filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
67,2024-02-02,RSP,Pohl,Objections to Kassab JNOV,"Pohl's Response in Opposition to Kassab's Motions for New Trial and for JNOV, systematically opposing all 22 grounds for new trial and all JNOV arguments. Argues: all grounds are recycled rejected arguments; witness tampering allegations identical to rejected mistrial motion and based on unsworn statements of self-professed perjurer/extortionist; multiple charge objections waived at charge conference; jury verdict supported by nearly two weeks of trial evidence; Kassab fails to cite trial record; incorporates 15 prior filings by reference.","Response filed February 2, 2024, opposing both the Motion for New Trial and Motion for JNOV filed January 19, 2024. Pohl incorporates by reference 15 prior filings spanning 2021-2023. Notes Kassab has not filed a proposed order as required by court procedures.",POST-1,N/A,Phase 5,2024-02-02_RSP_Pohl-Objections-to-Kassab-JNOV_FILED.pdf,Denial of Kassab's Motion for New Trial and Motion for JNOV in their entirety,"2/2/2024 4:44 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 84110431
By: Bonnie Lugo
Filed: 2/2/2024 4:44 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL et al. § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB et al. § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
POHL’S RESPONSE IN OPPOSITION TO THE MOTIONS FOR NEW TRIAL AND
FOR JUDGMENT NOT WITHSTANDING THE VERDsICT AND TO DISREGARD
JURY FINDINGS FILED BY THE KASSAsB DEFENDANTS
Plaintiffs Michael Pohl and Law Office of Michaerl A. Pohl (collectively “Pohl”) respond
in opposition to The Kassab Defendants’ Motion for New Trial (the “Motion for New Trial”) and
Motion for Judgment Not Withstanding the Verdlict and to Disregard Jury Findings (the “Motion
for JNOV”) filed by Defendants Lance ChMristopher Kassab and Lance Christopher Kassab, P.C.,
d/b/a The Kassab Law Firm (collectively “Kassab”).
I. INTRODUCTION
Kassab’s Motion for New Trial and Motion for JNOV repeat Kassab’s arguments that the
Court has previously considered and rejected. In these two motions, Kassab recycles arguments
rejected at summary judgment, 166(g) hearings, pre-trial hearings, directed verdict, and otherwise.
The Court’s judgcment and the jury verdict are supported by and consistent with ample evidence
presented at trial. But Kassab would have the Court throw out a jury verdict supported by nearly
two weeks’ worth of trial evidence. Because the issues that Kassab raises are without merit, the
Court should deny Kassab’s Motion for New Trial and Motion for JNOV.
II. STANDARDS
A. Motion for New Trial
“Jury trials are essential to our constitutionally provided method for resolving disputes,”
and “a jury’s decision is not to be tampered with lightly, regardless of whether it favors the plaintiff
or the defendant.” In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.Pl., 290 S.W.3d 204,
211 (Tex. 2009) (citing Tex. Const. art. I, § 15, art. V, § 10); see generally Hterbert v. Herbert, 754
S.W.2d 141, 144 (Tex. 1988) (“long-established precedents in this sstate demonstrate respect for
jury verdicts”). Thus, the “discretion Texas trial courts possess to overturn jury verdicts and grant
new trials,” though broad, “has its limits.” In re Columbia,e 290 S.W.3d at 210. “[T]he fact that
the right to jury trial is of such significance omas to be provided for in both the Federal and State
Constitutions counsels against courts setting aside jnury verdicts for less than specific, significant,
and proper reasons.” Id. at 210 n.3. A court’s rdiscretion in granting a new trial “should not, and
does not, permit a trial judge to substitute . . . her own views for that of the jury without a valid
basis.” Id. at 212. e
“[N]ew trials may be granfted to a party for sufficiency or weight of the evidence, when
damages are ‘manifestly’ tooy small or too large, and for ‘good cause.’” Id. at 210 (citing TEX. R.
CIV. P. 320, 326). Rul
e 320’s “good cause” standard “does not mean just any cause,” but rather a
“specific, significanat, and proper” cause. See id. at 210 n.3. As for challenges to the evidentiary
sufficiency of a fjury finding: A factual-sufficiency challenge can only prevail where a jury finding
“is so against the great weight and preponderance of the evidence that it is manifestly unjust,
shocks the conscience, or clearly demonstrates bias.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)
(citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).1 A legal-sufficiency challenge
1 With respect to an issue involving the clear and convincing evidence standard, a slightly different inquiry is
warranted. See Jang Won Cho v. Kun Sik Kim, 572 S.W.3d 783, 810 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
requires a party challenging a finding on which it did not bear the burden to “demonstrate that no
evidence supports the finding.” Four J’s Cmty. Living Ctr., Inc. v. Wagner, 630 S.W.3d 502, 513
(Tex. App.—Houston [1st Dist.] 2021, pet. denied) (emphasis added, citation omitted).
If the trial court grants a new trial, it cannot “simply parrot a pro forma tekmplate.”2 In re
Munsch, 614 S.W.3d 397, 400 (Tex. App.—Houston [14th Dist.] 2020, no pelt.). Instead, a new
trial order must “provide an understandable, reasonably specific explancation of the trial court’s
reasons for setting aside the jury’s verdict” that “derive[s] the artsiculated reason[s] from the
particular facts and circumstances of the case at hand.” Id. (citsations omitted). The trial court’s
“stated reason for granting a new trial must [also] be a legally valid reason.” Id.
B. Judgment Notwithstanding the Verdict
A court may render a judgment notwithstanding the verdict only if a directed verdict would
have been proper. See TEX. R. CIV. P. 301. “A
directed verdict is warranted when the evidence is
such that no other verdict can be rendered and the moving party is entitled, as a matter of law, to
judgment.” Zarate v. Rodriguez, 542e S.W.3d 26, 35 (Tex. App.--Houston [14th Dist.] 2017, pet.
denied) (citation omitted). Put anfother way, judgment notwithstanding the verdict “is proper when
the evidence is conclusive aynd one party is entitled to prevail as a matter of law, or when a legal
principle precludes recCovery.” Id. (citation omitted); see also Barrow-Shaver Res. Co. v. Carrizo
Oil & Gas, Inc., 5a90 S.W.3d 471, 480 (Tex. 2019) (“Judgment . . . against a jury verdict is
proper . . . only fwhen the law does not allow reasonable jurors to decide otherwise.”).
(“factual sufficiency of the evidence under a clear and convincing standard requires us to determine based on the
record whether the fact finder reasonably could form a firm conviction or belief that the allegations were proven.”).
2 Kassab has not yet filed a proposed order as required by the Court’s procedures. The Court cannot adopt a pro forma
proposed order to grant a new trial. There are minimum constitutional requirements articulated by the Texas Supreme
Court. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 748-49 (Tex. 2013) (“trial court must explain with
reasonable specificity why it . . . circumvented a critical constitutional right” and “granted a new trial”); In re United
Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding) (“trial court abuses its discretion if its new-
trial order provides no more than a pro forma template rather than the trial judge’s analysis”); see also In re Bent, 487
S.W.3d 170, 173 (Tex. 2016) (orig. proceeding); In re Columbia, 290 S.W.3d at 212–13.
III. POHL’S INCORPORATION OF PRIOR BRIEFING
Because Kassab’s arguments are largely recycled arguments previously rejected by this
Court and the 189th District Court, Pohl incorporates fully by reference his prior briefing—both
the arguments and the attached exhibits—on these issues. This includes the followking items:
• Pohl’s Motion for Summary Judgment on Defendants’ Counterclaims,l filed Dec. 7, 2021.
• Pohl’s Reply in Support of His Motion for Summary Judgtment on Defendants’
Counterclaims, filed Feb. 4, 2022.
• Pohl’s Objection to Kassab’s Motion to Designate Responsisble Third Parties, filed May
31, 2022. D
• Pohl’s Response in Opposition to the Traditional Moti s ons for Summary Judgment Filed
by the Kassab Defendants and the Nicholson Defendeants & Exhibits, filed Sept. 12, 2022.
• Plaintiffs’ Response in Opposition to the Kassarb Defendants’ Three New Motions to
Compel, filed Sept. 27, 2022.
• Pohl’s Motion to Exclude or Limit the Testnim  ony of Defendants’ Expert Witnesses, filed
Nov. 30, 2022 y
• Pohl’s Objection to Kassab’s Suppale r mental Motion to Designate Responsible Third
Parties, filed Nov. 30, 2022. M
• Pohl’s Rule 166(g) Motion on fBarratry Liability and Specific Affirmative Defenses
Asserted by the Kassab Defendants, filed Nov. 30, 2022.
• Pohl’s Response in Opposit c ion to the Amended Motions for Summary Judgment Filed by
the Kassab Defendants &f Exhibits, filed March 29, 2023.
• Pohl’s Letter responding to arguments raised in Kassab’s April 13, 2023 letter, filed April
18, 2023. p
• Pohl’s Rule 10C4(c) Motion Disputing the Admissibility of Lance Kassab’s Testimony as
an Expert Witnesses, filed Aug. 4, 2023.
• Pohl’s Letiter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion, filed Aug. 15,
2023. i
• Pohl’s Reply in Support of His Motion for Entry of Final Judgment, filed Sept. 18, 2023.
• Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment,
filed Sept. 22, 2023.
• Pohl’s Response to Kassab’s Emergency Motion for Mistrial & Exhibits, filed Dec. 21,
2023.
IV. DISCUSSION
Many of the issues presented in Kassab’s motions have been previously argued by Kassab
and rejected by the Court with a ruling in Pohl’s favor. The same result is proper here, and the
Court should deny Kassab’s Motion for New Trial and Motion for JNOV. Manyk issues Kassab
raises were waived or are boilerplate sufficiency objections without citationsl to the trial record.
But Kassab has not grappled with the evidence in the trial record—nor dcoes he attach the record
as support. It is apparent that Kassab gives little weight to the evidensce Pohl introduced at trial—
Kassab has taken positions throughout the lawsuit that require him to reject Pohl’s testimony and
evidence—but the verdict demonstrates the jury did accept Pohl’s evidence. Kassab has not
carried his burden to demonstrate error in the judgment or verdict, much less any error that would
warrant a new trial or setting aside the judgment.
A. Kassab’s alleged new evidence dida not warrant a mistrial, and it does not warrant
a new trial (Motion for New TriMal Issue #1).
The Court should reject Kassabo’s lead argument for a new trial—Kassab’s allegations of
witness tampering—because it prescents the same arguments and evidence that the Court recently
considered and found did not warrant a mistrial. Kassab presents no new material information,
evidence, or argument thapt warrants reconsideration. The Court correctly ruled that Kassab’s
arguments—which rely on untrue statements—did not justify setting aside the jury’s verdict.
Those same argumcents do not warrant setting aside the Court’s judgment based on that verdict.
Kassaob’s first argument for a new trial is that he claims there is newly discovered evidence
of witness tampering that warrants a new trial. See Motion for New Trial at 4–9. He contends that
“[a]lthough Walker and Ladner testified one way in the Mississippi litigation they brought against
Pohl, when they were deposed in this case they reversed course on seminal issues of barratry and
ownership of Pohl’s purported trade secrets.” Id. at 6. This is the same rejected argument Kassab
made for a mistrial. Compare id. at 4–9 & exhibits 1–4, with Kassab’s Emergency Motion for
Mistrial at 1–7 & exhibits 1–4, filed Dec. 13, 2023.
Pohl responded to Kassab’s Emergency Motion for Mistrial and explained how Kassab’s
arguments were misleading. See generally Pohl’s Response to Kassab’s Emergekncy Motion for
Mistrial, filed Dec. 21, 2023. Despite Pohl pointing out that it is demonstrablyl untrue that Walker
and Ladner changed their testimony on the issues Kassab complains abocut “in this case,” Kassab
continues to push this false narrative. See id. at 7–10 (explaining how sKassab withheld information
from the Court about Walker and Ladner giving testimony ins 2018 consistent with their 2022
depositions in this case); Motion for New Trial at 6–7 (demonstrating Kassab continues to wrongly
suggest that a change occurred with Walker and Ladner’s testimony “in this case”).
While Pohl relies on his prior arguments and evidence, the following summarizes why the
Court should reject Kassab’s argument. Fiarst, Kassab suggests that Pohl agreed to share a
judgment with Walker and Ladner in exchange for them sitting for depositions and changing
deposition testimony on two topics ine this case. But Kassab knows this is not true. Pohl did not
convince Walker or Ladner to sitf for depositions—Kassab, not Pohl, subpoenaed their testimony.
And Pohl did not need to inyfluence Walker or Ladner to “change” their testimony in this case.
Kassab took their depoCsitions in a different case in 2018—four years before their depositions in
this case. Kassab does not discuss, let alone grapple with, the fact that Walker gave testimony in
2018 on the twfof topics at issue that is consistent with his testimony in this case.
SeUcond, even if Walker changed his testimony on the relevant topics for this case—which
is not true—Kassab has not provided evidence to justify granting a new trial. Kassab’s argument
hinges on the truthfulness of vague, unsworn statements of Scott Walker, a self-professed perjurer
and an extortionist. Walker first unsuccessfully tried to extort Pohl for a share of the eventual
judgment in this case, but Pohl refused to be extorted. Walker then approached Kassab and asked
Kassab repeatedly to pay him to help Kassab avoid paying any judgment to Pohl. Kassab does not
mention this fact in his motion—nor did he disclose it to the Court when requesting a mistrial.
In any event, Kassab cannot show that he is entitled to a new trial based solkely on unsworn
statements of a self-professed perjurer who pitched a story as part of an offerl to sell Kassab his
testimony to help undermine any judgment in this case. Kassab failed tco establish facts that the
Court can rely on to grant a new trial and overturn the jury’s considersed verdict in this case.
B. The jury properly found that Pohl owned the trades secrets (Motion for New Trial
Issue #2 and Motion for JNOV Issue #1). s
After reviewing the evidence and testimony prersented at trial, the jury found that (1)
“[a]ttorney client fee contracts between Pohl and his clients” and (2) “[a]ny list of the identities
and contact information of Pohl’s actual, potentlial or rejected clients” constituted Pohl’s trade
secrets.3 The jury heard evidence supportinMg its finding that Pohl owned the relevant information,
that it had economic value to Pohl as ao compilation, that it was kept secret, and that Pohl took
reasonable steps to safeguard its seccrecy. There is no basis that can justify the Court setting aside
the jury’s findings on this issue after a legal or factual review.
As noted above, for a factual sufficiency challenge to prevail, the Court must find that the
jury finding “is so against the great weight and preponderance of the evidence that it is manifestly
unjust, shocks thec conscience, or clearly demonstrates bias.” In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). That standard is not met here, where the jury finding is based on the jury accepting the
testimony of witnesses, weighing the documentary evidence, and finding in Pohl’s favor. Nor has
Kassab shown as a matter of law that Pohl does not own the trade secrets as required to meet the
JNOV standard.
3 See Jury Verdict, Question 1(a)–(b), attached as Exhibit A.
Kassab continues to try and conflate the issues by suggesting that “Pohl cannot own a trade
secret in attorney-client contracts because they are owned by the client.” Motion for New Trial at
9; Motion for JNOV at 5–6. While a client may have a right to a copy of the particular attorney–
client contract the client is a party to, the lawyer also has an ownership right in eakch contract and
to the collection of his contracts.4 Unlike work product, which is generated onl behalf of a client,
an attorney does not act as the agent of a client when a fee contract is drafcted or before it is signed.
A client certainly does not own a collection of attorney–client cosntracts or a compilation of
information based on multiple attorney–client contracts. Pohl ansd other witnesses provided direct,
on-point testimony on this specific issue.
Kassab also ignores Pohl’s testimony about his ownership of the contracts, any lists, and
the information more generally. He instead focuses on an allegation that Pohl’s office manager
“testified that she did not consider the attornaey-client contracts trade secrets.” Motion for New
Trial at 10. But her opinion on what constitutes trade secrets is not relevant. Kassab fails to
mention that Pohl’s office manager aelso gave testimony showing that Pohl did own the contracts
and any list of information comfpiled from those contracts. The jury had ample evidence to
conclude Pohl owned the ryelevant trade secrets, including because Pohl’s name was on the
contracts, and Pohl hadC the right to any list made by those working for him that was compiled from
the information contained in those contracts.
The jurfyf also saw evidence that Pohl took reasonable steps to keep his client information
confidentUial and that the compilation of this information had value beyond simply the sum of its
components (what Kassab refers to as a “competitive advantage”). The jury heard testimony about
how client information was kept in a locked office above a bank with security. The jury heard
4 Cf. Texas Ethics Opinion No. 670 (March 2018) (discussing how an attorney can use copies of former client
documents as “forms” in a new firm provided he keeps confidential information confidential).
about how those who worked for Pohl understood that client information had to be kept secret.
The jury heard testimony about the value of knowing the identities of persons who may participate
in mass tort litigation. The jury also heard opinion testimony about how, by the very nature of the
work, persons working for lawyers understand they must safeguard the secrecy kof information,
especially client information. l
Kassab continues to contend that Pohl’s trade secrets were “gcenerally known to third
parties.” Motion for New Trial at 12. But there was a lack of evsidence showing this at trial.
Instead, the jury saw evidence that Kassab was willing to pay osver six figures to get access to the
attorney–client contracts (and lists of contact information based on those contracts). The jury was
free to reject Kassab’s unsupported assertion that Pohl’s client list—which would have included
contact information—was publicly available when Kassab failed to provide evidence
demonstrating this claim. Kassab’s actionas were inconsistent with his assertion that this
information was publicly available. 
The record at trial demonstratees that there is factually sufficient evidence to show that the
attorney–client contracts and listsf of identities and contact information of Pohl’s clients constituted
Pohl’s trade secrets. Kassaby’s conclusory assertions about what he thinks the evidence showed do
not carry his burden toC establish that he is entitled to judgment as a matter of law. The jury’s
finding that Pohl owned the relevant trade secrets is legally proper and supported by testimony and
documentary efvfidence. The jury’s finding in favor of Pohl on this issue—made after the jury
weighed Uthe evidence—should not be disturbed.
C. Kassab waived any objection to Question #2 (Motion for New Trial Issue #3).
For the first time, Kassab complains in his Motion for New Trial that the Court erred in
submitting Question #2 to the jury. This question was properly included because it was supported
by evidence introduced at trial, and Kassab was on notice of the nature of Pohl’s claims against
Kassab. But the Court does not need to reach those issues. Kassab failed to object to Question #2
at the charge conference and thus failed to preserve any objection to this jury question.
It is blackletter law that a party must articulate its objections to the Court before the Court
reads the jury charge to the jury to preserve any objection. See TEX. R. CIVk. P. 274 (“Any
complaint as to a question, definition, or instruction, on account of any defectl, omission, or fault
in pleading, is waived unless specifically included in the objections.”). c A party cannot raise an
objection to a jury question for the first time as part of a motion fors a new trial. See Mitchell v.
Bank of Am., N.A., 156 S.W.3d 622, 628 (Tex. App.—Dallas 2s004, pet. denied) (“Objections to
the court’s charge in a motion for a new trial are untimely and preserve nothing for review.”); see
also Zermeno v. Garcia, No. 14-17-00843-CV, 2019 WL 2063090, at *3 n.5 (Tex. App.—Houston
[14th Dist.] May 9, 2019, pet. denied).
In Kassab’s Motion for New Trial, hae contends that the Court erred in submitting Jury
Question #2. See Motion for New Trial at 12–14. However, Kassab did not object to this question
at the charge conference.5 Thus, Kasesab cannot raise objections to this jury question for the first
time in his Motion for New Trial.f
While Kassab waivedy any objections he may have had, Kassab is also wrong on the merits
of this issue. A signifCicant issue at trial was whether Kassab improperly obtained Pohl’s trade
secrets from Favre and Precision. Pohl put on evidence showing that Precision, as a company that
provided servicfefs to a lawyer, had a duty of secrecy and that Kassab should have known that Favre
and PreciUsion had a duty to keep Pohl’s trade secrets confidential. But despite knowing that before
obtaining the information, Kassab helped induce a breach of confidentiality by wrongfully
5 Jury Charge Conference Transcript at 6–7 (showing the Court asked if Kassab had any objections to Question #2,
and Kassab’s counsel stated: “Not to Number 2.”), attached as Exhibit B.
10
purchasing Pohl’s trade secrets. Thus, the evidence presented at trial was sufficient to support the
broad-form submission of Question #2 to the jury.
D. There is factually sufficient evidence for the jury’s finding that Kassab engaged in
misappropriation (Motion for New Trial Issue #4 and Motion for JNOV Issue #2).
The jury found that Kassab misappropriated Pohl’s trade secrets after seering and hearing
ample evidence that Kassab willfully and knowingly acquired those trade secrets from persons
Kassab knew were violating an obligation to keep the trade secrets conrfiidential. Kassab ignores
the evidence in favor of the jury’s findings and improperly tries toD engage in burden-shifting after
the fact. The Court should reject this previously disputed issuse.
Kassab’s main argument is that the jury’s findring of 0% liability for Precision on
misappropriation is inconsistent with a finding that he misappropriated Pohl’s trade secrets. See
Motion for New Trial at 14–16; Motion for JNOVl at 10–12. As a threshold matter, Kassab waived
his right to object based on any alleged inMconsistency in the jury’s verdict by not asserting any
objections before the Court dismissed tohe jury. See Bryan v. Papalia, 542 S.W.3d 676, 692–93
(Tex. App.—Houston [14th Dist.] 2c017, rev. granted, judgm’t vacated w.r.m.). But even if Kassab
had not waived the issue, Kassab’s theory fails because it was Kassab’s, not Pohl’s, burden to
introduce evidence showing Precision engaged in misappropriation.
There is nothing inconsistent about the jury finding that Precision did not misappropriate
the information acnd that Kassab did. The jury could have found that Precision obtained the
information lawfully because Precision obtained the information at the request of, while working
for, and while being paid by Pohl. The jury also could have based its misappropriation finding on
Kassab’s post-acquisition “use” or “disclosure” of the trade secrets. Regardless, Kassab is the
party that sought to designate Precision as a responsible third party. Kassab cites no authority for
the theory that his failure to persuade the jury that Precision engaged in misappropriation can be
11
used to undermine a jury finding on a separate issue where Pohl did carry the burden of proof. To
find otherwise would flip the incentives in the case. Kassab would have no incentive to introduce
any evidence to support a finding of liability against a party he designated as a responsible third
party. Instead, it would create a conflicting incentive for Pohl to introduce evideknce potentially
undermining his case to prove that some responsibility was born by someone lother than Kassab.
This makes no sense, and the Court should reject Kassab’s unsupported tcheory.
Kassab’s theory of factual insufficiency (and no evidence) relsies on ignoring the evidence
at trial. He contends that there is insufficient (or no) evidence she was aware the information had
been acquired by improper means or from someone who had acquired it improperly. See Motion
for New Trial at 16; Motion for JNOV at 11. But Kassab apparently forgets that this was a major
issue at trial. On their face, the documents that Kassab purchased were not the sort of documents
that can be properly purchased from a non-laawyer. Pohl introduced expert opinion testimony on
what a lawyer should know about the confidentiality of materials containing information about
another lawyer’s clients. Kassab proevided testimony on cross-examination on this issue that the
jury could have found to be nofn-credible or to support an inference that Kassab acted with
awareness of the proper ownyer of Pohl’s trade secrets when Kassab purchased them.
There was testaCmentary and documentary evidence before the jury supporting their finding
that Kassab had misappropriated Pohl’s trade secrets. Kassab’s argument that this finding was
supported by inf fsufficient or no evidence is contrary to the trial record. The Court should reject
Kassab’sU arguments for a new trial and to set aside the judgment.
E. Kassab did not sufficiently preserve his objection to Question #3 (Motion for New
Trial Issue #5).
Kassab failed to timely notify the Court of his objection to Question #3 contained in his
Motion for New Trial. Pohl opposed the inclusion of Question #3. The Court chose to include
12
this question because Kassab wanted to make arguments about barratry, and he insisted on
including a jury question about alleged wrongful conduct by Pohl. Kassab now objects, saying
this question is not properly tied to other parts of the charge. But he waived this issue by failing
to timely make this objection and alert the Court of this alleged issue. k
Kassab argues that Question #3 was improper “because it was not tied lto any other part of
the charge.” Motion for New Trial at 17. However, Kassab did not raisce this issue at the charge
conference.6 Instead, Kassab presented the Court with a broasder, non-relevant question
concerning barratry.7 The Court rightfully rejected Kassab’s srequest to use that question. But
more importantly, Kassab failed to object to Question #3 on the basis that it was not tied to another
part of the charge. His failure to object on this ground
waived the issue. See TEX. R. CIV. P. 274
(“Any complaint as to a question, definition, or instruction, on account of any defect, omission, or
fault in pleading, is waived unless specificallya included in the objections.”); see also Mitchell, 156
S.W.3d at 628. 
F. The Court correctly rejecteed Kassab’s proportionate responsibility question
(Motion for New Trial Issue #6).
Kassab claims the Court erred by not submitting Kassab’s proportionate responsibility
question without citing a single legal authority to support his argument. See Motion for New Trial
at 17–18. Kassab was obligated to tender a legally proper jury question to preserve any objection.
But Kassab’s reqcuested jury question is contrary to the terms of the proportionate responsibility
statute. Further, Kassab’s proposed question was improper because it included individuals as
potentially responsible parties despite Kassab’s failure to introduce relevant evidence of their fault
at trial to support their inclusion on the jury question.
6 Jury Charge Conference Transcript at 6–7, Ex. B.
7 See id.; see also Motion for New Trial Ex. 6 (containing Kassab’s proposed alternative to Question #3).
13
Unlike, for example, negligence—where a plaintiff can negligently contribute to his or her
injury—Pohl could not have misappropriated his trade secrets. Thus, Pohl could not have violated
an “applicable legal standard” that contributed to causing the harm for which recovery of damages
is sought.” See TEX. CIV. PRAC. & REM. CODE § 33.011(4). As a result, the Court pkroperly rejected
Kassab’s proportionate responsibility question, which included a line for Pohl. lKassab’s proposed
question was also improper because it included lines for Walker, Seymocur, and Ladner despite a
lack of evidence regarding their fault at trial. It also would have besen improperly duplicative to
include those individuals alongside Precision in the question. s 
Because Kassab had the burden to submit a legally proper alternative question on the issue
of proportionate responsibility, his failure to tender a legally proper question at the charge
conference waived this issue. It was not error for the Court to reject the improper question Kassab
presented to the Court at the charge conferencae.
G. The statute of limitations did not run against Kassab before his wrongful conduct
occurred (Motion for New Trial Issues #7–8 and Motion for JNOV Issue #3).
Kassab makes two types ofc arguments concerning limitations. First, he argues that the
Court erred by asking the jury about Kassab’s misappropriation of Pohl’s trade secrets rather than
some alleged misappropriation by another party. See Motion for New Trial at 18. Second, and
relatedly, he argues that Pohl’s claim for misappropriation of trade secrets accrued prior to Kassab
engaging in any cwrongful conduct. See id. at 21–22; Motion for JNOV at 13–15. The Court
should reject both of these arguments because Pohl’s claims against Kassab could not accrue prior
to Kassab engaging in the wrongful conduct that gave rise to Pohl’s claims.
Kassab relies on alleged conduct by third parties to argue that Pohl’s claims against Kassab
accrued before Kassab engaged in wrongful conduct that gave rise to Pohl’s claims. Such a reverse
discovery rule—operating to cause the limitations period to run before Pohl could have brought
14
suit—makes no sense. It is Kassab’s conduct that is relevant for determining when Pohl’s claims
accrued. Here, Pohl’s claims accrued no earlier than November 2016, when the evidence shows
that Kassab knowingly purchased and acquired possession of Pohl’s confidential information from
a third party that Kassab knew had worked for Pohl. k
While a Texas Uniform Trade Secrets Act (“TUTSA”) claim may not ble a continuing tort,
that does not mean that different people cannot commit separate acts ocf misappropriation. For
example, Kassab cites Agar Corp., Inc. v. Electro Circuits Int’l, LLC, s565 S.W.3d 12 (Tex. App.—
Houston [14th Dist.] 2016), aff’d in part, rev’d in part, 580 S.Ws.3d 136 (Tex. 2019), to argue that
Pohl’s claim against Kassab accrued before Kassab purchased Pohl’s trade secrets. But Kassab
misunderstands this case. In Agar, a third party allegedly sold Agar’s trade secrets on multiple
occasions. See Agar, 565 S.W.3d at 19–20. Invoking both the continuing tort doctrine and the
discovery rule, Agar argued that limitations foar its conspiracy claim did not begin to run until the
last sale of its trade secrets (the last overt act) by that third party occurred. See id. The court
rejected that argument for multiple reeasons, including that the misappropriation of Agar’s trade
secrets was not a continuing tortf that reset upon each subsequent sale of the trade secrets by the
third party. See id. at 21. y
Agar stands forC the proposition that, for a specific party, the limitations period starts to run
when that party first misappropriated the trade secret, not when it last used the misappropriated
trade secret. Sfefe Agar, 565 S.W.3d at 21. Pohl filed suit less than two years after Kassab first
misapproUpriated Pohl’s trade secrets. Agar does not support Kassab’s argument that a third party’s
alleged prior misappropriation can start the limitations period before a separate party engages in
any wrongful conduct. A third party’s conduct cannot cause accrual of a cause of action against
Kassab before Kassab engaged in the wrongful conduct. Agar’s holding is simply not relevant.
15
Because the relevant issue for limitations is Kassab’s misappropriation of Pohl’s trade
secrets, the Court properly asked the jury about misappropriation “by Kassab.”8 Further, Kassab’s
discussion of unproven alleged wrongful conduct by persons other than Kassab has no bearing on
when limitations began to run. Kassab has not established his affirmative defensek, and the Court
should reject Kassab’s recycled limitations arguments.9 l
H. The Court properly declined to submit Kassab’s jury questicons related to non-
applicable affirmative defenses (Motion for New Trial Issure #9 and Motion for
JNOV Issues ## 4–5). s
Kassab was not entitled to jury questions on his unlawful acts doctrine and privilege
defenses. The proportionate responsibility statute preempts the unlawful acts doctrine. Kassab’s
privilege defense has no support in Texas law, and he relies on out-of-state authority taken out of
context to support the idea that the defense exists in the first place. The Court properly declined
to submit these defenses to the jury, given the lack of support for such questions.
1. The unlawful acts doctrine is preempted and does not apply.
Kassab first argues that he waes entitled to a jury question to help him establish a defense
based on the unlawful acts doctrinfe. See Motion for New Trial at 22–23; Motion for JNOV at 15–
17. This issue has been exteyns  ively briefed and discussed with the Court.10 To the extent that the
unlawful acts doctrine could have any relevance to this case, it is preempted by Texas’s
proportionate respoansibility statute. In Dugger v. Arredondo, the Texas Supreme Court explicitly
found that “the cfommon law unlawful acts doctrine is no longer a viable defense.” See 408 S.W.3d
825, 831–32 (Tex. 2013). While its holding did not deal with TUTSA claims, its reasoning is
8 See Jury Verdict, Question 5, Ex. A.
9 See Pohl’s Letter responding to arguments raised in Kassab’s April 13, 2023 letter, filed April 18, 2023; Pohl’s
Response in Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and the
Nicholson Defendants & Exhibits at 14–19, filed Sept. 12, 2022.
10 See Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion at 5–6, filed Aug. 15, 2023; Pohl’s Rule
166(g) Motion at 8–10, filed Nov. 30, 2022; Pohl’s Response in Opposition to the Traditional Motions for Summary
Judgment Filed by the Kassab Defendants and the Nicholson Defendants & Exhibits at 19–27.
16
based on the applicability of the proportionate responsibility statute, and that reasoning applies
squarely to this case. Kassab cannot claim the benefit of the proportionate responsibility statute
while simultaneously seeking to apply the conflicting unlawful acts doctrine defense.11
But even if this defense were not preempted, it would not be applicable.k It would only
apply if Pohl needed to rely on a purported illegal act to establish his claims. Slee Carcamo-Lopez
v. Does 1 through 20, 865 F. Supp. 2d 736, 767 (W.D. Tex. 2011) (“But cwhen the illegal conduct
arises in a defense and not in the plaintiff’s case, the unlawful acts rsule will not bar a plaintiff’s
claims.”). Kassab contends that barratry provides the support fsor this defense. But Pohl did not
need to rely on establishing acts of barratry to prove his case. Thus, this defense has no application,
and the Court properly did not submit a question to the jury on this defense.
2. Kassab did not enjoy a privilege to engage in misappropriation of trade secrets.
Kassab’s second argument is that he had a privilege to disclose Pohl’s trade secrets and
enjoys immunity from Pohl’s claims as a result. See Motion for New Trial at 24–25; Motion for
JNOV at 17–19. Kassab cannot coenspire to misappropriate and acquire information for his
commercial benefit and then claimf that he was justified or privileged to do so because he believed
Pohl had improperly soliciteyd some clients. That is the privilege that Kassab is asking the Court
to be the first Court inC Texas to adopt—parties can be justified or privileged to engage in the
misappropriation ofa trade secrets if they believe it will help uncover the wrongdoing of others.
The Court has, afnd should continue to, reject this novel theory.
TUhere is a reason that Kassab relies on out-of-state case law to support his argument. No
Texas case law demonstrates that Kassab’s defense exists. Even the authority that Kassab does
discuss is distinguishable. For example, Kassab cites Alderson v. United States, 718 F. Supp. 2d
11 It is notable that Kassab primarily relies on caselaw that pre-dates Dugger, and he cites no caselaw grappling with
the implications of Dugger yet finding that the unlawful acts doctrine remains applicable.
17
1186, 1200 (C.D. Cal. 2010), for the statement that “[t]here simply cannot be any trade secret about
ongoing illegality.” See Motion for New Trial at 24; Motion for JNOV at 19. But as discussed in
prior briefing,12 the reasoning of Alderson has no application to this case. Alderson dealt with
whether the plaintiff had a protectable property interest in his knowledge of “infkormation about
ongoing illegal activities”—that is, how a Medicare fraud occurred that was lthe basis of a prior
False Claims Act action. See Alderson, 718 F. Supp. 2d at 1200. The fcacts of this case are not
analogous. Here, Pohl does not claim trade secret protection concersning how any alleged illegal
conduct was undertaken. Instead, Pohl contended, and the jurys found, that Pohl’s customer lists
and related information were entitled to trade secret protection.
Because Kassab’s supposed affirmative defenses were not legally viable, the Court did
commit error in refusing to submit them to the jury. But regardless, Kassab failed to introduce
evidence at trial sufficient to establish these deafenses. The Court should reject Kassab’s arguments
related to these defenses. 
I. A barratry finding would ehave had no legal effect, so the Court properly limited
opinion evidence on whether barratry occurred and it has no impact on causation
(Motion for New Trialf Issue #10 and Motion for JNOV Issue # 10).
As has been extensivyely argued throughout this lawsuit, an opinion on whether barratry
occurred has no bearinCg on Pohl’s right to recover on his claims. Contrary to Kassab’s repeated
protestations otherwaise, a finding that barratry occurred would not change the fact that Pohl had
an ownership infterest in his contracts and the information they contain. It would not make Pohl
any moreU or less responsible for attorneys’ fees in the barratry proceedings. Nor is it a defense to
any other aspect of Pohl’s claims. As a result, on relevance grounds alone, the Court was permitted
12 See Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion at 2, filed Aug. 15, 2023; Pohl’s
Response in Opposition to the Amended Motions for Summary Judgment Filed by the Kassab Defendants at 11–12,
filed March 29, 2023.
18
to limit opinion evidence on barratry at trial. Pohl’s prior briefing on file addresses this issue in
more detail.13
Kassab’s alternative argument is that barratry defeats proximate cause. Motion for JNOV
at 34–35. Kassab did not preserve this proximate cause issue by objecting durinkg trial or at the
charge conference. But even if Kassab had not waived this issue and prolximate cause is a
necessary part of Pohl’s claims, the jury heard evidence sufficient tco establish that Kassab
proximately caused Pohl’s injuries. Some of Pohl’s damages are dirsectly linked to Kassab. For
example, the reasonable royalty and development cost damagses are directly linked to Pohl no
longer having exclusive use and control over compilations of his client information. There is a
direct causal connection between that occurring and Kassab wrongfully acquiring Pohl’s trade
secrets from Favre, who was duty-bound to keep that information confidential.
Pohl’s damages based on attorneys’ faees in separate proceedings were also proximately
caused by Kassab’s conduct. The jury heard evidence about the lengths that Kassab went to when
soliciting large numbers of people eto find a small number of people who would allege Pohl
committed barratry. He tried unfsuccessfully to solicit such people through letters sent based on
public information, but he onyly successfully obtained clients after he purchased Pohl’s trade secrets
and used them to engagCe in a mass-solicitation effort.
Finally, Kassab argues that “Pohl’s former clients’ decision to bring the barratry
proceedings wfefre a superseding or new and intervening causes of Pohl’s damages.” Motion for
JNOV at U35. But the actions of those persons were foreseeable by Kassab, as their actions to bring
suit were his specific goal and they acted with Kassab’s assistance. As a result, they were not a
13 See Pohl’s Rule 104(c) Motion Disputing the Admissibility of Lance Kassab’s Testimony as an Expert Witnesses
at 4–9, filed Aug. 4, 2023; Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion, filed Aug. 15,
2023; Pohl’s Rule 166(g) Motion at 2–8, filed Nov. 30, 2022; Pohl’s Motion to Exclude or Limit the Testimony of
Defendants’ Expert Witnesses at 2–6, filed Nov. 30, 2022.
19
superseding or intervening cause. See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 452
(Tex. 2006) (stating that “the threshold, and often controlling, inquiry when distinguishing
between a concurring and a superseding cause remains ‘whether the intervening cause and its
probable consequences were such as could reasonably have been anticipated kby the original
wrongdoer.’” (citation omitted)). l
Pohl has never been found by any adjudicatory body to have ccommitted barratry. Yet
Kassab continues to state conclusively that Pohl’s supposed barratry iss responsible for every harm
Pohl suffered. That is not the case, and the Court properly impossed limits on Kassab’s attempts to
inject barratry as an issue at trial.
J. Kassab is not entitled to immunity for his tortious conduct that occurred before
the existence of an attorney–client relationship (Motion for New Trial Issues ##
11–12 and Motion for JNOV Issues ## 6–8).
Kassab argues that he is entitled to relief based on his defenses of attorney immunity,
immunity under the Texas Rules of Disciplinary Procedure, and the judicial proceedings privilege.
See Motion for New Trial at 27–29; Meotion for JNOV at 19–26. Kassab’s arguments are legally
incorrect, as demonstrated througfh f the ample briefing of these issues.14
1. Kassab’s theory oyf attorney immunity is contrary to Texas Supreme Court precedent.
Kassab complains that the jury instruction on attorney immunity used the phrase “while in
an attorney relationaship” and that the evidence showed that his use of Pohl’s trade secrets occurred
in the context off attorney–client relationships. See Motion for New Trial at 27–29; Motion for
JNOV at 23–26. Kassab argues that the Court erred by using language from the Texas Supreme
Court in the jury question. It makes no sense to object to this language when the Texas Supreme
14 See Pohl’s Rule 166(g) Motion at 12–14, filed Nov. 30, 2022; Pohl’s Response in Opposition to the Traditional
Motions for Summary Judgment Filed by the Kassab Defendants and the Nicholson Defendants & Exhibits at 27–31,
filed Sept. 12, 2022.
20
Court held that one of the two relevant inquiries for establishing attorney immunity is whether a
party demonstrates “the existence of an attorney–client relationship at the time.” Youngkin v.
Hines, 546 S.W.3d 675, 683 (Tex. 2018).
The jury rejected Kassab’s other argument—that the evidence shows his kacquisition and
use of Pohl’s trade secrets occurred in the context of attorney–client relationshlips.15 Kassab used
and disclosed Pohl’s trade secrets as part of a mass solicitation used to acttempt to sign up Pohl’s
former clients. An attorney–client relationship cannot pre-date contasct between the attorney and
a prospective client. Thus, there was no attorney–client relationsship at the time Kassab used and
disclosed Pohl’s trade secrets by soliciting people through a mass-mailing campaign.
2. Pohl’s claims accrued prior to Kassab participating in the grievance process, so Pohl’s
claims cannot be predicated on Kassab’s participation in that process.
Kassab argues that he is entitled to immulnity because he participated in filing grievances
against Pohl. See Motion for JNOV at 19–M20. But Rule 17.09 of the Texas Rules of Disciplinary
Procedure does not grant Kassab absoluote immunity for anything he does with some connection to
the grievance system. Instead, it cprovides that: “No lawsuit may be instituted against any
Complainant or witness predicated upon the filing of a Grievance or participation in the attorney
disciplinary and disability system.” TEX. RULES DISCIPLINARY P. R. 17.09. It does not provide
immunity simply because there is some connection between a case and the grievance process.
For Rule c17.09 to have any application, this lawsuit would need to have been “predicated
upon” Kassab’s involvement in the grievance process. But Pohl’s claim for misappropriation
accrued upon Kassab’s acquisition or use of Pohl’s client information, which occurred no later
than when Kassab used that client information to solicit Pohl’s clients. This undisputedly occurred
prior to any grievance being filed by Kassab. Because the claims asserted pre-date the filing or
15 See Jury Verdict, Question 6, Ex. A.
21
participation in any grievance by Kassab, this lawsuit cannot have been “predicated upon the filing
of a Grievance,” and Rule 17.09 does not apply. The Court should reject Kassab’s arguments.16
3. The judicial proceedings privilege has no application to the facts of this case.
The judicial proceedings privilege applies only to communications “in the kdue course of a
judicial proceeding,” and the privilege protects against a claim for libel or slanlder. Landry’s, Inc.
v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021). Given that tche basis of Pohl’s claim
is not a communication made in the due course of a judicial proceesding, and Pohl has not sued
Kassab for libel or slander, the judicial proceedings privilege does not apply.
Kassab argues that even though Pohl’s claims do not assert claims for libel or slander, the
judicial proceedings privilege should apply because Pohl’s claims arise out of communications.
But even to the extent that Pohl’s claims relate to communications, the gravamen of Pohl’s
complaint is not reputational harm or a theory equivalent to libel or slander. Pohl suffered actual
losses as the result of Kassab’s misappropriation of Pohl’s trade secrets that occurred prior to any
proceeding existing and prior to Kasesab having an attorney–client relationship with a client who
could even initiate a relevant judifcial proceeding.
The judicial proceedyings privilege is not a get-out-jail-free card. Kassab is not free to
engage in tortious condCuct with impunity simply because that wrongful conduct eventually led to
Kassab helping brinag numerous failed judicial proceedings against Pohl. The Court should not
extend the appflication of this privilege to not only a time before the initiation of a judicial
proceedinUg but a time before a relevant attorney–client relationship existed whereby a relevant
judicial proceeding could even be contemplated.
16 See also Pohl’s Rule 166(g) Motion at 12–14, filed Nov. 30, 2022.
22
K. The Court properly allowed Pohl to present evidence of his “actual losses”
suffered as a result of Kassab’s violations of TUTSA (Motion for New Trial Issue #
13 and Motion for JNOV Issue #9(A)).
Pohl suffered losses in the form of attorneys’ fees in multiple unsuccessful separate
proceedings that Pohl may recover as “actual losses” under TUTSA. Kassab akrgues that such
damages are barred and that Pohl should not have been permitted to put forwalrd evidence of his
damages. See Motion for New Trial at 29–34; Motion for JNOV at 27–c32. However, the plain
meaning of “actual damages,” which Pohl is statutorily authorizeds to recover, supports Pohl’s
recovery. Further, the tort-of-another doctrine permits Pohl to recover fees incurred in a separate
proceeding as damages in this case.
The Court should take note that Kassab continues to cite case law in a misleading fashion
despite being on notice that he had falsely characterized cases in his briefing with the Court. For
example, Kassab cites LaCore Enterprises, LLC v. Angles, No. 05-21-00798-CV, 2023 WL
2607562, at *9 (Tex. App.—Dallas Mar. 23, 2023, no pet.) to suggest that Texas courts have
rejected the idea that “attorneys’ feees in other cases [can] be recovered as actual damages in a
trade secret claim.” See Motion fofr New Trial at 31; Motion for JNOV at 28–29 (emphasis added).
But that case did not deal wiyth attorneys’ fees from “other cases,” it dealt with the uncontroversial
proposition that fees frCom the same proceeding are not damages. LaCore, 2023 WL 2607562, at
*9. Kassab was tolda that his use of this case was inaccurate, yet he continues to cite it to the Court
in a misleading fmanner.17
PoUhl’s damages are recoverable under two alternative theories. First, the fees from other
cases constitute “actual losses” under TUTSA. Contrary to Kassab’s suggestion that these
damages are rigidly limited to specific categories, a “‘flexible and imaginative’ approach is applied
17 See Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment at 10 n. 6, filed Sept. 22,
2023.
23
to the calculation of damages in misappropriation-of-trade-secrets cases.” Sw. Energy Prod. Co.
v. Berry-Helfand, 491 S.W.3d 699, 710 (Tex. 2016). Second, Pohl’s damages are also recoverable
under the tort of another doctrine. Kassab relies on non-binding caselaw to suggest this doctrine
does not apply. But he ignores precedent stating otherwise. See Dixon Fin. Skervices, Ltd. v.
Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st Dist.] 2010, pet. dlenied) (“Equitable
principles allow the recovery of attorney’s fees as actual damages whenc a party was required to
prosecute or defend a prior legal action as a consequence of a wrongfsul act of the defendant.”).
Kassab’s recycled arguments on damages have alreadys been made to the Court. Pohl’s
prior briefing addresses the arguments in more detail.18 The Court should reject Kassab’s
arguments on this issue, many of which rely on twisting or ignoring applicable case law that
Kassab is aware of through prior briefing in this case.
L. There is sufficient evidence to supaport the jury’s various calculations of damages
(Motion for New Trial Issues ##M 14–15 and Motion for JNOV Issue #9(B)).
Kassab argues that there was “oinsufficient evidence” and “no evidence” to support the
jury’s findings of market value ancd development cost damages and that the Court improperly
allowed Pohl to provide opinion testimony. See Motion for New Trial at 34–37; Motion for JNOV
at 32–34. Even assuming Kassab’s objections on these issues were preserved at trial, Kassab’s
arguments fall short. The record supports the jury’s damages findings, and Pohl’s limited opinion
testimony on damcages was proper.
1. The jury’s findings of market value damages or reasonable royalty damages are
Usupported by evidence.
The jury heard testimony and saw evidence that supported its award of reasonable royalty
or market value damages. Kassab contends that the only evidence before the jury of the so-called
18 See, e.g., Pohl’s Reply in Support of His Motion for Entry of Final Judgment at 9–12, filed Sept. 18, 2023; see also
Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment at 4–5, filed Sept. 22, 2023.
24
market value of Pohl’s trade secrets was evidence of the “purchase price” Kassab paid to obtain
them. See Motion for New Trial at 35; Motion for JNOV at 33. But that is not true.
Pohl provided competent opinion testimony as the owner of the relevant property on the
market value of his trade secrets. His opinion was informed by not only the cost tok Pohl to obtain
the relevant trade secrets, but also multiple attempts to purchase the property alnd an actual sale of
the property that was contemporaneous with the misappropriation of Pohlc’s trade secrets. See Red
Sea Gaming, Inc. v. Block Investments (Nevada) Co., 338 S.W.3d 5s62, 572–73 (Tex. App.—El
Paso 2010, pet. denied) (showing it is appropriate for a propesrty owner to consider unaccepted
offers to purchase the property, knowledge of the relevant market, and the price at which the sale
of property occurred).
Contrary to Kassab’s assertions, it was proper for Pohl to provide this opinion testimony
under the property owner rule. Binding preceadent confirms the property owner rule applies even
when dealing with intangible property. See Custom Transit, L.P. v. Flatrolled Steel, Inc., 375
S.W.3d 337, 352 (Tex. App.—Housteon [14th Dist.] 2012, pet. denied) (citations omitted). And
though it may be more difficult tof put a value on Pohl’s trade secrets, that is not a per se bar to his
opinion testimony. See Jabryi v. Alsayyed, 145 S.W.3d 660, 667 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (allowiCng a property owner to testify regarding the market value of business
goodwill, which is intangible property). Pohl was properly permitted to present evidence on this
issue, and the jfufry was free to weigh the bases for his opinions.
TUhe jury also saw documentary evidence relevant to the price a willing buyer would pay
for Pohl’s trade secrets. The Favre affidavit discussed multiple offers to buy Pohl’s trade secrets
and that the information could be sold multiple times. The jury also saw a document a federal
judge described as a contract to purchase Pohl’s trade secrets. That document not only had a lump
25
sum price, but it also provided for continuing payments under the contract. Finally, the jury also
heard testimony from Kassab personally that went to the value he placed on Pohl’s trade secrets at
the time he purchased the trade secrets.
2. The jury’s development cost damages are supported by evidence. k
Kassab suggests that no evidence exists to support the jury’s award ofl development cost
damages, but he ignores the multiple categories of evidence admitted at trcial. See Motion for New
Trial at 35–36; Motion for JNOV at 33–34. One such category is Kasssab’s testimony and related
evidence that Kassab proffered to suggest that he did not need to purchase Pohl’s trade secrets.
The jury was permitted to weigh this evidence, and the evidence is sufficient to support the jury’s
award of development cost damages.
Kassab testified and claimed that he did not need to purchase Pohl’s trade secrets because
he could independently gather contact information for Pohl’s clients. The jury heard and saw
evidence concerning the time Kassab’s office expended to compile contact information to send a
small number of initial advertisemenet letters in 2015. The jury also saw evidence of the hourly
rates for Lance and David Kassabf.
The jury was free toy look at this evidence and conclude that if Kassab had the names of
Pohl’s clients, but notC the contact information, $200,000 was the value of the avoided costs to
Kassab. He avoideda the need to manually research and compile contact information (the jury saw
evidence that thfis required sending the same letter to multiple alternative addresses) by instead
obtainingU accurate contact information from Pohl’s attorney–client contracts. Even if Kassab
preserved this objection on this issue, he failed to demonstrate that the jury’s finding is unsupported
by the trial record.
26
M. The jury properly found that Kassab engaged in a willful and malicious
misappropriation of Pohl’s trade secrets (Motion for New Trial Issue #16).
Contrary to Kassab’s assertion, the jury unanimously found that Kassab engaged in a
“willful and malicious” misappropriation by “clear and convincing evidence.”19 And the
testimony and documentary evidence shown to the jury at trial constituted “clearr and convincing
evidence of outrageous, malicious, or otherwise reprehensible conduct” by Kassab that supports a
finding of exemplary damages based on malice.20 See Horizon Health Croirp. v. Acadia Healthcare
Co., Inc., 520 S.W.3d 848, 867 (Tex. 2017). D
Kassab dismissively suggests that there are only two castegories of evidence relevant to this
issue. While there was ample evidence on these issues prresented at trial, one of the categories of
evidence that Kassab highlights demonstrates that the evidence supports the jury’s finding of
malice. Contrary to what Kassab may think, the levidence showing that Kassab filed “a grievance
against Pohl and cop[ied multiple] news ouMtlets and the District Attorney” is highly probative of
malice. See Motion for New Trial at 39o.
First, Kassab downplays thec scope of his conduct. While Kassab may have personally only
filed a single grievance against Pohl, he was involved in drumming up seven failed grievances
against Pohl. Even after Kassab was aware that the grievances Kassab assisted in bringing were
without merit, Kassab filed another grievance that reasserted previously rejected allegations of
wrongdoing againcst Pohl.
Not content with attacking Pohl through the grievance process and court system, Kassab
also sought to destroy Pohl and his reputation publicly and within the professional community of
Texas lawyers. After filing a meritless grievance based partially on conduct already found to not
19 See Jury Verdict, Question 17 (instructing jury that to respond “Yes,” jury’s “answer must be unanimous.”), Ex. A.
20 Here, for the relevant conduct, Mr. Kassab acted on behalf of his firm at all times. Thus, the evidence is equally
applicable to Mr. Kassab and his law firm.
27
constitute ethical violations, Kassab took the unprecedented step of publicizing the unreviewed
grievance to the Texas Attorney General, the Harris County District Attorney, the Houston
Chronicle, The Texas Lawyer, and a then-candidate for Texas State Bar President. The jury saw
this evidence and heard about the unprecedented nature of Kassab publicizing a gkrievance in this
manner. This is evidence the jury could view as clearly demonstrating lKassab wanted to
improperly inflict unnecessary pain, inconvenience, public shame, and mconetary cost on Pohl.
Kassab argues the “evidence is further insufficient because Poshl ‘adduced no evidence that
[Kassab] caused [Pohl] an injury independent of and qsualitatively different than the
misappropriation itself.’” Motion for New Trial at 40 (alterations in original) (citation omitted).
But the Texas Supreme Court said that “this type of malice might exist ‘where the employer
circulates false or malicious rumors about the employee before or after the discharge ... or actively
interferes with the employee's ability to find otaher employment.’” Safeshred, Inc. v. Martinez, 365
S.W.3d 655, 662 (Tex. 2012), as corrected (June 8, 2012) (cleaned up). That is analogous to the
situation here. Kassab sought to infliect reputational harm on Pohl outside the litigation process.
Other evidence showed tfhe jury that Kassab was willing to go to great lengths to target
Pohl. For example, undery the guise of a phony expert witness agreement, Kassab secretly
purchased Pohl’s clienCt files and trade secrets for his own benefit. He then lied saying it was not
a purchase agreement—including lying to the jury’s faces—despite a federal judge saying it was
a purchase agrefefment. The jury also saw that, in that agreement, Kassab was willing to indemnify
Favre agaUinst claims related to the disclosure of Pohl’s client information. This demonstrated
Kassab’s knowledge of the breach of client confidentiality and duty of confidentiality owed by
Favre when he acquired Pohl’s trade secrets.
28
The jury saw evidence of Kassab’s conduct towards Pohl beyond merely misappropriating
Pohl’s trade secrets. Kassab attacked Pohl and tried to destroy him professionally and personally.
The jury was empowered to consider this, and other evidence, and form a firm conviction that
Kassab acted with malice towards Pohl when he misappropriated Pohl’s trade secrkets.
N. The jury properly awarded exemplary damages against KassabC (lMotion for New
Trial Issue #17 and Motion for JNOV Issue #12). 
The jury unanimously awarded Pohl exemplary damages againr ist Kassab after receiving
considerable evidence regarding the blatant and offensive nature Dof Kassab’s wrongful conduct.
Kassab’s argument otherwise ignores the testimony at trial asnd impermissibly assumes that the
jury ignored the Court’s instructions to only award exemplrary damages if the jury were unanimous
in finding such damages proper.
Pohl previously responded to Kassab’s arglument that the jury was not unanimous with the
necessary findings to support an award of Mexemplary damages. See Pohl’s Reply in Support of
His Motion for Entry of Final Judgmeont at 2–8, filed Sept. 18, 2023; see also Pohl’s Reply to
Kassab’s Post-Hearing Letter on Pochl’s Motion for Entry of Judgment at 1–4, filed Sept. 22, 2023.
Pohl will not reiterate those recently briefed issues here and instead relies on his prior briefing.
Kassab’s factually sufficiency arguments also fall short. The jury’s award of exemplary
damages complies with the statutory requirement that exemplary damages not exceed twice the
amount of actualc damages. Here, the jury found that Pohl suffered over $2 million in actual
damages, so t o he jury’s award of $3 million in exemplary damages is proper.21
The remainder of Kassab’s factual argument relies on him making the conclusory assertion
that “the jury probably considered improper items of alleged damages in assessing exemplary
damages.” See Motion for New Trial at 41. But Kassab ignores evidence that went to multiple
21 See Jury Verdict, Question 7, Ex. A.
29
factors relevant to an award of punitive damages, and he ignores the potential scenario where the
jury simply disagreed with him on what the evidence at trial suggested. For example, Kassab does
not give any weight to the evidence at trial that showed Kassab’s malice. See supra Part IV(M).
The jury saw evidence that despite the various persons involved, Kassab bore perskonal culpability
for the wrongful conduct as the person orchestrating the conspiracy against Pohll. Kassab also lied
to the jury by misrepresenting the nature of his contract to purchase Pohl’cs trade secrets.
Finally, the jury saw other evidence relevant to establishing thast Kassab’s conduct offended
a public sense of justice and propriety. Kassab holds himself oust as someone who upholds ethical
rules and ensures lawyers act honestly. He proudly professes that he is aware of the ethical duties
of lawyers. The jury saw this evidence, and they also saw evidence of Kassab acting unethically
and deceitfully—he improperly accessed another lawyer’s confidential client information—in
orchestrating a scheme to misappropriate Pohal’s trade secrets and harass Pohl personally.
Kassab’s suggestion that none of the evidence supported the factors weighed in awarding
exemplary damages is belied by the etrial record. The jury was well within its rights to find that
the record supported an award off $3 million in exemplary damages against Kassab.
O. Pohl’s conspiracyy claim was not preempted (Motion for New Trial Issue #18 and
Motion for JNOV Issue #11).
The Court has previously ruled that Pohl’s conspiracy claim is not preempted. Kassab
argues that TUTScA conflicts with and preempts Pohl’s conspiracy claim. See Motion for New
Trial at 41–43; Motion for JNOV at 35–36. Kassab’s argument is inconsistent with his position
that proportionate responsibility applies to the TUTSA claim, and he does not address that
inconsistency. Kassab’s argument was rejected by the Court before, and the Court should reject it
again.
30
As discussed in Pohl’s prior briefing,22 after Texas adopted TUTSA, Texas trial courts
continued to submit TUTSA and conspiracy claims to the jury. This is because conspiracy, like
proportionate responsibility, does not provide a conflicting remedy that is preempted under
TUTSA. Pohl’s TUTSA claim provides the remedy—damages for misappropriatikng Pohl’s trade
secrets. Conspiracy makes the same remedy apply jointly and severallly among multiple
defendants. That is no more objectionable or inconsistent with TUTSAc than the proportionate
responsibility statute—which Kassab argues is applicable—that smodifies the remedy so a
defendant is responsible for a percentage of the harm. s 
Because there is no conflict between TUTSA and the joint and several liability imposed by
a finding of conspiracy, the Court properly submitted Pohl’s conspiracy claim to the jury. Kassab’s
arguments otherwise are inconsistent with his position on the applicability of proportionate
responsibility, and the Court should deny Kaassab’s request for a new trial or to set aside the
judgment on these grounds. 
P. The Court properly deniede Kassab’s request to designate non-relevant persons as
responsible third parties (Motion for New Trial Issue #19).
The Court properly denied Kassab’s request to designate five additional persons as
responsible third parties after Kassab failed to plead sufficient facts demonstrating their liability.
Despite being given the opportunity to re-plead and satisfy his pleading burden, Kassab chose not
to comply with thce legal standard to designate these persons as responsible third parties, and the
Court properly denied his request to designate additional responsible third parties as a result.
Kassab first attempted to designate the five people at issue as responsible third parties in
early 2022.23 Pohl objected because Kassab failed to plead sufficient facts showing the alleged
22 See Pohl’s Reply in Support of His Motion for Entry of Final Judgment at 13–15, filed Sept. 18, 2023; see also
Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment at 6, filed Sept. 22, 2023.
23 See generally Kassab’s Motion to Designate Responsible Third Parties, filed May 13, 2022.
31
responsible third parties were responsible for the harms underlying Pohl’s claims.24 The 189th
District Court agreed with Pohl’s objections and denied Kassab’s motion.25 Later that year, Kassab
filed two supplemental motions to designate responsible third parties. Pohl did not oppose
designating certain persons listed in Kassab’s second supplemental motion as reksponsible third
parties. However, in Kassab’s first supplemental motion, Kassab sought to dlesignate the same
five people as responsible third parties that were at issue in his first moticon and that Kassab now
complains about in his Motion for New Trial. s
Pohl filed a response in opposition to Kassab’s second attsempt to designate the five relevant
people as responsible third parties.26 Despite the 189th District Court finding that Kassab failed
to meet the pleading standard—which required Kassab to plead sufficient facts showing that the
alleged responsible third parties were responsible for the harms underlying Pohl’s claims—Kassab
pled the same facts. Kassab tried to disguisea this fact by reordering and lightly paraphrasing or
modifying the allegations.27 In such circumstances, it was not an abuse of this Court’s discretion
to deny Kassab’s Supplemental Motieon to Designate Responsible Third Parties.
The Court’s decision to dfeny Kassab’s motion was proper on other grounds as well. For
example, the limitations periyods on Pohl’s torts claims passed with respect to the persons at issue,
and Kassab failed to coCmply with his obligations “to timely disclose that the[se] person[s] may be
designated as a responsible third party under the Texas Rules of Civil Procedure.” See TEX. CIV.
PRAC. & REM. fCf ODE § 33.004(d). Because Kassab’s responses to Pohl’s requests for disclosure
24 See generally Pohl’s Objection to Kassab’s Motion to Designate Responsible Third Parties, filed May 31, 2022.
25 See Court Order, dated Oct. 31, 2022 (denying Kassab’s first motion to designate responsible third parties).
26 See generally Pohl’s Objection to Kassab’s Supplemental Motion to Designate Responsible Third Parties, filed Nov.
30, 2022.
27 See id. at 3–5 (discussing how Kassab failed to plead any new substantive factual allegations).
32
did not include the necessary information, this was an independent basis to not designate the
persons at issue as responsible third parties. See In re Dawson, 550 S.W.3d 625, 630 (Tex. 2018).
Q. The Court properly exercised its discretion to not abate this case (Motion for New
Trial Issue #20).
In the fall of 2022, Kassab filed his Motion to Abate. The 189th Districrt Court correctly
found that abatement of this case was not proper or necessary. Kassab then sought reconsideration
of that ruling from this Court, and the Court exercised its discretion anrdi denied Kassab’s request
to abate this case. Kassab’s arguments for why this lawsuit shoulDd have been abated pending the
resolution of another lawsuit were not squarely presenteds in his prior motion requesting
abatement.28 Even if Kassab’s arguments were not waiverd, the Court properly chose not to abate
this case before,29 and Kassab’s two current arguments do not demonstrate it was an abuse of this
Court’s discretion to deny his request for abatemelnt.
First, Kassab claims that “the outcomMe of Cheatham could alter the course of this litigation
because if it resulted in a judgment agaoinst Pohl for barratry, Pohl could not have argued that all
the barratry claims brought against hcim were frivolous.” Motion for New Trial at 45. But barratry
is not a defense to Pohl’s claims. In each of the other cases and grievances alleging barratry,
Kassab failed to obtain a finding of barratry against Pohl. But even if there were eventually a
liability finding against Pohl in Cheatham, it would not have changed Pohl’s right to recover on
his claims in this clawsuit.30
Second, Kassab argues that abatement was proper because Pohl’s damages in this case
involved Pohl’s attorneys’ fees from Cheatham, “[b]ut if Pohl had been found liable for barratry
28 Compare Motion for New Trial at 44–45, with Kassab’s Motion to Abate Trial Setting at 1–5, filed Sept. 6, 2022,
and Kassab’s Motion to Reconsider or Rule at 2, filed Feb. 23, 2023,
29 See Plaintiff’s Response to Kassab’s Motion to Abate Trial Setting, filed Sept. 15, 2022; see also Plaintiffs’
Response in Partial Opposition to Kassab’s Motion to Reconsider or Rule at 3, filed March 8, 2023.
30 See also Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion, filed Aug. 15, 2023; Pohl’s Rule
166(g) Motion at 2–8, filed Nov. 30, 2022.
33
in Cheatham, then he would have been required to pay attorney’s fees to the plaintiffs in that case.”
See id. This, again, has no materiality to the issues in this case. Kassab’s hypothetical world, in
which Pohl paid third parties for their attorneys’ fees in Cheatham, does not impact whether
Kassab is liable in this lawsuit for Pohl’s attorneys’ fees in Cheatham. Kassab isk conflating two
separate categories of attorneys’ fees. This does not provide a basis for abatelment and certainly
does not establish that the Court abused its discretion in denying Kassab’cs request for abatement.
R. Pohl did not waive the attorney–client privilege throughs offensive use, and he
presented proper evidence of his fees (Motion for New Trial Issues #21 & #23).
Kassab makes two types of arguments related to prsivilege and attorneys’ fees. First,
Kassab argues that the offensive use doctrine applies, anrd Pohl waived privilege with respect to
multiple categories of privileged information related to Billy Shepherd. Motion for New Trial 45–
47. Second, Kassab argues that Pohl’s evidence alt trial concerning attorneys’ fees was conclusory
and improperly redacted. Id. at 49–54. KaMssab’s arguments do not survive scrutiny.
As a threshold point, Kassab’s ocaselaw recognizes that “attorney invoices are routinely
redacted when offered into evidencce to protect attorney–client and work-product privileges.”
KBIDC Investments, LLC v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 WL 5988014, at *22 (Tex.
App.—Dallas Oct. 9, 2020, pet. denied). See Motion for New Trial at 53 (citing KBIDC). Despite
citing this case law, Kassab wrongly suggests that such redactions are per se inappropriate.
1. Kassacb did not establish the applicability of offensive use waiver.
Pohl doid not engage in offensive use that could waive the attorney client privilege because
he did not improperly use or take advantage of privileged materials to support his claims. The
Texas Supreme Court established a three-part test for offensive use waiver that required Kassab to
establish (1) Pohl sought affirmative relief that implicated privileged materials; (2) the withheld
privileged materials would be outcome determinative; and (3) disclosure of the privileged
34
materials is the only way to obtain the evidence. See Republic Ins. Co. v. Davis, 856 S.W.2d 158
(Tex. 1993); see also In re Microvast, Inc., No. 01-18-00049-CV, 2018 WL 4131068, at *5 (Tex.
App.—Houston [1st Dist.] Aug. 30, 2018, no pet.).
Kassab never established the three relevant factors to show offensive usek waiver. Thus,
the Court properly declined to compel the production of privileged materials.l It is worth noting
that Mr. Shepherd became a witness in this case at Kassab’s request. Kcassab subpoenaed Billy
Shepherd’s deposition and documents in this case and then designasted Mr. Shepherd as a trial
witness in November 2022. Mr. Shepherd complied with Kassabs’s subpoena—he produced nearly
a half million pages of documents and was deposed at Kassab’s request. Kassab was not happy
with the voluminous information he requested, so he filed a motion to compel.31
Kassab wanted the 189th District Court to overrule privilege objections, require the
production of additional documents, and requaire the production of unredacted invoices. But the
record was clear that Kassab sought to pierce privilege to obtain discovery about the mental
impressions of his opposing counsel ein a different lawsuit and engage in a fishing expedition in
the hopes that privileged communfications and documents would be relevant to his defenses. Pohl
responded and pointed out tyhat Kassab failed to carry his burden to establish the applicability of
the offensive use doctrCine.32 This Court agreed when it properly rejected Kassab’s prior request
to reconsider this ruling.
Kassabf aflso failed to demonstrate that the offensive use doctrine applied at trial. Redaction
of invoicUes is common, and Kassab could not articulate any specific examples of over-redaction
31 Kassab’s Motion to Compel Testimony & Documents Pursuant to the Offensive Use Doctrine, filed Sept. 20, 2022.
32 See Plaintiffs’ Response in Opposition to the Kassab Defendants’ Three New Motions to Compel, at 7–16, filed
Sept. 27, 2022.
35
to the Court that were inappropriate. See KBIDC Investments, 2020 WL 5988014, at *22. As a
result, the Court properly allowed Pohl to submit appropriately redacted invoices at trial.
2. Pohl’s evidence of attorneys’ fees was proper and factually sufficient.
Kassab argues that Pohl presented insufficient evidence of attorneys’ fees ikn this lawsuit at
trial because Pohl used redacted invoices, and Kassab contends that certain exlpert testimony was
conclusory. The issue of redacted invoices was discussed at trial, acnd the Court found the
redactions appropriate. Kassab’s other argument is his unsupportsed assertion that the expert
testimony supporting fees was conclusory. Neither argument has merit.
Kassab cherry-picked redacted entries from Pohl’s invoices, but he did not demonstrate
that any such redactions were material or improper. He also does not account for the fact that
Pohl’s attorneys’ fees expert applied a blanket discount to the fees reflected in the redacted
invoices. In addition to excluding certain invoice entries entirely, in reaching an opinion on the
amount of reasonable attorneys’ fees, Pohl’s expert applied a 10% discount to the total amount of
fees to account for any unnecessarye or unrecoverable entries on the fee invoices that were not
otherwise removed. To the extenft that some entries were arguably over-redacted, such an issue is
harmless when a substantialy blanket deduction is applied like it was here. For the same reason,
although the conversioCn and TUTSA claims were intertwined, any time entries that advanced only
the conversion claima were resolved by this blanket, catch-all deduction.
Finally, fKassab’s contention that Mr. Zavitsanos’s testimony was conclusory is without
evidentiaUry support. When Mr. Zavitsanos’s testimony was fresh in the Court’s recollection, the
Court found his testimony sufficient to submit the issue of attorneys’ fees to the jury. Kassab’s
argument to the contrary lacks any evidentiary support. Pohl contends that the record will show
that Mr. Zavitsanos’s testimony was not conclusory and that he provided “opinion testimony about
36
the services [he] reasonably believes will be necessary to defend the appeal and a reasonable hourly
rate for those services.” See Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020).
Additionally, the case law that Kassab cites is inapplicable to the circumstances of this
case. Kassab cites Desio v. Del Bosque, No. 05-21-00022-CV, 2022 WL 50002k5 (Tex. App.—
Dallas Feb. 18, 2022, no pet.) on the issue of conclusory evidence. Motion folr New Trial at 53.
But that case dealt with a fee affidavit where the attorney “did not specifyc the amount of time any
person spent on particular tasks and no billing records were submitteds.” Desio, 2022 WL 500025,
at *2. At trial, Pohl provided precisely this type of evidence to sthe jury. The Court should reject
Kassab’s unsupported objection to the sufficiency of the evidence on attorneys’ fees.
S. The 189th District Court properly dismissed Kassab’s counterclaim for civil
barratry (Motion for New Trial Issue #22).
Before this case was transferred to the lCourt, Kassab asserted counterclaims for civil
barratry against Pohl. Despite asserting coMunterclaims for barratry, Kassab tried to withhold the
identity of who assigned him barratry oclaims—and thus, he withheld information on who Pohl
allegedly committed barratry againsct. After seeking to compel production of this basic information
about Kassab’s counterclaims, Pohl learned that Kassab’s counterclaims were assigned claims
from Kassab’s clients, and those same claims were also asserted in a separate still-pending lawsuit.
Once Pohl learned that the counterclaims were the same claims asserted in another lawsuit,
he quickly discovcered that there was already a judgment in his favor on those claims at the trial
court level, although the claims were still part of an ongoing appeal. Despite his duties as a lawyer
in both this lawsuit and the other lawsuit involving the same barratry claims, Kassab did not notify
the courts involved of his duplicative assertion of the barratry claims in a separate lawsuit. After
uncovering Kassab’s inappropriate behavior with these counterclaims, Pohl moved for summary
37
judgment on multiple grounds, and the 189th District Court properly dismissed Kassab’s
counterclaims.33
First, it was undisputable that Kassab’s counterclaims were the very same claims as those
resolved by prior final judgments on the merits. Res judicata applies to such claimks, and the prior
judgments dismissing those barratry claims precluded Kassab from re-litigatinlg them through his
counterclaim in this lawsuit. Kassab’s argument otherwise relies on a ccase that “addressed the
issue of whether res judicata can bar a subsequent suit on a cause of acstion that was not recognized
until after judgment was rendered in the first suit.” Marino v. sState Farm Fire & Cas. Ins. Co.,
787 S.W.2d 948, 949 (Tex. 1990). That has no application to the facts of this case, where claims
existed and were directly ruled on in a prior proceeding.
Second, Kassab argues that limitations on the counterclaims were tolled by section 16.069
of the Civil Practice and Remedies Code. Tahis issue should not be reached because the claims
were barred by res judicata. But even if the Court reaches this issue, the counterclaims do not
meet the requirements of section 16.0e69 because they do not arise out of the same transaction or
occurrence as Pohl’s claims, andf Kassab did not give fair notice of the facts giving rise to the
counterclaims within the 30y-day period prescribed by section 16.069. Kassab did not give fair
notice of the claims inC part because he concealed the identity of who assigned him the claims to
avoid disclosing tha a t his claims had been asserted and ruled on against him in a separate lawsuit.34
Third, af fclaim for civil barratry is a punitive statutory claim that is not expressly assignable.
Kassab pUrocured the assigned claims from his then-current clients to evade the statute of
33 See Pohl’s Motion for Summary Judgment on Defendants’ Counterclaims, filed Dec. 7, 2021; see also Pohl’s Reply
in Support of His Motion for Summary Judgment on Defendants’ Counterclaims, filed Feb. 4, 2022.
34 This issue is discussed in more detail in the original briefing. See Pohl’s Motion for Summary Judgment on
Defendants’ Counterclaims at 11–12; see also Pohl’s Reply in Support of His Motion for Summary Judgment on
Defendants’ Counterclaims at 6–7.
38
limitations and in violation of ethical rules concerning attorney–client transactions. As authorized
by the Texas Supreme Court, the 189th District Court was empowered to refuse to recognize the
assignments, as “assignments may be invalidated on public policy grounds.” See Sw. Bell Tel. Co.
v. Mktg. on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010); see also PPG Indus., Inc. vk. JMB/Houston
Centers Partners Ltd. P’ship, 146 S.W.3d 79, 87 (Tex. 2004) (“[T]he assignabillity of most claims
does not mean all are assignable; exceptions may be required due to equicty and public policy.”).
Kassab’s counterclaims for barratry were barred for multiple sreasons. After reviewing the
evidence submitted by the parties, the 189th District Cousrt correctly dismissed Kassab’s
counterclaims. That ruling should not be disturbed now, after trial, and after a jury reached a
verdict.
V. CONyCLUSION
For the foregoing reasons and the reasons stated in Pohl’s prior briefing—which is
incorporated fully herein by reference—Plaintiffs Michael Pohl and Law Offices of Michael A.
Pohl respectfully request that the Ceourt deny Kassab’s Motion for New Trial and Motion for
JNOV. f
39
Dated: February 2, 2024 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 2nd day of February, 2024.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
40
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84110431
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to MNT JNOV t
Status as of 2/2/2024 4:54 PM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Andrew Johnson ajohnson@Bthompsoncoe.com 2/2/2024 4:44:54 PM SENT
Benjamin Ritz britz@thnompsoncoe.com 2/2/2024 4:44:54 PM SENT
Murray JFogler mfoglielr@foglerbrar.com 2/2/2024 4:44:54 PM SENT
Murray Fogler mfogler@fbfog.com 2/2/2024 4:44:54 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Dale Jefferson 10607900jefferson@mdjwlaw.com 2/2/2024 4:44:54 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 2/2/2024 4:44:54 PM SENT
Kevin Graham Cain 2O4012371 cain@mdjwlaw.com 2/2/2024 4:44:54 PM SENT
Todd Taylor y ttaylor@jandflaw.com 2/2/2024 4:44:54 PM SENT
Scott M.Favre o scott@favrepa.com 2/2/2024 4:44:54 PM SENT
Lawyer Wade lawyerwade@hotmail.com 2/2/2024 4:44:54 PM SENT
Chris C.Pappas cpappas@krcl.com 2/2/2024 4:44:54 PM SENT
Non-Party Witness Bfilily Shepherd bshepherd@spcounsel.com 2/2/2024 4:44:54 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 2/2/2024 4:44:54 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 2/2/2024 4:44:54 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 2/2/2024 4:44:54 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 2/2/2024 4:44:54 PM SENT
Andrea Mendez andrea@kassab.law 2/2/2024 4:44:54 PM SENT
Lance Kassab lance@kassab.law 2/2/2024 4:44:54 PM SENT
David Kassab david@kassab.law 2/2/2024 4:44:54 PM SENT
Nicholas Pierce nicholas@kassab.law 2/2/2024 4:44:54 PM SENT
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84110431
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to MNT JNOV t
Status as of 2/2/2024 4:54 PM CST i
Case Contacts D
Nicholas Pierce nicholas@kassab.law 2/2/2024 4:44:54 PM SENT
Lance Kassab eserve@kassab.law 2/2/2024 4:44:54 PM SENT
D Kassab david@kasBsab.law 2/2/2024 4:44:54 PM SENT
L Kassab lance@knassab.law 2/2/2024 4:44:54 PM SENT
Kelly Skelton recepitlion@kassab.law 2/2/2024 4:44:54 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/2/2024 4:44:54 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
David Kassab O david@kassab.law 2/2/2024 4:44:54 PM SENT
Harris Wells y hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Harris Wells o hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT"
68,2024-02-02,RSP,Pohl,Response to Mtn to Modify Judgment,"Pohl's Response to Kassab's Motion to Modify, Correct, or Reform Judgment, arguing all arguments are recycled and rejected, the jury properly awarded exemplary damages unanimously (Q17 answered per unanimity instructions, Q19 predicated on unanimous Q17, Kassab waived by not objecting before discharge), attorneys' fees from separate proceedings are recoverable actual losses under TUTSA's broad 'actual loss' definition and tort of another doctrine, damages are not duplicative (TUTSA expressly authorizes both actual loss and unjust enrichment), conspiracy is not preempted (it is a rule of joint liability, not an independent tort or conflicting remedy), and great-weight-and-preponderance arguments are meritless","Response filed February 2, 2024, opposing Kassab's Motion to Modify, Correct, or Reform Judgment. Filed simultaneously with Pohl's response to the JNOV and New Trial motions. Incorporates prior briefing by reference.",POST-2,N/A,Phase 5,2024-02-02_RSP_Pohl-Response-to-Kassab-Mtn-to-Modify-Judgment_FILED.pdf,"Denial of Kassab's Motion to Modify, Correct, or Reform Judgment, and any other relief to which Pohl is entitled","2/2/2024 4:20 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 84108335
By: Patricia Gonzalez
Filed: 2/2/2024 4:20 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
POHL’S RESPONSE TO KASSAB’S
MOTION TO MODIFY, CORRECT, OR REFsORM JUDGMENT
Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC (collectively “Pohl”)
respond in opposition to Defendants Lance Christopher Kassab’s and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm’s (collectively “Kassab”) motion to modify, correct, or reform
the judgment (“Motion to Modify”). a
I. Summary. 
The Motion to Modify primareily consists of recycled arguments that Kassab has previously
made and that the Court has prefviously rejected. On that ground alone, the motion should be
denied. y
Substantively, CKassab re-argues in shotgun fashion that all of the damages found by the
jury and awarded bay the Court are not recoverable for various erroneous reasons. As Pohl has
previously brieffed at length, however, both the actual damages and exemplary damages are
reasonablUe and fully supported by the verdict, the evidence, and the law. For these and other
reasons that we discuss next, the Motion to Modify should be denied.
II. The Jury Properly Awarded Exemplary Damages, and Pohl is Entitled to Recover
Them.
Kassab contends that the award of exemplary damages is unsupported and improper
because the jury allegedly did not unanimously answer “Yes” in response to Question 17. See
Motion to Modify, p. 4. But that is not true. On its face, the jury charge shorws that the jury
unanimously answered “Yes” to Question 17 after being instructed to only answer the question
“Yes” if the finding was unanimous. See Charge of the Court, p. 24. Irfi Kassab believed that the
certificate of unanimity was in conflict with the answers containDed in the jury verdict, he was
obligated to request that the jury be polled but did not do so. s In short, there is no conflict in the
answers, but even if there were, Kassab waived it. r
“The jury is presumed to have followed the court’s instructions.” Columbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 86l2 (Tex. 2009). When possible, a court “must”
“reasonably construe the [jury’s] findings inM a way that harmonizes them.” USAA Tex. Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 509 (Teox. 2018); Bender v. S. Pac. Transp. Co., 600 S.W.2d 257,
260 (Tex. 1980). Failure to reconccile answers in favor of the jury’s verdict when possible is
reversible error. Luna v. Southern Pacific Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987). Even
where the jury findings are ambiguous or unclear, the court must try to interpret the findings so as
to uphold the verdict.  Jackson v. U.S. Fid. & Guar. Co., 689 S.W.2d 408, 412 (Tex. 1985). When
a party contends cthat a jury’s award of exemplary damages is not supported by a unanimous jury
finding, it is reviewed as a “no evidence” point. Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.).
Here, it is clearly apparent that the jury made the required unanimous findings to support
the award of exemplary damages. First, the fact that the jury answered “Yes” in response to
Question 17 in-and-of-itself shows that its finding was unanimous because the Court instructed
the jury that it could only answer “Yes” to Question 17 if its answer was “unanimous.” See Charge
of the Court, p. 24. Second, the fact that the jury awarded exemplary damages in response to
Question 19 also shows that the jury answered Question 17 unanimously. Id. at p. 26. The Court
instructed the jury that it could only answer Question 19 if it “unanimously anskwered ‘Yes’ to
Question No. 17 or Question No. 18.” Id. The jury did not answer Question 1l8. Id. at p. 25. But
the jury answered Question 19 and found that an award of exemplary cdamages of $3,000,000
against Kassab was warranted. Id. at p. 26. Given the Court’s instrucstions, the jury could not have
answered Question 19 unless it unanimously answered “Yes” tos Question 17. See Bruce v. Oscar
Renda Contracting, 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet. filed) (“Because the jury
was instructed to only answer the gross negligence question, and the exemplary damages award
question if unanimity was reached, we must presume it did so by following the instructions.”).
Kassab’s argument requires the Couart to presume that the jury ignored the Court’s
instructions in response to multiple questions, which would be an improper and impermissible
presumption. Columbia Rio Grande eHealthcare, L.P., 284 S.W.3d at 862 (“The jury is presumed
to have followed the court’s instrufctions.”). Specifically, Kassab’s argument that the jury’s answer
to Question 17 was not unanyimous because the presiding juror appears to have inadvertently failed
to sign the certificate oCf unanimity for the question is belied by the jury’s affirmative answers to
Questions 17 and 19 in accordance with the Court’s instructions.
The Daflflas Court of Appeals confronted this issue in the “pet. denied” case of Stover v.
ADM MilUling Co., No. 05-17-00778-CV, 2018 WL 6818561 (Tex. App.—Dallas Dec. 28, 2018,
pet. denied). The court of appeals was urged to find that the jury’s award of exemplary damages
was not supported “because the findings on the threshold jury question nos. 5 and 6 were not
certified to be unanimous.” 2018 WL 6818561, at *12. But the court of appeals properly rejected
that argument and found that “the evidence is legally sufficient to support the jury’s award of
exemplary damages” because the jury later unanimously answered questions predicated on
unanimous answers to question nos. 5 and 6. See id. The court of appeals held:
[W]e address Holmes and Holmes Law's argument that the evidence wask legally
insufficient to support the jury's award of exemplary damages in jury qeuestion no.
17 because the findings on the threshold jury question nos. 5 and l6 were not
certified to be unanimous. In support of their argument, they point to the verdict
certificate where the jury stated, “Our verdict is not unanimous. Ecleven of us have
agreed to each and every answer and have signed the certificate rbelow.” However,
the record also contains an additional certificate signed by thse presiding juror that
states, ""I certify that the jury was unanimous in answering QDuestion No. 15, 16, 17,
and 18. All 12 of us agreed to each of the answers."" In sjury question nos. 5 and 6,
the jury found Holmes and Holmes Law liable for comsmon law fraud and statutory
fraud. The instructions for those jury questions did not require a unanimous
verdict. However, both jury question nos. 15 (clrear and convincing evidence of
fraud and statutory fraud) and 16 (malice) instructed the jury to answer those
questions “only if [] [they] [] unanimously answered 'Yes' to any part of
Question No. 5 [common law fraud] or if [they] unanimously answered 'Yes'
to any part of Question No. 6 [statutolry fraud] and Question No. 7 [actual
awareness].” Further, jury questioan no. 17 (exemplary damages) instructed
the jury that they should only aMnswer the question “if [they] unanimously
answered 'Yes' to Question 15 or Question No. 16.” The jury is presumed to
have followed the trial court's instructions. See, e.g., Columbia Rio Grande
Healthcare L.P. v. Hawley, 2e84 S.W.3d 851, 862 (Tex. 2009). We conclude the
evidence is legally sufficient to support the jury's award of exemplary damages
in jury question no. 17. Hfolmes and Holmes Law's issue 3.3(a) is decided against
them.
Id. (emphasis added).
Stover is directly on point and directly rejects the argument that Kassab makes now.
Kassab reclies on the “no pet.” case of Redwine v. Peckinpaugh, which is different for many
reasons. 535 S.W.3d 44, 50 (Tex. App.—Tyler 2017, no pet.). In Redwine, the jury had a single
cause of action for defamation before it. Redwine, 535 S.W.3d at 47. While it answered an
exemplary damages question that it was instructed to only answer if unanimous, its answer was
directly in conflict with its certification that the entire verdict was otherwise not unanimous. See
id. at 51–52. The court then polled the jury, something that Kassab did not request here, and
confirmed the lack of unanimity. See id.
