filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
30,2022-08-29,MSJ,Kassab,Trad. + No-Evidence MSJ (2nd attempt),"Kassab's Traditional Motion for Summary Judgment — comprehensive 80+ page dispositive motion raising seven independent grounds for dismissal: Rule 17.09 immunity, judicial proceedings privilege, attorney immunity, limitations, conclusive negation of TUTSA (no secrecy and no ownership), illegal acts bar, and improper damages (American Rule)","Phase 3 dispositive motion filed alongside the Seventh Amended Answer. This is Kassab's second MSJ attempt, substantially more detailed than the first. It adopts and incorporates the Nicholson Motion filed August 19, 2022, and presents extensive evidentiary support including 60+ exhibits (depositions, declarations, contracts, financial records, correspondence). Addressed to Judge Scot 'Dolli' Dollinger.",MSJ-2,DENIED,Phase 3,2022-08-29_MSJ_Kassab-Trad-and-No-Evid-MSJ_FILED.pdf,Grant traditional summary judgment dismissing all of Pohl's claims against Kassab; order that Pohl take nothing,"8/29/2022 5:07 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 67771690
By: Ashley Lopez
Filed: 8/29/2022 5:07 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ TRADITIONACL
MOTION FOR SUMMARY JUDGMENT 
TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGEtR:
Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.
d/b/a/ The Kassab Law Firm file this, their Traeditional Motion for Summary
Judgment, and would respectfully show the follouwing.
SUMMARY
Pohl committed illegal and uneathical barratry and he wants Kassab, who
brought the barratry litigation and grievances against Pohl, to pay for Pohl’s
barratry defense costs. But Pohel’s claims against Kassab are barred as a matter of
law because: f
• Pohl’s claims are predicated on Kassab’s filing of a grievance against
Pohl for whicoh Kassab has absolute and unqualified immunity
pursuant to Rule 17.09 of the Texas Rules of Disciplinary Procedure.
• Pohl’s claiims against Kassab are barred by the judicial proceedings
privilegie because they arise out of communications that Kassab made
in proospective (solicitation letters) and actual judicial proceedings (the
barratry litigation and grievance process) and Pohl seeks defamation-
like damages including loss of reputation to his law firm and defense
costs incurred because of the statements that Kassab made.
• Pohl’s claims against Kassab are barred by attorney immunity. Under
the doctrine of attorney immunity, an attorney does not have a right of
recovery, under any cause of action, against another attorney arising
from conduct the second attorney engaged in as part of the discharge of
his duties in representing a party.
• Pohl’s claims are barred by limitations because they accrued in 2014
and Pohl did not file suit until more than three years later.
• Pohl’s claims are conclusively negated. Pohl’s TUTSA claim is
conclusively negated because his alleged trade secrets weere not
actually kept secret. Pohl’s claims also fail because Pohl dCoes not own
the purportedly stolen property and trade secrets. t 
• Pohl’s illegal acts (barratry and unauthorized ptractice of law)
precludes any form of recovery against the whistlebilowers because his
acts are inexorably intertwined with his crimes. 
• Pohl is not permitted to recovery as damagees the attorney’s fees he
incurred in the four barratry lawsuits and two disciplinary grievances.
JOINDER AND INCORPORATION BY REFERENCE
Defendants Tina Nicholson and Balker Nicholson, LLP (“Nicholson”) moved
for traditional summary judgment oMn August 19, 2022 (“the Nicholson Motion”).
Kassab adopts the arguments set forth in the Nicholson Motion and all evidence
cited therein. See TEX. R. CIV.i P. 58 (“Statements in a pleading may be adopted by
reference in a different part of the same pleading or in another pleading or in any
motion, so long as theo pleading containing such statements has not been superseded
by an amendment las provided by Rule 65 pursuant to Texas Rule of Civil Procedure
58.”); Lockett vi. HB Zachry Co., 285 S.W.3d 63, 72 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (“Texas courts have recognized adoption of a co-party's motion for
summary judgment as a procedurally legitimate practice.”). Reference to exhibits
attached to the Nicholson Motion will be “Nicholson Ex. [number], [description].”
BACKGROUND
Pohl engages in an illicit barratry scheme to personally solicit
BP clients and victims of catastrophic auto accidents.
Michael Pohl and his law firm retained two non-lawyers, Scott Walker and
Kirk Ladner, and their company, Precision Marketing Group (e“Precision”), to
“recruit clients for [Pohl] to represent against BP”1 and provide “marking services”
to auto accident victims.2 Walker testified that although the and Pohl called it
“marketing services” or “marketing money” it was “clear to [him] it was barratry.”3
In fact, Walker considered himself and his companey “a pass-through for barratry
money.”4 All total, Walker, Ladner and Precisionu Marketing received over $5 million
in “barratry pass-through money” from Pohl and other lawyers to solicit accident
victims and potential clients with claaims, both auto-accident victims and those
involved in the BP Deepwater Horizon litigation.5 They would use this money to pay
contract workers to solicit clientes.6 They would locate and instruct contract workers
on how to accomplish the s
olficitation.7 They trained “40 or 50 people” on how to “go
out and solicit contracts.”8
Walker would “get leads from a variety of sources” including “from Michael
Pohl” and then hie and Ladner, or one of their employees, would go try to “find the
1 Exhibit U2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, p. 19.
2 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 605-
607.
3 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 149.
4 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 197:6-7.
5 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 73:21-25; 74:1-25; 75-1-15.
6 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 199.
7 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 77-78.
8 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 196-197.
family who had lost a loved one” and “just do marketing” to “let them know that
there was help available.”9 The “help” available would be offering the victims money
from Helping Hands Financing, LLC (“Helping Hands Financing”).10 Helping Hands
Financing is owned by Pohl’s wife, Donalda Pohl (“Donalda”), and opekrated by her
cousin, Jaimes.11 If one of the clients Precision Marketing Csolicited “needed
monetary help” they would be referred to Jaimes and Jaimes would “work with
them to -- to help them.”12 The funds from Helping Handsi Financing to pay to the
auto accident victims “would have come through Edgar Jaimes.”13 In other words, if
Walker or his team needed money to induce the auto accident victims, he would talk
to Jaimes and seek his approval.14
Walker testified that Pohl would selnd him leads on the auto accident cases
because he knew that Walker and MLadner “could go out and get those type of
cases.”15 Either Ladner would go to solicit the clients, or they would send
Magdalena Santana (“Magdaliena”), her brother Florian “Jay” Santana (“Florian”),
or one of their other employees.16 Walker testified that these folks working for
Precision Marketing owere soliciting the victims “on behalf of Mr. Pohl.”17 Walker
9 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 142-143.
10 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
11 Exhibit 4, October 2018 Deposition of Edgar Jaimes, p. 28.
12 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
13 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 201-203.
14 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 203-204, 207-208.
15 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 146-148.
16 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 146-148.
17 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 152.
and his team solicited more than 50 auto accident cases for Pohl.18 Walker always
kept Pohl informed on what he and his team were doing.19
Walker testified that the runners who solicited the clients would get “a
bonus” if they got the client to sign a contract.20 Walker testified thakt he and his
team would receive the bonus from either Helping Hands FinancinCg at the direction
of Jaimes or Pohl and his law firm.21 The payment to the runner would come from
Precision Marketing, but Walker would then “turn in an aimount that [they] spent
during the that week … to Mr. Pohl’s office.”22 Either Pohl or Jaimes would then
reimburse Precision Marketing.23 Financials obtained from Precision Marketing
evidence this fact, reflecting incoming transfers from Pohl’s law firm or Helping
Hands Financing with payments made tol various runners.24 At times, Pohl gave
direction as to some of the bonuses Mor fees that Precision Marketing paid to the
runners.25 And although Walker did not get “permission, per se” from Pohl to make
the specific payments to thei runners, he “would tell [Pohl] after the fact what
[Precision Marketing] had spent that week.”26
One runner, Moagdalena Santana, exposes the barratry scheme
despite being paid $50,000 by Pohl to keep quiet.
Magdalenia personally solicited two of the plaintiffs who would ultimately sue
Pohl for baroratry: Heraclite Bikumbu (and his minor children) and Raymond Butts.
18 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 148-151.
19 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 153.
20 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 158-160, 556.
21 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 556.
22 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160.
23 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160-161, 556.
24 Exhibit 5, Precision Marketing Group Financials.
25 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 161-162.
26 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 162.
In her September 24, 2016 affidavit, Magdalena testified that Pohl sent her on
“dozens and dozens of car wreck cases all over the country.”27 Pohl would email
Magdalena the link of news coverage depicting the accident and ask her “to go to
the victim or the victim’s family and try to get them to sign up withk him.”28 Pohl
offered to give Magdalena “$5,000 per case that [she] signed, pluCs a percentage of
his attorney’s fees.”29 Magdalena was advised by Pohl to “be persistent even if the
family ... rejected [her].”30 Magdalena was instructed byi Pohl to “approach the
victims and their families while they were vulnerable, in the emergency room, their
hospital rooms or at the funerals.”31 Pohl told Santana that minorities “were
especially vulnerable since they tended not to know that the law prohibited
barratry.”32 According to Pohl, they “werel easier to sign up.”33
Pohl would give Magdalena “mMoney to give to the victims or their families”
but “only if they agreed to sign a Pohl representation contract.”34 Pohl advised
Santana that the money wasi a “foot in the door” but instructed Santana not to
mention that she was there on behalf of a lawyer “until after they agreed to take the
money.”35 “If the clienot agreed to hire Pohl, then [Magdalena] was to have the client
sign a ‘Helping Hlands’ contract.”36 Pohl would then give Magdalena the money to
27 ExhibitU 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
28 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
29 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 18.
30 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
31 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
32 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19 (emphasis added).
33 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
34 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
35 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
36 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
pay the client “from his own Helping Hands company.”37 When Magdalena
questioned this, Pohl told her that it “was illegal for him to pay [her] directly for
cases, and that’s why the money had to go through some company.”38
Pohl may take the position that Magdalena retracted this affidakvit through a
subsequent December 19, 2017 affidavit. However, this purpoCrted retraction is
likely the result of Pohl paying Magdalena to provide testimony, which is something
they have done in the past.39 In fact, Jaimes testified that oin one occasion Pohl sent
him to Florida with a case filled with $50,000 cash to give to Magdalena in
exchange for her signing an statement for him.40 Jaimes testified that Magdalena
would only get the money if she signed the statement.41 Jaimes testified that
Magdalena signed the signed the statemenlt and got the money.42
Magdalena went into more deMtail about this in her deposition. Magdalena
testified that that the statement was an agreement for her to keep quiet and not
charge Pohl with any wrongdioing or criminal or unethical conduct.43 Magdalena
testified that Pohl paid her $50,000 cash to sign this statement, which was
delivered by Jaimes ion three bags marked “trick or treat.”44 Magdalena reiterated
that if she didn’t slign the gag agreement, she wouldn’t get the money from Pohl.45
Magdalena attiempted to indicate on the agreement that she was receiving $50,000
37 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
38 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 23.
39 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
40 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
41 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
42 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
43 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
44 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 122-127.
45 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 131.
to keep quiet, but Jaimes told her Pohl demanded that she state she only received
nominal consideration, like $100.46 Magdalena did not write the statement but “just
signed it”47 because she felt she was “forced to sign” it48 while “under duress.”49
Magdalena’s December 19, 2017 affidavit is likely the result of similakr duress and
purchased testimony. C
Regardless, nowhere in Magdalena’s December 19th affidavit does she state
the testimony in her former affidavit is untrue, only that sihe does not “agree with”
it and that the affidavit is not “reliable.”50 Although Magdalena states in her
December 19th affidavit that her prior affidavit was drafted by a lawyer, Magdalena
testified in her deposition that the September 24th affidavit was created voluntarily
with her own “testimony.”51 Magdalena tesltified that, unlike with Pohl, she was not
paid and had never been promisedM any money to provide the testimony in the
September 24th affidavit.52 Magdalena reiterated to counsel for Pohl, Billy
Shepherd, that she was therei in her deposition to tell the truth and would not be
bullied by his questioning or his efforts to confuse her.53
Regardless, Maogdalena confirmed most of the facts set forth in her initial
affidavit in her dleposition54 and this deposition testimony was not retracted.55
There, Magdailena confirmed that she was hired by Pohl to solicit auto accident
46 ExhibitU 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 346.
47 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
48 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 155.
49 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 309.
50 Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
51 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 270-271.
52 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 276-278.
53 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 176.
54 See, generally, Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
55 See Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
cases, the first one being an accident where a woman and her unborn child lost their
lives.56 Magdalena was instructed by Walker, who was instructed by Pohl, to
personally visit the mother of the deceased and sign her up to sue the tire
manufacturer and, if she succeeded, Pohl would pay her $5,000.57 Magdkalena visited
the funeral of the deceased and got the family to feel comfoCrtable with her.58
Although the mother was grieving, Pohl told Magdalena: “take no prisoners, this is
a cut throat business, you get in there and you do whatiever it takes to get this
client.”59 The solicitation was successful after Pohl gave Magdalena $2,000 to “give
to the client to convince her into signing over with the firm.”60
After that, Magdalena attempted to solicit about “forty to fifty” auto accident
cases for Pohl in multiple states from Texlas to Florida.61 About fifteen to eighteen
cases were actually signed up.62 JusMt like Walker, Magdalena testified that Pohl
would send her a web link with information about the accident and where the
potential client may be foundi and she would hit the ground running.63 Magdalena
solicited clients for Pohl in “hospitals, funeral homes, you name it.”64 Pohl
instructed Magdalenao to target minorities because they are “unrecognized to the
law” and “they donl’t know the law.”65 In an effort to circumvent the law, Magdalena
was instructedi to have the client call Pohl so that it would look like the client made
56 ExhibitU 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37.
57 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37-38.
58 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37-38.
59 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 39.
60 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 40.
61 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 43.
62 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 46-47.
63 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 54.
64 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
65 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
the initial contact with the lawyer.66 Magdalena would offer the clients money to
sign with Pohl but had explicit instructions from Pohl: “If they don't sign they don't
get no money.”67 Magdalena reiterated, “no signature, no money.”68 Magdalena
testified in her deposition that she was paid $2,500 for every client skhe signed up
and was “promised a percentage in the back end” by Pohl and WCalker.69 Pohl told
Magdalena that the money would have to go through Walker’s company Precision
Marketing because it “was illegal for him to give [her] the mioney directly.”70
After soliciting several cases, Magdalena asked Pohl to give her the money
she was “owed” so she could “leave for good” to the Middle East to care for her
father.71 Magdalena asked Pohl to “think it thru” if he “really wanted to take the
bad route,” stating “I will go to the attornely General Texas bar ten [sic] bar Florida
bar I’m not giving up … I want my mMoney and if I have to move mountains with the
justice dept so be it.”72
Magdalena sent anotheir email to Ladner that was forwarded by Walker and
addressed to Pohl, stating she was owed money on the cases she had solicited for
them: o
66 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 60.
67 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 42.
68 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 66.
69 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 47.
70 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 72.
71 Exhibit 10, April 21, 2014 Email.
72 Exhibit 10, April 21, 2014 Email.
10
e 73
When Pohl did not respond, Magdalena complueted a questionnaire on Pohl’s law
firm website, stating “the FBI” wanted to nknow the “link between helping hands
and Scott Walker [and] Michael [P]ohl” and claiming that Pohl owed her “monies for
securing victims of accident for him” and questioning how she is to “collect monies
owed with Out contracting [sic] Tehe Texas bar[.]”74
It was these threats tfhat caused Pohl to agree to pay Magdalena, but only if
she promised to keep quiet.75 Magdalena received the $50,000 cash but didn’t keep
quiet. On September 1, 2014. Magdalena sent another email to Pohl through his
website requestiing more money:
Michoael now I have on top of reporters calling me I had a call from
attorney general. The money given to me by Edgar [Jaimes] was to
keep my mouth shut. Not what was owed that’s what happens when
you ruined my life. If I get supena a [sic] don’t know what will happen.
Send me another 50 pls.76
73 Exhibit 11, May 7, 2014 Email Exchange.
74 Exhibit 12, May 20, 2014 Contact Form.
75 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
76 Exhibit 13, September 1, 2014 Contact Form.
11
Magdalena continued running cases for Pohl and sending him emails requesting
payment on the cases she solicited.77
Another runner, Kenneth Talley, exposes the barratry scheme.
Another runner was “Coach” Kenneth Talley (“Talley”), soliciteed over 800 BP
cases and 20 auto accident cases for Pohl,78 including several families who would
ultimately sue Pohl for barratry: Mark Cheatham, Sr., Markt Cheatham, Jr., Luella
Miller, Mae Berry and Arthur Speck.
Talley testified that he was first hired in relaetion to BP claims to find “folks
that lost money due to the oil spill” and “sign theum up” and “get a fee for it.”79 Talley
went to work “knocking on doors” looking for potential claimants for Pohl and his
partner in the BP litigation, Jimmy Wialliamson.80 Talley solicited and signed up for
Pohl and Williamson more than 800 BP claims.81 Talley was paid between $75 and
$350 for each BP client he signeed up.82
Talley eventually swiftched to soliciting auto accident victims, “calling on
folks that had bad accidents.” 83 Talley recalls that the first client he solicited was in
“the hospital in intensive care.”84 Talley carried with him up to $1,000 to pay the
accident victimsi to “help them with problems” but only once they “were signed
77 Exhibit 14, February 5, 2015 Email.
78 Exhibit 15, Deposition of Kenneth Talley, p. 87.
79 Exhibit 15, Deposition of Kenneth Talley, p. 10.
80 Exhibit 15, Deposition of Kenneth Talley, p. 10-11.
81 Exhibit 15, Deposition of Kenneth Talley, p. 11.
82 Exhibit 15, Deposition of Kenneth Talley, p. 19.
83 Exhibit 15, Deposition of Kenneth Talley, p. 37.
84 Exhibit 15, Deposition of Kenneth Talley, p. 37.
12
up.”85 Talley kept a list of all the auto accident cases he solicited, including cases
involving the Cheathams, Berry and Speck.86 Talley followed a checklist that
instructed him to, among other things, bring flowers to the initial hospital visit (but
to spend no more than $50) and to offer the victims money but to “mkake sure the
funding schedule” from Helping Hands Financing “is filled ouCt properly before
releasing any cash.”87 Talley would advise the victims that he had attorneys who
could help them, and that one of those attorneys was Pohl.8i8 Talley was paid a fee of
$1,400 plus his expenses by Pohl, through Walker, for any auto accident case he
solicited.89 On some cases, Talley was to receive a portion of the fee paid to Helping
Hands out of Pohl’s attorney’s fees.90 Talley discussed with Pohl the “percentage of
settlements” he was to receive from the calses he solicited and Pohl told Talley that
the money was being placed in an “esMcrow account” for him.91 When asked whether
Pohl knew he was getting paid to “contact vehicle accident victims,” Talley
responded, “the money was cioming from Edgar [Jaimes] who worked for him.”92
Although his paycheck was from Walker’s company, “the funding came by way of
Edgar [Jaimes].”93 o
85 Exhibit 15, Deposition of Kenneth Talley, p. 38.
86 Exhibit 15, Deposition of Kenneth Talley, p. 43-44; Exhibit 15-A, Talley Deposition Exhibit 165.
87 Exhibit 15-B, Talley Deposition Exhibit 168.
88 Exhibit 15, Deposition of Kenneth Talley, p. 47.
89 Exhibit 15, Deposition of Kenneth Talley, p. 47-48.
90 Exhibit 15, Deposition of Kenneth Talley, p. 97-98; 102.
91 Exhibit 15, Deposition of Kenneth Talley, p. 99.
92 Exhibit 15, Deposition of Kenneth Talley, p. 100.
93 Exhibit 15, Deposition of Kenneth Talley, p. 100.
13
Personally soliciting clients for Pohl became so frequent that Talley began
carrying with him blank Pohl contracts to each solicitation.94 Talley would refer the
potential clients to “attorneys out of Houston that were the best at handling these
types of accidents” and would offer to give the potential clients “moneky up front.”95
Talley would have no “reason not to mention Mr. Pohl’s nCame” during the
solicitation.96 Talley would never recommend any lawyers other than Pohl.97 Talley
would not tell the clients that he was getting paid to soliicit them.98 Talley would
present a Pohl contract to the potential client.99 If the client did not agree to hire
Pohl, the clients would not get the money.100 Talley testified that Jaimes and
Donalda (the operators of Helping Hands Financing) would send him the money.101
Both Talley and Pohl knew that wlhat they were doing was illegal. In one
instance, Talley was “run out of towMn” while soliciting clients for Pohl.102 Talley
testified during the attempted solicitation he was told by a “lawyer or policeman”
that “it was against the law wihat [he] was doing.”103 Talley mentioned this to Pohl
and Pohl told him “you’ve just got to leave...some people you can’t help.”104
Pohl illegallyo solicited several clients who would later hire
Kassab to sue Pohl for barratry.
94 Exhibit 15n, Deposition of Kenneth Talley, p. 49.
95 ExhibitU 15, Deposition of Kenneth Talley, p. 54.
96 Exhibit 15, Deposition of Kenneth Talley, p. 108.
97 Exhibit 15, Deposition of Kenneth Talley, p. 59.
98 Exhibit 15, Deposition of Kenneth Talley, p. 58; 109.
99 Exhibit 15, Deposition of Kenneth Talley, p. 89.
100 Exhibit 15, Deposition of Kenneth Talley, p. 58-59.
101 Exhibit 15, Deposition of Kenneth Talley, p. 86.
102 Exhibit 15, Deposition of Kenneth Talley, p. 84.
103 Exhibit 15, Deposition of Kenneth Talley, p. 84.
104 Exhibit 15, Deposition of Kenneth Talley, p. 85.
14
One of the victims solicited by Talley at the instruction of Pohl was Mae
Berry. Berry is the mother of Johnny Berry, a boy who died in a tragic auto accident
on or about August 17, 2014. 105 Within days of the accident, Berry was visited at
her home by Talley.106 The visit was unsolicited.107 Talley told Berryk that he was
with “Helping Hands” and brought her a gift basket.108 Talley sCuggested that she
may have a lawsuit against the make of the vehicle that Johnny was driving and
told her he knew an attorney out of Texas named Pohl whio could represent her.109
Berry had never spoken with Talley or Pohl prior to this date and she did not
request Talley to visit with her about the accident or any potential lawsuit.110 Talley
could see that Berry was morning over the loss of Johnny and offered her $500 to
pay for her son’s funeral, but only if she aglreed to hire Pohl.111 In need of the money
to burry Johnny, Berry agreed to hireM Pohl.112 Walker sent Pohl an email on August
21, 2014 forwarding the Helping Hands Financing documents and stating, “Coach
Ken will be getting the Pohl cointract signed this afternoon.”113 However, Pohl never
ended up pursuing Berry’s case.114
105 ExhibiUt 16, September 17, 2018 Declaration of Mae Berry.
106 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
107 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
108 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
109 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
110 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
111 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
112 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
113 Exhibit 17, August 21, 2014 Email re Mae Berry.
114 Exhibit 15, Deposition of Kenneth Talley, p. 56.
15
Talley himself testified to this solicitation. Talley admits to soliciting Berry at
her home just three days after the accident that took Johnny’s life.115 Talley testifies
that he told Berry that Helping Hands “had attorneys out of Houston that were the
best at handling these types of accidents” and that he gave Berry $500k “up front.”116
Talley solicited Berry after he got a call from Ladner who told hiCm that a “kid was
killed and it should be a good case” and that “we needed to go check it out.”117 Talley
testified that he was paid $250 to solicit Berry as a client iand was also reimbursed
from Helping Hands the $500 he paid to Berry.118 Talley never told Berry he was
getting paid to make contact with her.119 Berry did not know that the solicitation
was wrongful or caused her legal injury until sometime in 2017 when she received
an advertisement from the undersignedl counsel notifying her of her potential
injury.120 M
Talley also solicited Arthur and Lisa Speck to hire Pohl. The Specks are the
parents of is Rebecca Speck, ain eighteen year old who died in July of 2010 as the
result of a tragic auto accident.121 Talley testified that he was notified about this
case by Ladner who toold him “there’s a case in the backyard he wanted [him] to go
pursue.”122 Talley lfound the Specks’ address and he “went and knocked on their
115 Exhibit 15, Deposition of Kenneth Talley, p. 51-53, 55 (“Q. Okay. So you approached her three
days after the accident. A. Yes, ma’am.”).
116 Exhibit 15, Deposition of Kenneth Talley, p. 54.
117 Exhibit 15, Deposition of Kenneth Talley, p. 55.
118 Exhibit 15, Deposition of Kenneth Talley, p. 57-58; see also Exhibit 5, Precision Financials.
119 Exhibit 15, Deposition of Kenneth Talley, p. 58.
120 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
121 Exhibit 18, September 14, 2018 Declaration of Arthur Speck.
122 Exhibit 15, Deposition of Kenneth Talley, p. 105.
16
door.”123 The visit by Talley was unsolicited.124 The Specks answered, and Talley
told them he was with Helping Hands and offered them $1,000 cash if they would
hire Pohl to pursue their claim.125 Talley testified that he “didn’t have any reason
not to mention Mr. Pohl’s name” at this visit because he “knew he wask the attorney
handling things for us.”126 The Specks agreed, and signed two conCtracts with Pohl’s
law firm and funding agreements with Helping Hands.127 Sometime in August of
2014, the Specks received a letter from Pohl stating hie would not pursue the
claims.128 Talley never told the Specks that anyone was paying him to make contact
with them.129
Alphonse Bethley and Sandra Johnson are the biological parents of Ashley
Bethley.130 Ahsley was killed when she lolst control of her vehicle and it struck a
utility pole.131 Ashley was only twenMty-four years old.132 In July of 2014, Ladner
personally solicited the Bethleys at their home to hire Pohl.133 The visit by Ladner
was unsolicited.134 The Bethleiys did not request Ladner to visit them, nor did they
seek out the legal services of Pohl.135 Ladner offered them money if they would hire
123 Exhibit 15, Depcoisition of Kenneth Talley, p. 105.
124 Exhibit 18, Se f iptember 14, 2018 Declaration of Arthur Speck.
125 Exhibit 15,o Deposition of Kenneth Talley, p. 107-108.
126 Exhibit 1n5, Deposition of Kenneth Talley, p. 108.
127 ExhibiUt 18, September 14, 2018 Declaration of Arthur Speck, at Exhibit 18-A, Speck Contracts
and Exhibit 18-B, Speck Funding Agreement.
128 Exhibit 18, September 14, 2018 Declaration of Arthur Speck,
129 Exhibit 15, Deposition of Kenneth Talley, p. 109.
130 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
131 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
132 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
133 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
134 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
135 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
17
Pohl to pursue their claims.136 The Bethleys agreed, and signed a blank contract
with Pohl and his law firm that was provided to them by Ladner.137 In exchange,
Ladner and Walker agreed to share $5,000 for every $1,000,000 of the received
settlement from the Bethleys’ lawsuit.138 Ladner emailed Pohl and kJaimes facts
concerning these newly solicited clients and also stated that hCe spoke with the
mother of the passenger of the vehicle “and will follow up on signing that family.”139
Sometime in August of 2015, however, the Bethleyis received a letter from
Pohl stating he would not be pursuing their claim.140 Years later, in 2017, the
Bethleys received an advertisement from the undersigned counsel notifying them
the way they were contacted by Ladner and solicited to hire Pohl may have been
wrongful and may have caused them llegal injury.141 Prior to receiving this
advertisement, the Bethleys did notM know that the way they were contacted was
wrongful, or that it caused them legal injury or harm.142
Heraclite Bikumbu andi his two minor children Plovyt and David were also
victims of Pohl’s illegal solicitation scheme. On or about July 6, 2013, Bikumbu and
his children were travoeling with relatives from Missouri to Iowa when the rear tire
on their van blew lout, causing the van to enter the median and roll several times.143
136 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
137 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley, and Exhibit 19-A, Bethley Pohl
Contract.
