Egan Litigation Strategy — 2026-04-05

Overview

Strategy session with ^[1] and outside counsel ^[2] and Brandon Conway (Wayne Law) to determine litigation path following new subpoena evidence confirming Egan's fraudulent access to client ad accounts. The team decided to pursue aggressive litigation targeting ~$648k in double damages, with criminal referral held as settlement leverage.

Attendees:
- Sam Wayne — Wayne Law (external counsel)
- Brandon Conway — Wayne Law (external counsel)
- Mark Hope — Asymmetric

Key Decisions

1. Aggressive litigation chosen over walk-away settlement. The "walk away" option (Egan forfeits $120k equity, keeps stolen clients) was rejected as insufficient. Egan's theft of ~$324k in revenue far exceeds the $120k equity forfeiture.

2. Amend complaint to add tort claims. The original complaint was filed without tortious interference claims to force a fast response. The amended complaint will add all tort claims and incorporate new facts from Axley and Tracti subpoenas (and Adava when received).

3. Hybrid fee agreement adopted. $5k/month retainer plus a contingency percentage (less than 50% per ethics rules). Allows full litigation posture without prohibitive upfront cost.

4. Criminal referral as settlement leverage. A formal settlement offer will be made by end of March. If rejected, Asymmetric will refer the matter to the District Attorney. The threat shifts Egan's calculus from financial risk to potential loss of liberty.

5. Damages target: ~$648k+. Base calculation is ~$324k lost revenue (3 clients × ~$9k/month × 36-month average tenure), doubled under CFAA/DTSA, plus punitive damages and attorney fees. Judgment structured to be non-dischargeable in bankruptcy due to fraud.

Legal Claims

Key legal distinction: The claim is not about ownership of client data (owned by Google) or raw ad performance data. It is about Asymmetric's proprietary methodologies — ad configurations, bid strategies, campaign structures — which constitute trade secrets independent of the underlying data.

Evidence & Proof of Causation

New Subpoena Evidence

• Subpoenas from Axley and Tracti confirm Egan used fraudulent Google account access to obtain Asymmetric's ad configurations and weaponized them as a "selling tool" to poach clients.
• Egan lied to Google to create a fraudulent email address, used it to gain unauthorized access, and then explicitly referenced the stolen configurations when soliciting clients.
• Adava subpoena documents still outstanding; Sam to contact opposing counsel Nick Watt to obtain without filing a contempt motion.

AI Sentiment Analysis

• Asymmetric's internal AI tool analyzed all recorded meetings, emails, and communications with all three clients (Axley, Tracti, Adava).
• Result: all three relationships rated "ironclad" — no indication of intent to leave, no contract expiration concerns, consistent positive sentiment.
• Underlying source documents are business records kept in the ordinary course and will be admissible. AI conclusions need not be presented as such.

Timing

• Clients departed after Egan's interference, not when he initially left the company — directly undermining any argument that they would have left regardless.
• Tracti: Asymmetric held a seven-person planning meeting with Tracti one week before they departed.
• Axley: Complex, highly customized ad structure (geotargeting, multiple practice areas) that Egan could not have replicated without stolen configurations.

Damages Analysis

• A damages expert is required to prove causation and quantify harm at trial. Expert will assess actual loss, unjust enrichment to Egan/Silver Path Marketing, and potentially a reasonable royalty. Cost estimated at $10k+.
• Reputational harm and lost capacity (employee layoffs due to cash flow disruption) are secondary damages — harder to prove but potentially recoverable.
• If Egan attempts bankruptcy, the fraud-based judgment is non-dischargeable.

Settlement vs. Trial

Option 1: Walk-Away Settlement (Rejected)

• Egan forfeits $120k equity; Asymmetric recovers nothing for stolen revenue.
• Rejected because Egan's ~$324k revenue theft far exceeds the $120k equity he would forfeit.

Option 2: Aggressive Litigation (Chosen)

• Prepare for trial in full: amend complaint, conduct depositions, hire damages expert, demand forensic disk image of Egan's computer.
• Only accept settlement if the offer is genuinely compelling.
• Criminal referral to DA held in reserve as leverage — to be triggered if settlement offer is rejected by end of March.

Opposing counsel dynamic: Sam Wayne and Egan's attorney Nick Watt have a prior working relationship. Sam will have a direct conversation with Nick to gauge settlement interest and communicate the strength of the evidence and criminal exposure before formal steps escalate.

Action Items

• [ ] Sam Wayne — Contact Nick Watt re: Adava subpoena documents; if not produced, file contempt motion
• [ ] Sam Wayne — Draft and send hybrid fee agreement to Mark ($5k/month + contingency percentage)
• [ ] Sam Wayne — Verify Mark's personal retainer balance; advise Mark to pay if due
• [ ] Sam Wayne — Review Egan's Answer to the complaint (due March 20)
• [ ] Mark Hope — Decide by end of March whether to proceed with criminal referral to DA if settlement offer is rejected

Trial Preparation Steps

1. Amend complaint to add tortious interference and other tort claims
2. Conduct depositions (Egan + client witnesses)
3. Retain damages expert
4. Demand forensic disk image of Egan's computer (to neutral examiner; extract USB logs, cloud sync logs, browser history)
5. Issue discovery requests (first draft already prepared)

Related

• ^[3]
• ^[4]