As explained in Bruce v. Oscar Renda Contracting, because Redwine dealt with a single
cause of action giving rise to liability, the certification of non-unanimity was in ckonflict with an
award of exemplary damages. 657 S.W.3d 453, 464 (Tex. App.—El Paso 202l2, pet. filed). The
court in Bruce contrasted the facts in Redwine with a set of facts similcar to those in this case,
saying: “We conclude that the jury’s certification at issue here does nsot have the same conclusive
effect as it did in Redwine, given that this jury was permitted tos answer several questions by a 10
to 2 vote, unless otherwise instructed to only answer upon reaching unanimity.” Id. (emphasis
added). In other words, because not all of the verdict needed to be unanimous, a general certificate
of non-unanimity is not in conflict with an award of exemplary damages.
Furthermore, in this case, like in Staover, the jury unanimously answered a question
(Question 19) that was predicated on a unanimous answer to Question 17 after answering Question
17. Like in Stover, the jury here couled not have answered the latter question (Question 19) unless
it unanimously answered the earflier question at issue (Question 17). That was not the case in
Redwine. y
Again, the jury Cis presumed to have followed the Court’s instructions, and the Court “must”
“reasonably construe the [jury’s] findings in a way that harmonizes them.” USAA Tex. Lloyds Co.,
545 S.W.3d at f5f09. Given the jury’s responses to Questions 17 and 19, and the Court’s related
unanimityU instructions, the only reasonable construction of the jury’s findings is that the jury was
unanimous in answering “Yes” to Question 17. Because there is evidence that the jury
unanimously answered all exemplary damages questions, the Court “must” give effect to the jury’s
answers and enter a judgment awarding exemplary damages. See id.; Bender v. S. Pac. Transp.
Co., 600 S.W.2d at 260.
Finally, although no conflict in the jury’s answers exists, Kassab’s failure to raise this issue
before the jury was discharged waived the alleged conflict that Kassab claims nowk. Texas law is
settled that “to preserve error based on fatally conflicting jury answers, partlies must raise that
objection before the trial court discharges the jury.” USAA Texas Lloydcs, 545 S.W.3d 479, 518
(emphasis added) (discussing how Rule 295 requires that potential csonflicts in the verdict should
be resolved by the trial court giving instructions to the jury beforse the jury is dismissed). The party
relying on the alleged conflict to avoid the effect of answers awarding exemplary damages, Kassab
here, has the burden to timely object. Id. at 509 (citing Burbage v. Burbage, 447 S.W.3d 249, 256
(Tex. 2014)).
The rule is the same whether the comaplaint regarding the jury’s answers is that they are
incomplete or that they are in fatal conflict; the objection must be raised before the jury is
discharged in order to afford the triael court the opportunity to correct the error. Id. As further
stated by the Supreme Court of Tfexas in USAA Texas Lloyds:
[Texas Rule of Civyil Procedure] 295 provides the procedure for resolving
incomplete and nonresponsive jury verdicts as well as those containing conflicting
answers. Tex. RC. Civ. P. 295. Addressing incomplete verdicts, we have long held
that a judgment will not be reversed ""unless the party who would benefit from
answers to the issues objects to the incomplete verdict before the jury is
dischargecd, making it clear that he desires that the jury redeliberate on the issues
or that tfhfe trial court grant a mistrial."" Fleet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986);
see also Continental Cas. Co. v. Street, 379 S.W.2d 648, 650 (Tex. 1964) (holding
paUrty failed to preserve error because he ""did not object to the acceptance of the
jury verdict as incomplete, and thus by timely objection afford the trial court the
opportunity, before the jury was discharged, of correcting the error (if such it was)
of accepting the verdict with the issues unanswered""). We conclude that the same
error-preservation requirement applies when a party complains of a judgment
based on conflicting jury answers.
Id. at 519 (emphasis added).
Had Kassab timely raised the alleged conflict prior to the jury being discharged, Rule 295
would have resolved any confusion regarding how many jurors joined in answering Question 17.
That is exactly what happened in Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston
[14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.), where the Fourteenth Ckourt of Appeals
addressed the issue at length as follows: l
When the jury originally returned its verdict, the verdict form shocwed that the jury
had answered “yes” as to Question 1 for Papalia and “yes” as tro Question 2. The
trial court had instructed the jury that it could answer “yes” sto Question 2 only if
all jurors agreed on that answer and only if all jurors had agDreed to answer “yes” in
Question 1 as to Papalia. Despite this instruction, the sju  ry’s verdict certificate
originally showed that only ten jurors had agreed tso all of the jury’s answers
so only ten had agreed to answer Question 1 “yes” for Papalia and to answer
Question 2 “yes,” but, in light of the trial court’sr instructions in Question 2, the
jury’s affirmative answer to Question 2 indicated that the jury had answered
these two questions unanimously. 
After discussing this situation with coulnsel and polling the jury, the trial court
explained to the jury in open court and on the record that the verdict form contained
an ambiguity because the jury was iMnstructed to answer “yes” to Question 2 only if
all jurors agreed to that answer, but the jurors indicated in the verdict certificate
that only ten jurors agreed to thios answer. The trial court then directed the jury to
return to the jury room and clearify on the verdict certificate whether the answer to
Question 2 was unanimous . c. . . The jury later returned with an amended verdict
certificate indicating tfhat the answers to the first two questions were
unanimous and that ten jurors agreed to the answers to Questions 3 through 9 . . .
Papalia argued in thpe JNOV Motion that the trial court should disregard the answer
to Question 2 because only ten jurors agreed to that answer and signed the original
verdict certificate. Though it is true that only ten jurors signed the original verdict
certificate, aafter the jury returned to the jury room, the jury amended the verdict
certificatec to show that all jurors agreed to the answers to the first two questions. In
this contfext, the original verdict certificate does not provide a basis for disregarding
the juory’s answer to Question 2.
Bryan, 542 S.W.3d at 692–93 (emphasis added).
Kassab waived the right to complain about any alleged conflict in the jury’s answers, even
though there is no conflict, by not timely objecting before the jury was discharged. There is no
error in the Court’s judgment.
III. Pohl Is Entitled to Recover His Actual Losses and Damages Under TUTSA.
Kassab requests the Court to reform the judgment to exclude Pohl’s damages that are based
on attorneys’ fees incurred in connection with separate proceedings based on two grounds. First,
Kassab argues that attorneys’ fees are not recoverable under TUTSA. See Motionk to Modify, pp.
5–10. Second, Kassab argues that the attorneys’ fees incurred in connectilon with grievance
proceedings cannot be recovered. Id., pp. 10-11. Neither argument is cocrrect.
A. Pohl’s TUTSA Losses And Damages Are Recoverasble.
Despite having previously asserted the same rejected arguments on multiple prior
occasions, Kassab continues to claim that portions of Pohl’s edamages are not recoverable because
they are based on attorneys’ fees incurred in separate pr u oceedings.1 See Motion to Modify at 5–
11. Kassab was wrong before, and he remains wronng now. It is true that attorneys’ fees typically
do not constitute actual damages when incurrerd in the same lawsuit. But attorneys’ fees from
separate proceedings—incurred as the result of wrongful conduct of the defendant—do constitute
actual damages in a subsequent lawsueit and are recoverable. See, e.g., Akin Gump Strauss Hauer
& Feld, LLP v. National Developfment & Research Corp., 299 S.W.3d 106, 119-22 (Tex. 2009).
Kassab conflates these distinyct scenarios in arguing otherwise.
TUTSA authorizes the recovery of damages, including “actual loss caused by
misappropriation.” a TEX. CIV. PRAC. & REM. CODE § 134A.004(a). On its face, the plain meaning
of “actual loss” fis broad and encompasses consequential losses such as attorney’s fees in separate
proceedings. This broad definition of damages is not surprising because a “‘flexible and
imaginative’ approach is applied to the calculation of damages in misappropriation-of-trade-
1 See, e.g., Kassab’s Traditional Motion for Summary Judgment, pp. 76–80, filed August 29, 2022; Pohl’s Response
in Opposition to Kassab’s Traditional Motions for Summary Judgment, filed September 12, 2022; see also Court’s
October 31, 2022, order denying Kassab’s motion for summary judgment. Pohl incorporates his prior briefing on this
issue by reference.
secrets cases.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710 (Tex. 2016). To the
extent that the Court wishes to look at persuasive authority from other states, they too have
recognized that the definition of “actual loss” is broad and encompasses tort damages where a
“plaintiff must prove that its loss was caused by the defendant’s violation.” Skee World Wide
Prosthetic Supply, Inc. v. Mikulsky, 640 N.W.2d 764, 770 (Wis. 2002); Dunsmlore & Associates,
Ltd. v. D'Alessio, No. 409906, 2000 WL 124995, at *10 (Conn. Super. Cct. Jan. 6, 2000) (“Actual
loss in this context means the amount of money that the plaintifsf lost from the defendant's
misappropriation; it is measured by how much better off the plasintiff would have been but for the
defendant's misappropriation.”).
The weakness of Kassab’s position is showcased by his misleading citation to caselaw.
Kassab cites to Florida caselaw asserting that “‘actual loss’ means ‘loss of profits, lost customers
or lost market share.’” See Motion to Modifya, p. 5 (citations omitted). While Pohl disputes that
Florida limits actual loss damages to these three categories, if it did, it demonstrates why the Court
should ignore this non-controlling autehority. Moreover, Kassab does not dispute that Texas allows
recovery of damages outside of tfhose three categories of damages. See, e.g., Motion to Modify,
pp. 12-13 (not disputing thaty market value is recoverable as a measure of “actual loss”).
Kassab’s citatioCn to Texas caselaw fares no better. Here, even though the issue concerns
recovery of attorneys’ fees incurred in separate proceedings, Kassab cites multiple cases dealing
with recovery foff attorneys’ fees incurred in the same proceeding.2 See Motion to Modify, p. 7.
2 Lacore Enters., LLC v. Angles, 2023 WL 2607562, *9 (Tex. App.—Dallas Mar. 23, 2023, no pet.) (standing for the
non-controversial conclusion that fees from the same lawsuit are not recoverable as damages under the American
rule); O’Neal v. Dale, 2021 WL 210848, *10 (Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (standing for the
uncontroversial proposition that fees incurred in the present lawsuit do not typically constitute damages); Woodhaven
Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 839 (Tex. App.—Dallas 2014, no pet.) (“the only
damages stated by appellants consist of legal fees and expenses they incurred in defending against this lawsuit brought
by appellee and in prosecuting their counterclaims.”).
Furthermore, some of the cases do not concern recovery of attorneys’ fees at all,3 and one was
cited for a proposition that was subsequently overruled.4 The Court should not consider Kassab’s
misleading citations.
And even if the Court were not convinced that TUTSA alone authorized kthe recovery of
Pohl’s damages, Pohl’s damages are recoverable under equitable principlesl. See Dixon Fin.
Services, Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st cDist.] 2010, pet. denied)
(“Equitable principles allow the recovery of attorney’s fees as actuasl damages when a party was
required to prosecute or defend a prior legal action as a conssequence of a wrongful act of the
defendant.”).5
Kassab acknowledges the potential applicability of this equitable doctrine but claims that
Pohl cannot qualify because an equitable doctrine can only apply when the plaintiff is “wholly
innocent” of any wrongdoing. See Motion to Maodify, p. 9. Pohl disputes that the “wholly innocent
party” element is properly part of the tort of another doctrine. Indeed, Kassab himself cites
3 Tana Oil & Gas Corp. v. McoCall, 104 S.W.3d 80, 81 (Tex. 2003) (rejecting argument that parties could recover for
the value of their own timCe because the Court saw “no causal relationship between the tortious interference the
McCalls allege and the only damages they claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., 2006 WL
648834, *8 (Tex. App.—a lHouston [1st Dist.] Mar. 16, 2006, pet. denied) (finding that a company’s financial loss due
to employees spendingi time on depositions and discovery did not constitute damages in the same lawsuit).
4 See Motion to Mfodify, p. 7 (citing Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.]
2001, pet. denied) for the proposition that “attorney’s fees are recoverable only when an agreement between the parties
so provides.”). This is in direct conflict with multiple subsequent Supreme Court of Texas cases. See, e.g., Akin,
Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 120–21 (finding an award of attorneys’ fees could be proper
even absent an agreement between the parties).
5 Kassab continues to cite inapplicable caselaw throughout. For example, he cites Riner v. Neumann, 353 S.W.3d
312, 323 (Tex. App.—Dallas 2011, no pet.) as support for his contention that “[o]ther intermediate courts of appeals
have likewise refused to adopt the tort of another doctrine.” See Motion to Modify, p. 8 n.4. This is false. Riner does
not mention the tort of another doctrine. See generally Riner, 353 S.W.3d 312. Instead, the court in that case declined
to adopt an exception to the American rule prohibiting recovery of attorneys’ fees in the same case absent
authorization. See id. at 322.
10
multiple cases demonstrating that there is no wholly innocent party element to the doctrine.6 See
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 106; Naschke v. Gulf Coast Conference,
187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Brannan Paving GP, LLC
v. Pavement Markings, Inc., 446 S.W.3d 14 (Tex. App.—Corpus Christi 2013, petk. denied).
Regardless, however, Kassab is incorrect that the jury found that Plohl’s trade secret
damages were caused by Pohl’s conduct. In response to Question 4—whicch was the proportionate
responsibility question specifically tied to the misappropriation of tsrade secrets claim—the jury
assigned 0% of the responsibility to Pohl. See Ex. A at 10.7 sKassab ignores this question and
instead contends the jury’s answer to Question 3 shows that Pohl is not “wholly innocent.” See
Motion to Modify, p. 9. But Question 3 is not tied to the misappropriation of trade secrets. See
Ex. A at 9. In fact, the jury specifically asked if they should still answer Question 3 even if they
found that no trade secrets existed. With thea agreement of Kassab, the Court instructed the jury
that they should still respond to Question 3 even if they answered “No” to both parts of Question
1 regarding the existence and ownersehip of a trade secret.
The attorneys’ fees that fPohl incurred in separate proceedings as a result of Kassab’s
wrongful conduct are recovyerable as part of Pohl’s “actual loss” in this lawsuit. Kassab’s
arguments otherwise aCre not supported by controlling law. The Court correctly entered judgment
in favor of Pohl for the amount of his “actual loss” found by the jury.
B. fRule 17.09 of the Texas Rules of Disciplinary Procedure Does Not Apply.
AUs a threshold matter, this lawsuit is not predicated on Kassab filing a grievance or
participating in the grievance process. It is predicated on Kassab’s misappropriation of Pohl’s
6 Further, Kassab’s reliance on the idea of a wholly innocent party exception is not consistent with the history of the
doctrine. See James Michael Stanton, Recovering Attorney’s Fees in Equity Under Texas Law: Why Some Texas
Courts of Appeal Have It Wrong, 29 T. Marshall L. Rev. 243, 278 (2004).
7 This Exhibit A is attached to Pohl’s Response to Kassab’s Motion for New Trial and Motion for JNOV.
11
trade secrets. For that reason alone, Rule 17.09 of the Texas Rules of Disciplinary Procedure does
not apply, and the Court should reject Kassab’s argument otherwise. See Motion to Modify, pp.10-
11.
Regardless, this issue has been briefed extensively before, and Pohl wilkl not repeat the
same arguments now. Pohl incorporates his prior briefing by reference. l See, e.g., Pohl’s
November 30, 2022, Rule 166(g) Motion, pp. 12–14. Bottom line, thec Court properly rejected
Kassab’s arguments on the issue then, and it should reject them agains now.
IV. The Damages Awarded to Pohl Are Not Duplicative. s
Kassab requests the Court to modify the judgment to exclude allegedly duplicative
damages. But the damages are not duplicative. To the contrary, TUTSA expressly authorizes the
recovery of “both the actual loss caused by misappropriation and the unjust enrichment caused by
misappropriation that is not taken into accou
nt in computing actual loss.” TEX. CIV. PRAC. &
REM. CODE § 134A.004(a) (emphasis added). Kassab agrees that the market value damages found
by the jury are “actual loss” damagese. See Motion to Modify, p. 12. Kassab also agrees that the
jury found that he had been unjfustly enriched through his misconduct in the form of avoided
development costs. Id. Andy the jury was specifically instructed that it should “not award any sum
of money on any elemCent if you have otherwise, under some other element in this question,
awarded a sum of maoney for the same loss.” See Charge of the Court, p. 13. Once again, the
Court must prefsume that the jury followed its instructions. Columbia Rio Grande Healthcare,
L.P., 284U S.W.3d at 862.
Additionally, the awards are not duplicative because the jury could have found that the
market value damages compensated Pohl for the loss of value of his trade secrets going forward,
as that value was destroyed or lessened by Kassab’s unlawful use and disclosure of the trade
secrets. The jury also could have found that the market value damages were separate and distinct
12
from the improper benefit Kassab received by avoiding development costs (a) that he otherwise
would have incurred in the past, and (b) that the Texas Uniform Trade Secrets Act expressly
allowed the jury to consider in addition to actual loss. See TEX. CIV. PRAC. & REM. CODE §
134A.004(a) (“both the actual loss caused by misappropriation and the unjust enrickhment” may be
recovered). l
Finally on this point, the unjust enrichment award could not havce compensated Pohl for
the actual loss associated with the market value of Pohl’s trade secretss because unjust enrichment
is an equitable remedy that disgorges unjust gains instead of cosmpensating for loss. See Nguyen
v. Watts, 605 S.W.3d 761,789 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (“Recovery for
unjust enrichment arises from the equitable principle that a person receiving benefits, which were
unjust for him to retain, should make restitution.”) (citing Villarreal v. Grant Geophysical, Inc.,
136 S.W.3d 265, 270 (Tex. App.—San Antoniao 2004, pet. denied). Because the jury viewed unjust
enrichment as not being accounted for in its award of “actual loss” damages, and because this
would be reasonable given that an aweard based on unjust enrichment does not seek to redress loss,
the finding is not duplicative undfer TUTSA. Id.
V. Kassab’s Argumenty for Preemption Of Pohl’s “Conspiracy Claim” Is Inapposite
Because Texas Only Recognizes Conspiracy as a “Rule” of Joint and Several
Liability—NotC a Cause of Action.
Kassab arguaes that the Court should disregard the jury’s conspiracy finding and reform the
judgment to elimfinate Kassab’s joint and several liability because he contends that conspiracy is
“either prUeempted by TUTSA or subject to the [statutory] proportionate responsibility scheme.”
See Motion to Modify, p. 13. Yet Kassab cites no binding precedent holding that Pohl’s conspiracy
allegations are improper. The Court should reject Kassab’s arguments.
Based on unpublished federal cases, Kassab claims that “courts have concluded that
Chapter 33’s proportionate responsibility scheme applies to conspiracy claims, rather than joint
13
and several liability.” See id. at 14. But Kassab ignores contrary published Texas caselaw. The
Dallas Court of Appeals recently rejected “the premise that Chapter 33 superseded the rule that
civil conspiracy findings result in joint and several liability.” Guillory v. Dietrich, 598 S.W.3d
284, 296 (Tex. App.—Dallas 2020, pet. denied). Other Texas appellate courts hkave reached the
same conclusion. See, e.g., Stephens v. Three Finger Black Shale P’ship, 58l0 S.W.3d 687, 719
(Tex. App.—Eastland 2019, pet. denied) (“[w]e are of the opinion that jcoint and several liability
attaches to a civil conspiracy finding and is not affected by the sproportionate responsibility
statutes.”). s 
Furthermore, in addition to the fact that they do not control this Court, the authorities that
Kassab cites erroneously recognized civil conspiracy as a cause of action rather than a rule of
liability. Indeed, Kassab’s whole argument presupposes that preemption is warranted because
conspiracy is a cause of action to which Cahapter 33 applies. See Motion to Modify, p. 14.
However, the Supreme Court of Texas has clarified that conspiracy is not a cause of action; rather
it is simply a rule of joint liability. Agear Corp. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 142
(Tex. 2019) (“civil conspiracy is fa theory of vicarious liability and not an independent tort”). As
a result, even the reasoning yof the non-controlling authorities that Kassab relies on is misplaced.
Id. C
Notably, Kassab failed to cite any Texas caselaw holding that TUTSA preempts an
allegation of a fcfonspiracy to misappropriate trade secrets. The absence of any supporting Texas
caselaw iUs telling. See Motion to Modify, pp. 13–15. Under the facts of this case, there is simply
no basis for preemption. TUTSA provides that it “displaces conflicting tort, restitutionary, and
other law of this state providing civil remedies for misappropriation of a trade secret.” TEX. CIV.
PRAC. & REM. CODE § 134A.007(a) (emphasis added). Conspiracy does not provide a conflicting
14
remedy in this case.8 It merely provides that damages are joint and several. For this reason, Texas
trial courts have continued to submit both TUTSA and conspiracy claims to the jury. See, e.g.,
Whitlock v. CSI Risk Mgmt., LLC, No. 05-19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—
Dallas Apr. 30, 2021, pet. denied), reh’g denied (June 7, 2021) (holding that the conkspiracy finding
was supported by the underlying tort of misappropriation of trade secrets). l
Pohl’s TUTSA claim provides the remedy—damages for the micsappropriation of Pohl’s
trade secrets. Application of the law of conspiracy simply makes thsat remedy apply jointly and
severally. That is no more objectionable or inconsistent withs TUTSA than application of the
proportionate responsibility statute, which Kassab acknowledges applies. The Court should reject
Kassab’s selective and erroneous invocation of TUTSA preemption.
VI. Pohl Is Entitled to Recover Attorneys’ Fees, and Kassab Is Not Entitled to a Take
Nothing Judgment. l
Kassab argues in the form of an Momnibus point that, because virtually all actual and
exemplary damages awarded by the juory are purportedly improper, Kassab is entitled to a take
nothing judgment because (a) thce applicable settlement credit exceeds Pohl’s recoverable
damages, and therefore (b) Pohl is not a “prevailing party” entitled to recover attorney’s fees under
TUTSA. See Motion to Modify, p. 15. But as we previously explained, Pohl is entitled to recover
both his actual loss and damages for Kassab’s unjust enrichment. See TEX. CIV. PRAC. & REM.
CODE § 134A.004c(a) (“both the actual loss caused by misappropriation and the unjust enrichment”
may be recovered). Likewise, as we also previously explained, Pohl is entitled to recover the
attorney’s fees that he incurred in separate proceedings due to Kassab’s unlawful conduct as part
8 As an aside, Kassab’s TUTSA expert, Joseph Cleveland, appears to assume that allegations of conspiracy can exist
alongside a TUTSA claim, as he makes no mention of preemption in discussing them in conjunction with each other.
Cf. Joseph F. Cleveland, Jr., J. Heath Coffman, Kevin C. Smith, A Practitioner's Guide to the Texas Uniform Trade
Secrets Act, Tex. J. Bus. L. 1, 16 (2019) (discussing how pleading conspiracy in connection with a TUTSA claim “will
virtually guarantee that the TCPA applies”).
15
of Pohl’s actual loss. Because Pohl is entitled to recover these damages, Kassab’s argument that
exemplary damages must be reduced to reflect Kassab’s desired pruning of actual damages is
meritless.
Pohl’s recoverable actual damages, exclusive of attorney’s fees incurred kin this case and
exemplary damages, total more than $1,400,000.00. They greatly exceed the aplplicable settlement
credit of $765,000.00. Pohl is the “prevailing party” and is entitled toc recover attorney’s fees
incurred in this case under TUTSA, as well as all other damages fousnd by the jury and awarded
by the Court. See TEX. CIV. PRAC. & REM. CODE § 134A.005. s 
VII. Kassab’s Great-Weight-and-Preponderance of the Evidence Arguments are
Meritless. r
Lastly, Kassab makes a four-sentence effort to argue that the verdict is against the great
weight and preponderance of the evidence, yet Kalssab fails to discuss any specific evidence. Even
had Kassab adequately briefed this point, aMnd he did not, it should be rejected.
Great-weight-and-preponderancoe arguments come with a heavy burden. See e.g. Harding
v. Lewis, 133 S.W.3d 693, 698 (Texc. App.—Corpus Christi 2003, no pet.) (party asserting great-
weigh-and-preponderance point carries a heavy burden to show that the evidence supporting the
finding is so weak as to be clearly wrong and manifestly unjust). This is because it is the jury’s
exclusive province to determine the weight to be given to testimony and to resolve any conflicts
in the evidence. cHome Ins. Co. v. Garcia, 74 S.W.3d 52 (Tex. App.—El Paso 2002, no pet.) (a
court should not substitute its evaluation of the evidence for the jury’s unless, based on the
evidence supporting the jury’s answer, the verdict is manifestly unjust).
Here, the jury heard and considered testimonial evidence (both fact and expert) and
documentary evidence supporting the actual damages that Pohl sustained as a result of Kassab’s
16
misconduct, which the jury was entitled to accept or reject. The jury chose to accept this evidence
and, therefore, the verdict and judgment should stand. Id.
As to exemplary damages specifically, the evidence of Kassab’s willful and malicious
misconduct was overwhelming, which perhaps is why Kassab chose not to address kit in the Motion
to Modify. Under the guise of a phony expert witness agreement, Kassab secretlly purchased Pohl’s
client files and trade secrets for his own benefit. Thereafter, Kassab used cthe fruits of the unlawful
purchase to file multiple unsuccessful grievances and lawsuits againsst Pohl for Kassab’s personal
financial gain. And in what can only be described as a maliscious effort to destroy Pohl both
personally and professionally, Kassab publicized one of his grievances against Pohl (which was
ultimately dismissed like all of the others) to the Texas Attorney General, the Harris County
District Attorney, the Houston Chronicle, The Texas Lawyer, and a then-candidate for president
of the State Bar of Texas. Yet Kassab refused ato acknowledge any error or wrongdoing at all, even
denying that he had purchased Pohl’s files after a federal judge found in a written order that he
had. Instead, Kassab purported to jusetify his unlawful conduct by accusing Pohl of wrongdoing—
an accusation that the jury squarefly rejected.
The jury saw througyh Kassab’s unaccountable subterfuge and rejected Kassab’s false
theory of “vigilante” juCstice. Based on substantial and compelling evidence, the jury appropriately
awarded exemplary damages to send a message to Kassab and others like him that such malicious,
willful, and unflafwful conduct will not be tolerated.
TUhe jury’s findings as to both Pohl’s actual damages and exemplary damages are amply
supported by the evidence. Kassab’s great-weight-and-preponderance arguments are meritless.
VIII. Conclusion.
Pohl requests the Court to deny Kassab’s Motion to Modify. Pohl requests any other,
further, or alternative relief to which he is entitled.
17
Dated: February 2, 2024 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650
1100 Louisiana St., Suite 3500 r
Houston, Texas 77002
Tel. 713.485.7200
Fax 713.485.7250 t
jfrizzell@reynoldsfrizzell.ciom
Attorney for Plaintiffs iMichael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copyy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Prorciedure on this 2nd day of February, 2024.
f /s/ Jean C. Frizzell
 Jean C. Frizzell
18
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84108335
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to Kassab's Motion to Motdify
Judgment i
Status as of 2/2/2024 4:37 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 2/2/2024 4:20:58 PM SENT
Benjamin Ritz britz@thompsoncoe.com 2/2/2024 4:20:58 PM SENT
Murray JFogler mfaogler@foglerbrar.com 2/2/2024 4:20:58 PM SENT
Murray Fogler mfogler@fbfog.com 2/2/2024 4:20:58 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Dale Jefferson 10607c900 jefferson@mdjwlaw.com 2/2/2024 4:20:58 PM SENT
Raul Herman Suazo 240f03021 suazo@mdjwlaw.com 2/2/2024 4:20:58 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 2/2/2024 4:20:58 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/2/2024 4:20:58 PM SENT
Scott M.Favre C scott@favrepa.com 2/2/2024 4:20:58 PM SENT
Lawyer Wade a lawyerwade@hotmail.com 2/2/2024 4:20:58 PM SENT
Chris C.Pappas cpappas@krcl.com 2/2/2024 4:20:58 PM SENT
Non-Party Witnesso Billy Shepherd bshepherd@spcounsel.com 2/2/2024 4:20:58 PM SENT
Non-Party DoUna Pohl DonaLyann@yahoo.com 2/2/2024 4:20:58 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 2/2/2024 4:20:58 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 2/2/2024 4:20:58 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 2/2/2024 4:20:58 PM SENT
Andrea Mendez andrea@kassab.law 2/2/2024 4:20:58 PM SENT
Lance Kassab lance@kassab.law 2/2/2024 4:20:58 PM SENT
David Kassab david@kassab.law 2/2/2024 4:20:58 PM SENT
Nicholas Pierce nicholas@kassab.law 2/2/2024 4:20:58 PM SENT
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84108335
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to Kassab's Motion to Motdify
Judgment i
Status as of 2/2/2024 4:37 PM CST s
Case Contacts 
Nicholas Pierce nicholas@kassagb.law 2/2/2024 4:20:58 PM SENT
Lance Kassab eserve@kassab.law 2/2/2024 4:20:58 PM SENT
D Kassab david@kassab.law 2/2/2024 4:20:58 PM SENT
L Kassab lance@kassab.law 2/2/2024 4:20:58 PM SENT
Kelly Skelton recaeption@kassab.law 2/2/2024 4:20:58 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/2/2024 4:20:58 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Misty Davis c mdavis@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Harris Wells f hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
David Kassab  david@kassab.law 2/2/2024 4:20:58 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT"
65,2024-01-19,MJNOV,Kassab,Mtn for JNOV and Disregard Jury Findings,"Kassab Defendants' Motion for Judgment Notwithstanding the Verdict and to Disregard Jury Findings, asserting 10 grounds for JNOV (no trade secret, no misappropriation evidence, limitations, unlawful acts doctrine, privilege to disclose, grievance immunity, judicial proceedings privilege, attorney immunity, unrecoverable damages, no causation), plus arguments that conspiracy is preempted by TUTSA and exemplary damages are improper due to non-unanimous Q17 finding","Post-judgment motion filed January 19, 2024, 28 days after entry of the Final Judgment on December 22, 2023. Kassab seeks JNOV on all claims or alternatively on exemplary damages and conspiracy claim. Filed simultaneously with Motion for New Trial.",POST-1,N/A,Phase 5,2024-01-19_MJNOV_Kassab-Mtn-for-JNOV-and-Disregard-Jury-Findings_FILED.pdf,"Judgment notwithstanding the verdict in favor of Kassab on all claims (take-nothing judgment), or alternatively: (1) JNOV on exemplary damages due to non-unanimous Q17 finding; (2) JNOV on conspiracy claim as preempted by TUTSA, eliminating joint and several liability; (3) disregard of jury findings","1/19/2024 3:31 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 83597613
By: Rhonda Momon
Filed: 1/19/2024 3:31 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al. § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al. § 281st JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ MOTION FOR JUDGMCENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JURY FINDINGS
Defendants, Lance Christopher Kassab and Lance Chtristopher Kassab, P.C.
d/b/a The Kassab Law Firm (“Kassab”), files this Motion for Judgment
Notwithstanding the Verdict and to Disregard Jurey Findings and would show as
follows. u
SUMMARY
Pohl’s claims against Kassab are abarred as a matter of law. Therefor the Court
should disregard the findings of the jury and enter a judgment notwithstanding the
verdict in favor of Kassab for aney one of the following reasons:
1. Pohl’s claims are ba
rrfed as a matter of law because the information at
issue is not a trade secret:
• not Pohl’s trade secret because he does not own the information at
issue; l
• not Piohl’s (or anyone’s) trade secret because the information at issue
dooes not have any independent economic value from not being
generally known;
• not Pohl’s (or anyone’s) trade secret because he made no reasonable
measures to keep the subject information secret.
2. Pohl’s claims fail as a matter of law because there is no evidence that
Kassab engaged in regular or willful misappropriation; specifically,
there is no evidence that Kassab knew the information was Pohl’s trade
secret or had been acquired by improper means. The jury’s finding that
those associated with Precision, did not misappropriate anything
precludes liability against Kassab. k
3. Pohl’s claims are barred by limitations because they accruedC, if at all, in
the summer of 2014 when Precision engaged in the first acts of alleged
misappropriation, or at the latest in the spring ofi 2015, when both
Precision and Favre engaged in additional acts of alleged
misappropriation.
4. Pohl’s claims are barred by the unlawful acts doctrine because Pohl’s
acts are inexorably intertwined withl his crimes.
5. Pohl’s claims are barred becauMse Kassab had the privilege to use the
client-related information to disclose to those clients1 that Pohl had
committed unlawful actiivities.
6. Pohl’s claims are barred as a matter of law to the extent they are
predicated on oKassab’s filing of a grievance against Pohl for which
Kassab has labsolute and unqualified immunity.
7. Pohl’s cilaims are barred by the judicial proceedings privilege because
they arise out of communications that Kassab made to prospective
clients (solicitation letters), and to actual judicial proceedings (the
barratry litigation and grievance process).
1 We will use “clients” to refer to actual, potential or rejected clients.
8. Pohl’s claims are barred by attorney immunity because an attorney
cannot recover against another attorney for conduct the second attorney
engaged in as part of the discharge of his duties as a lawyer representing
clients. k
9. Pohl’s claims fail because his purported damages are unrecCoverable as
a matter of law, or because Pohl presented no evidence to support any
actual losses. i
10. Pohl’s claims fail for lack of causation because Pohl’s barratry was the
sole cause of his damages;, Kassab conduct did not cause damages to
Pohl.
Even if the Court does enter judgment in flavor of Kassab on the preceding grounds,
it should at least enter judgment notMwithstanding the verdict in favor of Kassab on
exemplary damages because predicate findings for exemplary damages were not
answered by the jury unanimiously and on Pohl’s conspiracy claim because it is
preempted by TUTSA.2
o ARGUMENT
A trial courtl may disregard a jury's findings and grant a motion for judgment
notwithstandinig the verdict (JNOV) when a directed verdict would have been proper.
See TEX. R. CIV. P. 301; Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74,
77 (Tex. 2000). “A JNOV should be granted when the evidence is conclusive and one
party is entitled to recover as a matter of law or when a legal principle precludes
2 Texas Uniform Trade Secrets Act.
recovery.” B&W Supply, Inc. v. Beckman, 305 S.W.3d 10, 15 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied); United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914,
916 n.4 (Tex. App. – Houston [14th Dist.] 2000, pet. denied) (“A court should grant a
motion for judgment notwithstanding the verdict if a legal principle prekvents a party
from prevailing on its claim.”). For the reasons enumerated belowC, the Court should
enter judgment notwithstanding the verdict because Pohl’s claims against Kassab
fail as a matter of law. i
I. Pohl’s claims against Kassab are barred as a matter of law
because the information at issue eis not a trade secret
owned by Pohl.
“To bring a successful TUTSA claim, the claimant must first show that it owns
a trade secret in the information it sleeks to protect.” Title Source, Inc. v.
HouseCanary, Inc., 612 S.W.3d 517, 5M27 (Tex. App.—San Antonio 2020, pet. denied);
TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a), (6) (requiring claimant to be a “owner”
of the trade secret informaition at issue). The information must also derive
independent economic value from not being generally known to, and not being readily
ascertainable througho proper means by, another person who can obtain economic
value from the d
islclosure or use of the information. TEX. CIV. PRAC. & REM. CODE §
134A.002(6). Aind it is axiomatic that “the subject matter of a trade secret must be
secret.” J.C. Kinley Co. v. Haynie Wire Line Serv., Inc., 705 S.W.2d 193, 198 (Tex.
App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.); TEX. CIV. PRAC. & REM. CODE §
134A.002(6) (defining “trade secret” to mean certain types of information in which
the owner “has taken reasonable measures under the circumstances to keep the
information secret”). The information at issue here is not Pohl’s trade secret as a
matter of law because Pohl is not the owner of the information, the information does
not derive independent economic value to Pohl from not being generally known, and
the information is not secret, nor did Pohl take reasonable measurkes under the
circumstances to keep the information secret. C
Pohl is not the owner of the attorney-client contracts between him and his
clients. Rather, attorney-client contracts are part of the cliient’s file which is owned
by the client, not the lawyer. See In re George, 28 S.W.3d 511, 516 (Tex. 2000) (“The
attorney is the agent of the client, and the work product generated by the attorney in
representing the client belongs to the client.”) (emphasis added); In re McCann,
422 S.W.3d 701, 704-705 (Tex. Crim. Alpp. 2013) (“[T]he Texas Supreme Court
recognized explicitly that an attorneyM is an agent of his client and implicitly that a
client owns the contents of his or her file.”). The fact that Pohl can assert a lien
over the client file does not miean he is the rightful, legal, or equitable owner of the
contracts. See In re McCann, 422 S.W.3d 701, 706 (Tex. Crim. App. 2013) (noting that
“a lien, by its definitioon, is a transitory interest in someone else's property and,
therefore, the attolrney asserting such a lien never owns the property at issue, the
client owns thei file by implication (if the attorney does not)”) (emphasis added). Pohl,
as an agent, cannot claim trade secret protection in property belonging to his clients,
the principals. See RMS Software Dev. v. LCS, Inc., No. 01-96-00824-CV, 1998 Tex.
App. LEXIS 1053, at *11 (Tex. App.—Houston [1st Dist.] Feb. 19, 1998, no pet.)
(unpublished) (“RMS is not the owner of the trade secret involved in this lawsuit,
thus it has no standing to sue for misappropriation of that secret.”).
Moreover, the information is not a trade secret because Pohl offered no
evidence at trial that the attorney-client contracts or list of actual, kpotential, or
rejected clients “derives independent economic value, actual or pCotential, from not
being generally known to, and not being readily ascertainable through proper means
by, another person who can obtain economic value from thie disclosure or use of the
information.” TEX. CIV. PRAC. & REM. CODE § 134A.0
02(6)(B). To meet his burden,
Pohl was required to prove that the contracts or compilation of client contact
information provided him with a “competitive advantage.” Fmc Techs. v. Murphy, No.
01-21-00455-CV, 2023 Tex. App. LEXIS 59l84, at *62 (Tex. App.—Houston [1st Dist.]
Aug. 10, 2023, pet. filed) (mem. op.). PMohl failed to plead and present any evidence to
demonstrate how the information at issue provided him with a competitive
advantage.3 i
The information at issue has no demonstrated independent value to Pohl
because, regardless ofo its disclosure, Pohl can still use the client-related information.
Pohl’s only intereslt was to keep the identities of individuals whom Pohl unlawfully
3 Nor could nhe because as a matter of law, Pohl cannot have a “competitive advantage” by using the
client-relaUted information to the exclusion of the potential, actual and rejected clients. See ERI
Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 872 (Tex. 2010) (“if the fiduciary … acquires any
interest adverse to his principal, without a full disclosure, it is a betrayal of his trust and a breach of
confidence, and he must account to his principal for all he has received.”); TEX. R. PROF’L COND.
1.05(b)(4) (lawyer may not use confidential information of a former client to the client’s disadvantage
or use “privileged information of a client for the advantage of the lawyer or of a third person, unless
the client consents after consultation.”); id. at 1.08(f) (generally prohibiting a lawyer from “acquir[ing]
a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for
a client”).
solicited from being disclosed to lawyers like Kassab who could inform those
individuals about Pohl’s unlawful solicitation. That interest is not only against public
policy that favors disclosure of criminal conduct,4 but it is insufficient to qualify as
independent economic value under TUTSA. “Without more, … a comkbination [of
information] does not qualify as a trade secret; it must also provCide ‘a competitive
advantage.’” Fmc Techs., 2023 Tex. App. LEXIS 5984, at *62. Pohl presented no
evidence at trial that the information at issue provided ihim with a competitive
advantage.
Moreover, there is no evidence that Pohl took “reasonable measures under the
circumstances to keep the information secret.” TEX. CIV. PRAC. & REM. CODE §
134A.002(6). The contracts that Pohl had wlith his actual, potential or rejected clients
are not secret; they are not even conMfidential or privileged as a matter of law. See
Landry v. Burge, No. 05-99-01217-CV, 2000 Tex. App. LEXIS 6606, at *18 (Tex.
App.—Dallas Oct. 2, 2000, no piet.) (mem. op.) (recognizing “the general rule that
a client's identity is not privileged” or considered “confidential
information” undero the disciplinary rules); Borden, Inc. v. Valdez, 773 S.W.2d
718, 720-21 (Tex. lApp.—Corpus Christi 1989, no writ) (noting that “the terms and
4 “[P]ublic pnolicy strongly favors exposure of crime.” Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71,
73 (Tex. AUpp.—Corpus Christi 1991, writ denied). Kassab had an ethical obligation to notify the State
Bar and the affected individuals of Pohl’s misconduct under the rules of ethics and as an officer of the
court. See Tex. Disc. R. Prof’l Cond. 8.03(a) (“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.”); id. at Cmt. 1 (“Reporting a violation is especially important
where the victim is unlikely to discover the offense.”). Kassab was doing what Pohl should have done,
disclosing misconduct to the individuals. See Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied) (“A fiduciary has an affirmative duty to make a full and
accurate confession of all his fiduciary activities, transactions, profits, and mistakes.”).
conditions of an attorney's employment and the purpose for which an attorney has
been engaged” are considered “nonconfidential matters”); Jim Walter Homes, Inc. v.
Foster, 593 S.W.2d 749, 752 (Tex. Civ. App.—Eastland 1979, no writ) (“The general
rule appears to be that the fee arrangement is not privileged.”); see aklso Jordan v.
Sony BMG Music Entm't, Inc., No. H-06-1673, 2008 U.S. Dist. LECXIS 47415, at *5
(S.D. Tex. 2008) (recognizing that a attorney-client contract “is not privileged.”);
Early, Ludwick & Sweeney, LLC v. Steele, 1998 Conn. Siuper. LEXIS 2256, at *6
(Super. Ct. 1998) (concluding list of client contact information was not a trade secret
owned by a law firm because the clients’ identities were “known to the defendants in
their respective lawsuits.”).
But even if the contracts or lists arel confidential, “confidential information is
not necessarily a trade secret.” ReynMolds v. Sanchez Oil & Gas Corp., No. 01-18-
00940-CV, 2023 Tex. App. LEXIS 8903, at *49 (Tex. App.—Houston [1st Dist.] Nov.
30, 2023, no pet. h.) (mem. op.i on rehearing); Early, Ludwick & Sweeney, LLC, 1998
Conn. Super. LEXIS 2256, at *7 (“The efforts made by [the law firm] to maintain
secrecy of the alleged otrade secrets appear to be no more than the usual precautions
taken by a law firlm to ensure clients' files remain confidential. Not all confidential
information mieets the definition of trade secret.”). Pohl alleged that he “made clear
to Precision and its representatives the confidential and nature of the above listed
information” and that “Precision and its representatives expressed their
understanding of the confidential and proprietary nature of the information and that
the information belonged to Pohl.”5 Pohl did not plead that he told Precision that the
information was his trade secrets.
Moreover, Pohl presented no evidence that the information was not generally
known, or was not readily ascertainable through proper means. The idekntity of Pohl’s
clients was even known to third parties, like the defendants in thCe underlying cases
and their lawyers. And the uncontroverted testimony at trial established that the list
of clients was created by Precision, not by Pohl, and was voluintarily produced to Scott
Favre, Tina Nicholson and several third parties6 in August 2016 as part of discovery
during the Mississippi litigation. Moreover, this information was produced to others
in discovery before the information was provided to Kassab – without a protective
order, confidentiality stamp, confidentialitly agreement, or anything else prohibiting
its disclosure. Furthermore, Pohl nevMer filed an injunction or any other document in
the Mississippi litigation to prevent disclosure of what he claims are his trade secrets.
Finally, the “Master List” of Piohl’s alleged clients has been available on PACER for
the last six years and is still there today.
Accordingly, anoy evidence that Pohl took reasonable measures under the
circumstances to kleep the information secret is “so weak as to do no more than create
a mere surmisie, [and is therefore] no more than a scintilla and, thus, no evidence.”
Beckman, 305 S.W.3d at 16; Sci. Mach. & Welding, Inc. v. Rose, No. 03-20-00564-CV,
5 Plaintiffs’ First Amended Petition, ¶ 25.
6 Those parties included, among others, Nathan Farmer, Charles Mikhail, Carl Hagwood, James
Welch, Scott Walker, Steve Seymour, Kirk Ladner, Ciyndi Rusnak, Marian Mchehee, Yousef
Nasrallah, Trevor Brock and Robin Gross.
2022 Tex. App. LEXIS 1884, at *6 (Tex. App.—Austin Mar. 23, 2022, no pet. h.) (mem.
op.) (trade secret status was waived because, “despite having the opportunity under
a protective order to designate the drawings as ‘confidential’ during this litigation,
[the party] failed to do so and produced them without such designationk.”); Baxter &
Assocs., L.L.C. v. D&D Elevators, Inc., No. 05-16-00330-CV, 2017C Tex. App. LEXIS
1352, at *28 (Tex. App.—Dallas Feb. 15, 2017, no pet.) (mem. op.) (information in
question was not the subject of any efforts to maintain its secirecy when “the ‘customer
lists’ in question are not labeled as confidential or proprietary”); Stemtech Int'l Inc. v.
Drapeau, No. 1:16-cv-918-RP, 2016 U.S. Dist. LEXIS 178591, at *35 (W.D. Tex. 2016)
(“public availability of [the information] makes them ineligible for trade secret
protection … when disclosure is made [andl] … the persons to whom the information
is disclosed are under no obligation toM keep it confidential.”).
Because Pohl is not the owner of a “trade secret” as a matter of law, the Court
should enter a JNOV in favori of Kassab. See Glob. Water Grp., Inc. v. Atchley, 244
S.W.3d 924, 931 (Tex. App.—Dallas 2008, pet. denied) (trial court did not err in
granting judgment onotwithstanding the verdict on a corporation's claims of
misappropriation olf trade secrets given that a trade secret was not shown).
II. Piohl’s claims fail as a matter of law because there is no
oevidence Kassab engaged in misappropriation, either
regular or willful.
Pohl alleged that Favre and Precision illegally misappropriated trade secrets
from him, and that Kassab subsequently committed indirect misappropriation by
10
acquiring illegally misappropriated trade secrets from Favre and Precision.7
Although Pohl originally sued Precision, he non-suited his claims against Precision.
Nevertheless, Precision was designated as a responsible third party, and defined in
the charge to include Precision’s former owners (Scott Walker, Steve kSeymour and
Kirk Ladner) prior to May 12, 2015, and Favre after May 12, 201C5.8 When the jury
was asked whether Precision misappropriated trade secrets from Pohl, it found that
Precision did not.9 In consistent fashion, the jury answereid “0” in Question 4 when
asked to assign what percentage of the “fault that caused the injury” was attributable
to Precision.10 These findings demonstrate that there is no evidence that Kassab
could have engaged in regular or willful misappropriation because he obtained the
information legally from parties who did nlot misappropriate it.
To be liable for misappropriatiMon based upon the acquisition of a trade secret,
Kassab must “know[] or ha[ve] reason to know that the trade secret was acquired by
improper means” or “derived firom or through a person who used improper means to
7 Plaintiff’s First Amendedp Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s proprietary ando confidential information and property …which included information
about and/or communicCations with as many as 10,000 or more of Pohl’s clients/prospective clients.
Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers,
and misappropriateda electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis addedc); iid. at ¶ 40 (“Favre, Precision, and Nicholson willfully and maliciously
misappropriated iPohl’s trade secrets by acquiring them through improper means—specifically, by
theft.”); id. at o¶ 41 (“Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl’s
trade secretns by disclosing them via sale to Kassab and Montague (who purchased the trade
secret inUformation knowing that it had been stolen) without the express or complied consent of
Pohl.”) (emphasis added); id. at ¶ 42 (“All Defendants willfully and maliciously misappropriated Pohl’s
trade secrets by using them without the express or implied consent of Pohl.”).
8 See Verdict, at Definitions.
9 Verdict, Question 2(a)(3) and 2(b)(3).
10 Verdict, Question 4(3).
11
acquire the trade secret.” TEX. CIV. PRAC. & REM. CODE §§ 134A.002(3)(A), (B)(ii)(a).
But here, the jury determined that Precision did not engage in any
misappropriation.11 And, if Precision and its former owners did not engage in
misappropriation by wrongfully acquiring the information and thenk selling it to
Favre, then Favre could not have acquired the information by imCproper means. In
other words, the jury’s finding that Precision did not misappropriate anything —
meaning it either owed no duty to Pohl or breached no dutyi to Pohl when it provided
Pohl's alleged information to Favre and Kassab — precludes liability against Kassab
for indirect misappropriation.
Even if liability against Kassab is not precluded by the jury’s finding of no
liability on Precision, there is no evidence thlat Kassab knew the information had been
acquired by improper means. See TEX M. CIV. PRAC. & REM. CODE § 134A.002(3)(A). The
term “improper means” “includes bribery, misrepresentation, breach or inducement
of a breach of a duty to maintiain secrecy, to limit use, or to prohibit discovery of a
trade secret, or espionage through electronic or other means.” Id. at 134A.002(2). The
testimony was that Foavre purchased Precision, and that the principals of Precision
certified in purchalse documents that they owned the information at issue. Favre then
provided that iinformation to Kassab, after certifying to Kassab that the information
belonged to Precision and not to Pohl. Thus, there was no evidence that Kassab knew
or had reason to know that the information was a trade secret owned by Pohl as
opposed to information owned by Precision. Nor was there evidence to establish that
11 Verdict, Question 2(a)(3) and 2(b)(3).
12
the information was obtained by Favre or Precision through improper means. Nor
was there any evidence to establish that the contracts or any other information in a
client file is owned by anyone other than the client, if not owned by Precision.
III. Pohl’s claims are barred as a matter of law by limitkations
because they accrued, if at all, in the summer of 2e014 and
this suit was filed in 2018, more than three yearCs later.
“A person must bring suit for misappropriation of trade secrets not later than
three years after the misappropriation is discovered or by tihe exercise of reasonable
diligence should have been discovered.” TEX. CIV. PRAsC. & REM. CODE 16.010(a). “A
misappropriation of trade secrets that continues over time is a single cause of
action and the limitations period described by Subsection (a) begins running
without regard to whether the misaplpropriation is a single or continuing
act.” Id. at § 16.010(b) (emphasis addeMd). In other words, TUTSA “explicitly precludes
treating trade secret misappropriation as a continuing tort.” Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 451 (5ith Cir. 2007).
“A cause of action for trade-secret misappropriation accrues when the trade
secret is actually usedo.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721
(Tex. 2016). Pohl lalleged that Precision “stole physical copies of certain of the
information, sitole Pohl’s computers, and misappropriated electronic data to which
they had access through Precision’s work for Pohl” and then “secretly sold Pohl’s
stolen confidential information and property to Kassab and Montague.”12 The
evidence established that the alleged theft by Precision and its former owners,
12 Plaintiffs’ First Amended Petition, at ¶ 21.
13
Walker, Ladner and Seymore, occurred in June 2014 and Pohl knew that the files
and materials he claims are his trade secrets had been misappropriated on that date.
Precision and its former owners used the client-related information in the Mississippi
litigation to file claims against Pohl. See id. (“Use of the trade skecret means
commercial use by which the offending party seeks to profit froCm the use of the
secret.”). That alleged act of misappropriation, which occurred in June 2014, is when
the cause of action accrued for purposes of the statute of l
imiitations. TEX. CIV. PRAC.
& REM. CODE 16.010(b); Sw. Energy, 491 S.W.3d at 72
1.
Even if the cause of action had not accrued in 2014, it unquestionably accrued
when Precision’s former owners profited from the alleged trade secret information by
selling Precision and its files, including thel alleged trade secret information, to Favre
in May 2015. See Sw. Energy, 491 MS.W.3d at 722 (defining “use” to mean “any
exploitation of the trade secret that is likely to result in injury to the trade secret
owner or enrichment to the [nion-trade secret owner]”) (emphasis added). Thus, Pohl
was required to file his cla
ims against Kassab before May 2018, at the latest. See TEX.
CIV. PRAC. & REM. COoDE 16.010(a).
Although Plohl consulted with an attorney about pursuing claims against
Kassab in Junie 2017,13 Pohl did not file this lawsuit until August 2018, alleging
Kassab, Favre and Precision “engaged in a scheme pursuant to which they illegally
obtained, maintained, and used trade secrets and other confidential information and
13 See Plaintiffs’ Trial Exhibit 124 at November 13, 2017 Invoice.
14
property belonging to Pohl.”14 This was more than three years after Precision’s
owners sold Pohl’s purported trade secrets to Favre in May 2015.
Pohl alleges that his claim against Kassab did not accrue until November 2016,
when Favre entered into an expert retainer agreement with Kassabk which Pohl
characterizes as an agreement to purchase the purported tradeC secrets. But the
transfer or use of already-misappropriated trade secrets by a purported co-
conspirator does not re-start the limitations clock. See TEDXi. CIV. PRAC. & REM. CODE
16.010(a); Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 145 (Tex.
2019) (rejecting the “last-overt-act accrual rule” and concluding that conspiracy claim
for misappropriation of trade secrets accrues against all co-conspirators “when the
underlying tort accrues.”) (citing with applroval Harang v. Aetna Life Ins. Co., 400
S.W.2d 810, 813 (Tex. Civ. App.—MHouston 1966, writ ref'd n.r.e.) (concluding
limitations runs from when the injury occurs and therefore conspiracy claim against
the late-added co-conspiratoris was time-barred)). In other words, “[a] conspiracy
claim based on an earlier underlying tort does not re-accrue when the co-conspirators
agree to commit a secoond tort or make another overt act.” Agar Corp., 580 S.W.3d at
145. Accordingly, Plohl’s claims against Kassab are barred by limitations. See id.
IV. Piohl’s claims are barred by the unlawful acts doctrine
obecause Pohl’s acts are inexorably intertwined with his
crimes.
The unlawful acts doctrine bars a plaintiff from recovery if, at the time of
injury, he was engaged in an unlawful act that was inextricably intertwined with the
14 Plaintiffs’ Original Petition, ¶ 2
15
claim and the alleged damages would not have occurred but for the illegal act. Dugger
v. Arredondo, 408 S.W.3d 825, 827-28 (Tex. 2013). Although Dugger concluded that
the unlawful acts doctrine has been preempted by the statutory proportionate
responsibility scheme in “personal injury and wrongful death cases,” ikd. at 833, the
doctrine remains viable in all other types of cases, including claimCs against lawyers.
For instance, “a plaintiff [is] precluded from recovering damages in the legal
malpractice context due to the plaintiff's underlying criminail conduct.” Id. (collecting
cases). In those cases, “a client's criminal conduct, as a matter of law, was the sole
proximate or producing cause of the client's conviction, and . . . . the client could not
bring a legal malpractice claim unless she had been exonerated from the criminal
conviction.” Id. (citing Peeler v. Hughes &l Luce, 909 S.W.2d 494 (Tex. 1995)). The
Court reasoned, “[b]ecause the clientM's conduct, and not the attorney's, is the sole
cause of any injury resulting from conviction, the plaintiff cannot satisfy the
causation element of a legal mialpractice claim absent exoneration.” Id.
The same reasoning applies here, where Pohl’s wrongful conduct is the sole
cause of his purportedo injuries. Question 3 asked whether “the wrongful conduct of
Pohl, if any, contrlibute to the injury, if any, found by the jury,” to which the jury
answered “yesi.” Because the jury concluded that Pohl’s wrongful conduct (illegal
barratry and unauthorized practice of law) “contributed to” Pohl’s injury (attorney’s
fees incurred defending the barratry litigation and grievances), Pohl cannot recover
anything from Kassab. See Dugger, 408 S.W.3d at 839 (“where it is shown that, at the
time of the injury, the plaintiff was engaged in the denounced or illegal act, the rule
16
is, if the illegal act contributed to the injury he can not recover”); Truyen Luong
v. McAllister, No. 01-17-00198-CV, 2018 WL 3651103, at *4 (Tex. App.—Houston [1st
Dist.] Aug. 2, 2018, pet. denied) (barring claims arising out of solicitation of BP clients
and unlawful fee-sharing arrangements); Denson v. Dallas Cnty. Credkit Union, 262
S.W.3d 846, 855 (Tex. App.—Dallas 2008, no pet.) (unlawful acCts doctrine barred
claims arising from illegal sale of automobiles); Sharpe v. Turley, 191 S.W.3d 362
(Tex. App.—Dallas 2006, pet. denied) (precluding plaintiiff from recovering from
attorney because plaintiff's conduct forming the basis of the underlying civil fraud
claim was unlawful); Farha v. Elam, 385 S.W.2d 692, 695 (Tex. Civ. App.—Fort
Worth 1964, writ ref’d n.r.e.) (denying recovery for claimant who practiced
architecture without a license and then suled his partner in the architectural firm).
Since the jury found that Pohl’s wrongMful conduct contributed to his injury, he cannot
recover.
V. Pohl’s claims arie barred because Kassab had the privilege
to use the pufrported trade secrets – the client-related
information – to disclose to those clients that Pohl had
committed unlawful activities.
The jury’s finding that Pohl engaged in wrongful conduct contributing to his
injury also suppiorts Kassab’s claims of privilege, which is found in the Texas Rules
of Evidenceo, the Defense of Trade Secrets Act, and the common-law.
The Texas rules of evidence provide that Kassab has a privilege to reveal even
trade secrets if “nondisclosure will tend to conceal fraud or otherwise work injustice.”
TEX. R. EVID. 507(a). Even if client-related information could be considered Pohl’s
trade secrets (and it cannot), the evidence established that Kassab used that
17
information to make disclosure to the clients, to the Texas courts through the
barratry litigation, and to the State Bar of Texas through the grievances, about Pohl’s
ongoing illegal barratry. Nondisclosure of Pohl’s illegal activity not only would have
worked an injustice to the clients, but also would have violated Kassab’ks professional
obligations to the public. See TEX. DISC. R. PROF’L COND. 8.03(a) C(“a lawyer having
knowledge that another lawyer has committed a violation of applicable rules of
professional conduct … shall inform the appropriate discipliinary authority.”).
Under the Defense of Trade Secrets Act, Kassab cannot be held civilly liable
under TUTSA for “the disclosure of a trade secret that is made (i) in confidence to a
Federal, State, or local government official, either directly or indirectly, or to an
attorney; and (ii) solely for the purpose of lreporting or investigating a suspected
violation of law; or is made in a comMplaint or other document filed in a lawsuit or
other proceeding, if such filing is made under seal.” 18 U.S.C. § 1833(b)(1)(A)-(B)
(emphasis added). i
Moreover, “trade secret law permits disclosures relevant to public health or
safety, commission ofo crime or tort, or other matters of substantial public concern.”
Bartnicki v. Vop a pler, 532 U.S. 514, 539 (2001); RESTATEMENT (THIRD) OF UNFAIR
COMPETITION
§i 40, cmt. c (1995) (“A privilege is likely to be recognized, for example,
in connection with the disclosure of information that is relevant to public health or
safety, or to the commission of a crime or tort, or to other matters of substantial public
concern.”); RESTATEMENT OF THE LAW, TORTS § 757, cmt. d (“A privilege to disclose
may also be given by the law, independently of the other's consent, in order to promote
18
some public interest.”); Alderson v. United States, 718 F. Supp. 2d 1186, 1200 (C.D.
Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012) (“[T]here simply cannot be any trade
secret about ongoing illegality.”); Sys. Operations, Inc. v. Sci. Games Dev. Corp., 425
F. Supp. 130, 136 (D.N.J. 1977) (“disclosure of trade secret informationk may itself be
privileged.”). C
Here, the evidence established that Kassab used the purported trade secret
information – the client’s identities and contact informiation – to report Pohl’s
misconduct to the State Bar of Texas and to inform those very individuals that Pohl
may have committed unlawful barratry. Kassab’s disclosure of the information to
Pohl’s former clients, the courts, and the State Bar falls within these privilege
doctrines. The jury’s finding that Pohl enlgaged in wrongful conduct demonstrates
that these doctrines should be appliedM to bar Pohl’s claims against Kassab.
VI. Pohl’s claims or damages are barred as a matter of law to
the extent they aere predicated on Kassab’s participation
in the attorneyi disciplinary system for which Kassab has
absolute and ufnqualified immunity.
Rule 17.09 of the Texas Rules of Disciplinary Procedure provides immunity to
persons filing grievance procedures: “No lawsuit may be instituted against any
Complainant or iwitness predicated upon the filing of a Grievance or participation in
the attorneoy disciplinary and disability system . . . . The 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 . . . in connection with [the]
prosecution of disciplinary actions” are absolutely immune, so long as they are
“predicated upon” participation in the attorney disciplinary system. Crampton v.
19
Farris, 596 S.W.3d 267, 274-75 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
Pohl’s claims against Kassab are “predicated” upon Kassab’s filing of
grievances against Pohl or participation in the attorney disciplinary system. Pohl
alleged that Kassab used the attorney-client contracts and the list idenktifying Pohl’s
potential, actual and rejected clients to solicit them to file claiCms and grievance
“complaints” against Pohl.15 Pohl testified that Kassab used the purported trade
secret information to initiate grievances against Pohl, aind he asked the jury to
compensate him for the attorney’s fees he incurred defending against those
grievances.16 The jury found that the attorney’s fees incurred by Pohl in the grievance
proceedings were the “proximate cause” the alleged misappropriation.17 Because
Pohl’s lawsuit is “predicated” upon Kassab’ls participation in the attorney disciplinary
system, Kassab has “absolute and unqMualified” immunity that “extends to all actions
at law or in equity.” TEX. R. DISC. P. 17.09; Crampton, 596 S.W.3d at 274-75
(“immunity likewise extendsi to all actions.”). Thus, Kassab has absolute and
unqualified immunity.
VII. Pohl’s colaims are barred by the judicial proceedings
privilege because they arise out of communications that
Kasslab made to prospective clients (solicitation letters)
andi actual judicial proceedings (the barratry litigation
aind grievance process).
“The judicial-proceedings privilege is an absolute privilege that covers any
15 Plaintiffs’ First Amended Petition, at ¶¶ 29, 32.
16 Verdict, at Question 7(1)(e), (f).
17 Verdict, at Question 7(1)(e), (f).
20
statement made by the judge, jurors, counsel, parties or witnesses, and attaches to
all aspects of the proceedings, including statements made in open 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.W.3d 40, 46 (Tex. 20k21) (internal
quotations omitted). It attaches even to “communications preliminCary to a proposed
judicial proceeding” if “the communication has some relation to a proceeding that is
actually contemplated in good faith and under serious consiideration by the witness
or a possible party to the proceeding.” Id. at 48-49. “Even in the pre-suit context,
… the privilege protects communications that are themselves preparatory
to the lawsuit.” Id. (emphasis added). The privilege protects all communications
that are “necessary to set the judicial mlachinery in motion.” Id. at 50 (quoting
RESTATEMENT (SECOND) OF TORTS § 5M86 cmt. a) (emphasis added).
“Although most cases addressing the judicial communication privilege involve
claims of libel or slander, Texais courts have consistently applied the privilege
to claims arising out of communications made in the course of judicial
proceedings, regardoless of the label placed on the claim.” Laub v. Pesikoff, 979
S.W.2d 686, 690 (Tlex. App. – Houston [1st Dist.] 1998, pet. denied) (emphasis added).
Thus, the priviilege applies to any cause of action “when the essence of a claim is
damages that flow from communications made in the course of a judicial
proceeding.” Id. at 691 (emphasis added).
Here, Pohl’s alleged damages indisputably “flow from” communications that
Kassab made in the barratry litigation and grievance proceedings. Pohl sued Kassab
21
alleging he “solicited … clients/prospective clients to act as plaintiffs … to bring cases
against Pohl for alleged barratry and other claims.”18 Pohl testified to these
allegations, stating Kassab used the purported trade secret information to acquire
clients and file barratry proceedings against Pohl, which damaged his kreputation in
the community and “ruined him.”19 Pohl asked the jury to award hiCm “attorney’s fees,
expenses, and costs that Pohl has incurred in connection with the … lawsuits,
appeals, and grievances that Kassab filed,” and the jury didi.20
Because Pohl’s alleged damages “flow from” communications that Kassab
made in the barratry litigation and grievance proceedings, Pohl’s claims against
Kassab are barred regardless of their label. See Laub, 979 S.W.2d at 690 (holding
privilege applied to claims for “intentionall interference, civil conspiracy, intentional
infliction of emotional distress, negligMence, and constitutional violations”); Tex. Mut.
Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-00807-CV, 2006 Tex. App. LEXIS
2001, at *27-28 (Tex. App.—Hoiuston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. op.)
(privilege applied to statutory claim under Texas Insurance Code because “although
[plaintiff] did not pleoad defamation, its theory of damages was that its clients,
creditors, and bonlding companies abandoned it, in part, because of the [insurer's]
allegations andi assertions . . . made in the course of this judicial proceeding”).
18 Plaintiff’s First Amended Petition, at ¶ 29.
19 Pohl testified that after the barratry proceedings were filed, he was considered a “tar baby” and
nobody wanted to do business with him.
20 Verdict, at Question 7.
22
VIII. Pohl’s claims are barred by attorney immunity because an
attorney does not have a right of recovery against another
attorney arising from conduct the second attorney
engaged in as part of the discharge of his duties as a
lawyer.
Under the doctrine of attorney immunity, “an attorney does not hkave a right of
recovery, under any cause of action, against another attorney arCising from conduct
the second attorney engaged in as part of the discharge of his duties in representing
a party.” Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houiston [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 “focuses on the kind of conduct at issue
rather than the alleged wrongfulness of slaid conduct.” Id. “That is, a lawyer is no
more susceptible to liability for a giMven action merely because it is alleged to be
fraudulent or otherwise wrongful.” Id. “Merely labeling an attorney’s conduct
‘fraudulent’ does not and shoulid 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 excoepted from the protections of attorney civil immunity when the
conduct alleged isl connected with representing a client in litigation.” Bethel v.
Quilling, Selanider, 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 be wrongful but still fall within the scope of client representation”).
Kassab’s conduct that forms the basis of Pohl’s claims falls squarely within the
confines of attorney immunity, regardless of whether it is alleged to have violated the
23
TUTSA, because that statute does not expressly repudiate the defense. Taylor v.
Tolbert, 644 S.W.3d 637, 642 (Tex. 2022) (attorney immunity applied to statutory
claim because the statute did “not expressly, or by necessary implication, abrogate
the immunity defense”). Pohl sued Kassab because he allegedly used thke purportedly
“stolen and misappropriated confidential information … to contacCt and solicit Pohl’s
clients/prospective clients”21 in order to “bring cases against Pohl for alleged barratry
and other claims.”22 The acquisition of clients and filing of liawsuits are actions taken
“to facilitate the rendition of legal services” that fall within attorney immunity.
Youngkin, 546 S.W.3d at 682 (recognizing that “the complained-of actions included
filing lawsuits and pleadings” fell within the doctrine of attorney immunity); Clayton
v. Oldcastle Materials Tex., Inc., No. 09-18-l00063-CV, 2019 Tex. App. LEXIS 1112, at
*12, 15 (Tex. App.—Beaumont Feb. 1M4, 2019, no pet.) (mem. op.) (applying attorney
immunity to attorney “selling his legal services to the City as a potential client” and
subsequent conduct which “ocicurred in the course of his undertaking to represent”
those clients).
The fact that Koassab is alleged to have committed the misconduct before any
litigation is immalterial because “attorney immunity applies to claims based on
conduct outsidie 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 (concluding that
attorney was immune from conduct that occurred after litigation had ended). In other
21 Plaintiffs’ First Amended Petition, ¶ 26.
22 Plaintiffs’ First Amended Petition, ¶ 29.
24
words, Pohl’s characterization of Kassab’s activities as part of a business transaction
that occurred before litigation does not negate attorney immunity because Kassab
engaged in the conduct as part of his ultimate provision of legal services to his clients.
See Haynes & Boone, 631 S.W.3d at 78-79, 81 (applying attorney immunikty to lawyer’s
conduct committed as part of business transaction). In an appeaCl arising from this
case the court of appeals opined that all of Kassab’s conduct that Pohl complains
about “arose out of a commercial transaction involiving 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).
Question 6, the attorney immunity question, asked “Did Kassab acquire or use
Pohl’s trade secret while in an attorney clielnt relationship and attempting to provide
legal services in that relationship iMnvolving the unique office professional skill,
training and authority of an attorney?”23 Although the jury answered “no” to this
question, there is no evidence ito support that finding.
The evidence demonstrated that on November 11, 2016, Kassab entered into a
joint venture agreemeont with other lawyers to investigate and pursue barratry claims
against Pohl. The luncontroverted evidence was that Kassab obtained his first client
at least by Febiruary 2017 and that Kassab continued to use the alleged trade secret
information after this date to acquire more plaintiffs to bring four barratry lawsuits
against Pohl on behalf of more than 400 of Pohl’s former and potential clients. If the
attorney-client contracts and identities of Pohl’s clients are Pohl’s trade secrets, the
23 Verdict, Question 6. As discussed in Kassab’s Motion for New Trial, the Court erred by including
the language “while in an attorney client relationship” in this question.
25
evidence established that Kassab “used” that information while in an attorney-client
relationship with his clients because that information was “used” to file and pursue
the barratry claims. The evidence conclusively proved that Kassab used client contact
information to send notification letters to victims of Pohl’s barratry schkeme through
the middle of 2017, while he was in attorney-client relationshipsC with hundreds of
clients beginning in February 2017. Therefore, there is no evidence to support the
jury’s finding that Kassab did not use client-related informaition while in an attorney-
client relationship and the jury’s answer should be disregarded.
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 liable for conduct
which was “criminal in nature” because it wlas committed while discharging duties to
client); Highland Capital Mgmt., LPM v. Looper Reed & McGraw, P.C., No. 05-15-
00055-CV, 2016 Tex. App. LEXIS 442, at *10-11 (Tex. App.—Dallas Jan. 14, 2016,
pet. denied) (mem. op.) (applyiing attorney immunity to claim that attorney engaged
in “malicious conduct with respect to its illegal acquisition, retention, use, and
threatened disclosureo of [the plaintiff’s] proprietary and confidential information”
that “it knew to ble stolen and proprietary in furtherance of its scheme to extort,
slander, and diisparage [the plaintiff]” and “refusing to return and cease use of [the
plaintiff’s] proprietary information”).
26
IX. Pohl’s claims fail as a matter of law because his purported
damages are unrecoverable as a matter of law or because
Pohl presented no evidence of actual loss.
Pohl’s has no recoverable damages against Kassab because TUTSA does not
allow attorney’s fees from other litigation as “actual loss” damagkes, and Pohl
presented no evidence of fair market value or any other actual lossC at trial.
A. Pohl cannot recover attorney’s fees from other
litigation as actual damages as a mattter of law.
TUTSA provides recovery for “actual loss[es] caused by misappropriation,”
TEX. CIV. PRAC. & REM. CODE § 134A.004, but thee act does not define that term.
Although no Texas case has provided a definitioun, the act requires this provision to
“be applied and construed to effectuate its general purpose to make uniform the law
with respect to the subject of this chaapter among states enacting it.” See id. §
134A.008. Thus, the Court must look to and be guided by decisions from other states
that have adopted the Uniform Terade Secrets Act. See Morgan v. Clements Fluids S.
Tex., Ltd., 589 S.W.3d 177, 19f1 n.4 (Tex. App.—Tyler 2018, no pet.) (looking to Florida
law when interpreting TUTSA because “[t]he Florida Uniform Trade Secrets Act is
very similar to the TUTSA”).
Courts in iother jurisdictions “have made clear that ‘actual loss’ means ‘loss of
profits, losto customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20-
24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at *10 (S.D. Fla. 2022) (concluding
reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets
Act) (citing Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267, 1276
(11th Cir. 2021) (understanding “actual loss” in terms of lost profits); Selectica, Inc. v.
27
Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LEXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual loss’ has been defined as ‘loss of profits, lost customers or
lost market share.’”); Saforo & Assocs., Inc. v. Porocel Corp., 991 S.W.2d 117, 124
(Ark. 1999) (“actual loss” means “the plaintiff’s lost profits or the defekndant’s gain,
whichever affords the greater recovery.”). C
In a case construing the Idaho Uniform Trade Secrets Act, the Idaho Supreme
Court held that “actual loss” means “lost profits, lost custoimers, lost market share,
and similar losses,” but specifically held that “it would be an anomaly for us to allow
attorney fees to be recovered in a case like this as part of damages.” GME, Inc. v.
Carter, 917 P.2d 754, 757 (Idaho 1996); see also Twin Falls Staffing, LLC v. Visser
(In re Visser), No. 1:13-cv-00408-BLW, 201l4 U.S. Dist. LEXIS 56705, at *9 (D. Idaho
2014) (losses from misappropriation oMf trade secrets “logically include lost profits, but
not attorneys’ fees.”).
The conclusion that attiorney’s fees from other litigation are not actual losses
recoverable under TUTSA is consistent with Texas trade secret law before the statute
was enacted. The Texoas Supreme Court defined recoverable losses for a trade secret
claim as “the valuel of the plaintiff’s lost profits, the defendant’s actual profits from
the use of the isecret, the value a reasonably prudent investor would have paid for
the trade secret, the development costs the defendant avoided by the
misappropriation, and a reasonable royalty.” Sw. Energy Prod. Co. v. Berry-
Helfand, 491 S.W.3d 699, 710–11 (Tex. 2016) (emphasis added). No Texas court has
ever allowed attorneys’ fees in other cases to be recovered as actual damages in a
28
trade secret claim. In fact, at least one has concluded the opposite while dismissing a
TUTSA claim. See Lacore Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App.
LEXIS 1926, at *32-33 (Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.)
(rejecting contention that “disclosure of [party’s] confidential informaktion” caused
“the attorney’s fees that have been incurred [which] is evidence of Cdamages” because
“attorney’s fees incurred in a lawsuit are not actual damages.”).
This conclusion is further reinforced by Texas law iregarding attorney’s fees
incurred in previous litigation. “[F]ees expended in prior litigation generally are not
recoverable as damages; fees are recoverable only when an agreement between the
parties so provides.” Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied); see lalso Tana Oil & Gas Corp. v. McCall, 104
S.W.3d 80, 81-82 (Tex. 2003) (attorneMy’s fees for defending a different claim are not
recoverable as damages as a matter of law); O’Neal v. Dale, No. 02-20-00173-CV, 2021
Tex. App. LEXIS 466, at *28 i(Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (mem.
op.) (“a party’s claim that he incurred attorney’s fees to defend against [another] claim
is not a viable damageo claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No.
01-02-00807-CV, 2l006 Tex. App. LEXIS 2001, at *23-24 (Tex. App.—Houston [1st
Dist.] Mar. 16i, 2006, pet. denied) (mem. op.) (“financial loss due to time spent by
[party] on litigation matters” in another case was not, as a matter of law, recoverable).
And the law is clear that “[a] party relying on assertions of non-recoverable damages
alone, such as attorney’s fees and expenses sustained in defending a lawsuit . . . has
presented a legal barrier to any recovery.” Woodhaven Partners Ltd. v. Shamoun &
29
Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—Dallas 2014, no pet.).
Pohl has argued that he is entitled to recover attorney’s fees based on an
exception to the general rule based on the “tort of another,” which provides that “[o]ne
who through the tort of another has been required to act in the proktection of his
interests by bringing or defending an action against a third perCson is entitled to
recover reasonable compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurred in the earlier iaction.” Naschke v. Gulf
Coast Conference, 187 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied) (quoting RESTATEMENT (SECOND) OF TORTS § 914 (1979)). But that exception
has never been embraced by the Texas Supreme Court24 and has been flatly rejected
by the Fourteenth Court of Appeals.25 See lNaschke, 187 S.W.3d at 655 (“Because we
are bound to follow the existing lawsM of the State, we are not at liberty to adopt a
theory of recovery that has not been enacted by the Legislature or adopted by the
Texas Supreme Court.”). i
The First Court of Appeals has not specifically held whether the “tort of
another” exception iso viable. But it has stated that because this exception is an
24 See Akin, Gum f ip, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119
(Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the
Second Restnatement should be adopted as Texas law.”).
25 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.
Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s
faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack
the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable
exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App.
LEXIS 3776, at *20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases);
Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex.
App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases).
30
equitable doctrine it can only apply when the plaintiff is “wholly innocent” of any
wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex.
App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem.
op.); see also Brannan Paving GP, LLC v. Pavement Markings, Inc., 44k6 S.W.3d 14,
27 (Tex. App.—Corpus Christi 2013, pet. denied) (referring to thCe “tort of another
exception” as an “equitable exception” to the general rule).
Here, the jury concluded in response to Question 3 thiat the “wrongful conduct
of Pohl . . . contribute[d] to the injury.”26 Pohl argues that in Question 4, the jury
failed to assign any percentage of responsibility to Pohl. But the issue is not related
to Pohl’s proportionate responsibility. Rather, the point is simply that one without
clean hands cannot obtain an equitable relmedy, and one found to have engaged in
“wrongful conduct” does not have cleaMn hands. See Frazier v. Havens, 102 S.W.3d 406,
414 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“one who seeks an equitable
remedy must do equity and coime to court with clean hands.”).
Pohl cannot claim the equitable tort of another exception even if it is viable
under Texas law. Seeo Per-Se Techs., 2005 Tex. App. LEXIS 5096, at *24; see also
Pacesetter Pools, Ilnc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834 (Tex. App.—Austin
2002, no pet.) i(“[B]ecause the jury found that Allcox’s damages were caused by the
negligent conduct of both Pierce Homes and Pacesetter, equitable principles do not
allow Pierce Homes to recover its previously incurred attorney’s fees as damages.”);
Dayton Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—Dallas 1987, writ
26 Verdict, at Question 3.
31
denied) (“[I]n the present case, Eldridge is not an innocent party forced to 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.”).
B. Pohl presented no evidence to support his kother
elements of damage. e
Pohl also sought damages in the form of the “price that a willing buyer and a
willing seller would have agreed on, at the time of the misatppropriation, as a fair
price for Kassab’s [alleged] use of the trade secret(s)” for which the jury awarded
$250,000.27 But Pohl did not present any testimony eabout the “market value” of the
information at issue. See City of Harlingen v. Eustate of Sharboneau, 48 SW.3d 177,
182 (Tex. 2001) (defining “market value” to mean “the price the property will bring
when offered for sale by one who desiresa to sell, but is not obliged to sell, and is bought
by one who desires to buy, but is under no necessity of buying.”). Pohl did testify that
the information about his clientse had intrinsic value to him because he could contact
them as former clients. Butf intrinsic value is not the same as market value. See
Accurate Precision Plating, LLC v. Guerrero, No. 01-14-00706-CV, 2015 Tex. App.
LEXIS 12034, at *7 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, pet. denied) (mem.
op.). As the purpiorted owner of the property, Pohl could only testify (if he had been
properly deosignated)28 about “market value, not intrinsic value or some speculative
value of the property.” Id. There was no evidence to support the jury’s finding on the
27 Verdict, Question 7(2).
28 As explained in Kassab’s Motion for New Trial, Pohl was erroneously allowed to testify on this issue
over Kassab’s objection.
32
market value of the purported trade secrets.
Presumably, the jury extrapolated the $250,000 figure from evidence that
Kassab and Montague paid Favre a retainer to act as an expert in the barratry
litigation. Even if the jury could reasonably conclude that the $250,000k figure was a
“purchase price” for Pohl’s alleged trade secrets, that would be conCsidered an “actual
value” and not “market value,” which was the theory submitted to the jury. Pike v.
Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 784 n.27 (Tex. 2020i) (distinguishing between
“market value” and “actual value” and noting that “evidence of purchase price alone
cannot establish market value” and approving cases rendering take-nothing
judgments “where purchase price was only evidence of damages presented”).
“[P]urchase price is merely a starting poinlt for calculating actual value,” not market
value. See id. at 784. Further, “one saMle [is] not sufficient to fix a fair market value.”
InterFirst Bank Dall., N.A. v. Risser, 739 S.W.2d 882, 891 (Tex. App.—Texarkana
1987, no writ); Mo., K. & T. Ri. Co. v. Moss, 135 S.W. 626, 627 (Tex. Civ. App. 1911,
no writ) (“Evidence of a single sale is admissible, but not alone sufficient to establish
market value.”). o
Finally, thelre was no evidence to support the jury’s award of $200,000 for the
“value of the dievelopment costs that Kassab avoided by [allegedly] misappropriating
Pohl’s trade secret(s).”29 There was no testimony by Pohl about Kassab’s development
costs. Kassab testified that he did not know how much in costs he avoided, if any, by
using information provided by Precision. And no other witness testified about
29 Verdict, Question 7(3).
33
development costs. Although damages in trade-secret cases can be flexible and
imaginative, damages “cannot be based on sheer speculation.” Sw. Energy, 491
S.W.3d at 712. Because Pohl presented no evidence for the jury to make a just and
reasonable inference regarding development costs saved by Kassab, thkat award was
improper. C
X. Pohl’s claims fail for lack of causation because it was
Pohl’s barratry that was the sole cause of htis damages, not
anything that Kassab did. i
Pohl failed to present legally sufficient evidence of proximate cause.
“Proximate cause has two elements: cause in fact and foreseeabilty.” Akin, Gump,
Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 122
(Tex. 2009). “Causation must be proved, anld conjecture, guess, or speculation will not
suffice as that proof.” Id. In Akin, GMump, the Court found insufficient evidence to
support the jury’s award of appellate attorney’s fees as damages to the client in a
legal malpractice claim becausie there was no evidence that if the client had obtained
a favorable judgment, the opposing party in the underlying case would not have
appealed and caused tohose fees to be incurred. Id. at 123.
Likewise, Plohl presented no evidence that Pohl would not have been sued for
barratry and iincurred the fees that he did if Kassab had not obtained the client
information from Favre. None of the damages claimed by Pohl were caused by
Kassab’s conduct, but instead occurred because of Pohl’s own misconduct. If Pohl had
not committed barratry, he would not have been sued or grieved by his former clients
for committing barratry. In other words, Pohl’s criminal conduct was the sole
34
proximate cause of his own damages, see Peeler, 909 S.W.2d at 496-97, or by Pohl’s
former clients’ decision to bring the barratry proceedings were a superseding or new
and intervening causes of Pohl’s damages. See Stanfield, 494 S.W.3d at 102-03. There
is no evidence to support the jury’s conclusion that Kassab’s condkuct was the
proximate cause of Pohl’s damages. See Akin, Gump, 299 S.W.3d Cat 123; Saulsberry
v. Ross, 485 S.W.3d 35, 50 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (client’s
award of attorney’s fees as damages was insufficient wheni evidence suggested that
client “would have incurred legal fees” regardless of the lawyer’s actions).
Even if Kassab created a condition by notifying Pohl’s former and rejected
clients of Pohl’s barratry, the resulting harm – the attorney’s fees Pohl incurred
defending against those proceedings – wasl caused by Pohl, who committed barratry
in the first instance, and the clients, Mwho sued Pohl for committing that barratry. It
was not caused by Kassab, the lawyer merely representing those clients. See
Stanfield, 494 S.W.3d at 99 (eixplaining that the mere fact original tortious conduct
is a “but for” cause of intervening conduct does not make the first actor liable for the
conduct of the secondo). Accordingly, Pohl’s claims against Kassab fail as a matter of
law for lack of caulsation.
XI. Piohl’s conspiracy claim is pre-empted under TUTSA or
oChapter 33.
TUTSA provides that it “displaces conflicting tort, restitutionary, and other
law of this state providing civil remedies for misappropriation of a trade secret.” TEX.
CIV. PRAC. & REM. CODE §134A.007. In Reynolds v. Sanchez Oil & Gas Corp., No. 01-
18-00940-CV, 2023 Tex. App. LEXIS 8903 (Tex. App.—Houston [1st Dist.] Nov. 30,
35
2023, no pet. h.), the plaintiff sued for misappropriation of trade secrets and aiding
and abetting breach of fiduciary duty. Id. at *7-8. The court of appeals concluded that
the aiding and abetting claim was “primarily based on the individual appellants’
misappropriation of trade secrets” and “provide[ed] remedies for thke underlying
misconduct of misappropriation of trade secrets.” Id. at 47. “Under Cthe plain language
of TUTSA, these claims conflict with civil remedies for misappropriation of a trade
secret.” Id. at *47-48. Therefore, “TUTSA preempts these iclaims to the extent they
are based on appellants’ alleged misappropriation of trade secrets.” Id. at *48.
Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is
based entirely on Kassab’s alleged misappropriation of trade secrets. The conspiracy
question asked, “[r]egarding the conduct ylou found in answer to Question 2 [which
asked “[d]id any of the parties listed bMelow misappropriate Pohl’s trade secret?”], was
Kassab part of a conspiracy that damaged Pohl with any of those named below?”30
Because Pohl’s conspiracy claiim is “primarily based on” alleged misappropriation of
trade secrets, it is preempted. See Reynolds, 2023 Tex. App. LEXIS 3067, at *47-48;
VEST Safety Med. Serovs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812, 2022 U.S. Dist.
