filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
15,2018-12-26,RSP,Pohl,Pohl’s response to supp. TCPA motion,"Pohl's combined notice of mandatory stay, response in opposition to motion for leave to file late TCPA motion, and response in opposition to Favre/Precision's TCPA Motion to Dismiss","Filed December 26, 2018 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Filed after Kassab's TCPA motion was denied by operation of law and Kassab noticed an interlocutory appeal on December 18, 2018. Pohl argues a mandatory stay bars consideration of the Favre/Precision TCPA motion. This response addresses both the timeliness of the Favre/Precision motion (filed after the 60-day TCPA deadline) and the merits of the TCPA dismissal arguments.",TCPA-1,N/A,Phase 1,2018-12-26_RSP_Pohl-Response-to-Supp-MTD-TCPA_FILED.pdf,Deny the Motion for Leave to file late TCPA motion; deny the Motion to Dismiss as untimely and on the merits; deny attorney's fees,"12/26/2018 11:52 AM
Chris Daniel - District Clerk Harris County
Envelope No. 29957412
By: Deandra Mosley
Filed: 12/26/2018 11:52 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, § D
LLP d/b/a BAKER NICHOLSON LAW § s 
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL’S
NOTICE OF MANDATORY STAY OF ALL PROCEEDINGS, RESPONSE IN
OPPOSITION TO MOTION FOR LEAVEl TO FILE MOTION TO DISMISS, AND
RESPONSE IN OPPOSITION TO aDEFENDANTS’ MOTION TO DISMISS
Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl (collectively, “Pohl”) provide
this notice that all proceedings are staeyed, respond in opposition to the Motion for Leave to File a
Motion to Dismiss filed by Defenfdants Scott Favre (“Mr. Favre”), Scott M. Favre Public Adjuster,
LLC (“Favre”), and Precisioyn Marketing Group, LLC (“Precision”) (collectively, “Defendants”),
and respond in oppositCion to the Defendants’ Motion to Dismiss (the “Motion”).
In light of the filing of an interlocutory appeal, this case is currently subject to a mandatory
stay, precludinfgf the Court’s consideration of the Motion. In addition, the Motion was not timely
filed andU should be denied for that reason. Finally, the Motion purports to find its basis in the
Texas Citizens’ Participation Act, Texas Civil Practice and Remedies Code Section 27.001 et. seq.
(“TCPA”), but the TCPA does not apply to Pohl’s claims, and even if it did, the Motion would
fail.
THIS CASE IS SUBJECT TO A MANDATORY STAY OF ALL PROCEEDINGS
Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm (“Kassab”) moved to dismiss the claims against Kassab by a kmotion filed on
October 24, 2018. That motion was overruled by operation of law, and Kassabl noticed an appeal
of that denial on December 18, 2018. Kassab’s notice of appeal gave risce to a mandatory stay of
“all other proceedings in the trial court pending resolution of that asppeal.” TEX. CIV. PRAC. &
REM. CODE § 51.014(b). The stay applies to all of the “trial csourt’s proceedings, including all
discovery.” In re Roser, 14-16-00065-CV, 2016 WL 2605686, at *1 (Tex. App.—Houston [14th
Dist.] May 5, 2016, orig. proceeding). The stay precludes this Court’s consideration of the Motion.
See In re Texas Educ. Agency, 441 S.W.3d 747, 750 (Tex. App.—Austin 2014, orig. proceeding.)
(“Conducting hearings and signing the challenaged orders denying supersedeas was an abuse of the
district court’s discretion because it violated the automatic stay of ‘all other proceedings in the trial
court’ under section 51.014(b).”). Tehe mandatory stay of section 51.014(b) prevents the Court
from considering the Motion, or ftaking any other action, until the appeal is resolved. See In re
Bliss & Glennon, Inc., 1-13-y00320-CV, 2014 WL 50831, at *2 (Tex. App.—Houston [1st Dist.]
Jan. 7, 2014, orig. proCceeding) (finding abuse of discretion and granting mandamus relief after
trial court took action during a mandatory stay under section 51.014(b)).
So longf fas the appeal of the denial of Kassab’s TCPA motion to dismiss remains pending,
this CourUt must stay all proceedings, including a hearing on the Motion. Any action taken in
violation of the stay will be voidable. See Roccaforte v. Jefferson County, 341 S.W.3d 919, 923
(Tex. 2011) (noting that a trial court’s actions taken in violation of section 51.014(b) are “voidable,
not void”).
II.
THE COURT SHOULD DENY DEFENDANTS’ MOTION FOR LEAVE TO FILE
THEIR MOTION OUT OF TIME
The TCPA supplies a deadline for filing: “A motion to dismiss a legal action under this
section must be filed not later than the 60th day after the date of service of the leegal action.” TEX.
CIV. PRAC. & REM. CODE § 27.003(b). The 60-day period begins to run upon
service of the original
petition and is not reset by the filing of amended petitions. See Bachararch v. Garcia, 485 S.W.3d
600, 602 (Tex. App.—Houston [14th Dist.] 2016, no pet.). D
Defendants acknowledge in their Motion for Leave thast they filed their Motion to Dismiss
after the deadline had passed. See Motion for Leave at 1.r While a showing of good cause would
permit this Court to allow an out-of-time filing, Defendants failed to request an extension within
the requisite sixty-day period and have failed to lmake such a showing of good cause. TEX. CIV.
PRAC. & REM. CODE § 27.003(b) (“court mMay extend the time to file a motion under this section
on a showing of good cause.” (emphasis added)). The term “showing” indicates that “proof” is
involved and that good cause will be “establish[ed] through evidence and argument.” See Bryan
A. Garner, Black’s Law Dictionary (10th ed. 2014) (defining “showing”).
Defendants attempt but fail to make any showing of good cause. Defendants provide no
explanation for the failure to file timely and therefore no basis on which to rest a finding of good
cause. Instead, cDefendants ask the Court to find that the late filing could not have been
“intentional” because they “had nothing to gain by filing the Motion after the deadline.” See
Motion for Leave at 3. In fact, Defendants did gain something by filing late; because the Court
conducted the hearing on Kassab’s TCPA Motion to Dismiss on November 5, 2018, Defendants
were able to tailor their Motion in response to the Court’s reaction to Kassab’s Motion.
Additionally, even if Defendants did not “gain” anything by a late filing, this is not
evidence of an absence of intent; it is merely a suggestion of an absence of motive. Defendants
have not provided any support for their position that the delay was for good cause.
Defendants similarly have provided no support for their argument that thek late filing was
not the result of conscious indifference. They argue only that the Court shoulld find that counsel
was not consciously indifferent because the filing was only three days clate. See id. Favre had
sixty days within which to file his motion, and his co-defendant Kasssab filed and served a TCPA
motion to dismiss on the fortieth day of that period.1 Kassab’s fsiling would have alerted a careful
lawyer to the impending deadline for his own filing. Defendants’ failure to make a timely filing
after that reminder actually suggests conscious indifference. See Wheeler v. Green, 157 S.W.3d
439, 442 n.1 (Tex. 2005) (characterizing a lawyer’s failure to meet a deadline as an “elementary
mistake” that could warrant a conclusion of inatent or conscious indifference).
Given the absence of any evidence to support their claim for good cause, Defendants’
Motion for Leave should be denied. Peohl respectfully requests that the Court deny the Motion for
Leave and decline to hear the Moftion to Dismiss as untimely.
y III.
RESPCONSE IN OPPOSITION TO MOTION TO DISMISS
A. Background
Defendfafnts, with Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law
Firm’s (cUollectively “Nicholson”) assistance, illegally sold Pohl’s stolen property to defendant
Lance Kassab for $250,000. Through this purchase, Kassab obtained the stolen names, addresses,
and in some instances actual confidential client files of Pohl’s former and potential clients so that
1 Favre was served on September 14, and Kassab filed his motion to dismiss on October 24, 2018.
Kassab could solicit those clients to assert barratry claims. To vindicate his rights, Pohl filed suit
on August 28, 2018. Since the initiation of this case, Kassab and Nicholson have already sought
dismissal of the claims against them; now Defendants ask the Court to hold that their actions in
selling and actually providing the stolen materials are protected by the TCPA. k
In an attempt to contort the application of the TCPA and delay this lalwsuit, Defendants
assert that the TCPA applies to Pohl’s causes of action for conversion of cconfidential information,
misappropriation of trade secrets, and conspiracy without sustaining tsheir burden of demonstrating
why. Contrary to Defendants’ arguments, Pohl’s claims do not starget Defendants for the exercise
of any rights of free speech, petition, or association. Pohl brings claims to hold Defendants
responsible for their wrongful conversion of Pohl’s information and misappropriation of trade
secrets, together with their participation in a conspiracy to commit both torts. The claims on their
face do not implicate the TCPA, and the inquiary should end there.
Defendants have the burden of demonstrating the applicability of the TCPA by a
preponderance of the evidence. See LeFMC Enterprises, LLC v. Baker, 546 S.W. 3d 893, 897 (Tex.
App.—Houston [1st Dist.] 2018,f pet. denied). In spite of this requirement, Defendants offer no
evidence of any kind to suppyort their position that the legal action is based on, relates to or is in
response to DefendantsC’ exercise of any protected right. Instead, Defendants, relying entirely on
non-binding precedent, simply argue that the TCPA necessarily applies to any claim for theft of
trade secrets, cfofnversion, and conspiracy, without examining those claims as they are asserted in
this case.U
Even if Defendants had demonstrated by a preponderance of the evidence that the TCPA
applies, Defendants’ Motion would nevertheless fail. Pohl’s suit is exempt from the TCPA by
virtue of the commercial exception to that statute. See TEX. CIV. PRAC. & REM. CODE § 27.010(b).
The communications at issue with Defendants arose out of a transaction involving the types of
goods and services Precision provides. Precision was primarily engaged in the business of
providing goods and services related to marketing lists, including those for potential customers—
like the converted trade secret information at issue here. The intended audikence for those
communications was Kassab and Montague, who eventually purchased the stollen information. In
a similar fashion, through the combined ownership and control interests inc Precision, which places
them in charge of Precision’s business, Mr. Favre and Favre’s condusct also falls squarely into the
commercial speech exception. s 
Although it is clear that the TCPA does not apply to Pohl’s claims, Pohl fully sets forth his
prima facie case for each element of his causes of action. The pleadings and the affidavits Pohl
supplies can leave no question that he has satisfied the second prong of the TCPA analysis.
Defendants argue but fails to conclusively estaablish the affirmative defense of limitations, which
does not bar Pohl’s claims. 
B. Defendant’s Motion Shoulde Be Denied
The Texas Legislature enfacted the TCPA “to encourage and safeguard the constitutional
rights of persons to petition, sypeak freely, associate freely, and otherwise participate in government
to the maximum extenCt permitted by law and, at the same time, protect the rights of a person to
file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002
(emphasis addefdf). The TCPA is intended to identify and dispose of lawsuits that are “designed to
chill FirstU Amendment Rights, not to dismiss meritorious lawsuits.” In re Lipsky, 460 S.W.3d 579,
589 (Tex. 2015).
“Courts use a ‘two-step procedure to expedite the dismissal of claims brought to intimidate
or to silence a defendant’s exercise of these First Amendment rights.’” Wayne Dolcefino &
Dolcefino Communications, LLC v. Cypress Creek EMS, 540 S.W.3d 194, 198 (Tex. App.—
Houston [1st Dist.] 2017, no pet.) (quoting ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895,
898 (Tex. 2017)). The first step of the TCPA analysis requires that the movant establish by “a
preponderance of evidence that the suit he is seeking to dismiss ‘is based on, relkates to, or is in
response to the [movant’s] exercise of: (1) the right of free speech; (2) the righlt to petition; or (3)
the right of association.’” Id. (alterations in original) (quoting TEX. CIVc. PRAC. & REM. CODE §
27.003). s
If the movant sustains its burden of demonstrating by a psreponderance of the evidence that
the claims asserted in the petition fall within the ambit of the TCPA, and only then, the court turns
to the second step in the process. That step shifts the burden to the non-movant to provide by clear
and specific evidence a prima facie case supporting the elements of its claim. TEX. CIV. PRAC. &
REM. CODE § 27.005(c). In examining awhether a plaintiff has sustained its burden of
demonstrating a prima facie case, a court is obligated to consider “the pleadings and supporting
and opposing affidavits stating the facets on which the liability or defense is based.” Id. § 27.006(a).
