filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
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.
27
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.
28
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"