LEXIS 127285, at l*10 (S.D. Tex. 2022) (“the weight of authority from district courts
within the Fiifth Circuit … [demonstrate a] conspiracy claim is preempted by
TUTSA.”). Thus, the judgment should not include joint and several liability against
Kassab.
30 Verdict, Question 15.
36
XII. Exemplary damages are improper because one of the
predicate findings for exemplary damages was not
answered by the jury unanimously.
“Whether a jury's award of exemplary damages is supported by a unanimous
finding as to liability and the amount of exemplary damages is constkrued as a ‘no
evidence’ or ‘matter of law’ issue.” Redwine v. Peckinpaugh, 535 SC.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.); Cullum v. White, 399 S.W.3d 173, 188 (Tex. App.—San
Antonio 2011, pet. denied) (whether plaintiff is entitledi to exemplary damages
because there was not a unanimous verdict is a “matter of law issue.”).
Question 19 was the only question in the jury charge that asked about
exemplary damages. The predicate instruction for Question 19 said, “Answer the
following question only if you unanimouslly answered ‘Yes’ to Question No. 17 or
Question No. 18. Otherwise, do not anMswer the following question.”31
The jury did not answer Question 18.
Some members of the ijury answered Question 17 “Yes,” finding that the
misappropriation of trade secrets was willful and malicious.32 But the certificate at
the end of the jury veordict makes it unmistakably clear that the answer to Question
17 was not unanilmous. First, in the general part of the jury certificate the jury
declined to chieck the box indicating that “Our verdict is unanimous,” but instead
checked the box indicating that only ten jurors agreed to every answer:
31 Verdict, Question 19.
32 Verdict, Question 17.
37
The additional certificate required the jury to indicate whether certaink liability and
damages questions were answered unanimously: l
In response to that instruction, the presiding juruor signed certificates indicating that
Questions 2 and 19 were unanimous. But thne presiding juror conspicuously did not
sign the certificate for Question 17: r i
Thus, the jury’s ansCwer to Question 17 was unmistakably not unanimous.
The jury’s failure to answer Question 17 unanimously precludes any award of
exemplary d
afmages by both rule and statute. See TEX. R. CIV. P. 292 (“A verdict may
be rendered awarding exemplary damages only if the jury was unanimous in finding
liability for and the amount of exemplary damages.”) (emphasis added); TEX. CIV.
PRAC. & REM. CODE § 41.003(d) (“Exemplary damages may be awarded only if the
jury was unanimous in regard to finding liability for and the amount of exemplary
38
damages.”) (emphasis added).
Texas cases have not hesitated to apply this principle articulated in both rule
and statute. See Cullum, 399 S.W.3d at 188 (“As a matter of law, a party cannot
recover exemplary damages without a unanimous verdict on the underlkying theory of
liability.”); Redwine, 535 S.W.3d at 52 (concluding “that the trCial court erred in
entering judgment awarding exemplary damages” when “[d]espite [the jury] having
answered the exemplary damages question, which was prediicated on its unanimously
having found that [the defendant] made multiple defamatory statements, the jury
stated in the charge that its verdict was not unanimous.”); DeAtley v. Rodriguez, 246
S.W.3d 848, 850 (Tex. App.—Dallas 2008, no pet.) (a non-unanimous verdict on
liability was insufficient as a matter of llaw to support an award of exemplary
damages). M
Because the predicate finding of malicious misappropriation was the only way
to get to exemplary damages, aind that question was not answered unanimously, the
judgment cannot include exemplary damages as a matter of law.
o CONCLUSION & PRAYER
For these relasons, Kassab asks the Court to grant this motion, disregard the
jury findings, iand enter a take nothing judgment in favor of Kassab or reduce the
judgment as set forth herein.
39
ALEXANDER DUBOSE JEFFERSON
/s/ Kevin Dubose
Kevin Dubose
kdubose@adjtlaw.com
Texas State Bar No. 0615050k0
1844 Harvard Street e
Houston, Texas 77008 C
Phone (713) 523-0667 
Facsimile (713) 522-4553
FOGLER, BRAR, Oi’NEIL & GRAY, LLP
/s/ Murray Fogler
Murray Foegler
mfogler@foglerbrar.com
Texas uState Bar No. 07207300
909 Fannin, Suite 1640
Houston, Texas 77002
(l713) 481-1010
a(713) 574-3224 (Fax)
THE KASSAB LAW FIRM
e /s/ David Eric Kassab
i Lance Christopher Kassab
f Texas State Bar No. 00794070
David Eric Kassab
Texas State Bar No. 24071351
o 1214 Elgin Street
Houston, Texas 77004
l Telephone: (713) 522-7400
i E-service: eserve@kassab.law
o ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been
forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the
19th day of January, 2024.
/s/ David Eric Kassab
David Eric Kassab
40
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Scott M.Favre scott@favrepa.com 1/19/2024 3:31:14 PM SENT
Lawyer Wade c lawyerwade@hotmail.com 1/19/2024 3:31:14 PM SENT
Chris C.Pappas f cpappas@krcl.com 1/19/2024 3:31:14 PM SENT
Non-Party Witness Billy Shepherd  bshepherd@spcounsel.com 1/19/2024 3:31:14 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 1/19/2024 3:31:14 PM SENT
Non-Party Edgar Jaimes C edgarsroom@gmail.com 1/19/2024 3:31:14 PM SENT
Kevin Dubose a 6150500 kdubose@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Lance Kassab o eserve@kassab.law 1/19/2024 3:31:14 PM SENT
Murray JFogleUr mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Murray Fogler mfogler@fbfog.com 1/19/2024 3:31:14 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Benjamin Ritz britz@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
D Kassab david@kassab.law 1/19/2024 3:31:14 PM SENT
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
D Kassab david@kassab.lagw 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
L Kassab lance@kassab.law 1/19/2024 3:31:14 PM SENT
Kelly Skelton reception@kassab.law 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Misty Davis c mdavis@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells f hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
David Kassab  david@kassab.law 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT"
66,2024-01-19,MNT,Kassab,Motion for New Trial,"Kassab Defendants' Motion for New Trial, filed in the alternative to the JNOV Motion, raising 22 grounds for new trial including: (1) newly discovered evidence of witness bribery/tampering (Walker 30% confession), (2-4) factual insufficiency on trade secret ownership and misappropriation, (5-6) jury charge errors on Q3 and proportionate responsibility, (7) limitations question error on Q5, (8) insufficiency on Q5 answer, (9-10) refusal to submit unlawful acts defense and immunity/privilege questions, (11) exclusion of barratry expert testimony, (12) Q6 attorney immunity question error, (13) insufficiency on Q6, (14) improper Q7(1) submission (attorney fees not TUTSA damages), (15) property owner rule error, (16) insufficiency on Q7(2)-(3), (17-18) insufficiency on willful/malicious and exemplary damages, (19) conspiracy preemption, (20) denial of responsible third party designations, (21) denial of abatement, (22) privilege/offensive use errors, and (23) dismissal of barratry counterclaims, plus insufficiency of attorney fees evidence","Post-judgment motion filed January 19, 2024, simultaneously with the JNOV Motion, within 30 days of the December 22, 2023 Final Judgment. Filed in the alternative — if Court does not grant JNOV, it should grant a new trial on any of 22 enumerated grounds.",POST-1,N/A,Phase 5,2024-01-19_MNT_Kassab-Motion-for-New-Trial_FILED.pdf,"New trial on all claims — vacate final judgment and order new trial. Alternatively, new trial on specific issues and/or remittitur of exemplary damages.","1/19/2024 3:31 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 83597613
By: Rhonda Momon
Filed: 1/19/2024 3:31 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al. § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al. § 281st JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ MOTION FOR NEWC TRIAL
In the alternative to their Motion for Judgment Notwithstanding the Verdict
and to Disregard Jury Findings (“the JNOV Motion”), Defenidants Lance Christopher
Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm (“Kassab”)
file this Motion for New Trial and would respectfully show as follows.
SUMMARY
Pohl’s claims against Kassab are barlred as a matter of law, so the Court should
grant the JNOV Motion. To the extenMt the Court does not disregard findings of the
jury and enter a judgment notwithstanding the verdict in favor of Kassab, it should
grant a new trial for any one oif the following reasons:
1. Newly discovered evidence demonstrates that material witnesses
engaged in poerjury and Pohl engaged in unlawful bribery and witness
tamperinlg which resulted in the jury being deceived as to material
issuesi.
2. Factually insufficient evidence supports the jury’s finding in Question
1 that Pohl owned a trade secret in (a) attorney-client fee contracts
and (b) lists of Pohl’s actual, potential, or rejected clients.
3. The trial court erred by submitting Question 2, the misappropriation
question, to the jury because it failed to sufficiently distinguish the
acts of each defendant and included liability theories not supported
by legally sufficient evidence.
4. Factually insufficient evidence supports the jury’s finding in Qukestion
2 that Kassab misappropriated Pohl’s alleged trade secreCt.
5. The Court improperly submitted Question 3 on Pohl’s “wrongful
conduct” because it is not tied to the privilege quesition, proportionate
responsibility question or anything else in the jury charge.
6. The Court erred by refusing to submit Kassab’s proposed jury
question on immunity or privilege.
7. The Court erred by excluding explert testimony from Kassab and his
experts on whether Pohl comMmitted barratry.
8. The Court erred by refusing to submit Kassab’s proposed jury
question on his unlawiful acts defense.
9. The court erred in submitting Question 5, the limitations question,
because it oimproperly included the words “by Kassab” when
misapprolpriation of trade secrets is not a continuing tort and Pohl
sued Kiassab for conspiracy and thus misappropriation by any alleged
co-conspirator would have caused limitations to accrue.
10. The court erred in submitting Question 6, the attorney immunity
question, because it improperly included the language “in an
attorney-client relationship,” which was a comment on the weight of
the evidence.
11. Factually insufficient evidence supports the jury’s answer to Question
6, which asked whether Kassab used the purported trade secrets
while in an attorney-client relationship. k
12. The Court erred by submitting Question 7(1) and by alClowing Pohl
and his expert John Zavitsanos to testify about the attorney’s fees
incurred in the underlying barratry proceedings beicause the question
and testimony related to an improper element of damages for a
TUTSA claim.
13. The trial court erred by allowing Pohl to testify on lost revenue, lost
profits, or the purported value lof the trade secrets because the
property owner rule does noMt apply, and Pohl was not designated to
testify on those issues.
14. Factually insufficienit evidence supports the jury’s answer to
Questions 7(2) and (3).
15. Factually insoufficient evidence supports the jury’s finding that “the
misapprolpriation of Pohl’s trade secret(s) by Kassab was willful and
maliciious” (Question 8) based on “clear and convincing evidence”
(Question 17).
16. Factually insufficient evidence supports the jury’s finding of
exemplary damages in Question 19.
17. The Court improperly submitted Question 15 because conspiracy is
pre-empted by TUTSA or Chapter 33.
18. The Court erred by denying Kassab’s designation of responsible third
parties, including Billy Shepherd, Donalda Pohl, Edgar Jaimes, Ken
Talley and Magdalena Santana, which would have materially kaltered
the jury’s verdict. C
19. The Court erred by denying Kassab’s motion to abate this case
pending resolution of the related civil barratry liitigation currently
pending against Pohl in which Pohl claims attorney’s fees as damages.
20. The Court erred by allowing Pohl to assert affirmative claims against
Kassab but then withhold relevant and material information based
on purported claims of privilege. l
21. The Court erred by dismiMssing Kassab’s counterclaims for civil
barratry.
22. Factually insufficienti evidence supports the jury’s award of attorney’s
fees because the testimony from Pohl’s expert was conclusory and the
invoices wereo heavily redacted.
l ARGUMENT
I. Niewly discovered evidence demonstrates that Pohl
oengaged in unlawful bribery and witness tampering that
materially affected the jury verdict.
A motion for new trial is appropriate based on newly discovered evidence. See
TEX. R. CIV. P. 324(b)(1). Evidence that could not be discovered by Kassab until after
trial demonstrates that this jury verdict was impacted by key witnesses changing
their testimony because of Pohl’s bribery and witness tampering, resulting in a fraud
on this Court.
Specifically, in a December 8, 2023 recorded telephone call with Kassab, Scott
Walker, one of Pohl’s purported former agents and a key witness kin this case,
confessed that he and Kirk Ladner1 were promised 30 percentC of any judgment
against Kassab in exchange “for our depositions and our testimony and our positions
on certain things that, you know, helped and – in getting ithat judgment.”2 Walker
further stated that Pohl made that offer before their depositions3 and that Walker
and Ladner were “coached on how to be deposed.”4 Walker candidly admitted that he
“felt like [he] should call because … the whole premise of the depositions was based
on the 30 percent that we were promised.”5l
Walker’s candid after-trial revMelation demonstrates that Pohl obtained the
judgment against Kassab by committing witness tampering and suborning Walker’s
and Ladner’s aggravated perjuiry.6 A person commits the criminal offense of witness
1 Walker and Ladner were co-owners of Precision Marketing Group, a defendant in this case. Pohl
claimed that because thCey were his agents, they had an obligation to preserve his purported trade
secrets. 
2 Exhibit 1, Audio cTranscription, 5:6-15. Lance Kassab has authenticated the audio transcription with
his declaration, afttached as Exhibit 2. Additionally, the entire audio is hosted on Dropbox and may be
accessed via this link: https://www.dropbox.com/scl/fi/q3cgwnq8kzud4zpa3hlgx/December-8-2023-
Call-withU-Scott-Walker.m4a?rlkey=4srkzuiwva8af9ywq4qaun8zx&dl=0
3 Exhibit 1, Audio Transcription, 5:20-23.
4 Exhibit 1, Audio Transcription, 6:3-17.
5 Exhibit 2, Declaration of Lance Kassab.
6 Walker’s out of court statements are not hearsay because they would expose Walker to criminal
tampering if they, with the intent to influence a witness, confer or agree to confer any
benefit on a witness or prospective witness in an official proceeding, to testify falsely
or withhold any testimony or information. Id. at § 36.05(a). Walker’s statements
demonstrate that Pohl did that by offering him and Ladner 30 pekrcent of any
judgment against Kassab in exchange for their favorable and untrCuthful testimony.
Aggravated perjury occurs if the person, with intent to deceive, makes a false
statement under oath in an official proceeding. TEX. P DENi. CODE §§ 37.02, 37.03.
Walker stated that he and Lardner testified in their depositions, under oath and in
official proceedings, about “facts that weren’t necessarily told the correct way or told
on how it really happened.”7 Moreover, Walker made it clear that these fale
statements were made with the intent to dleceive because “the whole premise of the
depositions was based on the 30 perceMnt that we were promised.”8
Moreover, the false testimony from Walker and Ladner drastically changed the
course of the trial and resulteid in the fraudulent judgment. Although Walker and
Ladner testified one way in the Mississippi litigation they brought against Pohl, when
they were deposed in tohis case they reversed course on seminal issues of barratry and
ownership of Pohl’ls purported trade secrets.
liability. SUee TEX. R. EVID. 803(24)(A) (excluding from hearsay those statements that have a tendency
“to expose the declarant to civil or criminal liability.”). Additionally, the statements by Walker are
excluded from hearsay because, as Pohl testified at trial, Walker was his agent or because they are
made by a co-conspirator. TEX. R. EVID. 801(e)(2)(D), (E).
7 Exhibit 1, Audio Transcription, 6:3-17.
8 Exhibit 2, Declaration of Lance Kassab.
For instance, in his deposition in the Mississippi litigation, Walker testified
that Pohl paid Precision $5 million in “barratry money” to unlawfully solicit clients.9
In that deposition, Walker testified it was “clear to [him] it was barratry.”10 But in
this case, after being coached by Pohl, Walker recanted that testimony,k and took the
position that he “didn’t know what barratry meant until [his lawyerC in the Mississippi
litigation] Tina [Nicholson] taught [him] well on how to say the word”11 and “advised”
him to lie.12 But then in the unsolicited recorded phone caill, Walker confessed that
“it was barratry.”13 Walker admitted he was “coached on how to be deposed” in this
case and acknowledged that “some of the things that we were doing was, in fact,
barratry, you know, and I still feel like it was and I think – I do believe it was.”14
Walker’s testimony about ownershipl of information that Pohl claimed were his
trade secrets was also impacted by PoMhl’s witness tampering. Walker initially signed
an agreement that confirmed the 17 boxes of materials at issue in this lawsuit were
owned by Precision and not Piohl. But after being coached by Pohl, Walker took the
position in his deposition in this case “[w]hat I believed was that they were in our
possession. I did not boelieve that we owned them.”15 But in the unsolicited recorded
9 Exhibit 3, August i24, 2016 Deposition of Scott Walker, at 72-77, 196-197.
10 Exhibit 3, Aufgust 24, 2016 Deposition of Scott Walker, at 149.
11 ExhibitU 4, August 31, 2022 Deposition of Scott Walker, at 385.
12 Exhibit 4, August 31, 2022 Deposition of Scott Walker, at 384.
13 Exhibit 1, Audio Transcription, 8:14.
14 Exhibit 1, Audio Transcription, 8:12-24.
15 Exhibit 4, August 31, 2022 Deposition of Scott Walker, at 147-149.
phone call, Walker admits that “the whole premise of [his and Ladner’s] depositions
was based on the 30 percent that [they] were promised.”16
Because Walker’s and Ladner’s false deposition testimony in this case on these
seminal issues was inconsistent with their testimony from the Mississikppi litigation,
Kassab decided not to call Walker and Ladner as live witnesses at Ctrial.17 If Pohl had
not engaged in unlawful witness tampering and bribery, Walker and Ladner
presumably would have testified truthfully in their depositiions that Pohl hired them
to commit barratry, and that Precision owned the file documents that were sold to
Scott Farve and that the materials were Precision’s work product, not Pohl’s trade
secrets. If they had testified truthfully, Kassab would have called them as
witnesses,18 and that testimony would halve had a material impact on the jury’s
verdict. Specifically, that testimonyM would have impacted the jury’s answers to
Question 1 and 2, which asked whether Pohl owned a trade secret, whether Kassab
engaged in any misappropriatiion, and whether that misappropriation was regular or
willful; and it would have impacted the answer to Question 4, regarding Pohl’s
percentage of responosibility for causing the attorney’s fees associated with the
barratry litigationl. In other words, the newly discovered evidence demonstrates that
the jury was dieceived on material issues.
16 Exhibit 1, Audio Transcription, 11:23-24.
17 Exhibit 2, Declaration of Lance Kassab.
18 Exhibit 2, Declaration of Lance Kassab.
Accordingly, the Court should grant a new trial in light of this newly discovered
evidence. See In the Interest of E.S., No. 02-20-00407-CV, 2021 Tex. App. LEXIS 4153,
at *24 (Tex. App.—Fort Worth May 27, 2021, pet. denied) (mem. op.) (“In cases where
a witness willfully testifies falsely regarding a material fact, a new ktrial may be
granted.”); In re Marriage of Hutcherson, 2019 Tex. App. LECXIS 8719, at *10
(vacating judgment when “that the award is based on false testimony, and the [fact
finder] was deceived as to a material issue.”); Dixie Gas i& Fuel Co. v. Jacobs, 47
S.W.2d 457, 462 (Tex. Civ. App. – Beaumont 1932, writ dism'd w.o.j.) (where affidavits
presented with motion for new trial showed judgment was based on perjury, trial
court erred in denying motion for new trial); Rosebud Sioux Tribe v. A & P Steel, Inc.,
733 F.2d 509, 521-522 (8th Cir. 1984) (disltrict court abused its discretion by failing
to grant new trial based on newly dMiscovered evidence that party paid witness to
testify falsely).
II. Factually insuffiicient evidence supports the jury’s finding
in Question 1f that Pohl owned a trade secret in (a)
attorney-client fee contracts and (b) lists of Pohl’s actual,
potential, or rejected clients.
Factually insufficient evidence supports the jury’s answer to Question 1, which
asked whether Piohl owned a trade secret in either attorney-client fee contracts or
lists of Pohlo’s actual, potential or rejected clients.
As a matter of law, Pohl cannot own a trade secret in attorney-client contracts
because they are owned by the client. See In re George, 28 S.W.3d 511, 516 (Tex. 2000)
(“The attorney is the agent of the client, and the work product generated by the
attorney in representing the client belongs to the client.” (emphasis added)). Any
testimony from Pohl or his expert witness John Zavitsanos to the contrary was
conclusory, made without foundation or legal authority, and amounts to no evidence.
Conversely, the testimony from Kassab and his experts established that the attorney-
client contracts are owned by the clients, not Pohl. Their testimony is ksupported by
Texas law governing ownership of client-related materials.19 ECven Pohl’s office
manager, Mary Francis Arnold, testified that she did not consider the attorney-client
contracts trade secrets. Thus, there was insufficient evideince to support the jury’s
answer to Question 1(a), which concluded that Pohl had rightful, legal or equitable
title to the attorney-client fee contracts.
Insufficient evidence also supports the jury’s answer to Question 1(b), finding
that Pohl owned a trade secret in “[a]ny lislt of the identities and contact information
of [his] actual, potential or rejected clMients.” Pohl testified that he did not have a list.
Rather, the lists were created by another attorney named Jimmy Williamson and
Precision. The current owner iof Precision, Scott Favre, testified that Precision’s list
was owned by Precision, not Pohl. Pohl’s office manager also testified that the lists
were created by Precoision, not Pohl. There was no testimony from any witness to
establish that Pohll was the “owner” of any of the lists of clients that were provided to
Kassab. i
Pohl also failed to present evidence that the information “derives independent
19 The fact that Pohl can assert a lien over the client file does not mean he is the rightful, legal, or
equitable owner of the contracts. See In re McCann, 422 S.W.3d 701, 706 (Tex. Crim. App. 2013) (noting
that “a lien, by its definition, is a transitory interest in someone else's property and, therefore, the
attorney asserting such a lien never owns the property at issue, the client owns the file by implication
(if the attorney does not)”) (emphasis added).
10
economic value, actual or potential, from not being generally known to, and not being
readily ascertainable through proper means by, another person who can obtain
economic value from the disclosure or use of the information.” TEX. CIV. PRAC. & REM.
CODE § 134A.002(6)(B). To meet his burden of proving misappropriaktion of trade
secrets, Pohl was required to prove that the information misapprCopriated provided
him with a “competitive advantage.” Fmc Techs. v. Murphy, No. 01-21-00455-CV,
2023 Tex. App. LEXIS 5984, at *62 (Tex. App.—Houston i[1st Dist.] Aug. 10, 2023,
pet. filed) (mem. op.). Pohl failed to present factually sufficient evidence — or any
evidence — to establish what competitive advantage the information provided him to
the exclusion of others.
Moreover, Pohl failed to offer evidelnce to establish that he took “reasonable
measures under the circumstances toM keep the information secret.” TEX. CIV. PRAC. &
REM. CODE § 134A.002(6). The uncontroverted evidence established that the attorney-
client contracts were not mariked “confidential” or “trade secret” and that multiple
individuals in the underlying BP and auto accident litigation had unfettered access
to the information. Poohl’s office manager testified that she did not secure the
attorney-client conltracts “in any form or fashion.” She testified that Pohl never told
her the attorniey-client contracts were his trade secrets, and that the owners of
Precision kept the information Pohl claimed were his trade secrets in a storage unit
to which anyone could have access to. She further testified that she kept the
information at her home in unlocked cabinets without any instruction from Pohl to
secure the information. The same information was also kept unsecured in Ladner’s
11
garage for months.
Moreover, the client-related information was not a trade secret because it was
generally known to third parties. or Pohl to submit a claim to BP, he had to disclose
client-related information to BP. Further, the uncontroverted testimkony at trial
established that the list of master clients was voluntarily prodCuced in discovery
during the Mississippi litigation to Favre, Tina Nicholson and several third parties20
in August 2016 – before the information was provided ito Kassab – without a
protective order, confidentiality stamp, confidentiality agreement, or anything else
prohibiting its disclosure. Additionally, the master list of clients was posted publicly
online through PACER in the Mississippi litigation for more than six years and is
still there today. Based on the evidence, a lreasonable jury could not have concluded
that Pohl used reasonable measures uMnder the circumstances to keep the information
secret.
III. The Court erreid by submitting Question 2 to the jury
because it failefd to sufficiently distinguish the acts of each
defendant and included liability theories not supported by
legally sufficient evidence.
Pohl sued Kassab for indirect misappropriation under subsection
134A.002(3)(B) fior allegedly “misappropriating Pohl’s trade secrets by using them
without thoe express or implied consent of Pohl” in violation of Section
134A.002(3)(B).21 Pohl made no allegation, and presented no evidence, that Kassab
20 Those parties included, among others, Nathan Farmer, Charles Mikhail, Carl Hagwood, James
Welch, Scott Walker, Steve Seymour, Kirk Ladner, Cyndi Rusnak, Marian Mchehee, Yousef Nasrallah,
Trevor Brock and Robin Gross.
21 Plaintiffs’ First Amended Petition, ¶ 42.
12
engaged in direct misappropriation and acquired Pohl’s purported trade secrets
through improper means in violation of Section 134.002(3)(A). Yet, Question 2
improperly tracked the language of Section 134.002(3)(A) and therefore a theory of
liability against Kassab for direct misappropriation that was neitkher pled nor
supported by the evidence. See Tex. Comm'n on Human RightsC v. Morrison, 381
S.W.3d 533, 537 (Tex. 2012) (“A broad-form question cannot be used to put before the
jury issues that have no basis in the law or the evidence.”) (iinternal quotation marks
omitted); Title Source, Inc. v. HouseCanary, Inc., 612 S.W.3d 517, 531 (Tex. App.—
San Antonio 2020, pet. denied) (“Because those theories are not supported by the
evidence, they should have been omitted from the ‘improper means’ definition that
was submitted to the jury.”). l
Moreover, Pohl alleged onMly that Favre, Precision and Nicholson
misappropriated his trade secrets “by theft.”22 Yet the definition of “improper means”
in the jury charge was incorrecitly defined to include multiple other acts besides theft:
Because there was no allegation or evidence that the alleged misappropriation
occurred nby any means other than theft, the definition was improper. See
HouseCanary, 612 S.W.3d at 531 (submission of definition of “improper means” that
included “bribery” and “espionage” was improper when “there is no evidence [the
22 Plaintiffs’ First Amended Petition, ¶ 41.
13
defendant] acquired the trade secrets through bribery [or] through espionage.”).
The jury was influenced by the erroneous inclusion of the additional
misappropriation theories. Pohl alleged that Precision and its former owners were
the first to appropriate Pohl’s purported trade secrets, first by convertking them and
using them in the Mississippi litigation, and then selling them tCo Favre, who then
allegedly sold them to Kassab. Despite that, the jury found that Precision did not
engage in any wrongful misappropriation. Yet, the jury coincluded that Kassab did
misappropriate the information he acquired from Favre and found Kassab 70%
responsible for Pohl’s alleged damages. Because Pohl heavily emphasized the
evidence of misappropriation by others through means not relevant to Kassab, the
Court cannot rule out the possibility that lthe jury found misappropriation based on
those theories. That is sufficient to deMmonstrate harm from the erroneous submission
of unpled and unproven theories of misappropriation. See Tex. Comm'n on Human
Rights v. Morrison, 381 S.W.3id 533, 537 (Tex. 2012) (“[W]hen a broad-form question
allows a finding of liability based on an invalid theory, an appealing party does not
have to prove that thoe jury actually relied on the invalid theory.”). The inclusion of
those issues in thle charge constituted harmful error. See Crown Life Ins. Co. v.
Casteel, 22 S.Wi.3d 378, 389 (Tex. 2000).
IV. Factually insufficient evidence supports the jury’s finding
in Question 2 that Kassab misappropriated Pohl’s trade
secret.
Pohl alleged that Favre and Precision illegally misappropriated trade secrets
from him, and that Kassab subsequently committed indirect misappropriation by
14
acquiring illegally misappropriated trade secrets from Favre and Precision.23
Although Pohl originally sued Precision, he non-suited his claims against Precision.
Nevertheless, Precision was designated as a responsible third party, and defined in
the charge to include Precision’s former owners (Scott Walker, Steve kSeymour and
Kirk Ladner) prior to May 12, 2015 and Favre after May 12, 2015C.24 When the jury
was asked whether Precision misappropriated trade secrets from Pohl, it found that
Precision did not.25 It also answered “0” in Question 4 whein asked what percentage
of the “fault that caused the injury” was attributable to Precision.26 This finding
demonstrates that there is insufficient evidence that Kassab engaged in
misappropriation.
To be liable for misappropriation balsed upon the acquisition of a trade secret,
Kassab must “know[] or ha[ve] reasonM to know that the trade secret was acquired by
improper means” or “derived from or through a person who used improper means to
acquire the trade secret.” TEXi. CIV. PRAC. & REM. CODE §§ 134A.002(3)(A), (B)(ii)(a).
23 Plaintiff’s First Amendedp Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s proprietary ando confidential information and property …which included information
about and/or communicCations with as many as 10,000 or more of Pohl’s clients/prospective clients.
Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers,
and misappropriateda electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis addedc); iid. at ¶ 40 (“Favre, Precision, and Nicholson willfully and maliciously
misappropriated iPohl’s trade secrets by acquiring them through improper means—specifically, by
theft.”); id. at o¶ 41 (“Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl’s
trade secretns by disclosing them via sale to Kassab and Montague (who purchased the trade
secret inUformation knowing that it had been stolen) without the express or complied consent of
Pohl.”) (emphasis added); id. at ¶ 42 (“All Defendants willfully and maliciously misappropriated Pohl’s
trade secrets by using them without the express or implied consent of Pohl.”).
24 Verdict, at Definitions.
25 Verdict, Question 2(a)(3) and 2(b)(3).
26 Verdict, Question 4(3).
15
But here, the jury determined that Precision did not engage in any
misappropriation.27 And if Precision and its former owners did not engage in
misappropriation by transferring the information to Favre, then Favre could not have
acquired the information by improper means. The jury’s finding that Pkrecision, and
those associated with Precision, did not misappropriate anything —C meaning it either
owed no duty to Pohl or breached no duty to Pohl when it provided Pohl's alleged
information to Favre, who then provided it to Kassab — pirecludes liability against
Kassab for indirect misappropriation.
Even if the jury found that Precision had misappropriated this information,
there is insufficient evidence that Kassab knew the information had been acquired
by improper means. See TEX. CIV. PRACl. & REM. CODE § 134A.002(3)(A). The
testimony was that Favre purchased PMrecision, which certified to Favre that it owned
the information at issue, and then Favre provided that information to Kassab, after
certifying to Kassab that the iinformation belonged to Precision and not Pohl. Thus,
Pohl presented no evidence that Kassab knew or had reason to know that the
information was a traode secret owned by Pohl – as opposed to information owned by
Precision – nor wals there evidence that the information was obtained by Favre or
Precision throuigh improper means.
V. The Court improperly submitted Question 3 on Pohl’s
“wrongful conduct” because it was not tied to any portion
of the charge.
Question 3 asked the jury “Did the wrongful conduct of Pohl, if any, contribute
27 Verdict, Question 2(a)(3) and 2(b)(3).
16
to the injury, if any, found by the jury?” This question is improper because it was not
tied to any other part of the charge, so that this important finding against Pohl is left
hanging by itself, when it should have been directly relevant to other parts of the
charge, including Question 4, the proportionate responsibility questionk, Question 6,
the attorney immunity question, and Kassab’s unlawful acts, privilCege and immunity
questions, which were improperly refused (see infra at Section VIX).
VI. The Corut improperly refused Kassabi’s proportionate
responsibility question.
Kassab submitted a proper proportionate reseponsibility question, which was
refused. That question instructed the jury to uanswer the question that if they
answered the misappropriation question “yes” as to Kassab or “yes” to the question
about Pohl’s wrongful conduct. The propaosed question asked: “What percentage of the
fault that caused the injury do you find to be attributable to each of those listed below
and found by you in your answeers to have been at fault” and then listed Pohl and
Kassab and other defenda
ntfs.28 The Court erred by refusing that question. If that
question had been properly submitted, the jury likely would have assigned some
responsibility to Pohl for his injuries.
Instead, tihe Court submitted Question 4, which asked the jury “[w]hat
percentage oof the fault that caused the injury do you find to be attributable to each of
those listed below and found by you in your answers to Question No. 2 to have been
at fault.” The jury put “0” for Pohl because Pohl was not identified in Question 2,
which asked what parties misappropriated Pohl’s alleged trade secrets. Question 4
28 Exhibit 5, Refused Proposed Question 7.
17
should have indicated that if the jury finds that Pohl contributed to causing the
injury, it should assign a percentage of fault to Pohl. The language in Question 4 was
improper.
VII. The court improperly submitted the limitations qukestion
(Question 5) with the limiting words “by Kassab” e because
it failed to allow for the possibility that misappCropriation
by any alleged co-conspirator would have caused
limitations to accrue.
Question 5 asked: “[b]y what date should Pohl, in tihe exercise of reasonable
diligence, have discovered the acquisition, use or disclosure of his trade secrets by
Kassab?” The Court erred by adding the words “by Kassab.” Because Pohl sued
Kassab for conspiracy and misappropriation accrued upon the first act of
misappropriation by Kassab’s alleged co-clonspirators. So this limitations question
should have asked when the misapprMopriation occurred in a way that included the
earlier acts of Kassab’s alleged co-conspirators, rather than being limited to him.
“A person must bring suiit for misappropriation of trade secrets not later than
three years after the misappropriation is discovered or by the exercise of reasonable
diligence should haveo been discovered.” TEX. CIV. PRAC. & REM. CODE 16.010(a). “A
misappropriation lof trade secrets that continues over time is a single cause of
action and thie limitations period described by Subsection (a) begins running
without regard to whether the misappropriation is a single or continuing
act.” Id. at § 16.010(b) (emphasis added). In other words, TUTSA “explicitly precludes
treating trade secret misappropriation as a continuing tort.” Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 451 (5th Cir. 2007).
18
“A cause of action for trade-secret misappropriation accrues when the trade
secret is actually used.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721
(Tex. 2016). Here, the evidence demonstrated that Pohl knew the files and materials
he claims are his trade secrets had been misappropriated and used by kPrecision and
its former owners Walker, Ladner and Seymore in June 2014, wChen they used the
client related information in the Mississippi litigation to file claims against Pohl. “Use
of the trade secret means commercial use by which the offeniding party seeks to profit
from the use of the secret.” Id. That was the first act of misappropriation, which began
accrual of limitations. TEX. CIV. PRAC. & REM. CODE 16.010(b).
The next alleged act of misappropriation occurred when Precision’s former
owners again profited from the alleged tralde secret information by selling Precision
and its files, including the alleged trMade secret information, to Favre in May 2015.
“Use” of a trade secret means “any exploitation of the trade secret that is likely to
result in injury to the trade siecret owner or enrichment to the [non-trade secret
owner].” Sw. Energy, 491 S.W.3d at 722 (emphasis added). Because Pohl was aware
that Precision had usoed these purported trade secrets in May 2015, he was required
to file his claims algainst Kassab and other alleged coconspirators before May 2018,
at the latest. S
iee TEX. CIV. PRAC. & REM. CODE 16.010(a).
Pohl did not file this lawsuit until August 2018, more than three years after
Precision and Favre used Pohl’s purported trade secrets, alleging Kassab, Favre and
Precision “engaged in a scheme pursuant to which they illegally obtained,
maintained, and used trade secrets and other confidential information and property
19
belonging to Pohl.”29
Pohl argued that his claims against Kassab did not accrue until September 19,
2017, when the court in the Mississippi litigation ordered the expert retainer
agreement between Favre and Kassab to be produced, which Pohl chakracterized as
an agreement to purchase the purported trade secrets. But transfeCr or use of already-
misappropriated trade secrets by a purported co-conspirator does not re-start the
limitations clock. See TEX. CIV. PRAC. & REM. CODE 16.
01i0(a); Agar Corp., Inc. v.
Electro Circuits Int'l, LLC, 580 S.W.3d 136, 145 (Tex. 2019) (rejecting the “last-overt-
act accrual rule” and concluding that conspiracy claim for misappropriation of trade
secrets accrues against all co-conspirators “when the underlying tort accrues.”) (citing
with approval Harang v. Aetna Life Ins. Clo., 400 S.W.2d 810, 813 (Tex. Civ. App.—
Houston 1966, writ ref'd n.r.e.) (concMluding limitations runs from when the injury
occurs and therefore conspiracy claim against the late-added co-conspirators was
time-barred)). In other words,i “[a] conspiracy claim based on an earlier underlying
tort does not re-accrue when the co-conspirators agree to commit a second tort or
make another overt aoct.” Agar Corp., 580 S.W.3d at 145.
Therefore, ilt is irrelevant when Pohl discovered his purported trade secrets
had been useid “by Kassab” as opposed to other alleged co-conspirators. See id.
(conspiracy claim against co-conspirator time barred because the claim accrued when
trade secrets were used initially used by other coconspirators, not when alleged
coconspirator later purchased the trade secret information). The proper inquiry is the
29 Plaintiffs’ Original Petition, ¶ 2
20
question submitted by Kassab that this Court erroneously refused: “[b]y what date
should Pohl, in the exercise of reasonable diligence, have discovered the acquisition,
[use] or disclosure of his trade secrets?” See TEX. CIV. PRAC. & REM. CODE 16.010(a)
(claim for misappropriation accrues when “misappropriation is discovekred or by the
exercise of reasonable diligence should have been discovered.”);C Sw. Energy, 491
S.W.3d at 722 (“the statute of limitations did not begin to run until [the plaintiff]
knew or should have known of facts that in the exercise of reiasonable diligence would
have led to discovery of the misappropriation.”); Agar Corp., 580 S.W.3d at 146
(claims against co-conspirators accrue on the same date as the first overt act). The
Court therefore should not have included the “by Kassab” language in the charge.
VIII. Insufficient evidence sulpports the jury’s answer to
Question 5. a
In Question 5 the jury found that Pohl should have discovered the acquisition,
use or disclosure of his trade alleeged trade secrets by Kassab by August 19, 2017. The
uncontroverted evidence demfonstrated that Pohl knew his materials he claims as
trade secrets had been appropriated and used by Precision and its former owners in
June 2014, when they used the client related information in the Mississippi litigation
to file claims agaiinst Pohl. Pohl testified that Kassab was part of the “team of thieves”
who commiotted that alleged theft in 2014. Thus, Pohl should have known of Kassab’s
alleged conspiracy to misappropriate his alleged trade secrets no later than June
2014.
At the latest, Pohl should have discovered the acquisition, use or disclosure of
his trade secrets in May 2015 when Precision’s former owners again profited from the
21
alleged trade secret information by selling Precision and its files, including the
alleged trade secret information, to Favre, who Pohl alleged was Kassab’s co-
conspirator. Reasonable jurors could not disregard this evidence.
IX. The Court erred by refusing to submit Kassab’s prokposed
jury question on his unlawful acts defense (Peroposed
Question 6) and immunity and privilegeC defense
(Proposed Question 8). 
The trial court is required to submit questions raised bty the written pleadings
and the evidence. TEX. R. CIV. P. 278. This is a “sub
stantive, non-discretionary
directive to trial courts requiring them to submit reequested questions to the jury if
the pleadings and any evidence support them.” Eulbaor v. Smith, 845 S.W.2d 240, 243
(Tex. 1992). A trial court may refuse to submit an issue only if no evidence exists to
warrant its submission. Id. Kassab reaquested the Court to submit two proposed
questions relating to his affirmative defenses raised in his pleadings, which the
evidence supported. e
First, Kassab requestfed that the Court submit Proposed Question 6, which
asked, “Did Pohl commit unlawful or unethical conduct including barratry or the
unauthorized practice of law to acquire the information he is claiming as trade
secrets?”30 That iquestion was proper and directly relevant to Kassab’s unlawful acts
defense, whoich provides that “no action will lie to recover a claim for damages, if to
establish it the plaintiff requires aid from an illegal transaction, or is under the
necessity 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
30 Exhibit 6, Refused Proposed Question 6.
22
have interpreted this defense to mean that if the illegal act is inextricably intertwined
with the claim and the alleged damages would not have occurred but for the illegal
act, the plaintiff is not entitled to recover as a matter of law.” Sharpe v. Turley, 191
S.W.3d 362, 366 (Tex. App.—Dallas 2006, pet. denied). Courts havek applied the
doctrine without a conviction of a crime so long as “the unlawfCul act barring the
plaintiff's claim was in fact illegal conduct.” McNally v. McNally, No. 02-18-00142-
CV, 2020 Tex. App. LEXIS 7211, at *27 (Tex. App.—Fort iWorth Sep. 3, 2020, pet.
denied) (mem. op.).
There was substantial evidence to support submission of this proposed
question. Pohl’s own testimony demonstrated that he committed the unauthorized
practice of law in Mississippi because he hlad no license there, and his pleadings in
the Mississippi litigation demonstrateMd that Pohl hired Precision to commit unlawful
solicitation of clients. Kassab testified that he believed Pohl committed barratry and
the unauthorized practice of laiw in Mississippi. Kassab’s expert, Professor Benjamine
Cooper, testified Pohl committed the unauthorized practice of law in Mississippi.
Pohl’s office managero, Mary Francis Arnold, testified that Pohl paid Precision to
acquire clients andl refer them to Pohl, and that Pohl paid Precision a percentage of
his fees in exchiange. Donalda Pohl, Pohl’s wife, testified to facts indicating that Pohl
committed barratry. Lacy Reese testified to facts indicating that Pohl committed
barratry. A “yes” answer to Proposed Question 6 would have established that Pohl
acquired the purported trade secrets unlawfully, thus precluding any recovery for
misappropriation of trade secrets.
23
Second, Kassab requested that the Court submit Proposed Question 8, which
asked, “Did Kassab use or disclose Pohl’s information for the purpose of reporting,
investigating, or filing a lawsuit relating to a suspected violation of law, a commission
of a crime, or other matters of substantial public concern?”31 That questiokn was proper
and directly relevant to Kassab’s privilege or immunity defense becCause “trade secret
law permits disclosures relevant to public health or safety, commission of crime or
tort, or other matters of substantial public concern.” Bartinicki v. Vopper, 532 U.S.
514, 539 (2001); RESTATEMENT (THIRD) OF UNFAIR COMsPETITION § 40, cmt. c (1995) (“A
privilege is likely to be recognized, for example, in connection with the disclosure of
information that is relevant to public health or safety, or to the commission of a crime
or tort, or to other matters of substantial pulblic concern.”); RESTATEMENT OF THE LAW,
TORTS § 757, cmt. d (“A privilege Mto disclose may also be given by the law,
independently of the other's consent, in order to promote some public interest.”);
Alderson v. United States, 718 iF. Supp. 2d 1186, 1200 (C.D. Cal. 2010), aff'd, 686 F.3d
791 (9th Cir. 2012) (“[T]here simply cannot be any trade secret about ongoing
illegality.”); Sys. Operoations, Inc. v. Sci. Games Dev. Corp., 425 F. Supp. 130, 136
(D.N.J. 1977) (“dislclosure of trade secret information may itself be privileged.”).
There wias more than sufficient evidence to support submission of this proposed
question. Pohl testified that Kassab used or disclosed Pohl’s alleged trade secrets –
the attorney-client contracts and list of Pohl’s actual, potential, or rejected clients –
to file lawsuits and grievance proceedings against Pohl for barratry. The act of
31 Exhibit 7, Refused Proposed Question 8.
24
barratry is a “serious crime” and certainly a matter of substantial public concern. See
TEX. DISC. R. PROF’L COND. 8.04(b). Kassab denied that the information constituted
Pohl’s trade secrets but testified that the information was used to discharge his
ethical obligations and report Pohl’s misconduct to the disciplinary akuthority and
inform individuals who may have been unlawfully solicited by PoChl that what Pohl
did was a crime.32 A “yes” answer to Proposed Question 8 would have established that
Kassab had privilege or immunity with respect to any purpoirted misappropriation or
“use” of Pohl’s alleged trade secrets.
Charge error is generally considered harmful, and thus reversible, if it relates
to a contested critical issue. See R.R. Comm'n of Tex. v. Gulf Energy Expl. Corp., 482
S.W.3d 559, 566-71 (Tex. 2016). Kassab’sl Proposed Questions 6 and 8 were both
contested critical issues because a M“yes” answer to either question would have
precluded liability against Kassab. The Court erred by refusing to submit these
questions, warranting a new triial. See id. (trial court erred when it erroneously failed
to submit to the jury affirmative defense that was pled and supported by evidence);
Fort Worth Indep. Scoh. Dist. v. Palazzolo, 498 S.W.3d 674, 686 (Tex. App.—Fort
Worth 2016, pet. dlenied) (same).
32 “[P]ubliUc policy strongly favors exposure of crime.” Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71,
73 (Tex. App.—Corpus Christi 1991, writ denied). Kassab had an ethical obligation to notify the State
Bar of Pohl’s misconduct, and the individuals under the rules of ethics and as an officer of the court.
See TEX. DISC. R. PROF’L COND. 8.03(a) (“a lawyer having knowledge that another lawyer has
committed a violation of applicable rules of professional conduct … shall inform the appropriate
disciplinary authority.”); id. at Cmt. 1 (“Reporting a violation is especially important where the victim
is unlikely to discover the offense.”). Kassab was doing what Pohl should have done, disclosing
misconduct to the individuals. See Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied) (“A fiduciary has an affirmative duty to make a full and accurate confession
of all his fiduciary activities, transactions, profits, and mistakes.”).
25
X. The Court erred by precluding Kassab and his experts
from testifying that Pohl committed barratry.
Even though the Court concluded that evidence of Pohl’s barratry was
relevant, it improperly precluded Kassab and his experts from testifying that Pohl
committed barratry. Exclusion of this evidence was error that probeably caused the
rendition of an improper judgment. 
“An opinion is not objectionable just because it embratces an ultimate issue.”
Tex. R. Evid. 704. “[A]n expert may state an opinion on mixed questions of law and
fact, such as whether certain conduct was negligenet or proximately caused injury,
that would be off limits to the ordinary witness.” uIn re Christus Spohn Hosp. Kleberg,
222 S.W.3d 434, 440 (Tex. 2007). Whether Pohl committed barratry is a mixed
question of law and fact because “a staandard or measure has been fixed by law and
the question is whether the person or conduct measures up to that standard.” Mega
Child Care v. Tex. Dep't of Proteective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex.
App.—Houston [14th Dist.] f2000, no pet.). Thus, Texas courts have often allowed
expert witnesses to testify that a person’s conduct amounted to barratry. See The
State Bar v. Kilpatrick, 874 S.W.2d 656, 657 (Tex. 1994) (noting the State Bar had
presented an expiert who “testified on the issue of barratry” and rendering judgment
disbarring aottorney who was guilty of barratry, even absent any criminal conviction);
State v. Mercier, 164 S.W.3d 799, 816 (Tex. App.—Corpus Christi 2005, pet. ref'd)
(concluding that the State’s expert’s testimony about how “the Texas Disciplinary
Rules of Professional Conduct prohibit an attorney to pay a non-attorney for economic
benefits where the non-attorney referred cases to the attorney, namely, in exchange
26
for soliciting auto accident victims” and how the defendant’s “conduct violated rules
7.03(b) and (c) of the Disciplinary Rules” negated an exception to the criminal
barratry statute which excepts conduct permitted by the Disciplinary Rules).33
The exclusion of this evidence probably caused the rendition ofk an improper
verdict. If the evidence of Pohl’s barratry had been admitted thCe jury could have
concluded that Pohl is not the legal, equitable or rightful owner of any purported
trade secret, or it could have found Pohl primarily responsiible for the attorney’s fees
that Pohl incurred defending against the barratry proceedings. The evidence was not
cumulative of other evidence because no witness was permitted to offer an opinion
that Pohl committed barratry. Rather, Kassab was limited to testifying to his
personal “belief” that Pohl committed barrlatry, which carries much less wait than a
disinterested expert witness. M
XI. The court erred in submitting Question 6 with the
language “in an aettorney client relationship” because that
was an impropeir comment on the weight of the evidence.
A trial court may n
ot comment on the weight of the evidence. TEX. R. CIV. P.
277. “To be a direct coomment on the weight of the evidence, the issue submitted must
suggest to the juryl the trial court's opinion on the matter.” H.E. Butt Grocery Co. v.
Bilotto, 985 S.iW.2d 22, 24 (Tex. 1998). Here, the trial court directly commented on
the weight of the evidence in Question 6, which asked: “Did Kassab acquire or use
33 See also Reynolds v. State, No. 08-15-00373-CR, 2017 Tex. App. LEXIS 11059, at *15-16, 32-33 (Tex.
App.—El Paso Nov. 29, 2017, pet. ref'd) (upholding criminal conviction for barratry based on State’s
expert witness who testified about “the barratry statute and the appropriate manner in which an
attorney can secure clients” and noting that while the defendant contended that the money paid to a
purported marketing company was for legitimate advertising, “the jury could have concluded
otherwise with the guidance of the State's expert who addressed what might be proper marketing
activities through third parties.”).
27
Pohl’s trade secret while in an attorney client relationship and attempting to provide
legal services in that relationship involving the unique office professional skill,
training and authority of an attorney?”34 The limiting language “while in an attorney
client relationship” suggested the trial court’s opinion that Kassab cokuld not have
used Pohl’s trade secrets while in an attorney-client relationship bCecause the alleged
misappropriation occurred before Kassab had any clients.
XII. The jury’s answer to Question 6 wais supported by
insufficient evidence.
The jury’s “no” answer to Question 6 was supeported by insufficient evidence
because the great weight and preponderance of tuhe evidence demonstrated that even
if the attorney-client information constituted trade secrets, Kassab “used” that
information while in an attorney-client arelationship. Moreover, he was attempting to
provide legal services in that relationship involving the unique office professional
skill, training and authority of aen attorney.
The evidence proved fthat Kassab used client contact information to send
notification letters to victims of Pohl’s barratry scheme through the middle of 2017
while in attorney-client relationships with hundreds of clients beginning in February
2017. Pohl testifiied that Kassab’s “use” of the information was the proximate cause
of his damaoges, which included attorney’s fees incurred in connection with lawsuits
and grievances that Kassab filed on his clients’ behalf.35 The evidence was undisputed
34 Verdict, Question 6.
35 Verdict, Question 7(1).
28
that except for one of the grievances, Kassab filed those proceedings on behalf of
his clients while in an attorney-client relationship.36 The acquisition of clients and
filing of lawsuits are actions taken “to facilitate the rendition of legal services” that
fall within attorney immunity. Youngkin v. Hines, 546 S.W.3d 675, 68k2 (Tex. 2018)
(recognizing that “the complained-of actions included filing lawsuiCts and pleadings,”
which fell within the doctrine of attorney immunity). Indeed, the jury awarded Pohl
attorney’s fees as damages for defending against lawsuiits brought by Kassab’s
clients, finding those fees to be “proximately caused” by Kassab’s misuse of the
purported trade secrets.37
Accordingly, the jury could not reasonably conclude that Kassab did not “use”
Pohl’s alleged trade secrets. l
XIII. The trial court erredM by submitting Question 7(1) and
allowing Pohl and his expert John Zavitsanos to testify
about the attorney’s fees incurred in the underlying
barratry proceeedings because attorney’s fees from
previous litigatiion are not recoverable in a TUTSA claim.
TUTSA provides recovery for “actual loss[es] caused by misappropriation” but
the act does not defione that term. See TEX. CIV. PRAC. & REM. CODE § 134A.004.
Although no Texasl case has attempted to define that term in TUTSA, the act requires
it to “be applieid and construed to effectuate its general purpose to make uniform the
36 It is worth noting that the court of appeals in this case has already concluded that “the alleged
purchase of Pohl[’s] client list for those clients’ contact information, followed by the mailing of attorney
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 v. Pohl,
612 S.W.3d 571, 578 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (emphasis added).
37 Verdict, Question 7.
29
law with respect to the subject of this chapter among states enacting it.” TEX. CIV.
PRAC. & REM. CODE § 134A.008. Thus, the Court must look to and be guided by
decisions from other states that have adopted the Uniform Trade Secrets Act. See
Morgan v. Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 191 n.4 (Texk. App.—Tyler
2018, no pet.) (looking to Florida law when interpreting TUTSA becCause “[t]he Florida
Uniform Trade Secrets Act is very similar to the TUTSA”).
Courts in other jurisdictions “have made clear that ‘aictual loss’ means ‘loss of
profits, lost customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20-
24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at *10 (S.D. Fla. 2022) (concluding
reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets
Act) (citing Fin. Info. Techs., LLC v. iConltrol Sys., USA, LLC, 21 F.4th 1267, 1276
(11th Cir. 2021) (understanding “actuaMl loss” in terms of lost profits); Selectica, Inc. v.
Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LEXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual lossi’ has been defined as ‘loss of profits, lost customers or
lost market share.’”); Saforo & Assocs., Inc. v. Porocel Corp., 991 S.W.2d 117, 124
(Ark. 1999) (concludiong that “actual loss” means “the plaintiff’s lost profits or the
defendant’s gain, wlhichever affords the greater recovery.”).
In a casie construing the Idaho Uniform Trade Secrets Act, the Idaho Supreme
Court held that “actual loss” means “lost profits, lost customers, lost market share,
and similar losses,” but specifically held that “it would be an anomaly for us to allow
attorney fees to be recovered in a case like this as part of damages.” GME, Inc. v.
Carter, 917 P.2d 754, 757 (Idaho 1996); see also Twin Falls Staffing, LLC v. Visser
30
(In re Visser), No. 1:13-cv-00408-BLW, 2014 U.S. Dist. LEXIS 56705, at *9 (D. Idaho
2014) (citing Carter to conclude that losses from misappropriation of trade secrets
“logically include lost profits, but not attorneys’ fees.”).
The conclusion that attorney’s fees from other litigation are notk actual losses
recoverable under TUTSA is consistent with Texas trade secret lawC before the statute
was enacted. The Texas Supreme Court defined recoverable losses for a trade secret
claim as “the value of the plaintiff’s lost profits, the defendiant’s actual profits from
the use of the secret, the value a reasonably prudent investor would have paid for
the trade secret, the development costs the defendant avoided by the
misappropriation, and a reasonable royalty.” Sw. Energy Prod. Co. v. Berry-
Helfand, 491 S.W.3d 699, 710–11 (Tex. 20l16) (emphasis added). No Texas court has
ever allowed attorneys’ fees in otherM cases to be recovered as actual damages in a
trade secret claim. In fact, at least one has concluded the opposite while dismissing a
TUTSA claim. See Lacore Enteirs., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App.
LEXIS 1926, at *32-33 (Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.)
(rejecting contention othat “disclosure of [party’s] confidential information” caused
“the attorney’s feesl that have been incurred [which] is evidence of damages” because
“attorney’s feeis incurred in a lawsuit are not actual damages.”).
This conclusion is further reinforced by Texas law in general regarding
attorney’s fees incurred in previous litigation. “[F]ees expended in prior litigation
generally are not recoverable as damages; fees are recoverable only when an
agreement between the parties so provides.” Martin-Simon v. Womack, 68 S.W.3d
31
793, 797 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); see also Tana Oil & Gas
Corp. v. McCall, 104 S.W.3d 80, 81-82 (Tex. 2003) (attorney’s fees for defending a
different claim are not recoverable as damages as a matter of law); O’Neal v. Dale,
No. 02-20-00173-CV, 2021 Tex. App. LEXIS 466, at *28 (Tex. App.—Fokrt Worth Jan.
21, 2021, no pet.) (mem. op.) (“a party’s claim that he incurredC attorney’s fees to
defend against [another] claim is not a viable damage claim.”); Tex. Mut. Ins. Co. v.
Ray Ferguson Interests, Inc., No. 01-02-00807-CV, 2006 Tiex. App. LEXIS 2001, at
*23-24 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. op.)
(“financial loss due to time spent by [party] on litigation matters” in another case was
not, as a matter of law, recoverable). And the law is clear that “[a] party relying on
assertions of non-recoverable damages alolne, such as attorney’s fees and expenses
sustained in defending a lawsuit . . . Mhas presented a legal barrier to any recovery.”
Woodhaven Partners Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837 (Tex.
App.—Dallas 2014, no pet.). i
Pohl has argued that he is entitled to recover attorney’s fees based on an
exception to the generoal rule based on the “tort of another,” which applies to one who
has been forced byl the tort of another to protect his or her interests by bringing or
defending an aiction against a third person. See Naschke v. Gulf Coast Conference, 187
S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (quoting
Restatement (Second) Of Torts § 914 (1979)). When applicable and accepted, that
exception would allow the person forced to bring or defend an action is entitled to
recover reasonable compensation for attorney fees incurred in the earlier action. But
32
that exception has never been recognized by the Texas Supreme Court38 and has been
flatly rejected by the Fourteenth Court of Appeals.39 See Naschke, 187 S.W.3d at 655
(“Because we are bound to follow the existing laws of the State, we are not at liberty
to adopt a theory of recovery that has not been enacted by the Legislatukre or adopted
by the Texas Supreme Court.”). C
The First Court of Appeals has not specifically held whether the “tort of
another” exception is viable. But it has stated that becaiuse this exception is an
equitable doctrine it can only apply when the plaintiff is “wholly innocent” of any
wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex.
App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem.
op.). Not only did the jury find that Pohl wlas not wholly innocent of any wrongdoing,
but Pohl stipulated in post-trial briefiMng that he was not seeking equitable remedies.
Because attorney’s fees are not recoverable damages under TUTSA, the Court
erred when it submitted Questiion 7(1) to the jury and that error was harmful because
it permitted the jury to find an improper element of damages, which the Court
awarded to Pohl in thoe judgment.
38 See Akin, Gum f ip, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119
(Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the
Second Restnatement should be adopted as Texas law.”).
39 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.
Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s
faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack
the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable
exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App.
LEXIS 3776, at *20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases);
Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex.
App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases).
33
Moreover, expert or lay opinion testimony is only permitted if it will be helpful
to determining a fact in issue. TEX. R. EVID. 701, 702. Because attorney’s fees as
damages are not a recoverable under TUTSA, any testimony from Pohl or his expert,
John Zavitsanos, about the attorney’s fees incurred in the underlyking barratry
proceedings is irrelevant and should have been excluded. See EnbCridge Pipelines (E.
Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012) (trial court must
act as an evidentiary gatekeeper by screening out irrelevaint testimony). That error
was harmful because the jury relied on testimony from Pohl and Zavitsanos to find
damages for the attorney’s fee incurred un prior litigation.
XIV. Factually insufficient evidence supports the jury’s answer
to Questions 7(2) and (3).
Factually insufficient evidence saupports the jury’s answer to Question 7(2),
which found $250,000 in damages for the “price that a willing buyer and a willing
seller would have agreed on, at ethe time of the misappropriation, as a fair price for
Kassab’s [alleged] use of t
hef trade secret(s).”40 This question asked about “market
value,” which means “the price the property will bring when offered for sale by one
who desires to sell, but is not obliged to sell, and is bought by one who desires to buy,
but is under no inecessity of buying.” City of Harlingen v. Estate of Sharboneau, 48
SW.3d 177,o 182 (Tex. 2001). As the purported owner of the property, Pohl could only
testify (if he had been properly designated, which he wasn’t)41 about “market value,
not intrinsic value or some speculative value of the property.” Id. Yet, Pohl presented
40 Verdict, Question 7(2).
41 As explained next, Pohl was erroneously allowed to testify on this issue over Kassab’s objection.
34
no evidence of the “market value” of the purportedly trade secret information. Rather,
he only testified as to the “intrinsic value” or “actual value” of the information, which
is not market value. See City of Harlingen, 48 SW.3d at 182.
Presumably, the jury improperly adopted the $250,000 figure fkrom evidence
that Kassab and Montague paid Favre a retainer to act as an expeCrt in the barratry
litigation. Even if the jury could reasonably conclude that the $250,000 figure was a
“purchase price” for Pohl’s alleged trade secrets, that wouldi be considered an “actual
value” and not “market value,” which was the theory submitted to the jury. Pike v.
Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 784 n.27 (Tex. 2020) (distinguishing between
“market value” and “actual value” and noting that “evidence of purchase price alone
cannot establish market value” and alpproving cases rendering take-nothing
judgments “where purchase price Mwas only evidence of damages presented”).
“[P]urchase price is merely a starting point for calculating actual value,” not market
value. See id. at 784. Further,i “one sale [is] not sufficient to fix a fair market value.”
InterFirst Bank Dall., N.A. v. Risser, 739 S.W.2d 882, 891 (Tex. App.—Texarkana
1987, no writ); Mo., Ko. & T. R. Co. v. Moss, 135 S.W. 626, 627 (Tex. Civ. App. 1911,
no writ) (“Evidencel of a single sale is admissible, but not alone sufficient to establish
market value.”i). There was insufficient evidence to support the jury’s finding on the
market value of the purported trade secrets.
Finally, there was insufficient evidence to support the jury’s finding in
Question 7(3) of $200,000 for the “value of the development costs that Kassab avoided
35
by [allegedly] misappropriating Pohl’s trade secret(s).”42 While damages in trade-
secret cases can be flexible and imaginative, Pohl did not proffer sufficient evidence
for the jury to have made a just and reasonable inference regarding development costs
saved by Kassab, if any. See Szczepanik v. First S. Tr. Co., 883 S.W.2d 6k48, 649 (Tex.
1994) (amount of damages must “be shown by competent evidencCe with reasonable
certainty.”). Instead, the jury was left to speculate or guess about the amount Kassab
saved in development costs based on the alleged misapproipriation, which does not
constitute legally sufficient evidence. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d
763, 782 (Tex. 2020) (plaintiff in misappropriation of trade secrets case cannot
“leav[e] the jury to speculate on the amount [the defendant] saved” by engaging in
the alleged misappropriation); Sw. Energyl, 491 S.W.3d at 712 (trade secret damages
“cannot be based on sheer speculationM.”).
XV. The Court erred by allowing Pohl to testify on the
purported value eof the trade secrets because the property
owner rule doesi not apply, and Pohl was not designated to
testify on thatf issue.
The trial court overruled Kassab’s objection to Pohl testifying about the value
of the purported trade secrets. Texas Rule of Evidence 701 has been interpreted to
include a “propeirty owner rule,” which holds that “a property owner is qualified to
testify to thoe value of his property even if he is not an expert and would not be
qualified to testify to the value of other property.” Accurate Precision Plating, LLC v.
Guerrero, No. 01-14-00706-CV, 2015 Tex. App. LEXIS 12034, at *7 (Tex. App.—
Houston [1st Dist.] Nov. 24, 2015, pet. denied) (mem. op.).
42 Verdict, Question 7(3).
36
However, the property owner rule “does not extend to matters that are of a
technical or specialized nature.” Jatex Oil & Gas Expl. L.P. v. Nadel & Gussman
Permian, L.L.C., 629 S.W.3d 397, 407 (Tex. App.—Eastland 2020, no pet.). The value
of a trade secret is the kind of technical or specialized matter that “is nkot a matter of
common knowledge.” Arkoma Basin Expl. Co. v. FMF Assocs. C1990-A, Ltd., 249
S.W.3d 380, 388 (Tex. 2008). Accordingly, the property owner rule does not apply to
something as specialized and technical as the value of a triade secret. See Jatex Oil,
629 S.W.3d at 407 (property owner could not testify to value of mineral interest);
Accurate Precision, 2015 Tex. App. LEXIS 12034, at *9 (owner of business could not
testify to lost profits and revenues).
Moreover, the Court erred by allowilng Pohl to testify on the market value of
the trade secret because Pohl was onlyM designated to opine on “the reasonable value
of the [purported trade secrets] at the time it was [allegedly] converted and/or
misappropriated.”43 Pohl madie clear in his deposition that he was testifying about
“the intrinsic value of the [purportedly] stolen property,” claiming it was worth
“between” $250,000 aond $6 million.44 But the “the property owner's testimony must
be based on marklet value, not intrinsic value or some speculative value of the
property.” Accuirate Precision, 2015 Tex. App. LEXIS 12034, at *7. Because Pohl was
not designated to testify about the market value of the alleged trade secret, his
testimony should have been excluded.
43 Exhibit 8, Pohl’s Second Amended Expert Designations, at 7.
44 Exhibit 9, December 2021 Pohl Deposition, at 117.
37
XVI. Factually insufficient evidence supports the jury’s finding
that “the misappropriation of Pohl’s trade secret(s) by
Kassab was willful and malicious” (Question 8) based on
“clear and convincing evidence” (Question 17).
There was insufficient evidence to support the jury’s answer to Question 8,
which found that Kassab engaged in “willful and malicious” misapperopriation. For
the jury to reach that conclusion, it was required to find that Kassab’s
misappropriation “result[ed] from the conscious disregard of tthe rights of the owner
of the trade secret.”45 Ten of the jurors found that Kassab engaged in “willful and
malicious” misappropriation by “clear and convinceing evidence,” which the Court
defined to mean “the measure or degree of pruoof that produces a firm belief or
conviction of the truth of the allegations sought to be established.”46 In addition to
the nonunanimous finding being insuafficient to support an award of exemplary
damages,47 insufficient evidence supports a finding of clear and convincing evidence
of malice. e
To decide whether thefre is sufficient evidence supporting the jury's finding
that Kassab specifically intended to cause substantial injury or harm to Pohl, the
Court is required to “analyze the evidence supporting the malice of each defendant .
. . instead of groiup[ing] them together.” Horizon Health Corp. v. Acadia Healthcare
Co., 520 S.Wo.3d 848, 867 (Tex. 2017). Further, “evidence of the tort itself, with little
45 Verdict, Question 8.
46 Verdict, Question 17 and Certificate.
47 Kassab detailed in his objection to the judgment and Motion for Judgment Notwithstanding the
Verdict why Pohl is not, as a matter of law, entitled to exemplary damages.
38
more,” is insufficient to support a jury’s finding of malice in a theft of trade secrets
case. See id.; Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 665 (Tex. 2012) (“Conduct
which was necessary merely for liability cannot serve as a basis for punitive
damages.”). k
The only evidence Pohl offered of Kassab’s alleged maliceC was: (1) Kassab’s
filing a grievance against Pohl and copying news outlets and the District Attorney
(because Pohl committed conduct that was criminal and a miatter of public concern);
and (2) testimony that lawyer files are generally confidential. But this evidence does
not prove that Kassab knew – at the time he received the information from Favre and
Precision– that the information was owned by Pohl (as opposed to Precision or the
clients) as his trade secret. l
Regarding the attorney-client cMontracts, Kassab testified that the information
is owned by the client, not the lawyer, and not confidential. And Kassab testified that
he saw documents certifying thiat the list of Pohl’s actual, potential or rejected clients
were owned by Precision, and that Favre made that same representation to him.
Moreover, there waso uncontroverted evidence that the information was freely
transferred to Favlre when he purchased Precision in May 2015 and disclosed to
various partiesi in the Mississippi litigation without a protective order or any stamp
of “confidential” or “trade secret.” Thus, insufficient evidence supported the jury’s
finding that Kassab consciously disregarded the rights of the owner of the trade secret
because the uncontroverted evidence established that Kassab believed the
information was never owned by Pohl and was in the public domain.
39
The evidence is further insufficient because Pohl “adduced no evidence that
[Kassab] caused [Pohl] an injury independent of and qualitatively different than the
misappropriation itself.” See Eagle Oil & Gas Co. v. Shale Expl., LLC, 549 S.W.3d
256, 285 (Tex. App.—Houston [1st Dist.] 2018, pet. dism'd). The ekvidence also
demonstrated that Kassab had an obligation to notify Pohl’s formCer clients and the
State Bar of Pohl’s unlawful conduct, and that Kassab had a right to represent Pohl’s
former clients in lawsuits and grievance proceedings againsit Pohl. “[L]egally justified
conduct” is “simply not probative to either establish a violation or malice.” Safeshred,
, 365 S.W.3d at 665. “[Kassab’s alleged] intentional misappropriation and misuse of
[Pohl’s] trade secrets is not legally sufficient evidence of malice.” See Eagle Oil, 549
S.W.3d at 285. “If it were, exemplary damlages would be recoverable as a matter of
course in every misappropriation casMe, rather than the exceptional case involving
egregious misconduct and injury.” Id.
XVII. Factually insuffiicient evidence supports the jury’s finding
of exemplary dfamages of $3 million.
Because the jury’s finding of actual malice was non-unanimous and supported
by insufficient evidence, no exemplary damages should have been awarded.
Moreover, becauise Pohl is not entitled to attorney’s fees as damages under TUTSA,
the actual looss should have been, at most, $250,000. TUTSA provides that “the fact
finder may award exemplary damages in an amount not exceeding twice any award”
permitted as damages for misappropriation. See TEX. CIV. PRAC. & REM. CODE §
134A.004. Therefore, the maximum exemplary damages can only be $500,000. See id.
But in addition to those limitations, the $3,000,000 exemplary damage finding is
40
supported by insufficient evidence.
The jury was instructed to consider various factors when awarding exemplary
damages as a “punishment,” none of which support the jury’s finding:
• The alleged harm to Pohl was economic rather than physical.
• Because the character of the conduct involved was primaCrily limited
to alleged misappropriation of information that Kassab testified did
not know belonged to Pohl, the degree of Kassaib’s culpability was
highly questionable.
• The situation does not offend the public sense of justice. To the
contrary, the evidence demonstrated that Kassab was promoting
justice by exposing Pohl’s unlawlful conduct to barratry victims and
the State Bar, which KassaMb had a legal obligation to do.
• No evidence was presented to the jury about Kassab’s net worth.
The jury’s award of puinitive damages was so against the great weight and
preponderance of the evidence as to be manifestly unjust. Rather than consider the
factors, the jury probaobly considered improper items of alleged damages in assessing
exemplary damagels, and inexplicably appealed to passion or prejudice rather than
reasonable judigment. Accordingly, a new trial or, alternatively, a remittitur of the
entire exemplary damage award, is appropriate.
XVIII. The Court erred in submitting the conspiracy claim
(Question 15) because that claim is pre-empted by TUTSA.
TUTSA provides that it “displaces conflicting tort, restitutionary, and other
law of this state providing civil remedies for misappropriation of a trade secret.” TEX.
41
CIV. PRAC. & REM. CODE §134A.007. A conspiracy claim is among the other civil
remedies for misappropriation of trade secrets that is preempted.
In Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV, 2023 Tex. App.
LEXIS 8903 (Tex. App.—Houston [1st Dist.] Nov. 30, 2023, no pet. h.)k, the plaintiff
sued for misappropriation of trade secrets and aiding and abetting Cbreach of fiduciary
duty. Id. at *7-8. The court of appeals concluded that the aiding and abetting claim
was “primarily based on the individual appellants’ misapproipriation of trade secrets”
and “provide[ed] remedies for the underlying misconduct of misappropriation of trade
secrets.” Id. at 47. “Under the plain language of TUTSA, these claims conflict with
civil remedies for misappropriation of a trade secret.” Id. at *47-48. Therefore,
“TUTSA preempts these claims to the extlent they are based on appellants’ alleged
misappropriation of trade secrets.” IdM. at *48.
Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is
based entirely on Kassab’s alleiged misappropriation of trade secrets. The conspiracy
question asked, “[r]egarding the conduct you found in answer to Question 2 [which
asked “[d]id any of theo parties listed below misappropriate Pohl’s trade secret?”], was
Kassab part of a clonspiracy that damaged Pohl with any of those named below?”48
Because Pohl’si conspiracy claim is “primarily based on” alleged misappropriation of
trade secrets, it is preempted. See Reynolds, 2023 Tex. App. LEXIS 3067, at *47-48;
see also VEST Safety Med. Servs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812, 2022
U.S. Dist. LEXIS 127285, at *10 (S.D. Tex. 2022) (“the weight of authority from
48 Verdict, Question 15.
42
district courts within the Fifth Circuit … [demonstrate a] conspiracy claim is
preempted by TUTSA.”).
Because the conspiracy claim was preempted, the Court should have dismissed
that claim on summary judgment and not have allowed Pohl to submkit that claim.
This error was harmful because it improperly allowed Pohl to confClate the conduct of
Kassab with other alleged co-conspirators so that the jury was required to speculate
whether Kassab directly or indirectly misappropriated any oif Pohl’s trade secrets and
whether Pohl proved the elements of misappropriation for each defendant.
XIX. The Court erred by denying Kassab’s designation of
responsible third parties, incluuding George W. Shepherd,
Donalda Pohl, Edgar Jaimes, Ken Talley and Magdalena
Santana.
A trial court is required to grant aleave to designate responsible third parties if
a motion is timely filed that pleads sufficient facts concerning the alleged
responsibility of the persons to ebe designated. See In re YRC Inc., 646 S.W.3d 805,
809 (Tex. 2022). Kassab timfely moved to designate George W. Shepherd, Donalda
Pohl, Edgar Jaimes, Ken Talley, and Magdalena Santana as responsible third parties
and pled sufficient facts demonstrating their responsibility. The Court’s denial of
Kassab’s motioni for leave was an abuse of discretion.
Kassoab alleged that Shepherd knew that Walker, Seymour and Ladner had
sold Precision to Favre, and in that sale transferred Precision’s assets to Favre,
including the information that Pohl claims are his trade secrets. Kassab also alleged
that Shepherd knew that Favre had given documents to third parties, including
Kassab and others, before settling the Mississippi litigation, but failed to protect Pohl
43
by ensuring that all proprietary information was gathered from all third parties and
returned to Pohl or destroyed as part of the any settlement agreement, if Pohl owned
and/or desired to safeguard that property.
Kassab alleged that if Donalda, Jaimes, Talley, or Santana had akn agreement
and/or duty to safeguard any property allegedly owned by Pohl, thCey are responsible
for failing to safeguard the property because they routinely placed Pohl’s alleged
trade secrets and documents in the public domain. Thiey did so by circulating
Precision’s marketing lists and other documents allegedly belonging to Pohl to
numerous third parties rather than safeguard these documents and lists.
The Court erred when it refused to grant Kassab’s motion for leave to designate
these individuals as responsible third partlies. “The erroneous denial of a motion for
leave to designate a responsible third Mparty skews the proceedings, potentially affects
the litigation's outcome, and compromises the defense in ways unlikely to be apparent
in the appellate record.” Sancihez v. Castillo, No. 05-18-01033-CV, 2020 Tex. App.
LEXIS 1867, at *15 (Tex. App.—Dallas Mar. 4, 2020, no pet.) (mem. op.). Therefore,
a new trial is warrantoed. See id.
XX. The Clourt erred by denying Kassab’s motion to abate this
casie pending resolution of the related litigation that is
ciurrently pending against Pohl for civil barratry.
The Court erroneously denied49 Kassab’s motion to abate this case pending
resolution of Cheatham v. Pohl, No. 01-20-00046-CV, 2022 Tex. App. LEXIS 6528
(Tex. App.—Houston [1st Dist.] Aug. 30, 2022, pet. filed) (mem. op.). That related
49 See September 23, 2022 Order Denying Motion to Abate.
44
litigation is currently pending against Pohl for civil barratry. The resolution of that
case would have a substantial impact on the claims in this case. In his motion to
abate, Kassab explained that abatement was appropriate for two reasons. First, the
outcome of Cheatham could alter the course of this litigation because ifk it resulted in
a judgment against Pohl for barratry, Pohl could not have argued thCat all the barratry
claims brought against him were frivolous. Second, Pohl sought from Kassab
damages in this case that included attorney’s fees fori defending against the
Cheatham case, which was still ongoing. But if Pohl had been found liable for barratry
in Cheatham, then he would have been required to pay attorney’s fees to the plaintiffs
in that case. The Court’s erroneous denial of the motion to abate was harmful because
it allowed Pohl to take the positions thatl he did, which substantially altered the
course of trial and the evidence preseMnted.
XXI. The Court erred by allowing Pohl to assert affirmative
claims against Keassab but then withhold relevant and
material inforimation based on purported claims of
privilege. f
The Court also erred when it denied Kassab’s motion to compel discovery from
Pohl based on the doctrine of offensive use (or, at minimum, conducting an in camera
review of the iniformation).50 On a related note, the Court erred when it overruled
Kassab’s obojection to Pohl’s calling of Shepherd and using redacted billing records at
trial.
Kassab’s motion to compel demonstrated that Pohl could not sue Kassab for
affirmative relief claiming Kassab stole his purported trade secrets and caused clients
50 November 28, 2022 Order Denying Motion to Compel.
45
to bring barratry claims against Pohl, while at the same time claiming privilege to
deny access to discovery that would be relevant to those claims. See Ginsberg v. Fifth
Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985).
Pohl cannot deny Kassab outcome determinative information thakt has bearing
on Pohl’s ability to recover, such as information that would demonCstrate that Pohl’s
claims are barred by limitations, illegality and the unlawful acts doctrine, or
demonstrate that Pohl is not the owner of the purported tradie secret information. See
id. at 106 (plaintiff could not assert privilege to protect against the disclosure of
information that was “materially relevant to, and possibly validated, the statute of
limitations defenses asserted by” the defendant). But that is exactly what Pohl did,
claiming privilege when Kassab sought thlis information from Pohl’s counsel in the
Mississippi litigation, Billy ShepherdM.
Pohl also cannot deny Kassab the proof underlying Pohl’s claim for
reimbursement of attorney’s feies incurred in previous litigation and require the jury
to simply trust that the attorney’s fees were actually incurred, reasonable and
necessary. See In re Noat'l Lloyds Ins. Co., 532 S.W.3d 794, 807 (Tex. 2017) (“party
may waive its workl-product privilege through offensive use—perhaps by relying on
its billing reciords … to recover its own attorney fees.”); In re Beirne, Maynard
& Parsons, L.L.P., 260 S.W.3d 229, 231 (Tex. App.—Texarkana 2008, no pet.)
(attorney “cannot deny [opposing] party the right to review documents supporting
[his or her] claim for reimbursement.”). But Pohl did that, refusing to produce
unredacted billing invoices.
46
Therefore, the Court should have ordered that Pohl produce complete un-
redacted versions of the invoices that Pohl claimed support his damages, along with
all underlying documentation, including communications and draft documents. The
Court also should have found that Pohl waived any privilege betwkeen him and
Shepard regarding: (1) when Pohl discovered any alleged misapproCpriation; (2) Pohl’s
efforts to keep the information secret; and (3) Pohl’s unlawful barratry. The Court’s
failure to do so was harmful because it erroneously excludeid information relevant to
Pohl’s ability to recover, such as information that would demonstrate that Pohl’s
claims are barred by limitations, illegality and the unlawful acts doctrine, or
demonstrate that Pohl is not the owner of the purported trade secret information.
The un-redacted billing records also mayl have demonstrated that the fees Pohl
sought were not reasonable or necessMary.
Because Pohl did not produce unredacted billing records, the Court should
have sustained Kassab’s objecition to Pohl’s billing record exhibits when Pohl offered
them trial. See Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993)
(“the trial court has thoe power during trial to sanction nondisclosure of information”
by excluding it frolm being used). The Court also should not have allowed Shepherd
or Zavitsanos ito testify over Kassab’s objection. The Court’s action was harmful
because it allowed Pohl to use the unredacted billing records, which the jury
undoubtedly relied on when awarding Pohl attorney’s fees, and allowed Shepherd and
Zavitsanos to testify based on those records.
47
XXII. The Court erred by dismissing Kassab’s counterclaims for
civil barratry.
The Court erred when it granted Pohl’s traditional motion for summary
judgment on Kassab’s counterclaims for civil barratry t pursuant to Texas
Government Code § 82.0651. Pohl made four arguments in supporet of his motion,
none of which withstand scrutiny. 
First, Pohl sought to dismiss the counterclaims based otn res judicata. But that
doctrine does not apply if facts change and the relationship between the parties has
been altered. See Marino v. State Farm Fire & Cas. Iens. Co., 787 S.W.2d 948, 949-50
(Tex. 1990). That is what occurred here. Before thuere was a final judgment dismissing
the clients’ civil barratry claims based on limitations, Pohl sued Kassab arising from
the same transaction where the barratary occurred. That act allowed the clients to
assign the barratry claims to Kassab to be brought as counterclaims in this action,
thus allowing Section 16.069 of ethe Texas Civil Practice & Remedies Code to revive
the otherwise time-barred bafrratry claims. Because both the factual circumstances
and the relationship between the parties changed, res judicata did not apply.
Second, Pohl argued that the claims were barred by limitations. But
limitations is toilled on these claims pursuant to Section 16.069 because they arise
out of the soame transaction or occurrence that is the basis of Pohl’s action and were
filed within 30 days from the date on which Kassab was required to answer.
Third, Pohl argued that the clients’ assignments of barratry claims against him
are invalid, either as a matter of law or for purported non-compliance with the
Disciplinary Rules. Regardless, the law is clear that technical non-compliance with
48
the Disciplinary Rules is insufficient to void otherwise valid contracts like the
Assignments. Pohl’s policy arguments about why Section 16.069 should not apply
here fail.
Fourth, Pohl argued that the assignments are not invalid, violatek public policy,
and should not be enforced. As explained in Kassab’s motion, PohlC should have been
estopped from making this argument after he told other courts that the assignments
were valid. Regardless, the assignments were not invalid ais a matter of law because
a civil barratry claim is not a claim for legal malpractice or for violation of the
Deceptive Trade Practices Act, which are the only claims that cannot be assigned
under Texas law. The assignments do not violate the disciplinary rules but, even if
they did, Pohl has no standing to complain labout the violation, and Texas courts have
enforced agreements even if they contMravene the disciplinary rules.
The Court’s erroneous granting of Pohl’s motion constituted harmful error, not
only because it prevented Kaissab from pursuing those claims at trial, but also
because it impacted the evidence of barratry that Kassab could present and which
would have undoubtedoly changed the course of the trial proceedings, and it led to the
jury’s erroneous colnclusion that Pohl was not responsible for his damages.
XXIII. iInsufficient evidence supports the jury’s award of
oattorney’s fees because the testimony from Pohl’s expert
was conclusory and the invoices were heavily redacted.
Insufficient evidence supports the jury’s award of attorney’s fees because the
invoices that Pohl submitted were so heavily redacted that they amounted to no
evidence, and the testimony by Pohl’s purported attorney’s fee expert, Zavitsanos,
49
was conclusory.
“General, conclusory testimony devoid of any real substance will not support a
fee award.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501
(Tex. 2019). Zavitsanos’ testimony with respect to the Arthur Andersenk51 factors was
insufficient and conclusory. Zavitsanos did not provide sufficient tCestimony as to the
time and labor required for the case, the novelty and difficulty of the questions
involved, or the skill required to perform the legal seirvice properly. Nor did
Zavitsanos provide sufficient testimony about the likelihood that the acceptance of
the employment precluded Pohl’s counsel from accepting other employment.
Zavitsanos also failed to provide sufficient testimony about the fee customarily
charged in the locality for similar legal serlvices, the time limitations imposed by the
client or by the circumstances, andM the nature and length of the professional
relationship with the client. Zavitsanos testified broadly about the experience,
reputation, and ability of thei Reynolds Frizzell law firm, but failed to do so with
respect to each of the lawyers and staff who billed the case. “[W]ithout evidence of
the factors identified ion Disciplinary Rule 1.04, the fact finder has no meaningful way
to determine if thel fees sought are in fact reasonable and necessary.” Rohrmoos, 578
51 Arthur UAndersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (identifying the factors
as “(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
required to perform the legal service properly; (2) the likelihood . . . that the acceptance of the
particular employment will preclude other employment by the lawyer; (3) the fee customarily charged
in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time
limitations imposed by the client or by the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and (8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been rendered.”) (citing TEX. DISCIPLINARY R.
PROF. CONDUCT 1.04).
50
S.W.3d at 494.
The evidence on attorney’s fees is also insufficient because the billing invoices
submitted “are so heavily redacted, it is impossible to determine what tasks were
performed, when the tasks were performed, how long the tasks took tok perform, and
who performed the tasks.” THB Constr., LLC v. Holt Tex., Ltd., NoC. 05-20-00020-CV,
2022 Tex. App. LEXIS 277, at *7-8 (Tex. App.—Dallas Jan. 13, 2022, no pet. h.). Here
are a few examples: i
51
Although Zavitsanos testified regarding these invoices, she testified only about
general tasks peformed during the representaiton, and only summarily stated that
that the fees were necessary and reasonable factors. The redacted invoices provide no
additional evidence beyond Zavitsanos’ testimony due to the heavy redactions,
rendering the evidence insufficient to supyport the jury’s award. See THB Constr.,
2022 Tex. App. LEXIS 277, at *10-12 (“Haolt's heavily redacted invoices fail to identify
any work performed.”). f
Moreover, to show the reasonableness and necessity of attorney's fees, the
party seeking attorney's feOes must show the fees were incurred while suing the party
sought to be charged wipth the fees on a claim that allows recovery of the fees. Stewart
Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). In other words, Pohl is only
entitled to attocrney’s fees for his recoverable claim, which is the TUTSA claim. “[I]f
any attorney's fees relate solely to a claim for which such fees are unrecoverable, a
claimant must segregate recoverable from unrecoverable fees.” Tony Gullo Motors I,
L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). But here, the fee award includes
Pohl’s attorney’s fees relating to the entire case, including time incurred in relation
to the conversion claim, which is unrecoverable. “Although attorneys may testify that
52
a certain percentage of their time would have been necessary even in the absence of
the unrecoverable claim, general, conclusory testimony devoid of substance will not
support a fee award.” Desio v. Bosque, No. 05-21-00022-CV, 2022 Tex. App. LEXIS
1202, at *12 (Tex. App.—Dallas Feb. 18, 2022, no pet. h.) (mem. op.). Herke, Zavitsanos
made no attempt to explain how the discrete legal services advanceCd both recoverable
and unrecoverable claims. Because Zavitsanos’ testimony on this issue was non-
existent or conclusory, the jury’s findings were so againist the great weight and
preponderance of the evidence as to be clearly wrong and unjust.