A prima facie case is established wfhen the pleadings and evidence supply the “‘minimum quantum
of evidence necessary to suypport a rational inference that the allegation of fact is true.’” In re
Lipsky, 460 S.W.3d atC 590 (quoting In re E.I DuPont de Nemours & Co., 136 S.W.3d 218, 223
(Tex. 2004)).
As set ffofrth below, neither of the two prongs necessary to dismiss claims under the TCPA
are satisfiUed here, and Defendants’ Motion should be denied.
1. Pohl’s allegations on their face do not implicate the TCPA
To determine whether Defendants have proved to the Court by a preponderance of the
evidence that the TCPA applies to Pohl’s claims, the Court should start with the most recent
petition to determine the alleged conduct that forms the basis of the legal action. See Hersh v.
Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (the “basis of a legal action is not determined by the
defendant’s admissions or denials but by the plaintiff’s allegations”). Courts “do not blindly accept
attempts by the [defendants] to characterize [plaintiff’s] claims as implicakting protected
expression.” Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2l015, pet. dism’d).
Instead, courts should “favor[] the conclusion that [the plaintiff’s] claimcs are not predicated on
protected expression.” Id. Further, “any activities by the [defendsants] that are not a factual
predicate for [the plaintiff’s] claims are simply not pertinent to tshe inquiry.” Id.
A movant under the TCPA must establish “a connection between the claims in the lawsuit
and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. In conducting this
review, the Court must view the evidence “in the light most favorable to the nonmovant.” Id. at
199. The Court’s inquiry should focus on (1a) what conduct forms the factual bases for Pohl’s
claims, based on the pleadings and evidence viewed in the light most favorable to him, and (2) the
extent to which that conduct is, as ae matter of law, are protected expression within the TCPA’s
definition. Sloat, 513 S.W.3d at f504.
Examining each of Pyohl’s claims against Defendants makes clear that they are not subject
to the TCPA. As PohlC’s First Amended Petition makes clear, Defendants engaged in conversion
through the act and a participation in Precision’s sale of stolen information to Kassab.2 Defendants’
liability for thisf f wrongful conduct is not based on facts related to the exercise of the rights of free
speech, pUetition, or association. Instead, their liability is based on their conduct of facilitating the
sale and the actual selling of the stolen materials.
2 See Amended Petition at ¶¶ 21–23.
Similarly, Pohl’s TUTSA claim is based on Defendants’ conduct in misappropriating trade
secrets through their sale to Kassab. For the same reasons as above, the factual basis of liability
for this claim does not trigger protections under the TCPA.
Pohl’s conspiracy claim involves Defendants’ overt acts in selling and Pohkl’s trade secrets
and other proprietary information.3 Yet again, nothing in the factual basis of lialbility provided for
this claim is based on or targets Defendants for the exercise of their rightsc of free speech, petition,
or association. s
Pohl has also asserted a claim for breach of contract agsainst Defendants. See Amended
Petition ¶ 35. Defendants have failed to seek the dismissal of the breach of contract claim in their
Motion. See generally Motion (containing no reference or discussion of the breach of contract
claim). Accordingly, Pohl’s breach of contract claim cannot be dismissed.
For all four of Pohl’s claims against aDefendants, the theory of liability is predicated on
wrongful acts, not protected speech or conduct. Pohl brought this lawsuit to vindicate his rights,
and not in response to or based upone any TCPA protected conduct. The pleadings and evidence
the Court must use to determine fif the TCPA applies make this clear. The Texas Supreme Court
has held that the petition is thye “best and all-sufficient evidence of the nature of the action.” Hersh
v. Tatum, 526 S.W.3d C462, 467 (Tex. 2017) (quoting Stockyards Nat. Bank v. Maples, 95 S.W.2d
1300, 1302 (Tex. Comm’n App. 1936)), and Pohl’s Amended Petition establishes that the nature
of the action dof fes not implicate the TCPA.
2.U Defendants have not sustained their burden of demonstrating the applicability
of the TCPA to Pohl’s claims.
As the movants, Defendants have the burden to show by a preponderance of the evidence
that Pohl’s claims are “based on, relate[] to, or [are] in response to [the Defendants’] exercise of”
3 See Amended Petition ¶ 43. See id. ¶ 38.
some protected speech or act. TEX. CIV. PRAC. & REM. CODE § 27.005(b). As set forth above,
Pohl’s claims on their face do not support Defendants’ invocation of the TCPA, and Defendants
are required to show a “connection between the claims in the lawsuit and the alleged protected
conduct.” Wayne Dolcefino, 540 S.W.3d at 201. Also, the Defendants must demoknstrate that the
protected conduct on which the Defendants rely is connected to the “facts on wlhich the liability or
defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a). c
Defendants filed no evidentiary support for their Motion. Aslthough five exhibits were
attached to Favre’s Motion, those exhibits are not verified, and thse Court should decline to consider
them. Defendants have failed to establish by a preponderance of the evidence that Pohl’s claims
are based on any act or communication protected under the TCPA. Instead, Defendants make
sweeping generalizations about the case law and rely on recharacterizations of the allegations in
Pohl’s Amended Petition. Courts have explicaitly rejected this very tactic, holding that defendants
cannot rely on their own theories of what may have motivated a claim or what its underlying basis
might be in order to support a motione to dismiss under the TCPA. See Sloat, 513 S.W.3d at 504
(rejecting the defendant’s effort tfo “recast [the Plaintiff’s] petition as complaining principally” of
actions of protest instead of ythe actions on which the petition was based). Although Defendants
make conclusory asserCtions that Pohl’s claims are “based on” or are “in response to” their alleged
protected conduct, the Court may not “blindly accept” those characterizations of Pohl’s
allegations. Infsftead, the Court must keep in mind that there needs to “be a connection between the
claims inU the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201.
a. No Showing Was Made that the Right of Association is Implicated by Pohl’s Claims
Defendants make unsupported assertions that Pohl’s trade secret and conspiracy claims
implicate their right of association. See Motion at 4–6. Instead of carrying their burden to show
10
that Pohl’s specific claims implicate their right of association, Defendants’ argument confuses
necessary and sufficient conditions; they mistakenly believe that because the TCPA can apply to
a trade secrets claim that it must apply to theirs. That simply does not follow. Even with the heavy
reliance on non-binding authority to argue for their expansive view of the TCPAk’s applicability,
Defendants are still unable to support this conclusion. l
The Motion cites the same two cases (both non-binding) discussicng the application of the
TCPA to cases involving trade secrets as were discussed in the Nichoslson Motion. See Motion at
4–5; Nicholson Motion at 4–5. Although it is certainly possibles for the TCPA to apply to a trade
secrets case, Defendants fail to provide any support for the notion that in every case, the mere
assertion of a trade secrets claim necessarily implicates the TCPA. To suggest that it does leads
to the absurd conclusion that instead of modifying trade secrets procedure directly, the Texas
Legislature decided to modify the administraation of all trade secrets cases through a statute that
does not even reference or deal with trade secrets.
The Motion does not provide eany evidence or even a quote from the Petition to argue that
Pohl’s trade secrets claims are anfalogous to those at issue in the cases cited. Instead, Defendants
rely on generic assertions thayt the TCPA must apply in this case as well. Defendants are required
to provide more to sCustain their burden of demonstrating the statute’s applicability by a
preponderance of the evidence.
Similarflfy, the Motion fails to carry its burden to show that the TCPA applies to Pohl’s
claim of cUonspiracy. Ignoring the fact that Defendants rely heavily on non-binding authority, there
is yet again a failure by the Defendants to carry their burden. Other than a single citation to the
Original Petition (which merely confirms that a civil conspiracy claim was made), no evidence is
provided to the Court at all—let alone evidence sufficient to support the application of the TCPA
11
to this claim. Defendants yet again relies on the mere existence of a conspiracy claim to trigger
the application of the TCPA. No legal authority is provided to support this idea. And again, it
would lead to ridiculous results for this Court to hold that Defendants can take advantage of the
TCPA merely by pointing out that a conspiracy claim was made, without also esktablishing by a
preponderance of the evidence that the factual basis of the claim implicates thel TCPA.
b. No Showing Was Made that the Right to Free Speech is Implicatecd by Pohl’s Claims
The Motion’s arguments related to free speech focus not on sPohl’s claims, but rather on
the Defendants’ conduct subsequent to engaging in the wrongfusl acts that form the basis of Pohl’s
claims. The problem with this approach should be immediately apparent to this Court. To allow
this to trigger the TCPA would allow Defendants to manufacture TCPA applicability. Defendants
could engage in wrongful conduct and then simply undertake activities afterwards that involve
speech or association to ensure that the TCPAa applies to claims brought against them. This cannot
be the way the TCPA works, and it is not the way it works.
In this case, the Defendanets are not being sued for bringing barratry claims or
communicating about alleged attforney misconduct. Defendants are being sued for selling stolen
trade secrets. This is not a ysituation where a plaintiff is suing defendants regarding defamation
related to their commuCnications and complaints about barratry. Defendants’ conduct subsequent
to their sale of the stolen trade secrets is not the basis of their liability. Defendants cannot carry
their burden tof fshow that Pohl’s claims implicate their free speech rights. Nothing in the four
paragraphUs of Pohl’s Original Petition cited by the Motion show that Pohl’s claims are based on
communications by Defendants that implicate their right to free speech. See Motion at 7–8 (citing
paragraphs 19–23 of Pohl’s Original Petition).
12
It should not be surprising that Defendants’ Motion does not discuss Pohl’s actual claims
in its arguments—to do so would illustrate that they are not based on Defendants exercising any
free speech rights. Defendants’ wholesale failure to support by a preponderance of the evidence
their position that the TCPA applies is fatal to the Motion. The Court should denyk the Motion on
that basis alone. l
3. Even if the TCPA otherwise applies, the commerciacl exception precludes
dismissal here. r
Even if Defendants had sustained their initial burden to showD the applicability of the TCPA,
the commercial exception to its application applies to Pohl’s cslaims. The TCPA provides:
This chapter does not apply to a legal action brorught against a person primarily
engaged in the business of selling or leasing goods or services, if the statement or
conduct arises out of the sale or lease of goods, services, or an insurance product,
insurance services, or a commercial transaction in which the intended audience is
an actual or potential buyer or customer. l
TEX. CIV. PRAC. & REM. CODE § 27.010(bM). The Texas Supreme Court has interpreted this as
requiring the following four-part test:
(1) the defendant was primarily engaged in the business of selling or leasing goods
[or services], (2) the defefndant made the statement or engaged in the conduct on
which the claim is based in the defendant’s capacity as a seller or lessor of those
goods or services, (3y) the statement or conduct at issue arose out of a commercial
transaction involving the kind of goods or services the defendant provides, and (4)
the intended aCudience of the statement or conduct were actual or potential
customers of the defendant for the kind of goods or services the defendant provides.
Castleman v. Intecrnet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018).
It is notable that the Motion does not even attempt to claim that the commercial speech
exception to the TCPA does not apply to Precision. See Motion at 9–12. The allegations against
Precision are precisely the situation that the commercial speech exception was made for: (1) As a
marketing firm, Precision is primarily engaged in the business of providing goods and services
related to marketing lists, including those for potential customers—like the converted trade secret
13
information at issue here; (2) Precisions’ conversion and sale of Pohl’s trade secrets was done in
its capacity as a seller of its marketing goods and services; (3) the conversion and sale of Pohl’s
trade secrets was a commercial transaction involving the marketing goods and services Precision
provides; and (4) Precision’s intended audience for that conduct was its actual cukstomer, Kassab
as the purchaser of the converted trade secrets. All four elements of Castlemanl are clearly met.