138 Exhibit 20, Bethley Distribution Agreement.
139 Exhibit 21, July 23, 2014 Email re Ashley Bethley.
140 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
141 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
142 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
143 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
18
Bikumbu and his children were hospitalized with serious injuries.144 Their relative,
Simon Kumeso, was killed in the accident.145
Just days after the accident, Magdalena and her brother Florian (also known
as Jay) showed up at the hospital room to personally solicit Bikukmbu and his
children to hire Pohl.146 The Santanas brought Bikumbu and Chis children gifts,
including clothes, and stated they were with Helping Hands and worked for Pohl.147
The Santanas told Bikumbu that he had a viable laiwsuit against the tire
manufacturer and offered Bikumbu $1,000 if he would sign a contract with Pohl to
represent him and his children in the claim.148 The Santanas told Bikumbu that he
would get the money only if he signed a contract of representation.149 Bikumbu
agreed and signed a proposed contract withl Pohl.150
A friend of the relative who Mdied, Nsalambi Kkongolo, emailed Pohl days
after the accident confirming the solicitation by the Santanas:
I am helping a family wihose father (Mr. Simon Kumeso) was killed in
a car accident. I was fthen contacted my [sic] Mr. F. Jay Santana and
Maggie Santana from St Petersburg (FL) of Tower 7 Consulting Group.
They came to Jefferson City, Missouri and we did some paperwork
stating that youo will take the case and they also give $3000 to the wife
of the deceased as financial aid to help with funeral (at 18% interest). I
would like tlo make sure that Santana work with you, you will take the
case and tihe papers the wife of the deceased signed are legitimate.151
144 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
145 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
146 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
147 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
148 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
149 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
150 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu and Exhibit 22-A, Bikumbu-
Pohl Contract.
151 Exhibit 23, July 11, 2013 Email.
19
Pohl responded, confirming that he had been asked to represent the “victims of the
tragic tire failure” and vouched for the Santanas, stating “Helping Hands and Jay
Santana provide valuable assistance to families involved in these terrible
accidents.”152 k
Magdalena testified to the solicitation of Bikumbu and hCis children in her
deposition, stating that she and her brother where there on behalf of Pohl and his
law firm: i
A. You were asking me about when I visited clients in the hospital.
This was an example of one of the clieents that I had visited in
the hospital. They had lost -- I think the husband died in a tire
blow-out, roll-over. There were seveural kids in the hospital and a
gentleman and a lady. And this was the e-mail I -- the point of
contact was a professor from the university that was going to
translate from English to Frlench to the client. And I guess he
was reaching out to eithera Michael Pohl's firm or to -- yeah, to
Mr. Pohl directly. He waMnted to make sure that we were who we
said we were basically. 
Q. And this e-mail refeerences Jay. Is that your brother?
A. Yes, it is. f
Q. Did he go with you to sign up that client?
A. Yes, he did.
l ...
Q. Okaiy. And in it Mr. Pohl says, “I can vouch completely for Jay
aind Maggie.” Do you know why he would be vouching for you?
A. Because I'm representing him. Because I was there on his
behalf.153
152 Exhibit 24, July 11, 2013 Response Email.
153 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
20
Florian also testified that he provided “marketing services” for auto accident
cases,154 and specifically testifies to soliciting the Bikumbu family just days or
weeks after the accident in Missouri occurred.155 The Santanas were paid “bonuses”
for soliciting the “Kumeso” case.156 k
Raymond Butts was the victim of a tragic automobile accCident on or about
August 7, 2013 in Clear Spring, Maryland, which claimed the life of Brenda Adams,
his fiancée. Just days after the accident, and while in the ihospital recovering from
his injuries and grieving the loss of his fiancé, Butts received an unexpected phone
call from Magdalena, who said she was working on behalf of Pohl. Magdalena
testified about this solicitation in her deposition, calling it “a crazy one.”157
Magdalena testified that while she and Wlalker were “soliciting for Michael Pohl for
the client to sign,” Butts’ family gotM “really irate and they called the security on
[them] at the hospital.”158 The family told security that “these people are here
soliciting for an attorney.”159 Miagdalena’s persistence eventually paid off and Butts
agreed to hire Pohl, signing two contracts with his law firm.160 Magdalena also had
Butts sign a funding aogreement with Helping Hands Financing to obtain the money
Magdalena promisled to pay Butts if he hired Pohl.161 And of course, Magdalena had
Butts executei the “Attorney Acknowledgement” listing Pohl as his lawyer and
154 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 63-67.
155 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 66-70.
156 Exhibit 5, Precision Financials.
157 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 55.
158 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 55.
159 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 56.
160 Exhibit 26, Butts-Pohl Contracts.
161 Exhibit 27, Butts Funding Agreement.
21
authorizing Pohl to pay back Helping Hands Financing from any settlement.162
Magdalena was paid for this unlawful solicitation. Ultimately, however, Pohl never
countersigned the contracts, and the claims were not pursued.
On or about Saturday, February 15, 2014, LaDonna Cheathkam and her
children, Destiny and Markus, were tragically killed after a tire onC the Kia Sorrento
driven by LaDonna failed and caused the vehicle to cross the median and collide
with an oncoming school bus.163 LaDonna’s other son, Marki Cheatham, Jr. survived
the crash.164 Mark Cheatham, Sr. is the ex-husband of LaDonna, biological father to
Markus and Mark, Jr., and father-figure to Destiny.165 Luella Miller is the
surviving mother to LaDonna.166 LaDonna was only thirty-six years old, Markus
was sixteen and Destiny was only six.167 l
Less than a week after the Maccident, Pohl and his firm entered into an
agreement with Walker, Ladner and Precision to provide “marketing services” – i.e.
“barratry” – relating to the Ciheatham accident wherein Pohl agreed to pay these
non-lawyers an unethical percentage of his attorney’s fees.168 Talley contracted with
Precision to aid in prooviding these “marketing services” to Cheatham and Miller in
exchange for $10l,000 for every $1,000,000 received in a settlement.169 Talley
162 Exhibit 28, Butts Attorney Acknowledgement.
163 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
164 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
165 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
166 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
167 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
168 Exhibit 30, Cheatham Retention Services Agreement.
169 Exhibit 31, Cheatham Distribution Agreement.
22
testified that was paid a fee by Pohl, through Precision, to personally solicit and
sign up the Cheatham family.170 And, Talley was successful.
Talley testified in his deposition that days after the accident, he did some
“snooping” and located the residence of Cheatham, Sr.171 Talley wkent out and
“knocked on the door” and Cheatham, Sr. answered.172 Talley toCld Cheatham, Sr.
and Miller that he was with “Helping Hands” and could help them with burial costs
and “getting settlements.”173 Talley told Cheatham, Sr. thait he was “associated with
attorneys out of Houston that were really experienced with multi-types of vehicle
accidents and that [they] could do the best job of getting him a settlement.”174
Cheatham, Sr. and Miller signed the paperwork, including the contract with Pohl,
right there.175 Talley testified that he gavel the Cheatham family $24,000 to sign up
with the lawyers.176 Either Pohl or AMmmons brought the $24,000 and gave it to the
family,177 $18,000 of which went to Cheatham, Sr., and all of which was paid by
Helping Hands Financing.178 i
Talley’s testimony is consistent with that of Cheatham, Sr. who testifies that,
on or about Februaryo 19, 2014, just days after the accident, he and Miller were
personally soliciteld by Talley at his home in Schriever, Louisiana and urged to hire
170 Exhibit 15, Deposition of Kenneth Talley, p. 60-61.
171 Exhibit 15, Deposition of Kenneth Talley, p. 64-65.
172 Exhibit 15, Deposition of Kenneth Talley, p. 65.
173 Exhibit 15, Deposition of Kenneth Talley, p. 64.
174 Exhibit 15, Deposition of Kenneth Talley, p. 65-66.
175 Exhibit 15, Deposition of Kenneth Talley, p. 66.
176 Exhibit 15, Deposition of Kenneth Talley, p. 74.
177 Exhibit 15, Deposition of Kenneth Talley, p. 77.
178 Exhibit 32, Helping Hands Check to Mark Cheatham.
23
Pohl and Ammons in a potential lawsuit against Kia Motors.179 Neither Cheatham,
Sr. nor Miller had ever met Talley before and did not request him to visit with them
about the accident.180 Cheatham, Sr. and Miller did not have a previous attorney-
client relationship with Pohl or Ammons at the time they were personkally solicited
by Talley.181 C
At the visit, Talley encouraged Cheatham, Sr. and Miller to sign an
agreement with a Helping Hands to investigate a potenitial lawsuit against Kia
Motors in exchange for $400 per hour or 40% of any recovery in their case.182 Talley
offered Cheatham, Sr. $2,000 if he would sign the agreement and hire Helping
Hands to investigate the potential lawsuit and in turn the lawyers.183 Talley
encouraged Cheatham, Sr. to sign the agrleement by stating that the money could
defray funeral costs and the investigMation would reveal a viable claim against Kia
Motors.184 Talley told Miller and Cheatham, Sr. that if there was a viable case, they
could hire Pohl and Ammonsi to represent them in the lawsuit.185 Cheatham, Sr.
agreed and signed the investigation agreement with Helping Hands.186 To get the
money, Cheatham, Sro. was required to sign several documents with Helping Hands
Financing, Donaldla Pohl’s company.187
179 Exhibit 30, Cheatham Retention Services Agreement.
180 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
181 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp. 1-2.
182 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, and Cheatham Ex. 1.
183 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
184 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
185 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
186 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 2.
187 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
24
Days later, on or about February 21, 2014, Pohl personally visited with
Cheatham, Sr. and Miller and encouraged them to sign contingency fee agreements
with his firm and also confirmed that he would associate Ammons on the case.188
Pohl said that Ammons was an expert on auto accident and auto dekfect cases.189
Pohl promised to pay Cheatham, Sr. $18,000 if he agreed to hire CPohl and Ammons
in the auto accident case.190 Cheatham, Sr. and Miller agreed and signed
contingency fee contracts for legal services with Pohil on this same day.191
Cheatham, Sr. signed the contract for legal services individually and on behalf of
Destiny, Markus, and Mark, Jr., who were all minors.192 The $18,000 was paid to
Cheatham, Sr. in exchange via a check written from Donalda Pohl’s company
Helping Hands Financing.193 Cheathaml, Sr. and Miller later signed joint
representation agreements with PohlM and Ammons.194 Cheatham, Sr. testified that
he was offered and received an additional $500 to sign this joint agreement.195
Lacy Reese lost her huisband David Reese on or about July 2, 2014 in a
vehicle accident that occurred outside of Anson, Texas.196 Reese buried her husband
on July 7, 2014.197 Thoat same day, Ladner personally visited Reese’s home when she
was not there andl left a business card stating he was the “Associate Director” of
188 Exhibit 29, A f ffiidavit of Mark Cheatham, Sr., p. 2.
189 Exhibit 29,o Affidavit of Mark Cheatham, Sr., p. 2.
190 Exhibit 2n9, Affidavit of Mark Cheatham, Sr., p. 2.
191 ExhibiUt 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3; Exhibit 33, Miller-Pohl
Agreement.
192 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3.
193 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2; Exhibit 32, Helping Hands Check to Mark
Cheatham.
194 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp. 2-3, at Cheatham Ex. 5; Exhibit 34, Ammons-
Miller Agreement.
195 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp.2-3.
196 Exhibit 35, Declaration of Lacy Reese, p. 1.
197 Exhibit 35, Declaration of Lacy Reese, p. 1.
25
Helping Hands.198 The next day, July 8, 2014, Ladner again visited Reese’s home in
Paris, Arkansas and met with Reese and her mother, Karen Fairbanks.199 Ladner
told Reese and her mother that he was with a company called “Helping Hands” that
could investigate a potential lawsuit against the vehicle manufacturker or the tire
company and sue them for the death of David.200 Ladner told ReeCse that if it looked
like she had a lawsuit, Pohl and his co-counsel, Rob Ammons, could handle the
case.201 Reese’s mother wrote down the names of these ilawyers on the back of
Ladner’s business card during this meeting.202 Ladner offered Reese money if she
would hire Helping Hands Group and these lawyers, telling her the money could
help with the expenses relating to David’s death.203 Reese had never met Ladner,
Pohl or Ammons, or requested them tol visit with her about the accident or
requested them to contact her.204 M
Although Reese was grieving over the loss of her husband, Ladner pressured
Reese to sign the papers he ihad brought with him that day and she did.205 The
agreement that Ladner had Reese sign provided Helping Hands Group $400 per
hour or 40% of any reocovery in her case.206 To get the money, Reese was required to
198 Exhibit 35, Declaration of Lacy Reese, p. 1, and Reese Ex. 1.
199 Exhibit 35, Declaration of Lacy Reese, p. 1.
200 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
201 Exhibit 35, Declaration of Lacy Reese, p. 1.
202 Exhibit 35, Declaration of Lacy Reese, at Reese Ex. 1.
203 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
204 Exhibit 35, Declaration of Lacy Reese, p. 2.
205 Exhibit 35, Declaration of Lacy Reese, p. 2.
206 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 2.
26
sign several agreements with Helping Hands Financing, Donalda Pohl’s
company.207 Reese was told she would get the money after a suit had been filed.208
On July 25, 2014, unbeknownst to Reese, Pohl and his firm entered into a
“Retention of Services Agreement” with Walker, Ladner and Helping kHands Group
to provide “marketing services” relating to the death of DavidC.209 Among other
things, Ladner was to “conduct initial interview” of the victims and “maintain
contact with the victims and their family.”210 In exchanige, Pohl agreed to pay
Ladner and Helping Hands Group fees not to exceed 30% of his own attorney’s
fees.211 Walker and Precision Marketing then contracted with Ladner to provide
“public relations services pertaining to the cases of David Reese” in exchange for
$5,000 for every $1,000,000 received frolm any settlement.212 The solicitation of
Reese occurred pursuant to these agrMeements.
On July 18, 2014, Ladner emailed Walker and Jaimes, the manager of
Helping Hands Financing anid Pohl’s paralegal, concerning the “Reese Case.”213
Ladner described the accident that occurred on July 2nd – less than three weeks
prior.214 On or about Aougust 16, 2014, Reese received an email from Ladner about a
contract with Pohll.215 Ladner told Reese that Pohl’s contract would “take the place”
of the one thati Reese had with Helping Hands Group and requested her to send the
207 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 3.
208 Exhibit 35, Declaration of Lacy Reese, p. 2.
209 Exhibit 36, Reese Retention Services Agreement.
210 Exhibit 36, Reese Retention Services Agreement.
211 Exhibit 36, Reese Retention Services Agreement.
212 Exhibit 37, Reese Distribution Agreement.
213 Exhibit 38, July 18, 2014 Email re Reese Case.
214 Exhibit 38, July 18, 2014 Email re Reese Case.
215 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
27
contract directly to Pohl’s office.216 Reese received an email two days later from
Walker forwarding her Pohl’s contract.217 Reese signed the contract and sent it to
Pohl.218
Ladner does not dispute this. Ladner testified that he got an alkert about the
death of Reese’s husband and flew to “nowhere Arkansas” withinC seven days of the
accident and “knocked on the door” to solicit her.219 Ladner solicited Reese on behalf
of Precision and “to get paid” by Pohl.220 Ladner referred ithe case to Pohl and got
paid a “bonus” of $2,500.221 Ladner brought with him Helping Hands Financing
forms he obtained from Jaimes.222 Although Ladner could not recall whether he
offered Reese money to sign up with Pohl, it was his practice to do so and the money
came from Jaimes and Helping Hands Finlancing, Donalda’s company.223 And Pohl
acknowledged that Ladener “was opeMrating under [his] direction to … investigate[]
the incident as part of an initial case evaluation process.”224 In other words, Ladner
was soliciting Reese and evaluiating her potential claim at the direction of Pohl.
216 ExhibiUt 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
217 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 5.
218 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 6.
219 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 346-351.
220 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347.
221 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347, 358-359
222 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 349-350.
223 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 351-354.
224 Exhibit 40, January 19, 2016 Letter.
28
Pohl is sued by his Mississippi runners who expose the illegal
and unethical barratry scheme and Pohl settles that litigation
after unsuccessfully seeking to have it dismissed based on the
illegality of his agreements.
On October 8, 2014, Walker and Ladner and their company Precision sued
Pohl and his law firm for breach of contract and fraud, among oteher claims (the
“Mississippi Litigation”).225 There, Walker and Ladner alleged they had a joint
venture with Pohl to sign up clients with economic loss claitms stemming from the
BP Deepwater Horizon oil spill.226 See Walker v. Williamson, No. 1:14cv381-KS-
JCG, 2016 U.S. Dist. LEXIS 61185, at *5-6 (S.D. eMiss. May 9, 2016). They also
alleged that they had “conducted marketing effourts to obtain personal injury clients”
for Pohl227 and that Pohl received attorney’sn fees from the cases they signed up, but
that “Pohl did not pay any of the agreed share of his fees to Walker [and]
Ladner.”228 
More specifically, Walkere, Ladner and Precision (“the Runners”) alleged that
Pohl contracted with them tfo provide “public relations and marketing services” to
potential clients impacted by the Deepwater Horizon oil spill in exchange for “a
percentage of the attorney fees for the claims obtained from their efforts, along with
expenses and ai flat fee.” Walker, 2016 U.S. Dist. LEXIS 61185, at *6-7. The
Runners aloso alleged that they contracted with Pohl “to provide marketing and
public relations services in connection with claims for automobile rollover
225 Nicholson Exhibit 4, Walker Complaint.
226 Exhibit 41, Walker Second Amended Complaint.
227 Exhibit 41, Walker Second Amended Complaint. ¶ 118.
228 Exhibit 41, Walker Second Amended Complaint. ¶ 136.
29
accidents.” Walker v. Williamson, No. 1:14-CV-381-KS-MTP, 2017 U.S. Dist. LEXIS
59031, at *5 (S.D. Miss. Apr. 18, 2017). “There is evidence that the [Runners]
contacted people and businesses in Mississippi to determine if they might have a
claim against BP, encouraged those people to retain Pohl as their akttorney, and
were paid over $5 million in ‘barratry pass-through money’ foCr their services.”
Kassab v. Pohl, 612 S.W.3d 571, 574 (Tex. App. – Houston [1st Dist.] 2020, pet.
denied). However, the Runners sued Pohl because theyi “procured thousands of
viable BP claims” and “approximately sixty motor vehicle accident cases” for Pohl
but that Pohl “did noy pay any of the agreed share of his fees” or all expenses
incurred. Walker v. Williamson, No. 1:14-cv-381-KS-JCG, 2016 U.S. Dist. LEXIS
76488, at *5, 24 (S.D. Miss. Mar. 1, 2016). l
Precision transfers and asMsigns its assets and claims against
Pohl to Favre – Pohl counterclaims for conversion in the
Mississippi Litigation but settles when he cannot obtain
summary dismissal. e
During discovery in fthe Mississippi Litigation, Pohl discovered that the
Runners allegedly “disclosed confidential and proprietary information to third
parties without authorization” and proposed “the ‘sale’ of all of [his] accumulated
work product toi third parties” while working for him.229 Pohl testifies that the
Runners “uondertook to convert, misappropriate for themselves and/or market to
third parties claimant files and other information and materials” that allegedly
belonged to Pohl230 – including “marketing information and other trade secrets”231 –
229 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 18.
230 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
231 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
30
and then the new owner of Precision, Scott Favre, allegedly “sold those items and
the information” to Kassab.232
As a result, Pohl “asserted multiple claims against” the Runners in the
Federal Court Case based on their alleged “fraudulent and bad faithk conduct.”233
Pohl did not assert claims against Kassab in the Federal Court CCase, even though
he testified under oath that he knew Kassab allegedly was part of the “team of
thieves” who broke into Pohl’s office in 2014 and stole hisi confidential information
and purported trade secrets.234
Pohl attempted to dismiss the Mississippi Litigation, arguing the agreements
between he and the runners were illegal and unenforceable.235 More specifically,
Pohl argued that under both Texas andl Mississippi law “it is illegal for a non-
lawyer to accept or agree to accepMt money to improperly solicit clients for a
lawyer.”236 The Mississippi federal court denied Pohl’s motion to dismiss and
concluded that he was in a ipartnership with Walker and Ladner and further
concluded that the agreements to solicit clients would only be a violation of the
Texas disciplinary roules and Texas law, which did not apply to Walker and
Ladner.237 Havingl failed to obtain summary dismissal, Pohl settled the Mississippi
232 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 29.
233 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 19; see also Exhibit 43, Pohl’s Amended
Counterclaim.
234 Exhibit 44, May 15, 2018 Deposition of Michael Pohl, pp. 85-93.
235 Exhibit 45, Walker Memorandum Opinion (Doc. No. 475); Exhibit 46, Walker Pohl Memorandum
(Doc. No. 175).
236 Exhibit 46, Walker Pohl Memorandum, at ¶ 18.
237 Exhibit 47, Walker Order on Pohl Motion to Dismiss (Doc. No. 252).
31
Litigation, hoping to forever conceal the barratry operation.238 The Mississippi
Litigation was dismissed with prejudice on April 24, 2017.239
Kassab exposes Pohl’s illegal and unethical barratry and more
than 400 victims of Pohl’s barratry scheme hire Kassab to file
civil claims and grievances against Pohl. k
Kassab was tipped off to the allegations in the MississippCi Litigation by an
acquaintance of his, F. Douglas Montague of the Mississippi law firm Montague
Pittman & Varnado, PA (“Montague”).240 Kassab obtained miuch information related
to the Mississippi Litigation from the federal court’s online system, PACER.241
Kassab also associated Precision and its owner, Favre, and its counsel, Nicholson,
and obtained information directly from them, including the names and addresses of
Pohl’s former clients or prospective clientsl.242 Favre informed Kassab that, when he
bought Precision, he acquired files Mrelated to Pohl and Favre transferred that
information to Kassab.243
Kassab prepared adveritisement letters approved by the State Bar of Texas
and sent it to the people who had been illegally solicited by Pohl, informing them
that they may havoe potential barratry claims against Pohl.244 Hundreds of
Mississippi residelnts responded to Kassab’s advertisement letter and more than
400 signed repiresentation contracts with Kassab’s firm to pursue barratry claims
238 Exhibit 48, Walker Judgment (Doc. No. 499).
239 Exhibit 48, Walker Judgment (Doc. No. 499).
240 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
241 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
242 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
243 Exhibit 49, Declaration of Lance Christopher Kassab, at 2; Exhibit 50, Affidavit of Scott Favre.
244 Exhibit 49, Declaration of Lance Christopher Kassab, at 2; Exhibit 51, Advertisement Letters.
32
against Pohl.245 Kassab filed four separate lawsuits on behalf of these barratry
victims in Harris County, Texas (the “Barratry Lawsuits”).246 Additionally, due to
the egregiousness of Pohl’s violation of the Texas Penal Code and violations of the
Texas Disciplinary Rules of Professional Conduct, Kassab was requiredk to notify the
Texas State Bar pursuant to disciplinary rule 8.03.247 Thus, KassaCb filed grievances
against Pohl pursuant to this rule, and also at the request of some of Pohl’s former
clients.248 i
Pohl files this retaliatory lawsuit against Kassab seeking as
damages the costs he incurred to defende against the Barratry
Lawsuits and grievances filed against him.
In retaliation, Pohl filed this litigation against Kassab, Favre, Nicholson,
Precision, and others, for conversion, lmisappropriation of trade secrets and
conspiracy.249 Pohl rehashes his aMllegations from the Mississippi Litigation,
claiming that “Precision gained access to Pohl’s confidential and proprietary
information and property, incliuding trade secret materials” and “work product” and
“illegally misappropriated” this information and then allegedly “secretly sold Pohl’s
confidential informatoion to Kassab and [another lawyer named] Montague”250 who
then “solicited clielnts/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring
245 Exhibit 4n9, Declaration of Lance Christopher Kassab, at 2.
246 ExhibiUt 52 (Brumfield Third Amended Petition), Exhibit 53 (Gandy Second Amended Petition),
Exhibit 54 (Berry Fifth Amended Petition), Exhibit 55 (Cheatham Fourth Amended Petition)
(without exhibits).
247 Exhibit 49, Declaration of Lance Christopher Kassab, at 1.
248 Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct provides: “. . . a lawyer having
knowledge that another lawyer has committed a violation of applicable rules of professional conduct
that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer
in other respects, shall inform the appropriate disciplinary authority.”
249 See Pohl’s First Amended Petition (on file with the Court).
250 First Amended Petition, at ¶¶ 20-21.
33
cases against Pohl for alleged barratry and other claims.”251 As damages, Pohl seeks
the costs and expenses he incurred defending against the Barratry Lawsuits and
grievances filed against him.
SUMMARY JUDGMENT STANDARD k
The purpose of summary judgments is to eliminate patenCtly unmeritorious
claims and untenable defenses. Tex. Dep't of Parks & Wildlie v. Miranda, 133
S.W.3d 217, 228 (Tex. 2004). To prevail on a traditionial motion for summary
judgment, the movant must show that no genuine issue of material fact exists and
that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lujan v.
Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). “If the movant carries this burden, the
burden shifts to the nonmovant to raise a lgenuine issue of material fact precluding
summary judgment.” Lujan, 555 S.WM.3d at 84; see Maldonado v. Maldonado, 556
S.W.3d 407, 414 (Tex. App.—Houston [1st Dist.] 2018, no pet.). “A genuine issue of
material fact exists if more thian a scintilla of evidence establishing the existence of
the challenged element is produced.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004). o
l ARGUMENT & AUTHORITIES
Althougih Pohl’s claims against Kassab lack merit because Kassab did not
misappropriate Pohl’s trade secrets or otherwise engage in any misconduct, the
Court need not decide that issue to dispose of Pohl’s claims against Kassab. Rather,
Pohl’s claims can be dismissed for several independent reasons.
251 First Amended Petition, at ¶ 29.
34
A. Pohl’s claims against Kassab are barred by immunity
under Rule 17.09 of the Texas Rules of Disciplinary
Procedure.
First, Pohl’s claims against Kassab must be dismissed based on immunity
provided in Rule 17.09 of the Texas Rules of Disciplinary Procedurke. That rule
provides: C
No lawsuit may be instituted against any Complainant or
witness predicated upon the filing of a Grievance ort participation in
the attorney disciplinary and disability system. … iThe immunity is
absolute and unqualified and extends to all actions at law or in
equity.
TEX. R. DISC. P. 17.09 (emphasis added). Even “allegations of wrongdoing” done “in
connection with [the] prosecution of disciplinary actions” are absolutely immune, so
long as they are “predicated upon” the filinlg of a grievance. Crampton v. Farris, 596
S.W.3d 267, 274-75 (Tex. App.—HousMton [1st Dist.] 2019, no pet.).
Here, it is undisputed that Pohl’s allegations of wrongdoing against Kassab
are predicated upon Kassab’s ifiling of grievances against Pohl. Pohl testified that he
has sued Kassab because Kassab allegedly “used information from [Pohl’s] files in
the grievance proceeodings that [Kassab] personally filed or had clients file and
[Kassab allegedly]l shared [Pohl’s] stolen property with Ms. Nicholson so she could
defend a grieviance against herself, according to her own testimony.”252 Pohl seeks
as damages in the form of “costs and expenses of … serial grievances that arose
from the use of the [allegedly] misappropriated trade secrets.”253 Pohl intends to
252 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
253 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122. (emphasis added).