There is also insufficient evidence to support the award of conditional appellate
fees. First, Zavitsonos was not qualified to opine on appellate fees because he did not
testify about any expertise in appellate feles. Second, the hypothetical nature of a
conditional appellate fees does not exMcuse a party from providing “opinion testimony
about the services it reasonably believes will be necessary to defend the appeal and a
reasonable hourly rate for thiose services.” Yowell v. Granite Operating Co., 620
S.W.3d 335, 354-55 (Tex. 2020). Here, Zavitsanos’ testimony about expected appellate
fees failed to comply woith this standard. Zavitsanos provided insufficient testimony
about the services lPohl’s counsel will provide to defend the appeal, or the reasonable
hourly rates fior those services. Rather, Zavitsanos provided conclusory testimony
about expected fees at the various levels of the appellate process, which is insufficient.
See KBIDC Invs., LLC v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 Tex. App. LEXIS
8055, at *63-65 (Tex. App.—Dallas Oct. 9, 2020, pet. denied) (testimony that “a
reasonable fee for handling an appeal to the Dallas Court of Appeals is $30,000” and
53
“a reasonable fee for preparation of the—or responding to a petition for a request to
the Supreme Court to review an appellate court decision from the Court of Appeals
would be $10,000” was insufficient to support conditional appellate fee award);
Jimmie Luecke Children P'ship v. Droemer, No. 03-20-00096-CV, 20k22 Tex. App.
LEXIS 605, at *21 (Tex. App.—Austin Jan. 27, 2022, pet. denied) (Cmem. op.) (same).
CONCLUSION & PRAYER
For these reasons, Kassab asks the Court to grant thiis motion, vacate the final
judgment, and order a new trial.
ALEXANDER DUBOSE & JEFFERSON
/s/ Kevin Dubose
Kevin Dubose
kldubose@adjtlaw.com
aTexas State Bar No. 06150500
M1844 Harvard Street
 Houston, Texas 77008
Phone (713) 523-0667
e Facsimile (713) 522-4553
f FOGLER, BRAR, O’NEIL & GRAY, LLP
/s/ Murray Fogler
o Murray Fogler
mfogler@foglerbrar.com
l Texas State Bar No. 07207300
i 909 Fannin, Suite 1640
i Houston, Texas 77002
o (713) 481-1010
(713) 574-3224 (Fax)
THE KASSAB LAW FIRM
/s/ David Eric Kassab
Lance Christopher Kassab
Texas State Bar No. 00794070
David Eric Kassab
54
Texas State Bar No. 24071351
1214 Elgin Street
Houston, Texas 77004
Telephone: (713) 522-7400
E-service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFEN k DANTS
CERTIFICATE OF SERVICE t 
I certify that this document has been forwarded to all tparties pursuant to the
Texas Rules of Civil Procedure on January 19, 2024. i
/s/ David Eric Kassab
David eEric Kassab
55
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Scott M.Favre scott@favrepa.com 1/19/2024 3:31:14 PM SENT
Lawyer Wade lawayerwade@hotmail.com 1/19/2024 3:31:14 PM SENT
Chris C.Pappas cpappas@krcl.com 1/19/2024 3:31:14 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 1/19/2024 3:31:14 PM SENT
Non-Party Dona Pohl c DonaLyann@yahoo.com 1/19/2024 3:31:14 PM SENT
Non-Party Edgar Jaimes f edgarsroom@gmail.com 1/19/2024 3:31:14 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Marisa Barrera Cruz Hurda 24041157 mhurd@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Lance Kassab eserve@kassab.law 1/19/2024 3:31:14 PM SENT
Murray Fogler o mfogler@fbfog.com 1/19/2024 3:31:14 PM SENT
Murray JFogleUr mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Benjamin Ritz britz@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
D Kassab david@kassab.law 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 1/19/2024 3:31:14 PM SENT
L Kassab lance@kassab.law 1/19/2024 3:31:14 PM SENT
Kelly Skelton reception@kassab.law 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
David Kassab c david@kassab.law 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell f jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell  jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT"
63,2023-10-23,LTR,Pohl,Request for ruling on final judgment,"Pohl's Request for a Ruling on Motion for Entry of Final Judgment, urging Court to expedite consideration of the pending motion and raising concerns about Kassab's continued harassment through Mississippi bar complaints filed using case materials","Request for ruling filed October 23, 2023, more than one month after the September 19, 2023 hearing on entry of judgment. The Motion for Entry of Final Judgment was filed promptly after the August 31, 2023 jury verdict and has been ripe for over a month without a ruling.",JDGMT-1,N/A,Phase 5,2023-10-23_LTR_Pohl-Request-for-Ruling-on-Final-Judgment_FILED.pdf,"That the Court expedite consideration and grant Pohl's Motion for Entry of Final Judgment, entering final judgment in Pohl's favor in the form attached to the Motion","10/23/2023 5:36 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 80886597
By: Patricia Gonzalez
Filed: 10/23/2023 5:36 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
POHL’S REQUEST FOR A RULING ON
POHL’S MOTION FOR ENTRY OF FINAsL JUDGMENT
Pohl requests that the Court expedite its consideration of Pohl’s Motion for Entry of Final
Judgment (the “Motion”). The Motion has been ripe for a ruling for over a month, and while Pohl
waits for entry of judgment on the jury verdict in his favor, it appears that Kassab is using materials
from this lawsuit to continue to harass Pohl—adespite the jury’s verdict being inconsistent with
Kassab’s barratry and unauthorized practice of law theories in this case. The Court should
promptly enter a final judgment to gieve finality to the trial proceedings in this case.
f I. BACKGROUND
Kassab has unsucceyssfully accused Pohl of engaging in barratry and the unauthorized
practice of law for the lCast six years. According to Kassab, Pohl allegedly obtained clients through
barratry and the unaauthorized practice of law in Mississippi, and thus, Pohl did not have rightful,
legal, or equitabfle title in any trade secret concerning Pohl’s clients. However, on August 31,
2023, theU jury rendered a verdict in Pohl’s favor, and found that, despite Kassab’s allegations of
barratry and the unauthorized practice of law, Pohl owned the trade secrets concerning his clients.
After the jury rendered their verdict, Pohl promptly filed the Motion requesting entry of
judgment and set the Motion for a hearing on September 19, 2023. As the briefing and arguments
at that hearing showed, Pohl is entitled to entry of a final judgment in his favor that gives effect to
the jury’s findings of liability and damages.
Since trial, Pohl has learned new information that suggests that Kassab is using materials
from this case to continue to harass Pohl through the filing of bar complaints. Tkhrough a letter
dated October 18, 2023, Pohl was informed that a Mississippi bar complaint wals filed against him
based on materials from this case like expert reports, deposition excerpcts, and other documents
produced in this case—many of which contained Kassab’s Bates labesls.
While it is clear that someone sent the Mississippi bar comsmittee materials from this case—
the materials were attached to the bar complaint—the bar complaint does not identify who sent the
materials. However, the relevant materials attached to the bar complaint did not all come from
public filings, as they do not have exhibit stamps or other relevant markings. Given this, the
reasonable inference is that Kassab, or someaone with Kassab’s assistance, sent materials to the
Mississippi bar to continue to harass Pohl based on unproven conduct that allegedly occurred more
than 10 years ago. e
f II. DISCUSSION
Pohl respectfully reqyuests that the Court enter judgment in his favor in accordance with the
jury’s verdict. As laidC out in the Motion and in Pohl’s reply briefing, the findings in the jury’s
verdict entitle Pohla to a judgment in the form attached to the Motion. Pohl is eager to receive a
final judgment tfhat will move this dispute closer to a complete resolution. Despite losing this case,
Kassab aUppears to wish to continue to harass and retaliate against Pohl based on unproven
allegations. The lack of a final judgment against Kassab only emboldens him on this front. Thus,
Pohl requests that the Court grant his Motion and enter final judgment in his favor based on the
proposed final judgment attached to the Motion.
III. CONCLUSION
Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl respectfully ask the Court to
grant Pohl’s Motion and enter final judgment in Pohl’s favor.
Dated: October 23, 2023. Respectfully submitted, l
REYNOLDS FRIZZELL LLP c
By: /s/ Jean C. Frizzelsl
Jean C. FrizzellD
State Bar No. 07484650
1100 Louissiana St., Suite 3500
Houston, Texas 77002
Tel. 71r3.485.7200
Fax 713.485.7250
jfrizzell@reynoldsfrizzell.com
Attorney for Plaintiffs Michael Pohl
anrd Law Office of Michael A. Pohl, PLLC
CEReTIFICATE OF SERVICE
I hereby certify that a true fand correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 23rd day of October 2023.
/s/ Jean C. Frizzell
Jean C. Frizzell
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.
Monica Orand on behalf of Jean Frizzell
Bar No. 7484650
morand@reynoldsfrizzell.com r
Envelope ID: 80886597
Filing Code Description: Request
Filing Description: Pohl's Request for a Ruling on Pohl's Motiotn for Entry
of Final Judgment i
Status as of 10/24/2023 7:29 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 10/23/2023 5:36:30 PM SENT
Benjamin Ritz britz@thompsoncoe.com 10/23/2023 5:36:30 PM SENT
Murray JFogler mfaogler@foglerbrar.com 10/23/2023 5:36:30 PM SENT
Murray Fogler mfogler@fbfog.com 10/23/2023 5:36:30 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Todd Taylor c ttaylor@jandflaw.com 10/23/2023 5:36:30 PM SENT
Dale Jefferson 106f07900 jefferson@mdjwlaw.com 10/23/2023 5:36:30 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 10/23/2023 5:36:30 PM SENT
Todd Taylor ttaylor@jandflaw.com 10/23/2023 5:36:30 PM SENT
Scott M.Favre C scott@favrepa.com 10/23/2023 5:36:30 PM SENT
Lawyer Wade a lawyerwade@hotmail.com 10/23/2023 5:36:30 PM SENT
Chris C.Pappas cpappas@krcl.com 10/23/2023 5:36:30 PM SENT
Non-Party Witnesso Billy Shepherd bshepherd@spcounsel.com 10/23/2023 5:36:30 PM SENT
Non-Party DoUna Pohl DonaLyann@yahoo.com 10/23/2023 5:36:30 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 10/23/2023 5:36:30 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 10/23/2023 5:36:30 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 10/23/2023 5:36:30 PM SENT
Andrea Mendez andrea@kassab.law 10/23/2023 5:36:30 PM SENT
Lance Kassab lance@kassab.law 10/23/2023 5:36:30 PM SENT
David Kassab david@kassab.law 10/23/2023 5:36:30 PM SENT
Nicholas Pierce nicholas@kassab.law 10/23/2023 5:36:30 PM SENT
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.
Monica Orand on behalf of Jean Frizzell
Bar No. 7484650
morand@reynoldsfrizzell.com r
Envelope ID: 80886597
Filing Code Description: Request
Filing Description: Pohl's Request for a Ruling on Pohl's Motiotn for Entry
of Final Judgment i
Status as of 10/24/2023 7:29 AM CST s
Case Contacts 
Lance Kassab eserve@kassab.glaw 10/23/2023 5:36:30 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 10/23/2023 5:36:30 PM SENT
L Kassab lance@kassab.law 10/23/2023 5:36:30 PM SENT
Kelly Skelton reception@kassab.law 10/23/2023 5:36:30 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 10/23/2023 5:36:30 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Harris Wells c hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
D Kassab f david@kassab.law 10/23/2023 5:36:30 PM SENT
Harris Wells  hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT"
62,2023-09-22,LTR,Pohl,Response to Kassab letter,"Pohl's letter to Judge Christine Weems replying to Kassab's September 20, 2023 post-hearing letter brief, addressing exemplary damages burden of proof, recoverability of attorneys' fees, conspiracy preemption, and Precision's exoneration","Sur-reply letter brief filed September 22, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Addressed to Judge Christine Weems. Filed two days after Kassab's post-hearing letter brief (September 20) and three days after the September 19 hearing on entry of judgment. Pohl notes his Reply was filed one business day after Kassab's Response. Signed by Harris Y. Wells and Jean C. Frizzell of Reynolds Frizzell LLP.",JDGMT-1,N/A,Phase 5,2023-09-22_LTR_Pohl-Response-to-Kassab-Letter-re-Final-Judgment_FILED.pdf,"That the Court grant Pohl's Motion, enter judgment in the form attached as Exhibit B to the Motion, and overrule Kassab's objections to entry of judgment","9/22/2023 9:53 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79868932
By: Bonnie Lugo
Filed: 9/22/2023 9:53 PM
September 22, 2023
Via Electronic Filing
Judge Christine Weems r
Harris County Civil Courthouse l
201 Caroline, 14th Floor
Houston, Texas 77002 c t
RE: Michael A. Pohl et al. v. Lance Christopher Kassab et al.; Casutse No. 2018-58419; In the 281st
Judicial District Court of Harris County, Texas. D i
Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment (the “Motion”)
Dear Judge Weems: e
In Kassab’s September 20, 2023 letter (the “Leutter”), Kassab suggests that the timing of
Pohl’s Reply brief entitles Kassab to further briefing. Pohl filed his Reply one business day after
Kassab filed his Response. Because Kassab misstates both the law and facts in the Letter, Pohl
files this reply letter. l
DMISCUSSION
A. The Jury Verdict shows thoe Jury unanimously awarded exemplary damages.
Kassab makes two argumencts on the recovery of exemplary damages: he claims (1) it was
Pohl’s burden to ensure the Jury fsigned a certificate of unanimity for Question 17, and (2) that
various cases Pohl cited are “distinguishable for important reasons.” Letter at 1–2. Each argument
fails. First, as the Supreme Cyourt of Texas held in USAA Tex. Lloyds Co. v. Menchaca, “the party
who must rely on theo conflicting answer to avoid the effect of answers that establish
liability . . . bore the burden to object.” 545 S.W.3d 479, 519 (Tex. 2018) (emphasis added).
That is Kassab here. lSecond, any so-called distinguishing facts either are not distinguishing or are
immaterial becaucsei the reasoning of those cases, applied to the facts of this case, shows Pohl is
entitled to an awfard of exemplary damages.
1. It was Kassab’s burden to object because he seeks to set aside the Jury’s answers.
Pohl obtained the necessary findings to support an award of exemplary damages against
Kassab through the Jury’s answers to Questions 2, 17, and 19.1 Kassab asks the Court to ignore
the Jury’s findings because he contends the certificate of unanimity is incomplete and lacks a
signature for Question 17. See Letter at 2. Binding precedent from the Texas Supreme Court
1 See Jury Verdict at 7–8, 24, & 26, attached as Ex. A to the Motion.
September 22, 2023
Page 2
shows Kassab had the burden to object before the Jury was dismissed to avoid the effect of the
Jury’s answers to Questions 2, 17, and 19. Kassab’s failure to object waived this issue.
In USAA Tex. Lloyds Co. v. Menchaca, the Texas Supreme Court discussed how Texas
Rule of Civil Procedure 295 “provides the procedure for resolving incomplete and nonresponsive
jury verdicts as well as those containing conflicting answers.” 545 S.W.3d at r519. The Court
stated that a party must object before the jury is dismissed and clarified that “thle party who must
rely on the conflicting answer to avoid the effect of answers that establish liability . . . bore
the burden to object.” Id. (emphasis added). In this case, it does notc matter whether Kassab
frames the issue as a problem of incompleteness or conflict within thet Jury Verdict. The rule is
the same; Rule 295 and Menchaca govern the question of whose buriden it was to object. Because
the Texas Supreme Court clarified these rules in 2018, post-Menchaca caselaw is instructive.
A recent case cites Menchaca on the precise issue ebefore this Court—which party has
the burden to object when the jury does not sign a certificate of unanimity for an exemplary
damages question. See Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 463 (Tex. App.—El
Paso 2022, pet. filed). In Bruce, the court cited Menchaca and found that the defendant—the party
who opposed giving effect to the jury’s answers finding exemplary damages—had the burden to
object to the lack of a certificate of unanimity “bielfore the jury was discharged.” Id. The same is
true here. As a matter of law, the Jury’s answers to Questions 2, 17, and 19 are sufficient to award
exemplary damages.2 See id; see also Menchaca, 545 S.W.3d at 519. Kassab had the burden to
object before the Jury was discharged too avoid the effect of those answers based on any contention
that the Jury Verdict is incomplete ore has a conflict.
2. Kassab’s discussion off caselaw demonstrates that exemplary damages are proper.
Kassab does not address the caselaw demonstrating the Court “must,” when possible,
“reasonably construe the [jpury’s] findings in a way that harmonizes them.” Menchaca, 545 S.W.3d
at 509; see Bender v. SC. Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980). The only way to
harmonize the Jury Verdict is to give effect to the Jury’s affirmative finding of exemplary damages.
Because Kassab has no response to this, he claims that three other cases cited by Pohl are
“distinguishable ifor important reasons” and one case that Kassab cites, which was decided before
Menchaca, iso the “most analogous.” See Letter at 1–2. Kassab’s claims are not accurate.
Kassab’s attempt to distinguish Stover v. ADM Milling Co., No. 05-17-00778-CV, 2018
WL 6818561 (Tex. App.—Dallas Dec. 28, 2018, pet. denied) is so ineffective it is worth
highlighting. In Stover, the jury had to unanimously answer three sets of questions to support an
award of exemplary damages: (a) “jury question nos. 5 and 6,” which found liability for fraud and
statutory fraud; (b) jury question nos. 15 and 16, which found clear and convincing evidence and
2 See Jury Verdict at 7–8, 24, & 26, attached as Ex. A to the Motion.
September 22, 2023
Page 3
malice; and (c) jury question no. 17, which found the amount of exemplary damages. See Stover,
2018 WL 6818561, at *12. The court upheld the jury’s award of exemplary damages even
though the jury did not sign a certificate of unanimity for jury questions nos. 5 and 6. Id.
Kassab contends Stover is distinguishable because the Jury, in this case, did not sign a
certificate of unanimity for Question 17 (clear and convincing evidence of malicer), and the jury in
Stover certified that its answers were unanimous in response to the equivalent qluestions—question
nos. 15 and 16 (on clear and convincing evidence and malice). See Letter at 1. But this
“distinguishing” fact is a distinction without a difference and is not helpfucl for Kassab. In Stover,
the jury needed to unanimously answer three sets of questions—sets “at,” “b,” and “c”—to support
an award of exemplary damages. But the jury did not sign a certificaite of unanimity for questions
5 and 6 (question set “a”). Id. The court nevertheless found that exemplary damages were proper
because the jury certified it was unanimous on questions 15 ands 16, and those questions “instructed
the jury to answer those questions” only if the jury was unanimous for at least one of the questions
in question set “a.” Id. This result—that not all predicrate answers to a finding of exemplary
damages require a certificate of unanimity—is fatal toB Kassab’s argument.
Here, the question is whether the jury’s answers to three questions—Questions 2, 17, and
19—were unanimous. Like Stover, the Jury ceri ltified it was unanimous for two out of the three
relevant questions.3 Also similar to Stover, th a e Jury signed a certificate of unanimity for Question
19, which was predicated on the Jury unanimously answering the question the Jury did not
separately certify unanimity for—Quesotio f n 17.4 It does not matter that there is no certificate of
unanimity for Question 17 (malice) reather than Question 2 (liability). The point is that, if a jury
answers an exemplary damages question predicated on a unanimous answer to a prior exemplary
damages question (whether the fprior question be a threshold liability question or a malice
question), then, absent other evidence, the prior question is considered to have been unanimously
answered even absent a unpanimity certificate. The reasoning of Stover illustrates that the Jury’s
findings are sufficient because the “jury is presumed to have followed the trial court’s instructions”
to answer “Yes” to Question 17 only if it was unanimous. See Stover, 2018 WL 6818561, at *12.
Kassab’s catitempt to distinguish two other cases Pohl cited does little to help his position.
Kassab argues thfat Bruce v. Oscar Renda Contracting, 657 S.W.3d 453 (Tex. App.—El Paso 2022,
pet. filed) is distinguishable because “there was no Additional Certificate in which the jury was
instructedU to certify whether certain jury questions were unanimous.” Letter at 1. That is
misleading at best. There was a certificate of unanimity, but it could not be used because the
questions were misnumbered. See Bruce, 657 S.W.3d at 457. Regardless, the fact that exemplary
damages were awarded despite there not being a certificate of unanimity supports Pohl’s position
here. Bruce demonstrates that a signed certificate of unanimity is not necessary for an award
3 See Jury Verdict at 32–33, attached as Ex. A to the Motion.
4 See id. at 26, 32–33.
September 22, 2023
Page 4
of exemplary damages. The Jury’s answers in this case, which were conditioned on unanimity,
are also sufficient to support the award of exemplary damages. Thus, it was not Pohl’s burden to
object to any purported lack of signature on the certificate of unanimity. As the party seeking to
avoid the Jury’s findings, it was Kassab’s burden to object. See Menchaca, 545 S.W.3d at 519.
Kassab’s discussion of Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex.r App.—Houston
[14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.) also misses the point. lPohl cited this case
because it illustrates what Kassab should have done if he believed that the Jury was not unanimous
concerning Question 17. In Bryan, the jury failed to sign a certificate ofc unanimity for questions
1 and 2, which needed to be unanimous for an award of exemplary datmages. See 542 S.W.3d at
692. However, the jury was instructed to answer “yes” to question i2 only if it was unanimous to
both questions 1 and 2. See id. Contrary to Kassab’s suggestion otherwise, the Bryan trial
court briefing showed the defendant—the party opposing asn award of exemplary damages—
requested the jury be polled to ensure it was unanimous.5 Here, Kassab should have done the
same thing. As the party desiring to avoid the effect orf answers that establish liability, under
Menchaca, Kassab needed to object or request a pollinBg of the jury in order to dispute that the Jury
followed the Court’s instructions to only answer “Ynes” to Question 17 if the Jury was unanimous.
Kassab claims the “case most analogousi l to the present case is the “no petition” case of
Redwine v. Peckinpaugh, 535 S.W.3d 44 (Tex. App.—Tyler 2017, no pet.).” Letter at 2. In his
Reply, Pohl explains how Redwine is different for multiple reasons. However, if Kassab’s “most
analogous” case is Redwine, no on-poinot cases support Kassab’s position. Setting aside the fact
that the Tyler Court of Appeals opinieon in Redwine predates the Texas Supreme Court’s opinion
in Menchaca, Redwine is facially not on point because the court polled the jury in Redwine and
confirmed the jury was not unafnimous. Redwine, 535 S.W.3d at 47. Kassab chose not to poll
the jury here. Because of the Court’s instructions, the Jury’s answers to Questions 17 and 19 are
evidence that the Jury was punanimous. Menchaca, 545 S.W.3d at 519; Bruce, 657 S.W.3d at 463.
B. Pohl’s attorneys’ fees from prior litigation are recoverable as damages.
First, under the plain text of TUTSA, Pohl is entitled to recover “actual loss caused by
misappropriationi.” Tex. Civ. Prac. & Rem. Code § 134A.004(a). The jury found that Pohl’s
“actual loss”o included damages measured by the attorneys’ fees in other cases that Kassab’s
misappropriation caused Pohl to incur. This “actual loss” is recoverable.
Second, and regardless of the plain language of TUTSA, Kassab’s argument on the tort-
of-another doctrine is worth briefly addressing. As a threshold issue, published precedent allows
the Court to apply this doctrine. See Dixon Fin. Services, Ltd. v. Chang, 325 S.W.3d 668, 678
(Tex. App.—Houston [1st Dist.] 2010, pet. denied). Kassab does not argue Pohl fails to satisfy
5 See Richard BRYAN et al, Plaintiffs, v. AMERICAN GENERAL LIFE INSURANCE, CO., et al, Defendants., 2015
WL 4184907 (Tex. Dist.) (stating the jury was polled “at the request” of the defendant’s counsel).
September 22, 2023
Page 5
the elements listed in Dixon,6 and instead, Kassab contends the doctrine does not apply because
Pohl “does not have clean hands.” See Letter at 3. This argument fails for at least two reasons.
First, there is no clean hands requirement. Second, the Jury did not find Pohl had unclean hands.
1. There is no clean hands requirement for applying the “tort of another theory.”
Kassab is wrong that the “tort of another theory” includes a clean hands requirement. See
Letter at 3. While the Texas Supreme Court has not yet resolved the split among the courts of
appeals on the applicability of this doctrine, its discussion of the tort-of-anotther doctrine indicates
that it does not have a clean hands requirement. See Akin, Gump, Straruss, Hauer & Feld, L.L.P.
v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009). Precedent, like Dixon, and cases
from other courts that have applied this doctrine, also do not include any requirement that a party
must have clean hands or be “wholly innocent” to recover fees sas damages. See, e.g., Dixon, 325
S.W.3d at 678; Massey v. Columbus State Bank, 35 S.W.3de 697, 701 (Tex. App.—Houston [1st
Dist.] 2000, pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex. App.—Texarkana 2000,
pet. denied); Standard Fire Ins. Co. v. Stephenson, 963 S.W.2d 81, 90 (Tex. App.—Beaumont
1997, no pet.); Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 251 (5th Cir. 2014).
Because there is no clean hands or whollly innocent party requirement for the tort-of-
another doctrine, the Court should ignore thisa argument by Kassab.
2. There is no Jury finding that Pohl has unclean hands.
The Jury did not find that Poehl had unclean hands. Thus, nothing would change even if
the Court agreed with Kassab that thce equitable nature of the doctrine makes the defense of unclean
hands relevant. See Letter at 3. fRegardless of whether the Jury found wrongful conduct by Pohl
in connection with his trade secrets claim—which Pohl disputes it did—the unclean hands defense
would still not apply because there is no finding that any wrongful conduct of Pohl injured Kassab.
To establish anC unclean hands defense, Kassab “must show an injury to himself arising
from the conduct.” Slee Wood v. Wiggins, 650 S.W.3d 533, 556 (Tex. App.—Houston [1st Dist.]
2021, pet. denied).i “‘The clean hands maxim should not be applied when the defendants have not
been seriously fhiarmed and the wrong complained of can be corrected without applying the
doctrine.’” Id. (citation omitted). In Question 3, the Jury found unspecified “wrongful conduct”
by Pohl cUontributed to an unspecified “injury.”7 Nothing connects that conduct to Kassab, much
less any injury to Kassab. Absolutely nothing demonstrates that Kassab was injured by any
“wrongful conduct” by Pohl. Thus, the defense of unclean hands does not and cannot apply.
6 See Dixon, 325 S.W.3d at 678 (“Equitable principles allow the recovery of attorney’s fees as actual damages when
a party was required to prosecute or defend a prior legal action as a consequence of a wrongful act of the defendant.”).
7 See Jury Verdict at 9, attached as Ex. A to the Motion.
September 22, 2023
Page 6
C. Conspiracy is not preempted.
Kassab contends that proportionate responsibility applies to TUTSA claims, yet he then
argues that conspiracy is preempted and cannot apply. Despite having the opportunity, Kassab
does not explain why conspiracy is preempted, yet proportionate responsibility still survives. See
generally Letter. His failure to do so is telling. r
Rather than address Pohl’s argument, Kassab falsely claims that “Pohl asserts that no Texas
case law supports the proposition that conspiracy is preempted by TUTSA.”t See Letter at 4. That
is not what Pohl said. Pohl’s Reply stated “Kassab also has no Texasr caselaw finding there can
no longer be a conspiracy to misappropriate trade secrets to support his TUTSA preemption
argument.” Kassab’s letter all but confirms that what Pohl said is true by failing to cite any
such case. The Court should apply Texas law that permits joints and several liability when there is
a conspiracy to misappropriate trade secrets. See, e.g., Whitleock v. CSI Risk Mgmt., LLC, No. 05-
19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—Dallas Apr. 30, 2021, pet. denied), reh’g
denied (June 7, 2021) (finding conspiracy was supported by a misappropriation of trade secrets).
D. Kassab’s liability is not predicatend on the Jury finding that Precision
misappropriated Pohl’s trade secretls.
Kassab contends that Pohl cannot “lMegally recover against Kassab after the jury concluded
that Precision, and those associated with Precision, did not misappropriate anything.” Letter at 4.
Kassab’s theory is he cannot engage in misappropriation if the person who gave him the trade
secrets did not also engage in misappropriation. This argument fails for multiple reasons,
including that the “factual” premisei of the argument is simply false.
First, Kassab’s argument is premised on his claim that Precision “provided Pohl’s alleged
information to Kassab.” Letter at 4. But the Jury never found that Kassab received Pohl’s trade
secrets from Precision. Ionstead, the evidence at trial demonstrated that Favre (not Precision) sold
Pohl’s trade secrets to Kassab. The Jury did find that Favre misappropriated Pohl’s trade secrets.8
The fact that Kassaba obtained the trade secrets from Favre is fatal to Kassab’s argument. Further,
the fact that the jucry found that Favre misappropriated Pohl’s trade secrets underscores the falsity
of Kassab’s rfepresentation to the Court that “those associated with Precision did not
misapproprniate anything.” Letter at 4.
Second, Kassab’s argument also requires the Court to believe that the Jury not finding
misappropriation by Precision necessarily means that “Precision either owed no duty to Pohl or it
breached no duty to Pohl when it provided Pohl’s alleged information to Kassab.” Letter at 4.
This is not true. The Jury could have answered “No” misappropriation for Precision for other
reasons. Pohl had no reason to present the Jury with evidence of Precision improperly disclosing
8 See Jury Verdict at 7–8.
September 22, 2023
Page 7
or using Pohl’s trade secrets because such evidence was not relevant to Pohl’s case. Kassab, not
Pohl, designated Precision as a responsible third party and requested that Precision be listed in the
Jury Charge. It was incumbent on Kassab to put forward evidence on this issue. Further, if it were
relevant, Kassab should have presented evidence and requested an affirmative Jury finding to
establish that Precision did not breach any duty to Pohl when it allegedly disclosedk or used Pohl’s
trade secrets. While Pohl disputes that this finding would have defeated Pohl’s terade secrets claim,
it does not matter if it would have, because Kassab did not secure such a findCing.9
CONCLUSION c
Pohl respectfully requests that the Court grant Pohl’s Motion, enter judgment in the form
attached as Exhibit B to the Motion, and overrule Kassab’s objections to entry of judgment.
Sincerely, s
REYNOLDS FrRIZZELL LLP
By: Harris Y. Wells
yJean C. Frizzell
iState Bar No. 07484650
Harris Y. Wells
State Bar No. 24106563
o1100 Louisiana St., Suite 3500
e Houston, Texas 77002
Tel. 713.485.7200
O Fax 713.485.7250
 jfrizzell@reynoldsfrizzell.com
p hwells@reynoldsfrizzell.com
On behalf of Plaintiffs Michael Pohl and
a Law Office of Michael A. Pohl
9 See generally id.
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.
Suni Blue on behalf of Harris Wells
Bar No. 24106563
sblue@reynoldsfrizzell.com r
Envelope ID: 79868932
Filing Code Description: No Fee Documents
Filing Description: Pohl's Letter in Response to Kassab's Postt-Hearing
Letter i
Status as of 9/25/2023 8:44 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Kevin Dubose 6150500 kdubose@aadjtlaw.com 9/22/2023 9:53:52 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/22/2023 9:53:52 PM SENT
Lance Kassab lance@kassab.law 9/22/2023 9:53:52 PM SENT
David Kassab cdavid@kassab.law 9/22/2023 9:53:52 PM SENT
Nicholas Pierce fnicholas@kassab.law 9/22/2023 9:53:52 PM SENT
Lance Kassab  eserve@kassab.law 9/22/2023 9:53:52 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Harris Wells a hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Andrea Mendez andrea@kassab.law 9/22/2023 9:53:52 PM SENT
Murray JFogler o mfogler@foglerbrar.com 9/22/2023 9:53:52 PM SENT
Murray FoglerU mfogler@fbfog.com 9/22/2023 9:53:52 PM SENT
D Kassab david@kassab.law 9/22/2023 9:53:52 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/22/2023 9:53:52 PM SENT
L Kassab lance@kassab.law 9/22/2023 9:53:52 PM SENT
Kelly Skelton reception@kassab.law 9/22/2023 9:53:52 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/22/2023 9:53:52 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT"
61,2023-09-20,LTR,Kassab,Letter to judge re final judgment,"Kassab's letter brief to Judge Christine Weems responding to Pohl's Reply filed the night before the hearing on entry of final judgment, addressing new arguments on exemplary damages, attorneys' fees, TUTSA preemption of conspiracy, and Precision's exoneration","Post-hearing letter brief filed September 20, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Addressed to Judge Christine Weems. Pohl's Reply was filed well after working hours the evening of September 18, 2023 — the night before the September 19, 2023 hearing on entry of final judgment. This letter responds to new arguments and authorities raised in that Reply. Written by Kevin Dubose (Alexander Dubose & Jefferson LLP, Board Certified Civil Appellate Law).",JDGMT-1,N/A,Phase 5,2023-09-20_LTR_Kassab-Letter-to-Judge-re-Final-Judgment_FILED.pdf,That the Court refrain from signing Pohl's proposed final judgment and sustain Kassab's objections,"9/20/2023 3:18 PM
Kevin Dubose Marilyn Burgess - D18is4tr4ic Ht aCrlvearkr dH Satrrreise Ct ounty
kdubose@ adjtlaw.com Houston, TEenxvaes lo7p7e0 0N8o-.4 7394726 5300
By: Bonnie Lugo
(713) 523-0667 www.adjtlaw.com
Filed: 9/20/2023 3:18 PM
Board Certified Civil
Appellate Law
September 20, 2023
The Honorable Christine Weems
Judge 281st District Court
201 Caroline, 14th Floor
Houston, Texas 77002
Re: Cause No. 2018-58419; Michael A. Pohl, and Law Otffice of Michael A.
Pohl, PLLC v. Lance Christopher Kassab and Lanrcie Christopher Kassab,
P.C. D/B/A The Kassab Law Firm s
Dear Judge Weems: s
Pohl’s response to Kassab’s objections to the gproposed judgment were filed well
after working hours the night before the hearing orn entry of judgment. Because that
response raised some new arguments and authoriBties that Kassab has not had a chance to
address, we file the following letter brief to addnress some of those new matters.
A. Exemplary damages are not rercoverable because Question 17 was not
answered unanimously. M
Pohl relies on several cases noot previously addressed, and all are distinguishable for
important reasons. e
• Bruce v. Oscar Renda Cofntracting, 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet.
filed). In Bruce there was no Additional Certificate in which the jury was instructed to
certify whether certain jury questions were unanimous. Id. at 463. In the present case, there
was an Additionaol Certificate in which the jury failed to certify that Question 17 was
unanimous. C
• Stover v. ADM Milling Co., No. 05-17-00778-CV, 2018 Tex. App. LEXIS 10883 (Tex.
App.—Dallas Dec. 28, 2018, pet. denied) (mem. op.). In Stover there was an Additional
Certificfate, and the jury certified that the predicate question for exemplary damages
(Qunestions 15 and 16 on fraud and malice) were answered unanimously. Id. at *12. In the
prUesent case, the equivalent predicate question (Question 17 on willful and malicious
misappropriation) was not certified as unanimous.
• Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston [14th Dist.] 2017, rev.
granted, judgm’t vacated w.r.m.). In Bryan the trial court noticed an ambiguity between
the requirement that two questions be answered unanimously and the Verdict Certificate
generally stating that only ten jurors had agreed to all of the questions. It appears from the
opinion that the judge noticed this ambiguity, discussed the situation with the lawyers, and
September 20, 2023
Page 2
decided to instruct the jurors to return to the jury room and deliberate further. But there is
nothing in the opinion suggesting that the party who did not have the burden of obtaining
a unanimous verdict to obtain exemplary damages was required to object or ask that the
jury be sent back to deliberate further in order to preserve error.
The case most analogous to the present case is Redwine v. Peckinpaeugh, 535 S.W.3d
44 (Tex. App.—Tyler 2017, no pet.). Pohl erroneously attempts to dCistinguish Redwine
because it “dealt with a single cause of action giving rise to liability, [so] the certification
of non-unanimity was in conflict with an award of exemplary damages.”1 But the same is
true in this case, where the jury was asked to answer questions relatting to the single TUTSA
cause of action. Just like in Redwine, the jury’s failure to certifyi that the predicate question
of liability (Question 17) was unanimous bars the recovery of exemplary damages.
Pohl also suggests it was Kassab’s burden to eraise the issue.2 But as noted in
Redwine, “this situation does not amount to a conflicting jury finding, where a party must
object before the jury is discharged to preserve error.” Id. at 52. Rather, that burden was on
Pohl as the party with the burden of proof seeking exemplary damages. See United
Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex. 2017) (“A defendant has no
obligation to complain about a plaintiff's omi lission of an independent theory of recovery;
rather, the burden to secure proper findinags to support that theory of recovery is on the
plaintiff, and a plaintiff who fails to satisfy that burden waives that claim.”). See also TEX.
CIV. PRAC. & REM. CODE § 41.003(b
) f(""The claimant must prove by clear and convincing
evidence the elements of exemplary damages . . . . This burden of proof may not be
shifted to the defendant . . . ."" c(emphasis added)). Kassab was not required “to ask the
trial court to fix an error that wfould, as here, ultimately result in a judgment in its favor.”
Id. at 481.
B. Attorney’s fees in other litigation are not recoverable as actual
damagCes under TUTSA.
Pohl argues that attorney’s fees incurred in satellite litigation are recoverable “actual
losses” under TUTSA because the statute permits a “flexible and imaginative approach” to
damages.3 Buft when the Court asked Pohl if any court in any jurisdiction had ever been
flexible annd imaginative enough to award attorney’s fees in other litigation as actual
damages for a trade secret claim, the silence was telling, and should resolve this issue.
1 Reply, at 6.
2 Reply, at 7.
3 Reply, at 9.
September 20, 2023
Page 3
Pohl cites two out-of-state cases to argue that actual damages under TUTSA is not
limited to things like loss of profits, lost customers or lost market share.4 But both of those
cases authorize recovery of lost profits, fees, or commissions. See Dunsmore & Assocs. v.
D'Alessio, 409906, 2000 Conn. Super. LEXIS 114, at *36 (Super. Ct. 2000) (“the issue is
whether the defendant used the plaintiff's documents to make candidate placements that
resulted in the defendant's receipt of fees or commissions.”); World Wide Prosthetic Supply
v. Mikulsky, 640 N.W.2d 764, 770 (Wis. 2002) (concluding “actual loss” “may include lost
profits resulting from [competitor’s] manufacture and distribution otf a defective product
incorporating [plaintiff’s] trade secret”). i
Pohl argues that Texas permits the recovery of attorDney’s fees incurred in other
litigation as actual damages, relying on Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l
Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009).5 Tshat case concluded “the general
rule as to recovery of attorney's fees from an adversge party in litigation does not bar a
malpractice plaintiff from claiming damages in a mralpractice case for fees it paid its
attorneys in the underlying suit.” Id. at 119. But PBohl is not a “malpractice plaintiff,” and
is not seeking fees paid to remedy malpractice committed by Kassab in an underlying suit.
Rather, Pohl is suing Kassab to recover attorneyy’s fees that Pohl incurred defending against
barratry claims and grievances brought br iy Pohl’s former clients, who initiated the
proceedings after Kassab alerted them to Pohl’s barratry. The “malpractice plaintiff”
exception stated in Akin does not apply.
Pohl also seeks an equitablee remedy based on the tort-of-another doctrine, which
Kassab has previously briefed. Pohl does not deny that the jury found in Question 3 that
Pohl’s wrongful conduct contrfibuted to the injury. Pohl points to Question 4, in which the
jury failed to assign any percentage of responsibility to Pohl. But the issue here is not
related to causation of damages in this case. The point is simply that one without clean
hands cannot obtain ano equitable remedy, and one found to have engaged in “wrongful
conduct” does not have clean hands. See Frazier v. Havens, 102 S.W.3d 406, 414 (Tex.
App.—Houston [14lth Dist.] 2003, no pet.) (“one who seeks an equitable remedy must do
equity and comei to court with clean hands.”) Pohl cannot claim the equitable tort-of-
another exceptfiion.
4 Reply, at 10.
5 Reply, at 9.
September 20, 2023
Page 4
C. Conspiracy is preempted by TUTSA.
Pohl asserts that no Texas case law supports the proposition that conspiracy is
preempted by TUTSA. Yet the First Court of Appeals recently considered this issue and
found that TUTSA preempts a similar theory of joint liability.
In Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV, 2023 Tex. App.
LEXIS 3067 (Tex. App.—Houston [1st Dist.] May 9, 2023, no pet. th.), the plaintiff sued
for misappropriation of trade secrets and aiding and abetting breacih of fiduciary duty. Id.
at *7-8. The court of appeals concluded that the aiding and abestting claim was “primarily
based on the individual appellants’ misappropriation of tradDe secrets” and “provide[ed]
remedies for the underlying misconduct of misappropriation of trade secrets.” Id. at 47.
“Under the plain language of TUTSA, these claims csonflict with civil remedies for
misappropriation of a trade secret.” Id. Therefore, “TUgTSA preempts these claims to the
extent they are based on appellants' alleged misapprorpriation of trade secrets.” Id. at *48.
Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is based
entirely on Kassab’s alleged misappropriatioyn of trade secrets. The conspiracy question
asked, “[r]egarding the conduct you found inr ianswer to Question No. 2 [which asked “[d]id
any of the parties listed below misappropriate Pohl’s trade secret?”], was Kassab part of a
conspiracy that damaged Pohl with any of those named below?”6 Because Pohl’s
conspiracy claim is based on alleged omisappropriation of trade secrets, it is preempted. See
Reynolds, 2023 Tex. App. LEXIS e3067, at *47-48.
D. The jury’s findifng of no liability on Precision means no liability
on Kassab.
Pohl contends thoat Kassab waived his right to object to any alleged inconsistency in
the jury’s finding t C hat Precision was not liable for misappropriation.7 But as Pohl
acknowledges, “thelre is nothing inconsistent” about the jury’s findings.8 Rather, the issue
is whether Pohl cian legally recover against Kassab after the jury concluded that Precision,
and those assof iciated with Precision, did not misappropriate anything — meaning that
Precision eitoher owed no duty to Pohl or it breached no duty to Pohl when it provided Pohl's
alleged information to Kassab. If there was no misappropriation when the information
passed from Pohl to precision, then no one else downstream in the chain of possession
could have misappropriated the information from Pohl. Thus, the jury’s exoneration of
6 Motion, at Exhibit A, Question No. 15.
7 Reply, at 15.
8 Reply, at 16.
September 20, 2023
Page 5
Precision precludes liability against Kassab as a matter of law. Kassab was not required to
object and have the jury reconsider the issue to potentially “forfeit a winning hand.” Levine,
537 S.W.3d at 481 (a plaintiff has the burden to secure proper findings to support its theory
of recovery, not the defendant).
Respectfully submitted,
/s/Kevin Dubose t
Kevin Dubose i
kdubose@adjtlaw.scom
State Bar No. 06D150500
1844 Harvards Street
Houston, Texas 77008
Telephonge: (713) 523-2358
Facsimilre: (713) 522-4553
Mnurray Fogler
Sytate Bar No. 07207300
rmfogler@foglerbrar.com
MFOGLER BRAR O’NEIL & GRAY LLP
909 Fannin, Suite 1640
o Houston, Texas 77002
e Telephone: (713) 481-1010
Facsimile: (713) 574-3224
Lance Kassab
State Bar No. 00794070
o David Kassab
State Bar No. 24071351
l THE KASSAB LAW FIRM
i 1214 Elgin Street
f i Houston, Texas 77004
o Telephone: (713) 522-7400
eserve@kassab.law
Attorneys for Kassab Defendants
September 20, 2023
Page 6
CERTIFICATE OF SERVICE
On September 20, 2023, I electronically filed this Reply to Pohl’s Response to
Objections to Judgment Letter Brief with the Clerk of Court using the eFile.TXCourts.gov
electronic filing system which will send notification of such filing to the following:
Jean C. Frizzell
jfrizzell@reynoldsfrizzell.com
REYNOLDS FRIZZELL LLP r i
1100 Louisiana St., Suite 3500 s
Houston, Texas 77002 D
/s/Kevin Dubose
Kevin gDubose
Automated Certificate of eService
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The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
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certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79765300
Filing Code Description: No Fee Documents
Filing Description: 9.20.2023-Ltr to Judge Weems in Responste to
Objections to Judgment Letter Brief i
Status as of 9/20/2023 3:59 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 9/20/2023 3:18:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/20/2023 3:18:40 PM SENT
Scott M.Favre scott@favrepa.com 9/20/2023 3:18:40 PM SENT
Lawyer Wade c lawyerwade@hotmail.com 9/20/2023 3:18:40 PM SENT
Chris C.Pappas f cpappas@krcl.com 9/20/2023 3:18:40 PM SENT
Non-Party Witness Billy Shepherd  bshepherd@spcounsel.com 9/20/2023 3:18:40 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 9/20/2023 3:18:40 PM SENT
Non-Party Edgar Jaimes C edgarsroom@gmail.com 9/20/2023 3:18:40 PM SENT
Kevin Dubose a 6150500 kdubose@adjtlaw.com 9/20/2023 3:18:40 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/20/2023 3:18:40 PM SENT
Lance Kassab o lance@kassab.law 9/20/2023 3:18:40 PM SENT
David KassabU david@kassab.law 9/20/2023 3:18:40 PM SENT
Nicholas Pierce nicholas@kassab.law 9/20/2023 3:18:40 PM SENT
Lance Kassab eserve@kassab.law 9/20/2023 3:18:40 PM SENT
Andrea Mendez andrea@kassab.law 9/20/2023 3:18:40 PM SENT
Murray JFogler mfogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Murray Fogler mfogler@fbfog.com 9/20/2023 3:18:40 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/20/2023 3:18:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/20/2023 3:18:40 PM SENT
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David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79765300
Filing Code Description: No Fee Documents
Filing Description: 9.20.2023-Ltr to Judge Weems in Responste to
Objections to Judgment Letter Brief i
Status as of 9/20/2023 3:59 PM CST s
Case Contacts 
Dale Jefferson 10607900 jefferson@mdjwlgaw.com 9/20/2023 3:18:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 9/20/2023 3:18:40 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/20/2023 3:18:40 PM SENT
D Kassab david@kassab.law 9/20/2023 3:18:40 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells c hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
L Kassab f lance@kassab.law 9/20/2023 3:18:40 PM SENT
Kelly Skelton  reception@kassab.law 9/20/2023 3:18:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells a hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT"
60,2023-09-18,RPL,Pohl,Reply ISO Mtn for Final Judgment,"Pohl's Reply in Support of Motion for Entry of Final Judgment, responding to Kassab's five objections to the proposed judgment regarding exemplary damages unanimity, attorneys' fees recoverability, overlapping damages, conspiracy preemption, and Precision's exoneration","Reply brief filed September 18, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Filed three days after Kassab's September 15, 2023 objections to Pohl's September 5, 2023 Motion for Entry of Final Judgment. Addresses each of Kassab's five objections and argues the court must enter judgment consistent with the jury verdict.",JDGMT-1,N/A,Phase 5,2023-09-18_RPL_Pohl-Reply-ISO-Mtn-for-Final-Judgment_FILED.pdf,That the Court overrule Kassab's objections and enter the Final Judgment in the form attached to the Motion as Exhibit B,"9/18/2023 8:21 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79681130
By: Bonnie Lugo
Filed: 9/18/2023 8:21 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r281ST JUDICIAL DISTRICT
POHL’S REPLY IN SUPPORT OF HIS MOTION FOR ENTRY OF FINAL JUDGMENT
On September 5, 2023, Plaintiffs Michaell Pohl and Law Offices of Michael A. Pohl PLLC
(collectively, “Pohl”) filed their motion foMr entry of a Final Judgment and to adjudge costs (the
“Motion”). On September 15, 2023, Lance Christopher Kassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm’s (collectively, “Kassab”) filed Objections to Pohl’s Proposed
Final Judgment (the “Response”). Kassab fails to demonstrate in the Response that the Court
would commit error in any way by entering final judgment in the form requested by Pohl.
 OVERVIEW
Kassab liscts five general objections to entry of judgment. None of the objections withstand
scrutiny.
• Kassab objects to the inclusion of exemplary damages in the judgment because he
contends the Jury’s answer of “Yes” to Question 17 was not unanimous. But
Kassab is factually incorrect because, on its face, the Jury Verdict shows that the
Jury unanimously answered “Yes” to Question 17. The Court instructed the Jury
to only answer “Yes,” in response to Question 17 if it was unanimous, and the Jury
is presumed to have followed those instructions. Moreover, the Court instructed
the Jury to answer Question 19 “only if you unanimously answered “Yes” to
Question no. 17,” and the Jury answered Question 19. k
• Kassab objects to the inclusion of attorneys’ fees from a prCiorl lawsuit as part of
Pohl’s damages. But Pohl’s damages are recoverable, becacuse attorneys’ fees from
a prior, different lawsuit—not the current lawsuit—can properly constitute actual
loss, which are recoverable damages under TUTSsA.
• TUTSA expressly authorizes the recovery ofg both actual loss and unjust enrichment
damages together. The Jury was instruBcted to not award duplicative damages and
awarded both damages. Thus, Pohyl is entitled to recover both amounts.
• Conspiracy is a means of imaposing joint and several liability. It is not an
independent claim givingf rise to a remedy that could conflict with TUTSA.
Conspiracy is not preempted by TUTSA or the proportionate responsibility statute,
and Kassab was unfable to cite any binding precedent stating otherwise.
• The jury’s finding that Precision did not misappropriate trade secrets is consistent
with itsC finding that Kassab—who acquired those trade secrets from Favre, not
Precision—did misappropriate Pohl’s trade secrets.
f DISCUSSION
I. TUhe Jury properly awarded Pohl exemplary damages.
Kassab contends that an award of exemplary damages is unsupported and improper
because the Jury did not unanimously answer “Yes” in response to Question 17. See Response at
3. This is not true. On its face, the Jury Charge shows that the Jury unanimously answered “Yes”
to Question 17 after being instructed to only answer “Yes” if the finding was unanimous. If Kassab
believed that the certificate of unanimity was in conflict with the findings contained in the Jury
Verdict, it was his duty to request a polling of the Jury. While no actual conflict exists, Kassab’s
failure to raise this issue waived any conflict that might exist. k
“The jury is presumed to have followed the court’s instructions.” Collumbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009). When cpossible, a court “must”
“reasonably construe the [jury’s] findings in a way that harmonizes thsem.” USAA Tex. Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 509 (Tex. 2018); Bender v. S. Psac. Transp. Co., 600 S.W.2d 257,
260 (Tex. 1980). Failure to reconcile answers in favor of the jury’s verdict when possible is
reversible error. Luna v. Southern Pacific Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987). Even
where the jury findings are ambiguous or unclear, the court must try to interpret the findings so as
to uphold the verdict. Jackson v. U.S. Fid. & Gauar. Co., 689 S.W.2d 408, 412 (Tex. 1985). When
a party contends that a jury’s award of exemplary damages is not supported by a unanimous jury
finding, it is reviewed as a “no evidenece” point. Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.). f
There is clear evidenyce that the Jury made the required unanimous findings supporting an
award of exemplary daCmages. First, the fact that the Jury answered “Yes” in response to Question
17 shows that its finding was unanimous. The Jury was instructed that it could only answer “Yes”
to Question 17f iff its answer was “unanimous.”1
SeUcond, the fact that the Jury awarded exemplary damages in response to Question 19 also
shows that its answer to Question 17 was unanimous. The Court instructed the Jury that it could
only answer Question 19 if the Jury “unanimously answered ‘Yes’ to Question No. 17 or Question
1 Jury Charge at 24, attached as Ex. A to the Motion.
No. 18.”2 The Jury did not answer Question 18.3 But the Jury answered Question 19 and found
that an award of exemplary damages of $3,000,000 against Kassab was proper.4 Given the Court’s
instructions, the Jury only could have answered this question if it unanimously answered “Yes” to
Question 17. k
The Court’s instructions to the Jury show that its answer in response tlo Question 17 was
unanimous. See Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 4c64 (Tex. App.—El Paso
2022, pet. filed) (“Because the jury was instructed to only answer thse gross negligence question,
and the exemplary damages award question if unanimity was resached, we must presume it did so
by following the instructions.”). In contrast, Kassab’s argument requires the Court to presume that
the Jury ignored the Court’s instructions in response to multiple questions, which would be an
improper and impermissible presumption. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at
862 (“The jury is presumed to have followed athe court’s instructions.”). Kassab contends that the
Jury’s answer to Question 17 was not unanimous because the Presiding Juror appears to have
inadvertently failed to sign the certificeate of unanimity with respect to Question 17. See Response
at 3–4. This contention is not sufpported by the Jury’s affirmative findings based on the Court’s
instructions as reflected in thye Jury Verdict.
The Dallas CouCrt of Appeals confronted a similar situation in Stover v. ADM Milling Co.,
No. 05-17-00778-CV, 2018 WL 6818561 (Tex. App.—Dallas Dec. 28, 2018, pet. denied). The
court was askefdf to find that the jury’s award of exemplary damages was not supported “because
the findinUgs on the threshold jury question nos. 5 and 6 were not certified to be unanimous.” 2018
WL 6818561, at *12. But the court rejected this argument and found that “the evidence is legally
2 Id. at 26.
3 Id. at 25.
4 Id. at 26.
sufficient to support the jury's award of exemplary damages” because the jury later unanimously
answered questions predicated on unanimous answers to question nos. 5 and 6. See id. The court
held:
[W]e address Holmes and Holmes Law's argument that the evidence wask legally
insufficient to support the jury's award of exemplary damages in jury qeuestion no.
17 because the findings on the threshold jury question nos. 5 and l6 were not
certified to be unanimous. In support of their argument, they point to the verdict
certificate where the jury stated, ‘Our verdict is not unanimous. Ecleven of us have
agreed to each and every answer and have signed the certificate rbelow.’ However,
the record also contains an additional certificate signed by thse presiding juror that
states, ""I certify that the jury was unanimous in answering QDuestion No. 15, 16, 17,
and 18. All 12 of us agreed to each of the answers."" In sjury question nos. 5 and 6,
the jury found Holmes and Holmes Law liable for comsmon law fraud and statutory
fraud. The instructions for those jury questions did not require a unanimous
verdict. However, both jury question nos. 15 (clrear and convincing evidence of
fraud and statutory fraud) and 16 (malice) instructed the jury to answer those
questions ‘only if [] [they] [] unanimously answered 'Yes' to any part of Question
No. 5 [common law fraud] or if [they] unanimously answered 'Yes' to any part of
Question No. 6 [statutory fraud] and Quelstion No. 7 [actual awareness].’ Further,
jury question no. 17 (exemplary damaages) instructed the jury that they should only
answer the question ‘if [they] unaMnimously answered 'Yes' to Question 15 or
Question No. 16.’ The jury is presumed to have followed the trial court's
instructions. See, e.g., Columbia Rio Grande Healthcare L.P. v. Hawley, 284
S.W.3d 851, 862 (Tex. 2009)e. We conclude the evidence is legally sufficient to
support the jury's award of exemplary damages in jury question no. 17. Holmes
and Holmes Law's issue 3f.3(a) is decided against them.
Id. y
Stover is directCly on point with the facts of this case and directly refutes the argument
asserted by Kassab.a
In contrafst, the case Kassab relies on—Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—TyUler 2017, no pet.)—is different for many reasons. In Redwine, the jury had a single cause
of action for defamation before it. Redwine, 535 S.W.3d at 47. While it answered an exemplary
damages question that it was instructed to only answer if unanimous, its answer was directly in
conflict with its certification that the entire verdict was otherwise not unanimous. See id. at 51–
52. The court then polled the jury and confirmed the lack of unanimity. See id.
As explained in Bruce v. Oscar Renda Contracting, because Redwine dealt with a single
cause of action giving rise to liability, the certification of non-unanimity was in conflict with an
award of exemplary damages. 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet. filed). The
court in Bruce contrasted the facts in Redwine with a set a facts similar to those in thkis case, saying:
“We conclude that the jury’s certification at issue here does not have the samle conclusive effect
as it did in Redwine, given that this jury was permitted to answer severacl questions by a 10 to 2
vote, unless otherwise instructed to only answer upon reaching unansimity.” Id. In other words,
because not all of the verdict needed to unanimous, a general cerstificate of non-unanimity is not in
conflict with an award of exemplary damages.
Furthermore, in this case, like in Stover, the jury unanimously answered a question
(Question 19) that was predicated on a unanimous answer to Question 17 after answering Question
17. Like in Stover, the Jury here could not haave answered the latter question (Question 19) unless
it unanimously answered the earlier question at issue (Question 17). That was not the case in
Redwine. e
The Jury is presumed to have ffollowed the Court’s instructions, and the Court must “reasonably
construe the [jury’s] findingsy in a way that harmonizes them.” USAA Tex. Lloyds Co., 545 S.W.3d
at 509. Given the JurCy’s responses to Questions 17 and 19, and the Court’s related unanimity
instructions, the only reasonable construction of the Jury’s findings is that the Jury was unanimous
in answering “Yf fes” to Question 17. Because there is evidence indicating that the Jury unanimously
found exeUmplary damages against Kassab, the Court “must” give effect to the Jury’s findings and
enter a judgment awarding exemplary damages against Kassab. See id.; Bender v. S. Pac. Transp.
Co., 600 S.W.2d at 260.
Finally, and as we previously stated, while no actual conflict in the Jury’s answers exists,
Kassab’s failure to raise this issue before the Jury was discharged waived the alleged conflict that
Kassab now claims to exist. Texas law is well settled that “to preserve error based on fatally
conflicting jury answers, parties must raise that objection before the trial court dischkarges the jury.”
USAA Texas Lloyds, 545 S.W.3d 479, 518 (discussing how Rule 295 requlires that potential
conflicts in the verdict should be resolved by the trial court giving instrucctions to the jury before
the jury is dismissed). The rule is the same whether the complaint resgarding the jury’s answers is
that they are incomplete or that they are in fatal conflict; the obsjection must be raised before the
jury is discharged in order to afford the trial court the opportunity to correct the error. As further
stated by the Supreme Court in USAA Texas Lloyds:
[Texas Rule of Civil Procedure] 295 provides the procedure for resolving
incomplete and nonresponsive jury verdiclts as well as those containing conflicting
answers. Tex. R. Civ. P. 295. Addresasing incomplete verdicts, we have long held
that a judgment will not be reversMed ""unless the party who would benefit from
answers to the issues objects to the incomplete verdict before the jury is discharged,
making it clear that he desires that the jury redeliberate on the issues or that the trial
court grant a mistrial."" Fleeet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986); see also
Continental Cas. Co. v. Street, 379 S.W.2d 648, 650 (Tex. 1964) (holding party
failed to preserve error bfecause he ""did not object to the acceptance of the jury
verdict as incomplete, and thus by timely objection afford the trial court the
opportunity, before thye jury was discharged, of correcting the error (if such it was)
of accepting the verdict with the issues unanswered""). We conclude that the same
error-preservatiCon requirement applies when a party complains of a judgment based
on conflicting jury answers.
Id. at 519. c
Had Kassab timely raised the asserted conflict prior to the jury being discharged, Rule 295
would have resolved any confusion regarding how many jurors joined in answering the Question
17. That is exactly what happened in Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—
Houston [14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.), where the Fourteenth Court of
Appeals addressed the issue at length as follows:
When the jury originally returned its verdict, the verdict form showed that the jury
had answered “yes” as to Question 1 for Papalia and “yes” as to Question 2. The
trial court had instructed the jury that it could answer “yes” to Question 2 only if
all jurors agreed on that answer and only if all jurors had agreed to answer “yes” in
Question 1 as to Papalia. Despite this instruction, the jury’s verdict certificate
originally showed that only ten jurors had agreed to all of the jury’s answers so only
ten had agreed to answer Question 1 “yes” for Papalia and to answer Qukestion 2
“yes,” but, in light of the trial court’s instructions in Question 2, ethe jury’s
affirmative answer to Question 2 indicated that the jury had answeredl these two
questions unanimously.
After discussing this situation with counsel and polling the jur iry, the trial court
explained to the jury in open court and on the record that the vesrdict form contained
an ambiguity because the jury was instructed to answer “yeDs” to Question 2 only if
all jurors agreed to that answer, but the jurors indicated in the verdict certificate
that only ten jurors agreed to this answer. The trial cosurt then directed the jury to
return to the jury room and clarify on the verdict certificate whether the answer to
Question 2 was unanimous . . . . The jury later rerturned with an amended verdict
certificate indicating that the answers to the first two questions were unanimous
and that ten jurors agreed to the answers to Questions 3 through 9 . . .
Papalia argued in the JNOV Motion that the trial court should disregard the answer
to Question 2 because only ten jurors agrreed to that answer and signed the original
verdict certificate. Though it is trueM that only ten jurors signed the original verdict
certificate, after the jury returned to the jury room, the jury amended the verdict
certificate to show that all jurorso agreed to the answers to the first two questions. In
this context, the original verdiect certificate does not provide a basis for disregarding
the jury’s answer to Questiocn 2.
Bryan, 542 S.W.3d at 692–93.
The Court “must” reconcile the jury’s answers to support its award of exemplary damages
against Kassab. Here, the only way to reconcile the Jury Verdict is to give effect to the Jury’s
answers to Questicons 17 and 19. But even assuming arguendo that reconciliation were not possible
because of ano assertedly “fatal” conflict, Kassab waived the complaint by not raising it before the
jury was discharged. Id. As the party relying on the asserted conflict to avoid the effect of the
answers awarding exemplary damages, Kassab bore the burden to timely object and failed to do
so. Id. (citing Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014)). Because Kassab did not
make any such timely objection, he waived the right to complain regarding the alleged conflict.
II. Pohl is entitled to recover his actual losses as damages under TUTSA.
Kassab objects to Pohl’s damages that are based on attorneys’ fees from underlying
proceedings based on two grounds. First, Kassab says attorneys’ fees are not recoverable under
TUTSA. See Response at 5–10. Second, Kassab argues that the attorneys’ kfees cannot be
recovered in connection with the grievance procedures. See id. at 10. Neither lof these arguments
is correct. c
A. Pohl’s TUTSA damages are recoverable. s
Despite having previously asserted the same rejected arguments5 on multiple prior
occasions, Kassab continues to claim that portions of Pohl’s edamages are not recoverable because
they are based on attorneys’ fees incurred in separate proceedings. See Response at 5–10. Kassab
was wrong before, and he remains wrong now. Int is true that attorneys’ fees typically do not
constitute actual damages when incurred in the rsame lawsuit. But attorneys’ fees from a separate
lawsuit—incurred as the result of wrongful conduct of the defendant—can constitute actual
damages in a separate, subsequent laewsuit. See, e.g., Akin Gump Strauss Hauer & Feld, LLP v.
National Development & Researchf Corp., 299 S.W.3d 106, 119-22 (Tex. 2009). Kassab conflates
these distinct scenarios in aryguing otherwise.
TUTSA authorizes the recovery of damages, including “actual loss caused by
misappropriation.” a Tex. Civ. Prac. & Rem. Code § 134A.004(a). On its face, the plain meaning
of “actual loss” fis broad and encompasses consequential losses. This broad definition of damages
is not surprising, because a “‘flexible and imaginative’ approach is applied to the calculation of
damages in misappropriation-of-trade-secrets cases.” Sw. Energy Prod. Co. v. Berry-Helfand, 491
5 See Kassab’s Traditional Motion for Summary Judgment, at 76–80 filed Aug. 29, 2022; Pohl’s Response in
Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and the Nicholson
Defendants, filed Sept. 12, 2022; see also Court Order, entered Oct. 31, 2022 (denying Kassab’s request for summary
judgment). Pohl incorporates his prior briefing on this issue by reference.
S.W.3d 699, 710 (Tex. 2016). To the extent that the Court wishes to look at persuasive authority
from other states, they too have recognized that the definition of “actual loss” is broad and
encompasses tort damages where a “plaintiff must prove that its loss was caused by the defendant’s
violation.” See World Wide Prosthetic Supply, Inc. v. Mikulsky, 640 N.W.2d 764, 7k70 (Wis. 2002);
see also Dunsmore & Associates, Ltd. v. D'Alessio, No. 409906, 2000 WL 124l995, at *10 (Conn.
Super. Ct. Jan. 6, 2000) (“Actual loss in this context means the amount ofc money that the plaintiff
lost from the defendant's misappropriation; it is measured by how smuch better off the plaintiff
would have been but for the defendant's misappropriation.”). s 
The weakness of Kassab’s position is showcased by his misleading use of caselaw. Kassab
cites to out of state caselaw asserting that “‘actual loss’ means ‘loss of profits, lost customers or
lost market share.’” See Response at 5 (citations omitted). While Pohl disputes that Florida limits
actual loss damages to these three categories, iaf it did, it demonstrates why the Court should ignore
this out-of-state authority. Kassab does not dispute that Texas allows recovery of damages outside
those three categories of damages. Seee, e.g., Response at 10–11 (not disputing that market value
is recoverable as a measure of “acftual loss”).
Kassab’s citations toy Texas caselaw fares little better. This case concerns recovery of
attorneys’ fees incurredC in separate proceedings. But Kassab cites to multiple cases dealing with
recovery of attorne a ys’ fees incurred in the same proceeding. See Response at 7.6 Some of the
6 Lacore Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 WL 2607562, at *9 (Tex. App.—Dallas Mar. 23, 2023,
no pet.) (standing for the non-controversial conclusion that fees from the same lawsuit are not recoverable as damages
under the American rule); O’Neal v. Dale, No. 02-20-00173-CV, 2021 WL 210848, at *10 (Tex. App.—Fort Worth
Jan. 21, 2021, no pet.) (standing for the uncontroversial proposition that fees incurred in the present lawsuit do not
typically constitute damages); Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 839 (Tex.
App.—Dallas 2014, no pet.) (“the only damages stated by appellants consist of legal fees and expenses they incurred
in defending against this lawsuit brought by appellee and in prosecuting their counterclaims.”).
10
cases did not concern recovery of attorneys’ fees at all.7 One is cited for a proposition that was
subsequently overruled.8 The Court should ignore Kassab’s misleading citations to caselaw that
do not govern the issue before the Court.
And even if the Court were not convinced that TUTSA alone authorized kthe recovery of
Pohl’s damages, Pohl’s damages are recoverable under equitable principlesl. See Dixon Fin.
Services, Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st cDist.] 2010, pet. denied)
(“Equitable principles allow the recovery of attorney’s fees as actuasl damages when a party was
required to prosecute or defend a prior legal action as a conssequence of a wrongful act of the
defendant.”).9
Kassab acknowledges the potential applicability of this doctrine, but he claims that Pohl
cannot qualify because “Pohl is not a wholly innocent party.” See Response at 9. Pohl disputes
that the “wholly innocent party” notion is paroperly part of the tort of another doctrine.10 But
7 Tana Oil & Gas Corp. v. McCall, 104 S.W c .3d 80, 81 (Tex. 2003) (rejecting argument that parties could recover for
the value of their own time because thfe Court saw “no causal relationship between the tortious interference the
McCalls allege and the only damageOs they claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-
00807-CV, 2006 WL 648834, at *8 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (finding that a
company’s financial loss due to employees spending time on depositions and discovery did not constitute damages in
the same lawsuit). o
8 See Response at 7 (citingC Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied) for the proposition that “attorney’s fees are recoverable only when an agreement between the parties so
provides.”). This is in adilrect conflict with multiple subsequent Texas Supreme Court cases. See, e.g., Akin, Gump,
Strauss, Hauer & Feldi, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 120–21 (Tex. 2009) (finding an
award of attorneys’ fees could be proper even absent an agreement between the parties).
9 Kassab continuefs to cite inapplicable caselaw throughout. For example, he cites to Riner v. Neumann, 353 S.W.3d
312, 323 (Tex. App.—Dallas 2011, no pet.) as support for his contention that “[o]ther intermediate courts of appeals
have likewise refused to adopt the tort of another doctrine.” See Response at 8 n.5. This is false. Riner does not
mention the tort of another doctrine. See generally Riner, 353 S.W.3d 312. Instead, the court in that case declined to
adopt an exception to the American rule prohibiting recovery of attorneys’ fees in the same case absent authorization.
See id. at 322.
10 Kassab cites multiple cases demonstrating that there is no wholly innocent party element to the tort of another
theory. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009);
Naschke v. Gulf Coast Conference, 187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Brannan
Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d 14 (Tex. App.—Corpus Christi 2013, pet. denied). Kassab’s
reliance on the idea of a wholly innocent party exception is not consistent with the history of this theory. See James
Michael Stanton, Recovering Attorney’s Fees in Equity Under Texas Law: Why Some Texas Courts of Appeal Have
It Wrong, 29 T. Marshall L. Rev. 243, 278 (2004).
11
regardless, Kassab is incorrect that the Jury found that Pohl’s trade secrets damages were caused
by Pohl’s conduct. In response to Question 4—which was the proportionate responsibility
question specifically tied to the trade secrets claim—the Jury assigned Pohl 0% of the fault. See
Ex. A to the Motion at 10. Kassab ignores this question and instead contends the kJury’s response
to Question 3 shows that Pohl is not “wholly innocent.” See Response at 9. Blut this question is
not tied to the misappropriation of trade secrets. See Ex. A to the Motiocn at 9. In fact, the Jury
specifically asked if they should still answer Question 3 even if theys found that no trade secrets
existed. With the agreement of counsel for Kassab, the Court insstructed the Jury that they should
still respond to Question 3 even if they answered “No” to both parts of Question 1.
The attorneys’ fees Pohl incurred in underlying proceedings as the result of Kassab’s
wrongful conduct are recoverable as Pohl’s actual losses in this lawsuit. Kassab’s arguments
otherwise are not supported by binding caselaaw and rely in large part on the misleading use of
caselaw. The Court should reject Kassab’s arguments and enter judgment in favor of Pohl for the
full amount of actual loss damages foeund by the Jury.
B. Rule 17.09 of the fTexas Rules of Disciplinary Procedure is not applicable.
As a threshold mattyer, this lawsuit is not predicted on Kassab filing a grievance or
participating in the grCievance process. Thus, Rule 17.09 of the Texas Rules of Disciplinary
Procedure does not aapply, and the Court should reject Kassab’s argument otherwise. See Response
at 10. This issufe has been briefed extensively before, and Pohl will not repeat the same arguments
further. PUohl incorporates this prior briefing by reference. See, e.g., Pohl’s Rule 166(g) Motion,
at 12–14, filed Nov. 30, 2022 (including the briefing discussed therein). Bottom line, the Court
rejected Kassab’s position on this issue before and should reject it again now.
12
III. Pohl’s requested damages are not improperly overlapping.
Pohl’s requested damages are not overlapping. TUTSA explicitly authorizes the recovery
of both actual damages, and unjust enrichment “that is not taken into account in computing actual
loss.” Tex. Civ. Prac. & Rem. Code § 134A.004. Kassab agrees that the marketk value damages
found by the Jury are “actual loss” damages. Response at 11. He also agrees lthat the Jury found
unjust enrichment damages in the form of avoided development costs. Idc. The only question is if
those damages are overlapping. s
Here, the Jury was specifically told that it should “not award any sum of money on any
element if you have otherwise, under some other element in this question, awarded a sum of money
for the same loss.” See Ex. A to the Motion at 13. Once again, the Court must presume that the
Jury followed its instructions. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 862. The
damages are not overlapping because the Jury could have found that the market value damages
compensated Pohl for the loss of value of his trade secrets going forward, as this value was
destroyed by their improper use and edisclosure by Kassab. The Jury also could have found that
this was separate from the loss fassociated with Kassab’s unjust enrichment based on avoided
development costs that wouyld otherwise have been incurred in the past. Because the Jury could
have viewed this unjuCst enrichment as not being accounted for in its award of “actual loss”
damages, it is not dauplicative under TUTSA.
IV. Texas cfontinues to recognize that conspirators are jointly and severally liable.
Kassab argues that the Court should ignore the Jury’s conspiracy finding because he
contends that conspiracy is “either preempted by TUTSA or subject to the [statutory] proportionate
responsibility scheme.” See Response at 11. Kassab cites no binding precedent holding that Pohl’s
conspiracy claim is improper, and the Court should reject Kassab’s arguments.
13
Based on unpublished federal cases, Kassab claims “courts have concluded that Chapter
33’s proportionate responsibility scheme applies to conspiracy claims, rather than joint and several
liability.” See id. at 12. But Kassab ignores contrary published Texas caselaw. The Dallas Court
of Appeals stated that it rejected “the premise that Chapter 33 superseded thek rule that civil
conspiracy findings result in joint and several liability.” Guillory v. Dietrichl, 598 S.W.3d 284,
296 (Tex. App.—Dallas 2020, pet. denied). Other Texas appellate courtcs have come to the same
conclusion. See, e.g., Stephens v. Three Finger Black Shale P’ship,s 580 S.W.3d 687, 719 (Tex.
App.—Eastland 2019, pet. denied) (We are of the opinion that sjoint and several liability attaches
to a civil conspiracy finding and is not affected by the proportionate responsibility statutes.”).
Kassab also has no Texas caselaw finding there can no longer be a conspiracy to
misappropriate trade secrets to support his TUTSA preemption argument. See Response at 11–13.
The absence of this caselaw is telling. Undaer the facts of this case, there is no reason to find
preemption. TUTSA provides that it “displaces conflicting tort, restitutionary, and other law of
this state providing civil remedies fore misappropriation of a trade secret.” Tex. Civ. Prac. & Rem.
Code § 134A.007(a) (emphasis afdded). Conspiracy does not provide a conflicting remedy in this
case.11 It merely provides thyat damages are joint and several.
Conspiracy, likCe proportionate responsibility, does not provide a conflicting remedy that is
preempted under TUTSA. Texas trial courts have continued to submit TUTSA and conspiracy
claims to the jufrfy.12 Pohl’s TUTSA claim provides the remedy—damages for the misappropriation
11 As an aside, Kassab’s TUTSA expert, Joseph Cleveland, appears to assume that allegations of conspiracy can exist
alongside a TUTSA claim, as he makes no mention of preemption in discussing them in conjunction with each other.
Cf. Joseph F. Cleveland, Jr., J. Heath Coffman, Kevin C. Smith, A Practitioner's Guide to the Texas Uniform Trade
Secrets Act, Tex. J. Bus. L. 1, 16 (2019) (discussing how pleading conspiracy in connection with a TUTSA claim “will
virtually guarantee that the TCPA applies”).
12 See, e.g., Whitlock v. CSI Risk Mgmt., LLC, No. 05-19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—Dallas
Apr. 30, 2021, pet. denied), reh'g denied (June 7, 2021) (holding that the conspiracy finding was supported by the
underlying tort of misappropriation of trade secrets).
14
of Pohl’s trade secrets. Applying proportionate responsibility would modify that remedy so a
defendant is responsible for a percentage of the harm. Kassab does not dispute that TUTSA
permits this modification of the remedy.13 Similarly, applying conspiracy simply makes the same
remedy apply jointly and severally among multiple defendants. That is no more okbjectionable or
inconsistent with TUTSA than the proportionate responsibility statute. The Clourt should reject
Kassab’s selective and incorrect invocation of TUTSA preemption. c
V. The Jury’s misappropriation findings are consistent with seach other.
As a threshold matter, Kassab waived his right to object on the basis of any alleged
inconsistency in the Jury Verdict by not asserting any objections prior to the dismissal of the Jury.
See Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston [14th Dist.] 2017, rev.
granted, judgm’t vacated w.r.m.); Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 463 (Tex.
App.—El Paso 2022, pet. filed).
But even looking past Kassab’s waiver of this issue, his argument—that “the jury’s finding
of no wrongdoing by Precision destreoys the misappropriation claim against Kassab”—does not
make sense on its face. See Resfponse at 13. Kassab’s argument is that “because [he] acquired
Pohl’s alleged trade secretsy from Precision, and the jury found that Precision acquired the
information lawfully, tChen Kassab could not have misappropriated trade secrets from Pohl.” Id. at
2. But this argumenat is factually incorrect and fails for multiple reasons.
First, Kafssab is wrong. The Jury had ample evidence before it to conclude that Kassab
obtained UPohl’s trade secrets from Favre—by purchasing them through the November 2016
agreement—not from Precision. And the Jury did find that Favre bore some responsibility for the
13 Kassab requested that the Court include Question 4 in the Jury Charge so that the Jury could allocate responsibility
for the TUTSA claim based on the proportionate responsibility statute.
15
misappropriation. See Jury Verdict, at 10, attached as Ex. A to the Motion. This is fatal to
Kassab’s objection.
Second, there is nothing inconsistent about the Jury finding that Precision did not
misappropriate the information and Kassab did. The Jury could have found that Prekcision obtained
the information lawfully because Precision obtained the information at thel request of, while
working for, and while being paid by Pohl. The Jury also could have bacsed its misappropriation
finding on Kassab’s post-acquisition “use” or “disclosure” of the trasde secrets, even if it did find
that Kassab obtained the trade secrets directly from Precision. s 
Because Kassab waived this argument, and because it based on a factually unsupported
version of how Kassab obtained Pohl’s trade secrets, the Court should overrule Kassab’s objection
based on a supposed inconsistency in the Jury’s misappropriation findings.
CONaCLUSION
WHEREFORE, premises considered, Pohl requests that the Court overrule Kassab’s
objections asserted in the Response aend instead enter the Final Judgment in the form attached to
the Motion as Exhibit B, and forf such other and further relief at law or in equity, to which Pohl
may be entitled. y
16
Dated: September 18, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3e500
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsrfrizzell.com
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Proceldure on this 18th day of September 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
17
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 79681130
Filing Code Description: No Fee Documents
Filing Description: Pohl's Reply ISO Motion for Entry of Final Jtudgment
Status as of 9/19/2023 8:22 AM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
Andrew Johnson ajohnson@Bthompsoncoe.com 9/18/2023 8:21:13 PM SENT
Benjamin Ritz britz@thnompsoncoe.com 9/18/2023 8:21:13 PM SENT
Murray JFogler mfoglielr@foglerbrar.com 9/18/2023 8:21:13 PM SENT
Murray Fogler mfogler@fbfog.com 9/18/2023 8:21:13 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/18/2023 8:21:13 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Raul Herman Suazo 2O4003021 suazo@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Scott M.Favre y scott@favrepa.com 9/18/2023 8:21:13 PM SENT
Lawyer Wade o lawyerwade@hotmail.com 9/18/2023 8:21:13 PM SENT
Chris C.Pappas cpappas@krcl.com 9/18/2023 8:21:13 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/18/2023 8:21:13 PM SENT
Non-Party Dona Pohfli DonaLyann@yahoo.com 9/18/2023 8:21:13 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 9/18/2023 8:21:13 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 9/18/2023 8:21:13 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/18/2023 8:21:13 PM SENT
Andrea Mendez andrea@kassab.law 9/18/2023 8:21:13 PM SENT
Lance Kassab lance@kassab.law 9/18/2023 8:21:13 PM SENT
David Kassab david@kassab.law 9/18/2023 8:21:13 PM SENT
Nicholas Pierce nicholas@kassab.law 9/18/2023 8:21:13 PM SENT
Lance Kassab eserve@kassab.law 9/18/2023 8:21:13 PM SENT
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 79681130
Filing Code Description: No Fee Documents
Filing Description: Pohl's Reply ISO Motion for Entry of Final Jtudgment
Status as of 9/19/2023 8:22 AM CST i
Case Contacts D
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/18/2023 8:21:13 PM SENT
L Kassab lance@kasBsab.law 9/18/2023 8:21:13 PM SENT
Kelly Skelton receptionn@kassab.law 9/18/2023 8:21:13 PM SENT
Murray J. Fogler 7207300 mfoglielr@foglerbrar.com 9/18/2023 8:21:13 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
D Kassab david@kassab.law 9/18/2023 8:21:13 PM SENT
Harris Wells O hwells@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT"
59,2023-09-15,OBJ,Kassab,Objection to proposed final judgment,"Kassab's Objections to Pohl's Proposed Final Judgment, challenging exemplary damages, recoverability of attorneys' fees as actual damages, double recovery of unjust enrichment and market value, joint and several liability based on conspiracy, and indirect misappropriation theory","Filed September 15, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Filed 10 days after Pohl's Motion for Entry of Final Judgment, objecting to specific elements of the proposed judgment while reserving right to file subsequent motions challenging jury findings on other grounds. New appellate counsel Kevin Dubose (Alexander Dubose & Jefferson LLP) appears for Kassab.",JDGMT-1,N/A,Phase 5,2023-09-15_OBJ_Kassab-Objection-to-Pohl-Proposed-Final-Judgment_FILED.pdf,"That the Court refrain from signing Pohl's proposed final judgment and exclude: (1) exemplary damages ($3,000,000) due to non-unanimous Q17 finding, (2) attorneys' fees from barratry cases and grievances as actual damages, (3) one of the duplicative damage measures ($250,000 market value or $200,000 development costs), (4) joint and several liability based on conspiracy, and (5) all damages given Precision's exoneration breaking the indirect misappropriation chain","9/15/2023 1:38 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79605741
By: Patricia Gonzalez
Filed: 9/15/2023 1:38 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
§ k
§ e
SCOTT FAVRE, et al § 281st JUDICCIAL DISTRICT
KASSAB’S OBJECTIONS TO
POHL’S PROPOSED FINAL JUDGMEtNT
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm (“Kassab”) file these Objection teo the proposed Final Judgment
submitted by Plaintiffs Michael Pohl and uLaw Office of Michael A. Pohl
PLLC’(“Pohl”).
INTRODUCTIOaN AND OVERVIEW
Kassab will file subsequent motions challenging the jury findings against him
on various grounds. But this filineg will be limited to objecting to elements of recovery
in Pohl’s proposed judgmenft that are legally insupportable, even with these jury
findings. Specifically:
• The judgment should not include exemplary damages because one of the
predicate ifindings for exemplary damages was not answered by the jury
unanoimously.
• The judgment should not include as actual damages attorney’s fees incurred
by Pohl in actions against him by former clients and rejected potential clients
who were victims of Pohl’s barratry. Attorney’s fees are not an element of
recoverable damages under TUTSA.
• The judgment should not include actual damages for both unjust enrichment
of Kassab and the fair market value of the alleged trade secret misappropriated
from Pohl because they are two impermissibly overlapping versions of the same
loss. Pohl should have to elect one of those remedies rather than being awarded
a double recovery. C
• The judgment should not include joint and several liabili i ty under a conspiracy
theory because conspiracy is pre-empted under TUTiSA or subject to Chapter
33’s proportionate responsibility scheme.
• The judgment should not include any actual damages for theft of trade secrets
because of the jury’s findings that Precision did not misappropriate trade
secrets. Because Kassab acquired Plohl’s alleged trade secrets from Precision,
and the jury found that PrecMision acquired the information lawfully, then
Kassab could not have misappropriated trade secrets from Pohl.
i ARGUMENT
I. The judgment should not include exemplary damages because
the predicate question to reach the exemplary damages
question was onot answered unanimously.
Question 19l was the only question in the jury charge that asked about
exemplary damiages. The predicate instruction for Question 19 said, “Answer the
following question only if you unanimously answered ‘Yes’ to Question No. 17 or
Question No. 18. Otherwise, do not answer the following question.”1
The jury did not answer Question 18.
1 Motion, Exhibit A, at Question 19.
Some members of the jury answered Question 17 ‘Yes,” finding that the
misappropriation of trade secrets was willful and malicious.2 But the answer to
Question 17 was not unanimous — contrary to Pohl’s erroneous and false assertion
that “the jury unanimously found that the misappropriation of Pohl’s ktrade secrets
by Kassab was willful and malicious.”3 C
The certificate at the end of the jury verdict makes it unmistakably clear that
the answer to Question 17 was not unanimous. First, in thie general part of the jury
certificate the jury declined to check the box indicating that “Our verdict is
unanimous,” but instead checked the box indicating that ten jurors agreed to every
answer:
The additional certificate requcired the jury to indicate whether certain liability and
damages questions were answered unanimously:
In respoUnse to that instruction, the presiding juror signed certificates indicating that
Questions 2 and 19 were unanimous. But the presiding juror conspicuously did not
2 Motion, Exhibit A, at Question 17.
3 Motion, at 3.
sign the certificate for Question 17:
Thus, the jury’s answer to Question 17 was unmistakably not iunanimous.
