Life Assurance Co. of Canada v.
Imperial Premium Finance, LLC, 904 F.3d 1197, 1219 (11th Cir. 2018). Sun Life is the
only authority cited by the M&R and discussed in both parties’ briefing regarding the scope
of the litigation privilege. At issue is whether the privilege immunizes pleading allegations
that serve as the substantive basis for the breach of contract claim. Nexpera argues that it
does. It contends that the Sun Life exception to the privilege applies only to a claim that the
act of filing the pleading (as opposed to its contents) constitutes a breach of contract.
At the center of the Sun Life claim was an insurance policy’s incontestability clause:
“After this Policy has been in force during the lifetime of the [i]nsured for a period of two
years from its Issue date, we [Sun Life] cannot contest it except for non-payment of
[p]remiums.” 904 F.3d at 1206. Sun Life filed a lawsuit more than two years after the issue
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date, contesting the policy on the basis that it was procured “through a fraudulent and
conspiratorial scheme.” Id. at 1204.
The Eleventh Circuit started from the position that all litigation was privileged. But
it noted an exception where the act of filing litigation (as opposed to the statements made
in that litigation) was the subject of the complaint. It cited a malicious prosecution scenario
as an exception to the general privilege rule. Id. at 1219 (discussing Debrincat v. Fischer,
217 So. 3d 68 (Fla. 2017) (“Applying the litigation privilege here would eviscerate this
long-established cause of action for malicious prosecution.” That is because the elements
of the malicious prosecution claim include the filing of the prosecution.)).
Where it was the content of the pleading rather than its filing that was at issue, the
Eleventh Circuit then explained:
We do not think that James, or any other Florida authority,
requires us to extend absolute immunity to the filing of a
lawsuit where that specific act breaches a contract. Although
James allowed an immunity defense to defeat a breach of
contract claim, the underlying conduct for which immunity
was sought—in-court defamatory statements—went directly
to the original purpose of the litigation privilege. Specifically,
James’ statements were made as part of a vigorous defense in
his divorce proceeding and allowing such statements to be the
object of a subsequent lawsuit (either for defamation or
breach of contract) could have a serious “chilling effect.”
Sun Life, 904 F.3d at 1219 (emphasis added; discussing James v. Leigh, 145 So. 3d 1006
(Fla. 1st DCA 2014)). Thus, Sun Life was subject to the breach of contract claim and had
no litigation privilege because it filed an action that contested the policy, not because it
made defamatory allegations of fraud and conspiracy.
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The Sun Life opinion closes its litigation privilege analysis with dicta that the
privilege would not protect a party who solemnly agrees on one day to maintain trade
secrets and then files a lawsuit the next day disclosing those same secrets. This would
appear to conflict with the James opinion, previously discussed, that extended the privilege
to immunize defamatory statements made in litigation when the party had previously
entered into a non-disparagement agreement. But different public policy interests are at
work in protecting trade secrets.
For instance, trade secrets are protected by statute in the public interest because of
the trade investment they represent and their commercial value. This includes protection
from disclosure in litigation. See Fla. Stat. § 688.006 (Uniform Trade Secrets Act)
(authorizing protective orders, in camera hearings, and sealing of court records to protect
trade secrets). In contrast, public policy favors open proceedings regarding potential
disparagement pertinent to litigation over the parties’ private right to contract for secrecy.
See James, supra. Freedom from disparagement has no similar intrinsic value when
contrasted with the interests of open judicial proceedings.
For these reasons, the Court SUSTAINS Nexpera’s objection and OVERRULES
Prokop’s objection, finding that the litigation privilege applies to protect Nexpera’s
pleading as against Prokop’s claim that it violates the neutral-reference clause of the
Settlement Agreement. Consequently, the Court GRANTS Nexpera’s motion and
DISMISSES Prokop’s claim for breach of contract based on the neutral-reference clause.
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4. Leave to Amend
Prokop objects to the dismissal of any claim without first giving him an opportunity
to amend his allegations. D.E. 182, pp. 2, 4, 5, 20-22. A court need not grant a motion for
leave to amend where the movant fails to specify what amendment is desired and how it
would cure its pleading defects. United States ex rel. Willard v. Humana Health Plan of
Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003). When seeking to amend, the movant must set
forth “with particularity the grounds for the amendment and the relief sought.” Id. A “bare
request in an opposition in a motion to dismiss” absent any particular grounds is
inadequate. Id.
Prokop claims that he has adequately pled the claims subject to dismissal or has
indicated the subjects that he would address in his effort to cure his deficiencies. See D.E.