In a similar fashion, through the combined ownership and controlc of Precision, Mr. Favre
and Favre’s conduct also fall squarely into the commercial speech esxception. See Castleman v.
Internet Money Ltd., 546 S.W.3d 684, 689 (Tex. 2018) (discusssing how the “capacity” of the
person is relevant to whether the person was primarily engaged in selling goods or services). The
basis of Mr. Favre and Favre’s liability in this case stems from their actions taken in their capacity
as owners and managers of Precision.
The Motion attempts to shift away froma the commercial speech exception by distinguishing
between other activities undertaken by Mr. Favre and Favre (such as public adjusting) and the
marketing activities of Precision. Seee Motion at 10–12. However, Castleman makes clear that it
is possible to for both Mr. Favref and Favre to have multiple capacities, including ones that are
primarily engaged in selling ygoods or services.
4. There iCs clear and specific evidence demonstrating a prima facie case.
Defendants’ failure to demonstrate the applicability of the TCPA relieves Pohl of any
burden of demfofnstrating a prima facie case of his claims. Furthermore, Pohl has established the
applicabiUlity of the commercial exception to the TCPA, which likewise obviates the need to show
a prima facie case. Pohl nevertheless sets forth below the clear and specific evidence found in his
14
Amended Petition and the attached affidavits for each element of the claims he has asserted against
Defendants.4
In examining whether a plaintiff has sustained its burden of demonstrating a prima facie
case, the Court is obligated to consider “the pleadings and supporting and oppkosing affidavits
stating the facts on which the liability or defense is based.” TEX. CIV. PRCAlC. & REM. CODE §
27.006(a). Where a plaintiff provides enough detail in his pleading to “schow the factual basis for
its claim,” such a pleading “is sufficient to resist a TCPA motion tos dismiss.” In re Lipsky, 460
S.W.3d 579, 591 (Tex. 2015). A prima facie case is establisheds when the pleadings and evidence
supply the “‘minimum quantum of evidence necessary to support a rational inference that the
allegation of fact is true.’” Id. at 590 (quoting from In re E.I DuPont de Nemours & Co., 136
S.W.3d 218, 223 (Tex. 2004)).
The nonmovant’s evidence of a primaa facie case must be “clear and specific” in order to
avoid dismissal, id. § 27.005(c), although the statute does not define “clear and specific.” The
Texas Supreme Court, in Lipsky, refeerenced “clear” as meaning “‘unambiguous,’ ‘sure,’ or ‘free
from doubt,’” and “specific” as “f‘explicit’ or ‘relating to a particular named thing.’” Lipsky, 460
S.W.3d at 590; see also S &y S Emergency Training Sols., Inc. v. Elliott, ---S.W.3d---, 17-0628,
2018 WL 6711322, at C*3 (Tex. Dec. 21, 2018). The Court has also held that “direct evidence of
damages is not required, but the evidence must be sufficient to allow a rational inference that some
damages naturaf flly flowed from the defendant’s conduct. See Lipsky, 460 S.W.3d. at 591, 592.
InU his Amended Petition, Pohl asserts four causes of action against Defendants: (1) breach
of contract; (2) conversion; (3) violations of the Texas Uniform Trade Secrets Act, Texas Civil
Practices and Remedies Code Chapter 134A (“TUTSA”); and (4) conspiracy to commit conversion
4 In support of this Response, Pohl has attached two sworn documents, the affidavit of Billy Shepherd, Exhibit A, and
the declaration of Michael Pohl, Exhibit B.
15
and to violate TUTSA. Pohl sets forth in detail below the clear and specific evidence
demonstrating a prima facie case of each of these claims.
Because Defendants have not moved to dismiss Pohl’s breach of contract claim, Pohl is
not required to provide a prima facie case of that claim. Pohl can nevertheless ekstablish such a
prima facie case by demonstrating the existence of the Settlement Agreement land release, Pohl’s
performance under that agreement, Defendants’ failure to perform under thcat Agreement by selling
Pohl’s confidential materials to Kassab; and Pohl’s damages resultisng from that sale. See, e.g.,
Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636s (Tex. App.—Houston [1st Dist.]
2002, pet. denied) (setting forth elements of a breach of contract claim).
The elements of the conversion claim are that (a) Pohl owned and owns certain property
and information; and (b) Defendants wrongfully exercised dominion and control over Pohl’s
property in contravention of Pohl’s rights aby participating in the sale of the property and
information to Kassab for $250,000. The elements of a violation of TUTSA against Defendants
are that Defendants, without Pohl’s econsent knowingly participated in the sale of Pohl’s trade
secrets to Kassab for $250,000. f Finally, the conspiracy claim alleges that Defendants acted in
combination with other defyendants and committed overt acts toward unlawful conversion and
misappropriation. C
Pohl’s pleading—the First Amended Petition—sets forth in abundant detail each element
of each cause foff action. Pohl alleges that he hired defendant Precision Marketing Group, LLC
(“PrecisioUn”) to assist him in gathering and preserving evidence and liaise with Pohl’s clients.5
Precision thereby gained access to Pohl’s confidential and proprietary information relating to his
client’s identity and their detailed contact information.6 The information and property also included
5 Amended Petition ¶¶ 19–20.
6 Id. ¶ 20.
16
actual attorney-client fee agreements with clients/prospective clients, compilations of clients, other
confidential communications between the clients/prospective clients and Pohl, specialized legal forms
that had been prepared in compliance with various state laws after consultation with local counsel in
those jurisdictions, Pohl’s proprietary administrative client forms, fee-agreement fokrms prepared in
accordance with the laws of various states, internal emails, propriety marketing inlformation and other
trade secrets, and other work product relating claims of Pohl’s clients cand prospective clients.7
Despite Defendants’ claims to the contrary, these materials belonged tos Pohl, not Precision.
After a dispute arose between Pohl and Defendants concesrning the Defendants’ provision of
services, Pohl, Precision and Mr. Favre entered into a binding Settlement Agreement dated late April
and early May 2017.8 The Settlement Agreement expressly provides that Mr. Favre and Precision
will return to Pohl all originals and all copies of documents in their and their counsel’s possession,
custody, or control that concern or identify all apast or current clients or prospective clients of Pohl,
and that Mr. Favre and Precision will delete all such electronically stored information.9 The
Settlement Agreement also providede that Mr. Favre and Precision would not cause any claim,
complain, or legal action to be filefd f or made against Pohl.10 Defendants breached each aspect of the
Settlement Agreement by failying to return or delete the materials as promised and by causing claims,
complaints and legal acCtions—not their own—to be filed and prosecuted against Pohl.11 The very
existence of the cases that Kassab, Montague, and Nicholson are pursuing against Pohl is a breach of
the Settlement Af fgreement.12
7 Id.
8 Id. ¶¶ 30, 31.
9 Id. ¶ 31.
10 Id. ¶ 32.
11 Id. ¶ 32.
12 Id. ¶ 32.
17
Defendants, with the assistance of Nicholson who helped broker the transaction and
actually provided Pohl’s stolen information and property to Kassab, secretly entered into an
agreement with Kassab and defendants F. Douglas Montague III and Montague Pittman &
Varnado, P.A. (collectively, “Montague”) to sell Pohl’s stolen confidential inkformation and
property.13 Defendants, with the assistance of Nicholson, struck a rich balrgain; Kassab and
Montague paid Favre $250,000.00 in cash together with substantial bonuses.c14 Kassab and Montague
knew that the information and property that they were purchasing was sstolen and not Favre’s and/or
Nicholson’s to sell.15 Defendants and Nicholson likewise knews that the information and property
that they were selling or helping to sell was stolen and belonged to Pohl.16
The sale and unlawful disclosure of Pohl’s proprietary, confidential and trade secret
information was made even more egregious by the fact that from the outset of the relationship between
Pohl and Precision, Pohl made clear to Precisioan and its representatives the confidential nature of the
above listed information.17 Precision and its representatives expressed their understanding of the
confidential and proprietary nature of ethe information and that the information belonged to Pohl.18
In addition, as described afbove and in conjunction with the sale of Pohl’s information and
property to Kassab and Montaygue, all Defendants converted Pohl’s confidential information/property
by knowingly and uCnlawfully assuming and exercising dominion and control over that
information/property in a way that was inconsistent with Pohl’s ownership. Each of the Defendants,
individually andf f in combination with each other, misappropriated Pohl’s trade secrets in violation of
the TUTUSA by unlawfully obtaining and using Pohl’s confidential and trade secret
13 Id. ¶ 22–23.
14 Id. ¶ 23 & Exhibit B.
15 Id.
16 Id.
17 Id.¶ 25.
18 Id.
18
information/property in the sale of such information/property to Kassab and Montague and continuing
to use Pohl’s information and property to solicit cases against Pohl.19
These specific, detailed allegations of each element of breach of contract, conversion, theft
of trade secrets, and conspiracy are by themselves sufficient to set forth a prima fackie case meeting
the requirements of the TCPA. TEX. CIV. PRAC. & REM. CODE § 27.005(a); se
e allso Hicks v. Group
& Pension Administrators, Inc., 473 S.W.3d 518, 526 (Tex. App.—Corpucs Christi 2015, no pet.).
Although Pohl’s Amended Petition establishes a prima facie csase without the necessity for
further inquiry, Pohl provides additional evidence to supposrt his prima facie case against
Nicholson in the form of the attached affidavit of Billy Shepherd and the exhibits thereto, as well
as the declaration of Michael Pohl.
As quoted above, Kassab supplied an affidavit in which he admitted that he obtained from
Defendants and Nicholson information that iancluded the names and addresses of Pohl’s former
clients and prospective clients.20 
The admissions of both Kasesab and Nicholson make clear that it is not disputed that
Montague and Kassab bought inffo f rmation relating to Pohl’s client lists from Defendants.21 Most
elements of Pohl’s prima faycie case are therefore uncontroverted. The only controverted fact
involves ownership of Cthe materials, as Defendants claim that the materials belong to them, while
Pohl contends that the materials were his. This disputed fact is one as to which Pohl has provided
prima facie profoff.22
TUhe attached affidavits provide prima facie evidence of the following facts. Favre, the
Kassab Law Firm and Montague, Pittman and Varnado, P.A., represented by Nicholson, entered
19 Id. ¶ 33.
20 See page 2 of the Declaration of Lance Christopher Kassab.
21 Id.
22 Amended Petition ¶ 20; Declaration of Michael Pohl ¶¶ 4–6, attached as Exhibit B hereto.
19
into an Agreement, dated November 10, 2016, executed by Lance Kassab (the “Favre–Kassab
Agreement”).23 The Favre–Kassab Agreement contains many relevant provisions, including:
• That Kassab and Montague will pay Favre an hourly rate of $250, a large per-case fee,
and an “upfront advance pay retainer to Favre forin [sic] the amount of k$250,000 to be
credited against first fees earned by Favre. This retainer is fully eCarlned at the time of
payment and is not refundable. Subsequent hourly fees are not toc be credited against the
retainer.”24 s
• That Kassab and Montague “shall indemnify and hold hsarmless Favre for from [sic] any
and all costs he incurs in defending claims relatingg to an/or arising from the disclosure of
any client information where such claims areB asserted by . . . Michael Pohl. . . . Favre
certifies that he is not aware of any contractual or legal provision that prohibits him from
making such disclosure to [Kassab anad Montague].”25
• That the parties “agree that this Af greement is confidential and shall remain confidential
for all times.”26 e
On its face, the Favre–Kassab Afgreement proves that Kassab agreed to pay Favre an enormous
upfront payment of $250,000, together with substantial sums over time. The amount of the
payment alone is primaC facie evidence that Defendants knew that the confidential information and
material they were selling was not publicly known and that it belonged to Pohl.