The jury’s failure to answer Question 17 unanimouDsliy precludes any award of
exemplary damages by both rule and statute. See TEXs. R. CIV. P. 292 (“A verdict may
be rendered awarding exemplary damages only ifr the jury was unanimous in finding
liability for and the amount of exemplary d
amages.”) (emphasis added); TEX. CIV.
PRAC. & REM. CODE § 41.003(d) (“Exempl
alry damages may be awarded only if the
jury was unanimous in regard to finding liability for and the amount of exemplary
damages.”) (emphasis added).
Texas cases have not heisitated to apply this principle articulated in both rule
and statute. See Redwine v. Peckinpaugh, 535 S.W.3d 44, 52 (Tex. App.—Tyler 2017,
no pet.) (concluding o“that the trial court erred in entering judgment awarding
exemplary damaagles” when “[d]espite [the jury] having answered the exemplary
damages quesftiion, which was predicated on its unanimously having found that [the
defendant] made multiple defamatory statements, the jury stated in the charge that
its verdict was not unanimous.”); DeAtley v. Rodriguez, 246 S.W.3d 848, 850 (Tex.
App.—Dallas 2008, no pet.) (trial court did not err in reforming a judgment where
Rule 292 required a unanimous jury finding both liability for and the amount of
exemplary damages; a non-unanimous verdict on liability was insufficient as a matter
of law to support an award of exemplary damages).
Because the predicate finding of malicious misappropriation was the only way
to get to exemplary damages, and that question was not answered unaknimously, the
judgment cannot include exemplary damages. C
II. The judgment should not include attorney’s fees incurred in
Pohl barratry cases and grievance procedures betcause they are
not recoverable under TUTSA or the Disciplinairy Rules.
A. Attorney’s fees incurred in Pohl’s barratry cases and
grievances are not recoverable undeer TUTSA.
Attorney’s fees incurred by Pohl in defenuding barratry suits and grievances
filed by his former clients and rejected potential clients are not recoverable under
TUTSA. TUTSA provides recovery for a“actual loss[es] caused by misappropriation”
and unjust enrichment. TEX. CIV. PRAC. & REM. CODE § 134A.004. The act does not
define that term, and no Texase case has attempted a definition. However, the act
requires it to “be applied anfd construed to effectuate its general purpose to make
uniform the law with respect to the subject of this chapter among states enacting it.”
TEX. CIV. PRAC. & REM. CODE § 134A.008. Thus, the Court must look to and be guided
by decisions fromi other states that have adopted the Uniform Trade Secrets Act. See
Morgan v. Colements Fluids S. Tex., Ltd., 589 S.W.3d 177, 191 n.4 (Tex. App.—Tyler
2018, no pet.) (looking to Florida law when interpreting TUTSA because “[t]he Florida
Uniform Trade Secrets Act is very similar to the TUTSA”).
Courts in other jurisdictions “have made clear that ‘actual loss’ means ‘loss of
profits, lost customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20-
24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at *10 (S.D. Fla. 2022) (concluding
reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets
Act) (citing Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267, 1276
(11th Cir. 2021) (understanding “actual loss” in terms of lost profits); Skelectica, Inc.
v. Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LECXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual loss’ has been defined as ‘loss of profits, lost customers or
lost market share.’”). In a case construing the Idaho Uniforim Trade Secrets Act, the
Idaho Supreme Court held that actual loss means “lost profits, lost customers, lost
market share, and similar losses,” but specifically held that “it would be an anomaly
for us to allow attorney fees to be recovered in a case like this as part of damages.”
GME, Inc. v. Carter, 917 P.2d 754, 757 (Idalho 1996). Thus, attorney’s fees that Pohl
incurred defending the barratry claimMs and grievances brought against him are not
actual losses recoverable under the statute.
This conclusion is consiistent with Texas trade secret law before TUTSA. The
Supreme Court of Texas defined recoverable losses for a trade secret claim as “the
value of the plaintiff’so lost profits, the defendant’s actual profits from the use of the
secret, the value al reasonably prudent investor would have paid for the trade secret,
the developmient costs the defendant avoided by the misappropriation, and a
reasonable royalty.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710–11
(Tex. 2016); see also Carbo Ceramics, Inc. v. Keefe, 166 F. App'x 714, 722-23 (5th Cir.
2006) (“In an action for trade secret misappropriation, the plaintiff may recover
actual damages based on either the value of what has been lost by the plaintiff or
the value of what has been gained by the defendant. … The value of what has been
lost by the plaintiff is usually measured by lost profits.”) (applying Texas law)
(emphasis added). No Texas court has ever allowed attorneys’ fees in other cases to
be recovered as actual damages in a trade secret claim. In fact, at leakst one recent
Texas court has concluded the opposite in dismissing a TUTSA Cclaim. See Lacore
Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App. LEXIS 1926, at *32-33
(Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.) (irejecting contention that
“disclosure of [party’s] confidential information” caused “the attorney’s fees that have
been incurred [which] is evidence of damages” because “attorney’s fees incurred in a
lawsuit are not actual damages.”).
This conclusion is further reinforceld by Texas law regarding attorney’s fees
incurred in previous litigation. “[F]eeMs expended in prior litigation generally are not
recoverable as damages; fees are recoverable only when an agreement between the
parties so provides.” Martin-Siimon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied); see also Tana Oil & Gas Corp. v. McCall, 104
S.W.3d 80, 81-82 (Texo. 2003) (attorney’s fees for defending a different claim are not
recoverable as damlages as a matter of law); O'Neal v. Dale, No. 02-20-00173-CV, 2021
Tex. App. LEXiIS 466, at *28 (Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (mem.
op.) (“a party's claim that he incurred attorney’s fees to defend against [another] claim
is not a viable damage claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No.
01-02-00807-CV, 2006 Tex. App. LEXIS 2001, at *23-24 (Tex. App.—Houston [1st
Dist.] Mar. 16, 2006, pet. denied) (mem. op.) (“financial loss due to time spent by
[party] on litigation matters” in another case was not, as a matter of law, recoverable).
And the law is clear that “[a] party relying on assertions of non-recoverable damages
alone, such as attorney’s fees and expenses sustained in defending a lawsuit . . . has
presented a legal barrier to any recovery.” Woodhaven Partners Ltd. vk. Shamoun &
Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—Dallas 2014, no Cpet.).
Pohl may argue that he is entitled to recover attorney’s fees based on an
exception to the general rule based on the “tort of another,” wihich provides that “[o]ne
who through the tort of another has been required to act in the protection of his
interests by bringing or defending an action against a third person is entitled to
recover reasonable compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurredl in the earlier action.” Naschke v. Gulf
Coast Conference, 187 S.W.3d 653, 6M55 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied) (quoting RESTATEMENT (SECOND) OF TORTS § 914 (1979)). But that exception
has never been embraced by tihe Texas Supreme Court4 and has been flatly rejected
by the Fourteenth Court of Appeals.5 See Naschke, 187 S.W.3d at 655 (“Because we
are bound to follow thoe existing laws of the State, we are not at liberty to adopt a
4 See Akin, Gum f pi, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119
(Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the
Second Restnatement should be adopted as Texas law.”).
5 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.
Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s
faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack
the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable
exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App.
LEXIS 3776, at *20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases);
Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex.
App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases).
theory of recovery that has not been enacted by the Legislature or adopted by the
Texas Supreme Court.”).
The First Court of Appeals has not specifically held whether the “tort of
another” exception is viable. But it has stated that because this exkception is an
equitable doctrine it can only apply when the plaintiff is “whollyC innocent” of any
wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex.
App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Dist.]i June 30, 2005, no pet.)
(mem. op.); see also Brannan Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d
14, 27 (Tex. App.—Corpus Christi 2013, pet. denied) (referring to the “tort of another
exception” as an “equitable exception” to the general rule).
Here, the jury concluded in responsel to Question 3 that the “wrongful conduct
of Pohl . . . contribute[d] to the injury.M”6 Because Pohl is not a wholly innocent party,
he may not invoke the “tort of another exception” to the general rule even if it is a
viable doctrine under Texas laiw. See Per-Se Techs., 2005 Tex. App. LEXIS 5096, at
*24; see also Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834 (Tex.
App.—Austin 2002, noo pet.) (“[B]ecause the jury found that Allcox's damages were
caused by the neglligent conduct of both Pierce Homes and Pacesetter, equitable
principles do niot allow Pierce Homes to recover its previously incurred attorney’s fees
as damages.”); Dayton Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—
Dallas 1987, writ denied) (“[I]n the present case, Eldridge is not an innocent party
forced to incur costs and expenses, including attorneys' fees, to be treated as the legal
6 Motion, at Exhibit A, at Question No. 3.
consequences of some original wrongful act of another and permitted to be recovered
as damages.”).
Accordingly, attorney’s fees incurred by Pohl in defending against barratry
litigation and grievances are not recoverable “actual losses” under TUTSkA and should
not be included in the judgment. C
B. Attorneys’ fees are never recoverable against persons
bringing grievance procedures. t
Rule 17.09 of the Texas Rules of Disciplinary Procedure provides immunity to
persons filing grievance procedures: “No lawsuit emay be instituted against any
Complainant or witness predicated upon the filinug of a Grievance or participation in
the attorney disciplinary and disability system . . . . The immunity is absolute and
unqualified and extends to all actions ata law or in equity.” TEX. R. DISC. P. 17.09. Even
“allegations of wrongdoing . . . in connection with [the] prosecution of disciplinary
actions” are absolutely immune,e so long as they are “predicated upon” the filing of a
grievance. Crampton v. Farfris, 596 S.W.3d 267, 274-75 (Tex. App.—Houston [1st
Dist.] 2019, no pet.).
Thus, the $112,286 in attorney’s fees for defending against grievances that the
jury found in Quiestion 7(1)(e) and 7(1)(f) and are not recoverable damages as a matter
of law. See ToEX. R. DISC. P. 17.09.
III. The judgment should not include damages for both unjust
enrichment and fair market value; Pohl should have to elect
between the two.
Under TUTSA, a claimant is entitled to recover “actual loss caused by the
misappropriation and unjust enrichment caused by misappropriation that is not
10
taken into account in computing actual loss.” TEX. CIV. PRAC. & REM. CODE §134A.004.
Pohl’s request for judgment seeks an improper double recovery. In response to
Question 7(2) the jury found $250,000 in damages for actual loss, that is, the price a
willing buyer and a willing seller would have agreed on, at the time okf the alleged
misappropriation, as a fair price for Kassab’s use of the allegedC trade secrets. In
response to Question 7(3), the jury found $200,000 in unjust enrichment damages,
that is, the value of the development costs that Kassiab avoided by allegedly
misappropriating Pohl’s trade secrets.
If Pohl recovers the fair market value of his alleged trade secrets he will be
fully compensated for any actual loss. If he were willing to sell the alleged secrets to
a third party, that buyer would necessarilyl possess the secrets and would avoid any
development costs as part of the acqMuisition. Therefore, the development costs are
“taken into account” in the market value and duplicate the fair market value. TEX.
CIV. PRAC. & REM. CODE § 134Ai.004. In other words, Pohl cannot recover both of these
duplicative elements of damages under TUTSA but should be required to make an
election between the towo.
IV. The judgmlent should not include joint and several liability
under a iconspiracy theory because conspiracy is pre-empted
under TiUTSA or subject to proportionate responsibility under
Chapoter 33.
Pohl’s proposed judgment includes joint and several liability against Kassab
based on a conspiracy finding by the jury in Question 15. But Pohl’s conspiracy claim
is either preempted by TUTSA or subject to the proportionate responsibility scheme
of Chapter 33 of the Texas Civil Practice & Remedies Code.
11
With respect to TUTSA, the act provides that it “displaces conflicting tort,
restitutionary, and other law of this state providing civil remedies for
misappropriation of a trade secret.” TEX. CIV. PRAC. & REM. CODE §134A.007.
Although no Texas case has addressed this issue, a federal district cokurt sitting in
Texas has concluded that “the weight of authority from district courCts within the Fifth
Circuit … [demonstrate a] conspiracy claim is preempted by TUTSA.” VEST Safety
Med. Servs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812i, 2022 U.S. Dist. LEXIS
127285, at *10 (S.D. Tex. 2022) (collecting cases).
With respect to Chapter 33, it applies to “any cause of action based on tort in
which a defendant, settling person, or responsible third party is found responsible for
a percentage of the harm for which relief ils sought.” TEX. CIV. PRAC. & REM. CODE §
33.002(a). “Civil conspiracy is an inMtentional tort.” Firestone Steel Prods. Co. v.
Barajas, 927 S.W.2d 608, 617 (Tex. 1996). Chapter 33 lists those claims to which it
does not apply and does not lisit conspiracy. See id. at § 33.002(c). Accordingly, courts
have concluded that Chapter 33’s proportionate responsibility scheme applies to
conspiracy claims, ratoher than joint and several liability. See Seven Seas Petroleum,
Inc. v. Cibc World lMkts. Corp., No. H-08-3048, 2013 U.S. Dist. LEXIS 101112, at *73-
74 (S.D. Tex. i2013) (“when the Legislature has chosen to impose joint and several
liability rather than proportionate liability, it has clearly said so.”); Pemex
Exploracion Y Produccion v. BASF Corp., No. H-10-1997, 2011 U.S. Dist. LEXIS
156655, at *43-48 (S.D. Tex. 2011) (claims for conspiracy are not expressly exempted
from Chapter 33's proportionate responsibility framework).
12
Because the conspiracy claim is either preempted by TUTSA or subject to the
proportionate responsibility scheme under Chapter 33, the judgment should not
include joint and several liability against Kassab.
V. The judgment should not include any damages against Kkassab
because the jury’s finding of no wrongdoing by Perecision
destroys the misappropriation claim against Kassab. C
Pohl alleged that Precision illegally misappropriated trade secrets from him,
and that Kassab subsequently committed indirect misappriopriation of trade secrets
by acquiring illegally misappropriated trade secrets from Precision.7 Although Pohl
originally sued Precision, he non-suited his claims against Precision. Nevertheless,
Precision was designated as a responsible third party, and when the jury was asked
whether Precision misappropriated trade lsecrets from Pohl, it found that Precision
did not.8 In consistent fashion, the juryM answered “0” in Question 4 when asked to assign what
percentage of the “fault that caused the o injury” was attributable to Precision.9
Indirect misappropriation of trade secrets has been described as a “daisy-
chain” type liability in that the plaintiff must show “that the defendant knew or
had reason to knowo before the use or disclosure that the information was a trade
secret and knew olr had reason to know that the disclosing party had acquired it
7 Plaintiff’s nFirst Amended Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s prUoprietary and confidential information and property …which included information
about and/or communications with as many as 10,000 or more of Pohl’s clients/prospective clients.
Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers,
and misappropriated electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis added).
8 Motion, at Exhibit A, Question 2(a)(3) and 2(b)(3).
9 Motion, Exhibit A, at Question No. 4(3).
13
through improper means or was breaching a duty of confidentiality by disclosing it.”
AssuredPartners of Or., LLC v. Reese, No. 6:22-cv-00673-MC, 2022 U.S. Dist. LEXIS
233618, at *7 (D. Or. 2022) (emphasis added). In other words, the jury must find the
first person in the chain committed direct misappropriation — i.e. kacquired the
information by improper means – before any of those indirectly misCappropriating can
be found liable. See TEX. CIV. PRAC. & REM. CODE § 134A.002
(3)(B)(ii)(a) (requiring
the person misusing the trade secret to know or have reaison know that the trade
secret was “derived from or through a person who used improper means to acquire
the trade secret”).
Here, the jury answered “No” to the question of whether Precision had
misappropriated Pohl’s trade secrets even tlhough Precision was defined in the charge
to include Walker, Seymour and LadnMer prior to May 12, 2015 and Favre after May
12, 2015.10 The jury’s finding that Precision, and those associated with Precision, did
not misappropriate anything —i meaning it either owed no duty to Pohl or breached
no duty to Pohl when it provided Pohl's alleged information to Kassab — precludes
liability against Kassaob for indirect misappropriation.
a l PRAYER FOR RELIEF
For all tihese reasons, Kassab objects to the judgment submitted by Pohl and
respectfully requests that the Court refrain from signing the proposed judgment.
10 See Motion, at Exhibit A, p. 5.
14
ALEXANDER DUBOSE & JEFFERSON LLP
/s/ Kevin Dubose
Kevin Dubose
kdubose@adjtlaw.com
Texas State Bar No. 06150500
1844 Harvard Street k
Houston, Texas 77008 e
Phone (713) 523-0667 C
Facsimile (713) 522-4553
FOGLER, BRAR, O’NEItL & GRAY, LLP
/s/ Murray Fogler
Murray Fogler
mfogler@feoglerbrar.com
Texas State Bar No. 07207300
909 Faunnin, Suite 1640
Houston, Texas 77002
(713) 481-1010
(l713) 574-3224 (Fax)
THME KASSAB LAW FIRM
/s/ David Eric Kassab
e Lance Christopher Kassab
i Texas State Bar No. 00794070
f David Eric Kassab
Texas State Bar No. 24071351
1214 Elgin Street
o Houston, Texas 77004
Telephone: (713) 522-7400
l E-service: eserve@kassab.law
i ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that this document has been forwarded to all counsel pursuant to the
Texas Rules of Civil Procedure on September 15th, 2023.
/s/ David Eric Kassab
David Eric Kassab
15
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 79605741
Filing Code Description: No Fee Documents
Filing Description: t
Status as of 9/15/2023 2:32 PM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 9/15/2023 1:38:22 PM SENT
Jean C.Frizzell jfrizzell@reBynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Jean C.Frizzell jfrizzell@nreynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwellsi l@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/15/2023 1:38:22 PM SENT
Scott M.Favre scott@favrepa.com 9/15/2023 1:38:22 PM SENT
Lawyer Wade lawyerwade@hotmail.com 9/15/2023 1:38:22 PM SENT
Chris C.Pappas cpappas@krcl.com 9/15/2023 1:38:22 PM SENT
Non-Party Witness Billy Shepherd O bshepherd@spcounsel.com 9/15/2023 1:38:22 PM SENT
Non-Party Dona Pohl y DonaLyann@yahoo.com 9/15/2023 1:38:22 PM SENT
Non-Party Edgar Jaimes o edgarsroom@gmail.com 9/15/2023 1:38:22 PM SENT
Lance Kassab lance@kassab.law 9/15/2023 1:38:22 PM SENT
David Kassab david@kassab.law 9/15/2023 1:38:22 PM SENT
Nicholas Pierce f i nicholas@kassab.law 9/15/2023 1:38:22 PM SENT
Lance Kassab eserve@kassab.law 9/15/2023 1:38:22 PM SENT
Andrea Mendez andrea@kassab.law 9/15/2023 1:38:22 PM SENT
Murray JFogler mfogler@foglerbrar.com 9/15/2023 1:38:22 PM SENT
Murray Fogler mfogler@fbfog.com 9/15/2023 1:38:22 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/15/2023 1:38:22 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/15/2023 1:38:22 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 79605741
Filing Code Description: No Fee Documents
Filing Description: t
Status as of 9/15/2023 2:32 PM CST i
Case Contacts D
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
D Kassab david@kassab.law 9/15/2023 1:38:22 PM SENT
Murray J. Fogler 7207300 mfogler@foBglerbrar.com 9/15/2023 1:38:22 PM SENT
L Kassab lance@knassab.law 9/15/2023 1:38:22 PM SENT
Murray J. Fogler 7207300 mfoglielr@foglerbrar.com 9/15/2023 1:38:22 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 9/15/2023 1:38:22 PM SENT
Marisa Barrera Cruz Hurd 2O4041157 mhurd@adjtlaw.com 9/15/2023 1:38:22 PM SENT
Kelly Skelton y reception@kassab.law 9/15/2023 1:38:22 PM SENT
Harris Wells o hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT"
57,2023-08-14,RSP,Kassab,Response to Pohl Barratry MSJ,Kassab Defendants' Response to Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses,"Filed August 14, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Kassab responds to Pohl's Rule 166(g) pretrial motion seeking to exclude evidence of barratry and eliminate ten of Kassab's affirmative defenses. Kassab argues barratry evidence is central to both Pohl's claims and Kassab's defenses, and that Rule 166(g) is procedurally improper for this purpose.",MSJ-3,N/A,Phase 4,2023-08-14_RSP_Kassab-Response-to-Pohl-Partial-MSJ_FILED.pdf,Deny Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants,"8/13/2023 12:21 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 78474030
By: Bonnie Lugo
Filed: 8/14/2023 12:00 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
§ k
§ e
SCOTT FAVRE, et al § 281st JUDICCIAL DISTRICT
THE KASSAB DEFENDANTS’
RESPONSE TO PLAINTIFF’S RULE 166(g) tMOTION
Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.
d/b/a The Kassab Law Firm (“Kassab”) files this Reseponse to Plaintiffs’ Michael Pohl
and Law Office of Michael A. Pohl PLLC’s (“Pohul”) Rule 166(g) Motion on Barratry
Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants (“the
Motion”), and in support thereof, woulda show the following.
SUMMARY
Pohl asks the Court to rulee that the issue of whether Pohl committed barratry
is irrelevant and should be efxcluded from evidence. Pohl is so concerned about this
issue that he has made it the subject of several motions seeking similar relief. But
barratry is central not only to Kassab’s defenses; it is central to Pohl’s own claims.
As a preliiminary matter, Pohl’s latest motion is procedurally defective. Rule
166(g) is noot intended as a substitute for normal summary judgment practice. Indeed,
Pohl previously moved for summary judgment on Kassab’s affirmative defenses, later
withdrawing his request to have his summary judgment motion heard. The new
Motion improperly tries to backdoor the same relief.
More substantively, Pohl’s barratry is relevant to virtually every issue in the
case. Take his trade secret claim. He must prove that he is the “rightful, legal, or
equitable” owner of the alleged secrets. If Pohl himself obtained the alleged secrets
illegally, he cannot enjoy the benefits of the trade secret statute. Moreover, for Pohl
to recover his attorneys’ fees on his trade secret claim, he must provek “willful and
malicious misappropriation.” In other words, Pohl’s claim dependsC on Kassab’s state
of mind. Kassab is entitled to prove that his belief about Pohl’s barratry was well-
founded. i
Barratry is also directly linked to Pohl’s claim to recover his fees for defending
the barratry suits. Pohl claims those fees as damages for misappropriation of trade
secrets. How can he seek to recover fees for defending the barratry suits without
talking about the claims in those suits? Iln addition, Kassab asserts proportionate
responsibility for these alleged damaMges; he gets to demonstrate that Pohl incurred
those fees not because of any alleged misappropriation of trade secrets but because
Pohl engaged in barratry. Bariratry therefore hits the heart of the cause of Pohl’s own
damages.
Barratry is releovant to several of Kassab’s defenses, too. As we will explain,
the defenses of illlegality, unlawful acts, attorney immunity, judicial privilege, and
others all brinig the facts surrounding the barratry into the picture.
We understand why Pohl strives so mightily to exclude evidence of his own
contributing conduct. It mortally wounds his claims. But the facts relating to the
barratry underlie and intertwine with all the claims and defenses. The Motion must
be denied.
RESPONSE TO RULE 166(g) MOTION
I. Pohl’s belated use of Rule 166(g) as a last-minute effort to decide
the merits of Kassab’s affirmative defenses is improper.
Rule 166(g) provides that, “to assist in the disposition of thee case without
undue expense or burden to the parties, the court may in its discretion direct the
attorneys for the parties and the parties … to appear beforte it for a conference to
consider … [t]he identification of legal matters to be ruled on or decided by the
court[.]” TEX. R. CIV. P. 166(g). “The pretrial confereence contemplated by this rule
should not be used to determine issues involvinug controverted facts. It is a tool to
‘dispose of issues which are founded upon admitted or undisputed facts.’” McCreight
v. City of Cleburne, 940 S.W.2d 285, 288 a(Tex. App.—Waco 1997, writ denied) (quoting
Provident Life & Acci. Ins. Co. v. Hazlitt, 216 S.W.2d 805, 807 (1949)). Thus, “[t]here
is nothing in the rule authorizineg the trial court to determine the merits of the issues
raised by the pleadings at a pfre-trial hearing, where the parties do not agree to limit
the issues, and the issues raised by the pleadings are not disposed of by admissions.”
Mason v. Tobin, 408 S.W.2d 243, 245 (Tex. Civ. App.—Houston 1966, no writ).
That is eixactly what Pohl wants the Court to do here; obtain summary-
judgment lioke dismissal of Kassab’s affirmative defenses (without providing Kassab
the requisite summary judgment notice), arguing that Kassab’s unlawful acts defense
is precluded under Texas law,1 that the defense of justification is “not available as a
1 Motion, at § B(1).
matter of law,”2 that immunity under the rules of disciplinary procedure does not
apply,3 and that “unclean hands is not a defense to legal claims.”4 Notably, Pohl
already sought to dismiss these defenses via traditional and no-evidence summary
judgment.5 Kassab, along with other defendants, responded.6 Althoughk Pohl set that
motion for hearing, he voluntarily withdrew the notice after KassabC filed his response
and it was never reset. Pohl had his opportunity to obtain dismissal on Kassab’s
affirmative defenses, but he squandered it. Pohl should noit now, at this late in the
game, be permitted to misuse Rule 166(g) as an untimely means to decide the merits
of Kassab’s affirmative defenses. See Mason, 408 S.W.2d at 245.
II. Evidence of Pohl’s barratrous conduct is directly relevant to
Pohl’s claims and his own proportionate responsibility.
Pohl’s Rule 166(g) motion is basead entirely on the false premise that “whether
barratry occurred” is “not legally relevant to the material issues in this case[.]”7
Whether Pohl committed barratery is relevant to establishing Pohl’s own claims, and
his own proportionate responfsibility.
Pohl has pursued claims under TUTSA, which requires a person claiming
ownership of a trade secret to demonstrate “rightful, legal, or equitable” title to the
information. Se
ei TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a). Yet, a person cannot
2 Motion, at § B(2).
3 Motion, at §§ B(3).
4 Motion, at § B(4).
5 See Plaintiffs’ Motion for Partial Summary Judgment on Defendants’ Affirmative Defenses that
Seek to Relitigate Failed Barratry Claims Against Plaintiffs and No-Evidence Motion for Summary
Judgment on the Remaining Affirmative Defenses, filed on August 29, 2022.
6 See Kassab’s Response to Plaintiffs’ Motion for Partial Traditional and No-Evidence Summary
Judgment, filed September 12, 2022.
7 Motion, p. 2.
own or enforce rights in a trade secret for information about ongoing illegal activities.
See Alderson v. United States, 718 F. Supp. 2d 1186, 1200 (C.D. Cal. 2010), aff'd, 686
F.3d 791 (9th Cir. 2012). In Alderson, the Court recognized that a trade secret “only
exists if the secret-holder takes reasonable efforts to maintain the skecrecy of the
information” and that “element simply cannot be satisfied with respCect to information
about ongoing illegality.” Id. The Alderson court noted that its “conclusion is
consistent with the underlying justifications of trade secretis law, which include ‘the
maintenance of standards of commercial ethics’” because “‘[c]ommercial ethics’ are
not maintained if businesses are able to conceal illegality.” Id. (quoting Kewanee Oil
Co. v. Bicron Corp., 416 U.S. 470, 481-482 (1974)).
Therefore, Kassab is entitled to estalblish that Pohl acquired the information
he claims to be confidential trade secrMets – client lists and attorney-client contracts –
through barratry by unlawfully paying Precision and its members to develop the lists
of potential clients and solicitiing them to hire Pohl. If the client lists and contracts
were procured by barratry, then Pohl cannot be a legal, equitable or rightful owner
of the information. TEoX. CIV. PRAC. & REM. CODE § 134A.002(3-a). In that case, Pohl
cannot show he mlade reasonable efforts to maintain the secrecy of the information
because commiercial ethics are not maintained if Pohl is able to conceal his illegal
barratry. Alderson, 718 F. Supp. 2d at 1200; A. Benjamini, Inc. v. Dickson, 2 S.W.3d
611, 613-14 (Tex. App. – Houston [14th Dist.] 1999, no pet.) (a person who obtains
property by illegal means, such as theft, “acquires no title in the property”); Dynamic
Prod. v. Cima Energy Ltd., No. 4:17-CV-01032, 2018 U.S. Dist. LEXIS 66987, at *21
(S.D. Tex. 2018) (company who obtained oil production by trespass was not rightful
owner of property).
Pohl also seeks attorney’s fees as damages under a “tort of another” theory.
This theory has never been embraced by the Texas Supreme Court ankd it has been
flatly rejected by the Houston Court of Appeals. Akin, Gump, StrauCss, Hauer & Feld,
L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 119 (Tex. 2009); Naschke v.
Gulf Coast Conference, 187 S.W.3d 653, 655 (Tex. App.—Hiouston [14th Dist.] 2006,
pet. denied). But to the extent it applies, it is an equitable doctrine that requires the
claimant to be an innocent party. See Brannan Paving GP, LLC v. Pavement
Markings, Inc., 446 S.W.3d 14, 27 (Tex. App.—Corpus Christi 2013, pet. denied).
Whether Pohl committed barratry is rellevant to establishing that he is not an
innocent party, and negating Pohl’s cMlaimed damages under this theory. See Per-Se
Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24
(Tex. App.—Houston [1st Disti.] June 30, 2005, no pet.) (declining to decide whether
exception applied, but holding even if it did, the plaintiff “is not a wholly innocent
party” because the satoellite litigation resulted due to their conduct).
Furthermorle, Pohl seeks his legal fees under TUTSA and exemplary damages,8
and can get th
iem only if he proves willful and malicious misappropriation. TEX. CIV.
PRAC. & REM. CODE § 134A.004(b), 134A.005(3). That means Pohl must establish that
Kassab engaged in “intentional misappropriation resulting from the conscious
disregard of the rights of the owner of the trade secret.” TEX. CIV. PRAC. & REM. CODE
8 First Amended Petition, ¶¶ 46-47.
§ 134A.002(7). Thus, Kassab’s intent is highly relevant. If Kassab believed that Pohl
had committed barratry by paying Precision to acquire the information and,
therefore, the information was property of Precision or Pohl had no legal, rightful or
equitable title to the information, then Pohl cannot establish willful aknd malicious
misappropriation. Thus, whether Pohl committed barratry – orC at least whether
Kassab had a belief that Pohl did – is directly relevant to Pohl’s own affirmative
claims. i
Moreover, whether Pohl committed barratry is directly relevant to his
proportionate responsibility. Under the statute, “a claimant may not recover damages
if his percentage of responsibility is greater than 50 percent.” TEX. CIV. PRAC. & REM.
CODE § 33.001. The trier of fact must consilder whether Pohl caused or contributed to
causing “in any way the harm for wMhich recovery of damages is sought[.]” Id. at §
33.003(a)(1). Here, the harm for which recovery of damages is sought is the purported
taking or misuse of Pohl’s allegiedly confidential information by Precision and others,
and the alleged sale of that information to Kassab who, on behalf of his clients,
brought barratry claimos against Pohl.9 Pohl seeks more than $2.4 million as “actual
loss damages” thalt include “the reasonable fees and expenses [Pohl] incurred in
defending [thei] underlying barratry and grievance proceedings that were made
possible through the [alleged] misappropriation of Pohl’s trade secrets” plus the “the
amount paid [by Pohl] under a settlement agreement [with Precision in the
Mississippi litigation, which was $1 million] that should have prevented the further
9 First Amended Petition, at ¶ 29.
[alleged] misappropriation of Pohl’s trade secrets.”10 Whether Pohl committed the
barratry which gave rise to the barratry claim is relevant to establishing that Pohl is
“in any way” responsible for the harm for which recovery of damages is sought. Id. at
§ 33.003(a)(1). k
III. Evidence of Pohl’s barratrous conduct is directly rCelevant to
Kassab’s affirmative defenses. 
Whether barratry occurred is also relevant to sevteral of Kassab’s live
affirmative defenses for which Kassab will be requesting jury findings at trial.11
Recognizing this fact, Pohl argues that “[a]s a matteer of law, ten of those defenses do
not exist or do not apply in this case.”12 Thus, Puohl asks the Court to “find that the
ten defenses … are not legally viable and will not be considered at trial.”13 The Court
should not consider Pohl’s untimely raequest for summary judgment on Kassab’s
affirmative defenses disguised a Rule 166(g) motion. Mason, 408 S.W.2d at 245.
Regardless, Pohl cannot establiseh that Kassab’s affirmative defenses fail as a matter
of law.14
A. Whether Pohl committed barratry is directly relevant to
many oof Kassab’s defenses which Pohl has failed to
conclusively negate.
The unlawiful acts rule provides that “no action will lie to recover a claim for
10 ExhibitU 1, Pohl’s Amended Response to Disclosures, at 4.
11 Exhibit 2, Kassab’s Proposed Jury Charge.
12 Motion, p. 8.
13 Motion, p. 8.
14 In his Traditional Motion for Summary Judgment filed on August 29, 2022, Kassab demonstrated
that Pohl’s unlawful acts, criminal acts and the in pari delicto doctrines preclude Pohl’s claims as a
matter of law. Kassab incorporates that argument and evidence as if set forth verbatim herein. Kassab
also incorporates the argument and evidence relating to the unlawful acts doctrine (including illegal
or criminal acts or in pari delicto) set forth on pages 9-14 of Nicholson’s Response to Plaintiffs’
Traditional and No-Evidence Motion for Summary Judgment, filed on September 12, 2022.
damages, if to establish it the plaintiff requires aid from an illegal transaction, or is
under the necessity 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 interpreted this defense to mean that if the killegal act is
inextricably intertwined with the claim and the alleged damageCs would not have
occurred but for the illegal act, the plaintiff is not entitled to recover as a matter of
law.” Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex. App.—Diallas 2006, pet. denied).
Courts have applied the doctrine without a conviction of a crime so long as “the
unlawful act barring the plaintiff's claim was in fact illegal conduct.” McNally v.
McNally, No. 02-18-00142-CV, 2020 Tex. App. LEXIS 7211, at *27 (Tex. App.—Fort
Worth Sep. 3, 2020, pet. denied) (mem. op.l).
Pohl argues that the unlawful Macts doctrine is preempted by the proportionate
responsibility statute, relying on Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013).15
But even Dugger recognized ithat unlawful acts doctrine still applied in certain
contexts, like legal malpractice cases. Id. at 833 (“While some courts of appeals have
extended that reasonoing to civil defendants bringing legal malpractice actions, we
have not directly laddressed that issue.”). Thus, the Court expressly “limit[ed] the
holding in th[ait] case to personal injury and wrongful death cases.” Id. at 833.
This is not a personal injury or wrongful death case; it is a conversion and theft
of trade secret case. In contexts outside the wrongful death and personal injury
context, Texas courts have refused to allow a plaintiff to profit from his or her own
15 Motion, p. 9.
illegal conduct. See Sharpe, 191 S.W.3d at 366 (precluding a plaintiff from recovering
from an attorney after a finding that summary judgment evidence established that
the plaintiff's conduct forming the basis of the underlying civil fraud claim was
unlawful). Texas courts have specifically refused to enforce agreemenkts relating to
the unlawful solicitation of clients under the unlawful acts ruCle. See Luong v.
McAllister, No. 01-17-00198-CV, 2018 Tex. App. LEXIS 5998, at *7-8 (Tex. App.—
Houston [1st Dist.] Aug. 2, 2018, pet. denied) (mem. op.). Aind when non-contractual
claims are inextricably intertwined with contracts or agreements to do illegal acts,
Texas courts have dismissed those claims as well because “no action may be
predicated upon an admittedly unlawful act of the party asserting it.” Denson v.
Dallas Cnty. Credit Union, 262 S.W.3d 84l6, 855 (Tex. App.—Dallas 2008, no pet.)
(barring “claims arising in tort becMause they are inextricably intertwined with
[plaintiff’s] illegal contract to sell automobiles in Dallas County without a license.”);
Villanueva v. Gonzalez, 123 S.iW.3d 461, 463 (Tex. App.—San Antonio 2003, no pet.)
(holding claims for breach of fiduciary duty and fraud failed because they arose out
of an illegal contract tohat violated the occupation code).
Pohl arguesl that these doctrines do not apply because he “has not asserted any
contract claimi against Kassab, nor do any of his tort claims involve enforcing the
terms of an allegedly illegal contract.”16 But Pohl’s claims are inextricably
intertwined with his unlawful agreement with Precision. Pohl alleges that he
contracted with Precision to “to provide public relations services … to screen and
16 Motion, p. 10.
10
liaise with Pohl’s clients/prospective clients” – e.g. commit barratry – during which
time “Precision gained access to Pohl’s [allegedly] confidential and proprietary
information and property, included trade secret materials” – e.g. the client lists and
contracts that Precision accumulated during its unlawful solicitation ekfforts.17 Pohl
alleges that Precision “illegally misappropriated” this information Cand then “secretly
sold” the information to Kassab,18 who then “solicited [Pohl’s] clients/prospective
clients to act as plaintiffs … to bring cases against Pohl for ailleged barratry and other
claims.”19 Pohl’s claims fail because “they are inextricably intertwined with [Pohl’s]
illegal contract” with Precision. Denson, 262 S.W.3d at 855.
B. Whether Pohl committed barratry is directly relevant to
Kassab’s justification and immunity defenses which Pohl
either fails to address or falils to negate.
Recognizing that Kassab’s defeMnse of justification renders evidence relating to
Pohl’s acts of barratry relevant, Pohl contends that justification “is not a defense to
Pohl’s claims”20 because it is ani affirmative defense to a claim of tortious interference
with contract.”21 But just because the defense is commonly applied to one type of
claim does not mean, oas Pohl contends, that it is “not a recognized defense” to other
types of claims, sulch as theft of trade secrets or conversion. In fact, justification is
common appliied in conversion cases because the alleged theft must occur “without
justification.” Morey v. Page, 802 S.W.2d 779, 787 (Tex. App.—Dallas 1990, no writ).
17 First Amended Petition, ¶ 20.
18 First Amended Petition, ¶ 21.
19 First Amended Petition, ¶ 29.
20 Motion, p. 10.
21 Motion, p. 11.
11
Regardless, Pohl conflates Kassab’s justification defense with the defense of
immunity or privilege – which Pohl has failed to negate – and which further renders
facts relating to Pohl’s barratry relevant to this litigation.
1. Barratry is relevant to Kassab’s defense of privkilege.
The Texas Supreme Court has often looked to the RestaCtement (Third) of
Unfair Competition and Restatement of Torts when defining Texas law governing
trade secret claims. See Tex. Dep't of Pub. Safety v. Cox Teix. Newspapers, L.P., 343
S.W.3d 112, 126 n.5 (Tex. 2011); In re Union Pac. R.R. Co., 294 S.W.3d 589, 592 (Tex.
2009). With respect to the issue of privilege, that Restatement provides:
The existence of a privilege to disclose another's trade secret depends
upon the circumstances of the particular case, including the nature of
the information, the purpose of the dlisclosure, and the means by which
the actor acquired the informaation. A privilege is likely to be
recognized, for example, inM connection with the disclosure of
information that is relevant to public health or safety, or to the
commission of a crime or tort, or to other matters of substantial
public concern. e
REST. 3D OF UNFAIR COMPEOT f ITION, § 40, cmt. c (emphasis added); RESTATEMENT OF
TORTS § 757 cmt. d
(“A privilege to disclose may also be given by the law,
independently of the other's consent, in order to promote some public interest.”). The
Reporters’ Notesi to Section 40 indicate that “the policies underlying the privilege are
similar to tohose supporting the numerous state and federal ‘whistleblower’ statutes
that prohibit retaliatory personnel actions by employers against employees who
disclose violations to public officials.” REST. 3D OF UNFAIR COMPETITION, § 40,
Reporters' Notes, cmt. c.
Here, even if the list identifying Pohl’s attorney-client agreements and lists
12
identifying Pohl’s clients and prospective clients are his trade secrets (and they are
not), and even if Pohl kept that information confidential (and he did not), Kassab was
privileged to obtain the information and use it to notify Pohl’s former clients or
prospective clients that the way they were solicited to hire Pohl waks illegal and
unethical. REST. 3D OF UNFAIR COMPETITION, § 40, cmt. c; PhiladeClphia Plaza-Phase
II v. Bank of Am. Nat'l Trust & Sav. Assoc. No. 322, 2002 Phila. Ct. Com. Pl. LEXIS
13, 2002 WL 1472338, at *5 (Pa. Com. Pl. May 30, 2002) i(citing Section 757 of the
Restatement of Torts to conclude that purported disclosure of trade secrets was
“proper, if not privileged.”); Sys. Operations, Inc. v. Sci. Games Dev. Corp., 425 F.
Supp. 130, 136 (D.N.J. 1977) (stating that “disclosure of trade secret information may
itself be privileged” and concluding that it lwas).
2. Barratry is relevMant to Kassab’s defenses of attorney
immunity and judicial proceedings privilege.
Kassab is also immune ferom Pohl’s claims under the doctrines of attorney
immunity and the judicial prfoceedings privilege, two defenses raised and established
as a matter of law by Kassab,22 which Pohl fails to address in the instant Motion.
Facts relating to whether Pohl committed barratry are directly relevant to those
defenses. i
Undeor the doctrine of attorney immunity, “an attorney does not have a right of
22 In his Traditional Motion for Summary Judgment filed June 8, 2021, Kassab established, as a matter
of law, the attorney immunity defense. In the Traditional Motion for Summary Judgment filed on
August 29, 2022, Kassab established, as a matter of law, the judicial proceedings privilege and
attorney immunity. Kassab incorporates those motions and the evidence attached thereto for all
purposes herein. See TEX. R. CIV. P. 58.
13
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.” 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 nkonclients for
conduct within the scope of his representation of his clients.” YounCgkin v. Hines, 546
S.W.3d 675, 681 (Tex. 2018). The inquiry “focuses on the kind of conduct at issue
rather than the alleged wrongfulness of said conduct.” Id.i “That is, a lawyer is no
more susceptible to liability for a given action merely because it is alleged 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 representation
or render it ‘foreign to the duties of an attolrney.’” Id. at 483. Even “criminal conduct
is not categorically excepted from the Mprotections of attorney civil immunity when the
conduct alleged is connected with representing a client in litigation.” Bethel v.
Quilling, Selander, Lownds, Wiinslett & 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 be wrongful but sotill fall within the scope of client representation”).
The case Talylor v. Tolbert, 644 S.W.3d 637 (Tex. 2022) is instructive on why
attorney immuinity applies here. 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 damages. Id.;
see also TEX. CODE CRIM. PROC. § 18A.502. The attorney moved for traditional
14
summary judgment, “arguing she is immune from liability as a matter of law because
the plaintiffs’ claims all stem from her role as an attorney in the modification
proceeding.” Id. at 644. The trial court agreed, but the court of appeals reversed. Id.
The Supreme Court reversed the court of appeals. Id. It concluded thatk the attorney
was, “in all respects, engaging in the office, professional training, sCkill, and authority
of an attorney in the ways that she allegedly used and disclosed the materials her
client provided.” Id. at 649. “Because [the attorney’s] condiuct falls squarely within
the confines of attorney immunity, the alleged criminality or wrongfulness 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 expressly repudiate the common
law or the attorney-immunity defense.” Id.l
Here too, Kassab’s conduct whicMh forms the basis of Pohl’s claims falls squarely
within the confines of attorney immunity, regardless of whether it is alleged to have
violated the TUTSA because tihat statute does not expressly repudiate the defense.
Pohl is suing Kassab because he allegedly obtained purportedly stolen information in
violation of the TUTSoA and then “solicited [Pohl’s] clients/prospective clients to act
as plaintiffs … to lbring cases against Pohl for alleged barratry and other claims.”23
The essence ofi Pohl’s claims against Kassab are “that Kassab bought Pohl’s client list
from [Precision] so that Kassab could send advertisements 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.—Houston [1st Dist.] 2020, pet. denied)
23 Amended Petition, ¶ 29.
15
(characterizing Pohl’s claims against Kassab). Pohl even seeks as damages “the
reasonable fees and expenses incurred in defending [the] underlying barratry and
grievance proceedings that were made possible through the misappropriation of
Pohl’s trade secrets.”24 k
Moreover, in this very case, the court of appeals opined tChat “the alleged
purchase of Pohl[’s] client list for those clients’ contact information,
followed by the mailing of attorney advertisementis 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 atl 578 (emphasis added). The court opined
that, “the intended audience of [KaMssab’s alleged] statement or conduct were
individuals with potential legal claims who Kassab sought to represent in
barratry suits against Pohli.” Id. at 579 (emphasis added).
The acquisition of clients and filing of lawsuits are actions taken “to facilitate
the rendition of legalo services.” Youngkin, 546 S.W.3d at 682; Clayton v. Oldcastle
Materials Tex., Incl., No. 09-18-00063-CV, 2019 Tex. App. LEXIS 1112, at *12, 15 (Tex.
App.—Beaumoint Feb. 14, 2019, no pet.) (applying 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
24 Exhibit 1, Pohl’s Amended Responses to Disclosures, p. 4.
16
to any litigation is immaterial because “attorney immunity applies to claims based
on 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 (concluding that
attorney was immune from conduct that occurred after litigation had enkded). In other
words, Pohl’s characterization of Kassab’s activities as part of a buCsiness transaction
that occurred prior to litigation does not negate attorney immunity because Kassab
engaged in the conduct as part of his ultimate provision of liegal 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 transaction involvinlg the type of legal services Kassab
provides.” Kassab, 612 S.W.3d at 57M8 (emphasis added).
Pohl also fails to address or negate the judicial proceedings privilege. “The
judicial-proceedings privilege iis an absolute privilege that covers any statement made
by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the
proceedings, includinog statements made in open court, pre-trial hearings,
depositions, affidavlits and any of the pleadings or other papers in the case.” Landry's,
Inc. v. Animali Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021) (internal quotations
omitted). “The judicial-proceedings privilege exists to facilitate the proper
administration of the justice system. It does so by relieving the participants in the
judicial process from fear of retaliatory lawsuits for statements they make in
connection with the proceeding itself.” Id. at 48. It attaches even to “communications
17
preliminary to a proposed judicial proceeding” if “the communication has some
relation to a proceeding that is actually contemplated in good faith and under serious
consideration by the witness or a possible party to the proceeding.” Id. at 48-49.
“Even in the pre-suit context, however, the privilegke protects
communications that are themselves preparatory to tChe lawsuit.” Id.
(emphasis added). The privilege protects all communications that are “necessary to
set the judicial machinery in motion.” Id. at 50 (quoti
nig RESTATEMENT (SECOND)
OF TORTS § 586 cmt. a) (emphasis added).
Here, Pohl has sued Kassab in retaliation for Kassab “solicit[ing] …
clients/prospective clients to act as plaintiffs … to bring cases against Pohl for alleged
barratry and other claims.”25 Pohl admitsl that he is suing Kassab for statements
Kassab made to prospective clients Mwhich spawned the litigation and grievance
proceedings:26
25 Amended Petition, at ¶ 29.
26 Exhibit 3, December 2021 Deposition of Michael Pohl, at 122.
18
Because Pohl’s claims against Kassab arise out of communications that Kassab
made in prospective (solicitation 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, 62-63k (Tex. App.—
Corpus Christi 2000, no pet.) (holding that statements in letteCr sent before the
lawsuit began were protected by the judicial-proceedings privilege); Highland Capital
Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00i055-CV, 2016 Tex. App.
LEXIS 442, at *10-11 (Tex. App.—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 inlformation” that “it knew to be stolen and
proprietary in furtherance of its scMheme to extort, slander, and disparage [the
plaintiff]” and “refusing to return and cease use of [the plaintiff’s] proprietary
information”). i
Both the defenses of attorney immunity and the judicial proceedings privilege
necessarily require dioscussion of facts relating to Pohl’s barratry. In fact, Question
No. 8 on Kassab’s lproposed jury charge incorporates these defenses and the concept
of privilege anid asks “Did Kassab use or disclose Pohl’s information for the purpose
of reporting, investigating, or filing a lawsuit relating to a suspected violation of law,
a commission of a crime, or other matters of substantial public concern?”27 The
question instructs the jury on Texas law relating to barratry.28 Thus, information
27 Exhibit 2, Kassab’s Proposed Jury Charge, p. 15.
28 Exhibit 2, Kassab’s Proposed Jury Charge, p. 15.
19
about whether barratry occurred and the facts and circumstances giving rise to the
barratry litigation is relevant. Pohl’s contention that “whether barratry occurred” is
“not legally relevant to the material issues in this case”29 is false.
3. Barratry is relevant to Kassab’s defenskes of
immunity under Texas Rule of Disceiplinary
Procedure 17.09. C
The only immunity defense that Pohl does address is Kassab’s claim that he is
immune under Rule 17.09 of the Texas Rules of Disciplinaryi Procedure.30 Pohl argues
that “Pohl’s claims, and thus the lawsuit, are not predicated on Kassab’s involvement
in the grievance process, [so] Rule 17.09 does not apply.”31 Kassab has already
explained why this is not true and why he is entitled to immunity as a matter of law.32
Pohl has sued Kassab because Kassab allelgedly “used information from [Pohl’s] files
in the grievance proceedings thatM [Kassab] personally filed or had clients file”33
and Pohl is suing Kassab to recover “the reasonable fees and expenses incurred in
defending [the] underlying bairratry and grievance proceedings that were made
possible through the misappropriation of Pohl’s trade secrets.”34 Thus, Pohl’s lawsuit
is, at least in part, “poredicated upon the filing of a Grievance or participation in the
attorney disciplin
alry and disability system.” TEX. RULES DISCIPLINARY P. R. 17.09.
Rule 17.09 proivides “absolute and unqualified” immunity for such conduct, which
29 Motion, p. 2.
30 Motion, p. 12-13.
31 Motion, p. 12.
32 In the Traditional Motion for Summary Judgment filed on August 29, 2022, Kassab established, as
a matter of law, the defense of immunity pursuant to Texas Rule of Disciplinary Procedure 17.09,
Kassab also incorporates that motion and the evidence attached thereto. See TEX. R. CIV. P. 58.
33 December 2021 Deposition of Michael Pohl, at 122 (emphasis added).
34 Exhibit 1, Pohl’s Amended Responses to Disclosures, p. 4 (emphasis added).
20
“extends to all actions at law or in equity.” Id.
Pohl argues that Rule 17.09 applies only to “certain officials connected to the
State Bar” and not to Kassab because he “is not a State Bar official.”35 But the rule
plainly applies to “the Complainant or witness” involved in the grievancke process. Id.
(“No lawsuit may be instituted against any Complainant or wCitness predicated
upon the filing of a Grievance or participation in the attorney disciplinary and
disability system.”) (emphasis added). Pohl admits that Kassiab was both.36 Therefore,
no lawsuit may be instituted against Kassab that is predicated upon Kassab’s
involvement in the grievance process. See id. Because Pohl is suing Kassab to recover
fees Pohl incurred defending the grievances filed by Kassab or his clients against
Pohl, the claim is necessarily “predicated ulpon” the filing of the grievances, rendering
immunity provided by the rule applicMable to Kassab. See id.
Pohl concedes that a “small portion” of his damages “are connected to the
grievance process” but argues ithat is insufficient to trigger Rule 17.09 because Pohl’s
claims allege that Kassab engaged in other wrongful conduct unrelated to the
grievance process.37 Bout under Rule 17.09, “[n]o lawsuit” may be instituted if it is
“predicated upon” lthe filing of a grievance, and immunity “extends to all actions at
law or in equitiy.” Id. Because at least part of Pohl’s claims and request for damages
is predicated on the grievance proceedings, the entire suit is barred, regardless of
whether Pohl alleges that Kassab engaged in otherwise tortious or wrongful conduct.
35 Motion, pp. 12-13.
36 December 2021 Deposition of Michael Pohl, at 122.
37 Motion, p. 13.
21
See Crampton v. Farris, 596 S.W.3d 267, 274-76 (Tex. App.—Houston [1st Dist.] 2019,
no pet.) (claim for destruction of evidence related to grievance proceeding barred by
immunity); Burch v. State Bar of Tex., No. 07-19-00224-CV, 2020 Tex. App. LEXIS
1409, at *3 (Tex. App.—Amarillo Feb. 19, 2020, pet. denied) (lawksuit against
attorneys for commission who purportedly “engaged in misconCduct related to a
bankruptcy proceeding in which [plaintiff] was involved” was barred by immunity
because it occurred in relation to a grievance proceeding). i
Accordingly, whether Pohl committed barratry and Kassab’s participation in
the grievance process relating to Pohl’s barratry is relevant to Kassab’s Rule 17.09
defense, and thus the instant Motion should be denied.
4. Barratry is relevant lto Kassab’s defenses of unclean
hands. a
The doctrine of unclean hands applies to claims involving equitable remedies.
See In re Nolle, 265 S.W.3d 48e7, 494 (Tex. App.—Houston [1st Dist.] 2008, orig.
proceeding). Pohl initially
sofught “injunctive relief”38 and it is well-established that
“[i]njunctive relief is an equitable remedy.” Fetter v. Wells Fargo Bank Tex., N.A.,
110 S.W.3d 683, 688 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (emphasis
added). Recogniziing this, Pohl argues that he “previously pled injunctive relief in his
petition, to ostreamline issues for trial, Pohl will no longer seek this relief.”39 But Pohl
has not filed any amendment, and thus the claim seeking equitable relief is still live,
rendering Kassab’s unclean hands defense applicable. Moreover, Pohl has pursued
38 First Amended Petition, at ¶ 45.
39 Motion, p. 14.
22
claims under TUTSA, which requires a person claiming ownership of a trade secret
to demonstrate “legal, or equitable” title to the information. See TEX. CIV. PRAC. &
REM. CODE § 134A.002(3-a) (emphasis added). Because Pohl’s claim to ownership of
the information is grounded in equity, Kassab is entitled to show Pkohl’s unclean
hands after engaging in his illegal barratry scheme to acquire theC information that
Pohl claims are his trade secrets.
CONCLUSION AND PRAYER D i
For these reasons, Defendants Lance Christopher Kassab and Lance
Christopher Kassab, P.C. d/b/a The Kassab Law Firm ask the Court to deny Plaintiffs’
Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted
by the Kassab Defendants. l
MTHE KASSAB LAW FIRM
/s/ David Eric Kassab
e David Eric Kassab
i Texas State Bar No. 24071351
f 1214 Elgin Street
Houston, Texas 77004
Telephone: (713) 522-7400
o E-service: eserve@kassab.law
l FOGLER, BRAR, O’NEIL & GRAY, LLP
i /s/ Murray Fogler
o Murray Fogler
mfogler@foglerbrar.com
Texas State Bar No. 07207300
909 Fannin, Suite 1640
Houston, Texas 77002
(713) 481-1010
(713) 574-3224 (Fax)
ATTORNEYS FOR KASSAB DEFENDANTS
23
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been
forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the
13th day of August, 2023.
/s/ David Eric Kassab k
David Eric Kassab e
24
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 78474030
Filing Code Description: Answer/ Response / Waiver
Filing Description: Kassab Defendants' Response to Plaintiffst' Rule 166(g)
Motion i
Status as of 8/14/2023 8:18 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 8/13/2023 12:21:33 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
Jean C.Frizzell jfriazzell@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
Todd Taylor ttaylor@jandflaw.com 8/13/2023 12:21:33 PM SENT
Scott M.Favre c scott@favrepa.com 8/13/2023 12:21:33 PM SENT
Lawyer Wade f lawyerwade@hotmail.com 8/13/2023 12:21:33 PM SENT
Chris C.Pappas  cpappas@krcl.com 8/13/2023 12:21:33 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 8/13/2023 12:21:33 PM SENT
Non-Party Dona Pohl C DonaLyann@yahoo.com 8/13/2023 12:21:33 PM SENT
Non-Party Edgar Jaimesa edgarsroom@gmail.com 8/13/2023 12:21:33 PM SENT
Lance Kassab lance@kassab.law 8/13/2023 12:21:33 PM SENT
David Kassab o david@kassab.law 8/13/2023 12:21:33 PM SENT
Nicholas PiercUe nicholas@kassab.law 8/13/2023 12:21:33 PM SENT
Lance Kassab eserve@kassab.law 8/13/2023 12:21:33 PM SENT
Andrea Mendez andrea@kassab.law 8/13/2023 12:21:33 PM SENT
Murray JFogler mfogler@foglerbrar.com 8/13/2023 12:21:33 PM SENT
Murray Fogler mfogler@fbfog.com 8/13/2023 12:21:33 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 8/13/2023 12:21:33 PM SENT
Benjamin Ritz britz@thompsoncoe.com 8/13/2023 12:21:33 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 8/13/2023 12:21:33 PM SENT
Automated Certificate of eService
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David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 78474030
Filing Code Description: Answer/ Response / Waiver
Filing Description: Kassab Defendants' Response to Plaintiffst' Rule 166(g)
Motion i
Status as of 8/14/2023 8:18 AM CST s
Case Contacts 
Raul Herman Suazo 24003021 suazo@mdjwlawg.com 8/13/2023 12:21:33 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 8/13/2023 12:21:33 PM SENT
D Kassab david@kassab.law 8/13/2023 12:21:33 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 8/13/2023 12:21:33 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 8/13/2023 12:21:33 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
L Kassab c lance@kassab.law 8/13/2023 12:21:33 PM SENT
Kelly Skelton f reception@kassab.law 8/13/2023 12:21:33 PM SENT
Harris Wells  hwells@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT"
55,2023-03-29,RSP,Pohl,Response to Amended MSJ,Plaintiffs' Response in Opposition to the Amended Motions for Summary Judgment Filed by the Kassab Defendants,"Filed March 29, 2023 in the 281st Judicial District Court (Judge Weems) by Jean C. Frizzell of Reynolds Frizzell LLP. Responds to Kassab's Amended MSJ (filing #50). Pohl argues the Amended Motion is a disguised motion to reconsider that reiterates the same arguments and evidence denied by the 189th District Court on October 31, 2022. Pohl objects to oral hearing under 281st Court Procedure I(I).",MSJ-4,N/A,Phase 4,2023-03-29_RSP_Pohl-Response-to-Kassab-Amended-MSJ_FILED.pdf,Deny Kassab's Amended Motions for Traditional and No-Evidence Summary Judgment,"3/29/2023 5:09 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 74146534
By: Julia Adkins
Filed: 3/29/2023 5:09 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE AMENDED MOTIONS FOR
SUMMARY JUDGMENT FILED BY THE KASsSAB DEFENDANTS
Plaintiffs Michael Pohl and Law Office of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the Amended Motions for Traditional and No-Evidence Summary Judgment (the
“Amended Motion”) filed by Defendants Lance Christopher Kassab and Lance Christopher
Kassab, P.C., d/b/a The Kassab Law Firm (coallectively “Kassab”).
I. INTRODUCTION
The Court should not entertaien motions to reconsider filed under another name, especially
when such a motion fails to makef any statement about why reconsideration is warranted. Despite
its name, the Amended Motiyon does not specify what prior motions it purports to amend. But, in
substance, it seeks recoCnsideration of Kassab’s previous motions for summary judgment that the
189th District Courat denied. Kassab does not explain why those prior rulings were wrong, nor
does he attemptf to explain whether the facts, arguments, or law have changed from the previously
denied mUotions. Kassab has not demonstrated that the Court should reconsider or revisit those
rulings, or that any prior ruling was erroneous. Thus, the Court should deny the Amended Motion.
Pohl also objects to the hearing on Kassab’s Amended Motion. The vast majority of the
Amended Motion is directly copied and pasted from Kassab’s prior motions for traditional and no-
evidence summary judgment that were denied by the 189th District Court. Kassab seeks the same
relief and uses the same arguments as contained in his denied motions. Thus, the Amended Motion
is a motion to “reconsider” with a different title. Under this Court’s procedures, “[a]ll motions to
reconsider are heard by submission only.” Procedure I(I) of the 281st Judicial District Court.
Kassab has not requested reconsideration of the prior summary judgment mkotions—instead
he purports to seek a new ruling on already decided issues. See generally Amelnded Motion. This
failure to request reconsideration alone warrants the Court denying the cAmended Motion. But
even if the Court were to reconsider the prior denials of the summary sjudgment motions, the result
would be no different. The 189th District Court reached the corsrect result, and Kassab’s failure to
explain otherwise is telling. As discussed below, Pohl’s prior briefing on these issues is
dispositive, and Kassab’s limited presentation of new information in the Amended Motion does
not justify a different result.
II. BaACKGROUND
On August 29, 2022, Kassab filed motions for traditional and no-evidence summary
judgment (“Kassab’s Original MSJs”e). Kassab’s No-Evidence MSJ sought judgment on Pohl’s
affirmative claims.1 Kassab’s Trfa f ditional MSJ also sought judgment on Pohl’s claims, as well as
on Kassab’s affirmative defyenses.2 On September 12, 2022, Pohl filed responses to Kassab’s
Original MSJs that demConstrated that summary judgment in Kassab’s favor was not proper.3
Pohl’s Respaonse to Kassab’s No-Evidence MSJ—which attached over 30 exhibits of
relevant evidenfce—demonstrated that there was sufficient evidence to support each element of
Pohl’s afUfirmative claims.4 Pohl’s Response to Kassab’s Traditional MSJ laid out how Kassab
1 See Kassab’s No-Evidence Motion for Summary Judgment, filed Aug. 29, 2022 (“Kassab’s No-Evidence MSJ”).
2 See Kassab’s Traditional Motion for Summary Judgment, filed Aug. 29, 2022 (“Kassab’s Traditional MSJ”).
3 See Pohl’s Response in Opposition to the No Evidence Motions for Summary Judgment Filed by the Kassab
Defendants and the Nicholson Defendants, filed Sept. 12, 2022 (“Pohl’s Response to Kassab’s No-Evidence MSJ”);
Pohl’s Response in Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholson Defendants, filed Sept. 12, 2022 (“Pohl’s Response to Kassab’s Traditional MSJ”).
4 See generally Pohl’s Response to Kassab’s No-Evidence MSJ (including the evidence cited therein).
failed to carry his summary judgment burden—Kassab did not show that there were no disputed
material facts, nor did he demonstrate a right to judgment as a matter of law.5 After an oral hearing,
the 189th District Court denied Kassab’s Original MSJs on October 31, 2022.6
On January 4, 2023, Kassab filed his Motion to Reconsider Traditional ankd No-Evidence
Motions for Summary Judgment, in which he asked Judge Craft to reconsidler prior rulings on
Kassab’s Original MSJs.7 Kassab filed this motion and set it for hearingc with the 189th District
Court, despite the fact that this lawsuit had been transferred to this Csourt. In this motion, Kassab
reiterated the same arguments and evidence contained in Kassabs’s Original MSJs—however, that
motion did explicitly request reconsideration of the denial of Kassab’s Original MSJs.8
Without explanation, on February 24, 2023, Kassab filed the Amended Motion. It does
not state what motion(s) it amends. See generally Amended Motion. Like Kassab’s Motion to
Reconsider, that he filed the prior month, Kassaab’s Amended Motion contains the same arguments
and evidence contained in Kassab’s Original MSJs.9 However, Kassab removed references to
reconsideration of Kassab’s Originale MSJs. See id. On its face, the Amended Motion does not
purport to be based on new evidenfce, changes in the law, or new arguments that were not presented
in Kassab’s Original MSJys. See id. However, Kassab’s omission of any discussion of
reconsideration does Cnot change the substance of the Amended Motion. At best, it is an
amendment to Kassab’s prior request for reconsideration of the denial of Kassab’s Original MSJs.
5 See generally Pohl’s Response to Kassab’s Traditional MSJ (including the evidence cited therein).
6 See Court Order, entered Oct. 31, 2022.
7 See Kassab’s Motion to Reconsider Traditional and No-Evidence Motions for Summary Judgment, at 3 (“Kassab
files this Motion to Reconsider to correct the erroneous ruling of the prior judge relating to the Kassab’s Traditional
and No-Evidence Motions for Summary Judgment.”).
8 Compare Kassab’s Motion to Reconsider Traditional and No-Evidence Motions for Summary Judgment, with
Kassab’s No-Evidence MSJ, and Kassab’s Traditional MSJ.
9 Compare Amended Motion, with Kassab’s No-Evidence MSJ, and Kassab’s Traditional MSJ.
III. POHL’S OBJECTION TO KASSAB’S AMENDED MOTION
Pohl objects to Kassab setting the Amended Motion for an oral hearing, as it is almost
identical to and seeks the same relief as Kassab’s Original MSJs that were denied by the 189th
District Court. Thus, the Amended Motion is a motion to “reconsider.” Undker this Court’s
procedures, “[a]ll motions to reconsider are heard by submission only.” Procedlure I(I) of the 281st
Judicial District Court. c
IV. POHL’S INCORPORATION OF PRIOR BRsIEFING
Pohl incorporates fully by reference his prior summary judgment briefing—both the
arguments and the attached evidence—into this response teo Kassab’s Amended Motion. This
includes the following briefing and exhibits:
• Pohl’s Response in Opposition to the No-E n vidence Motions for Summary Judgment Filed
by the Kassab Defendants and the Nichoilson Defendants & Exhibits (filed Sept. 12, 2022).
• Pohl’s Response in Opposition to the Traditional Motions for Summary Judgment Filed
by the Kassab Defendants and the Nicholson Defendants & Exhibits (filed Sept. 12, 2022).
fV. DISCUSSION
All of the issues presented in Kassab’s Amended Motion—whether traditional or no-
evidence arguments for soummary judgment—have been previously ruled on in Pohl’s favor. The
same result is proper lhere, and the Court should deny the Amended Motion.
Kassab’si no-evidence summary judgment arguments fail because Pohl has previously
provided sunfficient evidence of every element of his claims in Pohl’s Response to Kassab’s No-
Evidence MSJ. Because this addressed every element of Pohl’s claims, a subsequent no-evidence
motion makes no sense—the same showing of evidence defeats such a challenge. At best,
subsequent developments might give rise to disputed issues of material fact, but such issues
preclude summary judgment in their own right.
Kassab’s traditional summary judgment arguments fare no better. Pohl’s Response to
Kassab’s Traditional MSJ raised issues of disputed material facts or exposed flaws in Kassab’s
legal arguments that precluded summary judgment in Kassab’s favor. Kassab asserts the same
flawed arguments in his Amended Motion. Once there are disputed issues of mkaterial fact that
prevent summary judgment on an issue, additional evidence on that disputed flactual issue makes
no difference in a summary judgment analysis. The five new exhibits (cout of 65 exhibits total)
attached to Kassab’s Amended Motion, at best, provide additional stestimony on disputed facts.
The Court should reject Kassab’s attempt to seek reconsiderastion under a different name and
should deny Kassab’s Amended Motion.
A. Kassab is not entitled to no-evidence summary judgment.
The 189th District Court made the right decision when it denied Kassab’s No-Evidence
MSJ. The Court should deny Kassab’s Amended Motion outright because, as was shown through
his prior briefing, Pohl has come forward with sufficient evidence to support each element of his
claims.10 Nothing has changed sincee Kassab’s No-Evidence MSJ was denied, and nothing in
Kassab’s Amended Motion suggef f sts that a different result is proper here.11
In Pohl’s prior briefying, Pohl put forward evidence sufficient to, at a minimum, raise a
genuine issue of materCial fact on each element of his three claims. See generally Pohl’s Response
in Opposition to thea No-Evidence Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholsfon Defendants (including the evidence attached and incorporated therein). By the
10 As stated above, Pohl incorporates fully by reference his prior briefing and evidence on the no-evidence summary
judgment issue. See generally Pohl’s Response to Kassab’s No-Evidence MSJ (including the evidence cited therein).
11 The wording of Kassab’s no-evidence challenge to Pohl’s claims is almost entirely copied, word-for-word, from
Kassab’s No-Evidence MSJ. Compare Amended Motion, at 88–94, with Kassab’s No-Evidence MSJ. The sole
addition is a paragraph in which Kassab argues that “Pohl has no evidence that he is wholly innocent in the illegal
obtainment of any client for which his claims are based.” See Amended Motion, at 93. This is not part of any element
of Pohl’s claims, and Kassab does not explain otherwise. Kassab cites no authority to explain the relevance of this
assertion, nor does he establish that Pohl has the burden of proof with respect to this issue. See generally id. Thus,
this argument cannot be a proper basis for no-evidence summary judgment.
nature of a no-evidence summary judgment, once a party has presented sufficient evidence to
defeat such a motion, further no-evidence challenges on the same elements of a claim are futile.
Because Kassab previously raised a no-evidence challenge to each element of Pohl’s
claims, and Pohl provided sufficient evidence to support each element of his kclaims, the no-
evidence challenge to Pohl’s claims in Kassab’s Amended Motion necessarilly fails.12 For this
reason, and for the reasons stated in Pohl’s prior briefing incorporated hcerein, Pohl requests that
the Court deny Kassab’s Amended Motion. s
B. Kassab is not entitled to traditional summary judgmsent.
Kassab makes no effort to explain to the Court how the 189th District Court erred when it
previously denied Kassab’s Traditional MSJ. Nothing material has changed since Kassab’s
Traditional MSJ was denied, and the Amended Motion reiterates the same rejected arguments and
evidence. The Court should deny Kassab’s Amended Motion because, as Pohl demonstrated in
his prior briefing, Kassab’s arguments and evidence do not entitle Kassab to judgment as a matter
of law. Thus, Pohl requests that the Ceourt deny Kassab’s Amended Motion.
1. Pohl’s prior briefing dfefeats Kassab’s Amended Motion.
The 189th District Cyourt was right on the law and the facts when it denied Kassab’s
Traditional MSJ. The Court should deny Kassab’s Amended Motion because, excluding the
handful of exceptiaons discussed below, Kassab relies on the same arguments, exhibits, and
authority contaifned in Kassab’s No-Evidence MSJ to seek the same relief a second time. Nothing
has changed since this relief was first denied, and neither should the Court’s ruling on these issues.
As stated above, Pohl incorporates fully by reference his prior briefing and evidence on the
traditional summary judgment issues.13 Because the portions of the Amended Motion addressing
12 See Court Order, entered Oct. 31, 2022 (denying Kassab’s No-Evidence MSJ).
13 See generally Pohl’s Response to Kassab’s Traditional MSJ (including the evidence cited therein).
traditional summary judgment are largely identical to Kassab’s prior motion, further briefing on
this issue would be unnecessarily duplicative. Compare Amended Motion, at 2–88, with Kassab’s
Traditional MSJ. For the reasons stated in Pohl’s Response to Kassab’s Traditional MSJ the Court
should deny Kassab’s Amended Motion. k
2. Kassab’s citations to limited new materials does not justify recon
silderation or suggest
that summary judgment is proper.
While the issues, arguments, and the vast majority of the wordinrgi and exhibits are directly
copied from Kassab’s Original MSJs, Kassab does cite five new exDhibits and two new cases in the
Amended Motion. However, even if this new material were reslevant and applicable—which Pohl
disputes—it makes no difference, because disputed issuers of material fact or flaws in Kassab’s
legal arguments prevent summary judgment.
Kassab cites the limited new material in clonnection with three arguments in the Amended
Motion: (1) Pohl’s trade secret claim fails aMs a matter of law due to a failure to sufficiently protect
the trade secrets; (2) Pohl’s trade secreto claim fails as a matter of law because Pohl does not own
the trade secrets and property at issuce in his claims; and (3) that Pohl cannot recover on his claims
because Kassab’s affirmative defense of illegality or the unlawful acts doctrine is conclusively
established as a matter of law. None of these arguments support granting summary judgment.
i. Pohl reasonably protected his trade secret information, including information
concaerning clients.
Kassab fargues that Pohl’s claim for theft of trade secrets fails because Kassab has
established as a matter of law that “Pohl did not take any measures, let alone reasonable measures,
to keep his alleged information or client lists secret.” See Amended Motion, at 59–62 (citing Exs.
61–64 to the Amended Motion). Kassab’s evidence does not establish this fact. Even if
Kassab’s presentation of the testimony were accurate—and it is not—it would at most raise issues
of disputed material facts that preclude the Court from granting Kassab’s Amended Motion. Pohl’s
prior briefing presented controverting evidence on this precise issue that precludes summary
judgment.14
Pohl testified in his deposition regarding the reasonable steps he took to protect the client
information, confidential information, and trade secrets that are the subject mattekr of this suit.15
This alone is sufficient to raise a fact issue for the jury to decide regarding whelther the steps Pohl
took were reasonable under the circumstances to protect Pohl’s trade secrects. However, additional
evidence supports Pohl’s position that he protected the confidentisality of his trade secrets—
including the testimony of the same individuals that Kassab relises on to argue otherwise.
Kassab cites the testimony of Scott Walker, Kirk Ladner, and Steve Seymour to suggest
that Pohl failed to sufficiently protect information related to clients. See Amended Motion, at 61
(citing Exs. 62-64 to the Amended Motions). But Kassab’s citations to their testimony lacks
context. Those same three individuals testifiaed that Pohl limited access to his trade secrets, and
that Pohl ensured that those who had access to that information understood the confidential
character of that information.16 Thise testimony is also sufficient to raise a fact question on this
issue and prevent summary judgmfent.
Kassab also omits relyevant testimony from Mary Arnold—a former employee of Pohl’s—
to suggest that she didC not protect the confidentiality of Pohl’s trade secret information. See
Amended Motion, at 59–60. But Kassab fails to note that, in the same deposition he cites, Mrs.
Arnold testifiefdf about how she understood that Pohl owned the relevant information and that it
was not tUo be shared or discussed around third parties.17 The omitted portions of Mrs. Arnold’s
14 See Pohl’s Response to Kassab’s Traditional MSJ, at 25–26 (including the evidence cited therein).
15 See Pohl Deposition, at 15:21-16:18, attached as Ex. U to Pohl’s Response to Kassab’s Traditional MSJ.
16 See Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7; Deposition of Kirk Ladner, at 355:18–358:10,
372:7–374:24, 377:4–23; Deposition of Steve Seymour, at 96:16-24, 223:1-20, attached as Exs. D, V, & W,
respectively, to Pohl’s Response to Kassab’s Traditional MSJ. See also Pohl Declaration ¶¶ 14-15, attached as Ex. A
to Pohl’s Response to Kassab’s Traditional MSJ.
17 See Deposition of Mary Arnold, at 83:14–24, 159:24–160:21, attached as Exhibit A.
testimony help demonstrate that there are disputed issues of material fact that prevents summary
judgment on this issue.
Kassab cannot show that he is entitled to judgment as a matter of law on Pohl’s trade secret
claim by selectively citing testimony that is contradicted, often by the same witnkess in the same
deposition. Even if Kassab’s evidence were relevant to showing that Pohl’s inlformation was not
reasonably protected—and it is not at all clear that the factors discussed bcy Kassab are relevant or
dispositive of this inquiry—there is ample controverting evidence abosut the measures took by Pohl
to protect the confidentiality of his trade secret information. Thesse disputed issues of material fact
prevent summary judgment on this issue.
ii. Kassab has not conclusively refuted, as a matter of law, Pohl’s ownership of the
relevant trade secrets and confidential information.
Kassab also argues that Pohl’s claims for ltheft of trade secrets and conversion fail because
Kassab can conclusively establish that “PohMl does not own the purported trade secrets or property
that he alleges had been converted.” Seoe Amended Motion, at 64. Kassab cites four new exhibits
in support of this argument. See id.c at 65 (citing Exs. 62–65 to the Amended Motion). However,
this issue was already addressed, and there are disputed issues of material fact that prevent
summary judgment. Kassab’s “new” evidence does not demonstrate that he can carry his burden
to establish this issue as a matter of law.
Kassab clcaims that “Walker, Ladner and Seymour all testified that all of their marketing
assets, including client contact information and lists were created by them and their marketing
companies and belonged to them.” See id. This statement is misleading at best. To the extent that
the cited testimony even concerns Pohl’s trade secrets and confidential information at issue in this
case—a fact Kassab fails to establish, despite it being his burden to do so—those same individuals
gave conflicting testimony stating the relevant documents and information were Pohl’s, belonged
to Pohl, and were kept confidential at his request.18 Such testimony—which Pohl cited in his prior
briefing—at a minimum raises a fact issue that precludes summary judgment on this issue.19
iii. Kassab not only fails to conclusively prove his affirmative defense of “unlawful
acts,” but the defense fails as a matter of law under binding precedent.
The final issue is Kassab’s argument that he conclusively established hris unlawful acts
doctrine affirmative defense, which he contends precludes any recovery by Pohl. See Amended
Motion, at 66. For this argument, Kassab cites four of the five new exhriibits. Id at 69 (citing Exs.
61–64 to the Amended Motion). Kassab also cites two new, out-Dof-state federal court decisions
that he claims support the application of his affirmative defensse. See id at 72–73. But even with
this new material, Kassab fails to carry his burden to estarblish his affirmative defense as a matter
of law. Rather, binding precedent demonstrates that his defense fails as a matter of law.
While Pohl disputes whether Kassab’s alrguments about barratry and the unlawful acts
doctrine have any relevance to this lawsuit aMt all, to the extent that the unlawful acts doctrine could
have any relevance to this case, it is preeompted by Texas’s proportionate responsibility statute. In
Dugger v. Arredondo, the Texas Sucpreme Court explicitly found that “the common law unlawful
acts doctrine is no longer a viable defense.” See 408 S.W.3d 825, 831–32 (Tex. 2013). This issue
was briefed previously, and Pohl directs the Court’s attention to that prior briefing, which Pohl
incorporates fully by reference.20 At the outset, the fact that this defense has been preempted
justifies denying cKassab’s Amended Motion on this issue.
Even if his defense were not preempted and Kassab’s evidence did suggest that Pohl
engaged in improper solicitation—two things Kassab has not demonstrated—Kassab would still
18 See Deposition of Scott Walker, at 283:17-284:22, 316-319; 321:5-324:7, 327-329; Deposition of Kirk Ladner, at
119:21-120:15, 340:10-342:17, 350:11-351:21, 355:18–358:10, 372:7–374:24, 377:4–23; Deposition of Steve
Seymour, at 96:16-24, 223:1-20, attached as Exs. D, V, & W, respectively, to Pohl’s Response to Kassab’s Traditional
MSJ.
19 See Pohl’s Response to Kassab’s Traditional MSJ, at 27; Pohl’s Response to Kassab’s No-Evidence MSJ, at 9–10.
20 See Pohl’s Response to Kassab’s Traditional MSJ, at 19–23.
10
not be entitled to judgment as a matter of law on this defense. First, as discussed throughout the
prior briefing, there is controverting evidence on this issue that raises disputed issues of material
fact.21 Furthermore, even if Kassab were able to show that some illegal act occurred, Pohl does
not need to rely on any purported illegal act to establish his claims in this lawsuit.k22 Kassab does
not even attempt to establish otherwise. See Amended Motion, at 69. Thus, thel application of this
defense is not triggered in the first place. See Carcamo-Lopez v. Does 1 tchrough 20, 865 F. Supp.
2d 736, 767 (W.D. Tex. 2011) (“But when the illegal conduct arisess in a defense and not in the
plaintiff’s case, the unlawful acts rule will not bar a plaintiff’s cslaims.”).
The two new cases Kassab cites are not binding and have no application to the facts of this
case. The first new case Kassab cites is Alderson v. United States, 718 F. Supp. 2d 1186, 1200
(C.D. Cal. 2010). See Amended Motion, at 72. Quoting dicta, Kassab argues that: “A person
cannot ‘receive trade secret protection for infaormation about ongoing illegal activities.’” See id.
(quoting Alderson, 718 F. Supp. 2d at 1200). But the reasoning of Alderson has no application to
this case. Alderson dealt with a plainetiff who, in a prior case, filed a False Claims Act action on
behalf of the federal government fconcerning Medicare fraud uncovered by the plaintiff. Alderson,
718 F. Supp. 2d at 1188. Ayt issue was whether the proceeds obtained by the plaintiff from the
prior False Claims ActC action were “correctly characterized as ordinary income” or capital gains
for purposes of taxation. See id. at 1201. It was in this context that the court considered whether
the plaintiff hafdf a protectable property interest in his knowledge of “information about ongoing
illegal acUtivities”—that is, how the Medicare fraud occurred that was the basis of the prior False
Claims Act action. See id. at 1200. The facts of this case are not analogous. Here, Pohl does not
21 See id. at 4–12, 23–27 (including the evidence cited therein).
22 See Pohl’s Response to Kassab’s No-Evidence MSJ, at 4–17 (discussing each element of Pohl’s claims without
requiring reference to or reliance on any illegal acts).
11
claim trade secret protection concerning how any illegal conduct was undertaken. Instead, Pohl
contends his customer lists and related information are entitled to trade secret protection.23
The second new case Kassab cites is Merckle GmbH v. Johnson & Johnson, 961 F. Supp.
721, 733 (D.N.J. 1997). See Amended Motion, at 72. Kassab cites to this case clakiming that there
is a privilege to disclose trade secrets “in connection with the disclosure of linformation that is
relevant to public health or safety, or to the commission of a crime or tocrt, or to other matters of
substantial public concern.” See Amended Motion, at 72 (citing Mserckle GmbH v. Johnson &
Johnson, 961 F. Supp. 721, 733 (D.N.J. 1997) & Restatement (Tshird) of Unfair Competition § 40,
cmt. c). However, there is a reason that Kassab cites this non-precedential opinion. No Texas case
has adopted this statement from the Restatement. Even if Texas were to adopt this privilege,
Kassab’s conclusory discussion does not carry his burden to establish this defense.
Kassab’s unlawful acts doctrine defensae fails as a matter of law under the binding precedent
of Dugger v. Arredondo. But even if this remained a proper defense, Kassab’s evidence does not
conclusively establish this defense eas a matter of law. The facts put forth by Kassab are
controverted by other evidence, afnd even if Kassab’s purported facts could be established, Kassab
has not conclusively shown tyhat they would trigger application of the unlawful acts doctrine, given
that Pohl’s claims do nCot require reference to or reliance on any purported unlawful act.
VI. CONCLUSION
For the fforegoing reasons, and for the reasons stated in Pohl’s prior briefing—which is
incorporaUted fully herein by reference—Plaintiffs Michael Pohl and Law Offices of Michael A.
Pohl respectfully request that the Court deny Kassab’s Amended Motion.
23 See Pohl’s Response to Kassab’s No-Evidence MSJ, at 9–10 (discussing how “the materials at issue included Pohl’s
client lists, client files, and thousands of contracts between Pohl and his clients”).
12
Dated: March 29, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 29th day of March, 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
13
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 74146534
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response to Kassab Defendantst Amended
Motions for Summary Judgment i
Status as of 3/30/2023 8:24 AM CST s
Case Contacts 
Name BarNumber Email TimgestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/29/2023 5:09:20 PM SENT
Harris Wells hwells@reynoldsfrizzell.com3/29/2023 5:09:20 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/29/2023 5:09:20 PM SENT
Scott M.Favre scott@favrepa.coma 3/29/2023 5:09:20 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/29/2023 5:09:20 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/29/2023 5:09:20 PM SENT
Misty Davis mdavis@creynoldsfrizzell.com 3/29/2023 5:09:20 PM SENT
Lance Kassab eservef@kassab.law 3/29/2023 5:09:20 PM SENT
Lance Kassab lance@kassab.law 3/29/2023 5:09:20 PM SENT
David Kassab david@kassab.law 3/29/2023 5:09:20 PM SENT
Nicholas Pierce Cnicholas@kassab.law 3/29/2023 5:09:20 PM SENT
Andrea Mendez a andrea@kassab.law 3/29/2023 5:09:20 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT
Murray Fogler o mfogler@fbfog.com 3/29/2023 5:09:20 PM SENT
D Kassab U david@kassab.law 3/29/2023 5:09:20 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT
L Kassab lance@kassab.law 3/29/2023 5:09:20 PM SENT
Kelly Skelton reception@kassab.law 3/29/2023 5:09:20 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT"
54,2023-03-15,RPL,Kassab,Reply ISO Mtn to Rule,Kassab Defendants' Reply in Support of Their Motion to Rule on Plaintiffs' Objections to Kassab's Deposition on Written Questions of Scott Favre,"Filed March 15, 2023 in the 281st Judicial District Court before Judge Christine Weems. Kassab replies to Pohl's response (filing #53) opposing Kassab's motion to rule on objections to his DWQ of Scott Favre, arguing his questions are not leading, Pohl's own questions are leading, and Pohl's boilerplate objections are waived.",MSJ-2R,N/A,Phase 4,2023-03-15_RPL_Kassab-Reply-ISO-Mtn-to-Rule_FILED.pdf,Overrule Pohl's objections to Kassab's deposition on written questions of Scott Favre,"3/15/2023 5:09 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73705718
By: Bonnie Lugo
Filed: 3/15/2023 5:09 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
§ k
§ e
SCOTT FAVRE, et al § 281st JUDICCIAL DISTRICT
KASSAB DEFENDANTS’ REPLYIN SUPPORT OF THIER
MOTION TO RULE ON PLAINTIFFS’ OBJEtCTIONS
TO THE KASSAB DEFENDANTS’ NOTICEi TO TAKE
DEPOSITION ON WRITTEN QUESTIONS OF SCOTT FAVRE
TO THE HONORABLE JUDGE CHRISTINE WEEMeS:
Defendants, Lance Christopher Kassab aund Lance Christopher Kassab, P.C.