182, pp. 19-20. The Court disagrees. Prokop has not disclosed “facts” that he would add.
Instead, he lists the general subject matter to which any alleged facts would be directed.
He has not set out “facts” when he says he will address corporate structures, the economic
interests of the parties, the subject matter of their agreements, their conduct with respect to
other parties, or the identity of other parties involved in anticompetitive or other wrongful
conduct. These are categories of issues, not facts. To the extent that they are addressed at
all in his objections, they are conclusory, speculative, or fail to address the specific
deficiency identified.
Moreover, the proposed allegations—if they could now be set out with factual
sufficiency—were not first presented to the Magistrate Judge for consideration as required.
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Generally, a claim raised for the first time in objections to an M&R is not properly before
the district court and therefore is waived. United States v. Armstrong, 951 F.2d 626, 630
(5th Cir. 1992); see also, e.g., Place v. Thomas, No. 2-40923, 2003 WL 342287, at *1 (5th
Cir. Jan. 29, 2003) (per curiam).
Prokop has not demonstrated that he can supply the necessary factual allegations
and he has not explained his failure to do so during the proceedings before the Magistrate
Judge. The objections to the M&R’s recommendation to deny leave to amend are
OVERRULED.
5. Prejudicial Dispositions
Last, Prokop objects to the dismissal of his claims being “with prejudice.” D.E. 182,
pp. 22-23. In support of this objection, he claims that any defect in his pleading is curable.
However, as noted above, he has not demonstrated that he can cure the defects. And he has
had adequate time to show how he could do so. Under these circumstances, dismissal with
prejudice is appropriate.
B. Nexpera’s Objections
1. Inconsistent Application of Standard of Review
Nexpera objects to the denial of its motion to dismiss with respect to the Sherman
Act § 2 counterclaims. First, it argues that the Magistrate Judge failed to apply a consistent
standard of review to the factual sufficiency of the § 1 counterclaims (found insufficient)
and § 2 counterclaims (found sufficient). This is not a viable objection because the two sets
of counterclaims involve different fact issues. A consistent pleading standard can generate
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different results when applied to different factual claims. The first objection is
OVERRULED.
2. Pleading of Relevant Market and Market Power
Second, Nexpera argues that Defendants’ allegations of the relevant market and
market power to support the § 2 counterclaims are factually insufficient because they do
not specifically address interchangeability and elasticity of demand. D.E. 183, pp. 2-3. The
cases on which Nexpera relies for this objection involve relatively unskilled labor, such as
tourist services, and retail markets generally known to involve multiple players. Those are
not similar cases.
This is not just an antitrust case. It is a trade secrets case. It involves allegations by
and between all of the parties regarding proprietary information allegedly entitled to
protection because of the competitive advantage it provides in a limited industrial field that
requires large-scale operations. As the Magistrate Judge concluded, this is a matter best
deferred to the evidentiary stage of the case. The pleadings demonstrate that there is a
plausible market subject to injury or abuse with respect to Nexpera’s market power. The
second objection is OVERRULED. Because the Court retains the Sherman Act § 2
counterclaims, it need not and does not address Prokop’s alternative argument regarding
pleading of an attempted monopolization. See D.E. 184, p. 12.
3. Prokop’s Standing
The Magistrate Judge found that Prokop had adequately alleged his standing to
bring his antitrust counterclaims because he asserts that this lawsuit is an effort to restrain
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trade, which is designed to restrict his employment as a technical expert in the field. More
directly, he alleges that Nexpera’s allegations have caused him legal expenses, reputational
harm, and loss of professional opportunities. D.E. 174, pp. 12-13. Nexpera objects, arguing
that Defendant Prokop, as an individual employee, is not a “consumer” or “competitor”
and does not have standing to pursue a Sherman Act antitrust complaint. D.E. 183, pp. 2,
7.
Nexpera’s argument is that Prokop is an employee, whose injuries, if any, are
derivative of those of his employer. It argues that the Magistrate Judge’s contrary holding
is “untethered to any authority.” D.E. 183, p. 8. Yet Nexpera’s authorities do not support
its challenge to an employee’s status as a competitor where his employment is inextricably
intertwined with an employing competitor’s ability to compete in the market. Neither do
the authorities eliminate a finding of a direct antitrust injury where a lawsuit brought by
the employer’s competitor states allegations and makes claims against the employee,
individually.