The Favfre–Kassab Agreement also obligates Kassab to indemnify Favre from claims that
Pohl migUht bring—making clear that Nicholson and Favre contemplated that Pohl might assert
23 A copy of the Favre–Kassab Agreement is attached as Exhibit 3 to the Shepherd Affidavit, attached hereto as Exhibit
A, and also to the Amended Petition as Exhibit D.
24 See Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit, Exhibit A hereto, Exhibit D to the Amended
Petition, p. 1.
25 Id. p. 3.
26 Id.
20
such claims at the time he executed the agreement. What possible reason could there be for
Nicholson to require Kassab to indemnify if Defendants owned the materials and information that
was the subject of the Favre–Kassab Agreement? Why would indemnity be necessary if the
information and materials were publicly known? Again, these facts support Pohkl’s prima facie
case of misappropriation. l
Similarly, the requirement in the Favre–Kassab Agreement thcat the parties keep the
agreement confidential suggests that the parties understood that disclsosure of the existence of the
agreement and its terms might raise substantial issues. If thes materials and information were
publicly known and belonged to Defendants, what was the necessity for confidentiality? Each of
these facts supports Pohl’s allegation that the materials and information were trade secrets and that
Kassab knew that the confidential information and material he purchased from Favre was stolen.
Mr. Favre’s testimony regarding the paarties’ performance of the Favre–Kassab Agreement
provides additional support for Pohl’s contentions. In a hearing conducted on October 25, 2017
in Cause No. 1:14-cv-381-KS-JCG, Secott Walker, et al. v. Jimmy Williamson, et al., in the United
States District Court for the Sofuthern District of Mississippi, Southern Division (“Walker v.
Williamson Litigation”),27 Myr. Favre confirmed that Kassab, Montague or their firms had in fact
paid the $250,000 to FCavre.28 Mr. Favre testified that he did not sell attorney/client fee contracts
to Kassab and Mon a tague but instead gave them away to Nicholson.29 Mr. Favre acknowledged
that an email, fdfated December 7, 2016 and sent from Montague to Kassab and others, reflected
that Mr. FUavre had called to check that Kassab’s office had been receiving Dropbox deliveries of
27 A copy of the relevant portions of the October 25, 2017 hearing transcript in the Walker v. Williamson Litigation is
attached hereto and to the Amended Petition as Exhibit 2 to the Shepherd Affidavit.
28 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 63.
29 Id. at 92–93.
21
contracts over the last several days.30 Mr. Favre testified that between the time he received the
payment of $250,000 and April 2017, he had received no fees, provided no work and exchanged
no documents under the Favre–Kassab Agreement.31
Nicholson’s testimony contradicts Mr. Favre’s testimony in at least onke enlightening
way.32 Nicholson testified that Mr. Favre did not give her the Pohl fee conltracts; instead, she
believes he gave them to “one of her co-counsel in the Texas cases agcainst Mr. Pohl.”33 Mr.
Favre’s and Nicholson’s testimony and the emails about which they tsestify further support Pohl’s
prima facie case of intentional misappropriation, conversion sand conspiracy. The emails and
testimony confirm that Scott M. Favre, P.A. was in fact paid $250,000, and that Kassab and
Montague understood that they were to receive Dropbox deliveries of contracts. The large amount
of the payment to Favre, in advance of the delivery of contracts to the Dropbox and the absence of
any further work by Favre, supports a strong ainference that the payment was in fact in exchange
for the contracts and not for any future services. Mr. Favre’s testimony that he had given the
attorney/client fee contracts to Nichoelson and Nicholson’s disavowal of that testimony strongly
suggests that each witness hopesf to distance him or herself from the ultimate transfer to Kassab.
This contradiction supports Pyohl’s allegation that all parties to the Favre–Kassab Agreement knew
that the files and informCation being transferred had been converted or misappropriated.
As lawyers, Nicholson, Kassab, and Montague knew that the materials that were being
bought and soflfd included confidential information protected by the attorney–client privilege,
30 Id. at 95; see also email dated December 7, 2016, attached as Exhibit C to the Amended Petition.
31 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 121–27.
32 See Deposition of Tina Nicholson, dated November 27, 2017, attached as exhibit 5 to the Shepherd Affidavit at
65:11–66:10.
33 Id. at 66:7–9.
22
including actual attorney–client fee agreements.34 Mr. Favre has confirmed under oath that he
maintained the materials as confidential and protected them as valuable trade secrets.35
In sum, Pohl’s prima facie evidence in the form of both pleadings and affidavits
demonstrates each element of each of Pohl’s causes of action as set forth below: k
BREACH OF CONTRACT l
• Favre, Precision and Pohl entered into a binding agreemenct.36
• Pohl timely and fully performed that agreement.37 s
• Favre and Precision breached that agreement.38 s
• Pohl suffered damages.39 g
CONVERSION B
• The information and materials Deyfendants sold to Kassab was personal property
subject to conversion.40 a
• Pohl owned the informatiofn and materials Defendants sold.41
• Defendants wrongfully exercised dominion and control over the property.42
• Pohl has incurOred actual damages caused by Defendants’ conversion by at a
minimum hpis loss of the intrinsic value of the materials.43
34 Amended Petition ¶ 20.
35 See Affidavit off f Scott Favre, filed in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et
al., in the United States District Court for the Southern District of Mississippi, Southern Division, and attached as
Exhibit 7 to the Affidavit of Billy Shepherd.
36 Amended Petition ¶¶ 30, 31.
37 Amended Petition ¶ 35.
38 Amended Petition ¶¶ 32, 35.
39 Amended Petition ¶ 32, 35.
40 Amended Petition ¶¶ 20–21, 27; Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit; Email, Exhibit 4 to
the Shepherd Affidavit.
41 Amended Petition ¶¶ 20–21, 27, 38; Declaration of Michael Pohl ¶¶ 4–5.
42 Amended Petition ¶¶ 20, 21, 27; Declaration of Michael Pohl¶¶ 4–8.
43 Amended Petition ¶ 38; Favre Kassab Agreement, Exhibit 3 to Shepherd Affidavit (demonstrating that Kassab
placed a value on the materials of at least $250,000); Affidavit of Michael Pohl ¶¶ 5–7, 10, 12.
23
MISAPPROPRIATION OF TRADE SECRETS
• Pohl owned trade secrets.44
• Pohl maintained that information as a secret, taking substantial measures to
maintain its confidentiality.45 k
• The information has independent economic value from not beCin l g generally known
to, and not readily being ascertainable through proper mceans by, another person
who can obtain economic value from the disclosure or s use of the information.46
• Defendants misappropriated the trade secrets bsy participating in their sale with
knowledge that they had been acquired throgugh improper means—i.e., by theft.47
• The misappropriation damaged Pohl iBn the form of both actual loss and unjust
enrichment.48 y
• Defendants’ misappropriation a was willful and malicious.49
CONSPIRACY f
• Defendants were members of a combination of two or more persons.50
• The agreed objeOct of the combination was to accomplish the unlawful purposes of
conversion pand misappropriation of trade secrets.51
• Defendants and the other conspirators committed tortious overt acts to further the
objeict of the conspiracy.52
44 Amended Petition ¶¶ 20–21, 39; Declaration of Michael Pohl ¶¶ 4–5.
45 Amended Petition ¶ 39; Declaration of Michael Pohl ¶ 11.
46 Amended Petition ¶ 39; Declaration of Michael Pohl ¶ 12.
47 Amended Petition ¶¶ 40–41; Declaration of Michael Pohl ¶ 7.
48 Declaration of Michael Pohl ¶ 13.
49 Amended Petition ¶ 41; Declaration of Michael Pohl ¶¶ 5–8.
50 Amended Petition ¶¶ 33, 43.
51 Id. ¶ 43.
52 Id. ¶¶ 23, 27, 38, 43.
24
• Pohl suffered injury as a result.53
Pohl denies that Defendants have demonstrated by a preponderance of the evidence that
Pohl has asserted a legal action based on related to or in response to Defendants’ exercise of rights
to free speech, petition, or association. To the extent that the Court disagrees, Pokhl has provided
clear and specific evidence to support his petition, and the Court should denyC Dlefendants’ Motion.
5. Defendants cannot conclusively establish the defense ocf limitations.
Defendants argue that, even though Pohl may be able to establish a prima facie case, they
are still entitled to dismissal because they can establish by a prseponderance of the evidence each
essential element of the affirmative defense of limitations. This defense is not available, and
Defendants have not established it—let alone by a preponderance of the evidence.
The parties entered the Settlement Agreement in April and May 2017. Limitations for
breach of contract is four years. TEX. CIV. PaRAC. & REM. CODE § 16.051; Stine v. Stewart, 80
S.W.3d 586, 592 (Tex. 2002). The breach of contract claim is not time-barred.
As to the remainder of the claiems against Defendants, Kassab purchased the stolen material
from the Defendants by virtue of tfhe Favre–Kassab Agreement, which was executed on November
10, 2016, well under two yeayrs prior to the filing of this suit. Pohl’s claims against Defendants are
based on that purchase,C and no claim has a limitations period of less than two years. See TEX. CIV.
PRAC. & REM. CODE § 16.003(a) (two-year limitation period for conversion); TEX. CIV. PRAC. &
REM. CODE § 1f6.010(a) (three-year limitation period for TUTSA violations); Mayes v. Stewart,
316 S.W.U3d 715, 719 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Defendants contend that limitations bars this action because they engaged in wrongful
conduct more than four years ago. See Motion at 13–15. But, the Amended Petition makes clear
53 Amended Petition ¶ 43; Declaration of Michael Pohl ¶ 14.
25
that the wrongful conduct to which they refer is not the basis of this lawsuit. Furthermore, Pohl
was not aware of the claims in this case in the two year period prior to the filing of this case.
Declaration of Michael Pohl ¶ 9. Defendant has not established the defense of limitations and their
Motion to dismiss cannot be granted on that ground. k
C. Defendants Are Not Entitled to Attorney’s Fees l
Defendants are not entitled to an award of attorneys’ fees becausec their Motion should be
overruled. Furthermore, Defendants fail entirely to support their cslaim for fees. Defendants’
Motion mentions attorney’s fees precisely once. In the final ssentence, Defendants requests an
award of fees. Defendants provides no argument, and more to the point no evidentiary support for
an award of attorneys’ fees. Without an affidavit or other evidence proving the expenditure of fees
and the amount, the Court should decline to award fees in any amount. See Sullivan v. Abraham,
488 S.W.3d 294, 299–300 (Tex. 2016) (movaant has the burden of proof on fees, “‘includ[ing], at
a minimum, documentation of the services performed, who performed them and at what hourly
rate, when they were performed, ande how much time the work required.’” (citation omitted)). In
the absence of such proof, the Cofurt is not empowered to award fees.
y CONCLUSION
For the foregoiCng reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the Motion be in all respects denied.
26
Dated: December 26, 2018 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorneys for PlaintiDffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 26th day of December, 2018.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
27"
9,2018-11-01,RSP,Pohl,Pohl’s response opposing TCPA MTD,Pohl's Response in Opposition to Kassab's TCPA Motion to Dismiss,"Filed November 1, 2018 in response to Kassab's October 24, 2018 TCPA Motion to Dismiss. Pohl opposes dismissal on three grounds: (1) the TCPA does not apply to his claims, (2) even if it did, the commercial speech exception bars application, and (3) Pohl has established a prima facie case. Includes alternative motion for continuance and discovery. Filed in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas.",TCPA-1,N/A,Phase 1,2018-11-01_RSP_Pohl-Response-to-Kassab-MTD-TCPA_FILED.pdf,"Deny the TCPA Motion to Dismiss in all respects; award Pohl costs and fees of $33,352; alternatively, grant continuance and permit discovery under §§ 27.004(c) and 27.006(b)","11/1/2018 7:18 PM
Chris Daniel - District Clerk Harris County
Envelope No. 28744115
By: Deandra Mosley
Filed: 11/1/2018 7:18 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL’S
RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
PURSUANT TO THE TEXAS CITlIZENS PARTICIPATION ACT
Plaintiffs Michael Pohl and Law OfMfices of Michael A. Pohl (collectively, “Pohl”) respond
in opposition to the Motion to Dismiss filed by Defendants Lance Christopher Kassab and Lance
Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively, “Kassab”). Kassab’s Motion
to Dismiss (the “Motion”) purports to find its basis in the Texas Citizens’ Participation Act, TEX.