D/B/A The Kassab Law Firm (collectively “Knassab”) file this, their Reply In Support
of Their Rule on Plaintiffs’ Objectionsa to the Kassab Defendants Notice to Take
Deposition on Written Questions of Scott Favre and would respectfully show the
following. e
KASSAB DOES N OOT f AGREE THAT HIS QUESTIONS ARE LEADING,
BUT POHL’S QUESTIONS TO FAVRE WERE
Plaintiffs claimo “[t]here is no dispute that Kassab asked leading questions,
nor does Kassab clontend that any of Pohl’s “leading” objections were directed at
non-leading quiestions.”1 Pohl’s claim is false as none of the questions propounded
by Kassab are leading in the first place and Kassab made that abundantly clear to
Pohl’s counsel in an email, stating “[t]he objections are all meritless.”2 After stating
that all the objections were meritless, Kassab stated “[a]dditionally, your clients’
1 Exhibit F, p. 3
2 Exhibit A.
leading objections are improper” for two other reasons: leading questions are
permitted on cross examination and for hostile witnesses.3 Kassab’s motion to rule
simply focused on Plaintiffs’ absurd argument—meaning even if Kassab’s questions
were leading, which they are not, Favre should be treated as a hostile wkitness.
One need only look to the questions Pohl served Favre to Csee that Pohl has
persuaded Favre to contradict his prior testimony to help Pohl with his frivolous
retaliatory lawsuit against Kassab. i
For instance, Favre has already testified in an affidavit and in Federal Court
in Mississippi that:
• In May 2016, he purchased Precision Marketing Group, LLC
(PMG) from Scott Walker and Kirk Ladner and is the sole
member of PMG.4 l
• PMG has developed propMrietary marketing lists consisting of the
names of persons and business on the Gulf Coast, particularly in
Mississippi.5
• PMG’s marketingi lists were and are solely the work product and
property of POMfG, developed during the normal course of its
marketing business.6
• Marketinog firms such as PMG develop lists of marketing
contracts (individually and/or businesses) and sell information
from lthose lists to their clients.7
• P f iMG used its marketing lists to identify potential clients and
othe lists themselves have always remained the proprietary
business property of PMG.8
3 Id. Emphasis added.
4 Exhibit B, par. 3.
5 Id., par. 11.
6 Id., par. 12.
7 Id., par. 13.
8 Id., par. 14.
• PMG’s marketing lists contain the names of thousands of
persons who eventually became Pohl’s former clients, and/or
whom Pohl solicited for representation.9
• PMG’s marketing lists constitute one of PMG’s most valuable
assets.10
• PMG never offered to sell any contracts, did not esell any
contracts and did not sell any marketing lists.11 C
• He agreed to give PMG’s marketing lists to Tina iNicholson to do
whatever she wanted to do with them.12 t
• He allowed Tina Nicholson to use PMG’s marketing lists, but
the list was never sold to anyone.13 s
• Michael Pohl and his counsel, Billy Shepherd “could care less if
that list gets out there or not.”14
Yet, after Pohl nonsuited Favre without any settlement terms whatsoever,
Pohl, in cahoots with Favre’s counsel, Daavid Wade, sent DWQ’s to Favre designed to
contradict Favre’s prior testimony rather than having a normal deposition.15 For
instance, an example of Pohl’s DWQ’s are as follows:
• Not all lists oOf contact information for individuals or businesses
that Precision possessed were lists of marketing contacts that
Precision opwned, correct?16
• In fact, at times, Precision had possession of lists of contact
infoarmlation for individuals or businesses that were created on
hialf of Mr. Pohl, correct?17
9 Id., par. 16.
10 Id., par. 20.
11 Exhibit C, p. 91-94
12 Id., p. 92.
13 Id., p. 92-93
14 Id., p. 93
15 Exhibits D & E.
16 Exhibit E, quest. 3
17 Id., quest. 4
• What had you been told, if anything, prior to executing Exhibit 4
regarding Michael Pohl and his consent to the purchase of the
assets outlined in Exhibit 4?18
Pohl’s “leading” questions suggest an answer for Favre. They suggest that
Favre possessed marketing lists not owned by PMG. They also suggest that PMG
possessed lists of contact information created on behalf of Pohl Crather than PMG.
They even suggest that Favre had been told that he needed Michael Pohl’s consent
to purchase PMG’s assets. Favre has already testified thiat PMG is a marketing
company he purchased in May of 2016 and that PMG developed marketing lists
containing contact information of businesses and individuals. He testified that all
of the marketing contact lists and contracts were PMG’s sole property and that he
was PMG’s sole member. Favre has also lalready testified that he freely gave this
information to Tina Nicholson to do wMhatever she wanted to do with it so that Pohl
could be held accountable for his illegal acts.19
Pohl’s questions are desiigned to suggest that Favre perjured himself when he
testified earlier. Of course, Pohl now objects to almost every question posed to
Favre by Kassab in ao transparent attempt to keep all of the facts that decimate his
frivolous retaliatorly case from coming to lite. In any event, Kassab’s questions are
not vague or aimbiguous, and they are certainly not leading.
KASSAB’S QUESTIONS ARE NOT LEADING
Leading questions are questions that suggest a specific desired answer.
Implement Dealers Mut. Ins. Co. Castleberry, 368 S.W.2d 249, 253 (Tex. Civ. App.—
18 Id., quest. 15
19 Exhibit C, p. 92-93
Beaumont 1963, writ ref’d n.r.e.) (‘“[T]he essential element necessary to render the
question improper is that it suggests the specific answer desired.”’) (quoting 1
CHARLES T. MCCORMICK & ROY R. RAY, TEXAS PRACTICE, TEXAS LAW OF EVIDENCE
CIVIL AND CRIMINAL § 571, at 451 (2d ed. 1956))); MCCORMICK ON EVI k DENCE, supra
note 2, § 6, at 11 (leading question “is one that suggests to the wCitness the answer
desired by the examiner”). See generally 3 WIGMORE, supra not
e 303, §§ 769-772.
Pohl made leading objections to Kassab’s questionsi 15-19, 24-26, 29, 31-39,
45-47, 53, 56-70, 73-79, 91-96, 109-112, 114-118, 120-122 and 129-145. All of these
leading objections are frivolous. A sampling of the questions which Pohl lodged
leading objections are as follows
• 15. Is PMG a marketing colmpany?
• 56. Is it true or falseM that you are listed as the purchaser in
Exhibit 4? 
• 63. Did you purchase all of the assets listed in paragraphs
1.1.1 through 1.1i.7 of Exhibit 4?
• 73. After you purchased PMG, were you the 100% owner of
PMG? p
• 78. Did you tell Lance Kassab that you needed Michael Pohl’s
conselnt to give any documents owned by PMG to Lance Kassab?
• 7f i9. Did you tell Lance Kassab that any of the documents you
ogave to Lance Kassab belonged to Michael Pohl?
• 91. Did the amendments contained in Exhibit 6 become
effective as of noon on the 9th day of December, 2015?
• 94. Does Exhibit 6 add paragraph 1.1.7 to Exhibit 4?
• 111. Did you use PMG’s client contact information to help you
or one of your companies bring claims against BP?
• 112. Did you purchase PMG so that you could help bring
claims against Michael Pohl?
• 117. Did you tell Lance Kassab that you had/were in lawful
possession of Precision’s marketing lists? e
• 133. Did you testify under oath at the Octobter 25, 2017
hearing in front of Judge Starrett that, “At no tiime was it ever
sold to anyone.”? t
• 134. Does “it” in question 133 refer to Precision’s marketing
lists containing Precision’s client contacts information?
• 139. Did you testify under oath at the October 25, 2017
hearing in front of Judge Starrett that Michael Pohl and Billy
Shepherd told you, “We could care less if that list gets out there
or not.”?
• 140. Does the “We” in quaestions 139 refer to Michael Pohl and
Billy Shepherd?
These are not leading questions as they do not suggest a specific answer.
Even if they could be construied as doing so, they are not “impermissible” leading
questions. The mere fact that a question may be answered by a simple “yes” or “no”
does not render it ano impermissibly leading question. Wheeler v. State, 433 S.W.3d
650, 655 (Tex. Aaplp.—Houston [1st Dist.] 2014, pet. ref’d) (citing Newsome v. State,
829 S.W.2d, 2f i69 (Tex. App.—Dallas 1992, no pet.). It is only when the question
suggests which answer is desired, “yes” or “no,” that it becomes a leading
question. Newsome, 829 S.W.2d at 269. Although many of these questions can be
answered with a “yes” or “no”, they are not leading because they do not suggest
what the answer should be. The answer could be “yes” or “no.” Thus, the questions
do not suggest a “specific desired answer.”
Moreover, leading questions may also be permitted to clarify a witness’s
previous testimony or to jog the memory of a witness whose recollectkion has been
exhausted. See MCCORMICK ON EVIDENCE, supra note 2, § 6, at 1C3l see also Holbert
v. State, 457 S.W.2d 286, 289 (Tex. Crim. App. 1970). Additionally, rather than
abandoning all efforts to bring out a witnesses’ testimoniy, a judge may exercise
discretion in allowing leading questions so that the full truth may be presented. See
MCCORMICK ON EVIDENCE, supra note 2, § 6, at 13; 3 WIGMORE, supra note 303, §
770, at 161-62, § 773, at 166.
Kassab has attempted to take thel deposition of Favre for more than two
years. Favre has resisted being depMosed for various reasons, the latest being his
health. Favre admits that he is exhausted and cannot sit for a normal deposition.
Thus, Kassab has been rendeired helpless with his pursuit to depose Favre in a
normal fashion where questions can be stated over and rephrased to accommodate
an objection, even ao frivolous objection. Here, Kassab only has the awkward
approach of DWQ’ls to get usable testimony that will prove Pohl’s case is illusory at
best, brought iin bad faith, at worst. It is understandable as to why Pohl wishes to
have none of this testimony in front of a jury. However, it is highly prejudicial to
prevent Kassab from attaining this testimony and presenting it to a jury.
Kassab attempted to make answering the DWQ’s easy for Favre because of
his condition by providing documents wherein Favre was a party to refresh or jog
his memory. See MCCORMICK ON EVIDENCE, supra note 2, § 6, at 13l see also Holbert
v. State, 457 S.W.2d 286, 289 (Tex. Crim. App. 1970). Yet, the DWQ’s are phrased so
an answer is not suggested as Favre can answer “yes” or “no” to many of the
questions. Moreover, none of Kassab’s questions suggest a correckt answer by
containing a tag phrase such as “didn’t he,” “isn’t it true that,” “wCould you agree” or
“correct” as many of Pohl’s questions do. Nor do the questions instruct the witness
how to answer the questions. Thus, none of Kassab’s iquestions are leading or
improper.
POHL WAIVED HIS OBJECTIONS
Pohl made many vague and ambiguous objections to many of Kassab’s
DWQ’s. However, Pohl fails to complyl or carry his burden regarding these
objections, thus, they are waived. M
It is settled that a responding party must have “a good faith factual and
legal basis” for each objectioin “at the time the objection is made.” TEX. R. CIV.
P. 193.2(c) (emphasis added). “The party must state specifically the legal or
factual basis for the oobjection and the extent to which the party is refusing
to comply with
tlhe request.” TEX. R. CIV. P. 193.2(a) (emphasis added). Thus, a
responding pairty who objects to a request because it is vague and ambiguous,
equally available, unduly burdensome, duplicative, overly broad, or assumes facts
not in evidence – as Plaintiffs have done here – must explain “specifically” at the
time the objection is made why the discovery request is objectionable and must
state “the extent to which [they are] refusing to comply” with the request. See id.
But here, Plaintiffs merely asserted the same or similar improper, prophylactic,
boilerplate objections in an attempt to obstruct justice and hide evidence with
improper and frivolous boiler plate objections.20 By failing to comply with proper
discovery procedures, Plaintiffs have waived their objections. See TE k X. R. CIV. P.
193.2(e); In re Soto, 270 S.W.3d 732, 735 (Tex. App.—AmCarillo 2008, orig.
proceeding [mand. denied]) (party’s failure to comply with rules of civil procedure
waives objections). i
KASSAB’S QUESTIONS ARE NOT VAGUE AsND AMBIGUOUS
Moreover, a responding party has a duty to use common sense when
interpreting words and phrases used in discovery requests, giving them their
ordinary meanings, their specialized melaning used in the industry at issue, or
defining them as the opposing party Mhas defined or used them in its pleadings. See
In re Swepi L.P., 103 S.W.3d 578, 590 (Tex. App.—San Antonio, 2003, orig.
proceeding) (recognizing thati the terms used in the discovery requests, although
undefined, were “easily defined in the context of the lawsuit.”). Plaintiffs and their
counsel hold themselvoes out as accomplished seasoned lawyers; surely together they
can understand thle terms used in Kassab’s DWQ’s in the context of the lawsuit or
given their oridinary meaning, even if they are not defined. Plaintiffs should not
have to define words such as “PMG’s clients” for counsel who claims to be a “Top
100 Super Lawyer.”21
20 Exhibit D, p. 25.
21 https://www.reynoldsfrizzell.com/attorneys/jean-frizzell/
Additionally, simply because a typo exists in a question or a phrase is not
spelled exactly the same as depicted in a document that is attached to a DWQ, does
not warrant an objection. It is difficult enough to take a pertinent deposition on
DWQs without well-seasoned, Super Lawyers lodging frivolous objecktions because
they somehow cannot understand a sentence due to a typo. C It is even more
obstructive and disingenuous for Plaintiffs to lodge an objection as to vague and
ambiguous due to a passage written that is not exact fromi a document, when they
had to look at the document to be able to discern that a typo existed. This
underscores Plaintiff’s intentional obstructionism through frivolous objections. Pohl
has abused the discovery process by failing to use common sense in an effort to
obstruct Favre’s testimony. The Court sholuld not condone such obstructionism.
CONCL M USION & PRAYER
For the reasons stated herein, and in the motion to rule, Pohl’s objections
should be overruled. i
 Respectfully submitted,
o THE KASSAB LAW FIRM
i __________________________
f i DAVID ERIC KASSAB
o Texas State Bar No. 24071351
LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
NICHOLAS R. PIERCE
Texas State Bar No. 24098263
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
Facsimile: 713-522-7410
10
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that on this date, March 15, 2023, I electronically fileed this document
with the Clerk of the Court using the eFile.TXCourts.gov electrConic filing system
which will send notification of such filing to all parties or counsel of record.
_______________________
DAVID eERIC KASSAB
11
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 73705718
Filing Code Description: No Fee Documents
Filing Description: Kassab Defendants' Reply ISO Motion to Rtule on
Objections to DWQ to Favre i
Status as of 3/16/2023 8:32 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/15/2023 5:09:32 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 3/15/2023 5:09:32 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/15/2023 5:09:32 PM SENT
Scott M.Favre scaott@favrepa.com 3/15/2023 5:09:32 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/15/2023 5:09:32 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/15/2023 5:09:32 PM SENT
Misty Davis c mdavis@reynoldsfrizzell.com 3/15/2023 5:09:32 PM SENT
Lance Kassab f eserve@kassab.law 3/15/2023 5:09:32 PM SENT
Andrea Mendez  andrea@kassab.law 3/15/2023 5:09:32 PM SENT
Chris C.Pappas cpappas@krcl.com 3/15/2023 5:09:32 PM SENT
Non-Party Witness Billy SheCpherd bshepherd@spcounsel.com 3/15/2023 5:09:32 PM SENT
Non-Party Dona Pohl a DonaLyann@yahoo.com 3/15/2023 5:09:32 PM SENT
Lance Kassab lance@kassab.law 3/15/2023 5:09:32 PM SENT
David Kassab o david@kassab.law 3/15/2023 5:09:32 PM SENT
Nicholas PiercUe nicholas@kassab.law 3/15/2023 5:09:32 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/15/2023 5:09:32 PM SENT
Murray Fogler mfogler@fbfog.com 3/15/2023 5:09:32 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 3/15/2023 5:09:32 PM SENT
Benjamin Ritz britz@thompsoncoe.com 3/15/2023 5:09:32 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 3/15/2023 5:09:32 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 3/15/2023 5:09:32 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 3/15/2023 5:09:32 PM SENT
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 73705718
Filing Code Description: No Fee Documents
Filing Description: Kassab Defendants' Reply ISO Motion to Rtule on
Objections to DWQ to Favre i
Status as of 3/16/2023 8:32 AM CST s
Case Contacts 
D Kassab david@kassab.lagw 3/15/2023 5:09:32 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/15/2023 5:09:32 PM SENT
L Kassab lance@kassab.law 3/15/2023 5:09:32 PM SENT
Kelly Skelton reception@kassab.law 3/15/2023 5:09:32 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 3/15/2023 5:09:32 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 3/15/2023 5:09:32 PM SENT"
53,2023-03-14,RSP,Pohl,Response to Mtn to Rule,Plaintiffs' Response in Opposition to Kassab's Motion to Rule on Plaintiffs' Objections to Kassab's Deposition on Written Questions of Scott Favre,"Filed March 14, 2023 in the 281st Judicial District Court by Pohl's counsel Jean C. Frizzell of Reynolds Frizzell LLP. Pohl opposes Kassab's motion seeking to overrule Pohl's objections to Kassab's deposition on written questions (DWQ) of Scott Favre. This is Kassab's second motion — the first version argued leading questions were 'cross examination' but was revised to remove that argument as directly contrary to the Texas Rules of Civil Procedure.",MSJ-2R,N/A,Phase 4,2023-03-14_RSP_Pohl-Response-to-Kassab-Mtn-to-Rule_FILED.pdf,Deny Kassab's Motion to Rule and sustain Pohl's objections to the questions contained in Kassab's DWQ,"3/14/2023 9:54 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73666907
By: Bonnie Lugo
Filed: 3/14/2023 9:54 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO KASSAB’S MOTION TO RULE
Plaintiffs Michael Pohl and Law Office of Michael As. Pohl PLLC (collectively “Pohl”)
respond in opposition to Defendants Lance Christopher rKassab and Lance Christopher Kassab
P.C.’s (collectively, “Kassab”) Motion to Rule on Plaintiffs’ Objections to the Kassab Defendants’
Notice to Take Deposition on Written Questions lof Scott Favre (the “Motion”).1
I. MBACKGROUND
The parties have been unable to osecure an oral deposition of Scott Favre (“Favre”), and the
parties have been told his capabilityc to appear is limited by his ongoing cancer treatment. Favre
is a former co-defendant, and Pohl alleged Favre conspired with Kassab to misappropriate Pohl’s
trade secrets and propertyp, including by selling that information to Kassab.2 Although Kassab
admits that he made a six-figure, up-front payment to Favre, he contends the payment was made
to hire Favre as anc e i xpert to assist Kassab with bringing barratry claims against Pohl.3 Pohl alleges
the payment woas made in exchange for misappropriating Pohl’s confidential information.4
1 This is the second motion Kassab filed regarding Pohl’s objections. Kassab initially tried to argue that his leading
questions were proper because they constituted “cross examination.” But Kassab filed a subsequent motion that
removed that argument, as it was directly contrary to the wording of the Texas Rules of Civil Procedure. Compare
Kassab Defendants’ Motion to Rule on Plaintiffs’ Objections to the Kassab Defendants’ Notice to Take Deposition
on Written Questions of Scott Favre, filed Feb. 28, 2023, with Motion (filed March 2, 2023).
2 See Pohl’s First Amended Petition ¶¶ 21–23.
3 See Deposition of Lance Kassab at 82:21–83:16, 98:15–99:8, 103:5–9, attached as Exhibit A.
4 See Pohl’s First Amended Petition ¶¶ 22–23.
After it became clear that Favre would not sit for an oral deposition, Pohl served a notice
for a deposition on written questions (“Pohl’s DWQ”) on February 3, 2023, to ensure the parties
secured Favre’s testimony before trial. See Pohl’s DWQ, attached as Exhibit 1 to the Motion.
Instead of serving questions in response, Kassab served a notice for a new deposkition on written
questions (“Kassab’s DWQ”), on February 17, 2023.5 See Kassab’s DWQ, atltached as Exhibit 2
to the Motion. Kassab did not limit himself to “direct questions” of Favrec—as provided for under
the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 200.3(a). Insstead, Kassab asked leading
questions of Favre. Kassab also asked questions with typos sthat affected the meaning of the
questions and numerous questions that were misleading, vague, or were otherwise improper. Pohl
properly asserted objections to these questions.
II. DISyCUSSION
The Court should sustain Pohl’s objections and deny the Motion because Kassab is not
entitled to ask leading questions to a co-conspirator on direct examination, and Pohl’s form
objections to Kassab’s questions aree warranted on their face given the wording of Kassab’s
questions. Kassab’s Motion is jusft over two pages in length, and it fails to specify which of Pohl’s
objections Kassab takes issuye with. The Motion should be summarily denied.
A. Pohl’s objectCions to Kassab’s leading questions should be sustained because
Kassab has not shown that Favre is a hostile witness.
The Courct should sustain Pohl’s objections to Kassab’s leading questions because the
Texas Rules oof Evidence generally prohibit the use of leading question on direct examination, and
Kassab has not shown that any exception to that rule applies. Kassab now argues that Favre—
5 Kassab initially filed a version of Kassab’s DWQ for service on February 17, 2023, but it appears that a subsequent
filing was accepted on February 20, 2023. The precise date is not material, as Kassab’s DWQ purports on its face to
be a new deposition on written questions, rather than a response to Pohl’s DWQ. Additionally, while it is not directly
at issue, to Pohl’s knowledge, Kassab did not secure Favre’s consent to a second deposition on written questions—
which is necessary given that Favre was not subpoenaed.
who Kassab was aligned with for four years and who was a co-defendant with and a co-conspirator
of Kassab—is a hostile witness to Kassab. See Motion at 1–2. But Kassab’s allegations do not
demonstrate that Favre is a hostile witness. Thus, Kassab’s leading questions are improper.
The default rule is that “[l]eading questions should not be used on direct exakmination. TEX.
R. EVID. 611(c). However, a court may allow leading questions “when a
plarty calls a hostile
witness, an adverse party, or a witness identified with an adverse partyc.” Id. “The decision to
permit a leading question lies within the sound discretion of the triasl court.” Mega Child Care,
Inc. v. Tex. Dep’t of Protective & Regulatory Services, 29 S.W.3sd 303, 308 (Tex. App.—Houston
[14th Dist.] 2000, no pet.).
There is no dispute that Kassab asked leading questions, nor does Kassab contend that any
of Pohl’s “leading” objections were directed at non-leading questions. See Motion at 1–2. Instead,
Kassab claims that his leading questions werae proper because the questions were directed at “a
hostile witness. See id. at 2. But throughout the history of this case, Favre has been aligned with
Kassab and hostile to Pohl. Kassab celaims that he hired Favre as an expert witness to assist him
on numerous potential disputes.6 f Favre is a former co-defendant of Kassab in this lawsuit.7 And
Pohl alleges that Favre is a yco-conspirator along with Kassab in relation to the misappropriation
of Pohl’s trade secrets.C8 To rebut this status quo, Kassab offers little more than conjecture.
Kassab makes three claims to support his claim that Favre should be viewed as a hostile
witness: (1) “Pflfaintiffs came to an agreement with Favre to nonsuit him and his companies”; (2)
Favre’s laUwyer “threatened to sue Kassab”; and (3) Favre’s lawyer “has refused to cooperate with
6 See Deposition of Lance Kassab at 82:21–83:16, attached as Exhibit A.
7 See generally Pohl’s First Amended Petition.
8 See id. ¶ 43.
the Kassab’s Court Reporter to set a time for Favre to answer Kassab’s deposition on written
questions.” See Motion at 2. None of these arguments has merit.
1. A plaintiff settling with or non-suiting a party does not make that party “hostile” to
remaining defendants.
Kassab’s primary justification for treating Favre as “hostile” is that Krassab submitted
questions to Favre after Pohl “came to an agreement with Favre to nonsuit him and his companies.”
See Motion at 2. Other than citing to Rule of Evidence 611(c), whicrhi provides for the hostile
witness exception, Kassab cites no authority showing that non-suitiDng a defendant makes that party
“hostile” to remaining defendants. s
As Pohl’s counsel has stated during hearings in thirs lawsuit, Pohl was incentivized to settle
or non-suit multiple defendants as part of an unsuccessful strategy to prevent trial from being
delayed.9 Given that the parties have been told plreviously that Favre had been so ill that he could
not sit for a full remote Zoom deposition,10M Pohl has no confidence that Favre could participate as
a party in a two-week trial. Given thosoe circumstances, Pohl’s non-suit of Favre does not justify
Kassab treating Favre as a hostile wcitness.
2. A personal dispute between Favre’s lawyer and Kassab does not show Favre is
“hostile” to Kassyab.
Kassab’s second justification for treating Favre as “hostile” is that an overheated and tense
email exchange oaccurred between lawyers after a deposition was canceled due to the
hospitalization off the witness. Kassab described this dispute as follows:
Favre has become a hostile witness because his lawyer, David Wade has threatened
to sue Kassab simply because Kassab asked him and Plaintiff’s counsel to pay for
the deposition that they both cancelled after Wade promised the Court he would
present Favre on a day certain and then cancelled.
9 See Dec. 1, 2022 Hearing Transcript, at 22:12–23:11, attached as Exhibit B.
10 Even when Favre did purport to be available, his lawyer could not commit that he could complete a deposition in a
single sitting. See id. at 13:11–14:13.
Motion at 2 (citing Exhibit 4 to the Motion). Kassab presents this issue without appropriate context
and in a misleading fashion.
This issue concerns a prior attempt by the parties to take an oral deposition of Favre on
December 7, 2022. Prior to that deposition, Kassab was aware that there might bek issues with the
deposition occurring as scheduled. He knew that Favre was fighting the flu andl had chemotherapy
scheduled for two days prior to the deposition.11 Counsel for Kassab cemailed Favre’s lawyer
(David Wade) the day before to inquire about whether the depositiosn would go forward.12 The
next morning, before the deposition, David Wade notified Kasssab that “Favre has been in the
hospital since last night. His deposition will not move forward this morning. I will update you with
his next availability when I receive that information. Thank you for your patience.”13
Despite being told that the deposition could not go forward due to Favre’s hospitalization,
the very next day, Kassab demanded that Davaid Wade and Pohl’s counsel pay an invoice for the
deposition that was cancelled. See Exhibit 4 to the Motion, at 2. David Wade’s response to
Kassab’s request shows his obvious efrustration.14 While Pohl does not endorse David Wade’s
response to Kassab, all that this exfchange reflects is tension between counsel to parties to a lawsuit.
It does not demonstrate that yFavre—who did not send the email—is a hostile witness to Kassab.
3. An after-theC-fact logistical issue between Favre’s lawyer and a court reporter does not
demonstrate that Favre is “hostile” to Kassab.
Kassab’s cfinal justification for why the Court should treat Favre as “hostile” is because
David Wade allegedly “refused to cooperate with the Kassab’s Court Reporter to set a time for
Favre to answer Kassab’s deposition on written questions.” See Motion at 2 (citing Exhibit 6 to
11 See Dec. 1, 2022 Hearing Transcript, at 13:7–21, attached as Exhibit B.
12 See Dec. 6, 2022 email from Murray Fogler, attached as Exhibit C.
13 See Dec. 7, 2022 email from David Wade, attached as Exhibit D.
14 It is worth noting that Kassab’s description of this email is inaccurate. Contrary to what Kassab says, David Wade
did not threaten to sue Kassab. See Motion at 2. Rather, David Wade made the facially non-serious statement that if
“you ask me that again, i will ask my client to sue . . . .” See Exhibit 4 to the Motion, at 1.
the Motion). But nothing about the email chain Kassab cites demonstrates that Favre is a hostile
witness to Kassab. Kassab provides no authority to show that a lawyer’s failure to respond to two
scheduling emails can make that lawyer’s client hostile to a party in a lawsuit.
To support his conclusion that Favre is a hostile witness due to Mr. Wkade’s supposed
failure to cooperate in scheduling, Kassab cites a single email chain. See Mlotion at 2 (citing
Exhibit 6 to the Motion). But this exhibit shows very little. First, it shocws that Mr. Wade spoke
to the court reporter hired by Kassab on February 24, 2023. See Esxhibit 6 to the Motion, at 2.
Subsequently, it appears that Mr. Wade did not respond to two scsheduling emails sent by that court
report—emails sent on consecutive days, February 28, and March 1, 2023. See id. at 1–2.
However, Mr. Wade’s failure to respond to those two emails is not indicative of much, if
anything at all. The first email was sent at 9:47 AM on February 28, 2023, and the second email
was sent the next day, March 1, 202,3 at 10:1a2 AM. Id. That same day, on March 1, 2023—just
over 30 hours after the first email was sent—Kassab first filed the Motion complaining about Mr.
Wade’s failure to respond.15 Whilee Pohl does not know if or when Mr. Wade responded, all
Kassab’s Motion indicates is thaft Kassab filed the Motion on March 1st complaining that Mr.
Wade had not responded to yan email sent the prior day, on February 28th. Such events have no
bearing on whether a wCitness is hostile to a party.
Not only does Kassab provide no authority indicating that a scheduling issue by a lawyer
can result in thfaft lawyer’s client being found to be hostile to another party, but Kassab does not
explain hUow such a finding could retroactively justify objectionable questions. Kassab served his
leading questions on Favre no later than February 20, 2023. See Kassab’s DWQ, attached as
15 See Exhibit E (showing that Kassab first attempted to file the Motion at 3:57 PM on March 1, 2023). Kassab’s
filing was rejected, and the Motion was refiled the next day, on March 2, 2023. See Motion at 5 (showing the
“Automated Certificate of eService”). The Certificate of Service on the Motion still states that it was served on “March
1, 2023,” reflecting the date that Kassab first attempted to file the Motion. See id. at 4.
Exhibit 2 to the Motion. Kassab does not address how Mr. Wade’s purported failure to respond to
emails sent well over a week after Kassab’s DWQ was served could justify Kassab’s previously
served leading questions.
Even assuming Kassab’s accounting of events could be established wkith evidence, a
lawyer’s failure to promptly respond to a scheduling email, which was sent alfter questions were
served on that lawyer’s client, does not render that client hostile to any pcarty. Because Kassab’s
post-hoc attempt to justify his leading questions fails, the Court shousld sustain Pohl’s objections
to Kassab’s leading questions. s 
B. Pohl’s objections to the form of Kassab’s questions should be sustained.
Many of Kassab’s questions to Favre are objectionable on their face. In the Motion, Kassab
even concedes that some of his questions were defective, as they contain “typos or misspellings of
words.” See Motion at 1–2. But Kassab did not choose to fix those admitted issues by submitting
amended questions as part of his “redirect questions.” Instead, Kassab makes the heated
accusation that “Pohl filed frivolous e. . . objections to several of the questions propounded.” See
id. Despite accusing Pohl of assferting “frivolous” objections, Kassab did not bother to identify
which questions or objectionys are at issue. See id.
Kassab’s failurCe to identify the questions or objections at issue indicates the weakness of
his position. He doaes not cite to a single example of the supposedly “frivolous” objections Kassab
claims were assferted by Pohl. See id. Additionally, contrary to Kassab’s suggestion (see Motion
at 2–3), eUvidence is not needed to sustain objections to the form of questions. See In re Union
Pac. Res. Co., 22 S.W.3d 338, 341 (Tex. 1999) (discussing how “evidence may not always be
necessary to support” objections). The Court should sustain Pohl’s objections because they are
asserted in response to facially objectionable questions.
Pohl objected to portions of 100 out of the 145 questions contained in Kassab’s DWQ. See
Pohl’s Objections to Kassab’s DWQ, attached as Exhibit 3 to the Motion. Kassab appears to be
concerned about “objections to several of the questions,” but Kassab does not specify which
objections or questions are at issue. See Motion at 1–2. Pohl will not waste thke Court’s time
addressing each objection to the 100 potential questions that could be at issule. Each of Pohl’s
form objections state a basis for the objection that is supported on the facec of the objection and the
request to which it is addressed. See generally Pohl’s Objections to sKassab’s DWQ, attached as
Exhibit 3 to the Motion. However, to illustrate the appropriatenesss of his objections, Pohl provides
the brief discussion of some examples below.
Kassab’s Question #3 states: “How state how many businesses have you managed in any
compacity and the names of those businesses during your entire business carrier?” See id. at 2
(errors in original). Given the typos, Pohl oabjected to the question and pointed out the various
issues, including that, “Pohl objects to the form of this question, as it contains typos and is
confusing, and it is thus vague and amebiguous.” See id. Pohl specifically pointed out that the first
word of the question, “how” appfears to be a typo. See id. It makes no sense to say “how state
how,” in the context of a quyestion. Pohl also pointed out that the spellings of “compacity” and
“carrier” appear to be iCncorrect, at least in the context of this question. See id. On the face of the
question, Pohl’s objections are proper and supported, and the Court should sustain such objections.
Anothefrf example is Kassab’s Question #15, which states: “Is PMG a marketing company?”
See id. atU 4. Pohl objected to this question on the following bases: “Pohl objects to the form of
this question, as it is vague. Pohl also objects to the form of this question because it is not limited
in time or scope.” See id. The question is vague, because it is not clear what Kassab meant by the
phrase “marketing company.” And the question is not limited in time or scope, because Kassab
did not ask about whether PMG was a “marketing company” during a specific period or otherwise
limit the scope of this question. PMG (Precision) engaged in different activities, at different times,
under different ownership. Kassab’s failure to specify a time period is objectionable.
Finally, in Question #18, Kassab asked: “Did PMG compile marketing lkists?” Id. at 5.
Pohl objected to this question on multiple grounds, including that it was vague, lnot limited in time,
and called for speculation. See id. Given that Favre purchased PMG acfter it is alleged to have
engaged in so-called “marketing” activities, there is no basis for Favres to have personal knowledge
of PMG “compil[ing] marketing lists.” See id. Thus, Kasssab’s question seeks for Favre to
speculate in response. The question is vague and ambiguous, because the meaning of the phrase
“marketing list,” is unclear, especially given the disputes about the use of this term in this lawsuit.
And the question is not limited in time, because Kassab did not ask about whether PMG compiled
“marketing lists” during a specified relevant taime period.
Pohl’s objections to these three questions are exemplars that show that Pohl made
reasonable objections to facially objeectionable questions asserted by Kassab. A simple review of
each question and the objection fitself is sufficient to support such objections. Because Pohl’s
objections are proper on theiyr face, Pohl requests that the Court sustain those objections and deny
Kassab’s Motion. C
III. CONCLUSION
For the fforegoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfuUlly request that Kassab’s Motion be denied and that the Court sustain Pohl’s objections
to the questions contained in Kassab’s DWQ.
Dated: March 14, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 14th day of March, 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
10
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73666907
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response in Opposition to Kassatb's Motion to
Rule i
Status as of 3/15/2023 8:41 AM CST s
Case Contacts 
Name BarNumber Email gTimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 3/14/2023 9:54:18 PM SENT
Benjamin Ritz britz@thompsoncoe.com 3/14/2023 9:54:18 PM SENT
Murray JFogler mfogler@foglerbarar.com 3/14/2023 9:54:18 PM SENT
Murray Fogler mfogler@fbfog.com 3/14/2023 9:54:18 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Raul Herman Suazo 24003021 suazoc@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Kevin Graham Cain 24012371 cafin@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/14/2023 9:54:18 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Scott M.Favre C scott@favrepa.com 3/14/2023 9:54:18 PM SENT
Lawyer Wade a lawyerwade@hotmail.com 3/14/2023 9:54:18 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/14/2023 9:54:18 PM SENT
Misty Davis o mdavis@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Lance KassabU eserve@kassab.law 3/14/2023 9:54:18 PM SENT
Andrea Mendez andrea@kassab.law 3/14/2023 9:54:18 PM SENT
Lance Kassab lance@kassab.law 3/14/2023 9:54:18 PM SENT
David Kassab david@kassab.law 3/14/2023 9:54:18 PM SENT
Nicholas Pierce nicholas@kassab.law 3/14/2023 9:54:18 PM SENT
D Kassab david@kassab.law 3/14/2023 9:54:18 PM SENT
L Kassab lance@kassab.law 3/14/2023 9:54:18 PM SENT
Kelly Skelton reception@kassab.law 3/14/2023 9:54:18 PM SENT
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73666907
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response in Opposition to Kassatb's Motion to
Rule i
Status as of 3/15/2023 8:41 AM CST s
Case Contacts 
Murray J. Fogler 7207300 mfogler@foglerbrar.com g3/14/2023 9:54:18 PM SENT"
52,2023-03-08,RSP,Pohl,Response to Mtn to Reconsider/Rule,Plaintiffs' Response in Partial Opposition to Kassab's Motion to Reconsider or Rule,"Filed March 8, 2023 in the 281st Judicial District Court (Judge Weems) by Pohl's counsel Jean C. Frizzell of Reynolds Frizzell LLP. Response to Kassab's Motion to Reconsider or Rule (filing #49), which sought reconsideration of three prior orders by Judge Dollinger. Pohl partially opposes — agreeing the court should rule on the pending RTP motion but opposing reconsideration of the abatement and discovery compulsion rulings.",MSJ-2R,N/A,Phase 4,2023-03-08_RSP_Pohl-Response-to-Kassab-Mtn-to-Reconsider-or-Rule_FILED.pdf,Deny Kassab's Motion in part; deny Kassab's Supplemental RTP Motion on the merits; decline to reconsider prior rulings on Kassab's Motion to Abate and Motion to Compel,"3/8/2023 7:39 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73486867
By: Lewis John-Miller
Filed: 3/8/2023 7:39 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN PARTIAL OPPOSITION TO KASSAB’S MOTION TO
RECONSIDER OR RULE s
Defendants Lance Christopher Kassab and Lance Christopher Kassab P.C. d/b/a/ The
Kassab Law Firm (collectively, “Kassab”) filed the Motion to Reconsider or Rule (the “Motion”),
and in it states he filed it in order to file a petition for writ of mandamus if the Motion is denied.
Pohl partially opposes the relief Kassab requests in his Motion. Pohl does not oppose the Court
ruling on Kassab’s pending motion to designate responsible third parties—although Pohl contends
that motion should be denied when thee Court addresses it on the merits. However, Pohl does not
agree that the Court should reconfsider or revisit the other two rulings mentioned in the Motion,
and Kassab has not shown hyow any prior ruling was erroneous.
C I. DISCUSSION
Kassab asksa the Court to rule on one pending motion and to reconsider rulings on two other
motions. Kassafb is not entitled to relief on the merits with respect to any of those three motions.
First, the Court should rule on Kassab’s Supplemental Motion to Designate Responsible Third
Parties (“Kassab’s Supplemental RTP Motion”), but it should deny the relief Kassab requests.
Kassab’s Supplemental RTP Motion does not fix the pleading defect that caused Judge Dollinger
to deny Kassab’s first motion to designate responsible third parties. Second, Kassab provides no
basis for why the Court should reconsider the denial of Kassab’s Motion to Abate Trial Setting
(“Kassab’s Motion to Abate”), and the Court should not allow Kassab to delay trial. Third, the
Court should not reconsider the denial of Kassab’s Motion to Compel Testimony and Documents
Pursuant to the Offensive Use Doctrine (“Kassab’s Motion to Compel”). Kassab’s arguments on
the offensive-use doctrine fail on the merits. k
A. The Court should deny Kassab’s Supplemental RTP Motion. C l
Pohl agrees that the Court should rule on Kassab’s Supplemental cRTP Motion. However,
the Court should deny that motion on the merits. To designate a ressponsible third party, Kassab
must plead sufficient facts showing that alleged responsible third parties were responsible for the
harms underlying Pohl’s claims. Kassab failed to do that in his first motion, and his supplemental
motion—which asserts the same prior factual allegations in a new order—does not fix this defect.
Kassab’s failure to plead new factual allegations gives the Court a straightforward way to
resolve Kassab’s Supplemental RTP Motion. Deny it. While this case was pending before the
189th District Court, Judge Dollinger denied Kassab’s first motion to designate responsible third
parties because Kassab failed to pleaed sufficient facts showing that the alleged responsible third
parties were responsible for the hafr f ms underlying Pohl’s claims.1 Judge Dollinger’s ruling reached
the proper result, and with nyo new factual allegations, the same result is appropriate here.
As laid out in PCohl’s Objection, Kassab’s Supplemental RTP Motion did not address the
failings of the origianal motion—instead, it simply copies and paraphrases, in a new order, prior
factual allegatiofns that Judge Dollinger found to be deficient. See generally Pohl’s Objection to
Kassab’sU Supplemental Motion to Designate Responsible Third Parties, filed Nov. 30, 2022.
Because Kassab chose to assert the same facts, which were previously found to be insufficient
under the pleading standard, the Court should deny Kassab’s Supplemental RTP Motion.
1 See Court Order, dated Oct. 31, 2022 (denying Kassab’s first motion to designate responsible third parties); see also
generally Pohl’s Objection to Kassab’s Motion to Designate Responsible Third Parties, filed May 31, 2022.
B. Kassab’s Motion to Abate was properly denied.
In the fall of 2022, Kassab filed his Motion to Abate. Judge Dollinger correctly found that
abatement of this case was not proper or necessary. Nothing has changed since that ruling
occurred, and the Court should decline to revisit the denial of Kassab’s Motion to kAbate.
Kassab does not explain why he believes that Judge Dollinger’s decisioln to deny Kassab’s
Motion to Abate was wrong. See generally Motion. Instead, Kassab sucggests that abatement is
justified because he contends that “the outcome of Cheatham could sresult in a judgment against
Pohl for barratry, which will definitively establish Kassab’s defenses to Pohl’s claims.” See id. at
2. That is not true, and Pohl’s Response to the Kassab Defendants’ Motion to Abate Trial Setting,
filed Sept. 15, 2022 (“Pohl’s Response to Kassab’s Motion to Abate”), clearly explains why
abatement is not appropriate.
Even if barratry were relevant in this matter—and it is not—the results in a separate lawsuit
in which Pohl, but not Kassab, is a party cannot establish Kassab’s defenses in this lawsuit.
Kassab’s Motion to Abate argues abeatement is proper for two reasons: (1) Pohl is still incurring
damages; and (2) the outcome off a separate lawsuit—the Cheatham case—will impact Kassab’s
illegality (unlawful acts doyctrine) defense. See generally Kassab’s Motion to Abate. These
arguments did not withCstand scrutiny.
First, the faact that this case might involve future damages does not justify abatement.
Future damagesf are not an uncommon occurrence, and to recover such damages, Pohl must satisfy
the ordinUary standard of showing to the jury that he will sustain those damages with reasonable
probability. Second, Kassab’s unlawful acts defense has been preempted and does not apply—a
fact which is laid out in Pohl’s Response to Kassab’s Motion to Abate. Because nothing has
changed since the Motion to Abate was correctly ruled on in the first instance, the Court should
deny Kassab’s request to reconsider that ruling.
C. Kassab has not shown that Pohl waived the attorney–client privilege, and thus
Kassab’s Motion to Compel was properly denied.
Kassab provides no explanation for why the Court should reconsider Judge Dollinger’s
denial of Kassab’s Motion to Compel. Kassab improperly sought to pierce the attorney–client
privilege, but he failed to show how the legal elements of the offensive-use dorctrine were met.
Kassab’s Motion does nothing to explain why Kassab’s position was right on the merits, and the
Court should deny the Motion without revisiting this decision. r i
In his Motion to Compel, Kassab improperly sought to oDbtain attorney–client privileged
materials between Pohl and Billy Shepherd (Pohl’s current attosrney in the Cheatham matter). See
generally Motion to Compel. Kassab is particularly inrterested in obtaining these privileged
materials because Kassab is counsel to the plaintiffs who are suing Pohl in the Cheatham matter.
Thus, in this lawsuit, Kassab sought to obtain prlivileged materials from a third party who is his
opposing counsel in the Cheatham matter. M
Given that Kassab’s Motion too Compel was filed in conjunction with multiple other
discovery motions, Pohl filed a joinct response that addressed it as well as other discovery motions
filed by Kassab. See Plaintiffs’ Response in Opposition to the Kassab Defendants’ Three New
Motions to Compel, at 7–16, filed Sept. 27, 2022. For the reasons stated in that response, the Court
should deny Kassab’s request to reconsider the denial of Kassab’s Motion to Compel. Not only
has Kassab failedc to establish offensive-use waiver, but independently, it was a reasonable exercise
of Judge Dol o linger’s discretion to deny Kassab’s attempt to obtain this privileged information.2
Therefore, the Court should decline to reconsider this ruling and should deny the Motion.
2 Kassab never showed that he diligently pursued the discovery sought in the Motion to Compel prior to the close of
discovery. Given this, and that Kassab sought privileged materials from Pohl’s counsel (who is opposing counsel to
Kassab in another lawsuit), Judge Dollinger was entitled to exercise his discretion to limit the scope of discovery and
deny Kassab access to privileged materials. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (“scope of
discovery is within the trial court’s discretion”); In re State Farm Lloyds, 520 S.W.3d 595, 599 (Tex. 2017) (“discovery
rules imbue trial courts with the authority to limit discovery based on the needs and circumstances of the case”).
II. CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the Court deny Kassab’s Motion, in part; deny Kassab’s Supplemental
RTP Motion; and decline to reconsider prior rulings on Kassab’s Motion to Abatke and Kassab’s
Motion to Compel. l
Dated: March 8, 2023 Respectfully submitted, c
REYNOLDS FRIZZELL LsLP
By: /s/ Jean C. Frizzell
Jean C. Fsrizzell
State Bar No. 07484650
1100 Louisiarna St., Suite 3500
Houston, Texas 77002
Tel. 713.485.7200
Fax 713.485.7250
jfrizlzell@reynoldsfrizzell.com
MAttorney for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CEcRTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texasy Rules of Civil Procedure on this 8th day of March, 2023.
/s/ Jean C. Frizzell
a Jean C. Frizzell
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73486867
Status as of 3/9/2023 8:36 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/s8/2023 7:39:40 PM SENT
Andrew Johnson ajohnson@thompsoncoe.comg3/8/2023 7:39:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com u3/8/2023 7:39:40 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT
Murray Fogler mfogler@fbfog.comy 3/8/2023 7:39:40 PM SENT
Dale Jefferson 10607900 jefferson@mdjwalaw.com 3/8/2023 7:39:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 3/8/2023 7:39:40 PM SENT
Kevin Graham Cain 24012371 cain@mdojwlaw.com 3/8/2023 7:39:40 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/8/2023 7:39:40 PM SENT
Todd Taylor ttayflor@jandflaw.com 3/8/2023 7:39:40 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 3/8/2023 7:39:40 PM SENT
Lance Kassab peserve@kassab.law 3/8/2023 7:39:40 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 3/8/2023 7:39:40 PM SENT
Scott M.Favre a l scott@favrepa.com 3/8/2023 7:39:40 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/8/2023 7:39:40 PM SENT
Andrea Mendez o andrea@kassab.law 3/8/2023 7:39:40 PM SENT
Lance KassabU lance@kassab.law 3/8/2023 7:39:40 PM SENT
David Kassab david@kassab.law 3/8/2023 7:39:40 PM SENT
Nicholas Pierce nicholas@kassab.law 3/8/2023 7:39:40 PM SENT
D Kassab david@kassab.law 3/8/2023 7:39:40 PM SENT
L Kassab lance@kassab.law 3/8/2023 7:39:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT
Kelly Skelton reception@kassab.law 3/8/2023 7:39:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT"
50,2023-02-24,MSJ,Kassab,Amended Trad + No-Evidence MSJ (3rd attempt),Kassab Defendants' Amended Motions for Traditional and No-Evidence Summary Judgment (Third Attempt),"Filed February 24, 2023 before Judge Christine Weems in the 281st Judicial District Court after the case was transferred from the 189th District Court. This is Kassab's third attempt at summary judgment, reiterating and expanding arguments from prior MSJs denied by Judge Dollinger on October 31, 2022. Kassab also adopts by reference co-defendant Nicholson's traditional MSJ filed August 19, 2022.",MSJ-4,N/A,Phase 4,2023-02-24_MSJ_Kassab-Amended-Trad-and-No-Evid-MSJ_FILED.pdf,"Grant Kassab's traditional and no-evidence motions for summary judgment and order that Pohl and Law Office of Michael A. Pohl, PLLC take nothing on their claims against Lance Christopher Kassab and The Kassab Law Firm","2/24/2023 1:36 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73091211
By: Bonnie Lugo
Filed: 2/24/2023 1:36 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 281st JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ AMENDED MOTIONCS FOR
TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT
TO THE HONORABLE JUDGE CHRISTINE WEEMS: t
COME NOW, Defendants, Lance Christopher Kassab and Lance Christopher
Kassab, P.C. d/b/a/ The Kassab Law Firm and file theis, their Motions for Traditional
and No-Evidence Summary Judgment, and woulud respectfully show the following.
PRELUDE
This lawsuit is nothing more thaan a retaliatory suit brought by Michael A.
Pohl and his law firm, Law Office of Michael A. Pohl, PLLC (“Pohl”) against Lance
Christopher Kassab and Lancee Christopher Kassab, P.C. d/b/a/ The Kassab Law
Firm (“Kassab”). Kassab refpresented more than 400 clients in lawsuits against
Pohl due to his illegal and unethical solicitation of these clients. It is undisputed
that Pohl hired and paid runners more than five million dollars to illegally obtain
clients stemminig from catastrophic auto accidents and the BP Deepwater Horizon
litigation. o
Based upon Pohl’s illegal and unethical solicitation of clients, Kassab filed
four separate lawsuits against Pohl for civil barratry and negligence. In addition,
as mandated by the Texas Disciplinary Rules of Professional Conduct, Rule 8.03,
Kassab filed and helped his clients initiate several grievance proceedings, 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 okthers to steal
Pohl’s property and solicit his former clients or prospective clienCts to sue him for
barratry.1 Pohl claims his defense costs to defend against the barratry litigation
and grievances as his damages. The absurdity of Pohl’s claiims is only surpassed by
the absurdity of his claimed damages. Pohl’s claims were brought in bad faith and
should be dismissed with prejudice.
SUMMARY
Pohl got caught committing illegall and unethical barratry and now wants
Kassab, who brought the barratry litMigation and grievances against Pohl, to pay for
his legal fees for defending against the barratry claims and grievances. But Pohl’s
claims against Kassab are bairred as a matter of law and he has no evidence to
support various elements of his causes of action because:
• Pohl’s claims aore predicated on Kassab’s filing of a grievance against
Pohl for which Kassab has absolute and unqualified immunity
pursuant tol Rule 17.09 of the Texas Rules of Disciplinary Procedure.
• Pohl’s cilaims against Kassab are barred by the judicial proceedings
priviolege because they arise out of communications that Kassab made
in prospective (solicitation letters) and actual judicial proceedings (the
barratry litigation and grievance process).
• Pohl’s claims against Kassab are barred by attorney immunity because
an attorney does not have a right of recovery, under any cause of action
against another attorney arising from conduct the second attorney
1 Plaintiffs’ Original Petition, ¶¶ 19-28.
engaged in as part of the discharge of his duties in representing a
party.
• Pohl’s claims are barred by limitations because they accrued, if at all,
in the summer of 2014 as Pohl testified under oath, and Pohl did not
file suit against Kassab until August 2018, more than four years later.
• Pohl’s TUTSA claim is conclusively negated because his allegeed trade
secrets were not actually kept secret. Pohl’s claims also fCail because
Pohl does not own the purportedly stolen property and ttrade secrets
which consist of client files which, as a matter of law, Pohl does not
own. t
• Pohl’s illegal acts (barratry and unauthorized practice of law) preclude
any form of recovery against the whistleblowesr (Kassab) because his
acts are inexorably intertwined with Pohl’s creimes.
• Pohl is not permitted to recover as damages the attorney’s fees he
incurred in the four barratry lawsuits and/or disciplinary grievances.
• Pohl has no evidence to support thalt he owned or had possession of the
property or entitlement to possesasion of any of the allegedly converted
property or stolen property. M
• Pohl has no evidence that the Kassab Defendants unlawfully and
without authorization assumed and exercised control over the property
to the exclusion of, or iinconsistent with Pohl’s rights as an alleged
owner. O
• Pohl has no evidpence that he demanded return of the property from
the Kassab Deofendants, nor does Pohl have any evidence that the
Kassab Defendants refused to return any property.
• Pohl can c niot produce evidence as to the damages for the property’s loss
of use fdiuring the time of its detention or the value of the allegedly
conveorted property and never has produced such evidence.
• Pohl has no evidence that (1) the Kassab Defendants were involved in
a combination of two or more persons; (2) that any persons involved in
the alleged conspiracy sought to accomplish an object or course of
action; (3) the persons involved reached a meeting of the minds on the
object or course of action; (4) one or more unlawful, overt acts were
taken in pursuance of the object or course of action; or (5) damages
occurred as a proximate result.
JOINDER AND INCORPORATION BY REFERENCE
Defendants, Tina Nicholson and Baker Nicholson, LLP (“Nicholson”) moved
for traditional summary judgment on August 19, 2022 (“the Nicholson Motion”).
Kassab adopts the arguments set forth in the Nicholson Motion andk all evidence
cited therein. See TEX. R. CIV. P. 58 (“Statements in a pleading mCay be adopted by
reference in a different part of the same pleading or in another pleading or in any
motion, so long as the pleading containing such statementsi has not been superseded
by an amendment as provided by Rule 65 pursuant to Texas Rule of Civil Procedure
58.”); Lockett v. 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 leglitimate practice.”). Reference to exhibits
attached to the Nicholson Motion willM be “Nicholson Ex. [number], [description].”
POHL’S BARRATRY SCHEME
Pohl engages in an iillicit barratry scheme to personally solicit
BP clients and victimfs 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 (“Precision”), to
“recruit clients fior [Pohl] to represent against BP”2 and provide “marking services”
to auto accoident victims.3 Walker testified that although he and Pohl called it
“marketing services” or “marketing money” it was “clear to [him] it was barratry.”4
In fact, Walker considered himself and his company “a pass-through for barratry
2 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, p. 19.
3 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 605-07.
4 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 149.
money.”5 All total, Walker, Ladner and Precision Marketing received over $5 million
in “barratry pass-through money” from Pohl and other lawyers to solicit accident
victims and potential clients with claims, both auto-accident victims and those
involved in the BP Deepwater Horizon litigation.6 They would use this kmoney to pay
contract workers to solicit clients.7 They would locate and instrucCt contract workers
on how to accomplish the solicitation.8 They trained “40 or 50 people” on how to “go
out and solicit contracts.”9 i
Walker would “get leads from a variety of sources” including “from Michael
Pohl” and then he and Ladner, or one of their employees, would go try to “find the
family who had lost a loved one” and “just do marketing” to “let them know that
there was help available.”10 The “help” lavailable would be offering the victims
money from Helping Hands FinancinMg, LLC (“Helping Hands Financing”).11 Helping
Hands Financing is owned by Pohl’s wife, Donalda Pohl (“Donalda”), and operated
by her cousin, Jaimes.12 If onie of the clients Precision Marketing solicited “needed
monetary help” they would be referred to Jaimes and Jaimes would “work with
them to -- to help theom.”13 The funds from Helping Hands Financing to pay to the
auto accident victilms “would have come through Edgar Jaimes.”14 In other words, if
5 Exhibit U3-B, 2016 Deposition of Scott Walker, p. 197:6-7.
6 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 73:21-25; 74:1-25; 75-1-15.
7 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 199.
8 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 77-78.
9 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 196-197.
10 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 142-143.
11 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
12 Exhibit 4, October 2018 Deposition of Edgar Jaimes, p. 28.
13 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
14 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 201-203.
Walker or his team needed money to induce the auto accident victims, he would talk
to Jaimes and seek his approval.15
Walker testified that Pohl would send him leads on the auto accident cases
because he knew that Walker and Ladner “could go out and get tkhose type of
cases.”16 Either Ladner would go to solicit the clients, or Cthey would send
Magdalena Santana (“Magdalena”), her brother Florian “Jay” Santana (“Florian”),
or one of their other employees.17 Walker testified that ithese folks working for
Precision Marketing were soliciting the victims “on behalf of Mr. Pohl.”18 Walker
and his team solicited more than 50 auto accident cases for Pohl.19 Walker always
kept Pohl informed on what he and his team were doing.20
Walker testified that the runnersl who solicited the clients would get “a
bonus” if they got the client to sign Ma contract.21 Walker testified that he and his
team would receive the bonus from either Helping Hands Financing at the direction
of Jaimes or Pohl and his lawi firm.22 The payment to the runner would come from
Precision Marketing, but Walker would then “turn in an amount that [they] spent
during the that weeko … to Mr. Pohl’s office.”23 Either Pohl or Jaimes would then
reimburse Precisilon Marketing.24 Financials obtained from Precision Marketing
evidence this ifact, reflecting incoming transfers from Pohl’s law firm or Helping
15 ExhibitU 3-A, 2018 Deposition of Scott Walker, pp. 203-204, 207-208.
16 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 146-148.
17 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 146-148.
18 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 152.
19 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 148-151.
20 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 153.
21 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 158-160, 556.
22 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 556.
23 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160.
24 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160-161, 556.
Hands Financing with payments made to various runners.25 At times, Pohl gave
direction as to some of the bonuses or fees that Precision Marketing paid to the
runners.26 And although Walker did not get “permission, per se” from Pohl to make
the specific payments to the runners, he “would tell [Pohl] after tkhe fact what
[Precision Marketing] had spent that week.”27 C
One runner, Magdalena Santana, exposes the barratry scheme
despite being paid $50,000 by Pohl to keep quiet. t
Magdalena personally solicited two of the plaintiffs who would ultimately sue
Pohl for barratry: Heraclite Bikumbu (and his minoer children) and Raymond Butts.
In her September 24, 2016 affidavit, Magdaleuna testified that Pohl sent her on
“dozens and dozens of car wreck cases all over the country.”28 Pohl would email
Magdalena the link of news coverage daepicting the accident and ask 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 Magdalena “$5,0e00 per case that [she] signed, plus a percentage of
his attorney’s fees.”30 Mag
daflena was advised by Pohl to “be persistent even if the
family ... rejected [her].”31 Magdalena was instructed by Pohl to “approach the
victims and their families while they were vulnerable, in the emergency room, their
hospital rooms ior at the funerals.”32 Pohl told Santana that minorities “were
25 Exhibit 5, Precision Marketing Group Financials.
26 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 161-162.
27 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 162.
28 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
29 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
30 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 18.
31 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
32 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
especially vulnerable since they tended not to know that the law prohibited
barratry.”33 According to Pohl, they “were easier to sign up.”34
Pohl would give Magdalena “money to give to the victims or their families”
but “only if they agreed to sign a Pohl representation contract.”35 kPohl advised
Santana that the money was a “foot in the door” but instructeCd 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 [Magdalenia] was to have the client
sign a ‘Helping Hands’ contract.”37 Pohl would then give Magdalena the money to
pay the client “from his own Helping Hands company.”38 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 lthrough some company.”39
Pohl may take the position thaMt Magdalena retracted this affidavit through a
subsequent December 19, 2017 affidavit. However, this purported retraction is
likely the result of Pohl payingi Magdalena to provide testimony, which is something
they have done in the past.40 In fact, Jaimes testified that on one occasion Pohl sent
him to Florida witho a case filled with $50,000 cash to give to Magdalena in
exchange for her sligning an statement for him.41 Jaimes testified that Magdalena
33 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19 (emphasis added).
34 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
35 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
36 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
37 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
38 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
39 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 23.
40 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
41 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
would only get the money if she signed the statement.42 Jaimes testified that
Magdalena signed the signed the statement and got the money.43
Magdalena went into more detail about this in her deposition. Magdalena
testified that that the statement was an agreement for her to keep qkuiet and not
charge Pohl with any wrongdoing or criminal or unethical condCuct.44 Magdalena
testified that Pohl paid her $50,000 cash to sign this statement, which was
delivered by Jaimes in three bags marked “trick or treat.i”45 Magdalena reiterated
that if she didn’t sign the gag agreement, she wouldn’t get the money from Pohl.46
Magdalena attempted to indicate on the 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 Magdallena did not write the statement but “just
signed it”48 because she felt she waMs “forced to sign” it49 while “under duress.”50
Magdalena’s December 19, 2017 affidavit is likely the result of similar duress and
purchased testimony. i
Regardless, nowhere in Magdalena’s December 19th affidavit does she state
the testimony in her oformer affidavit is untrue, only that she does not “agree with”
it and that the alffidavit is not “reliable.”51 Although Magdalena states in her
December 19thi affidavit that her prior affidavit was drafted by a lawyer, Magdalena
42 ExhibitU 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
43 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
44 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
45 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 122-127.
46 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 131.
47 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 346.
48 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
49 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 155.
50 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 309.
51 Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
testified in her deposition that the September 24th affidavit was created voluntarily
with her own “testimony.”52 Magdalena 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 Magdalena reiterated to counsel fork Pohl, Billy
Shepherd, that she was there in her deposition to tell the truth Cand would not be
bullied by his questioning or his efforts to confuse her.54
Regardless, Magdalena confirmed most of the factis set forth in her initial
affidavit in her deposition55 and this deposition testimony was not retracted.56
There, Magdalena confirmed that she 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 Magdalena was instructed by Wlalker, who was instructed by Pohl, to
personally visit the mother of theM deceased and sign her up to sue the tire
manufacturer and, if she succeeded, Pohl would pay her $5,000.58 Magdalena visited
the funeral of the deceased iand got the family to feel comfortable with her.59
Although the mother was grieving, Pohl told Magdalena: “take no prisoners, this is
a cut throat businesso, you get in there and you do whatever it takes to get this
52 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 270-271.
53 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 276-278.
54 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 176.
55 See, generally, Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
56 See Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
57 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37.
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. 37-38.
10
client.”60 The solicitation was successful after Pohl gave Magdalena $2,000 to “give
to the client to convince her into signing over with the firm.”61
After that, Magdalena attempted to solicit about “forty to fifty” auto accident
cases for Pohl in multiple states from Texas to Florida.62 About fifteekn to eighteen
cases were actually signed up.63 Just like Walker, Magdalena tCestified that Pohl
would send her a web link with information about the accident and where the
potential client may be found and she would hit the grounid running.64 Magdalena
solicited clients for Pohl in “hospitals, funeral homes, you name it.”65 Pohl
instructed Magdalena to target minorities because they are “unrecognized to the
law” and “they don’t know the law.”66 In an effort to circumvent the law, Magdalena
was instructed to have the client call Pohll so that it would look like the client made
the initial contact with the lawyer.6M7 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.”68 Magdalena ireiterated, “no signature, no money.”69 Magdalena
testified in her deposition that she was paid $2,500 for every client she signed up
and was “promised ao percentage in the back end” by Pohl and Walker.70 Pohl told
60 Exhibit 8,n November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 39.
61 ExhibitU 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 40.
62 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 43.
63 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 46-47.
64 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 54.
65 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
66 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
67 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 60.
68 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 42.
69 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 66.
70 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 47.
11
Magdalena that the money would have to go through Walker’s company Precision
Marketing because it “was illegal for him to give [her] the money directly.”71
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 tok care for her
father.72 Magdalena asked Pohl to “think it thru” if he “really wCanted to take the
bad route,” stating “I will go to the attorney General Texas bar ten [sic] bar Florida
bar I’m not giving up … I want my money and if I have to miove mountains with the
justice dept so be it.”73
Magdalena sent another 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: l
74
71 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 72.
72 Exhibit 10, April 21, 2014 Email.
73 Exhibit 10, April 21, 2014 Email.
74 Exhibit 11, May 7, 2014 Email Exchange.
12
When Pohl did not respond, Magdalena completed a questionnaire on Pohl’s law
firm website, stating “the FBI” wanted to know 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 “ckollect monies
owed with Out contracting [sic] The Texas bar[.]”75 C
It was these threats that caused Pohl to agree to pay Magdalena, but only if
she promised to keep quiet.76 Magdalena received the $50i,000 cash but didn’t keep
quiet. On September 1, 2014. Magdalena sent another email to Pohl through his
website requesting more money:
Michael 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 wals owed that’s what happens when
you ruined my life. If I get supenaa a [sic] don’t know what will happen.
Send me another 50 pls.77 M
Magdalena continued running cases for Pohl and sending him emails requesting
payment on the cases she soliciited.78
Another runner, Kenneth Talley, exposes the barratry scheme.
Another runnero was “Coach” Kenneth Talley (“Talley”), solicited over 800 BP
cases and 20 autol accident cases for Pohl,79 including several families who would
ultimately suei Pohl for barratry: Mark Cheatham, Sr., Mark Cheatham, Jr., Luella
Miller, Mae Berry and Arthur Speck.
75 Exhibit 12, May 20, 2014 Contact Form.
76 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
77 Exhibit 13, September 1, 2014 Contact Form.
78 Exhibit 14, February 5, 2015 Email.
79 Exhibit 15, Deposition of Kenneth Talley, p. 87.
13
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 up” and “get a fee for it.”80 Talley
went to work “knocking on doors” looking for potential claimants for Pohl and his
partner in the BP litigation, Jimmy Williamson.81 Talley solicited and ksigned up for
Pohl and Williamson more than 800 BP claims.82 Talley was paidC between $75 and
$350 for each BP client he signed up.83
Talley eventually switched to soliciting auto accidient victims, “calling on
folks that had bad accidents.” 84 Talley recalls that the first client he solicited was in
“the hospital in intensive care.”85 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.”86 Talley kept a list of all the auto aclcident cases he solicited, including cases
involving the Cheathams, Berry anMd Speck.87 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) aind to offer the victims money but to “make sure the
funding schedule” from Helping Hands Financing “is filled out properly before
releasing any cash.”8o8 Talley would advise the victims that he had attorneys who
could help them, alnd that one of those attorneys was Pohl.89 Talley was paid a fee of
$1,400 plus hiis expenses by Pohl, through Walker, for any auto accident case he
80 ExhibitU 15, Deposition of Kenneth Talley, p. 10.
81 Exhibit 15, Deposition of Kenneth Talley, p. 10-11.
82 Exhibit 15, Deposition of Kenneth Talley, p. 11.
83 Exhibit 15, Deposition of Kenneth Talley, p. 19.
84 Exhibit 15, Deposition of Kenneth Talley, p. 37.
85 Exhibit 15, Deposition of Kenneth Talley, p. 37.
86 Exhibit 15, Deposition of Kenneth Talley, p. 38.
87 Exhibit 15, Deposition of Kenneth Talley, p. 43-44; Exhibit 15-A, Talley Deposition Exhibit 165.
88 Exhibit 15-B, Talley Deposition Exhibit 168.
89 Exhibit 15, Deposition of Kenneth Talley, p. 47.
14
solicited.90 On some cases, Talley was to receive a portion of the fee paid to Helping
Hands out of Pohl’s attorney’s fees.91 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.92 When aksked whether
Pohl knew he was getting paid to “contact vehicle accidentC victims,” Talley
responded, “the money was coming from Edgar [Jaimes] who worked for him.”93
Although his paycheck was from Walker’s company, “the ifunding came by way of
Edgar [Jaimes].”94
Personally soliciting clients for Pohl became so frequent that Talley began
carrying with him blank Pohl contracts to each solicitation.95 Talley would refer the
potential clients to “attorneys out of Houslton that were the best at handling these
types of accidents” and would offer tMo give the potential clients “money up front.”96
Talley would have no “reason not to mention Mr. Pohl’s name” during the
solicitation.97 Talley would neiver recommend any lawyers other than Pohl.98 Talley
would not tell the clients that he was getting paid to solicit them.99 Talley would
present a Pohl contraoct to the potential client.100 If the client did not agree to hire
90 Exhibit 15n, Deposition of Kenneth Talley, p. 47-48.
91 ExhibitU 15, Deposition of Kenneth Talley, p. 97-98; 102.
92 Exhibit 15, Deposition of Kenneth Talley, p. 99.
93 Exhibit 15, Deposition of Kenneth Talley, p. 100.
94 Exhibit 15, Deposition of Kenneth Talley, p. 100.
95 Exhibit 15, Deposition of Kenneth Talley, p. 49.
96 Exhibit 15, Deposition of Kenneth Talley, p. 54.
97 Exhibit 15, Deposition of Kenneth Talley, p. 108.
98 Exhibit 15, Deposition of Kenneth Talley, p. 59.
99 Exhibit 15, Deposition of Kenneth Talley, p. 58; 109.
100 Exhibit 15, Deposition of Kenneth Talley, p. 89.
15
Pohl, the clients would not get the money.101 Talley testified that Jaimes and
Donalda (the operators of Helping Hands Financing) would send him the money.102
Both Talley and Pohl knew that what they were doing was illegal. In one
instance, Talley was “run out of town” while soliciting clients for Pkohl.103 Talley
testified during the attempted solicitation he was told by a “lawCyer or policeman”
that “it was against the law what [he] was doing.”104 Talley mentioned this to Pohl
and Pohl told him “you’ve just got to leave...some people youi can’t help.”105
Pohl illegally solicited several clients who would later hire
Kassab to sue Pohl for barratry. e
One of the victims solicited by Talley aut 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. 106 Withian days of the accident, Berry was visited at
her home by Talley.107 The visit was unsolicited.108 Talley told Berry that he was
with “Helping Hands” and broueght her a gift basket.109 Talley suggested that she
may have a lawsuit againstf the make of the vehicle that Johnny was driving and
told her he knew an attorney out of Texas named Pohl who could represent her.110
Berry had never spoken with Talley or Pohl prior to this date and she did not
101 ExhibiUt 15, Deposition of Kenneth Talley, p. 58-59.
102 Exhibit 15, Deposition of Kenneth Talley, p. 86.
103 Exhibit 15, Deposition of Kenneth Talley, p. 84.
104 Exhibit 15, Deposition of Kenneth Talley, p. 84.
105 Exhibit 15, Deposition of Kenneth Talley, p. 85.
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.
16
request Talley to visit with her about the accident or any potential lawsuit.111 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 agreed to hire Pohl.112 In need of the money
to burry Johnny, Berry agreed to hire Pohl.113 Walker sent Pohl an emkail on August
21, 2014 forwarding the Helping Hands Financing documents anCd stating, “Coach
Ken will be getting the Pohl contract signed this afternoon.”114 However, Pohl never
ended up pursuing Berry’s case.115 i
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.116 Talley testifies
that he told Berry that Helping Hands “had attorneys out of Houston that were the
best at handling these types of accidents” alnd that he gave Berry $500 “up front.”117
Talley solicited Berry after he got a cMall from Ladner who told him that a “kid was
killed and it should be a good case” and that “we needed to go check it out.”118 Talley
testified that he was paid $25i0 to solicit Berry as a client and was also reimbursed
from Helping Hands the $500 he paid to Berry.119 Talley never told Berry he was
getting paid to makeo contact with her.120 Berry did not know that the solicitation
was wrongful or claused her legal injury until sometime in 2017 when she received
111 Exhibit 1n6, September 17, 2018 Declaration of Mae Berry.
112 ExhibiUt 16, September 17, 2018 Declaration of Mae Berry.
113 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
114 Exhibit 17, August 21, 2014 Email re Mae Berry.
115 Exhibit 15, Deposition of Kenneth Talley, p. 56.
116 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.”).
117 Exhibit 15, Deposition of Kenneth Talley, p. 54.
118 Exhibit 15, Deposition of Kenneth Talley, p. 55.
119 Exhibit 15, Deposition of Kenneth Talley, p. 57-58; see also Exhibit 5, Precision Financials.
120 Exhibit 15, Deposition of Kenneth Talley, p. 58.
17
an advertisement from the undersigned counsel notifying her of her potential
injury.121
Talley also solicited Arthur and Lisa Speck to hire Pohl. The Specks are the
parents of is Rebecca Speck, an eighteen year old who died in July okf 2010 as the
result of a tragic auto accident.122 Talley testified that he was nCotified about this
case by Ladner who told him “there’s a case in the backyard he wanted [him] to go
pursue.”123 Talley found the Specks’ address and he “weint and knocked on their
door.”124 The visit by Talley was unsolicited.125 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.126 Talley testified that he “didn’t have any reason
not to mention Mr. Pohl’s name” at this vilsit because he “knew he was the attorney
handling things for us.”127 The SpeckMs agreed, and signed two contracts with Pohl’s
law firm and funding agreements with Helping Hands.128 Sometime in August of
2014, the Specks received a iletter from Pohl stating he would not pursue the
claims.129 Talley never told the Specks that anyone was paying him to make contact
with them.130 o
121 Exhibit 1n6, September 17, 2018 Declaration of Mae Berry.
122 ExhibiUt 18, September 14, 2018 Declaration of Arthur Speck.
123 Exhibit 15, Deposition of Kenneth Talley, p. 105.
124 Exhibit 15, Deposition of Kenneth Talley, p. 105.
125 Exhibit 18, September 14, 2018 Declaration of Arthur Speck.
126 Exhibit 15, Deposition of Kenneth Talley, p. 107-108.
127 Exhibit 15, Deposition of Kenneth Talley, p. 108.
128 Exhibit 18, September 14, 2018 Declaration of Arthur Speck, at Exhibit 18-A, Speck Contracts
and Exhibit 18-B, Speck Funding Agreement.
129 Exhibit 18, September 14, 2018 Declaration of Arthur Speck,
130 Exhibit 15, Deposition of Kenneth Talley, p. 109.
18
Alphonse Bethley and Sandra Johnson are the biological parents of Ashley
Bethley.131 Ahsley was killed when she lost control of her vehicle and it struck a
utility pole.132 Ashley was only twenty-four years old.133 In July of 2014, Ladner
personally solicited the Bethleys at their home to hire Pohl.134 The viksit by Ladner
was unsolicited.135 The Bethleys did not request Ladner to visit tChem, nor did they
seek out the legal services of Pohl.136 Ladner offered them money if they would hire
Pohl to pursue their claims.137 The Bethleys agreed, andi signed a blank contract
with Pohl and his law firm that was provided to them by Ladner.138 In exchange,
Ladner and Walker agreed to share $5,000 for every $1,000,000 of the received
settlement from the Bethleys’ lawsuit.139 Ladner emailed Pohl and Jaimes facts
concerning these newly solicited clients land also stated that he spoke with the
mother of the passenger of the vehicleM “and will follow up on signing that family.”140
Sometime in August of 2015, however, the Bethleys received a letter from
Pohl stating he would not bie pursuing their claim.141 Years later, in 2017, the
Bethleys received an advertisement from the undersigned counsel notifying them
the way they were coontacted by Ladner and solicited to hire Pohl may have been
131 Exhibit 19,o September 17, 2018 Declaration of Alphonse Bethley.
132 Exhibit 1n9, September 17, 2018 Declaration of Alphonse Bethley.
133 ExhibiUt 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.
136 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
137 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
138 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley, and Exhibit 19-A, Bethley Pohl
Contract.
139 Exhibit 20, Bethley Distribution Agreement.
140 Exhibit 21, July 23, 2014 Email re Ashley Bethley.
141 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
19
wrongful and may have caused them legal injury.142 Prior to receiving this
advertisement, the Bethleys did not know that the way they were contacted was
wrongful, or that it caused them legal injury or harm.143
Heraclite Bikumbu and his two minor children Plovyt and Dakvid were also
victims of Pohl’s illegal solicitation scheme. On or about July 6, 20C13, Bikumbu and
his children were traveling with relatives from Missouri to Iowa when the rear tire
on their van blew out, causing the van to enter the mediani and roll several times.144
Bikumbu and his children were hospitalized with serious injuries.145 Their relative,
Simon Kumeso, was killed in the accident.146
Just days after the accident, Magdalena and her brother Florian (also known
as Jay) showed up at the hospital rooml to personally solicit Bikumbu and his
children to hire Pohl.147 The SantanMas brought Bikumbu and his children gifts,
including clothes, and stated they were with Helping Hands and worked for Pohl.148
The Santanas told Bikumbui that he had a viable lawsuit against the tire
manufacturer and offered Bikumbu $1,000 if he would sign a contract with Pohl to
represent him and hiso children in the claim.149 The Santanas told Bikumbu that he
142 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
143 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
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.
20
would get the money only if he signed a contract of representation.150 Bikumbu
agreed and signed a proposed contract with Pohl.151
A friend of the relative who died, Nsalambi Kkongolo, emailed Pohl days
after the accident confirming the solicitation by the Santanas: k
I am helping a family whose father (Mr. Simon Kumeso) wCas killed in
a car accident. I was then 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 tsome paperwork
stating that you will take the case and they also givei $3000 to the wife
of the deceased as financial aid to help with funeral (at 18% interest). I
would like to make sure that Santana work with you, you will take the
case and the papers the wife of the deceased seigned are legitimate.152
Pohl responded, confirming that he had been asuked to represent the “victims of the
tragic tire failure” and vouched for the Santanas, stating “Helping Hands and Jay
Santana provide valuable assistancea to families involved in these terrible
accidents.”153 
Magdalena testified to thee solicitation of Bikumbu and his children in her
deposition, stating that she fand her brother where there on behalf of Pohl and his
law firm:
A. You were asking me about when I visited clients in the hospital.
This lwas an example of one of the clients that I had visited in
thei hospital. They had lost -- I think the husband died in a tire
bilow-out, roll-over. There were several kids in the hospital and a
ogentleman 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 French to the client. And I guess he
150 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
151 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu and Exhibit 22-A, Bikumbu-
Pohl Contract.
152 Exhibit 23, July 11, 2013 Email.
153 Exhibit 24, July 11, 2013 Response Email.
21
was reaching out to either Michael Pohl's firm or to -- yeah, to
Mr. Pohl directly. He wanted to make sure that we were who we
said we were basically.
Q. And this e-mail references Jay. Is that your brother?
A. Yes, it is. k
Q. Did he go with you to sign up that client? C
A. Yes, he did.
... t
Q. Okay. And in it Mr. Pohl says, “I can vouch icompletely for Jay
and Maggie.” Do you know why he would be vouching for you?
A. Because I'm representing him. Becaeuse I was there on his
behalf.154
Florian also testified that he provided “marketing services” for auto accident
cases,155 and specifically testifies to solilciting the Bikumbu family just days or
weeks after the accident in Missouri Moccurred.156 The Santanas were paid “bonuses”
for soliciting the “Kumeso” case.157
Raymond Butts was thie victim of a tragic automobile accident on or about
August 7, 2013 in Clear Spring, Maryland, which claimed the life of Brenda Adams,
his fiancée. Just dayso after the accident, and while in the hospital recovering from
his injuries and grlieving the loss of his fiancé, Butts received an unexpected phone
call from Magidalena, who said she was working on behalf of Pohl. Magdalena
testified about this solicitation in her deposition, calling it “a crazy one.”158
Magdalena testified that while she and Walker were “soliciting for Michael Pohl for
154 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
155 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 63-67.
156 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 66-70.
157 Exhibit 5, Precision Financials.
158 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 55.
22
the client to sign,” Butts’ family got “really irate and they called the security on
[them] at the hospital.”159 The family told security that “these people are here
soliciting for an attorney.”160 Magdalena’s persistence eventually paid off and Butts
agreed to hire Pohl, signing two contracts with his law firm.161 Magdaklena also had
Butts sign a funding agreement with Helping Hands Financing toC obtain the money
Magdalena promised to pay Butts if he hired Pohl.162 And of course, Magdalena had
Butts execute the “Attorney Acknowledgement” listing iPohl as his lawyer and
authorizing Pohl to pay back Helping Hands Financing from any settlement.163
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 l15, 2014, LaDonna Cheatham and her
children, Destiny and Markus, were tMragically killed after a tire on the Kia Sorrento
driven by LaDonna failed and caused the vehicle to cross the median and collide
with an oncoming school bus.1i64 LaDonna’s other son, Mark Cheatham, Jr. survived
the crash.165 Mark Cheatham, Sr. is the ex-husband of LaDonna, biological father to
Markus and Mark, oJr., and father-figure to Destiny.166 Luella Miller is the
159 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 55.
160 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 56.
161 Exhibit 26, Butts-Pohl Contracts.
162 Exhibit 27, Butts Funding Agreement.
163 Exhibit 28, Butts Attorney Acknowledgement.
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.
23
surviving mother to LaDonna.167 LaDonna was only thirty-six years old, Markus
was sixteen and Destiny was only six.168
Less than a week after the accident, Pohl and his firm entered into an
agreement with Walker, Ladner and Precision to provide “marketing skervices” – i.e.
“barratry” – relating to the Cheatham accident wherein Pohl agCreed to pay these
non-lawyers an unethical percentage of his attorney’s fees.169 Talley contracted with
Precision to aid in providing these “marketing services” toi Cheatham and Miller in
exchange for $10,000 for every $1,000,000 received in a settlement.170 Talley
testified that was paid a fee by Pohl, through Precision, to personally solicit and
sign up the Cheatham family.171 And, Talley was successful.
Talley testified in his deposition thlat days after the accident, he did some
“snooping” and located the residenMce of Cheatham, Sr.172 Talley went out and
“knocked on the door” and Cheatham, Sr. answered.173 Talley told Cheatham, Sr.
and Miller that he was with “Hielping Hands” and could help them with burial costs
and “getting settlements.”174 Talley told Cheatham, Sr. that he was “associated with
attorneys out of Houoston that were really experienced with multi-types of vehicle
accidents and thalt [they] could do the best job of getting him a settlement.”175
Cheatham, Sri. and Miller signed the paperwork, including the contract with Pohl,
167 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
168 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
169 Exhibit 30, Cheatham Retention Services Agreement.
170 Exhibit 31, Cheatham Distribution Agreement.
171 Exhibit 15, Deposition of Kenneth Talley, p. 60-61.
172 Exhibit 15, Deposition of Kenneth Talley, p. 64-65.
173 Exhibit 15, Deposition of Kenneth Talley, p. 65.
174 Exhibit 15, Deposition of Kenneth Talley, p. 64.
175 Exhibit 15, Deposition of Kenneth Talley, p. 65-66.
24
right there.176 Talley testified that he gave the Cheatham family $24,000 to sign up
with the lawyers.177 Either Pohl or Ammons brought the $24,000 and gave it to the
family,178 $18,000 of which went to Cheatham, Sr., and all of which was paid by
Helping Hands Financing.179 k
Talley’s testimony is consistent with that of Cheatham, Sr. Cwho testifies that,
on or about February 19, 2014, just days after the accident, he and Miller were
personally solicited by Talley at his home in Schriever, Louiisiana and urged to hire
Pohl and Ammons in a potential lawsuit against Kia Motors.180 Neither Cheatham,
Sr. nor Miller had ever met Talley before and did not request him to visit with them
about the accident.181 Cheatham, Sr. and Miller did not have a previous attorney-
client relationship with Pohl or Ammons alt the time they were personally solicited
by Talley.182 M
At the visit, Talley encouraged Cheatham, Sr. and Miller to sign an
agreement with a Helping Hiands to investigate a potential lawsuit against Kia
Motors in exchange for $400 per hour or 40% of any recovery in their case.183 Talley
offered Cheatham, Sor. $2,000 if he would sign the agreement and hire Helping
Hands to investiglate the potential lawsuit and in turn the lawyers.184 Talley
encouraged Chieatham, Sr. to sign the agreement by stating that the money could
176 Exhibit 15, Deposition of Kenneth Talley, p. 66.
177 Exhibit 15, Deposition of Kenneth Talley, p. 74.
178 Exhibit 15, Deposition of Kenneth Talley, p. 77.
179 Exhibit 32, Helping Hands Check to Mark Cheatham.
180 Exhibit 30, Cheatham Retention Services Agreement.
181 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
182 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp. 1-2.
183 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, and Cheatham Ex. 1.
184 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
25
defray funeral costs and the investigation would reveal a viable claim against Kia
Motors.185 Talley told Miller and Cheatham, Sr. that if there was a viable case, they
could hire Pohl and Ammons to represent them in the lawsuit.186 Cheatham, Sr.
agreed and signed the investigation agreement with Helping Hands.1k87 To get the
money, Cheatham, Sr. was required to sign several documents wiCth Helping Hands
Financing, Donalda Pohl’s company.188
Days later, on or about February 21, 2014, Pohli 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.189
Pohl said that Ammons was an expert on auto accident and auto defect cases.190
Pohl promised to pay Cheatham, Sr. $18,0l00 if he agreed to hire Pohl and Ammons
in the auto accident case.191 CheMatham, Sr. and Miller agreed and signed
contingency fee contracts for legal services with Pohl on this same day.192
Cheatham, Sr. signed the conitract for legal services individually and on behalf of
Destiny, Markus, and Mark, Jr., who were all minors.193 The $18,000 was paid to
Cheatham, Sr. in exochange via a check written from Donalda Pohl’s company
185 ExhibiUt 29, Affidavit of Mark Cheatham, Sr., p. 2.
186 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
187 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 2.