35
have his bias expert, John Zavitsanos,254 “testify that Defendants, including
[Kassab], sought to profit from the use of [Pohl’s information] by … using it … to
facilitate the bringing of grievances and litigation against Pohl.”255 Zavitsanos is
purportedly going to “opine that [Pohl’s] attorneys’ fees and expenses ikncurred … in
defending related matters including against invalid grievanCces … are fair,
reasonable, necessary and recoverable under the circumstances.”256
But Rule 17.09 makes clear that “[n]o lawsuit” miay be instituted against
Kassab that is “predicated upon” the filing of a grievance or participation in the
attorney disciplinary and disability system. TEX. R. DISC. P. 17.09. Because Pohl’s
claims against Kassab and the damages that he seeks are “predicated upon” the
grievances that Kassab caused to file algainst Pohl, the claims are barred by
“absolute and unqualified” immunitMy that “extends to all actions at law or in
equity.” Id.; Crampton, 596 S.W.3d at 276 (claim for destruction of evidence and
property related to grievancei proceeding barred by immunity under Rule 17.09);
Burch v. State Bar of Tex., No. 07-19-00224-CV, 2020 Tex. App. LEXIS 1409, at *3
(Tex. App.—Amarillo oFeb. 19, 2020, pet. denied) (immunity under Rule 17.09 barred
claim that attornelys for commission, in relation to a grievance proceeding, who
purportedly “eingaged in misconduct related to a bankruptcy proceeding in which
[plaintiff] was involved”).
254 Mr. Zavitsanos is bias because he was an advocate for Pohl’s co-defendant in the underlying
barratry cases that Kassab brought and because Kassab had previously sued Mr. Zavitsanos and his
firm. See Cause No. 20191510, Bragg v. Zavitsanos, in the 270th Judicial District Court of Harris
County, Texas. The Court is requested to take judicial notice of this case.
255 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 5.
256 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 6.
36
B. Pohl’s claims against Kassab are barred by the judicial
proceedings privilege.
“The judicial-proceedings privilege is an absolute privilege that covers any
statement made by the judge, jurors, counsel, parties or witnesses, and attaches to
all aspects of the proceedings, including statements made in opene court, pre-trial
hearings, depositions, affidavits and any of the pleadings or other papers in the
case.” Landry's, Inc. v. Animal Legal Def. Fund, 631 S.Wt.3d 40, 46 (Tex. 2021)
(internal quotations omitted). “The judicial-proceedings privilege exists to facilitate
the proper administration of the justice systeme. It does so by relieving the
participants in the judicial process from fear ofu retaliatory lawsuits for statements
they make in connection with the proceeding itself.” Id. at 48.
Moreover, the judicial-proceaedings privilege attaches even to
“communications preliminary to a proposed judicial proceeding” if “the
communication has some relatieon to a proceeding that is actually contemplated in
good faith and under seriousf consideration by the witness or a possible party to the
proceeding.” Id. at 48-49. “Even in the pre-suit context, however, the privilege
protects communications that are themselves preparatory to the lawsuit.” Id. The
privilege protecits all communications that are “necessary to set the judicial
machinery oin motion.” Id. at 50 (quoting RESTATEMENT (SECOND) OF TORTS § 586
cmt. a).
Here, Pohl has sued Kassab in retaliation for Kassab “solicit[ing] …
clients/prospective clients to act as plaintiffs … to bring cases against Pohl for
37
alleged barratry and other claims.”257 Pohl’s admits that he is suing Kassab for
statements Kassab made to prospective clients which spawned the litigation and
grievance proceedings:258
Because Pohl’s claims against eKassab arise out of communications that Kassab
made in prospective (soliciftation letters) and actual judicial proceedings (the
barratry litigation and grievance process), Pohl’s claims against Kassab are barred
by the judicial proceedings privilege. See Crain v. Smith, 22 S.W.3d 58, 62-63 (Tex.
App.—Corpus Cihristi 2000, no pet.) (holding that statements in letter sent before
the lawsuito began were protected by the judicial-proceedings privilege).
It matters not how Pohl characterized his claims against Kassab because “the
privilege should be extended beyond defamation when the essence of a claim is
damages that flow from communications made in the course of a judicial
257 Amended Petition, at ¶ 29.
258 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
38
proceeding.” Laub v. Pesikoff, 979 S.W.2d 686, 691 (Tex. App.—Houston [1st Dist.]
1998, pet. denied). Here, Pohl seeks as damages “the costs and expenses of serial
litigations and serial grievances” that Kassab filed against Pohl, including
attorney’s fees for his lawyers who represented him in that litigatiokn and “[a]ny
fees, any expenses [Pohl] had, hotel rooms, long-distance phoneC calls, copy costs,
[Pohl] intend[s] to sue Mr. Kassab for all of it.”259 Because Pohl’s alleged damages
“flow from” communications that Kassab made in the ibarratry litigation and
grievance proceedings, his claims are barred regardless of label. See id. (holding
privilege applied to claims for “intentional interference, civil conspiracy, intentional
infliction of emotional distress, negligence, and constitutional violations”); Tex. Mut.
Ins. Co. v. Ray Ferguson Interests, Inc., Nol. 01-02-00807-CV, 2006 Tex. App. LEXIS
2001, at *27-28 (Tex. App.—HoustonM [1st Dist.] Mar. 16, 2006, pet. denied) (mem.
op.) (holding that absolute privilege applied in deceptive insurance practices claim
under Texas Insurance Code biecause “although [plaintiff] did not plead defamation,
its theory of damages was that its clients, creditors, and bonding companies
abandoned it, in part,o because of the [insurer's] allegations and assertions . . . made
in the course of thils judicial proceeding”).
C. Piohl’s claims against Kassab are barred by attorney
oimmunity.
Under the doctrine of attorney immunity, “an attorney does not have a right
of recovery, under any cause of action, against another attorney arising from
conduct the second attorney engaged in as part of the discharge of his duties in
259 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
39
representing a party.” Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st
Dist.] 1992, writ denied) (emphasis added). “[A]n attorney is immune from liability
to nonclients for conduct within the scope of his representation of his clients.”
Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). The inquiry “fokcuses on the
kind of conduct at issue rather than the alleged wrongfulness ofC said conduct.” Id.
“That is, a lawyer is no more susceptible to liability for a given action merely
because it is alleged to be fraudulent or otherwise wrongfuli.” Id. “Merely labeling an
attorney’s conduct ‘fraudulent’ does not and should not remove it from the scope of
client representation or render it ‘foreign to the duties of an attorney.’” Id. at 483.
Even “criminal conduct is not categorically excepted from the protections of attorney
civil immunity when the conduct alleged ils connected with representing a client in
litigation.” Bethel v. Quilling, SelandeMr, Lownds, Winslett & Moser, P.C., 595 S.W.3d
651, 657 (Tex. 2020); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015)
(“an attorney’s conduct may ibe wrongful but still fall within the scope of client
representation”).
Although the Coourt previously denied Kassab summary judgment on this
defense, the Texasl Supreme Court’s recent decision in Taylor v. Tolbert, 644 S.W.3d
637 (Tex. 2022i) requires reconsideration. Taylor held that even “conduct prohibited
by statute” is subject to attorney immunity if the “statute does not expressly, or by
necessary implication, abrogate the immunity defense, and the attorney met her
burden to establish its applicability to the conduct at issue.” Id. at 642.
40
In Taylor, the attorney was accused of violating state and federal laws
prohibiting wiretapping because the attorney obtained and used the plaintiff’s
communications in violation of the statute. Id. at 643. The plaintiff brought a
statutory claim against the attorney which permitted recovery of civil kdamages. Id.;
see also TEX. CODE CRIM. PROC. § 18A.502. The attorney movCed for traditional
summary judgment, “arguing she is immune from liability as a matter of law
because the plaintiffs’ claims all stem from her role ias an attorney in the
modification proceeding.” Id. at 644. The trial court agreed, but the court of appeals
reversed. Id. The Supreme Court granted review and reversed the court of appeals.
Id. It concluded that the attorney was, “in all respects, engaging in the office,
professional training, skill, and authoritly of an attorney in the ways that she
allegedly used and disclosed the mateMrials her client provided.” Id. at 649. “Because
[the attorney’s] conduct falls squarely within the confines of attorney immunity, the
alleged criminality or wrongfiulness of the conduct does not perforce preclude its
availability as an affirmative defense.” Id. The court also held that “Texas’s wiretap
statute does not exporessly repudiate the common law or the attorney-immunity
defense.” Id. l
Here toio, Kassab’s conduct which forms the basis of Pohl’s claims fall
squarely within the confines of attorney immunity, regardless of whether it is
alleged to have violated the TUTSA because that statute does not expressly
repudiate the defense.
41
Pohl is suing Kassab because he obtained purportedly stolen information in
violation of the TUTSA and then “solicited [Pohl’s] clients/prospective clients to act
as plaintiffs … to bring cases against Pohl for alleged barratry and other claims.”260
The essence of Pohl’s claims against Kassab are “that Kassab boughtk Pohl’s client
list from [Precision] so that Kassab could send advertisementsC to Pohl’s former
clients and solicit them to become Kassab’s clients in barratry suits against Pohl.”
Kassab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.—Houstion [1st Dist.] 2020, pet.
denied) (characterizing Pohl’s claims against Kassab). Pohl seeks as damages “the
costs and expenses of serial litigations and serial grievances” that Kassab filed
against Pohl, including attorney’s fees for his lawyers who represented him in that
litigation and “[a]ny fees, any expenses [Polhl] had, hotel rooms, long-distance phone
calls, copy costs, [Pohl] intend[s] to sMue Mr. Kassab for all of it.”261 Pohl has even
designated Mr. Zavitsanos to testify to these damages, and “the reasonableness and
necessity of the attorneys’ feeis, costs, and expenses incurred by Pohl in defending
against invalid grievances and stale claims.”262
Moreover, in tohis very case, the court of appeals opined that “the alleged
purchase of Pohl[’sl] client list for those clients’ contact information, followed by the
mailing of attiorney advertisements to those individuals about specific types of
claims they might be able to pursue against a specifically identified attorney,
qualifies as statements or conduct that arose out of a commercial transaction
involving the type of legal services Kassab provides.” Kassab, 612 S.W.3d at 578.
260 Amended Petition, ¶ 29.
261 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
262 Exhibit 57, Pohl’s Second Amended Designation of Experts, at 3.
42
The court opined that, “the intended audience of [Kassab’s alleged] statement or
conduct were individuals with potential legal claims who Kassab sought to
represent in barratry suits against Pohl.” Id. at 579.
The acquisition of clients and filing of lawsuits are actions takenk “to facilitate
the rendition of legal services.” Youngkin, 546 S.W.3d at 682; ClCayton v. Oldcastle
Materials Tex., Inc., No. 09-18-00063-CV, 2019 Tex. App. LEXIS 1112, at *12, 15
(Tex. App.—Beaumont Feb. 14, 2019, no pet.) (applyinig attorney immunity to
attorney’s conduct which included “selling his legal services to the City as a
potential client” and subsequent conduct which “occurred in the course of his
undertaking to represent” those clients). The fact that Kassab is alleged to have
committed the misconduct prior to any liltigation is immaterial because “attorney
immunity applies to claims based Mon conduct outside the litigation context[.]”
Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey
Hanger, 467 S.W.3d at 485 (iconcluding that attorney was immune from conduct
that occurred after litigation had ended). In other words, Pohl’s characterization of
Kassab’s activities aso part of a business transaction that occurred prior to litigation
does not negate atltorney immunity because Kassab engaged in the conduct as part
of his ultimatie provision of legal services to his client. See Haynes & Boone, 631
S.W.3d at 78-79, 81 (applying attorney immunity to lawyer conduct committed as
part of business transaction). Indeed, in this case, the court of appeals concluded
that all of Kassab’s conduct for which Pohl complains “arose out of a commercial
43
transaction involving the type of legal services Kassab provides.” Kassab, 612
S.W.3d at 578.
Accordingly, Pohl’s claims against Kassab are barred by attorney immunity.
See Taylor, 644 S.W.3d at 648 (attorney could not be held civilly liablke for conduct
which was “criminal in nature” because it was committed while dCischarging duties
to client); Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-
00055-CV, 2016 Tex. App. LEXIS 442, at *10-11 (Tex. Appi.—Dallas Jan. 14, 2016,
pet. denied) (mem. op.) (applying attorney immunity to claim that attorney engaged
in “malicious conduct with respect to its illegal acquisition, retention, use, and
threatened disclosure of [the plaintiff’s] proprietary and confidential information”
that “it knew to be stolen and proprietarly in furtherance of its scheme to extort,
slander, and disparage [the plaintiff]M” and “refusing to return and cease use of [the
plaintiff’s] proprietary information”).
D. Pohl’s claims arie barred by limitations.
A defendant moving for summary judgment on the affirmative defense of
limitations bears theo burden of conclusively establishing the elements of that
defense. Schlumbelrger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018) (per
curiam). To dio so, the defendant must (1) conclusively prove when the cause of
action accrued and (2) negate the discovery rule if it applies and has been pleaded
or otherwise raised. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999). A cause of action accrues when (1) “the allegedly
tortious act was committed and caused an injury;” or (2) “facts come into existence
44
that authorize a party to seek a judicial remedy.” United Healthcare Servs., Inc. v.
First St. Hosp. LP, 570 S.W.3d 323, 335 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied) (citing Pasko, 544 S.W.2d at 834). This is true even if all resulting damages
have not yet occurred. Pasko, 544 S.W.3d at 834. Determining the acckrual date is a
question of law. Provident Life & Acc. Ins. Co. v. Knott, 128 S.WC.3d 211, 221 (Tex.
2003). As demonstrated below, all of Pohl’s claims against Kassab are barred by
limitations. i
1. Facts relevant to limitations.
Pohl testified that he and Precision shared an office in Gulfport, Mississippi
from 2013-2014.263 Pohl called this his “satellite law office.”264 The owners of
Precision in 2014 were Scott Walker, Kirk lLadner, and Steve Seymour.265
Pohl testified that he closed Mhis Gulfport, Mississippi office in 2014.266 He
testified that he asked Precision to arrange to have his office equipment and files
sent to him in Houston, Texasi.267 Pohl testified that Precision made excuses for why
they could not get his property moved to Houston.268 In June or July of 2014, Pohl
“gave up” asking Preocision to arrange the move and hired his own mover to go to
Gulfport and get elverything that was in the office: “every pencil, every paper, every
file, every file icabinet, every icebox.”269 Pohl testified that the mover was to bring
263 Exhibit 56, December 2021 Deposition of Michael Pohl, at 7-10.
264 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6-8.
265 Exhibit 56, December 2021 Deposition of Michael Pohl, at 16.
266 Exhibit 56, December 2021 Deposition of Michael Pohl, at 11.
267 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
268 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
269 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
45
the property back to Pohl in Houston, Texas.270 When the mover arrived in
Gulfport, he found the office almost empty, and Precision told him Pohl’s “client
files” had been removed by Precision, who was holding it “as evidence.”271 Pohl
testified that he contacted Precision and was told Precision was “keepking” the files
for their lawsuit.272 C
Pohl asserts that Kassab and other Defendants orchestrated and participated
directly in the 2014 theft.273 Pohl testified that Kassab aind the other Defendants
“robbed my office [and] stole my clients’ names” in 2014.274 He further testified:
A. That group of criminals stole about 11,000 files out of my
Mississippi office. They also stoleu my computers and hired a
third party, whose name slips my mind right now, to hack
into my office computers and steal all of my confidential
information, internal documlents. And they also stole my
forms that I created for BaP and other litigation, among other
things. M
Q. And when you’re saoying “this group of criminals,” who did
that include? e
A. It would be Scoftft Favre, Tina Nicholson, Lance Kassab, Doug
Montague, and potentially the people that they either bribed
or coerced iynto doing their dirty work.275
Pohl alleges that Kassab is a co-conspirator with Nicholson to unlawfully
misappropriate hais trade secrets.276 Pohl testified that “Tina Nicholson demanded
that Scott Wfalker steal my files or, because he got in trouble with the law, Tina
270 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
271 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6, 12-14.
272 Exhibit 56, December 2021 Deposition of Michael Pohl, at 15.
273 Amended Petition, at ¶¶ 21-24.
274 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94-97.
275 Exhibit 59, April 2021 Deposition of Michael Pohl, at 37-39.
276 Amended Petition, at ¶ 43.
46
Nicholson was going to take his two baby children away from him and forced him to
cooperate with [Kassab’s] crew to rob me and hack my computers.”277
Pohl testified that the alleged theft of trade secret information occurred in
2014 when Kassab and his “crew” allegedly broke into Pohl’s office in Gkulf Port and
hacked his computers, stole his clients’ names and information, Cand then solicited
his clients:
Q. Okay. And you think I'm an unethical lawyer?i
A. Yes. You stole my files. You robbed me. You tried to destroy my
practice. So I don't believe you sheould submit any more
materials, particularly false affidavits that have been retracted
by the witnesses who made themu and other verifiably false
accusations. And you've solicited my clients like Mr. Cheatham,
and you've told him lies to get him to sue me.
A. If the question is did youa steal my files and rob my office, the
answer is that you and yMour co-counsel and your crew robbed my
office, stole my clients' names, contacted my clients and told
them lies to initiate suits against me.
Q. Okay. How did iI steal your files, sir? Did I break into your
house? f
A. You broke into my law office.
Q. I did personally?
A. Youi and your crew.
Q. oAnd when did I do that?
A. I don't know the exact date, but I believe it was in 2014 when
you robbed me.
Q. I robbed you in 2014?
A. Yes, sir.
277 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94.
47
Q. So I broke into your office and stole your stuff in 2014 at your
Gulfport, Mississippi office, right?
A. You and your crew.278
In this case, Pohl admitted under oath that he knew in 2014 that his ktrade secrets
had been misappropriated: C
Q. You knew as of the summer of 2014, then, that the trade secrets
that you claim in this lawsuit were taketn by Precision
Marketing. Is that correct? i
A. Yes, I knew they were not being made available to me.279
Pohl also expressly testified that he knew in the sugmmer 2014 that his files – which
he claims are the purported trade secrets – hadB been stolen from him:
Q. Who stole the files? y
A. Well, originally it would have been Precision Marketing.
Q. Did you form the opinifon that they had stolen the files when Mr.
Blanton informed you that he learned that the files were not
available to be moved to Houston?
A. Well, I certaiOnly had a suspicion, so I followed up and spoke to
somebody at Precision about it.
Q. And onceo you spoke to the person at Precision, that’s when you
formed your opinion that the files had been stolen from you. Is
that clorrect?
A. Yies.
Q. n And that would have been sometime in the summer of 2014?
A. Yes.280
278 Exhibit 58, May 2018 Deposition of Michael Pohl, pp. 85-93.
279 Exhibit 56, December 2021 Deposition of Michael Pohl, at 14.
280 Exhibit 56, December 2021 Deposition of Michael Pohl, at 18-19.
48
Accordingly, it is undisputed that the alleged trade secret property was removed
from the Gulfport office no later than July 2014, that Precision – who Pohl alleges
was part of Kassab’s “crew” – took it, and that by July 2014 Pohl was aware that
Precision had taken it. k
After Pohl discovered the taking of the alleged trade secretsC in summer 2014,
he took no immediate action to recover it, find out what happened to it, or find out if
anyone else was involved in the taking. Pohl testified thait although he knew the
alleged conduct by Kassab occurred in 2014, he did not file a lawsuit against Kassab
because he “wanted to spend time to reflect on it before taking action [and] didn’t
want to do anything that was precipitous.”281
On October 8, 2014, Precision and itls owners, Scott Walker, Kirk Ladner and
Steve Seymour, filed a breach of conMtract lawsuit against Pohl in federal court in
Mississippi.282 Pohl’s only reaction to the lawsuit was to send Walker and Ladner a
mild email two days later askiing them to return his “original documents, evidence
and keys.”283 From that point forward, Precision and its owners proceeded to
publish Pohl’s allegeod proprietary information in the lawsuit. For example, in
November 2014, olne month after filing the lawsuit, they published his marketing
materials,284 ciommunications and contracts between Pohl and other lawyers,285
281 Exhibit 58, May 2018 Deposition of Michael Pohl, p. 93.
282 Nicholson Ex. 4, Federal Original Complaint.
283 Nicholson Ex. 5, Doc. 19-1.
284 Nicholson Ex. 6, Doc. 19-5 and 19-6.
285 Nicholson Ex. 7, Doc. 19-3.
49
communications between Pohl and his clients or potential clients,286 and Pohl’s BP
client solicitation letter,287 all without any complaint from Pohl.
Pohl took no action to recover his allegedly stolen property nor attempt to
stop the dissemination of this alleged trade secrets: he did not file a kcounterclaim
for theft, conversion, or violation of a trade secrets act, nor Cdid he move for
injunctive or other relief to reacquire or protect his trade secrets, nor did move for a
protective order regarding his alleged trade secrets ori (until the March 2017
confidentiality order that was expressly made not retroactive) enter into a
confidentiality agreement to protect and keep secret the documents produced during
the lawsuit.288 In short, Pohl failed to do any of the things that a person exercising
reasonable diligence regarding the theft ofl trade secrets would do.
On or about May 12, 2015, WMalker, Ladner and Seymour sold Precision to
Scott Favre, and in conjunction with the sale, they transferred the allegedly
misappropriated materials to Fiavre’s office in Kiln, Mississippi.289 On May 12, 2015,
Nicholson entered an appearance in the Mississippi litigation as the attorney for
Precision.290 o
The sale ofl Precision to Favre apparently stimulated Pohl to determine
whether Nichoilson had the alleged trade secret materials. On May 15, 2015, Pohl’s
attorney sent Nicholson a letter demanding that Walker, Ladner and Seymour turn
over to Pohl the contracts between him and his BP clients. The letter stated, “The
286 Nicholson Ex. 8, Doc. 19-7.
287 Nicholson Ex. 9, Doc. 19-10.
288 Nicholson Ex. A, Nicholson Affidavit.
289 Nicholson Ex. 10, Doc. 396-2.
290 Nicholson Ex. 11, Doc. 77.
50
contracts do not belong to your clients.”291 Pohl’s attorney sent Nicholson a second
letter on May 20, 2015. The letter repeated Pohl’s demand that Nicholson provide
the contracts to him. By way of explanation, the letter said, “As you may know, the
British Petroleum claim filing deadline is June 8, 2015. Mr. Pohkl needs the
contracts to address client matters relating to the deadline.”292 C
On May 27, 2015, Nicholson emailed a letter to Pohl’s attorney, confirming
that the contracts were being held at the office of Scotit Favre, Precision’s new
owner.293 In pertinent part, it said:
This letter responds to your faxed letters and addresses matters which
we discussed in our telephone conversatuion last Friday. Your client,
Michael Pohl, has demanded that my client, Precision Marketing
Group, LLC, hand over the originals and copies of . . . contracts
between him . . . and the BP/Deepwlater Horizon claimants. . . Mr. Pohl
asserts that the documents doa not belong to PMG or the other
Plaintiffs.294 M
Nicholson’s letter went on to state that “PMG will not relinquish possession of the
original contracts at this timei.”295 Nicholson stated that the documents in question
were being held at the office of Scott Favre, Precision’s new owner.296 Nicholson also
mentioned that a comoputer containing some of the information had been sent to a
forensic expert forl recovery of date.297
Pohl swiore to his lawyer’s letters being sent to Nicholson requesting return of
the materials in his interrogatory answers:
291 Nicholson Ex. 12, 2015 Communications.
292 Nicholson Ex. 12, 2015 Communications.
293 Nicholson Ex. 12, 2015 Communications.
294 Nicholson Ex. 12, 2015 Communications.
295 Nicholson Ex. 12, 2015 Communications.
296 Nicholson Ex. 12, 2015 Communications.
297 Nicholson Ex. 12, 2015 Communications.
51
298
Accordingly, at least as of May 2015, Pohl knew that Walker and CLadner (who Pohl
contends was part of Kassab’s “crew”) had transferred the alileged trade secrets to
Favre who was represented by Nicholson (who Pohl contDenids are other members of
Kassab’s “crew”), and that Nicholson had refused Poshl’s demand for return of the
information. More than 3 years later, on August 28, 2018, Pohl filed this lawsuit. As
explained below, Pohl’s TUTSA claim against Kassab, along with his conversion and
conspiracy claim, are barred by the statutel of limitations.
2. Pohl’s TUTSA is barred by the three-year statute of
limitations. 
TUTSA has a three-year statute of limitations: “A person must bring suit for
misappropriation of traOde secrets not later than three years after the
misappropriation is dipscovered or by the exercise of reasonable diligence should
have been discovered.” TEX. CIV. PRAC. & REM. CODE § 16.010(a). “Misappropriation”
means, among oither definitions, the acquisition of a trade secret of another by a
person whoo knows or has reason to know that the trade secret was acquired by
improper means. Id. at § 134A.002(3). “Improper means” includes theft. Id. at §
134A.002(2). “A misappropriation of trade secrets that continues over time is a
298 Nicholson Ex. 13, Pohl’s Interrogatory Answers at No. 4.
52
single cause of action and the limitations period … begins running without regard
to whether the misappropriation is a single or continuing act.” Id. at § 16.010(b).
Accordingly, the first act of misappropriation is when the statute of
limitation accrues for misappropriation of a trade secret. See Gen. Unikversal Sys. v.
HAL Inc., 500 F.3d 444, 451 (5th Cir. 2007) (recognizing the TCUTSA “explicitly
precludes treating trade secret misappropriation as a continuing tort.”); Guajardo v.
Freddie Records, Inc., No. CV H-10-02024, 2014 WL 12603i179, at *2 (S.D. Tex. May
15, 2014) (“[T]he Texas Legislature decided not to make this type of claim
a continuing tort. Specifically, the Texas Legislature enacted a three-year statute
of limitations for suits alleging misappropriation of trade secrets in May 1997.”).
Accordingly, “the tort of misappropriation,l as viewed under Texas law, occurs at the
moment of misappropriation.” BiancoM v. Globus Med., Inc., 53 F. Supp. 3d 929, 938
(E.D. Tex. 2014)
In this case, the limitiation period on the TUTSA claim began to run in
summer 2014, when Precision, to use Pohl’s own word, “stole” the trade secrets.299
Pohl testified that heo had actual knowledge of the misappropriation of his claimed
property no later lthan July 2014.300 Accordingly, the misappropriation occurred
more than foiur years before Pohl filed this lawsuit in August 2018.
This is not a case where the date of the misappropriation is unclear. This is
not an instance where an employee secretly copies information from an employer,
stealthily shares it with a competitor, and the owner of the trade secret finds out in
299 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
300 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
53
a roundabout way at some later point in time when a similar product hits the
market. In this case, Precision physically removed all of the documents from the
office it shared with Pohl. Pohl admits that he unequivocally discovered the alleged
theft of the trade secrets no later than July 2014. And what’s more, Pkohl testified,
that Kassab and his “crew” participated in the theft of his trade Csecrets in 2014. If
so, then Pohl’s TUTSA claim against Kassab expired in July 2017, over a year
before Pohl filed this lawsuit. i
The statutory language is very specific as to when the statute begins to run.