CIV. PRAC. & REM. CODEo § 27.001 et. seq. (“TCPA”), but as set forth below the TCPA does not
apply to Pohl’s claims, and even if it did, the Motion would fail.
c I.
INTRODUCTION
Kassab paid $250,000 to obtain the stolen names, addresses, and in some instances actual
client files of Pohl’s former clients and potential clients so that Kassab could solicit those clients
to assert barratry claims. Kassab attempted to disguise the purchase as the engagement of a
putative “expert witness,” whom he agreed to indemnify in the event that Pohl asserted claims for
the theft. Now that Pohl has asserted the anticipated claims, Kassab asks the Court to hold that his
actions and communications in purchasing and using the stolen materials are protected by the
TCPA.
Despite having advocated directly inconsistent positions regarding the kTCPA in other
litigation with Pohl in front of this Court, Kassab brought a meritless Motionl.1 In an attempt to
contort the application of the TCPA and delay this lawsuit, Kassab assercts that the TCPA applies
to Pohl’s causes of action for conversion of confidential information asnd misappropriation of trade
secrets because of the purported motivation behind the assertions of those claims. The TCPA does
not apply because of a defendant’s mere assertion of the motivation for the filing of a claim;
instead, courts consider only whether the factual bases for a claim implicate the statutory
protections. Otherwise, every defendant could simply claim—as Kassab has done here without
evidence—that a particular case had been filead in retaliation for an action protected by the TCPA
and invoke the entire process. 
Instead, a court must examinee the claims that are asserted. Pohl’s claims in no way target
Kassab for the exercise of any rigfhts of free speech, petition, or association. Pohl brings claims to
hold Kassab responsible for yhis wrongful conversion of Pohl’s information and misappropriation
of trade secrets, togethCer with his participation in a conspiracy to commit both torts. The claims
on their face do not implicate the TCPA, and the inquiry should end there.
Perhapsf fbecause the factual bases of Pohl’s claims so clearly do not implicate the TCPA,
Kassab exUpends much time and effort attempting to reframe those claims as acts of retaliation for
Kassab’s actions after he committed the torts for which Pohl sues. More specifically, Kassab
1 See generally Plaintiffs’ Response to Defendants’ Anti-SLAPP Motions to Dismiss, Dezzie Brumfield d/b/a LAD
Enterprises, et al., v. Law Offices of Michael Pohl, et al., No. 2017-38294 (189th Dist. Ct., Harris County, Tex. Sept.
29, 2017) (filed by the Kassab firm), attached as Exhibit 1 to the affidavit of Billy Shepherd (“Shepherd Affidavit”),
which is attached as Exhibit A to this Response.
contends that Pohl brought tort claims against Kassab not because Kassab stole confidential and
trade secret information and materials but because of what Kassab did with those materials after
he stole them. Kassab has the burden of demonstrating the applicability of the TCPA by a
preponderance of the evidence. See LFMC Enterprises, LLC v. Baker, 546 S.W. 3dk 893, 897 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied). Kassab offers no evidence of alny kind to support
his contention that the lawsuit is retaliatory. Kassab’s failure to sustain hics burden of proof is fatal
to his Motion. s
Moreover, even if the TCPA jurisprudence permitted tshis type of exercise, and even if
Kassab had demonstrated by a preponderance of the evidence that the purported motivations for
Pohl’s suit implicated one of Kassab’s rights protected by the statute, Kassab’s claim under the
TCPA would nevertheless fail. If, as Kassab contends, Pohl sued Kassab because “Kassab legally
and ethically contacted Pohl’s former clients aor prospective clients and filed suit against Pohl on
behalf of these individuals,”2 then Pohl’s suit would be exempt from the TCPA by virtue of the
commercial exception to that statute. e TEX. CIV. PRAC. & REM. CODE § 27.010(b). Because Kassab
was at all times acting as a persofn primarily engaged in the business of selling his services as an
attorney, his contacts with Pyohl’s clients and former clients to solicit them to bring barratry suits
fall squarely within theC commercial exception to the statute. Kassab’s actions in filing a grievance
against Pohl also fall within the commercial exception and are not protected by the TCPA. It is
apparent on thef f face of the grievance itself—which Kassab attached to his Motion even though it
is designaUted by the State Bar as “strictly confidential3—that Kassab uses the State Bar grievance
mechanism as a part of his litigation strategy.4
2 Motion at 15.
3 See Grievance, attached as Exhibit 21 to the Motion, at 6 (“Disciplinary Proceedings are strictly confidential”).
4 See id. at 8, n. 1 (Kassab describes his history of filing grievances in connection with civil lawsuits).
Although it is clear that the TCPA does not apply to Pohl’s claims, Pohl fully sets forth his
prima facie case for each element of his causes of action. The pleadings and the affidavits Pohl
supplies can leave no question that he has satisfied the second prong of the TCPA analysis.
Kassab argues but fails to conclusively establish the affirmative defensesk that he asserts
entitle him to dismissal. Limitations has not run even as of today. The attorneyl immunity doctrine
does not apply to conduct undertaken outside the scope of representing ac client. And res judicata
does not apply in these circumstances to bar the claims. s
Finally, Pohl is entitled to his fees and costs in respondsing to Kassab’s Motion. Kassab
clearly knew upon filing the Motion that it would fail, given his experience on the opposite side
of the issue in this very Court.
II.
ARGaUMENT
A. KASSAB’S MOTION TO DISMISS SHOULD BE DENIED
The Texas Legislature enaceted the Texas Citizens Participation Act (“TCPA”) “to
encourage and safeguard the confstitutional rights of persons to petition, speak freely, associate
freely, and otherwise particiypate in government to the maximum extent permitted by law and, at
the same time, protect Cthe rights of a person to file meritorious lawsuits for demonstrable injury.”
TEX. CIV. PRAC. & REM. CODE § 27.002 (emphasis added). The TCPA is intended to identify and
dispose of lawsfufits that are “designed to chill First Amendment Rights, not to dismiss meritorious
lawsuits.”U In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015).
“Courts use a ‘two-step procedure to expedite the dismissal of claims brought to intimidate
or to silence a defendant’s exercise of these First Amendment rights.’” Wayne Dolcefino &
Dolcefino Communications, LLC v. Cypress Creek EMS, 540 S.W.3d 194, 198 (Tex. App.—
Houston [1st Dist.] 2017, no pet.) (quoting ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895,
898 (Tex. 2017)). The first step of the TCPA analysis requires that the movant establish by “a
preponderance of evidence that the suit he is seeking to dismiss ‘is based on, relates to, or is in
response to the [movant’s] exercise of: (1) the right of free speech; (2) the right tok petition; or (3)
the right of association.’” Id. (alterations in original) (quoting TEX. CIV. P CRAlC. & REM. CODE §
27.003). c
If the movant sustains its burden of demonstrating by a preponsderance of the evidence that
the claims fall within the ambit of the TCPA, and only then, thse court turns to the second step in
the process. That step shifts the burden to the non-movant to provide by clear and specific evidence
a prima facie case supporting the elements of its claim.
TEX. CIV. PRAC. & REM. CODE § 27.005(c).
In examining whether a plaintiff has sustained its burden of demonstrating a prima facie case, a
court is obligated to consider “the pleadings aand supporting and opposing affidavits stating the
facts on which the liability or defense is based.” Id. § 27.006(a). A prima facie case is established
when the pleadings and evidence suppely the “‘minimum quantum of evidence necessary to support
a rational inference that the allegfation of fact is true.’” In re Lipsky, 460 S.W.3d at 590 (quoting
In re E.I DuPont de Nemourys & Co., 136 S.W.3d 218, 223 (Tex. 2004)).
As set forth belCow, neither of the two prongs of the TCPA is satisfied here, and Kassab’s
Motion should be denied.
1. fPohl’s allegations on their face do not implicate the TCPA
PoUhl asserts three claims against Kassab in his Original Petition: (1) conversion, (2)
violations of the Texas Uniform Trade Secrets Act (“TUTSA”), and (3) civil conspiracy. Original
Petition at 9–11. To determine whether Kassab has met the preponderance of the evidence
standard, the Court should start with the petition to determine the basis of the legal action. Hersh
v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (the “basis of a legal action is not determined by the
defendant’s admissions or denials but by the plaintiff’s allegations”). Courts “do not blindly accept
attempts by the [defendants] to characterize [plaintiff’s] claims as implicating protected
expression.” Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2015k, pet. dism’d).
Instead, courts should “favor[] the conclusion that [the plaintiff’s] claims arel not predicated on
protected expression.” Id. Further, “any activities by the [defendantsc] that are not a factual
predicate for [the plaintiff’s] claims are simply not pertinent to the insquiry.” Id.
Although Kassab baldly asserts that Pohl’s claims were bsrought “in retaliation” for certain
of his actions and that Pohl has somehow admitted as much, the Court may not “blindly accept”
that characterization of Pohl’s allegations. Instead, the Court must keep in mind that there needs
to “be a connection between the claims in the lawsuit and the alleged protected conduct.” Wayne
Dolcefino, 540 S.W.3d at 201. The Court muast view the evidence “in the light most favorable to
the nonmovant.” Id. at 199. In sum, the Court’s inquiry should be (1) what the factual bases for
Pohl’s claims are, based on the pleadeings and evidence viewed in the light most favorable to him,
and (2) the extent to which these ffactual bases, as a matter of law, are protected expression within
the TCPA’s definition. Sloayt, 513 S.W.3d at 504.
As the pleadingCs make clear, Pohl sues Kassab for conversion because Kassab knowingly
purchased confiden a tial information and materials that were stolen from Pohl.5 Kassab’s liability
for this wrongffufl conduct is not based on facts related to the exercise of the rights of free speech,
petition, Uor association. Instead, his liability is based on his knowing and intentional acts of
conversion and theft of trade secrets.
5 See Original Petition at ¶¶ 4, 30, 31, 32, 33.
Similarly, Pohl’s TUTSA claim is based on the same underlying conduct as the conversion
claim, except it is limited to conduct related to the stolen trade secrets.6 For the same reasons as
above, the factual basis of liability for this claim does not trigger protections under the TCPA.
Pohl’s conspiracy claim involves Kassab’s and the other Defendants’ ovkert acts in their
plan to steal and misappropriate Pohl’s trade secrets and other proprietary informlation.7 Yet again,
nothing in the factual basis of liability for this claim is based on or targetsc Kassab for the exercise
of the rights of free speech, petition, or association. s
For all three of Pohl’s claims against Kassab, the thesory of liability is predicated on
wrongful acts, not protected speech or conduct. The lawsuit was brought to vindicate Pohl’s rights,
not in retaliation for any TCPA protected conduct. The pleadings and evidence which the Court
must use to determine if the TCPA applies makes this clear. The Texas Supreme Court has held
that the petition is the “best and all-sufficient eavidence of the nature of the action.” Hersh v. Tatum,
526 S.W.3d 462, 467 (Tex. 2017) (quoting Stockyards Nat. Bank v. Maples, 95 S.W.2d 1300, 1302
(Tex. Comm’n App. 1936)), and Pohel’s Original Petition establishes that the nature of the action
does not implicate the TCPA. f
2. Kassab has nyot sustained his burden of demonstrating the applicability of the
TCPA to Pohl’s Claims.