188 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
189 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
190 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
191 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
192 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3; Exhibit 33, Miller-Pohl
Agreement.
193 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3.
26
Helping Hands Financing.194 Cheatham, Sr. and Miller later signed joint
representation agreements with Pohl and Ammons.195 Cheatham, Sr. testified that
he was offered and received an additional $500 to sign this joint agreement.196
Lacy Reese lost her husband David Reese on or about July k2, 2014 in a
vehicle accident that occurred outside of Anson, Texas.197 Reese bCuried her husband
on July 7, 2014.198 That same day, Ladner personally visited Reese’s home when she
was not there and left a business card stating he was thie “Associate Director” of
Helping Hands.199 The next day, July 8, 2014, Ladner again visited Reese’s home in
Paris, Arkansas and met with Reese and her mother, Karen Fairbanks.200 Ladner
told Reese and her mother that he was with a company called “Helping Hands” that
could investigate a potential lawsuit agailnst the vehicle manufacturer or the tire
company and sue them for the death Mof David.201 Ladner told Reese that if it looked
like she had a lawsuit, Pohl and his co-counsel, Rob Ammons, could handle the
case.202 Reese’s mother wrotei down the names of these lawyers on the back of
Ladner’s business card during this meeting.203 Ladner offered Reese money if she
would hire Helping Hoands Group and these lawyers, telling her the money could
194 Exhibit 29,o Affidavit of Mark Cheatham, Sr., p. 2; Exhibit 32, Helping Hands Check to Mark
Cheatham. n
195 ExhibiUt 29, Affidavit of Mark Cheatham, Sr., pp. 2-3, at Cheatham Ex. 5; Exhibit 34, Ammons-
Miller Agreement.
196 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp.2-3.
197 Exhibit 35, Declaration of Lacy Reese, p. 1.
198 Exhibit 35, Declaration of Lacy Reese, p. 1.
199 Exhibit 35, Declaration of Lacy Reese, p. 1, and Reese Ex. 1.
200 Exhibit 35, Declaration of Lacy Reese, p. 1.
201 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
202 Exhibit 35, Declaration of Lacy Reese, p. 1.
203 Exhibit 35, Declaration of Lacy Reese, at Reese Ex. 1.
27
help with the expenses relating to David’s death.204 Reese had never met Ladner,
Pohl or Ammons, or requested them to visit with her about the accident or
requested them to contact her.205
Although Reese was grieving over the loss of her husband, Ladnker pressured
Reese to sign the papers he had brought with him that day anCd she did.206 The
agreement that Ladner had Reese sign provided Helping Hands Group $400 per
hour or 40% of any recovery in her case.207 To get the moneiy, Reese was required to
sign several agreements with Helping Hands Financing, Donalda Pohl’s
company.208 Reese was told she would get the money after a suit had been filed.209
On July 25, 2014, unbeknownst to Reese, Pohl and his firm entered into a
“Retention of Services Agreement” with Wlalker, Ladner and Helping Hands Group
to provide “marketing services” relaMting to the death of David.210 Among other
things, Ladner was to “conduct initial interview” of the victims and “maintain
contact with the victims andi their family.”211 In exchange, Pohl agreed to pay
Ladner and Helping Hands Group fees not to exceed 30% of his own attorney’s
fees.212 Walker and Porecision Marketing then contracted with Ladner to provide
“public relations slervices pertaining to the cases of David Reese” in exchange for
204 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
205 Exhibit 35, Declaration of Lacy Reese, p. 2.
206 Exhibit 35, Declaration of Lacy Reese, p. 2.
207 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 2.
208 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 3.
209 Exhibit 35, Declaration of Lacy Reese, p. 2.
210 Exhibit 36, Reese Retention Services Agreement.
211 Exhibit 36, Reese Retention Services Agreement.
212 Exhibit 36, Reese Retention Services Agreement.
28
$5,000 for every $1,000,000 received from any settlement.213 The solicitation of
Reese occurred pursuant to these agreements.
On July 18, 2014, Ladner emailed Walker and Jaimes, the manager of
Helping Hands Financing and Pohl’s paralegal, concerning the “Rekese Case.”214
Ladner described the accident that occurred on July 2nd – less Cthan three weeks
prior.215 On or about August 16, 2014, Reese received an email from Ladner about a
contract with Pohl.216 Ladner told Reese that Pohl’s contraict would “take the place”
of the one that Reese had with Helping Hands Group and requested her to send the
contract directly to Pohl’s office.217 Reese received an email two days later from
Walker forwarding her Pohl’s contract.218 Reese signed the contract and sent it to
Pohl.219 l
Ladner does not dispute this. LMadner testified that he got an alert about the
death of Reese’s husband and flew to “nowhere Arkansas” within seven days of the
accident and “knocked on the dioor” to solicit her.220 Ladner solicited Reese on behalf
of Precision and “to get paid” by Pohl.221 Ladner referred the case to Pohl and got
paid a “bonus” of $2o,500.222 Ladner brought with him Helping Hands Financing
forms he obtainedl from Jaimes.223 Although Ladner could not recall whether he
213 Exhibit 3n7, Reese Distribution Agreement.
214 ExhibiUt 38, July 18, 2014 Email re Reese Case.
215 Exhibit 38, July 18, 2014 Email re Reese Case.
216 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
217 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
218 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 5.
219 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 6.
220 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 346-351.
221 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347.
222 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347, 358-359
223 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 349-350.
29
offered Reese money to sign up with Pohl, it was his practice to do so and the money
came from Jaimes and Helping Hands Financing, Donalda’s company.224 And Pohl
acknowledged that Ladener “was operating under [his] direction to … investigate[]
the incident as part of an initial case evaluation process.”225 In other wkords, Ladner
was soliciting Reese and evaluating her potential claim at the direCction of Pohl.
Pohl is sued by his Mississippi runners who expose the illegal
and unethical barratry scheme and Pohl settlest that litigation
after unsuccessfully seeking to have it dismissied based on the
illegality of his agreements.
On October 8, 2014, Walker and Ladner ande their company Precision sued
Pohl and his law firm for breach of contract aund fraud, among other claims (the
“Mississippi Litigation”).226 There, Walker nand Ladner alleged they had a joint
venture with Pohl to sign up clients with economic loss claims stemming from the
BP Deepwater Horizon oil spill.227 See Walker v. Williamson, No. 1:14cv381-KS-
JCG, 2016 U.S. Dist. LEXIS 6e1185, at *5-6 (S.D. Miss. May 9, 2016). They also
alleged that they had “condufcted marketing efforts to obtain personal injury clients”
for Pohl228 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.”229 i
Moreo specifically, Walker, Ladner and Precision (“the Runners”) alleged that
Pohl contracted with them to provide “public relations and marketing services” to
224 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 351-354.
225 Exhibit 40, January 19, 2016 Letter.
226 Nicholson Exhibit 4, Walker Complaint.
227 Exhibit 41, Walker Second Amended Complaint.
228 Exhibit 41, Walker Second Amended Complaint. ¶ 118.
229 Exhibit 41, Walker Second Amended Complaint. ¶ 136.
30
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.” Walker, 2016 U.S. Dist. LEXIS 61185, at *6-7. The
Runners also alleged that they contracted with Pohl “to provide mkarketing and
public relations services in connection with claims for auCtomobile 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 evidience 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 million in ‘barratry pass-through money’ for their services.”
Kassab v. Pohl, 612 S.W.3d 571, 574 (Telx. App. – Houston [1st Dist.] 2020, pet.
denied). However, the Runners sueMd Pohl because they “procured thousands of
viable BP claims” and “approximately sixty motor vehicle accident cases” for Pohl
but that Pohl “did noy pay ainy 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. oMiss. Mar. 1, 2016).
Precision tlransfers and assigns its assets and claims against
Pohl to iFavre – Pohl counterclaims for conversion in the
Mississiippi Litigation but settles when he cannot obtain
summoary dismissal.
During discovery in the 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
31
work product to third parties” while working for him.230 Pohl testifies that the
Runners “undertook to convert, misappropriate for themselves and/or market to
third parties claimant files and other information and materials” that allegedly
belonged to Pohl231 – including “marketing information and other tradek secrets”232 –
and then the new owner of Precision, Scott Favre, allegedly “solCd those items and
the information” to Kassab.233
As a result, Pohl “asserted multiple claims againist” the Runners in the
Federal Court Case based on their alleged “fraudulent and bad faith conduct.”234
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 “team of
thieves” who broke into Pohl’s office in 20l14 and stole his confidential information
and purported trade secrets.235 M
Pohl attempted to dismiss the Mississippi Litigation, arguing the agreements
between he and the runners iwere illegal and unenforceable.236 More specifically,
Pohl argued that under both Texas and Mississippi law “it is illegal for a non-
lawyer to accept or oagree to accept money to improperly solicit clients for a
lawyer.”237 The Mlississippi federal court denied Pohl’s motion to dismiss and
concluded thait he was in a partnership with Walker and Ladner and further
230 ExhibiUt 42, Pohl’s June 19, 2018 Affidavit, at ¶ 18.
231 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
232 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
233 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 29.
234 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 19; see also Exhibit 43, Pohl’s Amended
Counterclaim.
235 Exhibit 44, May 15, 2018 Deposition of Michael Pohl, pp. 85-93.
236 Exhibit 45, Walker Memorandum Opinion (Doc. No. 475); Exhibit 46, Walker Pohl Memorandum
(Doc. No. 175).
237 Exhibit 46, Walker Pohl Memorandum, at ¶ 18.
32
concluded that the agreements to solicit clients would only be a violation of the
Texas disciplinary rules and Texas law, which did not apply to Walker and
Ladner.238 Having failed to obtain summary dismissal, Pohl settled the Mississippi
Litigation, hoping to forever conceal the barratry operation.239 Thke Mississippi
Litigation was dismissed with prejudice on April 24, 2017.240 C
Kassab exposes Pohl’s illegal and unethical barratry and more
than 400 victims of Pohl’s barratry scheme hiret Kassab to file
civil claims and grievances against Pohl. i
Kassab was tipped off to the allegations in the Mississippi Litigation by an
acquaintance of his, F. Douglas Montague of the Mississippi law firm Montague
Pittman & Varnado, PA (“Montague”).241 Kassab obtained much information related
to the Mississippi Litigation from the flederal court’s online system, PACER.242
Kassab also associated Precision aMnd its new owner, Favre, and its counsel,
Nicholson, and obtained information directly from them, including the names and
addresses of Pohl’s former ori prospective clients.243 Favre informed Kassab that,
when he bought Precision, he acquired files related to Pohl and Favre transferred
that information to Koassab.244
Kassab preplared advertisement letters approved by the State Bar of Texas
and sent it to ipeople who had been illegally solicited by Pohl, informing them that
238 Exhibit 47, Walker Order on Pohl Motion to Dismiss (Doc. No. 252).
239 Exhibit 48, Walker Judgment (Doc. No. 499).
240 Exhibit 48, Walker Judgment (Doc. No. 499).
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 2-3.
244 Exhibit 49, Declaration of Lance Christopher Kassab, at 2; Exhibit 50, Affidavit of Scott Favre.
33
they may have potential barratry claims against Pohl.245 Hundreds of Mississippi
residents responded to Kassab’s advertisement letter and more than 400 signed
representation contracts with Kassab’s firm to pursue barratry claims against
Pohl.246 Kassab filed four separate lawsuits on behalf of these barratkry victims in
Harris County, Texas (the “Barratry Lawsuits”).247 AdditionCally, 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 reqiuired to notify the Texas
State Bar pursuant to disciplinary rule 8.03.248 Thus, Kassab filed grievances
against Pohl pursuant to this rule, and also at the request of some of Pohl’s former
clients.249
Pohl files this retaliatory lawsluit against Kassab seeking as
damages the costs he incurread to defend against the Barratry
Lawsuits and grievances filMed against him.
In retaliation, Pohl filed this litigation against Kassab, Favre, Nicholson,
Precision, and others, for cionversion, misappropriation of trade secrets and
conspiracy.250 Pohl rehashes his allegations from the Mississippi Litigation,
claiming that “Preciosion gained access to Pohl’s confidential and proprietary
information and plroperty, including trade secret materials” and “work product” and
245 Exhibit 4n9, Declaration of Lance Christopher Kassab, at 2; Exhibit 51, Advertisement Letters.
246 ExhibiUt 49, Declaration of Lance Christopher Kassab, at 2.
247 Exhibit 52 (Brumfield Third Amended Petition), Exhibit 53 (Gandy Third Amended Petition),
Exhibit 54 (Berry Fifth Amended Petition), Exhibit 55 (Cheatham Fourth Amended Petition)
(without exhibits).
248 Exhibit 49, Declaration of Lance Christopher Kassab, at 1.
249 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.”
250 See Pohl’s First Amended Petition (on file with the Court).
34
“illegally misappropriated” this information and then allegedly “secretly sold Pohl’s
confidential information to Kassab and [another lawyer named] Montague”251 who
then “solicited clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring
cases against Pohl for alleged barratry and other claims.”252 As damageks, Pohl seeks
the costs and expenses he incurred defending against the BarraCtry Lawsuits and
grievances filed against him.
SUMMARY JUDGMENT STANDARDDi
The purpose of summary judgments is to eliminate patently unmeritorious
claims and untenable defenses. Tex. Dep't of Parks & Wildlie v. Miranda, 133
S.W.3d 217, 228 (Tex. 2004). To prevail, the movant must show that no genuine
issue of material fact exists and that it isl entitled to judgment as a matter of law.
TEX. R. CIV. P. 166a(c); Lujan v. NavisMtar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). “If the
movant carries this burden, the burden shifts to the nonmovant to raise a genuine
issue of material fact precludiing summary judgment.” 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 genouine issue of material fact exists if more than a scintilla of
evidence establishling the existence of the challenged element is produced.” Ford
Motor Co. v. Riidgway, 135 S.W.3d 598, 600 (Tex. 2004).
ARGUMENT & AUTHORITIES
Although Pohl’s claims against Kassab lack merit because Kassab did not
misappropriate Pohl’s trade secrets or otherwise engage in any misconduct, the
251 First Amended Petition, at ¶¶ 20-21.
252 First Amended Petition, at ¶ 29.
35
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.
A. Pohl’s claims against Kassab are barred by immunity
under Rule 17.09 of the Texas Rules of Disciplinary
Procedure. k
First, Pohl’s claims against Kassab must be dismissed baCsed on immunity
provided in Rule 17.09 of the Texas Rules of Disciplinary Procedure. That rule
provides: i
No lawsuit may be instituted against any Complainant or
witness predicated upon the filing of a Grieevance or participation in
the attorney disciplinary and disability system. … The immunity is
absolute and unqualified and extendsu to all actions at law or in
equity.
TEX. R. DISC. P. 17.09 (emphasis added). Elven “allegations of wrongdoing” done “in
connection with [the] prosecution of dMisciplinary actions” are absolutely immune, so
long as they are “predicated upon” the filing of a grievance. Crampton v. Farris, 596
S.W.3d 267, 274-75 (Tex. App.i—Houston [1st Dist.] 2019, no pet.).
Here, it is undisputed that Pohl’s allegations of wrongdoing against Kassab
are predicated upon Koassab’s filing of grievances against Pohl. Pohl testified that he
has sued Kassab blecause Kassab allegedly “used information from [Pohl’s] files in
the grievance iproceedings that [Kassab] personally filed or had clients file and
[Kassab allegedly] shared [Pohl’s] stolen property with Ms. Nicholson so she could
defend a grievance against herself, according to her own testimony.”253 Pohl seeks
as damages in the form of “costs and expenses of … serial grievances that arose
253 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
36
from the use of the [allegedly] misappropriated trade secrets.”254 Pohl intends to
have his biased expert, John Zavitsanos,255 “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.”256 kZavitsanos is
purportedly going to “opine that [Pohl’s] attorneys’ fees and expenCses incurred … in
defending related matters including against invalid grievances … are fair,
reasonable, necessary and recoverable under the circumstainces.”257
But Rule 17.09 makes clear that “[n]o lawsuit” may 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 lthat he seeks are “predicated upon” the
grievances that Kassab caused to Mfile against Pohl, the claims are barred by
“absolute and unqualified” immunity that “extends to all actions at law or in
equity.” Id.; Crampton, 596 Si.W.3d at 276 (claim for destruction of evidence and
property related to grievance proceeding barred by immunity under Rule 17.09);
Burch v. State Bar ofo Tex., No. 07-19-00224-CV, 2020 Tex. App. LEXIS 1409, at *3
(Tex. App.—Amarilllo Feb. 19, 2020, pet. denied) (immunity under Rule 17.09 barred
claim that attiorneys for commission, in relation to a grievance proceeding, who
purportedly “engaged in misconduct related to a bankruptcy proceeding in which
254 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122. (emphasis added).
255 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.
256 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 5.
257 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 6.
37
[plaintiff] was involved”). Since all of Pohl’s claims are related to the grievance
proceedings, they are all barred by Rule 17.09 and summary judgment may be and
should be granted based upon Rule 17.09 alone.
B. Pohl’s claims against Kassab are barred by the jukdicial
proceedings privilege. e
“The judicial-proceedings privilege is an absolute privilege that covers any
statement made by the judge, jurors, counsel, parties or wittnesses, and attaches to
all aspects of the proceedings, including statements made in open court, pre-trial
hearings, depositions, affidavits and any of the pleeadings or other papers in the
case.” Landry's, Inc. v. Animal Legal Def. Funud, 631 S.W.3d 40, 46 (Tex. 2021)
(internal quotations omitted). “The judicial-proceedings privilege exists to facilitate
the proper administration of the jusatice system. It does so by relieving the
participants in the judicial process from fear of retaliatory lawsuits for statements
they make in connection with thee proceeding itself.” Id. at 48.
Moreover, the jufdicial-proceedings privilege attaches even to
“communications preliminary to a proposed judicial proceeding” if “the
communication has some relation to a proceeding that is actually contemplated in
good faith and uinder serious consideration by the witness or a possible party to the
proceeding.o” Id. at 48-49. “Even in the pre-suit context, however, the privilege
protects communications that are themselves preparatory to the lawsuit.”
Id. (emphasis added). The privilege protects all communications that are
“necessary to set the judicial machinery in motion.” Id. at 50 (quoting
RESTATEMENT (SECOND) OF TORTS § 586 cmt. a) (emphasis added).
38
Here, Pohl has sued Kassab in retaliation for Kassab “solicit[ing] …
clients/prospective clients to act as plaintiffs … to bring cases against Pohl for
alleged barratry and other claims.”258 Pohl admits that he is suing Kassab for
statements Kassab made to prospective clients which spawned the lkitigation and
grievance proceedings:259 C
Because Pohl’s claims against Kassab arise out of communications that Kassab
made in prospective (solicitation letters) and actual judicial proceedings (the
barratry litigatioin and grievance process), Pohl’s claims against Kassab are barred
by the judicoial proceedings privilege. See Crain v. Smith, 22 S.W.3d 58, 62-63 (Tex.
App.—Corpus Christi 2000, no pet.) (holding that statements in letter sent before
the lawsuit began were protected by the judicial-proceedings privilege).
258 Amended Petition, at ¶ 29.
259 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
39
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
proceeding.” Laub v. Pesikoff, 979 S.W.2d 686, 691 (Tex. App.—Houstkon [1st Dist.]
1998, pet. denied). Here, Pohl seeks as damages “the costs and Cexpenses of serial
litigations and serial grievances” that Kassab filed against Pohl, including
attorney’s fees for his lawyers who represented him in tihat litigation and “[a]ny
fees, any expenses [Pohl] had, hotel rooms, long-distance phone calls, copy costs,
[Pohl] intend[s] to sue Mr. Kassab for all of it.”260 Because Pohl’s alleged damages
“flow from” communications that Kassab made in the barratry litigation and
grievance proceedings, his claims are barlred regardless of label. See id. (holding
privilege applied to claims for “intentMional interference, civil conspiracy, intentional
infliction of emotional distress, negligence, and constitutional violations”); Tex. Mut.
Ins. Co. v. Ray Ferguson Interiests, Inc., No. 01-02-00807-CV, 2006 Tex. App. LEXIS
2001, at *27-28 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem.
op.) (holding that absoolute privilege applied in deceptive insurance practices claim
under Texas Insurlance Code because “although [plaintiff] did not plead defamation,
its theory of idamages was that its clients, creditors, and bonding companies
abandoned it, in part, because of the [insurer's] allegations and assertions . . . made
in the course of this judicial proceeding”). Thus, summary judgment must be
granted based upon the judicial proceedings privilege.
260 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
40
C. 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 eof his duties in
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 ist 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. 201e8). The inquiry “focuses on the
kind of conduct at issue rather than the allegedu wrongfulness of 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 ora otherwise wrongful.” Id. “Merely labeling an
attorney’s conduct ‘fraudulent’ does not and should not remove it from the scope of
client representation or render eit ‘foreign to the duties of an attorney.’” Id. at 483.
Even “criminal conduct is noft categorically excepted from the protections of attorney
civil immunity when the conduct alleged is connected with representing a client in
litigation.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d
651, 657 (Tex. 2i020); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015)
(“an attornoey’s conduct may be wrongful but still fall within the scope of client
representation”).
Although the Court previously denied Kassab summary judgment on this
defense, the Texas Supreme Court’s recent decision in Taylor v. Tolbert, 644 S.W.3d
637 (Tex. 2022) requires reconsideration. Taylor held that even “conduct prohibited
41
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.
In Taylor, the attorney was accused of violating state and kfederal laws
prohibiting wiretapping because the attorney obtained and usCed the plaintiff’s
communications in violation of the statute. Id. at 643. The plaintiff brought a
statutory claim against the attorney which permitted recoviery of civil damages. Id.;
see also TEX. CODE CRIM. PROC. § 18A.502. The a
ttorney moved for traditional
summary judgment, “arguing she is immune from liability as a matter of law
because the plaintiffs’ claims all stem from her role as an attorney in the
modification proceeding.” Id. at 644. The tlrial court agreed, but the court of appeals
reversed. Id. The Supreme Court graMnted review and reversed the court of appeals.
Id. It concluded that the attorney was, “in all respects, engaging in the office,
professional training, skill, aind authority of an attorney in the ways that she
allegedly used and disclosed the materials her client provided.” Id. at 649. “Because
[the attorney’s] conduoct falls squarely within the confines of attorney immunity, the
alleged criminalityl or wrongfulness of the conduct does not perforce preclude its
availability asi an affirmative defense.” Id. The court also held that “Texas’s wiretap
statute does not expressly repudiate the common law or the attorney-immunity
defense.” Id.
Here too, Kassab’s conduct which forms the basis of Pohl’s claims fall
squarely within the confines of attorney immunity, regardless of whether it is
42
alleged to have violated the TUTSA because that statute does not expressly
repudiate the defense.
Pohl is suing Kassab because he allegedly obtained purportedly stolen
information in violation of the TUTSA and then “solicikted [Pohl’s]
clients/prospective clients to act as plaintiffs … to bring casesC against Pohl for
alleged barratry and other claims.”261 The essence of Pohl’s claims against Kassab
are “that Kassab bought Pohl’s client list from [Precision] sio that Kassab could send
advertisements 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.—
Houston [1st Dist.] 2020, pet. denied) (characterizing Pohl’s claims against Kassab).
Pohl seeks as damages “the costs and lexpenses of serial litigations and serial
grievances” that Kassab filed againstM Pohl, including attorney’s fees for his lawyers
who represented him in that litigation and “[a]ny fees, any expenses [Pohl] had,
hotel rooms, long-distance pihone calls, copy costs, [Pohl] intend[s] to sue Mr.
Kassab for all of it.”262 Pohl has even designated Mr. Zavitsanos to testify to these
damages, and “the reoasonableness and necessity of the attorneys’ fees, costs, and
expenses incurredl by Pohl in defending against invalid grievances and stale
claims.”263 i
Moreover, in this very case, the court of appeals opined that “the alleged
purchase of Pohl[’s] client list for those clients’ contact information,
followed by the mailing of attorney advertisements to those individuals
261 Amended Petition, ¶ 29.
262 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
263 Exhibit 57, Pohl’s Second Amended Designation of Experts, at 3.
43
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 (emphasis added). Thek court opined
that, “the intended audience of [Kassab’s alleged] statemCent or conduct
were individuals with potential legal claims who Kassab sought to
represent in barratry suits against Pohl.” Id. at 579 (eimphasis added).
The acquisition of clients and filing of lawsuits are actions taken “to facilitate
the rendition of legal services.” Youngkin, 546 S.W.3d at 682; Clayton v. Oldcastle
Materials Tex., Inc., No. 09-18-00063-CV, 2019 Tex. App. LEXIS 1112, at *12, 15
(Tex. App.—Beaumont Feb. 14, 2019, nlo pet.) (applying attorney immunity to
attorney’s conduct which included M“selling his legal services to the City as a
potential client” and subsequent conduct which “occurred in the course of his
undertaking to represent” thoise clients). The fact that Kassab is alleged to have
committed the misconduct prior to any litigation is immaterial because “attorney
immunity applies too claims based on conduct outside the litigation context[.]”
Haynes & Boone, LlLP v. NFTD, LLC, 631 S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey
Hanger, 467 Si.W.3d at 485 (concluding that attorney was immune from conduct
that occurred after litigation had ended). In other words, Pohl’s characterization of
Kassab’s activities as part of a business transaction that occurred prior to litigation
does not negate attorney immunity because Kassab engaged in the conduct as part
of his ultimate provision of legal services to his client. See Haynes & Boone, 631
44
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
transaction involving the type of legal services Kassab providkes.” Kassab,
612 S.W.3d at 578 (emphasis added). C
Accordingly, Pohl’s claims against Kassab are barred by attorney immunity.
See Taylor, 644 S.W.3d at 648 (attorney could not be heldi civilly liable for conduct
which was “criminal in nature” because it was committed while discharging 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. App.—Dallas Jan. 14, 2016,
pet. denied) (mem. op.) (applying attorneyl immunity to claim that attorney engaged
in “malicious conduct with respect Mto its illegal acquisition, retention, use, and
threatened disclosure of [the plaintiff’s] proprietary and confidential information”
that “it knew to be stolen anid proprietary in furtherance of its scheme to extort,
slander, and disparage [the plaintiff]” and “refusing to return and cease use of [the
plaintiff’s] proprietaryo information”). The law of the case, as outlined by the court
of appeals in thisl matter, demonstrates that the alleged conduct for which Pohl
basis his claimis is clearly covered by the attorney immunity doctrine.
D. Pohl’s claims are barred by limitations.
A defendant moving for summary judgment on the affirmative defense of
limitations bears the burden of conclusively establishing the elements of that
defense. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018) (per
45
curiam). To do 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) “kthe allegedly
tortious act was committed and caused an injury;” or (2) “facts coCme 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.—Housiton [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). As demonstrated below, all of Pohll’s claims against Kassab are barred by
limitations. M
1. Facts relevant to limitations.
Pohl testified that he iand Precision shared an office in Gulfport, Mississippi
from 2013-2014.264 Pohl called this his “satellite law office.”265 The owners of
Precision in 2014 weroe Scott Walker, Kirk Ladner, and Steve Seymour.266
Pohl testiflied that he closed his Gulfport, Mississippi office in the summer
of 2014.267 Hei testified that he asked Precision to arrange to have his office
equipment and files sent to him in Houston, Texas.268 Pohl testified that Precision
264 Exhibit 56, December 2021 Deposition of Michael Pohl, at 7-10.
265 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6-8.
266 Exhibit 56, December 2021 Deposition of Michael Pohl, at 16.
267 Exhibit 56, December 2021 Deposition of Michael Pohl, at 11.
268 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
46
made excuses for why they could not get his property moved to Houston.269 In June
or July of 2014, Pohl “gave up” asking Precision to arrange the move and hired his
own mover to go to Gulfport and get everything that was in the office: “every pencil,
every paper, every file, every file cabinet, every icebox.”270 Pohl testikfied that the
mover was to bring the property back to Pohl in Houston, Texas.27C1 When the mover
arrived in Gulfport, he found the office almost empty, and Precision told him that
Precision removed all files and was not returning them.2i72 Pohl testified that he
contacted Precision and was told Precision was “keeping” the files.273
Pohl asserts that Kassab and other Defendants orchestrated and participated
directly in the 2014 theft of files.274 Pohl testified that Kassab and the other
Defendants “robbed my office [and] stole mly clients’ names” in 2014.275 He further
testified: M
A. That group of criminals stole about 11,000 files out of my
Mississippi office. eThey also stole my computers and hired a
third party, whoise name slips my mind right now, to hack
into my office fcomputers and steal all of my confidential
information, internal documents. And they also stole my
forms that I created for BP and other litigation, among other
things. o
Q. And lwhen you’re saying “this group of criminals,” who did
that include?
269 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
270 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
271 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
272 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6, 12-14.
273 Exhibit 56, December 2021 Deposition of Michael Pohl, at 15.
274 Amended Petition, at ¶¶ 21-24.
275 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94-97.
47
A. It would be Scott Favre, Tina Nicholson, Lance Kassab, Doug
Montague, and potentially the people that they either bribed
or coerced into doing their dirty work.276
Pohl alleges that Kassab is a co-conspirator with Nicholson to unlawfully
misappropriate his trade secrets.277 Pohl testified that “Tina Nicholskon demanded
that Scott Walker steal my files or, because he got in trouble wCith the law, Tina
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 compiuters.”278
Pohl testified that the alleged theft of trade secret information occurred in
the summer of 2014 when Kassab and his “crew” agllegedly broke into Pohl’s office in
Gulfport and hacked his computers, stole his clients’ names and information, and
then solicited his clients:
Q. Okay. And you think I'mM an unethical lawyer?
A. Yes. You stole my fileos. You robbed me. You tried to destroy my
practice. So I doen't believe you should submit any more
materials, particularly false affidavits that have been retracted
by the witnessfes who made them 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.
o …
A. If the Cquestion is did you steal my files and rob my office, the
answler is that you and your co-counsel and your crew robbed my
office, stole my clients' names, contacted my clients and told
thiem lies to initiate suits against me.
Q. nOkay. How did I steal your files, sir? Did I break into your
house?
A. You broke into my law office.
276 Exhibit 59, April 2021 Deposition of Michael Pohl, at 37-39.
277 Amended Petition, at ¶ 43.
278 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94.
48
Q. I did personally?
A. You and your crew.
Q. And when did I do that?
A. I don't know the exact date, but I believe it was in 2014k when
you robbed me. e
Q. I robbed you in 2014? 
A. Yes, sir. t
… i
Q. So I broke into your office and stole your stuff in 2014 at
your Gulfport, Mississippi office, right?
A. You and your crew.279
In this case, Pohl admitted under oath that he knew in 2014 that his trade secrets
had been misappropriated: l
Q. You knew as of the suMmmer of 2014, then, that the trade
secrets that you claim in this lawsuit were taken by
Precision Marketing. Is that correct?
A. Yes, I knew they were not being made available to me.280
Pohl also expressly testified that he knew in the summer 2014 that his files – which
he claims are the purported trade secrets – had been stolen from him:
Q. Who stole the files?
A. Wcell, originally it would have been Precision Marketing.
Q. Did you form the opinion that they had stolen the files when Mr.
UBlanton informed you that he learned that the files were not
available to be moved to Houston?
A. Well, I certainly had a suspicion, so I followed up and spoke to
somebody at Precision about it.
279 Exhibit 58, May 2018 Deposition of Michael Pohl, pp. 85-93. (emphasis added)
280 Exhibit 56, December 2021 Deposition of Michael Pohl, at 14. (emphasis added)
49
Q. And once you spoke to the person at Precision, that’s when you
formed your opinion that the files had been stolen from you. Is
that correct?
A. Yes.
Q. And that would have been sometime in the summer of 201k4?
A. Yes.281 l
Accordingly, it is undisputed that the alleged trade secret protperty was removed
from the Gulfport office no later than July 2014, that Precsision – who Pohl alleges
was part of Kassab’s “crew” – took it, and that by July 2014 Pohl was aware that
Precision had taken it in an alleged conspiracy with Kassab.
After Pohl discovered the taking of theB alleged trade secrets in the summer
2014, he took no immediate action to recoveyr it, find out what happened to it, or find
out if anyone else was involved in the taaking. Pohl testified that although he knew
the alleged conduct by Kassab occufrred 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 anythingO that was precipitous.”282
On October 8, 20p14, Precision and its owners, Scott Walker, Kirk Ladner and
Steve Seymour, filed a breach of contract lawsuit against Pohl in federal court in
Mississippi.283 cPohl’s only reaction to the lawsuit was to send Walker and Ladner a
mild email two days later asking them to return his “original documents, evidence
and keys.”284 From that point forward, Precision and its owners proceeded to
publish Pohl’s alleged proprietary information in the lawsuit. For example, in
281 Exhibit 56, December 2021 Deposition of Michael Pohl, at 18-19.
282 Exhibit 58, May 2018 Deposition of Michael Pohl, p. 93.
283 Nicholson Ex. 4, Federal Original Complaint.
284 Nicholson Ex. 5, Doc. 19-1.
50
November 2014, one month after filing the lawsuit, they published his alleged
marketing materials,285 communications and contracts between Pohl and other
lawyers,286 communications between Pohl and his clients or potential clients,287 and
Pohl’s BP client solicitation letter,288 all without any complaint fromk Pohl. Thus,
Pohl acquiesced to the publication and use of his alleged trade secrCets.
Pohl took no action to recover his allegedly stolen property nor attempt to
stop the dissemination of his alleged trade secrets: he did niot file a counterclaim for
theft, conversion, or violation of a trade secrets act, nor did 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 or (until the March 2017 confidentiality
order that was expressly not retroactive) lenter into a confidentiality agreement to
protect and keep secret the documeMnts produced during the lawsuit.289 In short,
Pohl failed to do any of the things that a person exercising reasonable diligence
regarding the theft of trade seicrets would do.
On or about May 12, 2015, Walker, Ladner and Seymour sold Precision to
Scott Favre, and ino conjunction with the sale, they transferred the allegedly
misappropriated mlaterials to Favre’s office in Kiln, Mississippi.290 On May 12, 2015,
Nicholson enteired an appearance in the Mississippi litigation as the attorney for
Precision.291
285 Nicholson Ex. 6, Doc. 19-5 and 19-6.
286 Nicholson Ex. 7, Doc. 19-3.
287 Nicholson Ex. 8, Doc. 19-7.
288 Nicholson Ex. 9, Doc. 19-10.
289 Nicholson Ex. A, Nicholson Affidavit.
290 Nicholson Ex. 10, Doc. 396-2.
291 Nicholson Ex. 11, Doc. 77.
51
The sale of Precision to Favre apparently stimulated Pohl to determine
whether Nicholson 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 letterk stated, “The
contracts do not belong to your clients.”292 Pohl’s attorney sent NCicholson 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 saidi, “As you may know, the
British Petroleum claim filing deadline is June 8, 2015. Mr. Pohl needs the
contracts to address client matters relating to the deadline.”293 Of course, this was a
lie because Pohl had access to all contact information, if not from his own home
office where contracts were sent to him, hils co-counsel who was administering all of
their claims in Houston had copies of Mall contracts and contact information.
On May 27, 2015, Nicholson emailed a letter to Pohl’s attorney, confirming
that the contracts in Precisioin’s possession were being held at the office of Scott
Favre, Precision’s new owner.294 In pertinent part, it said:
This letter respoonds to your faxed letters and addresses matters which
we discussed in our telephone conversation last Friday. Your client,
Michael Polhl, has demanded that my client, Precision Marketing
Group, LiLC, hand over the originals and copies of . . . contracts
betweeni him . . . and the BP/Deepwater Horizon claimants. . . Mr. Pohl
asserots that the documents do not belong to PMG or the other
Plaintiffs.295
292 Nicholson Ex. 12, 2015 Communications.
293 Nicholson Ex. 12, 2015 Communications.
294 Nicholson Ex. 12, 2015 Communications.
295 Nicholson Ex. 12, 2015 Communications.
52
Nicholson’s letter went on to state that “PMG will not relinquish possession of the
original contracts at this time.”296 Nicholson stated that the documents in question
were being held at the office of Scott Favre, Precision’s new owner.297 Nicholson also
mentioned that a computer containing some of the information had bkeen sent to a
forensic expert for recovery of date.298 C
Pohl swore to his lawyer’s letters being sent to Nicholson requesting return of
the materials in his interrogatory answers: i
l 299
Accordingly, at least as of May 2015, Pohl knew that Walker and Ladner (who Pohl
contends was part of Kassab’s “crew”) had transferred the alleged trade secrets to
Favre who was represented byi Nicholson (who Pohl contends are other members of
Kassab’s “crew”), and that Nicholson had refused Pohl’s demand for return of the
information. More thaon 3 years later, on August 28, 2018, Pohl filed this lawsuit. As
explained below,a Plohl’s TUTSA claim against Kassab, along with his conversion and
conspiracy clfaiim, are barred by the statute of limitations, and thus, summary
judgment must be granted.
296 Nicholson Ex. 12, 2015 Communications.
297 Nicholson Ex. 12, 2015 Communications.
298 Nicholson Ex. 12, 2015 Communications.
299 Nicholson Ex. 13, Pohl’s Interrogatory Answers at No. 4.
53
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 trade secrets not later than three years after the
misappropriation is discovered or by the exercise of reasonable deiligence should
have been discovered.” TEX. CIV. PRAC. & REM. CODE § 16.010(a).
“Misappropriation”
means, among other definitions, the acquisition of a trade tsecret of another by a
person who knows or has reason to know that the trade secret was acquired by
improper means. Id. at § 134A.002(3). “Improper emeans” includes theft. Id. at §
134A.002(2). “A misappropriation of trade securets that continues over time is a
single cause of action and the limitations period … begins running without regard
to whether the misappropriation is a sinagle or continuing act.” Id. at § 16.010(b).
Accordingly, the first act of misappropriation is when the statute of
limitation accrues for misapproperiation of a trade secret. See Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 45f1 (5th Cir. 2007) (recognizing the TUTSA “explicitly
precludes treating trade secret misappropriation as a continuing tort.”); Guajardo v.
Freddie Records, Inc., No. CV H-10-02024, 2014 WL 12603179, at *2 (S.D. Tex. May
15, 2014) (“[T]hie Texas Legislature decided not to make this type of claim
a continuinog 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, as viewed under Texas law, occurs at the
moment of misappropriation.” Bianco v. Globus Med., Inc., 53 F. Supp. 3d 929, 938
(E.D. Tex. 2014)
54
In this case, the limitation period on the TUTSA claim began to run in
summer 2014, when Precision and allegedly Kassab, to use Pohl’s own word, “stole”
the trade secrets.300 Pohl testified that he had actual knowledge of the
misappropriation of his claimed property no later than July 2014.301k Accordingly,
the misappropriation occurred more than four years before PohCl filed this lawsuit
in August 2018.
This is not a case where the date of the misappropriiation 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
a roundabout way at some later point in time when a similar product hits the
market. In this case, Precision physicallyl removed all of the documents from the
office it shared with Pohl. Pohl admitMs that he unequivocally discovered the alleged
theft of the trade secrets no later than July 2014. And what’s more, Pohl testified,
that Kassab and his “crew” piarticipated in the theft of his trade secrets in 2014.
Thus, based upon Pohl’s own testimony, Pohl’s TUTSA claim against Kassab
expired in July 2017, oover a year before Pohl filed this lawsuit.
The statutolry language is very specific as to when the statute begins to run.
It says that thie 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 the theft of his trade secrets no later than
July 2014. Accordingly, the statute began to run on the misappropriation in July
300 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
301 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
55
2014, meaning Pohl’s TUTSA claim was barred by the time he filed suit in August
2018.
Alternatively, even if the statute began to run in May 2015, Pohl’s claim is
still barred. The May 2015 letters prove that Pohl knew in May 2015k that Walker,
Ladner and Seymour had transferred the disputed documents aCnd information to
Favre and Nicholson.302 Nicholson’s letter of May 27, 2015, informed Pohl that
Favre had the hard copies of the trade secret documentsi 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.303 Hence, Pohl “discovered” Nicholson’s
alleged “misappropriation” when he received her May 2015 letter confirming her
refusal to give them to Pohl, despite his alssertion of ownership. However, Pohl did
not file this lawsuit until August 28M, 2018, around three months after the latest
possible limitation period expired on May 27, 2018.
It is also important to iunderstand that the alleged subsequent use, sale or
purchase of the trade secrets did not restart the clock on the TUTSA limitations
period. The fact that,o after the trade secrets were purportedly misappropriated in
2014, or alternativlely 2015, they were allegedly subsequently used or transferred
did not restarit 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 (Tex. 2019) is instructive on this point. In
Agar, the plaintiff initially sued more than a dozen defendants in April 2008 in
302 Nicholson Ex. 12, 2015 Communications.
303 Nicholson Ex. 12, 2015 Communications.
56
connection with the defendants’ alleged misappropriation of the plaintiff’s
proprietary information and use 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 and sold some of the trade secrets as defendants tko the existing
lawsuit in November 2011 — more than three years after plaintiffC initially filed suit
for the misappropriation. Id. The plaintiff argued that his claim against the co-
conspirators did not accrue until July 2009 because that is iwhen 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
reaping profit from each sale. While it maly be said that the injury continues with
each sale and receipt of a royalty, theM 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 i281, 290 (Tex. App.–Amarillo 2005, pet. denied)).
Pohl “discovered” “the misappropriation” in the summer 2014, or
alternatively when heo exchanged letters with Nicholson in May and June 2015. If
anyone subsequenltly disclosed the trade secrets, it did not give rise to a new cause
of action. Thei express language of the TUTSA statute of limitation expressly
precludes “continuing tort” theories. TEX. CIV. PRAC. & REM. CODE § 16.010(a).
Accordingly, Pohl’s TUTSA claim against Kassab is barred by limitations and
summary judgment must be granted.
57
3. Pohl’s conversion and conspiracy claims are barred
by limitations.
Pohl’s common-law claims against Kassab for conversion and civil conspiracy
are also barred by the statute of limitations.
A person must bring suit for the conversion of personal proeperty “not later
than two years after the day the cause of action accrues.” TEX.
CIV. PRAC. & REM.
CODE § 16.003(a). Generally, the limitations period for a co
ntversion claim begins to
run at the time 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.—Dallaes 2012, no pet.). As established
above, whether his claim accrued in 2014 or 201u5, more than two years had passed
by the time Pohl filed suit in August 2018. Therefore, his conversation claim is
barred. a
Pohl’s conspiracy claim is also barred by limitations. The Texas Supreme
Court has established that a claeim for civil conspiracy accrues when the underlying
tort accrues, and the limitatfion period for the conspiracy claim begins to run at the
same time as that for the underlying tort. Agar Corp., Inc. v. Electro Circuits Int’l,
LLC, 580 S.W.3d 136, 138 (Tex. 2019). “Understanding that civil conspiracy is a
theory of derivaitive liability, it follows that a civil conspiracy claim should share
both accruoal and the limitations period of the underlying 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, and thus,
summary judgment must be granted.
58
E. Pohl’s claims are conclusively negated.
1. Pohl’s TUTSA claim is conclusively negated
because his alleged trade secrets were not actually
kept secret.
Kassab adopts the argument made and evidence identified on pkages 45-49 of
the Nicholson Motion as if set forth verbatim herein. See TEX. RC. CIV. P. 58. That
argument and evidence is equally applicable to Kassab and establishes that, as a
matter of law, Pohl did not take any measures, let alonei reasonable measures, to
keep his alleged information or client lists secret. Accordingly, Poh’s TUTSA claim
against Kassab fails as a matter of law, especially regarding the four barratry
lawsuits.
Moreover, Mary Frances Arnold, Polhl’s paralegal for approximately 35 years
testified that Pohl knew that a copy oMf all of his alleged contracts which he contends
are his trade secrets were kept by Walker and PMG in a storage shed.304 Arnold
also testified that Pohl, after ilearning that these contracts were in a storage shed,
never told Walker to secure the contracts better and never questioned whether the
storage shed was secoure, waterproof, air conditioned, had cameras, was locked or
fenced, or even inqluired who had access to the storage shed containing all of Pohl’s
alleged trade isecrets.305 Arnold also testified that she kept copies of Pohl’s client
files at her personal residence for many years.306
304 Exhibit 61-2022 Arnold Deposition, pp. 14, 45.
305 Exhibit 61-2022 Arnold Deposition, pp. 45-47, 53-54
306 Exhibit 61-2022 Arnold Deposition, pp. 112
59
Arnold further testified that 10,000 to 11,000 contracts sent to Pohl by PMG
were rejected and either sent back to Walker and PMG, thrown out or shredded.307
Arnold testified that the rejected contracts had no value.308 Arnold also testified
that she did not believe any of this material to be a trade secret.309 k
Arnold testified that PMG would send copies of contractsC to Pohl and then
Pohl would send those contracts to various other lawyers, like Jimmy Williamson,
Thomas & Wan and a Mr. Seerden.310 Arnold also testifiedi that a portal was set up
for BP claims that were not rejected and that these lawyers all had passwords for
the portal and see whatever client information was filed through them.311 Arnold
also testified that this information was sent to outside third parties at BP through
the portal.312 l
Furthermore, Arnold testifieMd that she never saw any confidentiality
agreement or non-disclosure agreement with any of these lawyers.313 She also
testified that she shared clienit information with Walker and PMG when she knew
that Walker was not Pohl’s employee.314 Arnold testified that never reprimanded
her for sharing clienot information with Maria Jeanfreau, Kirk Ladner, Jimmy
Williamson, Cyndil Rusnak, Mr. Wan, Mr, Thomas, Mr. Seerden or any of the dozens
of folks that wiorked for PMG and listed on its 1099’s.315
307 Exhibit 61-2022 Arnold Deposition, pp. 34-37, 39, 56, 60-61
308 Exhibit 61-2022 Arnold Deposition, pp. 34-37, 39, 41
309 Exhibit 61-2022 Arnold Deposition, pp. 47-48
310 Exhibit 61-2022 Arnold Deposition, pp. 50-51
311 Exhibit 61-2022 Arnold Deposition, pp. 51-52, 60, 119, 121
312 Exhibit 61-2022 Arnold Deposition, pp. 60
313 Exhibit 61-2022 Arnold Deposition, pp. 86-90, 104, 156-157, 174-175
314 Exhibit 61-2022 Arnold Deposition, pp. 173-174
315 Exhibit 61-2022 Arnold Deposition, pp. 173-175
60
Ladner, Seymour and Walker also testified that none of what Pohl now
alleges as his trade secrets was kept confidential. Ladner testified that he had no
confidentiality or non-disclosure agreements regarding client files and simply kept
in a file cabinet.316 Steve Seymour testified that Pohl never told hikm that client
lists were confidential.317 Seymour testified that PMG obtained clCients, created lists
of clients and then decided whether PMG wanted to refer the clients to Pohl or
Williamson.318 Moreover, Seymour testified that he kept icontact lists of all clients
at his home and that Pohl never asked for them.319 Seymour testified that he and
PMG created the lists of clients and that the lists contained all the names, address
and phone numbers of all the clients they referred to Pohl.320 Seymour also testified
that all of the client lists PMG created bellonged to PMG and that he simply threw
them away after the Mississippi LitiMgation ended because they were of no value.321
Walker testified that all of PMG, Helping Hands and GM Verification Team’s work
product was created by himi, Seymour and Ladner and that the work product
contained lists of all these entities clients contact information.322 Walker further
testified that he ando PMG would refer these clients to Pohl, other lawyers and
insurance adjustelrs, but the contact information was PMG’s work product.323
316 Exhibit 62-2022 Ladner Deposition, pp. 36, 41-45, 265
317 Exhibit 63-2022 Seymour Deposition, pp. 148-149
318 Exhibit 63-2022 Seymour Deposition, pp. 97-103, 105
319 Exhibit 63-2022 Seymour Deposition, pp. 142-143
320 Exhibit 63-2022 Seymour Deposition, pp. 97-99
321 Exhibit 63-2022 Seymour Deposition, pp. 142-149, 229-231
322 Exhibit 64-2022 Walker Deposition, pp. 66-70, 268-269
323 Exhibit 64-2022 Walker Deposition, pp. 13-14, 67-70, 148-149, 268-269
61
Moreover, Walker testified that he, Ladner and Seymour sold all of their and PMG’s
work product, including all the client lists to Scott Favre.324
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 firest show that it
owns a trade secret in the information it seeks to protect.” Title Source, Inc. v.
HouseCanary, Inc., 612 S.W.3d 517, 527 (Tex. App.—Satn 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. eApp.—Tyler 2018, no pet.). The
claimant must also demonstrate that it is “the puerson or entity in whom or in which
rightful, legal, or equitable title to, or the right to enforce rights in, the trade secret
is reposed.” TEX. CIV. PRAC. & REM. COaDE § 134A.002(3-a). Similarly, “[a] plaintiff
who has not shown title or some other right to possession of the property allegedly
converted may not maintain a esuit in conversion.” Catania v. Garage de Le Paix,
Inc., 542 S.W.2d 239, 242 f(Tex. Civ. App.—Tyler 1976, writ ref'd n.r.e.). Pohl’s
TUTSA and conversion claims against Kassab fail because, as a matter of law, he is
not the owner of the purportedly stolen property that he alleges is his trade secrets.
Pohl allegies that his trade secrets that were allegedly misappropriated are
“attorney–colient fee agreements with clients/prospective clients, compilations of
clients, other confidential communications between the clients/prospective clients
and Pohl, specialized legal forms …, … proprietary administrative client forms, fee-
agreement forms …, internal emails, propriety marketing information … and other
324 Exhibit 64-2022 Walker Deposition, pp. 13-14, 70-73, 111-112, 137-139, 228-231, 241-244, 248-254
62
work product relating to claims of Pohl’s clients and prospective clients.”325 But this
information makes 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 atktorney is an
agent of his client and implicitly that a client owns the contenCts of his or her
file.” In re McCann, 422 S.W.3d 701, 704-705 (Tex. Crim. App. 2013) (citing
Thomson v. Findlater Hardware Co., 205 S.W. 831, 832i (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 disciplinary rules, an
attorney does not own and is therefore reqluired to promptly surrender “papers and
property to which the client is entitMled.” TEX. DISC. R. PROF'L COND. 1.15. Texas
courts have interpreted the word “property” to mean “the client’s papers and other
documents that the lawyer haid in his file.” TEX. COMM. 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 wordso, all documents and information in the client file is property of
the client and not lPohl. See George, 28 S.W.3d at 516.
Moreoveir, work product and attorney-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 communications 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 issue of the ownership of files generated by a law firm during its
325 Amended Petition, at ¶ 20.
63
representation of a client and determining that the entire contents of the law firm’s
files concerning 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 memorandak). Therefore,
Pohl does not own the “internal emails … and other work productC relating to claims
of Pohl’s clients and prospective clients” that he claims is a trade secret.
While client lists can be considered a trade secreti, the lists that Precision
solicited to hire Pohl are owned by Precision, not Pohl.326 Scott Favre, the owner of
Precision, testified that Precision “solicited many of the marketing contacts
(individuals and businesses) on these lists for representation” by Pohl.327 Favre
testified that the “marketing lists containl the names of thousands of persons who
eventually became [Pohl’s] formerM clients, and/or whom [Pohl] solicited for
representation.”328 Favre made clear that the very information that Pohl claims are
the trade secretes allegedly cionverted by Kassab “were and are solely the work
product and property of Precision, developed during the normal course of its
marketing business.”3o29
Because Pohll does not own the purported trade secrets or property that he
alleges had beien converted, his TUTSA 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 Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631,
326 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
327 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
328 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
329 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 12 (emphasis added).
64
635 (Tex. 1997) (to prevail on a civil conspiracy claim, the plaintiff must show that
the defendant was liable for some underlying tort).
Moreover, all of the documents that Pohl alleges Kassab stole or converted
from him, are not Pohl’s, never belonged to Pohl and Pohl has nkever been in
possession of the documents. As stated above, Walker, LadnerC and Seymour all
testified that all of their marketing assets, including client contact information and
lists were created by them and their marketing companiesi and belonged to them.330
They testified that all of these assets and documents were in their possession and
then sold to Favre.331 Moreover, Favre testified that he purchased all of Walker,
Ladner, Seymour and PMG’s marketing assets, including all of their documents,
client lists and client contact informatilon.332 Furthermore, Favre testified in
Federal Court that he freely and volMuntarily gave his client contact information to
Tina Nicholson, Kassab and Montague to do whatever she or they wanted to do with
them.333 Favre even testified ithat Pohl’s counsel, Billy Shepherd told him on three
different occasions that he and Pohl did not care what he did with the contact
information.334 o
330 Exhibit 64-o2022 Walker Deposition, pp. 13-14, 67-70, 148-149, 268-269; Exhibit 63-2022 Seymour
Deposition, npp. 97-99, 142-149, 229-231; Exhibit 62-2022 Ladner Deposition, pp. 41-45, 129.
331 ExhibiUt 64-2022 Walker Deposition, pp. 13-14, 70-73, 111-112, 137-139, 228-231, 241-244, 248-
254; Exhibit 63-2022 Seymour Deposition, pp. 19-21, 22, 24-27, 29-30; Exhibit 62-2022 Ladner
Deposition, pp. 22, 44-45, 51, 53, 71-72, 104-105, 109-111, 114-116, 118, 129, 152, 153, 155-156, 160,
166-167, 181-183, 186-190.
332 Exhibit 64-2022 Walker Deposition, pp. 13-14, 70-73, 111-112, 137-139, 228-231, 241-244, 248-
254; Exhibit 63-2022 Seymour Deposition, pp. 19-21, 22, 24-27, 29-30; Exhibit 62-2022 Ladner
Deposition, pp. 22, 44-45, 51, 53, 71-72, 104-105, 109-111, 114-116, 118, 129, 152, 153, 155-156, 160,
166-167, 181-183, 186-190.
333 Exhibit 65-October 25, 2017 Testimony of Scott Favre, pp. 24-25, 91-93.
334 Exhibit 65-October 25, 2017 Testimony of Scott Favre, pp. 91-93.
65
Accordingly, Kassab never received anything that belonged to Pohl. All
documents Kassab obtained were created by Walker, Ladner, Seymour and PMG.
Walker, Ladner, Seymour sold PMG, along with all its assets, including client lists,
contact information and contracts to Favre and Favre freely and volkuntarily gave
some of the documents to Nicholson, Kassab and Montague. TherCefore, Kassab was
never and has never been in possession of any documents belonging to Pohl and
thus, Kassab is entitled to judgment as a matter of law. i
F. Pohl’s illegal acts (barratry and unauthorized practice of
law) precludes any form of reecovery against the
whistleblowers because his acts are inexorably
intertwined with his crimes. u
Pohl committed barratry and wants his whistleblowers to pay for his barratry
defense costs. But the well-establisheda and common-sense unlawful acts doctrine
precludes any recovery for Pohl’s crimes. Pohl violated the Texas laws and rules
governing lawyers by committeing barratry and practicing in other jurisdictions
without a license, sharing afn office and fees with non-lawyers, and he failed to
protect confidential client information in the process. Pohl also committed the
unauthorized practice of law in multiple states, including Louisiana, Alabama,
Florida, and Miississippi where he maintained an unauthorized law office. All of
Pohl’s claimos for recovery are inextricably intertwined with his violations of the
laws of Texas and other jurisdictions. According, his claims are barred by their
illegality.
66
1. The Unlawful Acts Doctrine.
More than a century ago, Texas developed the Unlawful Acts Rule, which
provides:
no action will lie to recover a claim for damages, if to establishk it the
plaintiff requires aid from an illegal transaction, or is uender the
necessity of showing or in any manner depending upon an iCllegal act to
which he is a party. 
Gulf, C. & S. F. RY. Co. v. Johnson, 621, 9 S.W. 602, 602-0t3 (1888). Courts have
simplified this analysis to whether the claim or damages are “inextricably
intertwined” with the illegal act or whether the eillegal act “contributed to the
injury.” McNally v. McNally, No. 02-18-00142-CuV, 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 inteartwined language); Andrew Shebay & Co.,
P.L.L.C. v. Bishop, 429 S.W.3d 644, 648–49 (Tex. App.—Houston [1st Dist.] 2013,
pet. denied). The purpose of theis rule is to deter unlawful acts by making certain
“that the person should notf even entertain the hope of indemnity for the offense
committed.” Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441, 450 (Tex.
App.—Houston [1st Dist.] 1993, no writ) (internal quotations omitted). The rule can
be applied even iif one or more defendants have also committed an unlawful act. Id.
at 450-451 o(denying recovery to plaintiff who sued his attorney for malpractice
claiming he signed a false affidavit on the advice of his attorney who knew the
affidavit was unlawful).
67
2. Pohl knew his acts were illegal.
Pohl is well aware that 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 himself explains in his Motion to Dismiss Precisiokn’s Amended
Complaint: C
The gist of Precision’s claims, as plead in the Amenderdi Complaint, is
that Walker/Seymour/Ladner agreed to accept or asccepted money to
improperly solicit BP clients for the alleged “PDohl/Williamson joint
venture” and automobile accident clients for the salleged “Pohl/Ammons
joint venture.” s
Neither Walker/Seymour/Ladner nor Precirsion, as their assignee, can
recover from Pohl under any cause of acBtion. 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 yto improperly solicit clients for a
lawyer; (2) under Mississippi law, iit 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 eqfuity) for illegal conduct or conduct that is
violative of public policy.335
And as Pohl himself further fargued, he should be judicially estopped from arguing
against this position nowy. To allow him to do so, as he says, “would allow [him] to
‘play fast and loose with the Court,’ which, in turn, would negatively impact the
reputation of thea judicial system.”336
The Mfississippi Litigation court agreed that illegality would apply to law
firms beUcause Mississippi laws “make it illegal to accept or agree to accept money to
commence or further prosecute a judicial action.”337 Additionally, the court went
onto explain that the Mississippi Rules of Professional conduct 5.4(a), 7.2(i), 7.3(a),
335 Nicholson Ex. 23, Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 192 ¶ 6.
336 Nicholson Ex. 23, Ex. 23: Doc. 192 ¶ 5
337 Nicholson Ex. 25, Order on Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 252 at 5.
68
and 8.4(a) preclude attorneys from entering into fee-splitting arrangements with
non-lawyers. Precision could not violate attorney misconduct rules “as they are
neither lawyers nor a law firm. The only ‘immoral or illegal act,’ then, would have
been committed by [Pohl].”338 Pohl’s illegal acts precluded him kand his co-
conspirators from asserting a defense of illegality because Cof his unlawful
conduct.339
Walker recently testified that Pohl paid him and otihers to solicit clients for
him in the form of an amount per contract that he and PMG were able to refer to
him.340 In fact, Walker called the money that Pohl paid PMG “barratry money.”341
Ladner recently testified that Pohl financed and paid bonuses of about 2,500 per
case that they signed up and referred to lPohl.342 Ladner also testified that Pohl
agreed to pay him, Walker and SeymMour a percentage of Pohl’s attorney’s fees from
each case.343 Seymour recently testified the same way, he stated that he and others
at PMG would do “cold callingi” on business to bring BP claims and that Pohl paid
them to do it.344 Even Mary Arnold, Pohl’s paralegal of 35 years admitted that Pohl
paid PMG a percentagoe of his fees for cases PMG referred to him.345 And, of course,
it is undisputed thlat Walker, Ladner and Seymour are not lawyers.
338 Nicholson Ex. 25, Doc. 252 at 6.
339 Nicholson Ex. 25, Doc. 252 at 6.
340 Exhibit 64-2022 Walker Deposition, pp. 174, 223-224, 228-231
341 Exhibit 64-2022 Walker Deposition, pp. 223-224
342 Exhibit 62-2022 Ladner Deposition, pp. 74-77, 78-79, 82-85, 96-99, 213-219.
343 Exhibit 62-2022 Ladner Deposition, pp. 74-77, 78-79, 82-85.
344 Exhibit 63-2022 Seymour Deposition, pp. 93, 82-91
345 Exhibit 61-2022 Arnold Deposition, pp. 66-71, 74-76, 108-111
69
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.
70
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 Tuirley, 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
71
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.
A person cannot “receive trade secret protection for informkation about
ongoing illegal activities.” Alderson v. United States, 718 F. SupCp. 2d 1186, 1200
(C.D. Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012) (construing the Uniform Trade
Secrets Act and rejecting a claim of trade secret priotection for fraudulent
accounting practices in connection with Medicare frau
d); see also TEX. CIV. PRAC. &
REM. CODE §134A..008 (The Texas Uniform Trade Secrets Act “shall be applied and
construed to effectuate its general purpose to make uniform the law . . . among the
states enacting it.”). “[T]here simply canlnot be any trade secret about ongoing
illegality.” Alderson v. United StatMes, 718 F. Supp. 2d at 1200. “Notably, this
conclusion is consistent with the underlying justifications of trade secrets law,
which include ‘[t]he maintenaince of standards of commercial ethics.”’ Id. (quoting
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481–482 (1974)). ‘“Commercial
ethics’ are not maintaoined if businesses are able to conceal illegality.’” Id.
The existenlce of a privilege to disclose another's trade secret depends upon
the circumstanices of the particular case, including the nature of the information,
the purpose of the disclosure, and the means by which the actor acquired the
information. A privilege is likely to be recognized, for example, in connection with
the disclosure of information that is relevant to public health or safety, or to the
commission of a crime or tort, or to other matters of substantial public concern.
72
Merckle GmbH v. Johnson & Johnson, 961 F. Supp. 721, 733 (D.N.J. 1997);
Restatement (Third) of Unfair Competition § 40, cmt. c (1995). The Reporters’ Notes
to Section 40 indicate that “the policies underlying the privilege are similar to those
supporting the numerous state and federal 'whistleblower' statutes kthat prohibit
retaliatory personnel actions by employers against employeCes who disclose
violations to public officials.” Merckle GmbH, 961 F. Supp. at 733 quoting
Restatement (Third) of Unfair Competition § 40, Reporters’ iNotes, cmt. c.
Thus, Kassab was privileged to disclose the illegal acts of Pohl even if to do so
was to disclose his alleged trade secrets. Accordingly, Pohl cannot recover against
anyone for anything because be acquired his client files and purportedly
confidential and protected information thrlough illegal solicitation and unauthorized
practice of law. Thus, summary judgMment must be granted.
5. Pohl is precluded from claiming protection over
informatione he obtained through the unauthorized
practice oif law.
Moreover, Texas courts have consistently applied the Unlawful Acts Rule to
preclude recovery byo one who unlawfully practices a profession or occupation
without a requiredl license, even if the illegal practice was not the direct cause of the
injury. Rule 5.i05 of the Texas Rules of Professional Conduct makes it unlawful for a
Texas lawyer to commit the unauthorized 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 COND. 5.05. Consequently, this Court should preclude
recovery for any claim arising from his unlawful practice in other jurisdictions.
73
For instance, the Dallas Court of Appeals refused to permit a car dealership
to recover from a sales agent that fraudulently withheld money relating to the sale
of cars because the dealership did not have the proper county license to sell cars:
Appellants argue allowing the Credit Union to prevail on the illkegality
defense allows it to walk away with a windfall. Although thies may be
true under these facts, to hold otherwise would allow iCndividuals
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 thatt the rule applies
and bars appellants’ claims arising in tort biecause they are
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 appliled to regulated professions. The Supreme
Court of Texas refused to permit an eMngineer to recover a fee where he had failed to
pay the renewal fee for his license and was, therefore, practicing engineering
without a current license anid in violation of the Texas Occupational Code. The
Court noted that the requirement of proper licensure for engineers was to
“safeguard life, healtho and property.” M. M. M., Inc., v. Mitchell, 265 S.W.2d 584,
585–86 (1954). l
Similarliy, the Fort Worth Court of 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 Court stated that to permit recovery was to undermine
the purpose of licensure, which was “to safeguard life, health, property and the
public welfare, and to protect the public against the irresponsible practice of the
74
profession of architecture.” Farha v. Elam, 385 S.W.2d 692, 695 (Tex. Civ. App.—
Fort Worth 1964, writ ref’d n.r.e.).
As member of Texas Bar, Pohl is subject to the requirements imposed by the
Texas Rules of Professional Conduct. Rule 5.05 prohibits Texas atktorneys from
committing the unauthorized practice of law in other jurisdictionsC:
Rule 5.05. Unauthorized Practice of Law
A lawyer shall not: i
(a) practice law in a jurisdiction where doing so violates the regulation
of the legal profession in that jurisdiction; or e
(b) assist a person who is not a member ouf the bar in the performance
of activity that constitutes the unauthorized practice of law.
TEX. DISC. R. PROF’L COND. 5.05. The lcomment to the Rule explains, “Courts
generally have prohibited the unautMhorized practice of law because of a perceived
need to protect individuals and the public from the mistakes of the untrained and
the schemes of the unscrupuilous, who are not subject to the judicially imposed
disciplinary standards of competence, responsibility and accountability. . . Limiting
the practice of law too members of the bar protects the public against rendition of
legal services by ulnqualified persons.” Id. at cmt. 1.
By his oiwn admission, Pohl has never been licensed to practice law in any
state except Texas and Colorado.346 Yet, Pohl solicited and signed up auto accident
clients in Mississippi,347 Louisiana,348 Missouri,349 and Arkansas.350 Santana
346 Nicholson Ex. 31, Pohl Aug 2016 Depo at 8.
347 Exhibit 16, Declaration of Mae Berry; Exhibit 18, Declaration of Arthur Speck.
348 Exhibit 19, Declaration of Alphonse Bethley; Exhibit 29, Declaration of Mark Cheatham, Sr.
349 Exhibit 22, Declaration of Heraclite Bikumbu.
75
testified that she solicited BP clients for Pohl all across the Gulf Coast, including
Florida, Louisiana, and Mississippi.351 Further, Pohl assisted Walker, Ladner, and
the other runners in engaging in the unauthorized practice of law through soliciting
and signing up clients in those jurisdictions. In doing so, Pohl has violkated the laws
regulating Texas lawyers. Accordingly, Pohl cannot recover any Cfee related to his
unauthorized practice of law states in Louisiana, Alabama, Florida, and Mississippi
where he maintained an unauthorized law office. i
Pohl alleges that the Defendants “stole” his documents and information from
his “satellite law office” in Mississippi in 2014. In Mississippi, it is a misdemeanor
for a person to practice law without a license. The Mississippi Supreme Court has
established that “the ‘practice of law’ has lbeen defined to be as little as advising a
person of his legal rights.” In re WilliMamson, 838 So.2d 226, 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 clieints and the investigation of a potential client’s claim.
Forbes v. St. Martin, 145 So.3d 1184 (Miss. App. 2013).
Pohl’s admittedo solicitation of Mississippi clients and his admitted visits to
Mississippi to confler with actual and potential clients constituted the unauthorized
practice of lawi in Mississippi. Pohl’s operation of a “law office” in Mississippi, and
even its very existence, violated Mississippi law. Pohl admitted that he was not
admitted to practice law in Mississippi and the law office was not associated with
350 Exhibit 35, Declaration of Lacy Reese.
351 Exhibit 6, September 26, 2016 Affidavit; Exhibit 8, Santana Depositions.
76
any Mississippi lawyer.352 Further, Pohl violated the law by sharing his office with
non-lawyers. Pohl admitted that he unlawfully shared his office space, telephones
and computers with a non-lawyer company, Precision, in violation of the Mississippi
Rules of Professional Conduct.353 In addition to his practice of law in thke Mississippi
office and his meetings with potential and actual Mississippi cliCents, Pohl admits
that, in 2012-2014, he spent the majority of his time practicing law at his
Mississippi “law office.”354 i
Further, Pohl assisted Walker, Ladner and the other runners in engaging in
the unauthorized practice of law in Mississippi by paying them for soliciting and
signing up clients on his behalf. Pohl admits that he gave Walker and Ladner
advertising brochures for them to distributle as widely as possible in Mississippi and
other states. He admits that he gaveM Walker and Ladner blank contracts that they
were to use to sign up clients for him.
Walker, Ladner and thie other runners illegally solicited on Pohl’s behalf all
of the Mississippians listed in the Gandy and Brumfield Petitions.355 Of the 133
plaintiffs in the Ganody lawsuit, 103 of them were Mississippians.356 Of the 272
Brumfield plaintiflfs, 153 were Mississippians.
Those Pietitions list people whom Pohl illegally solicited in Mississippi, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of law in Mississippi, Pohl committed that
352 See Nicholson Ex. 2, Pohl May 2018 Depo 112:19-13:10.
353 Nicholson Ex. 1, Pohl Dec 2021 Depo at 16:15-21.
354 Exhibit 60, Sept. 17 2018 Deposition of Michael Pohl, at 292-293.
355 Nicholson Ex. 29, Brumfield Petition and Nicholson Ex. 30, Gandy Petition.
356 Nicholson Ex. 30, Gandy Petition at 2-6.
77
crime, or assisted the runners in committing it, as to every one of the Mississippi
plaintiffs in those two Petitions.
Pohl also committed the unauthorized practice of law in regard to Mae Berry
and Lisa and Arthur Speck, former clients who subsequently sued Pohkl for illegally
soliciting them in Mississippi.357 Pohl sent a runner, Ken TalleyC, to each of their
homes to solicit them as clients for Pohl regarding their personal injury claims.
Talley solicited these people for Pohl and induced them ito sign a Pohl attorney-
client contract.
Pohl committed a misdemeanor and violated other Mississippi laws by
engaging in the unauthorized practice of law in Mississippi while soliciting these
clients. Since all of the “trade secret” inlformation regarding Mississippians and
others was gathered during Pohl’s illMegal solicitation activities, he cannot show his
ownership of the information without referencing his illegal activities. Pohl cannot
show that documents at his Miississippi “law office” were misappropriated without
showing that he operated an illegal law office in Mississippi. Consequently, the
Unlawful Acts Rule oprecludes Pohl from recovering in this court for the alleged
misappropriation olf “trade secrets” relating to Mississippians, or any others.
In Louisiiana, it is a felony for a person or any entity not licensed to practice
law in Louisiana to engage in 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 or in any way suggesting that the person is entitled to practice
law; or advertise the existence of a “law office of any kind.” LA Rev. Stat. 37:213.
357 Nicholson Ex. 32, Berry Petition at 9-12.
78
Further, it is against 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 Pohkl’s behalf all
of the Louisianans listed in the Gandy and Brumfield PetitCions. Of the 133
plaintiffs in the Gandy lawsuit, 7 of them were Louisianans.358 Of the 272
Brumfield plaintiffs, 54 were Louisianans.359 i
Those Petitions list people whom Pohl illegally solicited in Louisiana, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of law in Louisiana, Pohl committed that
crime, or assisted the runners in commitlting it, as to every one of the Louisiana
plaintiffs in those two Petitions. M
In addition, Pohl committed the unauthorized practice of law in Louisiana in
relation to Mark Cheatham, iMark Cheatham, Jr. and Luella Miller, Louisianans
who filed the Cheatham lawsuit against Pohl. As demonstrated above, Pohl sent
runner Ken Talley too solicit them in Louisiana, which means he assisted Talley in
engaging in the unlauthorized practice of law in Louisiana. Pohl personally traveled
to Louisiana ito solicit and give legal advice to the Cheathams on at least two
occasions.
Pohl also committed the unauthorized practice of law in regard to Sandra
Johnson and Alphonse Bethley, Louisiana residents who filed the Gandy lawsuit
358 Nicholson Ex. 30, Gandy Petition at 2-9.
359 Nicholson Ex. 29, Brumfield Petition at 2-6.
79
against Pohl. Pohl sent runner Kirk Ladner to their home in Louisiana, where he
solicited them to 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. k
Pohl committed a misdemeanor and violated other LCouisiana laws by
engaging in the unauthorized practice of law in Louisiana while soliciting these
clients. Since all of the alleged “trade secret” informatioin regarding Louisianans
was gathered during Pohl’s illegal solicitation activities, he cannot show his
ownership of the information without referencing his illegal activities.
Consequently, the Unlawful Acts Rule precludes Pohl from recovering in this court
for the alleged misappropriation of “trade slecrets” relating to Louisianans.
It is a misdemeanor in AlabaMma 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 unaiuthorized practice of law, which includes soliciting,
interviewing and signing up clients. Davis v. Alabama State Bar, 676 So.2d 306
(Ala. 1996). o
Walker, Ladlner and the other runners illegally solicited on Pohl’s behalf all
of the Alabamiians listed in the Gandy and Brumfield Petitions. Of the 133 plaintiffs
in the Gandy lawsuit, 21 of them were Alabamians.360 Of the 272 Brumfield
plaintiffs, 39 were Alabamians.361
360 Nicholson Ex. 30, Gandy Petition at 2-9.
361 Nicholson Ex. 29, Brumfield Petition at 2-6.
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Those Petitions list people whom Pohl illegally solicited in Alabama, either
directly or through 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 kthe Alabama
plaintiffs in those two Petitions. C
The unauthorized practice of law in Florida is a felony. Fla. Stat. 454.23.
The practice of law includes soliciting and interviewing cliients. 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.
Walker, Ladner and the other runners illegally solicited on Pohl’s behalf all
of the Floridians listed in the Gandy and lBrumfield Petitions. Of the 133 plaintiffs
in the Gandy lawsuit, 3 of them wereM Floridians.362 Of the 272 Brumfield plaintiffs,
22 were Floridians.363
Those Petitions list peiople whom Pohl illegally solicited in Florida, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unautohorized practice of law in Florida, Pohl committed that crime,
or assisted the runlners in committing it, as to every one of the Florida plaintiffs in
those two Petiitions.
362 Nicholson Ex. 30, Gandy Petition at 2-9.
363 Nicholson Ex. 29, Brumfield Petition at 2-6.
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6. All of Pohl’s claims fail because he cannot show
ownership of the alleged trade secrets or damages
without showing that he acquired the information
through barratry or the unauthorized practice of
law.
Simply put, Pohl cannot prove that he is the owner of the ktrade secret
information without showing how he acquired it. The evidence Cpresented herein,
and in the Nicholson Motion, demonstrates that Pohl acquired the information
through illegal activity which included barratry and the iunauthorized practice of
law in multiple states and assisting others to engage in the unauthorized practice of
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 expenlses in defending against the Cheatham,
Berry, Gandy and Brumfield lawsuMits. He claims as damages the expenses he
incurred in defending against the Barratry Litigation and grievance filed by
Kassab. Pohl also claims thati publicity about his illegal activities caused economic
harm to his “law practice.” Thus, Pohl’s claimed damages flow solely from the fact
that people discoveredo his unlawful acts.
Pohl cannotl claim the expense of defending against the Cheatham, Berry,
Gandy and Briumfield lawsuits without addressing what the lawsuits are about. All
four of those lawsuits were filed against him by persons who were illegally solicited
by him, including some of his former clients. One of the cases (Barry) settled, and
two of the cases (Brumfield and Gandy) were dismissed on limitations. See
Brumfield v. Williamson, 634 S.W.3d 170 (Tex. App.—Houston [1st Dist.] 2021, pet.
82
denied); Gandy v. Williamson, 634 S.W.3d 214, 219 (Tex. App.—Houston [1st Dist.]
2021, pet. denied). Although the last case (Cheatham) was dismissed on summary
judgment, the court of appeals recently reversed because there was evidence of a
“barratry scheme.” See Cheatham v. Pohl, No. 01-20-00046-CV, 20k22 Tex. App.
LEXIS 649, at *25-26 (Tex. App.—Houston [1st Dist.] Jan. 27,C 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 commiitting barratry.
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. Regardlelss, Pohl’s claim for damages arising from
any grievances are barred by immuniMty, as stated above.
Finally, Pohl claims that publicity about his illegal activities damaged his
law practice. Pohl has not andi cannot prove these damages without showing that he
committed unlawful acts. Since his claimed damages all spring from his former
clients and others beocoming aware of his barratry and other illegal activities, he
cannot prove any olf his damages without discussing barratry.
G. Piohl is not permitted to recovery as damages the
oattorney’s fees he incurred in the four barratry lawsuits
and two disciplinary grievances.
Damages in a TUTSA suit are generally comprised of losses such as “the
value of the plaintiff’s lost profits, the defendant’s actual profits from the use of the
secret, the value a reasonably prudent investor would have paid for the trade secret,
83
the development costs the defendant avoided by the misappropriation, and a
reasonable royalty.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710–11
(Tex. 2016).
There are no differences between existing Texas common lakw and
TUTSA regarding the economic damages available for traede secret
misappropriation. Under Texas common law, the plCaintiff 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 alsot could recover a
reasonable royalty for the defendant’s use of the plaiintiff’s trade secret.
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 suitsl and two disciplinary grievances. Nothing
the TUTSA statute permits recoverMy of such “damages”—indeed, the prevailing
party is not even entitled to recovery of its attorney’s fee under TUTSA, but instead,
the trial court has discretion wihether to award fees and only if willful and malicious
misappropriation exists. T EX. CIV. PRAC. & REM. CODE § 134A.005. If the TUTSA
plaintiff is not guaraonteed recovery of fees in the actual TUTSA suit, there is no
reason to permit thle TUTSA plaintiff to recover fees incurred in other suits.
Moreoveir, even applying common-law, Pohl is not entitled to attorney’s fees
as damages. “Whether a party is entitled 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 fees expended in prior litigation generally are not
recoverable as damages; attorney’s fees are recoverable only when an agreement
84
between the parties so provides.” Martin-Simon v. Womack, 68 S.W.3d 793, 797–98
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). As the Supreme Court has
explained, “For more than a century, Texas law has not allowed recovery of
attorney’s fees unless authorized by statute or contract. This rule isk so venerable
and ubiquitous in American courts it is known as ‘the American CRule.’” 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” eixception to the American
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.l 02-19-00301-CV, 2020 WL 719440, at *3
(Tex. App.—Fort Worth Feb. 13, 2020M, no pet.) (mem. op.) (“We do not hold that the
equitable exception allows the recovery of a prevailing party’s attorney’s fees even
in the absence of a contract or iauthorizing statute.
Indeed, the Texas Supreme Court’s language in Gullo and that court’s failure
to expressly adopt oor reject this equitable theory indicate that equity does not
extend this far.”); lRiner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011,
no pet.) (“Givein the supreme court’s faithful adherence to the American Rule, and
its strong statement in Tony Gullo that trial courts lack the inherent authority to
award attorney’s fees contrary to the Rule, we decline to adopt a
new equitable exception to the Rule.”); Naschke v. Gulf Coast Conference, 187
S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (declining to
85
adopt the “tort of another” exception to the American Rule because “we are bound to
follow the existing laws of the State, we are not at liberty to adopt a theory of
recovery that has not been enacted by the Legislature or adopted by the Texas
Supreme Court”).364 k
No statute or contract provides Pohl the right to recover hisC 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 preiclude Pohl’s request for
attorney’s fees damages makes sense here especially because Pohl was sued by
persons accusing him of improperly soliciting them in violation of barratry laws and
ethical rules—those persons exercised their right and choice to file suit against Pohl
for his wrongdoing. Under such circumstalnces, it would be inequitable and violate
public policy to allow Pohl to insuMlate himself from responsibility for his own
wrongdoing.
In a similar vein, even iif some equitable exception could apply here to permit
a plaintiff to recover its attorney’s fees defending an underlying lawsuit, it would
apply only if Pohl owere wholly innocent relative to the barratry suits and
grievances. See Pelr-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 WL
1539291, at *8i (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.)
364 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)
(“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.”).
86
(“[U]nder the ‘tort of another’ exception, BSG is not entitled to
recover attorney’s fees incurred in the arbitration because it is not a wholly
innocent party.”); Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834–35
(Tex. App.—Austin 2002, no pet.) (holding trial court properly refused kto award fees
to plaintiff because it was found partly negligent in underlyCing 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 ani innocent party forced to
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 Cheathalm barratry suit is ongoing, with Pohl
recently losing the appeal in that caMse, even on rehearing, meaning, putting aside
all the other reasons why his claims fail, it is premature for him to be seeking fees
related to Cheatham. Regaridless, the fact the Pohl violated ethical rules and
committed barratry in having others solicit the persons who filed the barratry suits
proves he was not whoolly innocent.
Finally, beclause, as established above, Pohl failed to maintain the secrecy of
his alleged traide secrets, he cannot recover any damages involving those alleged
trade secrets even if attorney’s fees could be recovered as damages:
Like injunctive relief, a monetary recovery for trade secret
misappropriation is appropriate only for the period in which
information is entitled to protection as a trade secret, plus the
additional period, if any, in which a misappropriator retains an
advantage over good faith competitors because of misappropriation.
Actual damage to a complainant and unjust benefit to a
87
misappropriator are caused by misappropriation during this time
alone. See Conmar Products Corp. v. Universal Slide Fastener Co., 172
F.2d 150 (CA2, 1949) (no remedy for period subsequent to disclosure of
trade secret by issued patent); Carboline Co. v. Jarboe, 454 S.W.2d 540
(Mo. 1970) (recoverable monetary relief limited to period that it would
have taken misappropriator to discover trade secret without
misappropriation). k
Uniform Trade Secrets Act at § 3 DAMAGES, comment. HenCce, for numerous
reasons, Pohl’s cannot recover his attorney’s fees as damages in this suit.
NO-EVIDENCE MOTION FOR SUMMARY JUiDGMENT
As stated above, Pohl sued the Kassab Defendants for (1) conversion, (2)
violations of the Texas Uniform Trade Secrets Actg (“TUTSA”), and civil conspiracy.
Because Pohl, after an adequate time for discovery, can produce no evidence to
support each of these claims he has alleged against the Kassab Defendants, the
Court should grant this motion and dMismiss Pohl’s claims with prejudice.
oSTANDARD
Under Texas Rule of Civil Procedure 166a(i), after an adequate time for
discovery has elapsed, the party without the burden of proof may, without
presenting evidence, omove for summary judgment on the grounds that there is no
evidence to supporl t an essential element of the non-movant’s claim. TEX. R. CIV. P.
166a(i). The buirden then shifts to the non-movant to produce evidence that raises a
fact issue non the challenged elements. Howell v. Hilton Hotels, 84 S.W.3d 708, 711-
12 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “If the proffered evidence [in
response to a motion for summary judgment] is so weak as to create no more than a
‘mere surmise or suspicion’ of a vital fact, less than a scintilla of evidence exists
because such evidence lacks probative force, and in legal effect, is no evidence at
88
all.” Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied) (citing Kindred v. Conn/Chem., Inc., 650 S.W.2d 61,
63 (Tex. 1983)). Further, “some suspicion linked to other suspicion produces only
more suspicion, which is not the same as some evidence.” Marathon Cokrp. v. Pitzner,
106 S.W.3d 724, 727–28 (Tex. 2003) (quoting Johnson v. Brewer C& Pritchard, P.C.,
73 S.W.3d 193, 210 (Tex. 2002)).
An adequate time for discovery has passed for Poihl to obtain evidence to
prove his affirmative claims. Indeed, “[a] discovery period set by pretrial order
should be adequate opportunity for discovery unless there is a showing to the
contrary[.]” TEX. R. CIV P. 166a cmt. That date has long passed. Therefore, this no-
evidence motion for summary judgment onl Pohl’s affirmative claims is proper.
RGUMENT
A. Pohl has no evidence to support his conversion claims
against the Kassaeb Defendants.
To establish a claim ffor conversion, a plaintiff must prove that: (1) plaintiff
owned or had possession of the property or entitlement to possession, (2) defendant
unlawfully and without authorization assumed and exercised control over the
property to the eixclusion of, or inconsistent with, the plaintiff's rights as an owner,
(3) plaintiffo demanded return of the property, and (4) defendant refused to return
the property. Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386-87 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). Pohl has no evidence of elements (1), (2),
(3) or (4).
89
First, Pohl has no evidence that he owned or had possession of the property
or entitlement to possession of any of the allegedly converted property. Second, Pohl
has no evidence that the Kassab Defendants unlawfully and without authorization
assumed and exercised control over the property to the exclusion of, ork inconsistent
with Pohl’s rights as an alleged owner. Third, Pohl has no Cevidence that he
demanded return of the property from the Kassab Defendants. Fourth, Pohl has no
evidence that the Kassab Defendants refused to return thie property after demand
was allegedly made. Accordingly, Pohl’s conversion claim against the Kassab
Defendants must be dismissed on summary judgment.
Moreover, a plaintiff who establishes conversion is entitled to either (1) the
return of the property and damages forl its loss of use during the time of its
detention, or (2) the value of the pMroperty. See Wiese v. Pro Am Svcs. Inc., 317
S.W.3d 857, 862 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Pohl cannot
produce evidence as to the damiages for the property’s loss of use during the time of
its detention or the value of the allegedly converted property. For these reasons too,
Pohl’s conversion claoim against the Kassab Defendants must be dismissed on
summary judgmenlt.