It says that the limitation period starts when “misappropriation is discovered or by
the exercise of reasonable diligence should have been discovered.” TEX. CIV. PRAC. &
REM. CODE 16.010(a). Pohl discovered thel theft of his trade secrets no later than
July 2014. Accordingly, the statute Mbegan to run on the misappropriation in July
2014, meaning Pohl’s TUTSA claim was barred by the time he filed suit in August
2018. i
Alternatively, even if the statute began to run in May 2015, Pohl’s claim is
still barred. The Mayo 2015 letters prove that Pohl knew in May 2015 that Walker,
Ladner and Seymlour had transferred the disputed documents and information to
Favre and Niicholson.301 Nicholson’s letter of May 27, 2015, informed Pohl that
Favre had the hard copies of the trade secret documents at his Kiln, Mississippi
office, they also had the computer with the alleged trade secrets, and that Nicholson
refused to return Pohl’s alleged information.302 Hence, Pohl “discovered” Nicholson’s
301 Nicholson Ex. 12, 2015 Communications.
302 Nicholson Ex. 12, 2015 Communications.
54
alleged “misappropriation” when he received her May 2015 letter confirming her
refusal to give them to Pohl, despite his assertion of ownership. However, Pohl did
not file this lawsuit until August 28, 2018, around three months after the latest
possible limitation period expired on May 27, 2018. k
It is also important to understand that the alleged subseCquent use, sale or
purchase of the trade secrets did not restart the clock on the TUTSA limitations
period. The fact that, after the trade secrets were purporitedly misappropriated in
2014, or alternatively 2015, they were allegedly subsequently used or transferred
did not restart the limitation period. The case Agar Corp. v. Electro Circuits Int'l,
LLC, 565 S.W.3d 12 (Tex. App.—Houston [14th Dist.] 2016), aff'd in part, rev'd in
part on other grounds, 580 S.W.3d 136 (Tlex. 2019) is instructive on this point. In
Agar, the plaintiff initially sued moMre than a dozen defendants in April 2008 in
connection with the defendants’ alleged misappropriation of the plaintiff’s
proprietary information and uise of that information to create knock-off products for
sale to its customers. Id. at 19. The plaintiff added alleged co-conspirators who
allegedly purchased aond sold some of the trade secrets as defendants to the existing
lawsuit in Novembler 2011 — more than three years after plaintiff initially filed suit
for the misapipropriation. Id. The plaintiff argued that his claim against the co-
conspirators did not accrue until July 2009 because that is when the co-conspirators
were still selling the allegedly stollen trade secret information. Id. The court
rejected this argument, stating: “[a] continuing tort does not arise from one’s
copyrighting a song that another wrote and then repeatedly selling the song and
55
reaping profit from each sale. While it may be said that the injury continues with
each sale and receipt of a royalty, the act that caused the continuing injury was the
one act of copyrighting the song.” Id. at 21 (quoting Rogers v. Ardella Veigel Inter
Vivos Trust No. 2, 162 S.W.3d 281, 290 (Tex. App.–Amarillo 2005, pet. kdenied)).
Pohl “discovered” “the misappropriation” in the suCmmer 2014, or
alternatively when he exchanged letters with Nicholson in May and June 2015. If
anyone subsequently disclosed the trade secrets, it did noti give rise to a new cause
of action. The express language of the TUTSA statute of limitation expressly
precludes “continuing tort” theories. Accordingly, Pohl’s TUTSA claim against
Kassab is barred by limitations.
3. Pohl’s conversioMn and conspiracy claims are barred
by limitations. 
Pohl’s common-law claimes against Kassab for conversion and civil conspiracy
are also barred by the statutfe of limitations.
A person must bring suit for the conversion of personal property “not later
than two years after the day the cause of action accrues.” TEX. CIV. PRAC. & REM.
CODE § 16.003(
ai). Generally, the limitations period for a conversion claim begins to
run at the toime of the unlawful taking. Wells Fargo Bank Nw., N.A. v. RPK Capital
XVI, L.L.C., 360 S.W.3d 691, 700 (Tex. App.—Dallas 2012, no pet.). As established
above, whether his claim accrued in 2014 or 2015, more than two years had passed
by the time Pohl filed suit in August 2018. Therefore, his conversation claim is
barred.
56
Pohl’s conspiracy claim is also barred by limitations. The Texas Supreme
Court has established that a claim for civil conspiracy accrues when the underlying
tort accrues, and the limitation period for the conspiracy claim begins to run at the
same time as that for the underlying tort. Agar Corp., Inc. v. Electro kCircuits Int’l,
LLC, 580 S.W.3d 136, 138 (Tex. 2019). “Understanding that civCil conspiracy is a
theory of derivative liability, it follows that a civil conspiracy claim should share
both accrual and the limitations period of the underlyiing wrong.” Id. at 144.
Because the underlying conversion and TUTSA claims are barred by limitations,
Pohl’s derivative conspiracy claim against Kassab is barred as well.
E. Pohl’s claims are conclusively negated.
1. Pohl’s TUTSA clalim is conclusively negated
because his allegead trade secrets were not actually
kept secret. M
Kassab adopts the argument made and evidence identified on pages 45-49 of
the Nicholson Motion as if seit forth verbatim herein. See TEX. R. CIV. P. 58. That
argument and evidence is equally applicable to Kassab and establishes that, as a
matter of law, Pohl doid not take any measures, let alone reasonable measures, to
keep his alleged inlformation or client lists secret. Accordingly, Poh’s TUTSA claim
against Kassaib fails as a matter of law, especially regarding the four barratry
lawsuits.
2. Pohl’s claims fail because Pohl does not own the
purportedly stolen property and trade secrets.
“To bring a successful TUTSA claim, the claimant must first show that it
owns a trade secret in the information it seeks to protect.” Title Source, Inc. v.
57
HouseCanary, Inc., 612 S.W.3d 517, 527 (Tex. App.—San Antonio 2020, pet.
denied); TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a), (6); Morgan v. Clements
Fluids S. Tex., Inc., 589 S.W.3d 177, 186-87 (Tex. App.—Tyler 2018, no pet.). The
claimant must also demonstrate that it is “the person or entity in whomk or in which
rightful, legal, or equitable title to, or the right to enforce rights iCn, the trade secret
is reposed.” TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a). S
imilarly, “[a] plaintiff
who has not shown title or some other right to possession iof the property allegedly
converted may not maintain a suit in conversion.” Catania v. Garage de Le Paix,
Inc., 542 S.W.2d 239, 242 (Tex. Civ. App.—Tyler 1976, writ ref'd n.r.e.). Pohl’s
TUTSA and conversion claims against Kassab fail because he is not the owner of
the purportedly stolen property and trade lsecret information.
Pohl alleges that his trade seMcrets that were allegedly misappropriated are
“attorney–client fee agreements with clients/prospective clients, compilations of
clients, other confidential comimunications between the clients/prospective clients
and Pohl, specialized legal forms …, … proprietary administrative client forms, fee-
agreement forms …, ionternal emails, propriety marketing information … and other
work product relatling to claims of Pohl’s clients and prospective clients.”303 But this
information miakes up the client file that is the property of the client, not Pohl,
under Texas law.
“[T]he Texas Supreme Court recognized explicitly that an attorney is an
agent of his client and implicitly that a client owns the contents of his or her
file.” In re McCann, 422 S.W.3d 701, 704-705 (Tex. Crim. App. 2013) (citing
303 Amended Petition, at ¶ 20.
58
Thomson v. Findlater Hardware Co., 205 S.W. 831, 832 (Tex. 1918)) (emphasis
added). “The attorney is the agent of the client, and the work product generated by
the attorney in representing the client belongs to the client.” In re George, 28
S.W.3d 511, 516 (Tex. 2000) (emphasis added). Under the disciplinkary rules, an
attorney does not own and is therefore required to promptly surrCender “papers and
property to which the client is entitled.” TEX. DISC. R. PROFi 'L COND. 1.15. Texas
courts have interpreted the word “property” to mean “the iclient’s papers and other
documents that the lawyer had in his file.” TEX. COMsM. ON PROF'L ETHICS Op. 570
(citing Hebisen v. State, 615 S.W. 2d 866 (Tex. App. – Houston [1st Dist.] 1981, no
writ)). In other words, all documents and information in the client file is property of
the client and not Pohl. See George, 28 S.Wl.3d at 516.
Moreover, work product and Mattorney-client communications are owned by
the client as part of the client’s file, and not the attorney. See TEX. COMM. ON PROF'L
ETHICS Op. 570 (noting that coimmunications made to or on behalf of a client is work
product); Resolution Tr. Corp. v. H___, P.C., 128 F.R.D. 647, 648 (N.D. Tex. 1989)
(considering the issueo of the ownership of files generated by a law firm during its
representation of al client and determining that the entire contents of the law firm’s
files concerninig the representation of the client belonged to the client and ordering
the law firm to turn over the entire contents of the firm’s files, including work
product generated by the lawyer such as notes and legal memoranda). Therefore,
Pohl does not own the “internal emails … and other work product relating to claims
of Pohl’s clients and prospective clients” that he claims is a trade secret.
59
While client lists can be considered a trade secret, the lists that Precision
solicited to hire Pohl are owned by Precision, not Pohl.304 Scott Favre, the owner of
Precision, testifies that Precision “solicited many of the marketing contacts
(individuals and businesses) on these lists for representation” by Pkohl.305 Favre
testified that the “marketing lists contain the names of thousanCds of persons who
eventually became [Pohl’s] former clients, and/or whom [Pohl] solicited for
representation.”306 Favre made clear that the very informaition that Pohl claims are
the trade secretes converted by Kassab “were and are solely the work product
and property of Precision, developed during the normal course of its marketing
business.”307
Because Pohl does not own the purlported trade secrets or property that he
alleges had been converted, his TUTMSA and conversion claims fail as a matter of
law. And because the conversion and statutory claims fail, Pohl’s claim for civil
conspiracy also fails. See Tramimel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631,
635 (Tex. 1997) (to prevail on a civil conspiracy claim, the plaintiff must show that
the defendant was liaoble for some underlying tort). Accordingly, Kassab is entitled
to judgment as a mlatter of law.
304 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
305 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
306 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
307 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 12 (emphasis added).
60
F. Pohl’s illegal acts (barratry and unauthorized practice of
law) precludes any form of recovery against the
whistleblowers because his acts are inexorably
intertwined with his crimes.
Pohl committed barratry and wants his whistleblowers to pay for his barratry
defense costs. But the well-established and common-sense unlawfuel acts doctrine
that precludes any recovery for Pohl’s crimes. Pohl violated the Texas laws and
rules governing lawyers by committing barratry andt practicing in other
jurisdictions without a license, sharing an office and fees with non-lawyers, and he
failed to protect confidential client information in thee process. Pohl also committed
the unauthorized practice of law states in muultiple states, including Louisiana,
Alabama, Florida, and Mississippi where he maintained an unauthorized law office.
All of Pohl’s claims for recovery are inaextricably intertwined with his violations of
the laws of Texas and other jurisdictions. According, his claims are barred by their
illegality. e
1. The Unlafwful Acts Doctrine.
More than a century, Texas developed the Unlawful Acts Rule, which
provides:
no action iwill lie to recover a claim for damages, if to establish it the
plaintiffi requires aid from an illegal transaction, or is under the
necesosity of showing or in any manner depending upon an illegal act to
which he is a party.
Gulf, C. & S. F. RY. Co. v. Johnson, 621, 9 S.W. 602, 602-03 (1888). Courts have
simplified this analysis to whether the claim or damages are “inextricably
intertwined” with the illegal act or whether the illegal act “contributed to the
61
injury.” McNally v. McNally, No. 02-18-00142-CV, 2020 WL 5241189, at *10 (Tex.
App.—Fort Worth Sept. 3, 2020, pet. denied) (recognizing that the Unlawful Acts
Rule remains good law and using intertwined language); Andrew Shebay & Co.,
P.L.L.C. v. Bishop, 429 S.W.3d 644, 648–49 (Tex. App.—Houston [1skt Dist.] 2013,
pet. denied). The purpose of this rule is to deter unlawful acts bCy making certain
“that the person should not even entertain the hope of indemnity for the offense
committed.” Dover v. Baker, Brown, Sharman & Parker, 8i59 S.W.2d 441, 450 (Tex.
App.—Houston [1st Dist.] 1993, no writ) (internal quotations omitted). The rule can
be applied even if one or more defendants have also committed an unlawful act. Id.
at 450-451 (denying recovery to plaintiff who sued his attorney for malpractice
claiming he signed a false affidavit on tlhe advice of his attorney who knew the
affidavit was unlawful). M
2. Pohl knew his acts were illegal.
Pohl is well aware thiat his barratry precludes his claims. He asserted
“illegality and/or public policy” as a defense to paying his runners in the Mississippi
Litigation. As Pohl hoimself explains in his Motion to Dismiss Precision’s Amended
Complaint: l
The gisft of Precision’s claims, as plead in the Amended Complaint, is
that Walker/Seymour/Ladner agreed to accept or accepted money to
imUproperly solicit BP clients for the alleged “Pohl/Williamson joint
venture” and automobile accident clients for the alleged “Pohl/Ammons
joint venture.”
Neither Walker/Seymour/Ladner nor Precision, as their assignee, can
recover from Pohl under any cause of action. This is because: (1) under
Mississippi law, it is illegal and against public policy for a non-lawyer
to accept or agree to accept money to improperly solicit clients for a
62
lawyer; (2) under Mississippi law, it is illegal and against public policy
for lawyers to share legal fees with non-lawyers; and (3) under
Mississippi law, a claimant may not recover under any theory
(including contract, tort, or equity) for illegal conduct or conduct that is
violative of public policy.308
And as Pohl himself further argued, he should be judicially estopped kfrom arguing
against this position now. To allow him to do so, as he says, “woCuld allow [him] to
‘play fast and loose with the Court,’ which, in turn, would negatively impact the
reputation of the judicial system.”309 i
The Mississippi Litigation court agreed that illegality would apply to law
firms because Mississippi laws “make it illegal to accept or agree to accept money to
commence or further prosecute a judicial action.”310 Additionally, the court went
onto explain that the Mississippi Rules ofl Professional conduct 5.4(a), 7.2(i), 7.3(a),
and 8.4(a) preclude attorneys from Mentering into fee-splitting arrangements with
non-lawyers. Precision could not violate attorney misconduct rules “as they are
neither lawyers nor a law firmi. The only ‘immoral or illegal act,’ then, would have
been committed by [Pohl].”311 Pohl’s illegal acts precluded him and his co-
conspirators from aosserting a defense of illegality because of his unlawful
conduct.312 l
308 Nicholson Ex. 23, Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 192 ¶ 6.
309 Nicholson Ex. 23, Ex. 23: Doc. 192 ¶ 5
310 Nicholson Ex. 25, Order on Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 252 at 5.
311 Nicholson Ex. 25, Doc. 252 at 6.
312 Nicholson Ex. 25, Doc. 252 at 6.
63
3. Texas courts have applied the Unlawful Acts Rule
to preclude claims arising from barratry.
Texas courts have also applied Unlawful Acts Rule in BP solicitation cases.
In Truyen Luong v. McAllister, the appellate court affirmed summary judgment
where, as here, solicitation was an essential purpose of a fee-shaering agreement
that rendered the contract void for illegality. No. 01-17-00198-CV, 2018 WL
3651103, at *4 (Tex. App.—Houston [1st Dist.] Aug. 2, 2018t, pet. denied). Luong, a
paralegal, sued attorney McAllister for work performed on Gulf Coast Claims
Facility, BP, and Deepwater Horizon claims. Id. eat *1. Luong alleged that he
brought a lot of customers to McAllister in retuurn for an oral agreement to split
attorney’s fees. Id. at *1-2. McAllister moved to dispose of the claim arguing that
any summary judgment claim was baarred by illegality, which the trial court
granted. Id. The court of appeals agreed, stating “[t]his type of barratry contract is
prohibited by statute as well as eby disciplinary rule.” Id. at *3. The court explained:
[A] contract between fan attorney and one not an attorney, providing
that the [non-attorney] shall procure the employment of the [attorney]
by a third person for the prosecution of suits to be commenced in
consideration oof a fee to be procured or collected therein, is void as
against public policy, independent of statutes prohibiting the same.
Id. at *3. In turin, any such contract is void “to benefit and protect the public.” Id.
Luong’s agroeement to solicit was an “essential purpose” of their agreement, much as
the solicitation was an essential part of Pohl’s barratry practice. Id. at *4.
Accordingly, the appellate court affirmed the trial court’s grant of summary
judgment for McAllister, and this trial court should grant summary judgment here.
64
4. Texas courts have applied the Unlawful Acts Rule
to preclude claims for those who obtain property
illegally.
Pohl is precluded from recovering damages on trade secrets that he obtained
through illegal solicitation and the unauthorized practice of law. The ckase Sharpe v.
Turley, 191 S.W.3d 362 (Tex. App.—Dallas 2006, pet. denied) is iCnstructive on this
point. In Sharpe, the plaintiff, Sharpe, removed financial documents from a Roman
Catholic Diocese’s dumpster before alerting attorney Turiley, who was suing the
Diocese. Turley obtained the documents from Sharpe via subpoena, and following
the lawsuit both the Diocese and Sharpe contended they were the rightful owners of
the documents. Sharpe subsequently sued Turley for obtaining the documents
through fraud. The trial court granted sumlmary judgment under the Unlawful Acts
Rule and Fort Worth Court of AppeMals affirmed. Id. at 363-364. As the appellate
court explained, “Because [Sharpe’s] conduct in removing the Diocese’s items from
Diocesan property without itsi permission is the foundation of his allegation that he
has a superior right to the items and that alleged right is the basis of his fraud
claim against Turley, othe trial court properly granted summary judgment in favor of
Turley [under the lunlawful-acts rule].” Id. at 369.
As disciussed above, Pohl admits to engaging runners to illegally solicit
clients with offers to pay legal fees and bounties to the runners in states where he is
not licensed. Ladner, Talley, Santana, and Maxwell also testified that Pohl offered
to pay them bounties for signing up clients. Former clients who hired Pohl,
including Barry, Speck, Bethley, Bikumbu, Cheatham Sr. and Reese, all testified
65
that they were illegally and unethically solicited to hire Pohl. And Pohl admitted in
the Mississippi Litigation that such conduct would be illegal and against public
policy. Accordingly, Pohl cannot recover against anyone for anything because be
acquired his client files and purportedly confidential and protectedk information
through illegal solicitation and unauthorized practice of law. C
5. Pohl is precluded from claiming protection over
information he obtained through thet unauthorized
practice of law. i
Moreover, Texas courts have consistently applied the Unlawful Acts Rule to
preclude recovery by one who unlawfully practices a profession or occupation
without a required license, even if the illegal practice was not the direct cause of the
injury. Rule 5.05 of the Texas Rules of Prolfessional Conduct makes it unlawful for a
Texas lawyer to commit the unauthorMized practice of law in any other jurisdiction or
to assist a person who is not a member of the bar in the unauthorized practice of
law. See TEX. DISC. R. PROF’L iCOND. 5.05. Consequently, this Court should preclude
recovery for any claim arising from his unlawful practice in other jurisdictions.
For instance, tohe Dallas Court of Appeals refused to permit a car dealership
to recover from a slales agent that fraudulently withheld money relating to the sale
of cars becausei the dealership did not have the proper county license to sell cars:
Appellants argue allowing the Credit Union to prevail on the illegality
defense allows it to walk away with a windfall. Although this may be
true under these facts, to hold otherwise would allow individuals
to indirectly profit from a business they are directly prohibited
from engaging in unless properly licensed by statute. This we
will not do. . . . We agree with the Credit Union that the rule applies
and bars appellants’ claims arising in tort because they are
66
inextricably intertwined with their illegal contract to sell automobiles
in Dallas County without a license.
Denson v. Dallas Cnty. Credit Union, 262 S.W.3d 846, 855 (Tex. App.—Dallas 2008,
no pet.) (emphasis added).
The law is even stricter when applied to regulated professiones. The Supreme
Court of Texas refused to permit an engineer to recover a fee where he had failed to
pay the renewal fee for his license and was, therefore, tpracticing engineering
without a current license and in violation of the Texas Occupational Code. The
Court noted that the requirement of proper liecensure for engineers was to
“safeguard life, health and property.” M. M. M.u, Inc., v. Mitchell, 265 S.W.2d 584,
585–86 (1954).
Similarly, the Fort Worth Court oaf Appeals affirmed a denial of recovery for a
person who practiced architecture without a license and then sued his partner in
the architectural firm. The Couert stated that to permit recovery was to undermine
the purpose of licensure, wfhich was “to safeguard life, health, property and the
public welfare, and to protect the public against the irresponsible practice of the
profession of architecture.” Farha v. Elam, 385 S.W.2d 692, 695 (Tex. Civ. App.—
Fort Worth 1964i, writ ref’d n.r.e.).
As moember of Texas Bar, Pohl is subject to the requirements imposed by the
Texas Rules of Professional Conduct. Rule 5.05 prohibits Texas attorneys from
committing the unauthorized practice of law in other jurisdictions:
Rule 5.05. Unauthorized Practice of Law
A lawyer shall not:
67
(a) practice law in a jurisdiction where doing so violates the regulation
of the legal profession in that jurisdiction; or
(b) assist a person who is not a member of the bar in the performance
of activity that constitutes the unauthorized practice of law.
TEX. DISC. R. PROF’L COND. 5.05. The comment to the Rule exeplains, “Courts
generally have prohibited the unauthorized practice of law because of a perceived
need to protect individuals and the public from the mistakets of the untrained and
the schemes of the unscrupulous, who are not subject to the judicially imposed
disciplinary standards of competence, responsibilitye and accountability. . . Limiting
the practice of law to members of the bar protuects the public against rendition of
legal services by unqualified persons.” Id. at cmt. 1.
By his own admission, Pohl hasa never been licensed to practice law in any
state except Texas and Colorado.313 Yet, Pohl solicited and signed up auto accident
clients in Mississippi,314 Louiesiana,315 Missouri,316 and Arkansas.317 Santana
testified that she solicited BfP clients for Pohl all across the Gulf Coast, including
Florida, Louisiana, and Mississippi.318 Further, Pohl assisted Walker, Ladner, and
the other runners in engaging in the unauthorized practice of law through soliciting
and signing up cilients in those jurisdictions. In doing so, Pohl has violated the laws
regulating oTexas lawyers. Accordingly, Pohl cannot recover any fee related to his
313 Nicholson Ex. 31, Pohl Aug 2016 Depo at 8.
314 Exhibit 16, Declaration of Mae Berry; Exhibit 18, Declaration of Arthur Speck.
315 Exhibit 19, Declaration of Alphonse Bethley; Exhibit 29, Declaration of Mark Cheatham, Sr.
316 Exhibit 22, Declaration of Heraclite Bikumbu.
317 Exhibit 35, Declaration of Lacy Reese.
318 Exhibit 6, September 26, 2016 Affidavit; Exhibit 8, Santana Depositions.
68
unauthorized practice of law states in Louisiana, Alabama, Florida, and Mississippi
where he maintained an unauthorized law office.
Pohl alleges that the Defendants “stole” his documents and information from
his “satellite law office” in Mississippi in 2014. In Mississippi, it is a kmisdemeanor
for a person to practice law without a license. The Mississippi SCupreme Court has
established that “the ‘practice of law’ has been defined to be as little as advising a
person of his legal rights.” In re Williamson, 838 So.2d 226i, 234 (Miss. 2002) (citing
Darby v. Miss. State Bar, 185 So.2d 684, 687 (Miss. 1966)). The practice of law also
includes the solicitation of clients and the investigation of a potential client’s claim.
Forbes v. St. Martin, 145 So.3d 1184 (Miss. App. 2013).
Pohl’s admitted solicitation of Misslissippi clients and his admitted visits to
Mississippi to confer with actual andM potential clients constituted the unauthorized
practice of law in Mississippi. Pohl’s operation of that “law office”, and even its very
existence, violated Mississippii law. He admitted that he was not admitted to
practice law in Mississippi and the law office was not associated with any
Mississippi lawyer.319o Further, Pohl violated the law by sharing his office with non-
lawyers. Pohl admlitted that he unlawfully shared his office space, telephones and
computers witih a non-lawyer company, Precision, in violation of the Mississippi
Rules of Professional Conduct.320 In addition to his practice of law in the Mississippi
office and his meetings with potential and actual Mississippi clients, Pohl admits
319 See Nicholson Ex. 2, Pohl May 2018 Depo 112:19-13:10.
320 Nicholson Ex. 1, Pohl Dec 2021 Depo at 16:15-21.
69
that, in 2012-2014, he spent the majority of his time practicing law at his
Mississippi “law office.”321
Further, Pohl assisted Walker, Ladner and the other runners in engaging in
the unauthorized practice of law in Mississippi by paying them for skoliciting and
signing up clients on his behalf. Pohl admits that he gave WCalker and Ladner
advertising brochures for them to distribute as widely as possible in Mississippi and
other states. He admits that he gave Walker and Ladner bilank contracts that they
were to use to sign up clients for him.
Walker, Ladner and the other runners illegally solicited on Pohl’s behalf all
of the Mississippians listed in the Gandy and Brumfield Petitions.322 Of the 133
plaintiffs in the Gandy lawsuit, 103 of tlhem were Mississippians.323 Of the 272
Brumfield plaintiffs, 153 were MissisMsippians.
Those Petitions list people whom Pohl illegally solicited in Mississippi, either
directly or through his runiners. Since solicitation of work for an attorney
constitutes the unauthorized practice of law in Mississippi, Pohl committed that
crime, or assisted theo runners in committing it, as to every one of the Mississippi
plaintiffs in those ltwo Petitions.
Pohl alsio committed the unauthorized practice of law in regard to Mae Berry
and Lisa and Arthur Speck, former clients who subsequently sued Pohl plaintiff for
illegally soliciting them in Mississippi.324 Pohl sent a runner, Ken Talley, to each of
321 Exhibit 60, Sept. 17 2018 Deposition of Michael Pohl, at 292-293.
322 Nicholson Ex. 29, Brumfield Petition and Nicholson Ex. 30, Gandy Petition.
323 Nicholson Ex. 30, Gandy Petition at 2-6.
324 Nicholson Ex. 32, Berry Petition at 9-12.
70
their homes to solicit them as clients for Pohl regarding their personal injury
claims. Talley solicited these people for Pohl and induced them to sign a Pohl
attorney-client contract.
Pohl committed a misdemeanor and violated other Mississkippi laws by
engaging in the unauthorized practice of law in Mississippi whiCle soliciting these
clients. Since all of the “trade secret” information regarding Mississippians was
gathered during Pohl’s illegal solicitation activities, he caninot show his ownership
of the information without referencing his illegal activities. Pohl cannot show that
documents at his Mississippi “law office” were misappropriated without showing
that he operated an illegal law office in Mississippi. Consequently, the Unlawful
Acts Rule precludes Pohl from recoveringl in this court for the misappropriation of
“trade secrets” relating to MississippiMans.
In Louisiana, it is a felony for a person or any entity not licensed to practice
law in Louisiana to engage ini the practice of law; hold oneself out as being entitled
to practice law; provide legal advice; use language in advertising suggesting the
person is a lawyer oro in any way suggesting that the person is entitled to practice
law; or advertise tlhe existence of a “law office of any kind.” LA Rev. Stat. 37:213.
Further, it is aigainst Louisiana law for anyone not licensed to practice law to solicit
and sign up clients, or to investigate claims, in that state. In re Guirard, 11 So.3d
1017 (La. 2009).
Walker, Ladner and the other runners illegally solicited on Pohl’s behalf all
of the Louisianans listed in the Gandy and Brumfield Petitions. Of the 133
71
plaintiffs in the Gandy lawsuit, 7 of them were Louisianans.325 Of the 272
Brumfield plaintiffs, 54 were Louisianans.326
Those Petitions list people whom Pohl illegally solicited in Louisiana, either
directly or through his runners. Since solicitation of work for kan attorney
constitutes the unauthorized practice of law in Louisiana, PohCl committed that
crime, or assisted the runners in committing it, as to every one of the Louisiana
plaintiffs in those two Petitions. i
In addition, Pohl committed the unauthorized practice of law in Louisiana in
relation to Mark Cheatham, Mark Cheatham, Jr. and Luella Miller, Louisianans
who filed the Cheatham lawsuit against Pohl. As demonstrated above, Pohl sent
runner Ken Talley to solicit them in Louilsiana, which means he assisted Talley in
engaging in the unauthorized practicMe of law in Louisiana. Pohl personally traveled
to Louisiana to solicit and give legal advice to the Cheathams on at least two
occasions. i
Pohl also committed the unauthorized practice of law in regard to Sandra
Johnson and Alphonsoe Bethley, Louisiana residents who filed the Gandy lawsuit
against Pohl. Pohll sent runner Kirk Ladner to their home in Louisiana, where he
solicited them ito hire Pohl for their personal injury claim and induced them to sign
a Pohl attorney-client contract. Accordingly, Pohl assisted Ladner in engaging in
the unauthorized practice of law in Louisiana.