As the movant, Kassab has the burden to show by a preponderance of the evidence that
Pohl’s claims arec “based on, relate[] to, or [are] in response to [Kassab]’s exercise of” some
protected sp
eech or act. TEX. CIV. PRAC. & REM. CODE § 27.005(b). As set forth above, Pohl’s
claims on their face do not support Kassab’s invocation of the TCPA. Given that the claims do
not clearly fall within the statute, Kassab is required to show a “connection between the claims in
6 See id. ¶¶ 34–37.
7 See id. ¶ 38.
the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. And Kassab
must demonstrate that the protected conduct on which Kassab relies must be connected to the
“facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a).
In spite of the substantial volume of “evidence” he filed in support of his Mkotion, Kassab
has supplied no evidence—much less a preponderance of the evidence—that lPohl’s lawsuit was
asserted solely or even partly in retaliation for any act or communicatcion protected under the
TCPA. Instead, Kassab resorts to asserting (without support) thats he knows the reasons and
motivations for Pohl’s claims in this suit and that the suit wass motivated by Kassab’s protected
speech and actions.8 Courts have explicitly rejected this very tactic, holding that a defendant
cannot rely on a purported motivation for bringing a claim to support a motion to dismiss under
the TCPA. See Sloat, 513 S.W.3d at 504 (rejecting the defendant’s effort to “recast [the Plaintiff’s]
petition as complaining principally” of actioans of protest instead of the actions on which the
petition was based). 
Kassab’s mere allegation thate the suit is retaliatory is not enough to make it so. Perhaps
recognizing this problem, Kassabf asserts that “Pohl has judicially admitted that he has brought his
suit against Kassab solely beycause Kassab legally and ethically contacted Pohl’s former clients or
prospective clients anCd filed suit against Pohl on behalf of these individuals.”9 Kassab cites
language in Pohl’s Original Petition alleging that “Kassab solicited clients/ prospective clients [of
Pohl’s] to act afsf Plaintiffs. . . . to bring cases against Pohl for alleged barratry and other claims.”10
This quotUation from Pohl’s Original Petition does not constitute a judicial admission of anything,
much less an admission concerning the motivating force behind Pohl’s suit. Pohl’s recitation of
8 See, e.g., Motion at 1, 19, 21.
9 See id. at 15.
10 Id. (alterations in original).
true facts regarding Kassab’s actions—facts that Kassab has acknowledged—is not enough to
show a connection between the claims Pohl has alleged and Kassab’s protected conduct. See
Wayne Dolcefino, 540 S.W.3d at 201.
In various places in his Motion, Kassab cites to Pohl’s Original Petitionk purportedly in
support of his argument that Pohl’s motive was retaliatory, but those citatiolns do not support
Kassab’s conclusion. Instead, the portions of Pohl’s Original Petition Kascsab cites simply set forth
Kassab’s actions, without mentioning a “motive” for bringing suit. As fair reading of the petition
in the light most favorable to Pohl does not support Kassab’s chsaracterization of these additional
factual allegations. See Sloat, 513 S.W.3d at 507 (rejecting attempts to recharacterize every factual
allegation in a petition as providing the basis for a claim); see also LFMC Enterprises, LLC v.
Baker, 546 S.W.3d 893, 898 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (requiring that
the defendant demonstrate the specific connecation between the plaintiff’s claim and the protected
right). 
Kassab provides no support eat all to his theory that Pohl’s suit is tied to any grievance
Kassab may have filed. Pohl’s Ofriginal Petition does not even mention any grievance, much less
make a claim in any way relyating to a grievance. Kassab has no basis at all on which to contend
that the grievance is inC any way related to Pohl’s case.
Kassab’s wholesale failure to support by a preponderance of the evidence his position that
the TCPA applfifes is fatal to his Motion. The Court should deny the Motion on that basis alone.
3.U Even if the TCPA otherwise applies, the commercial exception precludes
dismissal here.
Kassab contorts Pohl’s claims in his effort to assert that they fall within the TCPA. To the
extent, if any, that Kassab succeeds in that effort, the recharacterized claims would fall directly
within the commercial exception to the TCPA. Although Kassab cannot show that any TCPA
protected speech or conduct is connected to Pohl’s claims—as required by the TCPA—even if a
connection could be shown, the speech and conduct would fall within the commercial speech
exception in the statute. The TCPA provides an exception to its general applicability:
This chapter does not apply to a legal action brought against a person pkrimarily
engaged in the business of selling or leasing goods or services, if the steatement or
conduct arises out of the sale or lease of goods, services, or an insuranlce product,
insurance services, or a commercial transaction in which the intended audience is
an actual or potential buyer or customer. c
TEX. CIV. PRAC. & REM. CODE § 27.010(b). The Texas Supreme Csourt has interpreted this as
requiring the following four-part test: s 
(1) the defendant was primarily engaged in the business of selling or leasing goods
[or services], (2) the defendant made the statemernt or engaged in the conduct on
which the claim is based in the defendant’s capacity as a seller or lessor of those
goods or services, (3) the statement or conduct at issue arose out of a commercial
transaction involving the kind of goods or services the defendant provides, and (4)
the intended audience of the statemenlt or conduct were actual or potential
customers of the defendant for the kinda of goods or services the defendant provides.
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018).
As set forth above, Kassab repeeatedly insists that Pohl’s claims were brought in retaliation
for Kassab’s stealing Pohl’s propferty and soliciting his former clients and prospective clients to
file barratry claims and grievyances. See, e.g., Motion at 2, 19–21, 25–26. Kassab’s solicitation of
Pohl’s clients and formCer clients falls squarely within the commercial exception to the TCPA. See
Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 191 (Tex. App.—El Paso 2014, no
pet.) (attorney fafdvertising falls within the commercial exception to the TCPA). Where a lawyer
is primarUily engaged in selling legal services to clients, and the speech arises from the sale of
services where the audience is an actual or potential client, the solicitation falls outside the TCPA’s
protections. See NCDR, L.L.C. v. Mauze v. Bagby, P.L.L.C., 745 F.3d 742 (5th Cir. 2014)
(applying Texas law).
10
It is beyond dispute that Kassab is primarily engaged in the business of selling legal
services. He purchased Pohl’s list of clients and former clients, together with the attorney fee
contracts for the purpose of soliciting those clients. In his capacity as a provider of legal services,
Kassab advertised and sought out Pohl’s potential and former clients. The akdvertising and
solicitation were part of a commercial transaction involving Kassab’s effolrt to provide legal
services. The advertising and solicitation was directed at potential custcomers of Kassab’s legal
services. Kassab’s solicitation of Pohl’s clients and former clientss is commercial speech and
outside the protections of the TCPA. In fact, Kassab has tasken this position himself in his
representation in another case.11
To the extent that the Court is convinced by Kassab’s effort to reframe Pohl’s Original
Petition as retaliation for Kassab’s actions in contacting and soliciting Pohl’s clients and former
clients, Kassab’s Motion nevertheless fails. Kaassab’s actions were entirely commercial in nature
and fall squarely within the commercial exception to the TCPA.
Kassab further contends thate Pohl’s suit is brought in retaliation for Kassab’s filing of
barratry suits and grievances agaifnst Pohl. As an initial matter, Kassab’s filings do not implicate
Kassab’s protected rights; thyey instead implicate the protected rights of Kassab’s clients, who are
not parties here. See CLFMC Enterprises, LLC v. Baker, 546 S.W.3d 893, 898 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied) (requiring that the rights being protected be the rights of the
party, and not af f third party to the action). Without an assertion of Kassab’s own protected rights,
the TCPAU is not implicated.
In addition, the commercial exception should extend to an attorney’s action in filing a
lawsuit on behalf of another. The attorney’s purpose in that instance is undeniably commercial—
11 See Brumfield Litigation Plaintiffs’ Response, Exhibit 1 to the Shepherd Affidavit, Exhibit A, at 22.
11
as Kassab’s clearly was in bringing the barratry actions. The statute creates an exception for
commercial activity that should apply to an attorney’s actions in pursuit of a client’s case. The
grievance against Pohl also falls within the commercial exception because Kassab’s use of the
State Bar grievance process is as a tactic to increase pressure on the lawyers that hke sues.12
At the end of his unsupported argument that the TCPA applies to Pohll’s claims, Kassab
discusses two cases. Motion at 19–21 (discussing Collins v. Collins, No.c 01-17-00817-CV, 2018
WL 1320841 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. filsed) (mem. op.) and Reeves v.
Harbor Am. Cent., Inc., 552 S.W.3d 389 (Tex. App.—Housston [14th Dist.] 2018, no pet.)).
Neither case is supportive of Kassab’s position. The court in Collins addressed whether the right
to petition required a nexus to a matter of public concern. Collins, 2018 WL 1320841 at *2. The
lawsuit itself in Collins was factually predicted on claim that a party filed a fraudulent affidavit in
a divorce proceeding. Id. a
The Reeves case is similarly unhelpful. The court in that case simply held that the trial
court was required to conduct a TCPAe analysis as required by the statute and could not summarily
conclude that “[t]he [TCPA] asf a matter of law does not allow a party to avoid contractual
obligations such as the onesy at issue here.” Reeves, 552 S.W.3d at 392. The court remanded the
case to the trial court tCo conduct a full TCPA analysis. Id. at 396. Pohl does not deny that this
Court should conduct a TCPA analysis; instead Pohl asserts that that the TCPA does not apply and
that Kassab hasf f failed to carry his burden under prong one of the TCPA.
12 See Grievance, attached as Exhibit 21 to the Motion, at 8, n. 1 (Kassab describes his history of filing grievances in
connection with civil lawsuits).
12
4. There is clear and specific evidence demonstrating a prima facie case.
Kassab’s failure to satisfy the first prong of a motion pursuant to the TCPA relieves Pohl
of any burden of demonstrating a prima facie case of his claims. Pohl nevertheless sets forth below
the clear and specific evidence in his pleading and the attached affidavits for eachk element of the
claims he has asserted against Kassab.13 l
Pohl asserts three causes of action against Kassab: (1) conversicon; (2) violations of the
Texas Uniform Trade Secrets Act, TEX. CIV. PRAC. & REM. CODE Cshap. 134A (“TUTSA”); and
(3) conspiracy to commit conversion and to violate TUTSA. Thes elements of the conversion claim,
as asserted in the Original Petition against Kassab, are that (a) Pohl owned and owns certain
property and information; (b) Kassab purchased that information knowing that it had been stolen
from Pohl; and (c) Kassab wrongfully exercised dominion and control over Pohl’s property in
contravention of Pohl’s rights. The elements aof a violation of TUTSA against Kassab are that (a)
Kassab purchased Pohl’s trade secrets knowing that they had been acquired by improper means;
and (b) and knowing that he did neot have Pohl’s express or implied consent. Finally, the
conspiracy claim alleges that Kfassab acted in combination with the other defendants and
committed overt acts towardy unlawful conversion and misappropriation.
In examining wChether a plaintiff has sustained its burden of demonstrating a prima facie
case, the Court is obligated to consider “the pleadings and supporting and opposing affidavits
stating the factfsf on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE §
27.006(a)U. Where a plaintiff provides enough detail in his pleading to “show the factual basis for
its claim,” such a pleading “is sufficient to resist a TCPA motion to dismiss.” In re Lipsky, 460
S.W.3d 579, 591 (Tex. 2015). A prima facie case is established when the pleadings and evidence
13 In support of this Response, Pohl has attached three sworn documents, the affidavit of Billy Shepherd, Exhibit A;
the declaration of Michael Pohl, Exhibit B; and the declaration of Jean C. Frizzell, Exhibit C.
13
supply the “‘minimum quantum of evidence necessary to support a rational inference that the
allegation of fact is true.’” Id. at 590 (quoting from In re E.I DuPont de Nemours & Co., 136
S.W.3d 218, 223 (Tex. 2004)).