Standing in the antitrust setting calls for assessment of “several factors: 1) the nature
of plaintiff's alleged injury; 2) the directness of the injury; 3) the speculative measure of
the harm; 4) the risk of duplicative recovery; and 5) the complexity in apportioning
damages.” Bell v. Dow Chem. Co., 847 F.2d 1179, 1183 (5th Cir. 1988). In Bell, the
claimant’s business related to an herbicide applicator and he sought lost profits from a
reduction in sales. The court rejected the claimant’s standing because the market restraint
at issue affected the price and availability of the herbicide—not the applicator. The
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products were in two separate markets, the injury was indirect, and the measure of harm
was speculative. Here, Nexpera seeks to prevent Prokop from pursuing his work in a
specialized industrial market that is the market in which the restraint is alleged. Nexpera’s
claims treat Prokop as a competitor using its trade secrets in Nexpera’s market. See D.E.
184, pp. 13-14 (citing Nexpera’s allegations treating Sage and Prokop alike as
competitors).
In Norris v. Hearst Trust, 500 F.3d 454, 463-65 (5th Cir. 2007), the claimants were
newspaper distributors who were terminated after protesting the newspaper’s alleged
monopolistic moves in the newspaper market—using false data to increase advertising
rates. The distributors were not consumers because they did not buy advertising in the
paper. And they were not competitors because they did not produce any other newspaper
in the market. Their injury was indirect—caused not by the monopolistic conduct but by
their disapproval of it. Here, Nexpera is allegedly seeking to eliminate Prokop’s ability to
use his expertise in competition with Nexpera in the same market. The fact that Prokop is
a Sage employee and does not individually sell and install KOH regeneration technology
does not insulate him against the causes of action brought directly against him in order to
force him to cease and desist his allegedly essential contribution to competition against
Nexpera.
The Magistrate Judge found that it was plausible that Nexpera’s filing of this lawsuit
was an anticompetitive act and there has been no objection to that finding. See D.E. 174,
p. 13 n.4. Prokop alleges injuries directly attributable to Nexpera’s litigation, including
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financial and reputational harm. Consequently, the Court sees no error in recognizing
Prokop’s standing to complain of Nexpera’s lawsuit in antitrust terms. Nexpera’s objection
is OVERRULED.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Prokop and
Nexpera’s respective objections, and all other relevant documents in the record, and having
made a de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation to which objections were specifically directed, the Court
• SUSTAINS Prokop’s objection to the M&R’s basis for dismissal of his
third-party beneficiary breach of contract claim as to the neutral-reference
provision of the Settlement Agreement; and
• SUSTAINS Nexpera’s objection to the M&R’s recommendation against
applying the litigation privilege as an alternative basis to defeat the breach
of contract claim as to the neutral-reference provision.
The Court OVERRULES all of the other objections.
With the modifications to the analysis set out above, the Court ADOPTS as its own
the findings and conclusions of the Magistrate Judge. Accordingly, the Court:
• GRANTS Nexpera’s motion to dismiss as to Sage and Prokop’s § 1
conspiracy antitrust counterclaims (Sage counterclaim 1) (Prokop
counterclaim 2) and those claims are DISMISSED WITH
PREJUDICE;
• DENIES Nexpera’s motion to dismiss as to Sage and Prokop’s § 2
monopoly based antitrust counterclaims (Sage counterclaim 1) (Prokop
counterclaim 2);
• DENIES Nexpera’s motion to dismiss Sage and Prokop’s trade secret
counterclaims (Sage counterclaims 2 and 3) (Prokop counterclaims 4 and
5);
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• GRANTS Nexpera’s motion to dismiss as to Sage’s tortious interference
with contract counterclaim (Sage counterclaim 4) and Prokop’s
interference with existing and prospective business relationships (Prokop
counterclaim 3) and those claims are DISMISSED WITH
PREJUDICE;
• DENIES Nexpera’s motion to dismiss Sage’s unfair competition by
common law misappropriation counterclaim (Sage counterclaim 5);
• GRANTS Nexpera’s motion to dismiss Prokop’s third-party beneficiary
breach of contract claim with respect to the non-disparagement clause of
the Settlement Agreement (Prokop Counterclaim 1);
• GRANTS Nexpera’s motion to dismiss Prokop’s third-party beneficiary
breach of contract claim with respect to the neutral-reference clause of
the Settlement Agreement (Prokop Counterclaim 1); and
• DENIES Sage and Prokop’s requests to be granted leave to amend.
ORDERED on October 14, 2026.
_______________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
Case 2:25-cv-00047 Document 212 Filed 10/14/26 in TXSD Page 19 of 19