325 Nicholson Ex. 30, Gandy Petition at 2-9.
326 Nicholson Ex. 29, Brumfield Petition at 2-6.
72
Pohl committed a misdemeanor and violated other Louisiana laws by
engaging in the unauthorized practice of law in Louisiana while soliciting these
clients. Since all of the “trade secret” information regarding Louisianans was
gathered during Pohl’s illegal solicitation activities, he cannot show hkis ownership
of the information without referencing his illegal activities. CConsequently, the
Unlawful Acts Rule precludes Pohl from recovering in this court for the
misappropriation of “trade secrets” relating to Louisianansi.
It is a misdemeanor in Alabama to engage in the unauthorized practice of
law. AL Code § 34-3-1 (2021). It is also against Alabama law to provide assistance to
a person engaging in the unauthorized practice of law, which includes soliciting,
interviewing and signing up clients. Davlis v. Alabama State Bar, 676 So.2d 306
(Ala. 1996). M
Walker, Ladner and the other runners illegally solicited on Pohl’s behalf all
of the Alabamians listed in thei Gandy and Brumfield Petitions. Of the 133 plaintiffs
in the Gandy lawsuit, 21 of them were Alabamians.327 Of the 272 Brumfield
plaintiffs, 39 were Alaobamians.328
Those Petitlions list people whom Pohl illegally solicited in Alabama, either
directly or thirough his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of law in Alabama, Pohl committed that
crime, or assisted the runners in committing it, as to every one of the Alabama
plaintiffs in those two Petitions.
327 Nicholson Ex. 30, Gandy Petition at 2-9.
328 Nicholson Ex. 29, Brumfield Petition at 2-6.
73
The unauthorized practice of law in Florida is a felony. Fla. Stat. 454.23.
The practice of law includes soliciting and interviewing clients. The Florida Bar v.
Meserve, 372 So.2d 1373 (Fla. 1979). It is a violation of Florida law to assist
someone engaging in the unauthorized practice of law. Id. k
Walker, Ladner and the other runners illegally solicited oCn Pohl’s behalf all
of the Floridians listed in the Gandy and Brumfield Petitions. Of the 133 plaintiffs
in the Gandy lawsuit, 3 of them were Floridians.329 Of the i272 Brumfield plaintiffs,
22 were Floridians.330
Those Petitions list people whom Pohl illegally solicited in Florida, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of lalw in Florida, Pohl committed that crime,
or assisted the runners in committinMg it, as to every one of the Florida plaintiffs in
those two Petitions.
6. ALL of Piohl’s claims fail because he cannot show
ownershfip of the alleged trade secrets or damages
without showing that he acquired the information
through barratry or the unauthorized practice of
laow.
Simply putl, Pohl cannot prove that he is the owner of the trade secret
information wiithout showing how he acquired it. The evidence presented herein,
and in the Nicholson Motion, demonstrates that Pohl acquired the information
through illegal activity which included barratry and the unauthorized practice of
law in multiple states and assisting others to engage in the unauthorized practice of
329 Nicholson Ex. 30, Gandy Petition at 2-9.
330 Nicholson Ex. 29, Brumfield Petition at 2-6.
74
law. Since Pohl cannot prove his case without relying on his illegal activity, the
Unlawful Acts Rules bars his claims.
Pohl claims as damages his expenses in defending against the Cheatham,
Berry, Gandy and Brumfield lawsuits. He claims as damages the kexpenses he
incurred in defending against the Barratry Litigation and gCrievance filed by
Kassab. Pohl also claims that publicity about his illegal activities caused economic
harm to his “law practice.” Thus, Pohl’s claimed damagesi flow solely from the fact
that people discovered his unlawful acts.
Pohl cannot claim the expense of defending against the Cheatham, Berry,
Gandy and Brumfield lawsuits without addressing what the lawsuits are about. All
four of those lawsuits were filed against hlim by persons who were illegally solicited
by him, including some of his formerM clients. One of the cases (Barry) settled, and
two of the cases (Brumfield and Gandy) were dismissed on limitations. See
Brumfield v. Williamson, 634 iS.W.3d 170 (Tex. App.—Houston [1st Dist.] 2021, pet.
denied); Gandy v. Williamson, 634 S.W.3d 214, 219 (Tex. App.—Houston [1st Dist.]
2021, pet. denied). Alothough the last case (Cheatham) was dismissed on summary
judgment, the coulrt of appeals recently reversed because there was evidence of a
“barratry scheime.” See Cheatham v. Pohl, No. 01-20-00046-CV, 2022 Tex. App.
LEXIS 649, at *25-26 (Tex. App.—Houston [1st Dist.] Jan. 27, 2022, no pet. h.)
(mem. op.). Pohl cannot claim that Defendants caused him to defend against these
lawsuits without showing these people sued him for committing barratry.
75
Likewise, the Texas Bar grievance which Kassab submitted against Pohl is
based on Pohl’s illegal acts, which included barratry. Pohl cannot claim that
Defendants caused him to defend against a bar complaint without showing that it
concerned his unlawful activities. Regardless, Pohl’s claim for damagesk arising from
any grievances are barred by immunity, as stated above. C
Finally, Pohl claims that publicity about his illegal activities damaged his
law practice. Pohl cannot prove these damages without shiowing that he committed
unlawful acts. Since his claimed damages all spring from his former clients and
others becoming aware of his barratry and other illegal activities, he cannot prove
any of his damages without discussing barratry.
G. Pohl is not permitted lto recovery as damages the
attorney’s fees he incurared in the four barratry lawsuits
and two disciplinary gMrievances.
Damages in a TUTSA suit are generally comprised of losses such as “the
value of the plaintiff’s lost proifits, the defendant’s actual profits from the use of the
secret, the value a reasonably prudent investor would have paid for the trade secret,
the development cosots the defendant avoided by the misappropriation, and a
reasonable royaltyl.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710–11
(Tex. 2016). i
There are no differences between existing Texas common law and
TUTSA regarding the economic damages available for trade secret
misappropriation. Under Texas common law, the plaintiff was
permitted to recover damages based on the value of what has been lost
by the plaintiff (lost profits) or the value of what has been gained by
the defendant (unjust enrichment). The plaintiff also could recover a
reasonable royalty for the defendant’s use of the plaintiff’s trade secret.
76
Joseph F. Cleveland, Jr., J. Heath Coffman, The Texas Uniform Trade Secrets Act,
Tex. J. Bus. L. 323, 328 (2013).
Nonetheless, Pohl here seeks as damages the fees he incurred in defending
against the four underlying barratry suits and two disciplinary grievankces. Nothing
the TUTSA statute permits recovery of such “damages”—indeeCd, the prevailing
party is not even entitled to recovery of its attorney’s fee under TUTSA, but instead,
the trial court has discretion whether to award fees and onily if willful and malicious
misappropriation exists. TEX. CIV. PRAC. & REM. COsDE § 134A.005. If the TUTSA
plaintiff is not guaranteed recovery of fees in the actual TUTSA suit, there is no
reason to permit the TUTSA plaintiff to recover fees incurred in other suits.
Moreover, even applying common-lalw, Pohl is not entitled to attorney’s fees
as damages. “Whether a party is Mentitled to attorney’s fees is a question of
law.” Sunchase IV Homeowners Ass’n, Inc. v. Atkinson, 643 S.W.3d 420, 422 (Tex.
2022). “In Texas, attorney’s ifees expended in prior litigation generally are not
recoverable as damages; attorney’s fees are recoverable only when an agreement
between the parties soo provides.” Martin-Simon v. Womack, 68 S.W.3d 793, 797–98
(Tex. App.—Houstlon [14th Dist.] 2001, pet. denied). As the Supreme Court has
explained, “Foir more than a century, Texas law has not allowed recovery of
attorney’s fees unless authorized by statute or contract. This rule is so venerable
and ubiquitous in American courts it is known as ‘the American Rule.’” Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006). The Supreme Court of
Texas has never adopted that equitable “tort of another” exception to the American
77
Rule. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research
Corp., 299 S.W.3d 106, 119 (Tex. 2009) (declining to address whether the “tort of
another” exception set out in section 914(2) of the Restatement should be adopted in
Texas); see also Alvarez v. Agyemang, No. 02-19-00301-CV, 2020 WL k719440, at *3
(Tex. App.—Fort Worth Feb. 13, 2020, no pet.) (mem. op.) (“WeC do not hold that
the equitable exception allows the recovery of a prevailing
party’s attorney’s fees even in the absence of a contracti or authorizing statute.
Indeed, the Texas Supreme Court’s language in Gullo and that court’s failure to
expressly adopt or reject this equitable theory indicate that equity does not extend
this far.”); Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.)
(“Given the supreme court’s faithful adherlence to the American Rule, and its strong
statement in Tony Gullo that triaMl courts lack the inherent authority to
award attorney’s fees contrary to the Rule, we decline to adopt a
new equitable exception to thie Rule.”); Naschke v. Gulf Coast Conference, 187
S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (declining to
adopt the “tort of anotoher” exception to the American Rule because “we are bound to
follow the existingl laws of the State, we are not at liberty to adopt a theory of
recovery that ihas not been enacted by the Legislature or adopted by the Texas
Supreme Court”).331
331 Prior to Tony Gullo and Akin Gump, the First Court of Appeals recognized the equitable “tort of
another” exception to the general rule. See Massey v. Columbus State Bank, 35 S.W.3d 697, 701 (Tex.
App.—Houston [1st Dist.] 2001, no pet.). Tony Gullo and Akin Gump have driven home that the
general rule against allowing recovery of fees as damages is firm and the Fourteenth Court of
Appeals’ rejection of the “tort of another” exception in Martin-Simon and Naschke should be applied
here, especially because Pohl’s own wrongdoing caused him to be sued for barratry. See also
Stumhoffer v. Perales, 459 S.W.3d 158, 168 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)
78
No statute or contract provides Pohl the right to recover his attorney’s fees in
the two barratry suits he prevailed on, nor on the barratry suit he settled and the
ongoing suit. Application of the American Rule to preclude Pohl’s request for
attorney’s fees damages makes sense here especially because Pohl kwas sued by
persons accusing him of improperly soliciting them in violation of Cbarratry laws and
ethical rules—those persons exercised their right and choice to file suit against Pohl
for his wrongdoing. Under such circumstances, it would bie inequitable and violate
public policy to allow Pohl to insulate himself from responsibility for his
wrongdoing.
In a similar vein, even if some equitable exception could apply here to permit
a plaintiff to recover its attorney’s fees dlefending an underlying lawsuit, it would
apply only if Pohl were wholly iMnnocent relative to the barratry suits and
grievances. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 WL
1539291, at *8 (Tex. App.—Hiouston [1st Dist.] June 30, 2005, no pet.) (mem. op.)
(“[U]nder the ‘tort of another’ exception, BSG is not entitled to
recover attorney’s feeso incurred in the arbitration because it is not a wholly
innocent party.”); Placesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834–35
(Tex. App.—Auistin 2002, no pet.) (holding trial court properly refused to award fees
to plaintiff because it was found partly negligent in underlying suit); Dayton
Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—Dallas 1987, writ
denied) (“Therefore, in the present case, Eldridge is not an innocent party forced to
(“Texas has long adhered to the American Rule with respect to awards of attorney’s fees, which
prohibits the recovery of attorney’s fees from an opposing party in legal proceedings unless
authorized by statute or contract.”).
79
incur costs and expenses, including attorneys’ fees, to be treated as the legal
consequences of some original wrongful act of another and permitted to be recovered
as damages.”).
As an initial matter, the Cheatham barratry suit is ongoinkg, with Pohl
recently losing the appeal in that case (the appeal is in rehearingC stage presently),
meaning, putting aside all the other reasons why his claims fail, it is premature for
him to be seeking fees related to Cheatham. Regardless, tihe fact the Pohl violated
ethical rules and committed barratry in having others solicit the persons who filed
the barratry suits proves he was not wholly innocent.
Finally, because, as established above, Pohl failed to maintain the secrecy of
his alleged trade secrets, he cannot recovler any damages involving those alleged
trade secrets even if attorney’s fees coMuld be recovered as damages:
Like injunctive relief, a monetary recovery for trade secret
misappropriation is apepropriate only for the period in which
information is entitledi to protection as a trade secret, plus the
additional period, if fany, in which a misappropriator retains an
advantage over good faith competitors because of misappropriation.
Actual damage to a complainant and unjust benefit to a
misappropriatoor are caused by misappropriation during this time
alone. See Conmar Products Corp. v. Universal Slide Fastener Co., 172
F.2d 150 (ClA2, 1949) (no remedy for period subsequent to disclosure of
trade secriet by issued patent); Carboline Co. v. Jarboe, 454 S.W.2d 540
(Mo. 197i0) (recoverable monetary relief limited to period that it would
haveo taken misappropriator to discover trade secret without
misappropriation).
Uniform Trade Secrets Act at § 3 DAMAGES, comment. Hence, for numerous
reasons, Pohl’s cannot recover his attorney’s fees as damages in this suit.
80
CONCLUSION & PRAYER
For the foregoing reasons, the Court should grant this motion and order that
Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC take nothing on
their claims against Lance Christopher Kassab and The Kassab Law Fkirm.
Respectfully submitted,C
THE KASSAB LAW FIiRM
__________________________
LANCE C sHRISTOPHER KASSAB
Texas Setate Bar No. 00794070
lance@kassab.law
DA u VID ERIC KASSAB
Texas State Bar No. 24071351
david@kassab.law
lNICHOLAS R. PIERCE
a Texas State Bar No. 24098263
M nicholas@kassab.law
 1214 Elgin Street
Houston, Texas 77004
e Telephone: 713-522-7400
i Facsimile: 713-522-7410
f E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
i CERTIFICATE OF SERVICE
I cerotify that on this date, August 29, 2022, I electronically filed this
document with the Clerk of the Court using the eFile.TXCourts.gov electronic filing
system which will send notification of such filing to all parties or counsel of record.
_______________________
DAVID ERIC KASSAB
81
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
David Kassab e
Bar No. 24071351 C
david@kassab.law t
Envelope ID: 67771690 r
Status as of 8/30/2022 8:41 AM CST
Case Contacts
Name BarNumber Email TimsestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 8/29/2022 5:07:20 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com r8/29/2022 5:07:20 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 8/29/2022 5:07:20 PM SENT
Todd Taylor ttaylor@jandflaw.com  8/29/2022 5:07:20 PM SENT
Scott M.Favre scott@favrepa.com 8/29/2022 5:07:20 PM SENT
Lawyer Wade lawyerwade@hotmail.coml 8/29/2022 5:07:20 PM SENT
Lance Kassab eserve@kassab.law a 8/29/2022 5:07:20 PM SENT
Lance Kassab lance@kassab.lawM 8/29/2022 5:07:20 PM SENT
David Kassab david@kassab.law 8/29/2022 5:07:20 PM SENT
Larry Newsom lnewsom@krcl.com 8/29/2022 5:07:20 PM SENT
Jason M.Ciofalo jason@ciofaelolaw.com 8/29/2022 5:07:20 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 8/29/2022 5:07:20 PM SENT
Nicholas Pierce nicholafs@kassab.law 8/29/2022 5:07:20 PM SENT
Murray JFogler mfogler@foglerbrar.com 8/29/2022 5:07:20 PM SENT
Murray Fogler mfogler@fbfog.com 8/29/2022 5:07:20 PM SENT
Andrew Johnson oajohnson@thompsoncoe.com 8/29/2022 5:07:20 PM SENT
Andrew J. Sarne Casarne@krcl.com 8/29/2022 5:07:20 PM SENT
Kathryn Laflin  KLaflin@KRCL.com 8/29/2022 5:07:20 PM SENT
Benjamin Ritz britz@thompsoncoe.com 8/29/2022 5:07:20 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 8/29/2022 5:07:20 PM SENT
Dale Jefferson 10f607900 jefferson@mdjwlaw.com 8/29/2022 5:07:20 PM SENT
Raul Herman Suazo n24003021 suazo@mdjwlaw.com 8/29/2022 5:07:20 PM SENT
Kevin Graham CainU24012371 cain@mdjwlaw.com 8/29/2022 5:07:20 PM SENT
D Kassab david@kassab.law 8/29/2022 5:07:20 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 8/29/2022 5:07:20 PM SENT
L Kassab lance@kassab.law 8/29/2022 5:07:20 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 8/29/2022 5:07:20 PM SENT
Chris C.Pappas cpappas@krcl.com 8/29/2022 5:07:20 PM SENT
Todd Taylor ttaylor@jandflaw.com 8/29/2022 5:07:20 PM SENT
Katie Budinsky kbudinsky@krcl.com 8/29/2022 5:07:20 PM ERROR
Misty Davis mdavis@reynoldsfrizzell.com 8/29/2022 5:07:20 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 8/29/2022 5:07:20 PM SENT"
16,2021-06-08,MSJ,Kassab,Kassab’s Traditional MSJ,"Kassab's Traditional Motion for Summary Judgment asserting three independent grounds: statute of limitations, res judicata, and attorney immunity doctrine","Filed June 8, 2021 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Dispositive motion filed in Phase 2, approximately 2.5 years after the original petition. Filed before Kassab responded to any discovery, relying on traditional summary judgment rule permitting filing 'at any time after the adverse party has appeared or answered.' Relies on arguments and evidence previously presented in the TCPA motion and interlocutory appeal. Case is before Judge Scot 'Dolli' Dollinger. District Clerk is now Marilyn Burgess.",MSJ-1,DENIED,Phase 2,2021-06-08_MSJ_Kassab-Traditional-MSJ_FILED.pdf,Traditional summary judgment ordering that Pohl take nothing on all claims against Kassab and The Kassab Law Firm,"6/8/2021 2:44 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 54215119
By: Ozuqui Quintanilla
Filed: 6/8/2021 2:44 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIALk DISTRICT
LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPCHER KASSAB,
PC’S TRADITIONAL MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGEtR:
Defendants/Counter-Plaintiffs Lance Christopher Kassab and Lance
Christopher Kassab, P.C. d/b/a/ The Kassab Law Feirm files this, their Traditional
Motion for Summary Judgment, and would respeuctfully show the following.
SUMMlARY
Plaintiffs Michael A. Pohl andM Law Office of Michael A. Pohl, PLLC (“Pohl”)
sued Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.
D/B/A The Kassab Law Firmi (“Kassab”) and others for conversion, theft of trade
secrets and civil conspiracy. The Court should grant summary judgment on Pohl’s
claims against Kassabo for any one of three independent reasons:
• First, Polhl’s claims are barred by limitations. Pohl testified that
discoveiry in federal litigation filed in 2014 revealed that his alleged
tradei secrets and confidential information had been stolen from his
ofofice in Gulfport, Mississippi. Pohl testified that Kassab was
involved in that alleged misappropriation that occurred in 2014,
and that he knew it, but he did not file suit because he “did not
want to do anything precipitous.” Because Pohl waited more than
three years later to bring his claims against Kassab, the claims are
barred by limitations.
• Second, the claims are barred by res judicata. Pohl previously
brought similar claims against alleged co-conspirators in
Mississippi federal litigation, wherein Pohl contends that Kassab
allegedly purchased his stolen trade secrets. Yet, Pohl never
brought Kassab into that lawsuit and instead paid approximately
$1 million to settle the dispute against Kassab’s alleged co-
conspirators resulting in a final judgment. Pohl’s claims against
Kassab here are based on the same claims as were or could have
been raised in that prior litigation, so they are barred kby res
judicata. e
• Third, Pohl’s claims against Kassab are barred by t the attorney
immunity doctrine which provides that an attorney is immune from
liability to nonclients for conduct within thet scope of his
representation of his clients. The fact that thie alleged conduct
occurred prior to litigation is irrelevant. Pohl alleges that Kassab
bought Pohl’s trade secrets and client list to send advertisements to
Pohl’s former clients and solicit them to beecome Kassab’s clients in
barratry suits against Pohl. These claims fall squarely within
attorney immunity, and Pohl’s characterization of this conduct as
wrongful is immaterial.
IIl
BACaKGROUND
On October 8, 2014, Scott Walker and Kirk Ladner and their company
Precision Marketing Group, LLCe (“Precision”) sued Pohl and his law firm for breach
of contract and fraud, amoOngf other claims (“the Federal Court Case”). See Walker v.
Williamson, No. 1:14cv381-KS-JCG, 2016 U.S. Dist. LEXIS 61185, at *5-6 (S.D.
Miss. May 9, 2016). In the Federal Court Case, Walker, Ladner and Precision (“the
Runners”) allegeid that Pohl contracted with them to provide “public relations and
marketing soervices” to potential clients impacted by the Deepwater Horizon oil spill
in exchange for “a percentage of the attorney fees for the claims obtained from their
efforts, along with expenses and a flat fee.” Id. at *6-7. The Runners also alleged
that they contracted with Pohl “to provide marketing and public relations services
in connection with claims for automobile rollover accidents.” Walker v. Williamson,
No. 1:14-CV-381-KS-MTP, 2017 U.S. Dist. LEXIS 59031, at *5 (S.D. Miss. Apr. 18,
2017). “There is evidence that the [Runners] contacted people and businesses in
Mississippi to determine if they might have a claim against BP, encouraged those
people to retain Pohl as their attorney, and were paid over $5 millionk in ‘barratry
pass-through money’ for their services.” Kassab v. Pohl, 612 S.WC.3d 571, 574 (Tex.
App. – Houston [1st Dist.] 2020, pet. denied). However, the Runners sued Pohl
because they “procured thousands of viable BP claims” aind “approximately sixty
motor vehicle accident cases” for Pohl but that Pohl “did noy pay any of the agreed
share of his fees” or all expenses incurred. Walker v. Williamson, No. 1:14-cv-381-
KS-JCG, 2016 U.S. Dist. LEXIS 76488, at *5, 24 (S.D. Miss. Mar. 1, 2016).
During discovery in the Federal lCourt Case, Pohl discovered that the
Runners allegedly “disclosed confidMential and proprietary information to third
parties without authorization” and proposed “the ‘sale’ of all of [his] accumulated
work product to third partieis” while working for him.1 Pohl testifies that the
Runners “undertook to convert, misappropriate for themselves and/or market to
third parties claimanot files and other information and materials” that allegedly
belonged to Pohl2 l– including “marketing information and other trade secrets”3 –
and then the niew owner of Precision, Scott Favre, allegedly “sold those items and
the information” to Kassab.4
1 Exhibit 1, Pohl’s June 19, 2018 Affidavit, at ¶ 18.
2 Exhibit 1, at ¶ 28.
3 Exhibit 1, at ¶ 28.
4 Exhibit 1, at ¶ 29.
As a result, Pohl “asserted multiple claims against” the Runners in the
Federal Court Case based on their alleged “fraudulent and bad faith conduct.”5 Pohl
did not assert claims against Kassab in the Federal Court Case, even though he
testified under oath that he knew Kassab allegedly was part of the “teakm of thieves”
who broke into Pohl’s office in 2014 and stole his confidentiaCl information and
purported trade secrets.6 Pohl eventually settled his claims against the Runners,
and the Federal Court Case was dismissed with prejudice oin April 24, 2017.7
After hearing about Pohl’s client-solicitation activities in Mississippi, Kassab
began researching the matter and met with Favre and his counsel, Tina Nicholson.
Kassab, 612 S.W.3d at 574. Favre informed Kassab that, when he bought Precision,
he acquired files related to Pohl and Favrle transferred that information to Kassab.
Id. Kassab prepared advertisement lMetters approved by the State Bar of Texas and
sent it to the people who had been illegally solicited by Pohl, informing them that
they may have potential bariratry claims against Pohl. Id. at 575. “Hundreds of
Mississippi residents responded to Kassab’s advertisement letter”, “[m]ore than 400
signed representationo contracts with Kassab’s firm to pursue barratry claims
against Pohl”, andl “Kassab filed four barratry suits against Pohl in Harris County
district courts,i each with multiple named plaintiffs.” Id.
5 Exhibit 1, at ¶ 19; see also Exhibit 2, Pohl’s Amended Counterclaim.
6 Exhibit 3, May 15, 2018 Deposition of Michael Pohl, pp. 85-93.
7 Exhibit 4, April 21, 2017 Judgment.
In retaliation, Pohl filed this litigation against Kassab, Favre, Nicholson,
Precision, and others, for conversion, misappropriation of trade secrets and
conspiracy.8 Here, Pohl rehashes his allegations from the Federal Court Case,
claiming that “Precision gained access to Pohl’s confidential andk proprietary
information and property, including trade secret materials” and “Cwork product” and
“illegally misappropriated” this information and then allegedly “secretly sold Pohl’s
confidential information to Kassab and [another lawyer inamed] Montague”9 who
then “solicited clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring
cases against Pohl for alleged barratry and other claims.”10
III
TRADITIONAL SUMMARY JUDGMENT STANDARD
The purpose of summary judgmaents is to eliminate patently unmeritorious
claims and untenable defenses. Tex. Dep't of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 228 (Tex. 2004). eTo prevail on a traditional motion for summary
judgment, the movant must fshow that no genuine issue of material fact exists and
that it is entitled to ju
dgment as a matter of law. TEX. R. CIV. P. 166a(c); Lujan v.
Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). “If the movant carries this burden, the
burden shifts toi the nonmovant to raise a genuine issue of material fact precluding
summary juodgment.” Lujan, 555 S.W.3d at 84; see Maldonado v. Maldonado, 556
S.W.3d 407, 414 (Tex. App.—Houston [1st Dist.] 2018, no pet.). “A genuine issue of
8 See Pohl’s First Amended Petition (on file with the Court) (“Petition”),
9 Petition, at ¶¶ 20-21.
10 Petition, at ¶ 29.
material fact exists if more than a scintilla of evidence establishing the existence of
the challenged element is produced.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004). The traditional summary judgment rule expressly permits a party
to file a traditional summary judgment motion “at any time after the akdverse party
has appeared or answered.” TEX. R. CIV. P. 166a(a) (emphasis addeCd).
ARGUMENT & AUTHORITIES
Although Pohl’s claims against Kassab lack merit because Kassab did not
misappropriate Pohl’s trade secrets or otherwise eengage in any misconduct, the
Court need not decide that issue to dispose of Pouhl’s claims against Kassab. Rather,
those claims should be dismissed for three independent and purely legal grounds
which require no discovery. a
A. Pohl’s claims against Kassab are barred by limitations.
A defendant moving for esummary judgment on the affirmative defense of
limitations bears the burdefn of conclusively establishing the elements of that
defense. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018) (per
curiam). To do so, the defendant must (1) conclusively prove when the cause of
action accrued aind (2) negate the discovery rule if it applies and has been pleaded
or otherwisoe raised. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999). A cause of action accrues when (1) “the allegedly
tortious act was committed and caused an injury;” or (2) “facts come into existence
that authorize a party to seek a judicial remedy.” United Healthcare Servs., Inc. v.
First St. Hosp. LP, 570 S.W.3d 323, 335 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied) (citing Pasko, 544 S.W.2d at 834). This is true even if all resulting damages
have not yet occurred. Pasko, 544 S.W.3d at 834. Determining the accrual date is a
question of law. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.
2003). k
Pohl has sued Kassab for conversion, theft of trade secrets,C and conspiracy to
commit those acts.11 The statute of limitations for conversion is two years from the
date the property is allegedly taken. TEX. CIV. PRAC.
&i REM. CODE § 16.003(a);
Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App. – Houston [1st Dist.] 2006, no
pet.). The statute of limitations for misappropriation of trade secrets is three years
from the date the misappropriation was discovered or should have been discovered
through reasonable diligence. TEX. CIV. lPRAC. & REM. CODE § 16.010(a). Civil
conspiracy is a derivative claim, so Mthe statute of limitations is the same as the
underlying claims; here, either two or three years. See Agar Corp., Inc. v. Electro
Circuits Int'l, LLC, 580 S.W.3di 136, 138 (Tex. 2019).