Pohl’s pleading—the Original Petition—sets forth in abundant detaikl each of the
allegations against Kassab. Pohl alleges that he hired defendant Precision Marlketing Group, LLC
(“Precision”) to assist him in gathering and preserving evidence and liaicse with Pohl’s clients.14
Precision thereby gained access to Pohl’s confidential and proprietarsy information relating to his
client’s identity and contact information as well as his engagsement agreements, contacts with
clients and various of Pohl’s proprietary forms.15 Pohl alleges that Defendants Precision and Scott
Favre, with the assistance of Defendant Tina Nicholson, stole physical copies of certain
information, stole Pohl’s computers, and misappropriated electronic data to which they had access
through Precision’s work for Pohl, includinga actual attorney–client fee agreements protected by
the attorney–client privilege.16 Precision and Favre entered into a settlement agreement with Pohl
in which they agreed to return to Poehl or delete the confidential and proprietary information in
their possession, custody and conftrol.17
Precision and Favre hyad secretly entered into an agreement with Kassab and defendants F.
Douglas Montague III Cand Montague Pittman & Varnado, P.A. (collectively, “Montague”) to sell
Pohl’s stolen confid a ential information and property.18 Kassab and Montague paid Favre $250,000,
together with sfufbstantial bonuses knowing that they purchased stolen information and property.19
These spUecific, detailed allegations of each element of conversion, theft of trade secrets, and
14 Original Petition at ¶¶ 19, 20.
15 Id. ¶ 20.
16 Id. ¶ ¶ 20, 21.
17 Id. ¶ 3.
18 Id. ¶ 21.
19 Id.
14
conspiracy are by themselves sufficient to set forth a prima facie case meeting the requirements of
the TCPA. TEX. CIV. PRAC. & REM. CODE § 27.005(a); see also Hicks v. Group & Pension
Administrators, Inc., 473 S.W.3d 518, 526 (Tex. App.—Corpus Christi 2015, no pet.).
Although Pohl’s Original Petition establishes a prima facie case without thke necessity for
further inquiry, Pohl also submits affidavits containing substantial prima facie elvidence supporting
those claims. As an initial matter, Kassab has admitted certain factual acspects of Pohl’s claims.
Kassab states in his Declaration: s
Upon learning of the Mississippi Litigation, I and staff ats my office obtained a large
amount of information related to the Mississippi Litigastion from the federal court’s
online public access to court records system, PACER. I also met with Scott Favre
(“Favre”), who I understood became the owner of Prrecision Marketing Group, LLC
(“Precision Marketing”) through a purchase agreement he had with the prior
owners. Favre and his counsel, Tina Nicholson (“Nicholson”) provided me with
information from Precision Marketing’s files, including the names and addresses
of Pohl’s former clients or prospective clilents.
See Declaration of Lance Christopher KassMab, attached as Exhibit 1 to his Motion. Kassab freely
admits that he obtained from Favre and Favre’s counsel, Tina Nicholson, information that included
the names and addresses of Pohl’s former clients and prospective clients. Kassab has also
admitted, at least implicitly, that he paid Favre. In a pleading filed in Cause No. 2017-38294,
Debbie Brumfield d/b/a Lad Enterprises, et. Al. v. Jimmy Williamson, Jimmy Williamson, PC,
Williamson & Rusnak, Cyndi Rusnak, Cyndi Rusnak PLLC, and Law Offices of Michael Pohl, in
the 189th Judiciacl District Court of Harris County, Texas (the “Brumfield Litigation”), Kassab
stated,
Prior to the settlement, however, Favre was hired by the undersigned counsel [i.e.
Kassab] and a Mississippi law firm to provide consulting services regarding the
value of any underlying claim against BP.20
20 See Brumfield Litigation Plaintiffs’ Response, Exhibit 1 to the Shepherd Affidavit, Exhibit A, at 18.
15
On a separate occasion, Kassab described his arrangement with Favre differently, as “an agreement
with an expert witness.”21
Kassab does not deny that he (1) obtained from Favre and Precision the confidential
information and materials that are the subject of Pohl’s conversion and misappropkriation of trade
secrets claims, and (2) that he entered into an agreement with Favre pursuant tol which Kassab paid
Favre. Given these admissions, many aspects of Pohl’s prima facie ccase are uncontroverted.
Kassab has admitted that he acquired the “names and addresses sof Pohl’s former clients or
prospective clients,” which provides prima facie support for ksey elements of Pohl’s claims of
conversion and theft of trade secrets.
The attached affidavits provide prima facie evidence of the following facts. Scott Favre,
PA LLC, the Kassab Law Firm and Montague, Pittman and Varnado, P.A. entered into an
Agreement, dated November 10, 2016, eaxecuted by Lance Kassab (the “Favre–Kassab
Agreement”).22 The Favre–Kassab Agreement contains many relevant provisions, including:
• That Kassab and Montague weill pay Favre an hourly rate of $250, a large per-case fee,
and an “upfront advancef pay retainer to Favre forin [sic] the amount of $250,000 to be
credited against firsyt fees earned by Favre. This retainer is fully earned at the time of
payment and isC not refundable. Subsequent hourly fees are not to be credited against the
retainer.”23a
• That Kfassab and Montague “shall indemnify and hold harmless Favre for from [sic] any
aUnd all costs he incurs in defending claims relating to an/or arising from the disclosure of
any client information where such claims are asserted by . . . Michael Pohl. . . . Favre
21 See Kassab’s Letter, dated July 20, 2018, to Timothy J. Baldwin, attached as part of Exhibit 21 to Kassab’s Motion.
22 A copy of the Favre–Kassab Agreement is attached as Exhibit 3 to the Shepherd Affidavit, Exhibit A.
23 See Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit, Exhibit A, p. 1.
16
certifies that he is not aware of any contractual or legal provision that prohibits him from
making such disclosure to [Kassab and Montague]”24
• That the parties “agree that this Agreement is confidential and shall remain confidential
for all times.”25 k
On its face, the Favre–Kassab Agreement proves that Kassab agreed to payC Flavre an enormous
upfront payment of $250,000, together with substantial sums over timce. The amount of the
payment alone is prima facie evidence that Kassab knew that the confidential information and
material he was buying was not publicly known and that it belosnged to Pohl.
The Favre–Kassab Agreement also obligates Kassab to indemnify Favre from claims that
Pohl might bring—making clear that Kassab contemplated that Pohl might assert such claims at
the time he executed the agreement. What possible reason could there be for Kassab to agree to
indemnify if Favre owned the materials and inaformation that was the subject of the Favre–Kassab
Agreement? Why would indemnity be necessary if the information and materials were publicly
known? Again, these facts support Peohl’s prima facie case of misappropriation.
Similarly, the requiremefnt in the Favre–Kassab Agreement that the parties keep the
agreement confidential suggyests that the parties understood that disclosure of the existence of the
agreement and its termCs might raise substantial issues. If the materials and information were
publicly known and belonged to Favre, what was the necessity for confidentiality? Each of these
facts supports fPohl’s allegation that the materials and information were trade secrets and that
Kassab kUnew that the confidential information and material he purchased from Favre was stolen.
Favre’s testimony regarding the parties’ performance of the Favre–Kassab Agreement
provides additional support for Pohl’s contentions. In a hearing conducted on October 25, 2017
24 Id. p. 3.
25 Id.
17
in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., in the United
States District Court for the Southern District of Mississippi, Southern Division (“Walker v.
Williamson Litigation”),26 Favre confirmed that Kassab, Montague or their firms had in fact paid
the $250,000 to Scott M. Favre, P.A.27 Favre testified that he did not sell attokrney/client fee
contracts to Kassab and Montague but instead gave them away to Tina Nlicholson.28 Favre
acknowledged that an email, dated December 7, 2016 and sent from Mcontague to Kassab and
others, reflected that Favre had called to check that Kassab’s office shad been receiving Dropbox
deliveries of contracts over the last several days.29 Favre testifieds that between the time he received
the payment of $250,000 and April 2017, he had received no fees, provided no work and
exchanged no documents under the Favre–Kassab Agreement.30
Nicholson’s testimony contradicts Favre’s testimony in at least one enlightening way.31
Nicholson testified that Favre did not give hera the Pohl fee contracts; instead, she believes he gave
them to “one of her co-counsel in the Texas cases against Mr. Pohl.”32 Favre’s and Nicholson’s
testimony and the emails about whiech they testify further support Pohl’s prima facie case of
intentional misappropriation, confversion and conspiracy. The emails and testimony confirm that
Scott M. Favre, P.A. was iny fact paid $250,000, and that Kassab and Montague understood that
they were to receive DCropbox deliveries of contracts. The large amount of the payment to Scott
26 A copy of the relevant portions of the October 25, 2017 hearing transcript in the Walker v. Williamson Litigation
is attached hereto as Exhibit 2 to the Shepherd Affidavit.
27 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 63.
28 Id. at 92–93.
29 Id. at 95; see also email dated December 7, 2016, attached as Exhibit 4 to the Shepherd Affidavit. To the extent, if
any, that Kassab suggests that this email may be hearsay and therefore inadmissible, Pohl responds that the email is
not offered for the truth of the matter asserted. It is instead offered to demonstrate Kassab’s knowledge of the volume
and nature of the materials Favre transmitted.
30 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 121–27.
31 See Deposition of Tina Nicholson, dated November 27, 2017, attached as exhibit 5 to the Shepherd Affidavit at
65:11–66:10.
32 Id. at 66:7–9.
18
M. Favre, P.A., in advance of the delivery of contracts to the Dropbox and the absence of any
further work by Scott M. Favre, P.A., supports a strong inference that the payment was in fact in
exchange for the contracts and not for any future services. Favre’s testimony that he had given the
attorney/client fee contracts to Nicholson and Nicholson’s disavowal of that testkimony strongly
suggests that each witness hopes to distance him or herself from the ultimate ltransfer to Kassab.
This contradiction supports Pohl’s allegation that all parties to the Favre–Kcassab Agreement knew
that the files and information being transferred had been converted ors misappropriated.
Finally, Kassab’s efforts to explain the purpose of thse Favre–Kassab Agreement also
support Pohl’s prima facie case that Kassab knew that the material and information he received
from Favre was stolen. As described above, Kassab explained the Favre–Kassab Agreement to
this Court as reflecting Favre being hired “to provide consulting services.”33 More recently,
Kassab described the agreement as constitutinga “an agreement with an expert witness.”34 Kassab’s
inability to stick to an explanation of the agreement suggests that he does not have a legitimate
one. The notion that the Favre–Kasseab Agreement constitutes the retention of an expert witness
defies all logic. At the time Kassfab purportedly hired Favre, who is not a lawyer, as an “expert,”
Kassab did not have a singlye client, much less a case. Without known clients, Favre could not
possibly have ethicallyC been engaged as an expert because he could not have determined the
presence of potential conflicts. And even though Kassab had no clients and Favre is not a lawyer,
Kassab paid Ffafvre $250,000 up front with the promise of additional future payments. The
evidence Udemonstrates that the stolen materials and information were available for sale.35 In fact,
Favre and his counsel Nicholson had expressly threatened to sell the materials to “Texas barratry
33 See Response to Motion in Brumfield, Exhibit 1 to the Shepherd Affidavit, Exhibit A at 18.
34 See Letter in support of Grievance, attached as part of Exhibit 21 to the Motion.
35 See Five Letters discussing potential sale of information, attached as Exhibit 6 to the Affidavit of Billy Shepherd.
19
lawyers” before they actually did so.36 The more plausible explanation of these facts is that the
Favre–Kassab Agreement reflects Favre’s sale and Kassab’s knowing purchase of Pohl’s stolen
files.