Pohl testified under oath that he learned of the basis of his purported claims
against Kassab durinog discovery in the Federal Court Case.12 Specifically, Pohl
testified during thle course of discovery in that case it was “revealed” that Precision
– a defendant iin this case – and the company’s former owners (Walker and Ladner)
allegedly “undertook to convert, misappropriate, for themselves and/or market to
third parties [Kassab] claimant files and other information and materials that
11 Petition, at ¶¶ 36-43.
12 Exhibit 1.
belong to [him].”13 Pohl testified: “Those items include original client contingency
fee contracts between my clients and me …, documentation of contact and personal
information, claim information and supporting materials.”14 Pohl testified that
those files “were at one time maintained in approximately seventeenk clear plastic
file containers” and that “Ladner admitted absconding with thoseC files from [Pohl’s]
satellite law office and, without [Pohl’s] consent, kept them at his residence until
they were later delivered, also without [Pohl’s] consenti, to Scott Favre” – the
current owner of Precision, who is also a defendant in this case.15 Pohl complains in
that affidavit that Nicholson – who was counsel for Precision in the Federal Court
Case, and is also a defendant in this case – “refused to return and converted to [her]
own use” four computers that Pohl purchasled for his office and which Precision used
while soliciting clients for Pohl.16 PMohl testifies that those computers contained
“marketing information and other trade secrets, [his] proprietary client forms” and
other unidentified work prodiuct.17 Pohl testifies that the ”theft and unlawful
disclosure was made even more egregious” when Favre refused to return the
information and “appoears [to have] eventually sold those items and the information
therein to [Kassabl].”18
13 Exhibit 1,n at ¶ 28.
14 Exhibit 1, at ¶ 28.
15 Exhibit 1, at ¶ 28.
16 Exhibit 1, at ¶ 28.
17 Exhibit 1, at ¶ 28.
18 Exhibit 1, at ¶ 29.
Although Pohl testified that he learned of that alleged misconduct in
discovery in the Federal Court Case, which began in 2019, he does not identify a
specific date in his affidavit.19 However, Pohl testified in a separate deposition that
the alleged theft of trade secret information occurred in 2014 when Kakssab and his
“crew” allegedly broke into Pohl’s office in Gulf Port and hacked hiCs computers, stole
his clients’ names and information, and then solicited his clients:
Q. Okay. And you think I'm an unethical lawyer? i
A. Yes. You stole my files. You robbed me. You tried to destroy my
practice. So I don't believe you should submit any more materials,
particularly false affidavits that have been retracted by the witnesses
who made them and other verifialbly false accusations. And you've
solicited my clients like Mr. ChMeatham, and you've told him lies to get
him to sue me.
Q. Okay. And you statei on the record under oath, subject to perjury,
that I stole your files, right?
A. You and youor co-counsel and your team of thieves.
l …
A. If thie question is did you steal my files and rob my office, the
answer is that you and your co-counsel and your crew robbed my office,
stole my clients' names, contacted my clients and told them lies to
initiate suits against me.
Q. Okay. How did I steal your files, sir? Did I break into your house?
19 See Exhibit 1, generally.
A. You broke into my law office.
Q. I did personally?
A. You and your crew.
Q. And when did I do that? k
A. I don't know the exact date, but I believe it was in 201C4 when you
robbed me.
Q. I robbed you in 2014? i
A. Yes, sir.
Q. And where did I rob you at?
A. Mississippi.
Q. And what location did I rob you alt?
A. Our Gulfport, Mississippi oMffice at the time. I do not remember the
street address where I had my office.
Q. So I broke into youir office and stole your stuff in 2014 at your
Gulfport, Mississippi office, right?
A. You and youor crew.20
Pohl testified thalt although he knew the alleged conduct by Kassab occurred in
2014, he did niot file a lawsuit against Kassab because he “wanted to spend time to
reflect on it before taking action [and] didn’t want to do anything that was
precipitous.”21
20 Exhibit 3, pp. 85-93.
21 Exhibit 3, p. 93.
10
“The statute of limitations begins to run when a party has actual knowledge
of a wrongful injury.” Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207
(Tex. 2011). “Once a claimant learns of a wrongful injury, the statute of limitations
begins to run even if the claimant does not yet know the specific causek of the injury;
the party responsible for it; the full extent of it; or the chancesC of avoiding it.” Id.
(internal quotations omitted) (emphasis added). A plaintiff need not know that he
has a cause of action; rather, he must only know “the facts igiving rise to the cause of
action.” Comput. Assocs. Int'l Inc. v. Altai, Inc., 918 S.W.2d 453, 457 (Tex. 1996).
Regarding misappropriation of trade secret claims, the statute of limitations begins
to run when the plaintiff knows or “should have known of facts that in the exercise
of reasonable diligence would have led tol discovery of the misappropriation.” Sw.
Energy Prod. Co. v. Berry-HelfanMd, 491 S.W.3d 699, 722 (Tex. 2016). “A
misappropriation of trade secrets that continues over time is a single cause of action
and the limitations period …i. begins running without regard to whether the
misappropriation is a sin
gle or continuing act.” TEX. CIV. PRAC. & REM. CODE §
16.010(b). o
Here, Pohl’sl own testimony conclusively demonstrates that he knew of his
potential claimis against Kassab – and the other defendants in this lawsuit to the
extent they are part of the “crew” – in 2014 when they allegedly “undertook to
convert, misappropriate for themselves and/or market” Pohl’s alleged trade secret
information.22 But Pohl did not immediately file suit, nor did he investigate his
22 Exhibit 1, at ¶¶ 28-29; Exhibit 3, p. 85-93.
11
claims.23 Instead, Pohl waited until August 28, 2018 – more than four years later –
to file this lawsuit24 because Pohl “did not want to do anything that was
precipitous.”25
Accordingly, Pohl’s claims against Kassab are barred by limitatikons. See TEX.
CIV. PRAC. & REM. CODE §§ 16.003, 16.010; Agar Corp., Inc., 5C80 S.W.3d at 147
(claims for theft of trade secrets and conspiracy barred by limitations because injury
was the sale of goods, which was known to have occurreid more than three years
before suit against conspirators was brought); Tavana v. GTE Sw., No. 05-97-00664-
CV, 1999 Tex. App. LEXIS 5365, at *11-12 (Tex. App. – Dallas July 21, 1999, pet.
denied) (unpublished) (suit for misappropriation of trade secrets barred by
limitations because claim accrued whenl plaintiff knew trade secrets had been
misappropriated); Target Strike, Inc.M v. Marston & Marston Inc., 524 F. App'x 939,
945 (5th Cir. 2013) (applying Texas law and concluding that misappropriation of
trade secret claim was barred iby limitations when conduct of defendant led plaintiff
“to believe” its “confidential information had been misappropriated” and plaintiff
“had reason to be aleroted by” the defendant’s actions).
B. Pohll’s claims against Kassab are barred by res judicata.
“Res judiicata, or claims preclusion, prevents the relitigation of a claim or
cause of action that has been finally adjudicated, as well as related matters that,
23 Exhibit 3, p. 93.
24 Plaintiffs’ Original Petition.
25 Exhibit 3, p. 93.
12
with the use of diligence, should have been litigated in the prior suit.” Barr v.
Resolution Tr. Corp., 837 S.W.2d 627, 628 (Tex. 1992). “The party relying on the
affirmative defense of res judicata must prove (1) a prior final determination on the
merits by a court of competent jurisdiction; (2) identity of parties or thkose in privity
with them; and (3) a second action based on the same claims as wCere or could have
been raised in the first action.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862
(Tex. 2010). Because all elements are satisfied here, sumimary judgment based on
res judicata is appropriate.
Taking element (2) first, there is identity of the parties. Pohl sued Precision,
Walker and other “potential” defendants in the Federal Court Case alleging, among
other things, that they converted or sltole property from him by means of
misrepresentation, deception, or faiMlure to disclose.26 Although Kassab was not
himself a named defendant to that suit, that fact alone is immaterial because Pohl
alleges that Kassab conspiredi with Precision,27 and “conspirators are deemed to be
in privity for res judicata purposes.” Palaxar Grp., LLC v. Williams, No. 6:14-cv-
758-0rl-28GJK, 2014 oU.S. Dist. LEXIS 138533, at *43 (M.D. Fla. Sep. 30, 2014);
Seenyur v. Coolidgle, No. 16-cv-3832 (WMW/BRT), 2018 U.S. Dist. LEXIS 5895, at
*6 (D. Minn. Jian. 12, 2018) (“Members of a conspiracy are deemed under the law to
be in privity with each other.”); RSM Prod. Corp. v. Freshfields Bruckhaus Deringer
US LLP, 800 F. Supp. 2d 182, 193 (D.D.C. 2011) (same).
26 Exhibit 2, ¶ 6.
27 Petition, at ¶ 43.
13
Element (1) is also satisfied because Pohl voluntarily settled the Federal
Court Case, and the parties dismissed their claims against each other with
prejudice on April 21, 2017.28
Therefore, the only issue is whether element (3) is satisfied; thakt is, whether
Pohl’s claims against Kassab “could have been raised” in the FeCderal Court Case.
See Barr, 837 S.W.2d at 630 (recognizing that a prior judgment will also bar “causes
of action or defenses which arise out of the same subject imatter and which might
have been litigated in the first suit.”). To determine this issue, the Court must
compare the factual basis of Pohl’s claims or even potential claims in the Federal
Court Case with those made here. See id. (“A determination of what constitutes the
subject matter of a suit necessarily requirles an examination of the factual basis of
the claim or claims in the prior litigatMion.”).
In the Federal Court Case, not only did Pohl sue Precision for alleged theft of
his property,29 but Pohl recogniized during discovery that Precision and Walker had
allegedly “undertook to convert, misappropriate, for themselves and/or market to
third parties” like Kaossab “claimant files and other information and materials” that
allegedly belongedl to Pohl, including “original client contingency fee contracts
between [Pohil’s] clients and [Pohl] …, documentation of contact and personal
information, claim information and supporting materials.”30 Pohl identifies that
28 Exhibit 4.
29 Exhibit 2, ¶ 6.
30 Exhibit 1, at ¶ 28.
14
material as “marketing information and other trade secrets,” and claims that it was
stolen by Precision and its current or former owners, including Favre, a defendant
in this case, and Favre’s counsel, Nicholson, also a defendant in this case.31 Pohl
testifies that the ”theft and unlawful disclosure was made even mokre egregious”
when Favre “appears [to have] eventually sold those items anCd the information
therein to [Kassab].”32
Pohl’s lawsuit against Kassab clearly arises out of tihe same facts as those at
issue in or discovered during the Federal Court Case. Here, Pohl alleges that, while
working for him, Precision “gained access to Pohl’s confidential and proprietary
information and property, including trade secret materials, that included the
identities of Pohl’s clients/prospective cllients, as well as their detailed contact
information.”33 Pohl alleges that FMavre and Precision “stole physical copies of
certain of the information, stole Pohl’s computers, and misappropriated electronic
data to which they had access ithrough Precision’s work for Pohl.”34 Pohl alleges that
“Nicholson also ultimately gained access to this information”35 and then Favre,
Precision and Nicholsoon “struck a rich bargain” and allegedly sold this information
31 Exhibit 1, at ¶ 28.
32 Exhibit 1, at ¶ 29.
33 Petition, at ¶ 20.
34 Petition, at ¶ 21.
35 Petition, at ¶ 20.
15
to Kassab so Kassab could solicit clients to act as plaintiffs against Pohl for barratry
and other claims.36
“Any cause of action which arises out of those same facts should, if
practicable, be litigated in the same lawsuit.” Barr, 837 S.W.2d at 630k. There is no
practical reason why Pohl could not have sued Kassab in the FeCderal Court Case
prior to Pohl agreeing to nonsuit that case with prejudice.37 Pohl’s testimony reveals
that he knew of the alleged theft of trade secrets by Kassiab and other defendants
named herein, including Favre and Nicholson, during discovery in the Federal
Court Case.38 Accordingly, Pohl’s claims against Kassab are barred by res judicata.
See id. at 231 (“A subsequent suit will be barred if it arises out of the same subject
matter of a previous suit and which throlugh the exercise of diligence, could have
been litigated in a prior suit.”); MadeMra Production Co. v. Atlantic Richfield Co., 107
S.W.3d 652, 665 (Tex. App.—Texarkana 2003, pet. denied) (plaintiff’s failure to “add
new parties” to prior federal coiurt proceeding involving similar subject matter could
not “be remedied by” a subsequent “action in state court.”); Holloway v. Starnes, 840
S.W.2d 14, 21 (Tex. oApp.—Dallas 1992, writ denied) (summary judgment on res
judicata affirmed lwhen “most of the factual allegations relied on” in the prior
litigation werei used to support a new lawsuit for conspiracy).
36 Petition, at ¶¶ 23-29.
37 Exhibit 4.
38 Exhibit 1, at ¶¶ 28-29.
16
C. Pohl’s claims against Kassab are barred by attorney
immunity.
“[A]n attorney is immune from liability to nonclients for conduct within the
scope of his representation of his clients.” Youngkin v. Hines, 546 S.W.3d 675, 681
(Tex. 2018). The inquiry “focuses on the kind of conduct at issue reather than the
alleged wrongfulness of said conduct.” Id. “That is, a lawyer is no more susceptible
to liability for a given action merely because it is allegetd to be fraudulent or
otherwise wrongful.” Id. “Merely labeling an attorney’s conduct ‘fraudulent’ does not
and should not remove it from the scope of client reperesentation or render it ‘foreign
to the duties of an attorney.’” Id. at 483. Even “curiminal conduct is not categorically
excepted from the protections of attorney civil immunity when the conduct alleged
is connected with representing a clienta in litigation.” Bethel v. Quilling, Selander,
Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020); Cantey Hanger,
LLP v. Byrd, 467 S.W.3d 477,e 483 (Tex. 2015) (“an attorney’s conduct may be
wrongful but still fall within fthe scope of client representation”).
The case Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No.
05-15-00055-CV, 2016 Tex. App. LEXIS 442 (Tex. App.—Dallas Jan. 14, 2016, pet.
denied) (mem. oip.) demonstrates why Pohl’s claims against Kassab are barred by
attorney imomunity. In Highland Capital, the plaintiff attempted to sue the lawyer
for the defendant alleging the lawyer obtained stolen property of the defendant and
threatened to disclose this confidential information to extort a settlement. Id. at *2.
The plaintiff, Highland, argued that the lawyer, Looper Reed, engaged in “malicious
conduct with respect to its illegal acquisition, retention, use, and threatened
17
disclosure of Highland’s proprietary and confidential information” including
“reviewing, copying, and analyzing information it knew to be stolen and proprietary
in furtherance of its scheme to extort, slander, and disparage Highland, threatening
Highland that it would disclose proprietary information and disparage kHighland if a
monetary sum was not paid, and refusing to return and cease Cuse of Highland’s
proprietary information after receiving written notice of the proprietary and
confidential nature of these documents and Highland's idemand that the stolen
materials be returned.” Id. at *10-*11. The court of appeals affirmed the trial court’s
dismissal of these claims on the pleadings39 based on attorney immunity because
the alleged conduct fell “squarely within the scope of Looper Reed’s representation”
in the lawsuit. Id. at *16. l
The entire basis for Pohl’s lawMsuit against Kassab is that Kassab allegedly
purchased the purportedly stolen information and “solicited [Pohl’s]
clients/prospective clients to iact as plaintiffs … to bring cases against Pohl for
alleged barratry and other claims.”40 The essence of Pohl’s claims against Kassab
are “that Kassab bougoht Pohl’s client list from [Precision] so that Kassab could send
advertisements to lPohl’s former clients and solicit them to become Kassab’s clients
in barratry suiits against Pohl.” Kassab, 612 S.W.3d at 578 (characterizing Pohl’s
claims against Kassab). These claims fall squarely within attorney immunity, and
Pohl’s characterization of this conduct as wrongful is immaterial. See Highland,
39 The dismissal was via Texas Rule of Civil Procedure 91a.
40 Petition, ¶ 29.
18
2016 Tex. App. LEXIS 442 at *16 (“That [a party] characterized the firm’s conduct
as fraudulent or otherwise wrongful was immaterial to [the court’s] evaluation of
the immunity defense.”).
The fact that Kassab is alleged to have committed the misconkduct prior to
any litigation is immaterial because “attorney immunity applies tCo claims based on
conduct outside the litigation context[.]” See Haynes & Boone, LLP v. NFTD, LLC,
No. 20-0066, 2021 Tex. LEXIS 423, at *32 (May 21, 20i21); Cantey Hanger, 467
S.W.3d at 485 (stating that “[t]he majority of Texas cases addressing attorney
immunity arise in the litigation context [,] [b]ut that is not universally the case” and
concluding that attorney was immune from conduct that occurred after litigation
had ended); Santiago v. Mackie Wolf Zielntz & Mann, P.C., No. 05-16-00394-CV,
2017 Tex. App. LEXIS 2092, at *10M (Tex. App.—Dallas Mar. 10, 2017, no pet.)
(mem. op.) (recognizing that Texas courts “have noted that attorney
immunity applies outside of thie litigation context” and citing opinions).
Here, the court of appeals recognized that “the alleged purchase of Pohl[’s]
client list for those cloients’ contact information, followed by the mailing of attorney
advertisements tol those individuals about specific types of claims they might be
able to pursuei against a specifically identified attorney, qualifies as statements
or conduct that arose out of a commercial transaction involving the type of
legal services Kassab provides.” Kassab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.
– Houston [1st Dist.] 2020, pet. denied) (emphasis added). That court opined that
“the intended audience of [Kassab’s alleged] statement or conduct were individuals
19
with potential legal claims who Kassab sought to represent in barratry suits against
Pohl. These were Kassab’s potential clients to whom he offered the kind of legal
services he provides.” Id. at 579.
The acquisition of clients and filing of lawsuits are actionsk “taken and
communications made to facilitate the rendition of legal services”C and are protected
by the attorney immunity doctrine. Youngkin, 546 S.W.3d at 682. Because Pohl’s
claims against Kassab are “based in part” on that conduct,i41 the attorney immunity
doctrine applies and Pohl’s claims are barred as a matter of law. See id.; Highland
Capital Mgmt., 2016 Tex. App. LEXIS 442, at *16; Sacks v. Hall, No. 01-13-00531-
CV, 2014 Tex. App. LEXIS 12570, at *30 (Tex. App.—Houston [1st Dist.] Nov. 20,
2014, no pet.) (mem. op.) (attorney not lilable to third party for filing confidential
medical records because the filing Mof the records did not constitute an action
“foreign to the duties of an attorney.”); Bradt v. West, 892 S.W.2d 56, 72 (Tex.
App.—Houston [1st Dist.] 199i2, writ denied) (“an attorney does not have a right of
recovery, under any cause of action, against another attorney arising from
conduct the second aottorney engaged in as part of the discharge of his duties in
representing a parlty.”) (emphasis added).
i V
o CONCLUSION & PRAYER
For the foregoing reasons, the Court should grant summary judgment and
order that Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC take
41 Petition, ¶ 29.
20
nothing in their claims against Lance Christopher Kassab and The Kassab Law
Firm.
Respectfully submitted,
THE KASSAB LAW FIRM k
__________________________
LANCE CHRISTOPHiER KASSAB
Texas State Bart No. 00794070
lance@kassabi.law
DAVID ERIC KASSAB
Texas State Bar No. 24071351
david@ekassab.law
NICHOLAS R. PIERCE
Texuas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
lHouston, Texas 77004
a Telephone: 713-522-7400
M Facsimile: 713-522-7410
 E-Service: eserve@kassab.law
e ATTORNEYS FOR KASSAB PARTIES
CERTIFICATE OF SERVICE
I certify that on this date, June 8, 2021, I electronically filed this document
with the Clerk of lthe Court using the eFile.TXCourts.gov electronic filing system
which will send inotification of such filing to all parties or counsel of record.
_______________________
DAVID ERIC KASSAB
21"
13,2018-11-19,MTD,Kassab,Supplemental TCPA Motion to Dismiss,Kassab's Supplement to TCPA Motion to Dismiss incorporating Favre co-defendants' statute of limitations arguments,"Filed November 19, 2018 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Supplemental briefing filed in support of Kassab's original TCPA Motion to Dismiss (filed October 24, 2018). Incorporates arguments from co-defendant Favre's separately filed TCPA motion. Addressed to the Honorable Judge Bill Burke.",TCPA-1,DENIED,Phase 1,2018-11-19_MTD_Kassab-Supp-TCPA_FILED.pdf,"Dismissal of Pohl's claims with prejudice; attorney's fees as previously requested in Kassab's original Motion to Dismiss; sanctions of a minimum of $50,000 against Pohl and his counsel Frizzell to deter future frivolous and retaliatory filings","11/19/2018 10:48 AM
Chris Daniel - District Clerk Harris County
Envelope No. 29125236
By: ARIONNE MCNEAL
Filed: 11/19/2018 10:48 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIAkL DISTRICT
DEFENDANTS, LANCE CHRISTOPHER KASSAB AND LANCE CHlRISTOPHER
KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S SUPPLEMENT TO MOTION TO
DISMISS PURSUANT TO THE TEXAS CITIZENS PARTICcIPATION ACT
TO THE HONORABLE JUDGE BILL BURKE: s
Defendants/Counter-Plaintiffs Lance Christopher Kassab and Lance Christopher Kassab,
P.C. d/b/a/ The Kassab Law Firm (Kassab) files this, their Supplement to Motion to Dismiss
Pursuant to the Texas Citizens Participation Act set forth in Chapter 27 of the Texas Civil
Practice and Remedies Code.
This is a retaliatory lawsuit filed by Plaintiff, Michael A. Pohl and his law firm, Law
Office of Michael A. Pohl, PLLC (“ePohl”) that is based on, related to, and in response to the
rights to free speech, petition andf association, and should therefore be dismissed pursuant to the
Texas Citizens Participationy Act (the “TCPA”). Additionally, Pohl’s claims must be dismissed
pursuant to Chapter 2C7 of the Texas Civil Practice and Remedies Code because, even if Pohl
could establish a parima facie case on each element of each of his causes of action, the TCPA
provides that thfe trial court must still dismiss his claims if, based upon a preponderance of the
evidence,U each essential element of a valid defense is established. TEX. CIV. PRAC. & REM. CODE,
§ 27.005(d).
Kassab files this supplement to Kassab’s Motion to Dismiss simply to incorporate the
arguments and Exhibits outlined in paragraphs 35 through 42 of Scott Favre, Scott M. Favre
Public Adjuster, LLC and Precision Marketing Group, LLC’s Motion to Dismiss. The
arguments and Exhibits clearly show that Pohl’s claims were filed far beyond the statute of
limitations. Thus, not only is there a preponderance of the evidence establishing each essential
element of a statute of limitations defense, there is a plethora of evidence ekstablishing the
defense.1 l
Pohl is a seasoned lawyer who proclaims to be an outstanding cla t wyer.2 Moreover, his
lawyer, Jean Frizzell (Frizzell) holds himself out to the world, amongs other things, as a “Top 100
Super Lawyer” with outstanding credentials.3 It is unfathomable to assume that Pohl and his
“Super Lawyer” Frizzell could be so incompetent as to not know Pohl’s claims were dead on
arrival when filed. Therefore, the only plausible explanation for filing Pohl’s frivolous claims
were for retaliation purposes against Kassab for representing more than 400 clients against Pohl
in four separate lawsuits, as stated in Kassab’as Motion to Dismiss.
Thus, in addition to dismissing Pohl’s claims with prejudice, this Court should sanction
Pohl and Frizzell in an amount sufeficient to deter them from bringing similar actions and/or
filing similar frivolous pleadingsf in the future. See TEX. CIV. PRAC. & REM. CODE § 27.009(a).
The Court should sanction Pyohl and Frizzell a minimum of fifty-thousand dollars ($50,000.00) in
addition to the attorneCy’s fees and costs requested in Kassab’s Motion to Dismiss so that Pohl
and Frizzell will fually understand that their actions have consequences and that the rule of law
has meaning. Tfo do otherwise, will simply reinforce lawyers like Pohl and Frizzell to continue
to harass,U create delay, increase the cost of litigation and create conflicts with impunity, and send
1 See Favre’s Motion to Dismiss, pp. 13-15 and Kassab’s Motion to Dismiss, pp. 26-28.
2 https://pohlatty.wordpress.com/
3 https://www.reynoldsfrizzell.com/attorneys/jean-frizzell/
a message to lawyers like Pohl and Frizzell that the rule of law does not matter, the practice of
law is simply a game and the truth is meaningless.
CONCLUSION & PRAYER
For the reasons stated herein, in addition to the reasons stated in Kasrsab’s Motion to
Dismiss, Defendants/Counter-Plaintiffs Lance Christopher Kassab and The Kassab Law Firm
respectfully request the Court to grant their Motion to Dismiss Pursurant to the Texas Citizens
Participation Act and order that Plaintiffs take nothing in their claDims against Lance Christopher
Kassab and The Kassab Law Firm. In addition, the Courts should award Lance Christopher
Kassab and The Kassab Law Firm attorney’s fees as reqruested and sanction Plaintiffs and their
counsel in an amount sufficient to deter them from bringing similar frivolous and retaliatory
lawsuits in the future. l
o Respectfully submitted,
THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
y LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
C lance@kassab.law
 DAVID ERIC KASSAB
a Texas State Bar No. 24071351
c david@kassab.law
f 1214 Elgin Street
Houston, Texas 77004
U Telephone: 713.522.7400
Facsimile: 713.522.7410
ATTORNEYS FOR LANCE CHRISTOPHER
KASSAB AND THE KASSAB LAW FIRM
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has
been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 19th day
of November, 2018.
/ s / Lance Christopher Kassakb
Lance Christopher Kassab r"
7,2018-10-24,MTD,Kassab,TCPA Motion to Dismiss,"Kassab's Motion to Dismiss Pursuant to the Texas Citizens Participation Act (Anti-SLAPP), filed October 24, 2018","Filed simultaneously with Kassab's First Amended Answer on October 24, 2018, before Judge Bill Burke, 189th Judicial District. This is an early dispositive motion seeking dismissal of all of Pohl's claims under the TCPA's anti-SLAPP framework. The motion was ultimately denied.",TCPA-1,DENIED,Phase 1,2018-10-24_MTD_Kassab-TCPA_FILED.pdf,"Dismiss all of Pohl's claims under the TCPA; award Kassab $36,750 in attorney's fees ($31,500 for Kassab at $450/hr for 70 hours, $5,250 for associate at $350/hr for 15 hours); conditional appellate fees totaling $90,000; and sanctions of at least $50,000 against Pohl and his counsel Reynolds Frizzell","10/24/2018 2:11 PM
Chris Daniel - District Clerk Harris County
Envelope No. 28523758
By: ARIONNE MCNEAL
Filed: 10/24/2018 2:11 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIAkL DISTRICT
DEFENDANTS LANCE CHRISTOPHER KASSAB AND LANCE CHlRISTOPHER
KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S MOTION TO DISMISS PURSUANT
TO THE TEXAS CITIZENS PARTICIPATION AcCT
TO THE HONORABLE JUDGE BILL BURKE: s
Defendants/Counter-Plaintiffs Lance Christopher Kassab and Lance Christopher Kassab,
P.C. d/b/a/ The Kassab Law Firm files this, their Motion to Dismiss Pursuant to the Texas
Citizens Participation Act set forth in Chapter 27 of the Texas Civil Practice and Remedies Code.
SUMMlARY
This is a retaliatory lawsuit filed bMy Plaintiff, Michael A. Pohl and his law firm, Law
Office of Michael A. Pohl, PLLC (“Poohl”) that is based on, related to, and in response to the
rights to free speech, petition and association, and should therefore be dismissed pursuant to the
Texas Citizens Participation Act (the “TCPA”). Defendants, Lance Christopher Kassab and
Lance Christopher Kassab, P.C. d/b/a/ The Kassab Law Firm (“Kassab”) represent more than
400 clients who were illegally and unethically personally solicited to hire Pohl for representation
of them in claimcs stemming from catastrophic auto accidents or the BP Deepwater Horizon
litigation. Kassab filed four separate lawsuits against Pohl on behalf of these clients alleging
claims for civil barratry. In addition, Kassab filed and initiated several grievance proceedings on
behalf of these clients, causing the State Bar of Texas to investigate the alleged barratry, which is
prohibited by the Texas Disciplinary Rules of Professional Conduct and the Texas Penal Code.
In response, Pohl filed this lawsuit against Kassab, alleging claims of conversion, theft of trade
secrets and civil conspiracy, claiming Kassab conspired with others to steal Pohl’s property and
solicit his former clients or prospective clients to sue him for barratry.1 Because this lawsuit is
related to Kassab’s right to free speech, right to associate with his own clients, and right to
petition, it must be dismissed pursuant to the TCPA and attorney’s fees must be awkarded.
II l
EVIDENCE
A motion to dismiss pursuant to the TCPA may be supported bry evidence. See TEX. CIV.
PRAC. & REM. CODE § 27.005(b). Attached hereto and incorporateDd by reference for all purposes
herein is the following evidence: s
Exhibit 1 – Declaration of Lance Christopher Kasrsab.
Exhibit 2 – Second Amended Petition filed in Walker v. Pohl.
Exhibit 3 – Affidavit of Scott Walker datled April 29, 2017.
Exhibit 4 – Scott Walker DepositioMn Excerpts (August 24, 2016).
Exhibit 5 – Scott Walker Deposoition Excerpts (September 2018).
Exhibit 6 – Affidavit of Magdalena Santana dated September 24, 2016.
Exhibit 7 – Edgar Jaimes Deposition Excerpts (June 26, 2018).
Exhibit 8 – Magdalena Santana Deposition Excerpts, Vol 1 (November 8, 2016).
Exhibit 9 – Magdalena Santana Deposition Excerpts, Vol 1I (November 8, 2016).
Exhibit 1c0 – Affidavit of Magdalena Santana dated December 19, 2017.
Exhibit 11 – Kenneth Talley Deposition Excerpts (November 16, 2016).
Exhibit 12 – Walker Memorandum Opinion (Doc. No. 475)
Exhibit 13 – Walker Pohl Memorandum (Doc. No. 175)
Exhibit 14 – Walker Order on Pohl Motion to Dismiss (Doc. No. 252)
1 Plaintiffs’ Original Petition, ¶¶ 19-28.
Exhibit 15 – Walker Judgment (Doc. No. 499).
Exhibit 16 – State Bar Approvals.
Exhibit 17 – Brumfield Third Amended Petition.
Exhibit 18 – Gandy Third Amended Petition. r
Exhibit 19 – Berry Fifth Amended Petition.
Exhibit 20 – Cheatham Fourth Amended Petition. r
Exhibit 21 – Grievance Pleadings Filed Against Pohl. D
Exhibit 22 – August 10, 2016 Affidavit of Scott Favres.
Exhibit 23 – May 15, 2018 Deposition of Michaerl A. Pohl.
Exhibit 24 – June 19, 2018 Affidavit of Michael Pohl.
Exhibit 25 – August 30, 2016 Depositionl of Michael Pohl.
Exhibit 26 – Pohl Amended ComplMaint in Mississippi Litigation.
Exhibit 27 – Gauthia Motion foor Sanctions.
Exhibit 28 – Gauthia Response to Motion for Sanctions.
Exhibit 29 – June 28, 2018 Order Denying Sanction.
Exhibit 30 – August 24, 2018 Order Denying Counter-Sanctions.
Exhibit 31 – Pohl’s Third Party Petition filed in Cheatham.
Exhibit 3c2 – June 23, 2018 Order Denying Motion to File Third Party Petition.
U III
FACTS AND PROCEDURAL HISTORY
Kassab is a licensed Texas attorney who has been practicing law for more than twenty
years.2 Kassab graduated from law school with honors and was editor-in-chief of law review.3
2 Exhibit 1 (Declaration of Lance Christopher Kassab), p.
Kassab was formerly a Briefing Attorney for the First Judicial District Court of Appeals in
Houston, Texas and is a former intern for the First Judicial District Court of Appeals and the
Texas Supreme Court.4 For the past twenty years, Kassab’s practice has focused primarily on
representing victims of legal malpractice and publicly exposing attorney miscondukct.5
A. Michael Pohl is sued by Mississippi runners who expose lthe illegal
and unethical barratry scheme.
On October 18, 2014, three Mississippi residents, Scott Walkerr (“Walker”), Kirk Ladner
(“Ladner”) and Steve Seymour (“Seymour”), and their relatedD entities, including Precision
Marketing Group, LLC (“Precision Marketing”), filed suit agasinst Pohl and others in Mississippi
federal court, styled Cause No. 14-cv-381-KS-JCG; Scortt Walker, et al. v. Michael A. Pohl, et
al.; In the United States District Court for the Southern District of Mississippi, Southern Division
(the “Mississippi Litigation”).6 There, Walker, lLadner and Seymour alleged they had a joint
venture with Pohl to sign up clients with ecMonomic loss claims stemming from the BP Deepwater
Horizon oil spill.7 They also alleged othat they had “conducted marketing efforts to obtain
personal injury clients” for Pohl8 c and that Pohl received attorney’s fees from the cases they
signed up, but that “Pohl did not pay any of the agreed share of his fees to Walker [and]
Ladner.”9
3 Exhibit 1, p. 1.
4 Exhibit 1, p. 1.
5 Exhibit 1, p. 1.
6 Exhibit 2 (Walker Second Amended Petition).
7 Exhibit 2.
8 Exhibit 2, ¶ 118.
9 Exhibit 2, ¶ 136.
During the course of the Mississippi Litigation, Walker testified that Pohl retained him
and Precision Marketing to “provide marking services to auto accident victims[.]”10 Walker
testified that although he and Pohl called it “marketing services” or “marketing money” it was
“clear to [him] it was barratry.”11 In fact, Walker considered himself and his cokmpany “a pass-
through for barratry money.”12 All total, Walker, Ladner and Precision Markelting received over
$5 million in “barratry pass-through money” from Pohl and other lawcyers to solicit potential
clients with claims, both auto-accident victims and those involved sin the BP litigation.13 They
would use this money to pay contract workers to solicit clients.14 They would locate and instruct
contract workers on how to accomplish the solicitation.15 They trained “40 or 50 people” on how
to “go out and solicit contracts.”16
Walker later testified that he and his team at Precision Marketing were first retained by
Pohl to “recruit clients” with losses resultinga f r rom the Deepwater Horizon oil spill.17 When the
work concerning that litigation dwindled down, Pohl and Walker shifted their focus to auto
accident cases, knowing that the grouep at Precision Marketing “could go out and get those types
of cases” for Pohl.18 To accomplfis f h this task, the folks at Precision Marketing would get Google
10 Exhibit 3 (April 29, 2016C Affidavit of Scott Walker), ¶ 3.
11 Exhibit 4 (August 24a, 2l016 Deposition of Scott Walker), p. 149.
12 Exhibit 4, p. 197:6-7.
13 Exhibit 4, p. 73:21-25; 74:1-25; 75-1-15.
14 Exhibit 4, p. 199.
15 Exhibit 4, p. 77-78.
16 Exhibit 4, p. 196-197.
17 Exhibit 5 (September 2018 Deposition of Scott Walker), p. 19.
18 Exhibit 5, p. 148.
alerts or leads from Pohl on auto accidents.19 Walker testified that he or Ladner would go to the
victims of the auto accident themselves or send someone working for them like Magdalena
Santana (“Santana”) to “do marketing” and “let them know that there was help available.”20
More specifically, that “there were attorneys that could – that could help.”21 Variokus case runners
were used aside from Magdalena, including her brother Florian Santana (“Jlay”) and Kenneth
Talley (“Talley”).22 In exchange, these runners – who ever visited thce t victims – where paid
between $2,500 and $5,000 to solicit the client.23 Walker testified sthat these runners were sent
out on behalf of Pohl.24 These payments flowed from Pohl through his wife’s sham company,
Helping Hands Financing, to Precision Marketing to each individual runner.25 Walker would
simply submit to Pohl the amount that Precision Marketing paid its runners and Pohl would pay
it.26
Santana supported these barratry allegaat r ions in her September 24, 2016 affidavit.27 There,
Santana testified that Pohl sent her on “dozens and dozens of car wreck cases all over the
country.”28 Pohl would email Santanea the link of news coverage depicting the accident and ask
19 Exhibit 5, p. 142-147.
20 Exhibit 5, p. 143. C
21 Exhibit 5, p. 143. a l
22 Exhibit 5, p. 149-150.
23 Exhibit 5, p. 151-152.
24 Exhibit 5, p. 152.
25 Exhibit 5, p. 153-160.
26 Exhibit 5, p. 161.
27 Exhibit 6 (Santana September 24, 2016 Affidavit).
28 Exhibit 6, ¶ 17.
her “to go to the victim or the victim’s family and try to get them to sign up with him.”29 Pohl
offered to give Santana “$5,000 per case that [she] signed, plus a percentage of his attorney’s
fees.”30 Santana was advised by Pohl to “be persistent even if the family ... rejected [her].”31
Santana was instructed by Pohl to “approach the victims and their families wkhile they were
vulnerable, in the emergency room, their hospital rooms or at the funerals.”32l Pohl told Santana
that minorities “were especially vulnerable since they tended not to knowc that the law prohibited
barratry.”33 According to Pohl, they “were easier to sign up.”34 s
Pohl would give Santana “money to give to the victims or their families” but “only if they
agreed to sign a Pohl representation contract.”35 Pohl advised Santana that the money was a “foot
in the door” but instructed Santana not to mention that she was there on behalf of a lawyer “until
after they agreed to take the money.”36 “If the client agreed to hire Pohl, then [Santana] was to
have the client sign a ‘Helping Hands’ contraac r t.”37 Pohl would then give Santana the money to
pay the client “from his own Helping Hands company.”38 When Santana questioned this, Pohl
29 Exhibit 6, ¶ 17.
30 Exhibit 6, ¶ 18. C
31 Exhibit 6, ¶ 19. a l
32 Exhibit 6, ¶ 19.
33 Exhibit 6, ¶ 19.
34 Exhibit 6, ¶ 19.
35 Exhibit 6, ¶ 17.
36 Exhibit 6, ¶ 24.
37 Exhibit 6, ¶ 24.
38 Exhibit 6, ¶ 24.
told Santana that it “was illegal for him to pay [her] directly for cases, and that’s why the money
had to go through some company.”39
Pohl had Santana retract this affidavit through a December 19, 2017 affidavit. This
purported retraction is likely the result of Pohl paying Santana to provide testimkony, which is
something he has done in the past.40 In fact, Pohl’s own paralegal, Edgar lJaimes (“Jaimes”),
testified that on one occasion Pohl sent him to Florida with a case fillecd with $50,000 cash to
give to Santana in exchange for her signing an statement for him.41 sJaimes testified that Santana
would only get the money if she signed the statement for Pohl.42 Jaimes testified that Santana
signed the signed the statement and got the money.43
Santana went into more detail about this in her deposition. Santana testified that the
statement was an agreement for her to keep quiet and not charge Pohl with any wrongdoing or
criminal or unethical conduct.44 Santana testaif r ied that Pohl paid her $50,000 cash to sign this
statement, which was delivered by Jaimes in three bags marked “trick or treat.”45 Very symbolic
given that Santana had been trickede by Pohl into soliciting clients for him and was now being
treated the money she claimed wafs due just to stay quite. Santana reiterated that if she didn’t sign
the gag agreement, she woulydn’t get the money from Pohl.46 Santana attempted to indicate on the
39 Exhibit 6, ¶ 23. a l
40 Exhibit 7 (June 26, 2018 Deposition of Edgar Jaimes), pp. 371-373.
41 Exhibit 7, pp. 371-373.
42 Exhibit 7, pp. 373-374.
43 Exhibit 7, pp. 373-374.
44 Exhibit 8 (Deposition of Santana, Vol. I), p. 153.
45 Exhibit 8, p. 122-127.
46 Exhibit 8, p. 131.
agreement that she was receiving $50,000 to keep quiet, but Jaimes told her Pohl demanded that
she state she only received nominal consideration, like $100.47 Santana did not write the
statement but “just signed it”48 because she felt she was “forced to sign” it49 while “under
duress.”50 k
Notably, nowhere in Santana’s December 19th affidavit does she statle the testimony in
her former affidavit is untrue, only that she does not “agree with” it andc that the affidavit is not
“reliable.”51 Although Santana states in her December 19th affidavits that her prior affidavit was
drafted by a lawyer, Santana testified in her deposition that the September 24th affidavit was
created voluntarily with her own “testimony.”52 Santana testified that, unlike with Pohl, she was
not paid and had never been promised any money to provide the testimony in the September 24th
affidavit.53 Santana reiterated to counsel for Pohl, Billy Shepherd, that she was there in her
deposition to tell the truth and would not be abullied by his questioning or his efforts to confuse
her.54 
Regardless, Santana confirmeed most of the facts set forth in her initial affidavit in her
deposition55 and this deposition tfe f stimony was not retracted.56 There, Santana confirmed that she
47 Exhibit 9 (Deposition of Santana, Vol. II), p. 346.
48 Exhibit 8, p. 153.
49 Exhibit 8, p. 155. i
50 Exhibit 9, p. 30f9 f .
51 Exhibit 10 (December 19, 2017 Santana Affidavit).
52 Exhibit 9, p. 270-271.
53 Exhibit 9, p. 276-278.
54 Exhibit 8, p. 176.
55 See generally Exhibit 8 and Exhibit 9.
56 See Exhibit 10.
was hired by Pohl to solicit auto accident cases, the first one being an accident where a woman
and her unborn child lost their lives.57 Santana was instructed by Walker, who was instructed by
Pohl, to personally visit the mother of the deceased and sign her up to sue the tire manufacturer
and, if she succeeded, Pohl would pay her $5,000.58 Santana visited the funeral kof the deceased
and got the family to feel comfortable with her.59 Although the mother was lgrieving, Pohl told
Santana: “take no prisoners, this is a cut throat business, you get in therec and you do whatever it
takes to get this client.”60 The solicitation was successful after Pohl gsave Santana $2,000 to “give
to the client to convince her into signing over with the firm.”61 
“Coach” Kenneth Talley (“Talley”) was another runner hired by Pohl and Walker who
solicited over 20 auto accident cases for Pohl,62 including two families who hired Kassab to sue
Pohl.63 Talley testified that he was first hired in relation to BP claims to find “folks that lost
money due to the oil spill” and “sign them au r p” and “get a fee for it.”64 Talley went to work
“knocking on doors” looking for potential claimants for Pohl and his partner in the BP
litigation.65 Talley solicited and signeed up for Pohl and his partner more than 800 BP claims.66
Talley was paid between $75 andf f $350 for each BP client he signed up.67
57 Exhibit 8, p. 37.
58 Exhibit 8, p. 37-38.
59 Exhibit 8, p. 37-38. i
60 Exhibit 8, p. 39f. f
61 Exhibit 8, p. 40.
62 Exhibit 11 (Deposition of Kenneth Talley), p. 87.
63 Specifically, Mae Berry and Arthur Speck.
64 Exhibit 11, p. 10.
65 Exhibit 11, p. 10-11.
66 Exhibit 11, p. 11.
10
Talley eventually switched to soliciting auto accident victims, “calling on folks that had
bad accidents.” 68 Talley recalls that the first client he solicited was in “the hospital in intensive
care.”69 Talley carried with him up to $1,000 to pay the accident victims to “help them with
problems” but only once they “were signed up.”70 Talley would advise the victikms that he had
attorneys who could help them, and that one of those attorneys was Pohl.71 Tallley was paid a fee
of $1,400 plus his expenses by Pohl, through Walker, for any auto accicd t ent case he solicited.72
On some cases, Talley was to receive a portion of the fee paid to Hselping Hands out of Pohl’s
attorney’s fees.73 Talley discussed with Pohl the “percentage of settlements” he was to receive
from the cases he solicited and Pohl told Talley that the money was being placed in an “escrow
account” for him.74 When asked whether Pohl knew he was getting paid to “contact vehicle
accident victims,” Talley responded, “the money was coming from Edgar [Jaimes] who worked
for him.”75 Although his paycheck was froma W r alker’s company, “the funding came by way of
Edgar [Jaimes].”76 
67 Exhibit 11, p. 19.
68 Exhibit 11, p. 37. C
69 Exhibit 11, p. 37. a l
70 Exhibit 11, p. 38.
71 Exhibit 11, p. 47.
72 Exhibit 11, p. 47-48.
73 Exhibit 11, p. 97-98; 102.
74 Exhibit 11, p. 99.
75 Exhibit 11, p. 100.
76 Exhibit 11, p. 100.
11
Talley testified that personally soliciting clients for Pohl became so frequent that he
began carrying with him blank Pohl contracts to each solicitation.77 Talley would refer the
potential clients to “attorneys out of Houston that were the best at handling these types of
accidents” and would offer to give the potential clients “money up front.”78 Talkley would have
no “reason not to mention Mr. Pohl’s name” during the solicitation.79 Tlalley would never
recommend any lawyers other than Pohl.80 Talley would not tell the clice t nts that he was getting
paid to solicit them.81 Talley would present a Pohl contract to the psotential client.82 If the client
did not agree to hire Pohl, the clients would not get the money.83 Talley testified that Jaimes –
Pohl’s paralegal – would send him the money.84
Talley further testified that both he and Pohl knew what they were doing was illegal. In
one instance, Talley was “run out of town” while soliciting clients for Pohl.85 Talley testified
during the attempted solicitation he was told aby a “lawyer or policeman” that “it was against the
law what [he] was doing.”86 Talley mentioned this to Pohl and Pohl told him “you’ve just got to
leave...some people you can’t help.”8e7
77 Exhibit 11, p. 49. 
78 Exhibit 11, p. 54.
79 Exhibit 11, p. 108.
80 Exhibit 11, p. 59. i
81 Exhibit 11, p. 5f8 f ; 109.
82 Exhibit 11, p. 89.
83 Exhibit 11, p. 58-59.
84 Exhibit 11, p. 86.
85 Exhibit 11, p. 84.
86 Exhibit 11, p. 84.
87 Exhibit 11, p. 85.
12
Pohl attempted to dismiss the Mississippi Litigation, arguing the agreements between he
and the runners were illegal and unenforceable.88 More specifically, Pohl argued that under both
Texas and Mississippi law “it is illegal for a non-lawyer to accept or agree to accept money to
improperly solicit clients for a lawyer.”89 The Mississippi federal court denied Pkohl’s motion to
dismiss and concluded that he was in a partnership with Walker and Lladner and further
concluded that the agreements to solicit clients would only be a cviolation of the Texas
disciplinary rules and Texas law, which did not apply to Walker ansd Ladner.90 Having failed to
obtain summary dismissal, Pohl settled the Mississippi Litigation, hoping to forever conceal the
barratry operation.91
B. The victims of Michael Pohl’s barratry hire Lance Kassab to bring
claims and file grievances against Michael Pohl.
Kassab was tipped off to the Mississippli Litigation by an associate of his F. Douglas
Montague of Hattiesburg, Mississippi.92 KMassab obtained a large amount of information related
to the Mississippi Litigation from the ofederal court’s online public access to Court records.93
Kassab also obtained information directly from Precision Marketing and its counsel, including
the names and addresses of Pohl’s former clients or prospective clients.94 Kassab used this
information to send advertisement letters to these individuals, informing them that they may have
88 Exhibit 12 (Walker Miemorandum Opinion (Doc. No. 475)); Exhibit 13 (Walker Pohl Memorandum (Doc. No.
175)).
89 Exhibit 13, at ¶ 18.
90 Exhibit 12; Exhibit 14 (Walker Order on Pohl Motion to Dismiss (Doc. No. 252)).
91 Exhibit 15 (Walker Judgment (Doc. No. 499)).
92 Exhibit 1, pp. 1-2.
93 Exhibit 1, p. 2.
94 Exhibit 1, p. 2.
13
been a victim of barratry, that barratry is illegal and unethical in Texas, and that, if in fact
victims of barratry, they would be entitled to file civil claims against Pohl.95 Kassab sent the
advertisement letters to the Texas State Bar and the bars of other states in which the
advertisements were distributed for approval.96 Hundreds of individuals responkded, indicating
that they had been in fact personally solicited to hire Pohl in their auto accidelnt or BP claims.97
Kassab then entered into contracts with more than four hundred individucals to represent them in
their claims against Pohl for civil barratry.98 s
Kassab associated with and consulted his clients and eventually filed four separate
lawsuits on behalf of these barratry victims in Harris County, Texas (the “Barratry Lawsuits”).99
The Barratry Lawsuits communicated matters of public concern, namely that Pohl and others
conspired to commit and did in fact commit barratry, which can carry a third-degree felony
charge in Texas.100 See TEX. PEN. CODE § 3a8 r .12(h). Additionally, due to the egregiousness of
Pohl’s violation of the Texas Penal Code and violations of the Texas Disciplinary Rules of
Professional Conduct, Kassab was reequired to notify the Texas State Bar pursuant to disciplinary
rule 8.03.101 Thus, Kassab filed f f grievances against Pohl pursuant to this rule, and also at the
request of some of Pohl’s foyrmer clients.102 In the grievances, Kassab, individually and on behalf
95 Exhibit 1, p. 2. a l
96 Exhibit 1, p. 2; Exhibit 16 (Sample Letters and State Bar Approvals).
97 Exhibit 1, p. 2.
98 Exhibit 1, p. 2.
99 Exhibit 17 (Brumfield Third Amended Petition), Exhibit 18 (Gandy Second Amended Petition), Exhibit 19 (Berry
Fifth Amended Petition), Exhibit 20 (Cheatham Fourth Amended Petition) (without exhibits).
100 Exhibit 1, p. 1.
101 Exhibit 1, p. 1.
102 Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct provides: “. . . a lawyer having knowledge
that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial
14
of his clients, petitioned the State Bar of Texas to reprimand and discipline Pohl in order to
protect the public.103
In direct retaliation to the Barratry Lawsuits and the grievance proceedings, Pohl filed
this litigation alleging that Kassab and others stole his property and are using it tok bring lawsuits
and grievances against him.104 Specifically, Pohl alleges in his petition aglainst Kassab that,
“Kassab is a lawyer who specializes in suing other lawyers”105 ca t nd “Kassab solicited
clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bsring cases against Pohl for
alleged barratry and other claims.”106 Thus, Pohl has judicially admitted that he has brought his
suit against Kassab solely because Kassab legally and ethically contacted Pohl’s former clients
or prospective clients107 and filed suit against Pohl on behalf of these individuals.
e IV
ARGUMENT & AUTHORITIES
The purpose of the Anti-SLAPP108 statute “is to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and otherwise
participate in government to the maximum extent permitted by law and, at the same time, protect
question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the
appropriate discipflinary authority.”
103 Exhibit 1, p. 2; Exhibit 21 (grievance pleadings filed against Pohl).
104 Plaintiffs’ Original Petition.
105 Plaintiffs’ Original Petition, p. 6.
106 Plaintiffs’ Original Petition, at p. 6-7
107 Exhibit 16.
108 This is an acronym for Strategic Lawsuits Against Public Participation.
15
the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. &
REM. CODE § 27.002. To effectuate the purpose of the TCPA, the Legislature included an
expedited manner of dismissing claims brought to intimidate or to silence a defendant’s exercise
of an enumerated First Amendment right. See id. at § 27.003; see also ExxonMobkil Pipeline Co.
v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017). l
The first step of a TCPA analysis is to determine whether the defecndant has demonstrated
by a preponderance of the evidence that the TCPA applies to the plasintiff's claims. See Adams v.
Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018). The Texas supreme court has
made clear that trial courts should be mindful that the statute “casts a wide net,” and that
“[a]lmost any imaginable form of communication, in any medium, is covered.” Id. (citing §
27.001(1)). In order for the TCPA to be applicable, a defendant moving to dismiss must show by
a preponderance of the evidence that the palaintiff’s claims are based on, relate to, or are in
response to the defendant’s exercise of: (1) the right of free speech, (2) the right to petition, or
(3) the right of association. TEX. CIVe. PRAC. & REM. CODE § 27.005(b). In considering whether
the TCPA is applicable, the trial fcourt is statutorily required to consider all pleadings, as well as
supporting and opposing affyidavits stating the facts on which a claim of liability is based. Id. at §
27.006; see also BedCford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017). If the record
demonstrates that thae plaintiff's claim implicates one of these rights, then the statute is applicable
as to that claim,f and the trial court must proceed to the second step.
AUt the second step of a TCPA analysis, the burden shifts to the plaintiff to establish by
“clear and specific evidence” a prima facie case for each essential element of the claim in
question. TEX. CIV. PRAC. & REM. CODE § 27.005(c). Dismissal of the claim is mandatory if the
plaintiff fails to satisfy this burden. Id. § 27.005(b). Even if the plaintiff succeeds by establishing
16
a prima facie case, the trial court must still dismiss the claim if the defendant further establishes
by a preponderance of the evidence each essential element of a valid defense. Id. § 27.005(d).
And, if the court dismisses a legal action pursuant to the TCPA, the Court must award the
moving party “court costs, reasonable attorney’s fees, and other expenses incurrekd in defending
against the legal action” as well as sanctions “sufficient to deter the party whlo brought the legal
action from bringing similar actions[.]” Id. at § 27.009(a). c
A. Step one – This lawsuit is based on, relates to and sis in response to the
exercise of protected activities. D
The TCPA applies if Pohl’s suit is “based on, relatess to, or is in response to” Kassab’s
exercise of the right of free speech. Id. at § 27.001(3). Thre exercise of the right of free speech is
defined as a “communication made in connection with a matter of public concern.” Id. at §
27.001(3). A “communication” is defined as lthe “making or submitting of a statement or
document in any form or medium includinMg oral, visual, written, audiovisual, or electronic.” Id.
at § 27.001(1); Deaver v. Desai, 483 So.W.3d 668, 672 (Tex. App.—Houston [14th Dist.] 2015,
no pet.). The definition encompasses both public and private communications. See Lippincott v.
Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). A “matter of public concern” includes an issue
related to “health or safety, environmental, economic, or community well-being, the government,
a public official or public figure, or a good, product, or service in the marketplace.” Id. §
27.001(7)(A). Thce provision of legal services by a legal service professional constitute
matters of public concern. See Deaver, 483 S.W.3d at 673 (holding statements relating to legal
services offered by attorney in the marketplace addressed matters of public concern); see also
Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied) (statement relating to
legal services was “a matter of public concern” because attorney’s services constituted a “service
in the marketplace.”). The lawsuits and grievances that Kassab filed against Pohl on behalf of
17
these former clients discussed or related to the legal services provided by Pohl – namely the
alleged illegal and unethical barratry committed by Pohl.109
The TCPA also applies if Pohl’s suit is “based on, relates to, or is in response to”
Kassab’s right to petition. Id. at § 27.001(4). Communications made in or abkout a judicial,
legislative, executive or other governmental proceeding are protected by the rlight to petition. Id.