As lawyers, Kassab and Montague knew that the materials they purckhased included
confidential information protected by the attorney–client privilege, includinlg actual attorney–
client fee agreements.37 Scott Favre has confirmed under oath that he macintained the materials as
confidential and protected them as valuable trade secrets.38 s
In sum, Pohl’s prima facie evidence in the form osf both pleadings and affidavits
demonstrates each element of each of Pohl’s causes of action as set forth below:
CONVERSION
• The information and materials Kassab obtained was personal property subject to
conversion.39 a
• Pohl owned the information and materials Kassab obtained.40
• Kassab wrongfully ex e ercised dominion and control over the property.41
• Pohl has incurreOd f actual damages caused by Kassab’s conversion by at a minimum
his loss of the intrinsic value of the materials.42
36 Id.
37 Id. ¶ 20.
38 See Affidavit of Scott Favre, filed in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et
al., in the United States District Court for the Southern District of Mississippi, Southern Division, and attached as
Exhibit 7 to the Affidavit of Billy Shepherd.
39 Original Petition at ¶¶ 20, 21, 27; Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit; Email, Exhibit 4
to the Shepherd Affidavit.
40 Original Petition ¶¶ 20, 21, 27, 33; Affidavit of Michael Pohl.
41 Original Petition ¶¶ 20, 21, 27; Affidavit of Michael Pohl.
42 Original Petition ¶ 33; Favre Kassab Agreement, Exhibit 3 to Shepherd Affidavit (demonstrating that Kassab placed
a value on the materials of at least $250,000; Affidavit of Michael Pohl.
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MISAPPROPRIATION OF TRADE SECRETS
• Pohl owned trade secrets.43
• Pohl maintained that information as a secret, taking substantial measures to
maintain its confidentiality.44 k
• The information has independent economic value from not beCin l g generally known
to, and not readily being ascertainable through proper mceans by, another person
who can obtain economic value from the disclosure or use of the information.45
• Kassab obtained the trade secrets with knowlesdge that they had been acquired
through improper means—i.e., by theft.46 g
• The misappropriation damages Pohl iBn the form of both actual loss and unjust
enrichment.47 y
• Kassab’s misappropriation was a willful and malicious.48
CONSPIRACY f
• Kassab was a membcer of a combination of two or more persons.49
• The agreed objeOct of the combination was to accomplish the unlawful purposes of
conversion pand misappropriation of trade secrets.50
• Kassab and the other conspirators committed tortious overt acts to further the object
of thie conspiracy.51
43 Original Petition ¶¶ 20, 21, 34; Affidavit of Michael Pohl.
44 Original Petition ¶ 34; Affidavit of Michael Pohl.
45 Original Petition ¶ 34; Affidavit of Michael Pohl.
46 Original Petition ¶¶ 35, 36; Affidavit of Michael Pohl.
47 Affidavit of Michael Pohl.
48 Original Petition ¶ 37; Affidavit of Michael Pohl.
49 Original Petition ¶¶ 27, 35.
50 Original Petition ¶ 38.
51 Original Petition ¶¶ 27, 32, 36, 38.
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• Pohl suffered injury as a result.52
Pohl denies that Kassab has demonstrated by a preponderance of the evidence that Pohl
has asserted a legal action based on related to or in response to Kassab’s exercise of his right to
free speech, petition, or association. To the extent that the Court disagrees, Pohkl has provided
clear and specific evidence to support his petition, and the Court should denyC Klassab’s Motion.
B. ALTERNATIVE MOTION FOR CONTINUANCE ANcD DISCOVERY
Kassab filed his Motion on October 24 and set it for hearing twelve days later. While Pohl
denies that Kassab has met the threshold necessary for requirinsg him to provide the Court with a
prima facie case, and Pohl contends that he has set forth such a case, to the extent that the Court
disagrees and believes that additional evidence is necessary, Pohl seeks a continuance of the
hearing and an order permitting discovery. The TCPA permits the Court to allow discovery on
the Motion, and if discovery is granted, a contianuance of up to 120 days from service of the Motion.
TEX. CIV. PRAC. & REM. CODE §§ 27
.004(c) (permitting 120-day continuance), 27.006(b)
(permitting discovery). In the event ethat the Court is inclined to grant the Motion, there is good
cause for a continuance and discofvery because both oral and written discovery would be relevant
to obtaining additional cylear and specific evidence of Pohl’s claims for conversion,
misappropriation of trCade secrets, and conspiracy. Given that the contested issues primarily
involve Kassab’s state of mind, discovery relating to that issue would be necessary in the form of
both documentfary evidence relating to Precision’s sale of materials to Kassab and deposition
testimonyU relating to that sale.53
Specifically, the discovery that Pohl would seek includes (1) document discovery from
Kassab relating to his purchase of the materials and information, and in particular drafts of the
52 Original Petition ¶ 38; Affidavit of Michael Pohl.
53 Original Petition ¶¶ 27, 38.
22
Favre–Kassab Agreement and correspondence regarding the same; (2) an initial limited deposition
of Lance Kassab regarding his purchase of materials and information from Favre.
This request for continuance is sworn by the attached Declaration of Jean Frizzell and is
sought not for purposes of delay alone but so that justice can be done. k
C. KASSAB CANNOT CONCLUSIVELY ESTABLISH HIS DEFCElNSES
Kassab may argue that, even though Pohl can establish a prima faccie case, he is still entitled
to dismissal because he has established by a preponderance of the evisdence each essential element
of certain affirmative defenses, including limitations, attorney ismmunity, and res judicata. None
of these defenses is available, and Kassab has not established any of them—let alone by a
preponderance of the evidence.
1. The Statute of Limitations has Not Run.
Kassab purchased the stolen materaial from Favre by virtue of the Favre–Kassab
Agreement, which was executed on November 10, 2016, much less than two years prior to the
filing of this suit. All of Pohl’s claimes against Kassab are based on that purchase, and no claim
has a limitations period of less tfhan two years. See TEX. CIV. PRAC. & REM. CODE § 16.003(a)
(two-year limitation period fyor conversion); TEX. CIV. PRAC. & REM. CODE § 16.010(a) (three-year
limitation period for TCUTSA violations); Mayes v. Stewart, 316 S.W.3d 715, 719 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). Discussions about other older potential wrongful conduct
Kassab may hafvfe engaged in related to Pohl does not alter the limitations analysis for the specific
claims PoUhl brought in this case. See Motion at 26–28. It is clear that limitations does not bar
Pohl’s claims.
23
2. The Attorney Immunity Doctrine does Not Apply.
Kassab claims that as an attorney, he is immune from liability for converting the property
of others and misappropriating trade secrets. Here again, Kassab relies on a mischaracterization
of Pohl’s claims to invoke the attorney immunity doctrine. That doctrine protectsk attorneys from
civil liability for certain actions taken while representing a client in litigation. Clanty Hanger, LLP
v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). Pohl’s suit asserts claims cfor actions taken before
Kassab had a single client, much less a client in litigation. Because tshere is no way for Kassab to
show that his wrongful actions were within “the scope of clsient representation,” the attorney
immunity doctrine on its face does not apply to Pohl’s claims. Id. at 482.
3. Res Judicata Does Not Apply.
Kassab makes a contorted argument to contend that Pohl’s claims are barred by res
judicata. Kassab was not a party to the Settlemaent Agreement to which he refers, and had he been,
Pohl would include him in his breach of contract claim. There is no basis on which to contend that
Pohl’s claims against Kassab are “thee same as” the claims settled in the other case, nor that Kassab
is a party or privy to a party in thfat case. Res judicata is not an available defense.
D. REQUEST FOR AyTTORNEYS’ FEES AND COSTS
The TCPA expCressly contemplates an award of costs for the filing of a motion that is
frivolous or brought solely for the purpose of delay. TEX. CIV. PRAC. & REM. CODE § 27.009(b).
The history anfdf circumstances surrounding Kassab’s Motion conclusively establish that it is
frivolousU and Kassab brought it solely for the purpose of delay.
As the Court is aware, Kassab was involved in bringing the Brumfield Litigation against
Pohl and others alleging barratry and other causes of action. The defendants moved for dismissal
24
pursuant to the TCPA, and the Court denied those motions by order signed November 6, 2017.54
At the time defendants filed those motions, they had a good faith basis on which to believe that
the motions were well taken and should be granted, but the Court disagreed and defendants lost
their motions. The Anti-SLAPP motions in the Brumfield Litigation are highlky relevant here
because of the positions Kassab took in response to those motions and the Colurt’s resolution of
those motions. Kassab clearly knew and understood when he filed the incstant Motion that he did
not have a basis for his filing and that the Court would undoubtedly dseny his Motion.
In response to the Motion to Dismiss in Brumfield, Kassasb asserted a number of arguments
including arguing at length that the commercial speech exemption applied to prevent application
of the TCPA to his claims.55 In arguing that the commercial speech exemption applied, Kassab
argued vigorously that a lawyer’s solicitation of clients constitutes commercial speech not within
the protection of the TCPA. In making this aargument, Kassab cited multiple Texas state court
cases, Fifth Circuit cases, and cases from out of state.56 Kassab contended that “when the
communication concerning provisioen of legal services is made for the primary purpose of
attracting clients . . . the communifcation is not a matter of public concern.”57 On that basis, Kassab
argued that the commercialy exception applied to exempt his claims from coverage under the
TCPA.58 Having succCessfully asserted these arguments in Brumfield, Kassab can hardly suggest
that he was unaware of their merit.
Neverthf feless, in this case, Kassab contends that Pohl brought suit against him in retaliation
for KassaUb’s solicitation of Pohl’s former clients. Kassab argues that Pohl brought his suit against
54 A copy of the Order is attached as Exhibit 8 to the Shepherd Affidavit.
55 Brumfield Response, Exhibit 1 to Shepherd Affidavit, at 33–37.
56 Id.
57 Id. at 22.
58 Id.
25
Kassab “because Kassab legally and ethically contacted Pohl’s former clients.”59 Kassab contends
that his solicitation of those clients is protected by the TCPA, and he does not even mention the
commercial exception set forth in section 27.010 of the statute. Given that Kassab definitively
is aware of the commercial exception and its direct applicability to the claims Pohl bkrings, Kassab’s
failure even to mention the exception reveals his bad faith. His Motion is not juslt frivolous, Kassab
was demonstrably aware that it was frivolous. There can have been noc legitimate purpose for
bringing the Motion apart from creating unnecessary delay. s
The Court is empowered in these circumstances to awasrd Pohl his costs and reasonable
attorney’s fees in responding to the Motion. As set forth fully in the attached Declaration of Jean
Frizzell, those reasonable and necessary fees total $33,352. That total includes the necessary time
of lawyers in reviewing Kassab’s Motion, reviewing the TCPA, and researching and drafting a
response to the Motion. a
Kassab requests costs, attorneys’ fees and sanctions against Pohl and his law firm,
Reynolds Frizzell. Kassab is not entietled to any of the relief he requests because his Motion fails.
Furthermore, Kassab’s recitatiofn of the alleged basis for his request for sanction contains
substantial mischaracterizatiyons of the record of this case and the other cases to which he refers.
Kassab get a single facCt right: that he previously sought but was denied sanctions in an unrelated
case involving Reynolds Frizzell LLP. Kassab’s effort to relitigate that here is an entirely
inappropriate ufsfe of the TCPA and should not be countenanced.
59 Motion at 15.
26
CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the Motion be in all respects denied and that they be awarded costs and
fees in the amount of $33,352. k
Dated: November 1, 2018 Respectfully submitted, l
REYNOLDS FRIZZELL LLP c
By: /s/ Jean C. Frizzsell
Jean C. FrizzeDll
State Bar Nso. 07484650
1100 Louisiana Sst., Suite 3500
Houston, Texas 77002
Tel. 713.485r.7200
Fax 713.485.7250
jfrizzell@reynoldsfrizzell.com
Attolrneys for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIoFICATE OF SERVICE
I hereby certify that a true acnd correct copy of this document was served on all counsel of
record pursuant to the Texas Rulefs of Civil Procedure on this 1st day of November, 2018.
/s/ Jean C. Frizzell
C Jean C. Frizzell
27"