There is no requirement that the subject matter of the proceeding must cconcern the government
or a public interest for the protection to apply. See Watson v. Harsdman, 497 SW3d 601, 606
(Tex. App. – Dallas 2016, no pet.). Moreover, “the remedies provided by the TCPA extend to
attorneys who are acting as agents for their clients when they communicate information about
others during the course of judicial proceedings.” Johnson-Todd v. Morgan, 480 S.W.3d 605,
611 (Tex. App.—Beaumont 2015, pet. denied). Accordingly, the filing of the Barratry Lawsuits
by Kassab on behalf of his clients constitute athe “exercise of the right to petition” as defined by
the TCPA. See Beving v. Beadles, No. 02-17-00223-CV, 2018 Tex. App. LEXIS 8540, at *12
(Tex. App. – Fort Worth, Oct. 18, 20e18, no pet.) (concluding deposition and affidavit testimony
provided in the underlying lawsufit constituted a communication made in a judicial proceeding
and was an exercise of the riyght to petition).
Finally, the TCCPA also applies if Pohl’s suit is “based on, relates to, or is in response to”
Kassab’s right of asasociation. Id. at § 27.001(2). A right to association protects communications
“between indivfiduals who join together to collectively express, promote, pursue, or defend
common Uinterests.” Id. The right to associate protects communications which do not relate to a
public purpose and even those communications which are alleged to be wrongful, such as the
sharing of purportedly confidential information for an improper purpose. See Elite Auto Body
109 Exhibit 1, p. 2; Exhibit 17, 18, 19, and 20 (petitions filed in the Barratry Litigation); Exhibit 21 (grievance
pleadings filed against Pohl).
18
LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 206 (Tex. App.—Austin 2017, pet. dism'd)
(holding the right of association protection applied to claims that a company’s employees
improperly shared confidential information with their new employer for purposes of the new
employer obtaining an unfair advantage in the marketplace). k
This lawsuit is based on, related to or in response to these protected lactivities. Pohl has
filed this retaliatory lawsuit against Kassab for conversion and theft of ctrade secrets, seeking in
excess of $1,000,000.00 in purported actual damages.110 Pohl allegses that Kassab obtained the
names and addresses of Pohl’s former clients/prospective clients, solicited them and brought
“cases against Pohl for alleged barratry and other claims.”111 In other words, Pohl’s lawsuit
against Kassab would not have arisen but for the fact that Kassab exercised his right to free
speech and right to petition on behalf of his injured clients and filed suits and grievances against
Pohl for civil barratry. Because Pohl’s convearsion-related claims arise out of Kassab’s right to
petition and associate, this lawsuit must be dismissed. See James v. Calkins, 446 S.W.3d 135,
147-48 (Tex. App.—Houston [1st Diest.] 2014, pet. denied) (claims for fraud against attorney and
client arising out of prior litigatifon were protected as the exercise of the right to freely speak,
freely associate, and to petitiyon).
The recent caseC Collins v. Collins, No. 01-17-00817-CV, 2018 Tex. App. LEXIS 1932,
2018 WL 1320841a (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. filed) (mem. op.) is
instructive. In fCollins, the ex-wife of the deceased, Corinna, sued the deceased’s surviving
spouse anUd administrator of the estate, Kelly, for fraud and conversion based on part on the
deceased’s alleged misrepresentation or nondisclosure of assets during their divorce. Id. at *1.
Kelly filed a motion to dismiss under the TCPA “based on exercise of the right to petition,
110 Plaintiffs’ Original Petition, p. 3.
111 Plaintiffs’ Original Petition, p. 6-7
19
because Corinna’s claims were based on communications made during a judicial proceeding.” Id.
The probate court denied the motion to dismiss and Kelly appealed. Id. at *1-2. The First Court
of Appeals reversed, concluding that the deceased “was exercising his right to petition when he
served the affidavit and inventory in the divorce” and because Corinna’s claimsk for conversion
and fraud were based on matters relating to this divorce, they were subject to dlismissal under the
TCPA. Id. at *12-13. c
The recent case Reeves v. Harbor Am. Cent., Inc., 552 S.W.3sd 389 (Tex. App. – Houston
[14th Dist.] 2018, no pet.) is also instructive. In that case, an employer sued a former employee
for breach of contract, conversion and theft of trade secrets alleging the employee stole
confidential information and solicited customers away from the employee in violation of their
agreement. Id. at 392. The employee, Reeves, filed a motion to dismiss pursuant to the TCPA
alleging the claims were “based on, relate toa, or are in response to [his] right to associate with
others” to “promote and pursue their common interest in developing a competing business.” Id.
The trial court denied the motion, staeting the TCPA “as a matter of law does not allow a party to
avoid contractual obligations sufch as the ones at issue here.” Id. Reeves appealed, and the
Fourteenth Court of Appeayls reversed, stating “[w]hether the TCPA allows a party to avoid
contractual obligationsC is not the proper inquiry.” Id. at 395. Rather, “when a TCPA motion has
been filed, the TCPaA requires trial courts to determine whether a legal action is ‘based on, relates
to, or is in respofnse to a party's exercise of’ the right of free speech, right to petition, or right of
associatioUn and must be dismissed.” Id.
Like the claims at issue in Collins and Reeves, the purported conversion and theft of trade
secrete claims brought by Pohl arise out of and relate to Kassab’s right to petition and associate
with his clients to promote and carry out their common interest in developing and pursing the
20
claims and grievances against Pohl. The allegations in the petitions and the grievances relate to
matters of public concern. This is a retaliatory lawsuit designed to chill the rights of Kassab and
his clients and silence them from speaking out against Pohl and other lawyers in legal
malpractice cases. This is the very type of retaliatory lawsuit the TCPA was inteknded to protect
against. See Reeves, 552 S.W.3d at 393 (“The TCPA protects citizens from rletaliatory lawsuits
that seek to silence or intimidate them on matters of public concern.”). Acccordingly, this lawsuit
must be dismissed. See Collins, 2018 Tex. App. LEXIS 1932, ats *15 (trial court abused its
discretion by denying TCPA motion relating to conversion claims arising out of divorce
proceeding).
B. Step two – Pohl cannot establish by clear and specific evidence a
prima facia case against Kassab.
Because the claims alleged by Pohl falll within the purview of the TCPA, this lawsuit
must be dismissed unless Pohl “establishesM by clear and specific evidence a prima facie case for
each essential element of the claim in quoestion.” TEX. CIV. PRAC. & REM. CODE § 27.005(c). This
Pohl cannot do. But, even if he can, the Court must still dismiss Pohl’s claims because Kassab
has established the defenses of limitations, attorney immunity and res judicata as a matter of law.
Id. § 27.005(d).
1. Pohl cannot establish his claims for civil conspiracy,
aconversion or theft of trade secrets as a matter of law.
Pohl adfmits that he engaged Precision Marketing, although he claims that it was to
provide “Upublic relations services” to “screen and liaise with Pohl’s clients/prospective clients”
rather than to straight up personally solicit the clients to hire Pohl.112 Pohl claims that Precision
Marketing “gained access to Pohl’s confidential and proprietary information and property,
112 Plaintiffs’ Original Petition, ¶ 20.
21
including trade secret materials, that included the identities of Pohl’s clients/prospective clients,
as well as their detailed contact information.”113 Pohl claims that Favre then sold this information
to Kassab who used this information – the names and addresses of the clients/prospective clients
– “to contact and solicit Pohl’s clients/prospective clients” to “act as plaintiffs andk … bring cases
against Pohl for alleged barratry and other claims.”114 Pohl claims that this conlduct is a breach of
the settlement agreement he entered with Favre and Precision Markecting in the Mississippi
Litigation and constitutes conversion and violation of the Texas sUniform Trade Secrets Act
(“TUTSA”).115 As a matter of law, these claims fail. 
First, Kassab obtained the names and addresses of the victims of Pohl’s barratry from
Precision Marketing (and/or its counsel), who was the owner of this property, not Pohl.116 Favre,
the owner of Precision Marketing, testified that Precision Marketing “solicited many of the
marketing contacts (individuals and businesase r s) on these lists for representation” by Pohl.117
Favre testified that the “marketing lists contain the names of thousands of persons who
eventually became [Pohl’s] former celients, and/or whom [Pohl] solicited for representation.”118
Favre made clear that the very infformation that Pohl claims are the trade secretes converted by
Kassab “were and are solelyy the work product and property of Precision [Marketing], developed
during the normal couCrse of its marketing business.”119 In other words, Pohl does not own the
113 Plaintiffs’ Original Petition, ¶ 20.
114 Plaintiffs’ Original Petition, ¶ 22.
115 Plaintiffs’ Original Petition, ¶¶ 23-27.
116 Exhibit 1, p. 2.
117 Exhibit 22 (August 10, 2016 Affidavit of Scott Favre), ¶ 15.
118 Exhibit 22, ¶ 15.
119 Exhibit 22, ¶ 12.
22
information or trade secrets he claims was converted by Kassab and thus, these claims fail as a
matter of law. See FCLT Loans, L.P. v. Estate of Bracher, 93 S.W.3d 469, 482 (Tex. App.—
Houston [14th Dist.] 2002, no pet.) (“To bring a conversion claim, the aggrieved party must have
either ownership, possession, or the right to immediate possession of the propertky.”); TEX. CIV.
PRAC. & REM. CODE § 134A.002(3-a) (defining owner as “the person or e
nltity in whom or in
which rightful, legal, or equitable title to, or the right to enforce rightcs in, the trade secret is
reposed.”). s
Pohl’s claims for theft of trade secrets fails for different reasons, namely that the client
lists and information were not trade secrets and were not wrongfully misappropriated. Under the
TUTSA, information is not a trade secret if it is gene
rally known to the public. TEX. CIV. PRAC.
& REM. CODE § 134A.002(6)(A). The names and addresses of the barratry victims who were
solicited to hire Pohl are not confidential anda are certainly known to the public. Moreover, the
TUTSA requires Pohl to show that, at the time Kassab allegedly disclosed the trade secrets,
Kassab “knew or had reason to knowe” that the trade secret was acquired by improper means. Id.
§ 134A.002(3). Here, the evidenfce establishes, as a matter of law, that Precision Marketing and
not Pohl owned the purporteyd trade secrets.120 At minimum, the evidence establishes that Kassab
believed, based on FCavre’s testimony and his discussions with Favre or his counsel, that
Precision Marketinga was the owner of the client lists, and therefore Kassab did not know or have
reason to knowf that they had been acquired from Pohl by improper means.121 Therefore, this
claim failUs as a matter of law.
Because the conversion and statutory theft of trade secret claims fail, Pohl’s claim for
civil conspiracy also fails. See Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 635
120 Exhibit 22.
121 Exhibit 1, p. 2.
23
(Tex. 1997) (to prevail on a civil conspiracy claim, the plaintiff must show that the defendant
was liable for some underlying tort). Accordingly, Pohl cannot establish all elements of his
claims against Kassab by clear and convincing evidence, and this lawsuit must be dismissed as to
Kassab. See Collins, 2018 Tex. App. LEXIS 1932, at *15. k
2. Pohl’s claims are barred as a matter of law by thle attorney
immunity doctrine.
Even if Pohl can establish a prima facie case on each element orf each cause of action by
clear and convincing evidence, his claims must still be dismissedD because they are barred by the
attorney immunity doctrine. The Texas supreme court hass recognized that “attorneys are
authorized to practice their profession, to advise theirr clients and interpose any defense or
supposed defense, without making themselves liable for damages.” See Cantey Hanger, LLP v.
Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (internall quotations omitted). “This attorney-immunity
defense is intended to ensure loyal, faithfulM, and aggressive representation by attorneys employed
as advocates.” Id. (internal quotations oomitted). Thus, “attorneys are immune from civil liability
to non-clients for actions taken in connection with representing a client in litigation.” Id. (internal
quotations omitted). “Merely labeling an attorney’s conduct ‘fraudulent’ does not and should not
remove it from the scope of client representation or render it ‘foreign to the duties of an
attorney.’” Id. at 483. Rather, in determining immunity, the inquiry “focuses on the kind of
conduct at issue crather than the alleged wrongfulness of said conduct.” Youngkin v. Hines, 546
S.W.3d 675, at *11 (Tex. 2018) (emphasis in original). An attorney is not liable to third
parties when the complained of actions relate to the filing of lawsuits. See Cantey Hanger,
467 S.W.3d at 483 (“an attorney's conduct may be wrongful but still fall within the scope of
client representation”); see also Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 408
(Tex. App.—Houston [1st Dist.] 2005, pet. denied) (holding that a claim against an attorney for
24
conspiracy to defraud was not actionable where “the complained-of actions involve the filing of
lawsuits” were “made to facilitate the rendition of legal services to [the client]”).
The recent case Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-
15-00055-CV, 2016 Tex. App. LEXIS 442, 2016 WL 164528 (Tex. App.—Dallaks Jan. 14, 2016,
pet. denied) (mem. op.) is instructive. In Highland Capital, the plaintiff attlempted to sue the
lawyer for the defendant alleging the lawyer obtained stolen propertcy of the defendant and
threatened to disclose this confidential information to extort a sesttlement. Highland Capital,
2016 Tex. App. LEXIS 442, 2016 WL 164528, at *2. The plaintiff, Highland, argued that the
lawyer, Looper Reed, engaged in “malicious conduct with respect to its illegal acquisition,
retention, use, and threatened disclosure of Highland’s proprietary and confidential information”
including “reviewing, copying, and analyzing information it knew to be stolen and proprietary in
furtherance of its scheme to extort, slander, aand disparage Highland, threatening Highland that it
would disclose proprietary information and disparage Highland if a monetary sum was not paid,
and refusing to return and cease use oef Highland’s proprietary information after receiving written
notice of the proprietary and conffidential nature of these documents and Highland's demand that
the stolen materials be returyned.” Id. at *10-*11. The court of appeals affirmed the trial court’s
dismissal of these claiCms on the pleadings122 based on attorney immunity because the alleged
conduct fell “squaraely within the scope of Looper Reed’s representation” in the lawsuit. Id. at
*16. f
TUhe entire basis for Pohl’s lawsuit against Kassab is that he allegedly purchased the
purportedly stolen information and “solicited [Pohl’s] clients/prospective clients to act as
122 The dismissal was via Texas Rule of Civil Procedure 91a.
25
plaintiffs … to bring cases against Pohl for alleged barratry and other claims.”123 Pohl’s
characterization of this conduct as wrongful is immaterial. See id. (“That [a party] characterized
the firm’s conduct as fraudulent or otherwise wrongful was immaterial to [the court’s] evaluation
of the immunity defense.”). Mischaracterizations aside, the essence of Pohl’s kclaims against
Kassab are that he used information he obtained from Favre, the owner of Prlecision Marketing,
to determine which clients had been illegally solicited by Precision Macrketing to hire Pohl and
then proceeded to bring such barratry claims against Pohl on behaslf of these clients.124 These
claims fall squarely within attorney immunity. See Highland Capital, 2016 Tex. App. LEXIS
442, at *16. This is true regardless of whether the conduct occurred prior to the actual litigation
of these claims. See Cantey Hanger, 467 S.W.3d at 485 (attorney was immune from conduct that
occurred after litigation had ended because it was related to the representation).
3. Pohl’s claimse are barred as a matter of law by the statute of
limitations.
The statute of limitations for conversion is two years from the date the property is
allegedly taken. TEX. CIV. PRAC. & REM. CODE § 16.003(a); Burns v. Rochon, 190 S.W.3d 263,
271 (Tex. App. – Houston [1st Dist.] 2006, no pet.). The statute of limitations for civil conspiracy
is also two yearsc. Mayes v. Stewart, 316 S.W.3d 715, 719 (Tex. App.—Houston [14th Dist.]
2010, no pet.). The statute of limitations for misappropriation of trade secrets is three years from
the date the misappropriation was discovered. TEX. CIV. PRAC. & REM. CODE § 16.010(a).
123 Plaintiffs’ Original Petition, ¶ 22.
124 See Plaintiffs’ Original Petition, ¶¶ 21-27.
26
Pohl testified in his deposition that the basis of his alleged claims against Kassab
occurred in 2014 when Pohl alleges that Kassab and his “crew” allegedly broke into Pohl’s
office in Gulf Port, Mississippi, hacked his computers, stole his clients’ names and then solicited
his clients.125 Pohl testified that although he knew the conduct occurred in 2014, hke did not file a
civil or criminal case against Kassab or his “crew” because he “wanted to splend time to reflect
on it before taking action [and] didn’t want to do anything that was cpr t ecipitous.”126 In other
words, Pohl sat idly by while the statute of limitations clock ticked sand did nothing to preserve
his purported claims. 
Further, Pohl signed an affidavit admitting he learned of the basis of his purported claims
during discovery in the Mississippi Litigation, which began in October of 2014.127 Specifically,
Pohl testified that he learned through discovery that Walker and Ladner allegedly
“misappropriated the services [he] had contraacted and paid for as well as [his] client contracts
and existing and/or expected contractual relationships (including actual executed client contracts
as well as my contract forms and reelated work product)” and “hundreds of claimants” were
allegedly “surreptitiously referrefd f ” by Precision Marketing.128 Pohl alleged in this affidavit that
he discovered in the Mississyippi Litigation that the owners of Precision Marketing “undertook to
convert, misappropriatCe for themselves and/or market to third parties claimant files and other
information and maaterials” from his office in Gulfport, Mississippi.129 Importantly, Pohl testified
at a August 30,f 2016 deposition in the Mississippi Litigation that he found out from a Precision
MarketinUg secretary in 2014 that his clients were being diverted to other lawyers and/or non-
125 Exhibit 23 (May 15, 2018 Deposition of Michael Pohl), pp. 85-93.
126 Exhibit 23, p. 93.
127 Exhibit 24 (June 19, 2018 Affidavit of Michael Pohl).
128 Exhibit 24, ¶ 27.
129 Exhibit 24, ¶ 28.
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lawyers.130 Pohl also testified that he closed his Gulfport office in February of 2014.131
Accordingly, Pohl would have known of his potential claims against Kassab at that time (2014)
that his purportedly confidential information had been stolen when he moved out of his Gulfport
office and the computers and boxes containing this information were missing. k
“The statute of limitations begins to run when a party has actuall knowledge of a
wrongful injury.” Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3dc 194, 207 (Tex. 2011).
“Once a claimant learns of a wrongful injury, the statute of limitatiosns begins to run even if the
claimant does not yet know the specific cause of the injury; the party responsible for it; the full
extent of it; or the chances of avoiding it.” Id. (internal quotations omitted) (emphasis added).
Pohl knew or should have known of his potential claims against Kassab (and the other
defendants in this lawsuit) in 2014 when he moved from his office in Gulfport, Mississippi and
learned from a secretary of Precision Markeating that his clients were being diverted to other
lawyers and/or non-lawyers. Pohl filed this lawsuit against Kassab on August 28, 2018.132
Accordingly, Pohl’s claims, filed moere than three years later, are barred by limitations. See TEX.
CIV. PRAC. & REM. CODE § 16.00f3; Id. at § 16.010.
4. Pohl’ys claims are barred as a matter of law by res judicata.
“Res judicata, oCr claims preclusion, prevents the relitigation of a claim or cause of action
that has been finallya adjudicated, as well as related matters that, with the use of diligence, should
have been litigafted in the prior suit.” Barr v. Resolution Tr. Corp., 837 S.W.2d 627, 628 (Tex.
1992). PUohl sued Precision Marketing and other “potential” defendants in the Mississippi
130 Exhibit 25 (August 30, 2016 Deposition of Michael Pohl), p. 21.
131 Exhibit 24, ¶ 31.
132 Plaintiffs’ Original Petition.
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Litigation for conversion, fraud and unjust enrichment alleging, among other things, that
Precision Marketing misappropriated, converted or stole property from Pohl by means of
misrepresentation, deception, or failure to disclose.133 Pohl voluntarily settled and the parties
dismissed the claims against each other with prejudice on April 21, 2017.134k Pohl’s claims
against Kassab are the same that he filed in the Mississippi Litigation and alrise from the same
alleged transactions and are against the same alleged co-conspirators.135 cT t herefore, Pohl’s claims
are barred by res judicata. See Lemon v. Spann, 633 S.W.2d 568, 570s-71 (Tex. App. – Texarkana
1982, writ ref'd n.r.e.) (“The judgment in the first suit precludes a second action by parties and
their privies not only on matters actually litigated but also on causes of action or defenses which
arise out of the same subject matter and which might have been litigated in the first suit.”).
C. The Court must award attorneys fees and sanctions.
After the Court dismisses Poehl’s claims against Kassab, the Court “must” award Kassab
“court costs, reasonable attorneyf’s fees, and other expenses incurred in defending against the
legal action” and issue “sanyctions against the party who brought the legal action as the court
determines sufficient Cto deter the party who brought the legal action from bringing similar
actions described ina this chapter.” Id. § 27.009(a). Kassab has spent approximately sixty (60)
hours reviewingf Pohl’s petition, drafting an answer, reviewing the TCPA, and researching and
drafting tUhis motion to dismiss. Kassab will undoubtedly expend another ten (10) hours reading
133 Exhibit 26 (Pohl Amended Complaint in Mississippi Litigation), ¶ 6.
134 Exhibit 15.
135 See Plaintiffs’ Original Petition.
29
Pohl’s responses, drafting and filing a reply, and preparing for and attending a hearing regarding
this motion. Therefore, Kassab will have incurred (or will likely incur) approximately seventy
(70) hours defending against Pohl’s legal action, or $31,500 in legal fees.136 In addition,
Kassab’s associate has spent approximately fifteen (15) hours reviewing Pkohl’s petition,
researching and editing this motion to dismiss, researching relevant case lawl and authority and
providing edits, equating to $5,250 in legal fees.137 c t
Moreover, Kassab is entitled to conditional appellate fees. s“If trial attorney’s fees are
mandatory under [the statute], then appellate attorney’s fees are also mandatory when proof of
reasonable fees is presented.” Ventling v. Johnson, 466 S.W.3d 143, 154 (Tex. 2015). Because
the TCPA mandates an award of reasonable attorney’s fees, the trial court does not have
discretion to disallow an award when proof of reasonable appellate attorney’s fees is presented.
See Urquhart v. Calkins, No. 01-17-00256-CaV, 2018 Tex. App. LEXIS 5145, at *11-12 (Tex.
App.—Houston [1st Dist.] July 10, 2018, no pet. h.) (mem. op.). Kassab testifies that a
reasonable attorney’s fee for a futuree appeal to the court of appeals is $45,000; a reasonable fee
for responding to and/or briefingf regarding a motion for rehearing at the intermediate court of
appeals, if such is necessaryy, is $5,000; a reasonable fee for filing a petition or response in the
Texas Supreme CourtC is $10,000; if the Texas Supreme Court requests briefing, a reasonable
attorney’s fee is $2a5,000; and a reasonable attorney’s fee for responding to and/or briefing a
motion for rehefaring at the Texas Supreme Court, if such is necessary, is $5,000.00.138 These
conditionUal appellate fees should be awarded. See id.
136 Exhibit 1, p. 3.
137 Exhibit 1, p. 3.
138 Exhibit 1, p. 3.
30
Finally, this Court should sanction Pohl and his counsel for the egregiousness of his
conduct, including the filing of this retaliatory lawsuit. Pohl believes he is above the rules of law
and that the rules of professional conduct do not apply to him. This is demonstrated by the fact
that he intentionally and shamelessly paid runners millions of dollars to illegallky run cases for
him and has paid off and bribed potential witnesses with tens of thousands olf dollars, including
$50,000.00 to Santana. Pohl’s counsel likely agreed to represent Pohl cbecause they have their
own bone to pick with Kassab. The law firm representing Pohl, Reynsolds Frizzell, has attempted
to sanction Kassab personally in another matter after Kassab sued Reynolds Frizzell’s client,
Arnold & Itkin, alleging claims of barratry.139 Kassab responded by filing a counter-motion for
sanctions not only against Arnold & Itkin, but lawyers at Reynolds Frizzell, requesting a the
lawyers to show cause as to why they should not be sanctioned for filing a groundless
pleading.140 Judge Baker denied the motiona r for sanctions against Kassab filed by Reynolds
Frizzell and ordered the lawyers at Reynolds Frizzell to show cause as to why they should not be
sanctioned.141 Although Judge Bakeer ultimately denied Kassab’s counter-motion for sanctions,
she made clear to point out thef inaccuracies alleged by Reynolds Frizzell in its motion for
sanctions and admonished Ryeynolds Frizzell regarding its inaccuracies.142 This lawsuit against
Kassab is not only retaCliatory for Pohl, it is seemingly retaliatory for his counsel.
The ill motaive of Pohl and his counsel is further evidenced by their conduct in the
Barratry Lawsufits. Pohl’s counsel, Jean Frizzell (“Frizzell”), previously attempted to file this
lawsuit inU the 55th Judicial District solely to create a conflict of interest between Kassab and his
139 Exhibit 27 (Motion for Sanctions in Gauthia).
140 Exhibit 28 (Response to Motion for Sanctions in Gauthia).
141 Exhibit 29 (June 28, 2018 Order Denying Sanctions).
142 Exhibit 30 (August 24, 2018 Order Denying Counter-Sanctions).
31
clients who had sued Pohl.143 Judge Shadwick recognized the gamesmanship of Pohl and Frizzell
in their attempt to create a conflict of interest and outright denied their frivolous motion to file a
third-party petition against Kassab.144 Frizzell knew this by colluding with Pohl’s other counsel,
Billy Shepherd, and having access to all of the discovery taken in the Barratry Lkawsuits and the
Mississippi Litigation by virtue of his representation. Therefore, Frizzell had alccess to and knew,
without a doubt, all the facts and sworn testimony cited to in this moticon, and thus, knew how
frivolous and retaliatory this lawsuit is against Kassab when he filed sthe lawsuit.
This Court should not take kindly to lawyers and their lawyer-clients fabricating lawsuits
simply to create conflicts, harass, create delay, increase the cost of litigation and as a retaliatory
tool against lawyers, like Kassab, who attempt to help victims of illegal conduct perpetrated by
lawyers by enforcing the statutes created by the Texas Legislature. Therefore, this Court should
sanction Pohl and Frizzell in an amount sufaficient to deter them from bringing similar actions
and/or filing similar frivolous pleadings in the future. See TEX. CIV. PRAC. & REM. CODE §
27.009(a). The Court should sanctioen Pohl and Frizzell a minimum of fifty thousand dollars
($50,000.00) in addition to the afttorney’s fees and costs listed above so that Pohl and Frizzell
will fully understand that thyeir actions have consequences and that the rule of law has meaning.
To do otherwise, will sCimply reinforce lawyers like Pohl and Frizzell to continue to harass, create
delay, increase the acost of litigation and create conflicts with impunity, and send a message to
lawyers like Pofhl and Frizzell that the rule of law does not matter, the practice of law is simply a
game andU the truth is meaningless.
CONCLUSION & PRAYER
143 Exhibit 31 (Pohl’s Third Party Petition filed in Cheatham).
144 Exhibit 32 (July 23, 2018 Order Denying Pohl’s Motion for Leave to File Third Party Petition).
32
For the foregoing reasons, Defendants/Counter-Plaintiffs Lance Christopher Kassab and
The Kassab Law Firm respectfully request the Court to grant this Motion to Dismiss Pursuant to
the Texas Citizens Participation Act and order that Plaintiffs take nothing in their claims against
Lance Christopher Kassab and The Kassab Law Firm. In addition, the Court shoukld award Lance
Christopher Kassab and The Kassab Law Firm attorney’s fees as requelsted and sanction
Plaintiffs and/or their counsel in an amount sufficient to deter themc from bringing similar
frivolous and retaliatory lawsuits in the future. s
Respectfully submitted,
THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
L ANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
llance@kassab.law
a DAVID ERIC KASSAB
M Texas State Bar No. 24071351
 david@kassab.law
o 1214 Elgin Street
e Houston, Texas 77004
Telephone: 713.522.7400
f Facsimile: 713.522.7410
y ATTORNEYS FOR LANCE CHRISTOPHER
KASSAB AND THE KASSAB LAW FIRM
a CERTIFICATE OF SERVICE
I herebyf certify that a true and correct copy of the above and foregoing instrument has
been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 24th day
of OctobeUr, 2018.
/ s / Lance Christopher Kassab
Lance Christopher Kassab
33"