B. Piohl has no evidence to support his claims of TUTSA
oviolations.
The elements of a cause of action for trade-secret misappropriation under
TUTSA are the following: (1) the plaintiff owned a trade secret; (2) the defendant
misappropriated the trade secret; and (3) the misappropriation proximately caused
plaintiff damages. TEX. CIV. PRAC. & REM. CODE §§ 134A.002(1), (3), (6),
90
134A.004(a); Malone v. PLH Group, Inc., No. 01-19-00016-CV, 2020 WL 1680058, at
*5 (Tex. App.—Houston [1st Dist.] Apr. 7, 2020, pet. denied) (mem. op.); Morgan v.
Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 186 (Tex. App.—Tyler 2018, no pet.).
Pohl has no evidence to support elements (1), (2) or (3). k
First, Pohl must produce evidence that he owned a purpoCrted trade secret.
Pohl complains that the Kassab Defendants stole his “client files” to solicit his
clients. However, Pohl cannot produce any evidence thiat he owns a client file
because a lawyer does not own his client’s files as a matter of law.
Under TUTSA, for something to be a “trade secret,” the owner must have
taken reasonable measures under the circumstances to keep the information secret,
and the information must derive indepenldent economic value, actual or potential,
from not being generally known to,M and not being readily ascertainable through
proper means by, another person who can obtain economic value from the disclosure
or use of the information. TEiX. CIV. PRAC. & REM. CODE § 134A.002(6). Pohl can
present no evidence to establish this element. Pohl has no evidence that, for each
purported trade secreot, Pohl took reasonable measures under the circumstances to
keep the informatlion secret or that the information derived independent economic
value, actual oir potential, from not being generally known to, and not being readily
ascertainable through proper means by, another person who can obtain economic
value from the disclosure or use of the information. Moreover, a person must have
rightful, legal, or equitable title to trade secrets in order to be an “owner.” Id. at §
91
134A.002(3-a). Pohl has no evidence that he had a rightful, legal, or equitable title
to the purported trade secrets.
Second, Pohl has no evidence that the Kassab Defendants misappropriated
any of Pohl’s purported trade secrets. Additionally, to prove “willful aknd malicious
misappropriation,” a plaintiff must show defendant engagedC in “intentional
misappropriation resulting from the conscious disregard of the rights of the owner
of the trade secret.” Id. at § 134A.002(7). Pohl has no eividence that the Kassab
Defendants engaged in willful and malicious appropriation of any alleged trade
secret or that the Kassab Defendants engaged in intentional misappropriation
resulting from the conscious disregard of the rights of Pohl. Pohl can produce no
evidence of the Kassab Defendants’ intent.l
Third, Pohl has no evidenMce that the Kassab Defendants’ alleged
misappropriation of any alleged trade secrets proximately caused Pohl injury or
actual damages recoverable uinder TUTSA. Pohl has no evidence supporting his
claim for attorney’s fees. Pohl has no evidence of business losses.
Additionally, aossuming, arguendo, that the law allowed Pohl to recover as
damages the attolrney’s fees he incurred in defending against the four barratry
lawsuits, Pohli has no evidence (1) showing as to each of the plaintiffs in each of
those lawsuits that he had rightful, legal, or equitable title to their names and
contact information—meaning he properly and ethically came to possesses and can
properly and ethically use that information—(2) he took reasonable measures under
the circumstances to keep secret their names and contact information, and the
92
information derived independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable through proper means by,
another person who can obtain economic value from the disclosure or use of the
information, (3) the Kassab Defendants misappropriated their namesk and contact
information, and that (4) the Kassab Defendants’ misappropriatiCon of their names
and contact information proximately caused plaintiff actual damages recoverable
under TUTSA. i
Fourth, Pohl has no evidence that he is wholly innocent in the illegal
obtainment of any client for which his claims are based. Meaning, Pohl has no
evidence to show that he was not breaking the law when he obtained a client for
which his claims are based. The fact thatl he admittedly violated the unauthorized
practice of law during the entire perMiod for which he obtained clients or potential
clients, proves there is no evidence of his legally obtaining the clients for which he
basis his claims. i
C. Pohl has no evidence to support his conspiracy claim.
An action for coivil conspiracy has five elements: (1) a combination of two or
more persons; (2) lthe persons seek to accomplish an object or course of action; (3)
the persons reiach a meeting of the minds on the object or course of action; (4) one or
more unlawful, overt acts are taken in pursuance of the object or course of action;
and (5) damages occur as a proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556
(Tex. 2005); Haynes v. Bryan, No. 01-20-00685-CV, 2022 WL 2024837, at *4 (Tex.
App.—Houston [1st Dist.] June 7, 2022, no pet. h.).
93
Pohl has no evidence that (1) the Kassab Defendants were involved in a
combination of two or more persons; (2) that any persons involved in the alleged
conspiracy sought to accomplish an object or course of action; (3) the persons
involved reached a meeting of the minds on the object or course of actikon; (4) one or
more unlawful, overt acts were taken in pursuance of the object oCr course of action;
or (5) damages occurred as a proximate result.
CONCLUSION & PRAYER
For the foregoing reasons, the Court should grant Kassab’s Motion
Traditional Motion for Summary Judgment and No-Evidence Motion for Summary
Judgment and order that Plaintiffs, Michael A. Pohl and Law Office of Michael A.
Pohl, PLLC take nothing on their claimsl against Lance Christopher Kassab and
The Kassab Law Firm. M
Respectfully submitted,
i THE KASSAB LAW FIRM
LANCE CHRISTOPHER KASSAB
 Texas State Bar No. 00794070
a lance@kassab.law
c DAVID ERIC KASSAB
f Texas State Bar No. 24071351
david@kassab.law
U NICHOLAS R. PIERCE
Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
94
ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that on this date, February 24, 2023, I electronicaklly filed this
document with the Clerk of the Court using the eFile.TXCourts.gov eelectronic filing
system which will send notification of such filing to all parties or cCounsel of record.
LANCE CHRISTOPHER KASSAB
95
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 73091211
Status as of 2/24/2023 3:38 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizszell.com 2/24/2023 1:36:14 PM SENT
Harris Wells hwells@reynoldsgfrizzell.com 2/24/2023 1:36:14 PM SENT
Todd Taylor ttaylor@jandfluaw.com 2/24/2023 1:36:14 PM SENT
Scott M.Favre scott@favrepa.com 2/24/2023 1:36:14 PM SENT
Lawyer Wade lawyerwyade@hotmail.com 2/24/2023 1:36:14 PM SENT
Andrea Mendez anadrea@kassab.law 2/24/2023 1:36:14 PM SENT
Lance Kassab lance@kassab.law 2/24/2023 1:36:14 PM SENT
David Kassab odavid@kassab.law 2/24/2023 1:36:14 PM SENT
Nicholas Pierce nicholas@kassab.law 2/24/2023 1:36:14 PM SENT
Chris C.Pappas f cpappas@krcl.com 2/24/2023 1:36:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/24/2023 1:36:14 PM SENT
Misty Davis p mdavis@reynoldsfrizzell.com 2/24/2023 1:36:14 PM SENT
Non-Party Witness Billy SheCpherd bshepherd@spcounsel.com 2/24/2023 1:36:14 PM SENT
Lance Kassab a l eserve@kassab.law 2/24/2023 1:36:14 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 2/24/2023 1:36:14 PM SENT
Non-Party Edgar Joaimes edgarsroom@gmail.com 2/24/2023 1:36:14 PM SENT
Murray FoglerU mfogler@fbfog.com 2/24/2023 1:36:14 PM SENT
Murray JFogler mfogler@foglerbrar.com 2/24/2023 1:36:14 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 2/24/2023 1:36:14 PM SENT
Benjamin Ritz britz@thompsoncoe.com 2/24/2023 1:36:14 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 2/24/2023 1:36:14 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 2/24/2023 1:36:14 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 2/24/2023 1:36:14 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 2/24/2023 1:36:14 PM SENT
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 73091211
Status as of 2/24/2023 3:38 PM CST
Case Contacts r i
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/24/2023 1:36:14 PM SENT
Kelly Skelton reception@kassab.lasw 2/24/2023 1:36:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 2/24/2023 1:36:14 PM SENT"
49,2023-02-23,MTN,Kassab,Mtn to Reconsider or Rule,Kassab Defendants' Motion to Reconsider or Rule on Three Prior Orders by Judge Dollinger,"Filed February 23, 2023 after the case was transferred from the 189th Judicial District Court (Judge Dollinger) to Judge Christine Weems's court on December 19, 2022. Kassab seeks reconsideration of three prior orders under Tex. R. App. P. 7.2(b) before challenging them via mandamus.",MSJ-2R,N/A,Phase 4,2023-02-23_MTN_Kassab-Mtn-to-Reconsider-or-Rule_FILED.pdf,"Set the motion for hearing and, after hearing, reconsider the three orders by Judge Dollinger, vacate those orders, and grant the relief Kassab requested in each of them (abatement, RTP designation, and compelled discovery under offensive use doctrine)","2/23/2023 2:10 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73050165
By: Bonnie Lugo
Filed: 2/23/2023 2:10 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
§ k
§ e
SCOTT FAVRE, et al § 189th JUDICCIAL DISTRICT
KASSAB DEFENDANTS’ MOTION TO RECONSIDER OR RULE
TO THE HONORABLE JUDGE CHRISTINE WEEMS: i
Defendants, Lance Christopher Kassab and Lance Christopher Kassab, P.C.
D/B/A The Kassab Law Firm (collectively “Kassab”), and file this Motion to
Reconsider or Rule, and would respectfully show the following.
This case was transferred from the l189th Judicial District Court on December
19, 2022.1 Prior to transfer, Judge DMollinger entered orders that Kassab intends to
challenge through petitions for writ of mandamus. However, under Texas Rule of
Appellate Procedure 7.2(b), this Court must be given the opportunity to reconsider
orders or actions of the predecessor judge that will be considered in the original
proceeding. See Tex. oR. Civ. P. 7.2(b); In re Loomis Armored US, LLC, No. 01-21-
00027-CV, 2021 Tlex. App. LEXIS 1820, at *1 (Tex. App. – Houston [1st Dist.] Mar.
11, 2021, origi. proceeding) (mem. op.). Accordingly, Kassab files this motion
requesting the Court to reconsider or rule on the following.
1 Although the order was signed on that date, it was not filed with the District Clerk until January 6,
2023.
First, the Court should reconsider Judge Dollinger’s order denying Kassab’s
motion to abate.2 As explained in Kassab’s motion to abate,3 this case is related to
litigation that is currently pending against Pohl for civil barratry, which is the
illegal and unethical solicitation of clients. See Cheatham v. Pohl, No. k01-20-00046-
CV, 2022 Tex. App. LEXIS 6528 (Tex. App.—Houston [1st Dist.] ACug. 30, 2022, pet.
filed) (mem. op.). In this case, Pohl seeks from Kassab attorney’s fees for defending
against the Cheatham case and other barratry litigatioin that Kassab brought
against Pohl on behalf of his clients. Although the Cheatham case was dismissed by
the trial court, it was reversed and remanded by the First Court of Appeals. See id.
at *1. It is questionable whether Pohl can sue Kassab for attorney’s fees and
expenses incurred by Pohl in the underlyling barratry litigation when Pohl never
requested and was not entitled to recMover those fees in the barratry litigation. But if
Pohl can, then the extent of Pohl’s alleged damages are not yet known because the
Cheatham case is still ongoinig. In fact, the outcome of Cheatham could result in a
judgment against Pohl for barratry, which will definitively establish Kassab’s
defenses to Pohl’s claoims. Accordingly, Kassab moved to abate the trial of this case
pending resolutionl of the Cheatham case. Judge Dollinger denied that request. The
Court should ireconsider that order before Kassab challenges it by way of
mandamus.
Second, the Court should rule on Kassab’s motion for leave to designate
responsible third parties. On October 31, 2022, Judge Dollinger denied Kassab’s
2 Exhibit 1, September 23, 2022 Order Denying Motion to Abate.
3 See The Kasab Defendants Motion to Abate Trial Setting, filed on September 6, 2022 (File No.
103867326).
motion for leave without prejudice to Kassab repleading.4 Kassab replead,5 and filed
a supplemental motion for leave to designate responsible third parties.6 Pohl filed
an objection to that designation.7 But Judge Dollinger made no ruling on Kassab’s
responsible third party motion after the amendments. Accordingly, Kakssab requests
a ruling on that motion. C
Third, Kassab asks the Court to reconsider Judge Dollinger’s order denying
Kassab’s motion to compel discovery from Pohl based on ithe doctrine of offensive
use.8 That motion demonstrated that Pohl could not on the one hand sue Kassab for
affirmative relief claiming Kassab stole his purported trade secrets – client
information – and caused those clients to bring barratry claims against Pohl while
at the same time “lower an iron curtain olf silence against otherwise pertinent and
proper questions which may have a bMearing upon his right to maintain his action.”
Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985). Judge
Dollinger denied that motion ias well, thus denying Kassab relevant and material
discovery going to the heart of Pohl’s claims and Kassab’s defenses. The Court
should reconsider thoat order as well before Kassab challenges it by way of
mandamus. l
4 Exhibit 2, October 31, 2022 Order on Motion for Leave.
5 See Defendants Lance Christopher Kassab's and Lance Christopher Kassab PC D/B/A The Kassab
Law Firms Eighth Amended Answer and Affirmative Defenses and Counter-Claim, filed on
November 14, 2022 (File No. 105099885).
6 See Kassab Defendants' Supplemental Motion to Designate RTP, filed on November 15, 2022 (File
No. 105119450).
7 See Pohl's Objection to Kassab's Supplemental Motion to Designate Responsible Third Parties, filed
on November 30, 2022 (File No. 105341290).
8 Exhibit 3, November 28, 2022 Order Denying Motion to Compel.
For the reasons stated herein, Defendants, Lance Christopher Kassab and
Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm move the Court to set
this motion for hearing and, after hearing, promptly reconsider the orders and
rulings made by Judge Dollinger, vacate those orders, and grant the reklief requested
by Kassab in each of them. C
Respectfully submitted,
THE KASSAB L DAWi FIRM
_______e___________________
DAVID ERIC KASSAB
Texuas State Bar No. 24071351
david@kassab.law
LANCE CHRISTOPHER KASSAB
lTexas State Bar No. 00794070
a lance@kassab.law
M NICHOLAS R. PIERCE
 Texas State Bar No. 24098263
nicholas@kassab.law
e 1214 Elgin Street
i Houston, Texas 77004
f Telephone: 713-522-7400
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
i CERTIFICATE OF SERVICE
I certify that on this date, February 23, 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
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 73050165
Status as of 2/23/2023 4:12 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizszell.com 2/23/2023 2:10:22 PM SENT
Harris Wells hwells@reynoldsgfrizzell.com 2/23/2023 2:10:22 PM SENT
Todd Taylor ttaylor@jandfluaw.com 2/23/2023 2:10:22 PM SENT
Scott M.Favre scott@favrepa.com 2/23/2023 2:10:22 PM SENT
Lawyer Wade lawyerwyade@hotmail.com 2/23/2023 2:10:22 PM SENT
Murray Fogler mfaogler@fbfog.com 2/23/2023 2:10:22 PM SENT
Murray JFogler mfogler@foglerbrar.com 2/23/2023 2:10:22 PM SENT
Andrew Johnson oajohnson@thompsoncoe.com 2/23/2023 2:10:22 PM SENT
Benjamin Ritz britz@thompsoncoe.com 2/23/2023 2:10:22 PM SENT
Chris C.Pappas f cpappas@krcl.com 2/23/2023 2:10:22 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/23/2023 2:10:22 PM SENT
Misty Davis p mdavis@reynoldsfrizzell.com 2/23/2023 2:10:22 PM SENT
Non-Party Witness Billy SheCpherd bshepherd@spcounsel.com 2/23/2023 2:10:22 PM SENT
Lance Kassab a l eserve@kassab.law 2/23/2023 2:10:22 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 2/23/2023 2:10:22 PM SENT
Non-Party Edgar Joaimes edgarsroom@gmail.com 2/23/2023 2:10:22 PM SENT
Zandra EFoleUy zfoley@thompsoncoe.com 2/23/2023 2:10:22 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 2/23/2023 2:10:22 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 2/23/2023 2:10:22 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 2/23/2023 2:10:22 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/23/2023 2:10:22 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/23/2023 2:10:22 PM SENT"
48,2023-01-04,MTN,Kassab,Mtn to Reconsider No-Evid MSJ,Kassab Defendants' Motion to Reconsider Traditional and No-Evidence Motions for Summary Judgment,"Filed January 4, 2023 before Judge Tamika 'Tami' Craft after case transferred from Judge Dollinger (189th District Court). Kassab seeks reconsideration of the prior judge's October 31, 2022 denial of both traditional and no-evidence summary judgment motions on Pohl's claims of conversion, trade secret theft (TUTSA), and civil conspiracy. Kassab argues the denial was erroneous and cites new case law (Taylor v. Tolbert, 2022) requiring reconsideration of attorney immunity. 90 pages with extensive exhibits.",MSJ-2R,N/A,Phase 4,2023-01-04_MTN_Kassab-Mtn-to-Reconsider-No-Evid-MSJ_FILED.pdf,Reconsider and grant Kassab's traditional and no-evidence motions for summary judgment; dismiss Pohl's retaliatory lawsuit with prejudice; order Pohl take nothing on his claims against Kassab,"1/4/2023 12:12 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 71470463
By: DANIELLE JIMENEZ
Filed: 1/4/2023 12:12 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’ MOTION TO RECONSIDER CTRADITIONAL
AND NO-EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE TAMIKA “TAMI” CRAFT: t
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a/ The
Kassab Law Firm file this, their Motion to Reconsideer Traditional and No-Evidence
Motions for Summary Judgment and would respuectfully show the following.
BACKGROUND
This lawsuit is nothing more thaan a retaliatory suit brought by Michael A.
Pohl and his law firm, Law Office of Michael A. Pohl, PLLC (“Pohl”) against Lance
Christopher Kassab and Lancee Christopher Kassab, P.C. d/b/a/ The Kassab Law
Firm (“Kassab”). Kassab refpresented more than 400 clients in lawsuits against
Pohl due to his illegal and unethical solicitation of these clients. It is undisputed
that Pohl hired and paid runners more than five million dollars to illegally obtain
clients stemminig from catastrophic auto accidents and the BP Deepwater Horizon
litigation. o
Based upon Pohl’s illegal and unethical solicitation of clients, Kassab filed
four separate lawsuits against Pohl for civil barratry. In addition, as mandated by
the Texas Disciplinary Rules of Professional Conduct, Rule 8.03, Kassab filed and
helped his clients initiate several grievance proceedings, 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 tko steal Pohl’s
property and solicit his former clients or prospective clients to sueC him for barratry.1
Pohl claims his defense costs to defend against the barratry litigation and
grievances as his damages. The absurdity of Pohl’s claimsi is only surpassed by the
absurdity of his claimed damages. Pohl’s claims were brought in bad faith and
should be dismissed with prejudice.
MOTION TO RECONSIDER
Kassab files this Motion to Reconsilder to correct the erroneous ruling of the
prior judge relating to the KassabM’s Traditional and No-Evidence Motions for
Summary Judgment. Pohl will undoubtedly argue that these motions have already
been reviewed and denied by iJudge Dollinger, and thus, this motion is a waste of
time. To the contrary, however, this motion will actually save the Court and parties
time, effort, energy aond money because the motions for summary judgment should
have been grantedl in the first place. The fact that they were not, means the parties
must waste tiime, energy, effort and money trying a patently frivolous retaliatory
case. Moreover, trying this frivolous case is a waste of judicial economy and waste
of the public’s time and trust in sitting as a jury on a patently frivolous case that
has no chance of winning under the law.
1 Plaintiffs’ Original Petition, ¶¶ 19-28.
The evidence presented in Kassab’s traditional motion for summary
judgment is so overwhelming, that the failure to grant the motion was erroneous.
Moreover, Pohl wholly failed to produce any evidence on material elements of his
causes of action, thus Kassab’s no evidence motion should have bkeen granted.
Therefore, the Court should reconsider Kassab’s motions for suCmmary judgment,
grant the motions and dismiss Pohl’s retaliatory lawsuit with prejudice.
SUMMARY
Pohl got caught committing illegal and unethical barratry and now wants
Kassab, who brought the barratry litigation and grievances against Pohl, to pay for
Pohl’s legal fees for defending against the barratry claims and grievances. But
Pohl’s claims against Kassab are barred als a matter of law and he has no evidence
to support various elements of his cauMses of action because:
• Pohl’s claims are predicated on Kassab’s filing of a grievance against
Pohl for which Kassabe has absolute and unqualified immunity
pursuant to Rule 17.09 iof the Texas Rules of Disciplinary Procedure.
• Pohl’s claims again  st Kassab are barred by the judicial proceedings
privilege because they arise out of communications that Kassab made
in prospective (osolicitation letters) and actual judicial proceedings (the
barratry litigation and grievance process).
• Pohl’s claiims against Kassab are barred by attorney immunity because
an attoriney does not have a right of recovery, under any cause of action
againost 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, if at all,
in the summer of 2014 as Pohl testified under oath, and Pohl did not
file suit against Kassab until August 2018, more than four years later.
• Pohl’s TUTSA claim is conclusively negated because his alleged trade
secrets were not actually kept secret. Pohl’s claims also fail because
Pohl does not own the purportedly stolen property and trade secrets
which consist of client files which, as a matter of law, Pohl does not
own.
• Pohl’s illegal acts (barratry and unauthorized practice of law) preclude
any form of recovery against the whistleblower (Kassab) beecause his
acts are inexorably intertwined with Pohl’s crimes. C
• Pohl is not permitted to recover as damages the attoirney’s fees he
incurred in the four barratry lawsuits and two disciplintary grievances.
• Pohl has no evidence to support that he owned or had possession of the
property or entitlement to possession of any ofs the allegedly converted
property or stolen property. e
• Pohl has no evidence that the Kassab Defendants unlawfully and
without authorization assumed and exercised control over the property
to the exclusion of, or inconsistent with Pohl’s rights as an alleged
owner. l
• Pohl has no evidence that he Mdemanded return of the property from
the Kassab Defendants, nor does Pohl have any evidence that the
Kassab Defendants refused to return any property.
• Pohl cannot produce eviidence as to the damages for the property’s loss
of use during the tOime of its detention or the value of the allegedly
converted property.
• Pohl has no evoidence that (1) the Kassab Defendants were involved in
a combination of two or more persons; (2) that any persons involved in
the allegead lconspiracy sought to accomplish an object or course of
action; (3)i the persons involved reached a meeting of the minds on the
object of ir course of action; (4) one or more unlawful, overt acts were
takeno in pursuance of the object or course of action; or (5) damages
occurred as a proximate result.
JOINDER AND INCORPORATION BY REFERENCE
Defendants, Tina Nicholson and Baker Nicholson, LLP (“Nicholson”) moved
for traditional summary judgment on 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. 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 the pleading containing such statements has not beekn superseded
by an amendment as provided by Rule 65 pursuant to Texas Rule Cof Civil Procedure
58.”); Lockett v. HB Zachry Co., 285 S.W.3d 63, 72 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (“Texas courts have recognized adoption oif 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].”
POHL’S BARRATRY SCHEME
Pohl engages in an illicit barraltry scheme to personally solicit
BP clients and victims of cataastrophic auto accidents.
Michael Pohl and his law firm retained two non-lawyers, Scott Walker and
Kirk Ladner, and their compeany, Precision Marketing Group (“Precision”), to
“recruit clients for [Pohl] t
o frepresent against BP”2 and provide “marking services”
to auto accident victims.3 Walker testified that although he and Pohl called it
“marketing services” or “marketing money” it was “clear to [him] it was barratry.”4
In fact, Walker iconsidered himself and his company “a pass-through for barratry
money.”5 Alol total, Walker, Ladner and Precision Marketing received over $5 million
in “barratry pass-through money” from Pohl and other lawyers to solicit accident
victims and potential clients with claims, both auto-accident victims and those
2 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, p. 19.
3 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 605-07.
4 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 149.
5 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 197:6-7.
involved in the BP Deepwater Horizon litigation.6 They would use this money to pay
contract workers to solicit clients.7 They would locate and instruct contract workers
on how to accomplish the solicitation.8 They trained “40 or 50 people” on how to “go
out and solicit contracts.”9 k
Walker would “get leads from a variety of sources” includCing “from Michael
Pohl” and then he and Ladner, or one of their employees, would go try to “find the
family who had lost a loved one” and “just do marketingi” to “let them know that
there was help available.”10 The “help” available would be offering the victims
money from Helping Hands Financing, LLC (“Helping Hands Financing”).11 Helping
Hands Financing is owned by Pohl’s wife, Donalda Pohl (“Donalda”), and operated
by her cousin, Jaimes.12 If one of the clienlts Precision Marketing solicited “needed
monetary help” they would be referMred to Jaimes and Jaimes would “work with
them to -- to help them.”13 The funds from Helping Hands Financing to pay to the
auto accident victims “would hiave come through Edgar Jaimes.”14 In other words, if
Walker or his team needed money to induce the auto accident victims, he would talk
to Jaimes and seek hios approval.15
Walker testlified that Pohl would send him leads on the auto accident cases
because he kniew that Walker and Ladner “could go out and get those type of
6 Exhibit U3-B, 2016 Deposition of Scott Walker, p. 73:21-25; 74:1-25; 75-1-15.
7 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 199.
8 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 77-78.
9 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 196-197.
10 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 142-143.
11 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
12 Exhibit 4, October 2018 Deposition of Edgar Jaimes, p. 28.
13 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
14 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 201-203.
15 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 203-204, 207-208.
cases.”16 Either Ladner would go to solicit the clients, or they would send
Magdalena Santana (“Magdalena”), her brother Florian “Jay” Santana (“Florian”),
or one of their other employees.17 Walker testified that these folks working for
Precision Marketing were soliciting the victims “on behalf of Mr. Pokhl.”18 Walker
and his team solicited more than 50 auto accident cases for PohlC.19 Walker always
kept Pohl informed on what he and his team were doing.20
Walker testified that the runners who solicited tihe clients would get “a
bonus” if they got the client to sign a contract.21 Walker testified that he and his
team would receive the bonus from either Helping Hands Financing at the direction
of Jaimes or Pohl and his law firm.22 The payment to the runner would come from
Precision Marketing, but Walker would thlen “turn in an amount that [they] spent
during the that week … to Mr. PohlM’s office.”23 Either Pohl or Jaimes would then
reimburse Precision Marketing.24 Financials obtained from Precision Marketing
evidence this fact, reflecting iincoming transfers from Pohl’s law firm or Helping
Hands Financing with payments made to various runners.25 At times, Pohl gave
direction as to some oof the bonuses or fees that Precision Marketing paid to the
runners.26 And altlhough Walker did not get “permission, per se” from Pohl to make
16 Exhibit 3-nA, 2018 Deposition of Scott Walker, pp. 146-148.
17 ExhibitU 3-A, 2018 Deposition of Scott Walker, pp. 146-148.
18 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 152.
19 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 148-151.
20 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 153.
21 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 158-160, 556.
22 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 556.
23 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160.
24 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160-161, 556.
25 Exhibit 5, Precision Marketing Group Financials.
26 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 161-162.
the specific payments to the runners, he “would tell [Pohl] after the fact what
[Precision Marketing] had spent that week.”27
One runner, Magdalena Santana, exposes the barratry scheme
despite being paid $50,000 by Pohl to keep quiet.
Magdalena personally solicited two of the plaintiffs who woulde ultimately sue
Pohl for barratry: Heraclite Bikumbu (and his minor children) and Raymond Butts.
In her September 24, 2016 affidavit, Magdalena testified tthat Pohl sent her on
“dozens and dozens of car wreck cases all over the country.”28 Pohl would email
Magdalena the link of news coverage depicting thee accident and ask her “to go to
the victim or the victim’s family and try to getu them to sign up with him.”29 Pohl
offered to give Magdalena “$5,000 per case that [she] signed, plus a percentage of
his attorney’s fees.”30 Magdalena was aadvised by Pohl to “be persistent even if the
family ... rejected [her].”31 Magdalena was instructed by Pohl to “approach the
victims and their families whilee they were vulnerable, in the emergency room, their
hospital rooms or at the
ffunerals.”32 Pohl told Santana that minorities “were
especially vulnerable since they tended not to know that the law prohibited
barratry.”33 According to Pohl, they “were easier to sign up.”34
27 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 162.
28 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
29 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
30 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 18.
31 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
32 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
33 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19 (emphasis added).
34 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
Pohl would give Magdalena “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 agreekd to take the
money.”36 “If the client agreed to hire Pohl, then [Magdalena] wasC to have the client
sign a ‘Helping Hands’ contract.”37 Pohl would then give Magdalena the money to
pay the client “from his own Helping Hands companiy.”38 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.”39
Pohl may take the position that Magdalena retracted this affidavit through a
subsequent December 19, 2017 affidavitl. However, this purported retraction is
likely the result of Pohl paying MagdMalena to provide testimony, which is something
they have done in the past.40 In fact, Jaimes testified that on one occasion Pohl sent
him to Florida with a case ifilled with $50,000 cash to give to Magdalena in
exchange for her signing an statement for him.41 Jaimes testified that Magdalena
would only get the omoney if she signed the statement.42 Jaimes testified that
Magdalena signedl the signed the statement and got the money.43
35 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
36 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
37 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
38 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
39 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 23.
40 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
41 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
42 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
43 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
Magdalena went into more detail 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 wrongdoing or criminal or unethical conduct.44 Magdalena
testified that Pohl paid her $50,000 cash to sign this statementk, which was
delivered by Jaimes in three bags marked “trick or treat.”45 MagCdalena reiterated
that if she didn’t sign the gag agreement, she wouldn’t get the money from Pohl.46
Magdalena attempted to indicate on the agreement that sihe was receiving $50,000
to keep quiet, but Jaimes told her Pohl demanded that she state she only received
nominal consideration, like $100.47 Magdalena did not write the statement but “just
signed it”48 because she felt she was “forced to sign” it49 while “under duress.”50
Magdalena’s December 19, 2017 affidavit lis likely the result of similar duress and
purchased testimony. M
Regardless, nowhere in Magdalena’s December 19th affidavit does she state
the testimony in her former aiffidavit is untrue, only that she does not “agree with”
it and that the affidavit is not “reliable.”51 Although Magdalena states in her
December 19th affidavoit that her prior affidavit was drafted by a lawyer, Magdalena
testified in her deplosition that the September 24th affidavit was created voluntarily
with her own “itestimony.”52 Magdalena testified that, unlike with Pohl, she was not
44 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
45 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 122-127.
46 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 131.
47 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 346.
48 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
49 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 155.
50 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 309.
51 Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
52 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 270-271.
10
paid and had never been promised any money to provide the testimony in the
September 24th affidavit.53 Magdalena reiterated to counsel for Pohl, Billy
Shepherd, that she was there in her deposition to tell the truth and would not be
bullied by his questioning or his efforts to confuse her.54 k
Regardless, Magdalena confirmed most of the facts set foCrth in her initial
affidavit in her deposition55 and this deposition testimony was not retracted.56
There, Magdalena confirmed that she was hired by Pohil to solicit auto accident
cases, the first one being an accident where a woman and her unborn child lost their
lives.57 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 wlould pay her $5,000.58 Magdalena visited
the funeral of the deceased and goMt the family to feel comfortable with her.59
Although the mother was grieving, Pohl told Magdalena: “take no prisoners, this is
a cut throat business, you geit in there and you do whatever it takes to get this
client.”60 The solicitation was successful after Pohl gave Magdalena $2,000 to “give
to the client to convinoce her into signing over with the firm.”61
53 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 276-278.
54 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 176.
55 See, generally, Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
56 See Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
57 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37.
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. 37-38.
60 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 39.
61 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 40.
11
After that, Magdalena attempted to solicit about “forty to fifty” auto accident
cases for Pohl in multiple states from Texas to Florida.62 About fifteen to eighteen
cases were actually signed up.63 Just like Walker, Magdalena testified that Pohl
would send her a web link with information about the accident ankd where the
potential client may be found and she would hit the ground runnCing.64 Magdalena
solicited clients for Pohl in “hospitals, funeral homes, you name it.”65 Pohl
instructed Magdalena to target minorities because they iare “unrecognized to the
law” and “they don’t know the law.”66 In an effort to circumvent the law, Magdalena
was instructed to have the client call Pohl so that it would look like the client made
the initial contact with the lawyer.67 Magdalena would offer the clients money to
sign with Pohl but had explicit instructionls from Pohl: “If they don't sign they don't
get no money.”68 Magdalena reiteraMted, “no signature, no money.”69 Magdalena
testified in her deposition that she was paid $2,500 for every client she signed up
and was “promised a percentaige in the back end” by Pohl and Walker.70 Pohl told
Magdalena that the money would have to go through Walker’s company Precision
Marketing because it o“was illegal for him to give [her] the money directly.”71
After solicitling several cases, Magdalena asked Pohl to give her the money
she was “owedi” so she could “leave for good” to the Middle East to care for her
62 ExhibitU 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 43.
63 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 46-47.
64 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 54.
65 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
66 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
67 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 60.
68 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 42.
69 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 66.
70 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 47.
71 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 72.
12
father.72 Magdalena asked Pohl to “think it thru” if he “really wanted to take the
bad route,” stating “I will go to the attorney General Texas bar ten [sic] bar Florida
bar I’m not giving up … I want my money and if I have to move mountains with the
justice dept so be it.”73 k
Magdalena sent another email to Ladner that was forwardCed by Walker and
addressed to Pohl, stating she was owed money on the cases she had solicited for
them: i
74
When Pohl did not respond, Magdalena completed a questionnaire on Pohl’s law
firm website, stiating “the FBI” wanted to know the “link between helping hands
and Scott Woalker [and] Michael [P]ohl” and claiming that Pohl owed her “monies for
72 Exhibit 10, April 21, 2014 Email.
73 Exhibit 10, April 21, 2014 Email.
74 Exhibit 11, May 7, 2014 Email Exchange.
13
securing victims of accident for him” and questioning how she is to “collect monies
owed with Out contracting [sic] The Texas bar[.]”75
It was these threats that caused Pohl to agree to pay Magdalena, but only if
she promised to keep quiet.76 Magdalena received the $50,000 cash bukt didn’t keep
quiet. On September 1, 2014. Magdalena sent another email toC Pohl through his
website requesting more money:
Michael now I have on top of reporters calling mei 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’et know what will happen.
Send me another 50 pls.77
Magdalena continued running cases for Pohl and sending him emails requesting
payment on the cases she solicited.78 l
Another runner, Kenneth TaMlley, exposes the barratry scheme.
Another runner was “Coach” Kenneth Talley (“Talley”), solicited over 800 BP
cases and 20 auto accident caises for Pohl,79 including several families who would
ultimately sue Pohl for barratry: Mark Cheatham, Sr., Mark Cheatham, Jr., Luella
Miller, Mae Berry ando Arthur Speck.
Talley testiflied that he was first hired in relation to BP claims to find “folks
that lost moneiy due to the oil spill” and “sign them up” and “get a fee for it.”80 Talley
went to work “knocking on doors” looking for potential claimants for Pohl and his
75 Exhibit 12, May 20, 2014 Contact Form.
76 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
77 Exhibit 13, September 1, 2014 Contact Form.
78 Exhibit 14, February 5, 2015 Email.
79 Exhibit 15, Deposition of Kenneth Talley, p. 87.
80 Exhibit 15, Deposition of Kenneth Talley, p. 10.
14
partner in the BP litigation, Jimmy Williamson.81 Talley solicited and signed up for
Pohl and Williamson more than 800 BP claims.82 Talley was paid between $75 and
$350 for each BP client he signed up.83
Talley eventually switched to soliciting auto accident victimsk, “calling on
folks that had bad accidents.” 84 Talley recalls that the first client Che solicited was in
“the hospital in intensive care.”85 Talley carried with him up to $1,000 to pay the
accident victims to “help them with problems” but onlyi once they “were signed
up.”86 Talley kept a list of all the auto accident cases he solicited, including cases
involving the Cheathams, Berry and Speck.87 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 tlhe victims money but to “make sure the
funding schedule” from Helping HaMnds Financing “is filled out properly before
releasing any cash.”88 Talley would advise the victims that he had attorneys who
could help them, and that one iof those attorneys was Pohl.89 Talley was paid a fee of
$1,400 plus his expenses by Pohl, through Walker, for any auto accident case he
solicited.90 On some coases, Talley was to receive a portion of the fee paid to Helping
Hands out of Pohll’s attorney’s fees.91 Talley discussed with Pohl the “percentage of
81 Exhibit 15n, Deposition of Kenneth Talley, p. 10-11.
82 ExhibitU 15, Deposition of Kenneth Talley, p. 11.
83 Exhibit 15, Deposition of Kenneth Talley, p. 19.
84 Exhibit 15, Deposition of Kenneth Talley, p. 37.
85 Exhibit 15, Deposition of Kenneth Talley, p. 37.
86 Exhibit 15, Deposition of Kenneth Talley, p. 38.
87 Exhibit 15, Deposition of Kenneth Talley, p. 43-44; Exhibit 15-A, Talley Deposition Exhibit 165.
88 Exhibit 15-B, Talley Deposition Exhibit 168.
89 Exhibit 15, Deposition of Kenneth Talley, p. 47.
90 Exhibit 15, Deposition of Kenneth Talley, p. 47-48.
91 Exhibit 15, Deposition of Kenneth Talley, p. 97-98; 102.
15
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.92 When asked whether
Pohl knew he was getting paid to “contact vehicle accident victims,” Talley
responded, “the money was coming from Edgar [Jaimes] who workekd for him.”93
Although his paycheck was from Walker’s company, “the fundinCg came by way of
Edgar [Jaimes].”94
Personally soliciting clients for Pohl became so freiquent that Talley began
carrying with him blank Pohl contracts to each solicitation.95 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.”96
Talley would have no “reason not to lmention Mr. Pohl’s name” during the
solicitation.97 Talley would never recoMmmend any lawyers other than Pohl.98 Talley
would not tell the clients that he was getting paid to solicit them.99 Talley would
present a Pohl contract to thei potential client.100 If the client did not agree to hire
Pohl, the clients would not get the money.101 Talley testified that Jaimes and
Donalda (the operatoros of Helping Hands Financing) would send him the money.102
92 Exhibit 15n, Deposition of Kenneth Talley, p. 99.
93 ExhibitU 15, Deposition of Kenneth Talley, p. 100.
94 Exhibit 15, Deposition of Kenneth Talley, p. 100.
95 Exhibit 15, Deposition of Kenneth Talley, p. 49.
96 Exhibit 15, Deposition of Kenneth Talley, p. 54.
97 Exhibit 15, Deposition of Kenneth Talley, p. 108.
98 Exhibit 15, Deposition of Kenneth Talley, p. 59.
99 Exhibit 15, Deposition of Kenneth Talley, p. 58; 109.
100 Exhibit 15, Deposition of Kenneth Talley, p. 89.
101 Exhibit 15, Deposition of Kenneth Talley, p. 58-59.
102 Exhibit 15, Deposition of Kenneth Talley, p. 86.
16
Both Talley and Pohl knew that what they were doing was illegal. In one
instance, Talley was “run out of town” while soliciting clients for Pohl.103 Talley
testified during the attempted solicitation he was told by a “lawyer or policeman”
that “it was against the law what [he] was doing.”104 Talley mentionedk this to Pohl
and Pohl told him “you’ve just got to leave...some people you can’t Chelp.”105
Pohl illegally solicited several clients who would later hire
Kassab to sue Pohl for barratry. t
One of the victims solicited by Talley at the instruction of Pohl was Mae
Berry. Berry is the mother of Johnny Berry, a boy weho died in a tragic auto accident
on or about August 17, 2014. 106 Within days ouf the accident, Berry was visited at
her home by Talley.107 The visit was unsolicited.108 Talley told Berry that he was
with “Helping Hands” and brought hera a gift basket.109 Talley suggested that she
may have a lawsuit against the make of the vehicle that Johnny was driving and
told her he knew an attorney ouet of Texas named Pohl who could represent her.110
Berry had never spoken wifth Talley or Pohl prior to this date and she did not
request Talley to visit with her about the accident or any potential lawsuit.111 Talley
could see that Berry was morning over the loss of Johnny and offered her $500 to
pay for her son’si funeral, but only if she agreed to hire Pohl.112 In need of the money
103 ExhibiUt 15, Deposition of Kenneth Talley, p. 84.
104 Exhibit 15, Deposition of Kenneth Talley, p. 84.
105 Exhibit 15, Deposition of Kenneth Talley, p. 85.
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.
17
to burry Johnny, Berry agreed to hire Pohl.113 Walker sent Pohl an email on August
21, 2014 forwarding the Helping Hands Financing documents and stating, “Coach
Ken will be getting the Pohl contract signed this afternoon.”114 However, Pohl never
ended up pursuing Berry’s case.115 k
Talley himself testified to this solicitation. Talley admits to Csoliciting Berry at
her home just three days after the accident that took Johnny’s life.116 Talley testifies
that he told Berry that Helping Hands “had attorneys out iof Houston that were the
best at handling these types of accidents” and that he gave Berry $500 “up front.”117
Talley solicited Berry after he got a call from Ladner who told him that a “kid was
killed and it should be a good case” and that “we needed to go check it out.”118 Talley
testified that he was paid $250 to solicit Blerry as a client and was also reimbursed
from Helping Hands the $500 he paMid to Berry.119 Talley never told Berry he was
getting paid to make contact with her.120 Berry did not know that the solicitation
was wrongful or caused her leigal injury until sometime in 2017 when she received
an advertisement from the undersigned counsel notifying her of her potential
injury.121 o
Talley also lsolicited Arthur and Lisa Speck to hire Pohl. The Specks are the
parents of is Riebecca Speck, an eighteen year old who died in July of 2010 as the
113 ExhibiUt 16, September 17, 2018 Declaration of Mae Berry.
114 Exhibit 17, August 21, 2014 Email re Mae Berry.
115 Exhibit 15, Deposition of Kenneth Talley, p. 56.
116 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.”).
117 Exhibit 15, Deposition of Kenneth Talley, p. 54.
118 Exhibit 15, Deposition of Kenneth Talley, p. 55.
119 Exhibit 15, Deposition of Kenneth Talley, p. 57-58; see also Exhibit 5, Precision Financials.
120 Exhibit 15, Deposition of Kenneth Talley, p. 58.
121 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
18
result of a tragic auto accident.122 Talley testified that he was notified about this
case by Ladner who told him “there’s a case in the backyard he wanted [him] to go
pursue.”123 Talley found the Specks’ address and he “went and knocked on their
door.”124 The visit by Talley was unsolicited.125 The Specks answeredk, and Talley
told them he was with Helping Hands and offered them $1,000 cCash if they would
hire Pohl to pursue their claim.126 Talley testified that he “didn’t have any reason
not to mention Mr. Pohl’s name” at this visit because he “kinew he was the attorney
handling things for us.”127 The Specks agreed, and signed two contracts with Pohl’s
law firm and funding agreements with Helping Hands.128 Sometime in August of
2014, the Specks received a letter from Pohl stating he would not pursue the
claims.129 Talley never told the Specks thalt anyone was paying him to make contact
with them.130 M
Alphonse Bethley and Sandra Johnson are the biological parents of Ashley
Bethley.131 Ahsley was killed iwhen she lost control of her vehicle and it struck a
utility pole.132 Ashley was only twenty-four years old.133 In July of 2014, Ladner
personally solicited thoe Bethleys at their home to hire Pohl.134 The visit by Ladner
122 Exhibit 18, Sepcteimber 14, 2018 Declaration of Arthur Speck.
123 Exhibit 15, D f eiposition of Kenneth Talley, p. 105.
124 Exhibit 15,o Deposition of Kenneth Talley, p. 105.
125 Exhibit 1n8, September 14, 2018 Declaration of Arthur Speck.
126 ExhibiUt 15, Deposition of Kenneth Talley, p. 107-108.
127 Exhibit 15, Deposition of Kenneth Talley, p. 108.
128 Exhibit 18, September 14, 2018 Declaration of Arthur Speck, at Exhibit 18-A, Speck Contracts
and Exhibit 18-B, Speck Funding Agreement.
129 Exhibit 18, September 14, 2018 Declaration of Arthur Speck,
130 Exhibit 15, Deposition of Kenneth Talley, p. 109.
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.
19
was unsolicited.135 The Bethleys did not request Ladner to visit them, nor did they
seek out the legal services of Pohl.136 Ladner offered them money if they would hire
Pohl to pursue their claims.137 The Bethleys agreed, and signed a blank contract
with Pohl and his law firm that was provided to them by Ladner.138 kIn exchange,
Ladner and Walker agreed to share $5,000 for every $1,000,00C0 of the received
settlement from the Bethleys’ lawsuit.139 Ladner emailed Pohl and Jaimes facts
concerning these newly solicited clients and also stated ithat he spoke with the
mother of the passenger of the vehicle “and will follow up on signing that family.”140
Sometime in August of 2015, however, the Bethleys received a letter from
Pohl stating he would not be pursuing their claim.141 Years later, in 2017, the
Bethleys received an advertisement froml the undersigned counsel notifying them
the way they were contacted by LadMner and solicited to hire Pohl may have been
wrongful and may have caused them legal injury.142 Prior to receiving this
advertisement, the Bethleys diid not know that the way they were contacted was
wrongful, or that it caused them legal injury or harm.143
Heraclite Bikuombu and his two minor children Plovyt and David were also
victims of Pohl’s illlegal solicitation scheme. On or about July 6, 2013, Bikumbu and
his children wiere traveling with relatives from Missouri to Iowa when the rear tire
135 ExhibiUt 19, September 17, 2018 Declaration of Alphonse Bethley.
136 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
137 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
138 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley, and Exhibit 19-A, Bethley Pohl
Contract.
139 Exhibit 20, Bethley Distribution Agreement.
140 Exhibit 21, July 23, 2014 Email re Ashley Bethley.
141 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
142 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
143 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
20
on their van blew out, causing the van to enter the median and roll several times.144
Bikumbu and his children were hospitalized with serious injuries.145 Their relative,
Simon Kumeso, was killed in the accident.146
Just days after the accident, Magdalena and her brother Floriank (also known
as Jay) showed up at the hospital room to personally solicit CBikumbu and his
children to hire Pohl.147 The Santanas brought Bikumbu and his children gifts,
including clothes, and stated they were with Helping Handis and worked for Pohl.148
The Santanas told Bikumbu that he had a viable lawsuit 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.149 The Santanas told Bikumbu that he
would get the money only if he signed al contract of representation.150 Bikumbu
agreed and signed a proposed contracMt with Pohl.151
A friend of the relative who died, Nsalambi Kkongolo, emailed Pohl days
after the accident confirming tihe solicitation by the Santanas:
I am helping a family whose father (Mr. Simon Kumeso) was killed in
a car accident. I was then contacted my [sic] Mr. F. Jay Santana and
Maggie Santanoa from St Petersburg (FL) of Tower 7 Consulting Group.
They came to Jefferson City, Missouri and we did some paperwork
stating thatl you will take the case and they also give $3000 to the wife
of the decieased as financial aid to help with funeral (at 18% interest). I
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.
151 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu and Exhibit 22-A, Bikumbu-
Pohl Contract.
21
would like to make sure that Santana work with you, you will take the
case and the papers the wife of the deceased signed are legitimate.152
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 ethese terrible
accidents.”153 
Magdalena testified to the solicitation of Bikumbu atnd his children in her
deposition, stating that she and her brother where there on behalf of Pohl and his
law firm: e
A. You were asking me about when I vuisited clients in the hospital.
This was an example of one of the clients that I had visited in
the hospital. They had lost -- I think the husband died in a tire
blow-out, roll-over. There werle several kids in the hospital and a
gentleman and a lady. Anad this was the e-mail I -- the point of
contact was a professorM from the university that was going to
translate from English to French to the client. And I guess he
was reaching out to either Michael Pohl's firm or to -- yeah, to
Mr. Pohl directly. Hee wanted to make sure that we were who we
said we were basiically.
Q. And this e-mail references Jay. Is that your brother?
A. Yes, it iso.
Q. Did hle go with you to sign up that client?
A. Yies, he did.
o ...
Q. Okay. And in it Mr. Pohl says, “I can vouch completely for Jay
and Maggie.” Do you know why he would be vouching for you?
152 Exhibit 23, July 11, 2013 Email.
153 Exhibit 24, July 11, 2013 Response Email.
22
A. Because I'm representing him. Because I was there on his
behalf.154
Florian also testified that he provided “marketing services” for auto accident
cases,155 and specifically testifies to soliciting the Bikumbu family just days or
weeks after the accident in Missouri occurred.156 The Santanas weree paid “bonuses”
for soliciting the “Kumeso” case.157 
Raymond Butts was the victim of a tragic automobilte accident 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 ein the hospital recovering from
his injuries and grieving the loss of his fiancé, Buutts received an unexpected phone
call from Magdalena, who said she was working on behalf of Pohl. Magdalena
testified about this solicitation in haer deposition, calling it “a crazy one.”158
Magdalena testified that while she and Walker were “soliciting for Michael Pohl for
the client to sign,” Butts’ familey got “really irate and they called the security on
[them] at the hospital.”15O9 Tfhe family told security that “these people are here
soliciting for an attorney.”160 Magdalena’s persistence eventually paid off and Butts
agreed to hire Pohl, signing two contracts with his law firm.161 Magdalena also had
Butts sign a funiding agreement with Helping Hands Financing to obtain the money
154 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
155 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 63-67.
156 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 66-70.
157 Exhibit 5, Precision Financials.
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. 55.
160 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 56.
161 Exhibit 26, Butts-Pohl Contracts.
23
Magdalena promised to pay Butts if he hired Pohl.162 And of course, Magdalena had
Butts execute the “Attorney Acknowledgement” listing Pohl as his lawyer and
authorizing Pohl to pay back Helping Hands Financing from any settlement.163
Magdalena was paid for this unlawful solicitation. Ultimately, howevekr, Pohl never
countersigned the contracts, and the claims were not pursued. C
On or about Saturday, February 15, 2014, LaDonna Cheatham and her
children, Destiny and Markus, were tragically killed after ai tire on the Kia Sorrento
driven by LaDonna failed and caused the vehicle to cross the median and collide
with an oncoming school bus.164 LaDonna’s other son, Mark Cheatham, Jr. survived
the crash.165 Mark Cheatham, Sr. is the ex-husband of LaDonna, biological father to
Markus and Mark, Jr., and father-figulre to Destiny.166 Luella Miller is the
surviving mother to LaDonna.167 LaMDonna was only thirty-six years old, Markus
was sixteen and Destiny was only six.168
Less than a week afteir the accident, Pohl and his firm entered into an
agreement with Walker, Ladner and Precision to provide “marketing services” – i.e.
“barratry” – relating oto the Cheatham accident wherein Pohl agreed to pay these
non-lawyers an unlethical percentage of his attorney’s fees.169 Talley contracted with
Precision to aiid in providing these “marketing services” to Cheatham and Miller in
162 Exhibit 27, Butts Funding Agreement.
163 Exhibit 28, Butts Attorney Acknowledgement.
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 29, Affidavit of Mark Cheatham, Sr., p. 1.
169 Exhibit 30, Cheatham Retention Services Agreement.
24
exchange for $10,000 for every $1,000,000 received in a settlement.170 Talley
testified that was paid a fee by Pohl, through Precision, to personally solicit and
sign up the Cheatham family.171 And, Talley was successful.
Talley testified in his deposition that days after the accident,k he did some
“snooping” and located the residence of Cheatham, Sr.172 TallCey went out and
“knocked on the door” and Cheatham, Sr. answered.173 Talley told Cheatham, Sr.
and Miller that he was with “Helping Hands” and could heilp them with burial costs
and “getting settlements.”174 Talley told Cheatham, Sr. that 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.”175
Cheatham, Sr. and Miller signed the papelrwork, including the contract with Pohl,
right there.176 Talley testified that heM gave the Cheatham family $24,000 to sign up
with the lawyers.177 Either Pohl or Ammons brought the $24,000 and gave it to the
family,178 $18,000 of which wient to Cheatham, Sr., and all of which was paid by
Helping Hands Financing.179
Talley’s testimoony is consistent with that of Cheatham, Sr. who testifies that,
on or about Februlary 19, 2014, just days after the accident, he and Miller were
personally soliicited by Talley at his home in Schriever, Louisiana and urged to hire
170 ExhibiUt 31, Cheatham Distribution Agreement.
171 Exhibit 15, Deposition of Kenneth Talley, p. 60-61.
172 Exhibit 15, Deposition of Kenneth Talley, p. 64-65.
173 Exhibit 15, Deposition of Kenneth Talley, p. 65.
174 Exhibit 15, Deposition of Kenneth Talley, p. 64.
175 Exhibit 15, Deposition of Kenneth Talley, p. 65-66.
176 Exhibit 15, Deposition of Kenneth Talley, p. 66.
177 Exhibit 15, Deposition of Kenneth Talley, p. 74.
178 Exhibit 15, Deposition of Kenneth Talley, p. 77.
179 Exhibit 32, Helping Hands Check to Mark Cheatham.
25
Pohl and Ammons in a potential lawsuit against Kia Motors.180 Neither Cheatham,
Sr. nor Miller had ever met Talley before and did not request him to visit with them
about the accident.181 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.182 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.183 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.184 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.185 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.186 Cheatham, Sr.
agreed and signed the investigation agreement with Helping Hands.187 To get the
money, Cheatham, Sro. was required to sign several documents with Helping Hands
Financing, Donaldla Pohl’s company.188
180 Exhibit 30, Cheatham Retention Services Agreement.
181 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
182 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp. 1-2.
183 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, and Cheatham Ex. 1.
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.
187 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 2.
188 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
26
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.189
Pohl said that Ammons was an expert on auto accident and auto dekfect cases.190
Pohl promised to pay Cheatham, Sr. $18,000 if he agreed to hire CPohl and Ammons
in the auto accident case.191 Cheatham, Sr. and Miller agreed and signed
contingency fee contracts for legal services with Pohil on this same day.192
Cheatham, Sr. signed the contract for legal services individually and on behalf of
Destiny, Markus, and Mark, Jr., who were all minors.193 The $18,000 was paid to
Cheatham, Sr. in exchange via a check written from Donalda Pohl’s company
Helping Hands Financing.194 Cheathaml, Sr. and Miller later signed joint
representation agreements with PohMl and Ammons.195 Cheatham, Sr. testified that
he was offered and received an additional $500 to sign this joint agreement.196
Lacy Reese lost her huisband David Reese on or about July 2, 2014 in a
vehicle accident that occurred outside of Anson, Texas.197 Reese buried her husband
on July 7, 2014.198 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
189 Exhibit 29, A f ffiidavit of Mark Cheatham, Sr., p. 2.
190 Exhibit 29,o Affidavit of Mark Cheatham, Sr., p. 2.
191 Exhibit 2n9, Affidavit of Mark Cheatham, Sr., p. 2.
192 ExhibiUt 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3; Exhibit 33, Miller-Pohl
Agreement.
193 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3.
194 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2; Exhibit 32, Helping Hands Check to Mark
Cheatham.
195 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp. 2-3, at Cheatham Ex. 5; Exhibit 34, Ammons-
Miller Agreement.
196 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp.2-3.
197 Exhibit 35, Declaration of Lacy Reese, p. 1.
198 Exhibit 35, Declaration of Lacy Reese, p. 1.
27
Helping Hands.199 The next day, July 8, 2014, Ladner again visited Reese’s home in
Paris, Arkansas and met with Reese and her mother, Karen Fairbanks.200 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.201 Ladner told ReeCse that if it looked
like she had a lawsuit, Pohl and his co-counsel, Rob Ammons, could handle the
case.202 Reese’s mother wrote down the names of these ilawyers on the back of
Ladner’s business card during this meeting.203 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.204 Reese had never met Ladner,
Pohl or Ammons, or requested them tol visit with her about the accident or
requested them to contact her.205 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.206 The
agreement that Ladner had Reese sign provided Helping Hands Group $400 per
hour or 40% of any reocovery in her case.207 To get the money, Reese was required to
199 Exhibit 35, Declaration of Lacy Reese, p. 1, and Reese Ex. 1.
200 Exhibit 35, Declaration of Lacy Reese, p. 1.
201 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
202 Exhibit 35, Declaration of Lacy Reese, p. 1.
203 Exhibit 35, Declaration of Lacy Reese, at Reese Ex. 1.
204 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
205 Exhibit 35, Declaration of Lacy Reese, p. 2.
206 Exhibit 35, Declaration of Lacy Reese, p. 2.
207 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 2.
28
sign several agreements with Helping Hands Financing, Donalda Pohl’s
company.208 Reese was told she would get the money after a suit had been filed.209
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.210 Among other
things, Ladner was to “conduct initial interview” of the victims and “maintain
contact with the victims and their family.”211 In exchanige, Pohl agreed to pay
Ladner and Helping Hands Group fees not to exceed 30% of his own attorney’s
fees.212 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.213 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.”214
Ladner described the accident that occurred on July 2nd – less than three weeks
prior.215 On or about Aougust 16, 2014, Reese received an email from Ladner about a
contract with Pohll.216 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
208 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 3.
209 Exhibit 35, Declaration of Lacy Reese, p. 2.
210 Exhibit 36, Reese Retention Services Agreement.
211 Exhibit 36, Reese Retention Services Agreement.
212 Exhibit 36, Reese Retention Services Agreement.
213 Exhibit 37, Reese Distribution Agreement.
214 Exhibit 38, July 18, 2014 Email re Reese Case.
215 Exhibit 38, July 18, 2014 Email re Reese Case.
216 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
29
contract directly to Pohl’s office.217 Reese received an email two days later from
Walker forwarding her Pohl’s contract.218 Reese signed the contract and sent it to
Pohl.219
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.220 Ladner solicited Reese on behalf
of Precision and “to get paid” by Pohl.221 Ladner referred ithe case to Pohl and got
paid a “bonus” of $2,500.222 Ladner brought with him Helping Hands Financing
forms he obtained from Jaimes.223 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.224 And Pohl
acknowledged that Ladener “was opeMrating under [his] direction to … investigate[]
the incident as part of an initial case evaluation process.”225 In other words, Ladner
was soliciting Reese and evaluiating her potential claim at the direction of Pohl.
Pohl is sued by his Mississippi runners who expose the illegal
and unethical barratry scheme and Pohl settles that litigation
after unsucceossfully seeking to have it dismissed based on the
illegality of his agreements.
On Octobier 8, 2014, Walker and Ladner and their company Precision sued
Pohl and hois law firm for breach of contract and fraud, among other claims (the
217 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
218 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 5.
219 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 6.
220 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 346-351.
221 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347.
222 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347, 358-359
223 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 349-350.
224 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 351-354.
225 Exhibit 40, January 19, 2016 Letter.
30
“Mississippi Litigation”).226 There, Walker and Ladner alleged they had a joint
venture with Pohl to sign up clients with economic loss claims stemming from the
BP Deepwater Horizon oil spill.227 See Walker v. Williamson, No. 1:14cv381-KS-
JCG, 2016 U.S. Dist. LEXIS 61185, at *5-6 (S.D. Miss. May 9, 201k6). They also
alleged that they had “conducted marketing efforts to obtain persoCnal injury clients”
for Pohl228 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 hiis fees to Walker [and]
Ladner.”229
More specifically, Walker, Ladner and Precision (“the Runners”) alleged that
Pohl contracted with them to provide “public relations and marketing services” to
potential clients impacted by the Deepwlater Horizon oil spill in exchange for “a
percentage of the attorney fees for thMe claims obtained from their efforts, along with
expenses and a flat fee.” Walker, 2016 U.S. Dist. LEXIS 61185, at *6-7. The
Runners also alleged that thiey contracted with Pohl “to provide marketing and
public relations services in connection with claims for automobile rollover
accidents.” Walker v. oWilliamson, No. 1:14-CV-381-KS-MTP, 2017 U.S. Dist. LEXIS
59031, at *5 (S.Dl. Miss. Apr. 18, 2017). “There is evidence that the [Runners]
contacted peopile 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 million in ‘barratry pass-through money’ for their services.”
226 Nicholson Exhibit 4, Walker Complaint.
227 Exhibit 41, Walker Second Amended Complaint.
228 Exhibit 41, Walker Second Amended Complaint. ¶ 118.
229 Exhibit 41, Walker Second Amended Complaint. ¶ 136.
31
Kassab v. Pohl, 612 S.W.3d 571, 574 (Tex. App. – Houston [1st Dist.] 2020, pet.
denied). However, the Runners sued Pohl because they “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” ork all expenses
incurred. Walker v. Williamson, No. 1:14-cv-381-KS-JCG, 2016 CU.S. Dist. LEXIS
76488, at *5, 24 (S.D. Miss. Mar. 1, 2016).
Precision transfers and assigns its assets andi 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 the Mississippi Liutigation, Pohl discovered that the
Runners allegedly “disclosed confidential and proprietary information to third
parties without authorization” and proaposed “the ‘sale’ of all of [his] accumulated
work product to third parties” while working for him.230 Pohl testifies that the
Runners “undertook to converte, misappropriate for themselves and/or market to
third parties claimant files fand other information and materials” that allegedly
belonged to Pohl231 – including “marketing information and other trade secrets”232 –
and then the new owner of Precision, Scott Favre, allegedly “sold those items and
the information”i to Kassab.233
230 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 18.
231 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
232 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
233 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 29.
32
As a result, Pohl “asserted multiple claims against” the Runners in the
Federal Court Case based on their alleged “fraudulent and bad faith conduct.”234
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 kthe “team of
thieves” who broke into Pohl’s office in 2014 and stole his confidCential information
and purported trade secrets.235
Pohl attempted to dismiss the Mississippi Litigationi, arguing the agreements
between he and the runners were illegal and unenforceable.236 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.”237 The Mississippi federal courlt denied Pohl’s motion to dismiss and
concluded that he was in a partneMrship with Walker and Ladner and further
concluded that the agreements to solicit clients would only be a violation of the
Texas disciplinary rules andi Texas law, which did not apply to Walker and
Ladner.238 Having failed to obtain summary dismissal, Pohl settled the Mississippi
Litigation, hoping too forever conceal the barratry operation.239 The Mississippi
Litigation was dismlissed with prejudice on April 24, 2017.240
234 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 19; see also Exhibit 43, Pohl’s Amended
Counterclaim.
235 Exhibit 44, May 15, 2018 Deposition of Michael Pohl, pp. 85-93.
236 Exhibit 45, Walker Memorandum Opinion (Doc. No. 475); Exhibit 46, Walker Pohl Memorandum
(Doc. No. 175).
237 Exhibit 46, Walker Pohl Memorandum, at ¶ 18.
238 Exhibit 47, Walker Order on Pohl Motion to Dismiss (Doc. No. 252).
239 Exhibit 48, Walker Judgment (Doc. No. 499).
240 Exhibit 48, Walker Judgment (Doc. No. 499).
33
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.
Kassab was tipped off to the allegations in the Mississippi Litigation by an
acquaintance of his, F. Douglas Montague of the Mississippi law firkm Montague
Pittman & Varnado, PA (“Montague”).241 Kassab obtained much inCformation related
to the Mississippi Litigation from the federal court’s online system, PACER.242
Kassab also associated Precision and its new owner, iFavre, and its counsel,
Nicholson, and obtained information directly from them, including the names and
addresses of Pohl’s former or prospective clients.243 Favre informed Kassab that,
when he bought Precision, he acquired files related to Pohl and Favre transferred
that information to Kassab.244 l
Kassab prepared advertisemenMt letters approved by the State Bar of Texas
and sent it to people who had been illegally solicited by Pohl, informing them that
they may have potential barriatry claims against Pohl.245 Hundreds of Mississippi
residents responded to Kassab’s advertisement letter and more than 400 signed
representation contraocts with Kassab’s firm to pursue barratry claims against
Pohl.246 Kassab filled four separate lawsuits on behalf of these barratry victims in
Harris Countiy, Texas (the “Barratry Lawsuits”).247 Additionally, due to the
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 2-3.
244 Exhibit 49, Declaration of Lance Christopher Kassab, at 2; Exhibit 50, Affidavit of Scott Favre.
245 Exhibit 49, Declaration of Lance Christopher Kassab, at 2; Exhibit 51, Advertisement Letters.
246 Exhibit 49, Declaration of Lance Christopher Kassab, at 2.
247 Exhibit 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).
34
egregiousness of Pohl’s violation of the Texas Penal Code and violations of the Texas
Disciplinary Rules of Professional Conduct, Kassab was required to notify the Texas
State Bar pursuant to disciplinary rule 8.03.248 Thus, Kassab filed grievances
against Pohl pursuant to this rule, and also at the request of some of kPohl’s former
clients.249 C
Pohl files this retaliatory lawsuit against Kassab seeking as
damages the costs he incurred to defend againstt the Barratry
Lawsuits and grievances filed against him. i
In retaliation, Pohl filed this litigation against Kassab, Favre, Nicholson,
Precision, and others, for conversion, misappropriation of trade secrets and
conspiracy.250 Pohl rehashes his allegations from the Mississippi Litigation,
claiming that “Precision gained access lto Pohl’s confidential and proprietary
information and property, including tMrade secret materials” and “work product” and
“illegally misappropriated” this information and then allegedly “secretly sold Pohl’s
confidential information to Kaissab and [another lawyer named] Montague”251 who
then “solicited clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring
cases against Pohl foro alleged barratry and other claims.”252 As damages, Pohl seeks
the costs and explenses he incurred defending against the Barratry Lawsuits and
grievances fileid against him.
248 Exhibit 49, Declaration of Lance Christopher Kassab, at 1.
249 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.”
250 See Pohl’s First Amended Petition (on file with the Court).
251 First Amended Petition, at ¶¶ 20-21.
252 First Amended Petition, at ¶ 29.
35
SUMMARY JUDGMENT STANDARD
The purpose of summary judgments is to eliminate patently unmeritorious
claims and untenable defenses. Tex. Dep't of Parks & Wildlie v. Miranda, 133
S.W.3d 217, 228 (Tex. 2004). To prevail, the movant must show thakt no genuine
issue of material fact exists and that it is entitled to judgment aCs 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 nonmiovant to raise a genuine
issue of material fact precluding summary judgment.” 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 material fact exists if more than a scintilla of
evidence establishing the existence of thle challenged element is produced.” Ford
Motor Co. v. Ridgway, 135 S.W.3d 598M, 600 (Tex. 2004).
ARGUMENT & AUTHORITIES
Although Pohl’s claimsi against Kassab lack merit because Kassab did not
misappropriate Pohl’s trade secrets or otherwise engage in any misconduct, the
Court need not decideo that issue to dispose of Pohl’s claims against Kassab. Rather,
Pohl’s claims can ble dismissed for several independent reasons.
A. Piohl’s claims against Kassab are barred by immunity
ounder 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 Procedure. That rule
provides:
36
No lawsuit may be instituted against any Complainant or
witness predicated upon the filing of a Grievance or participation in
the attorney disciplinary and disability system. … The 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 wrongdoking” done “in
connection with [the] prosecution of disciplinary actions” are absoClutely immune, so
long as they are “predicated upon” the filing of a grievance. Crampton v. Farris, 596
S.W.3d 267, 274-75 (Tex. App.—Houston [1st Dist.] 2019, nio pet.).
Here, it is undisputed that Pohl’s allegations of wrongdoing against Kassab
are predicated upon Kassab’s filing of grievances against Pohl. Pohl testified that he
has sued Kassab because Kassab allegedly “used information from [Pohl’s] files in
the grievance proceedings that [Kassab] lpersonally filed or had clients file and
[Kassab allegedly] shared [Pohl’s] stoMlen property with Ms. Nicholson so she could
defend a grievance against herself, according to her own testimony.”253 Pohl seeks
as damages in the form of “coists and expenses of … serial grievances that arose
from the use of the [allegedly] misappropriated trade secrets.”254 Pohl intends to
have his biased expoert, John Zavitsanos,255 “testify that Defendants, including
[Kassab], sought tlo profit from the use of [Pohl’s information] by … using it … to
facilitate the ibringing of grievances and litigation against Pohl.”256 Zavitsanos is
purportedly going to “opine that [Pohl’s] attorneys’ fees and expenses incurred … in
253 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
254 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122. (emphasis added).
255 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.
256 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 5.
37
defending related matters including against invalid grievances … are fair,
reasonable, necessary and recoverable under the circumstances.”257
But Rule 17.09 makes clear that “[n]o lawsuit” may be instituted against
Kassab that is “predicated upon” the filing of a grievance or particikpation in the
attorney disciplinary and disability system. TEX. R. DISC. P. 17.0C9. Because Pohl’s
claims against Kassab and the damages that he seeks are “predicated upon” the
grievances that Kassab caused to file against Pohl, thie claims are barred by
“absolute and unqualified” immunity 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 grievance proceeding barred by immunity under Rule 17.09);
Burch v. State Bar of Tex., No. 07-19-0022l4-CV, 2020 Tex. App. LEXIS 1409, at *3
(Tex. App.—Amarillo Feb. 19, 2020, pMet. denied) (immunity under Rule 17.09 barred
claim that attorneys for commission, in relation to a grievance proceeding, who
purportedly “engaged in miscionduct related to a bankruptcy proceeding in which
[plaintiff] was involved”). Since all of Pohl’s claims are related to the grievance
proceedings, they areo all barred by Rule 17.09 and summary judgment may be and
should be granted lbased upon Rule 17.09 alone.
B. Piohl’s claims against Kassab are barred by the judicial
oproceedings 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 open court, pre-trial
257 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 6.
38
hearings, depositions, affidavits and any of the pleadings or other papers in the
case.” Landry's, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021)
(internal quotations omitted). “The judicial-proceedings privilege exists to facilitate
the proper administration of the justice system. It does so by krelieving the
participants in the judicial process from fear of retaliatory lawsuCits for statements
they make in connection with the proceeding itself.” Id. at 48.
Moreover, the judicial-proceedings privilegei attaches even to
“communications preliminary to a proposed judicial proceeding” if “the
communication has some relation to a proceeding that is actually contemplated in
good faith and under serious consideration by the witness or a possible party to the
proceeding.” Id. at 48-49. “Even in the prle-suit context, however, the privilege
protects communications that arMe themselves preparatory to the lawsuit.”
Id. (emphasis added). The privilege protects all communications that are
“necessary to set the judiicial machinery in motion.” Id. at 50 (quoting
RESTATEMENT (SECOND) O F TORTS § 586 cmt. a) (emphasis added).
Here, Pohl haos sued Kassab in retaliation for Kassab “solicit[ing] …
clients/prospectivel clients to act as plaintiffs … to bring cases against Pohl for
alleged barratiry and other claims.”258 Pohl admits that he is suing Kassab for
statements Kassab made to prospective clients which spawned the litigation and
grievance proceedings:259
258 Amended Petition, at ¶ 29.
259 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
39
Because Pohl’s claims against Kassab arisne out of communications that Kassab
made in prospective (solicitation letterrs) and actual judicial proceedings (the
barratry litigation and grievance process), Pohl’s claims against Kassab are barred
by the judicial proceedings privielege. See Crain v. Smith, 22 S.W.3d 58, 62-63 (Tex.
App.—Corpus Christi 2000, fno pet.) (holding that statements in letter sent before
the lawsuit began were protected by the judicial-proceedings privilege).
It matters not how Pohl characterized his claims against Kassab because “the
privilege shouldi be extended beyond defamation when the essence of a claim is
damages tohat flow from communications made in the course of a judicial
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 litigation and “[a]ny
40
fees, any expenses [Pohl] had, hotel rooms, long-distance phone calls, copy costs,
[Pohl] intend[s] to sue Mr. Kassab for all of it.”260 Because Pohl’s alleged damages
“flow from” communications that Kassab made in the barratry litigation and
grievance proceedings, his claims are barred regardless of label. Seek id. (holding
privilege applied to claims for “intentional interference, civil consCpiracy, intentional
infliction of emotional distress, negligence, and constitutional violations”); Tex. Mut.
Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-00807-CiV, 2006 Tex. App. LEXIS
2001, at *27-28 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem.
op.) (holding that absolute privilege applied in deceptive insurance practices claim
under Texas Insurance Code because “although [plaintiff] did not plead defamation,
its theory of damages was that its clilents, creditors, and bonding companies
abandoned it, in part, because of the M[insurer's] allegations and assertions . . . made
in the course of this judicial proceeding”). Thus, summary judgment must be
granted based upon the judiciail proceedings privilege.
C. 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, undier any cause of action, against another attorney arising from
conduct theo second attorney engaged in as part of the discharge of his duties in
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.”
260 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
41
Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). The inquiry “focuses on the
kind of conduct at issue rather 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 alleged to be fraudulent or otherwise wrongful.” Id. “Merekly labeling an
attorney’s conduct ‘fraudulent’ does not and should not remove itC 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 thie protections of attorney
civil immunity when the conduct alleged is connected with representing a client 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, 483 (Tex. 2015)
(“an attorney’s conduct may be wrongfull but still fall within the scope of client
representation”). M
Although the Court previously denied Kassab summary judgment on this
defense, the Texas Supreme Ciourt’s recent decision in Taylor v. Tolbert, 644 S.W.3d
637 (Tex. 2022) requires reconsideration. Taylor held that even “conduct prohibited
by statute” is subject oto attorney immunity if the “statute does not expressly, or by
necessary implicaltion, abrogate the immunity defense, and the attorney met her
burden to estaiblish its applicability to the conduct at issue.” Id. at 642.
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 damages. Id.;
42
see also TEX. CODE CRIM. PROC. § 18A.502. The attorney moved for traditional
summary judgment, “arguing she is immune from liability as a matter of law
because the plaintiffs’ claims all stem from her role as an attorney in the
modification proceeding.” Id. at 644. The trial court agreed, but the coukrt of appeals
reversed. Id. The Supreme Court granted review and reversed thCe court of appeals.
Id. It concluded that the attorney was, “in all respects, engaging in the office,
professional training, skill, and authority of an attorneiy in the ways that she
allegedly used and disclosed the materials her client provided.” Id. at 649. “Because
[the attorney’s] conduct falls squarely within the confines of attorney immunity, the
alleged criminality or wrongfulness of the conduct does not perforce preclude its
availability as an affirmative defense.” Id.l The court also held that “Texas’s wiretap
statute does not expressly repudiatMe the common law or the attorney-immunity
defense.” Id.
Here too, Kassab’s coinduct which forms the basis of Pohl’s claims fall
squarely within the confines of attorney immunity, regardless of whether it is
alleged to have violoated the TUTSA because that statute does not expressly
repudiate the defelnse.
Pohl isi suing Kassab because he allegedly 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.”261 The essence of Pohl’s claims against Kassab
are “that Kassab bought Pohl’s client list from [Precision] so that Kassab could send
261 Amended Petition, ¶ 29.
43
advertisements 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.—
Houston [1st Dist.] 2020, pet. denied) (characterizing Pohl’s claims against Kassab).
Pohl seeks as damages “the costs and expenses of serial litigationks and serial
grievances” that Kassab filed against Pohl, including attorney’s feCes for his lawyers
who represented him in that litigation and “[a]ny fees, any expenses [Pohl] had,
hotel rooms, long-distance phone calls, copy costs, [Pohil] intend[s] to sue Mr.
Kassab for all of it.”262 Pohl has even designated Mr. Zavitsanos to testify to these
damages, and “the reasonableness and necessity of the attorneys’ fees, costs, and
expenses incurred by Pohl in defending against invalid grievances and stale
claims.”263 l
Moreover, in this very case, tMhe court of appeals opined that “the alleged
purchase of Pohl[’s] client list for those clients’ contact information,
followed by the mailing oif attorney advertisements to those individuals
about specific types of claims they might be able to pursue against a
specifically identifoied attorney, qualifies as statements or conduct that
arose out of a colmmercial transaction involving the type of legal services
Kassab proviides.” Kassab, 612 S.W.3d at 578 (emphasis added). 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 (emphasis added).
262 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
263 Exhibit 57, Pohl’s Second Amended Designation of Experts, at 3.
44
The acquisition of clients and filing of lawsuits are actions taken “to facilitate
the rendition of legal services.” Youngkin, 546 S.W.3d at 682; Clayton 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.) (applying attorney kimmunity to
attorney’s conduct which included “selling his legal services Cto the City as a
potential client” and subsequent conduct which “occurred in the course of his
undertaking to represent” those clients). The fact that Kiassab is alleged to have
committed the misconduct prior to any litigation is immaterial because “attorney
immunity applies to claims based on 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 (concluding tlhat attorney was immune from conduct
that occurred after litigation had endMed). In other words, Pohl’s characterization of
Kassab’s activities as part of a business transaction that occurred prior to litigation
does not negate attorney immiunity because Kassab engaged in the conduct as part
of his ultimate provision of legal services to his client. See Haynes & Boone, 631
S.W.3d at 78-79, 81 (oapplying attorney immunity to lawyer conduct committed as
part of business tlransaction). Indeed, in this case, the court of appeals concluded
that all of Kasisab’s conduct for which Pohl complains “arose out of a commercial
transaction involving the type of legal services Kassab provides.” Kassab,
612 S.W.3d at 578 (emphasis added).
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 liable for conduct
45
which was “criminal in nature” because it was committed while discharging 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. App.—Dallas Jan. 14, 2016,
pet. denied) (mem. op.) (applying attorney immunity to claim that attokrney engaged
in “malicious conduct with respect to its illegal acquisition, reCtention, use, and
threatened disclosure of [the plaintiff’s] proprietary and confidential information”
that “it knew to be stolen and proprietary in furtherancei of its scheme to extort,
slander, and disparage [the plaintiff]” and “refusing to return and cease use of [the
plaintiff’s] proprietary information”). The law of the case, as outlined by the court
of appeals in this matter, demonstrates that the alleged conduct for which Pohl
basis his claims is clearly covered by the atltorney immunity doctrine.
D. Pohl’s claims are barrMed by limitations.
A defendant moving for summary judgment on the affirmative defense of
limitations bears the burdeni 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, thoe defendant must (1) conclusively prove when the cause of
action accrued andl (2) negate the discovery rule if it applies and has been pleaded
or otherwise riaised. 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.
46
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). As demonstrated below, all of Pohl’s claims against Kassab akre barred by
limitations. C
1. Facts relevant to limitations.
Pohl testified that he and Precision shared an officie in Gulfport, Mississippi
from 2013-2014.264 Pohl called this his “satellite law office.”265 The owners of
Precision in 2014 were Scott Walker, Kirk Ladner, and Steve Seymour.266
Pohl testified that he closed his Gulfport, Mississippi office in the summer
of 2014.267 He testified that he asked lPrecision to arrange to have his office
equipment and files sent to him in HMouston, Texas.268 Pohl testified that Precision
made excuses for why they could not get his property moved to Houston.269 In June
or July of 2014, Pohl “gave upi” asking Precision to arrange the move and hired his
own mover to go to Gulfport and get everything that was in the office: “every pencil,
every paper, every fiole, every file cabinet, every icebox.”270 Pohl testified that the
mover was to bringl the property back to Pohl in Houston, Texas.271 When the mover
arrived in Gulifport, he found the office almost empty, and Precision told him that
264 Exhibit 56, December 2021 Deposition of Michael Pohl, at 7-10.
265 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6-8.
266 Exhibit 56, December 2021 Deposition of Michael Pohl, at 16.
267 Exhibit 56, December 2021 Deposition of Michael Pohl, at 11.
268 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
269 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
270 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
271 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
47
Precision removed all files and was not returning them.272 Pohl testified that he
contacted Precision and was told Precision was “keeping” the files.273
Pohl asserts that Kassab and other Defendants orchestrated and participated
directly in the 2014 theft of files.274 Pohl testified that Kassab aknd the other
Defendants “robbed my office [and] stole my clients’ names” in 2C014.275 He further
testified:
A. That group of criminals stole about 11,00i0 files out of my
Mississippi office. They also stole my computers and hired a
third party, whose name slips my mind right now, to hack
into my office computers and steale all of my confidential
information, internal documents. And they also stole my
forms that I created for BP and outher litigation, among other
things.
Q. And when you’re saying “this group of criminals,” who did
that include? r
A. It would be Scott Favre, Tina Nicholson, Lance Kassab, Doug
Montague, and poteontially the people that they either bribed
or coerced into doineg their dirty work.276
Pohl alleges that Kassab fis a co-conspirator with Nicholson to unlawfully
misappropriate his tradye secrets.277 Pohl testified that “Tina Nicholson demanded
that Scott Walker steal my files or, because he got in trouble with the law, Tina
Nicholson was goaing to take his two baby children away from him and forced him to
cooperate witfh [Kassab’s] crew to rob me and hack my computers.”278
272 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6, 12-14.
273 Exhibit 56, December 2021 Deposition of Michael Pohl, at 15.
274 Amended Petition, at ¶¶ 21-24.
275 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94-97.
276 Exhibit 59, April 2021 Deposition of Michael Pohl, at 37-39.
277 Amended Petition, at ¶ 43.
278 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94.
48
Pohl testified that the alleged theft of trade secret information occurred in
the summer of 2014 when Kassab and his “crew” allegedly broke into Pohl’s office in
Gulfport and hacked his computers, stole his clients’ names and information, and
then solicited his clients: k
Q. Okay. And you think I'm an unethical lawyer? C
A. Yes. You stole my files. You robbed me. You tried to destroy my
practice. So I don't believe you should sutbmit any more
materials, particularly false affidavits that hiave been retracted
by the witnesses who made them and other verifiably false
accusations. And you've solicited my clients like Mr. Cheatham,
and you've told him lies to get him to suee me.
A. If the question is did you steal myu 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 agalinst me.
Q. Okay. How did I steal Myour files, sir? Did I break into your
house? 
A. You broke into my elaw office.
Q. I did personallyf?
A. You and your crew.
Q. And when did I do that?
A. I doin't know the exact date, but I believe it was in 2014 when
yiou robbed me.
Q. I robbed you in 2014?
A. Yes, sir.
Q. So I broke into your office and stole your stuff in 2014 at
your Gulfport, Mississippi office, right?
49
A. You and your crew.279
In this case, Pohl admitted under oath that he knew in 2014 that his trade secrets
had been misappropriated:
Q. You knew as of the summer of 2014, then, that thek trade
secrets that you claim in this lawsuit were teaken by
Precision Marketing. Is that correct? C
A. Yes, I knew they were not being made available to me.280
Pohl also expressly testified that he knew in the summer 2014 that his files – which
he claims are the purported trade secrets – had been stsolen from him:
Q. Who stole the files? g
A. Well, originally it would have beeBn Precision Marketing.
Q. Did you form the opinion thaty they had stolen the files when Mr.
Blanton informed you that ihle learned that the files were not
available to be moved to Haouston?
A. Well, I certainly had af suspicion, so I followed up and spoke to
somebody at Precision about it.
Q. And once you spoike to the person at Precision, that’s when you
formed your opfinion that the files had been stolen from you. Is
that correct?
A. Yes. o
Q. And that would have been sometime in the summer of 2014?
A. Yecs.281
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
279 Exhibit 58, May 2018 Deposition of Michael Pohl, pp. 85-93. (emphasis added)
280 Exhibit 56, December 2021 Deposition of Michael Pohl, at 14. (emphasis added)
281 Exhibit 56, December 2021 Deposition of Michael Pohl, at 18-19.
50
was part of Kassab’s “crew” – took it, and that by July 2014 Pohl was aware that
Precision had taken it in an alleged conspiracy with Kassab.
After Pohl discovered the taking of the alleged trade secrets in the summer
2014, he took no immediate action to recover it, find out what happenedk to it, or find
out if anyone else was involved in the taking. Pohl testified that Calthough 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 biefore taking action [and]
didn’t want to do anything that was precipitous.”282
On October 8, 2014, Precision and its owners, Scott Walker, Kirk Ladner and
Steve Seymour, filed a breach of contract lawsuit against Pohl in federal court in
Mississippi.283 Pohl’s only reaction to the llawsuit was to send Walker and Ladner a
mild email two days later asking theMm to return his “original documents, evidence
and keys.”284 From that point forward, Precision and its owners proceeded to
publish Pohl’s alleged propriietary information in the lawsuit. For example, in
November 2014, one month after filing the lawsuit, they published his alleged
marketing materials,o285 communications and contracts between Pohl and other
lawyers,286 commulnications between Pohl and his clients or potential clients,287 and
Pohl’s BP clieint solicitation letter,288 all without any complaint from Pohl. Thus,
Pohl acquiesced to the publication and use of his alleged trade secrets.
282 Exhibit 58, May 2018 Deposition of Michael Pohl, p. 93.
283 Nicholson Ex. 4, Federal Original Complaint.
284 Nicholson Ex. 5, Doc. 19-1.
285 Nicholson Ex. 6, Doc. 19-5 and 19-6.
286 Nicholson Ex. 7, Doc. 19-3.
287 Nicholson Ex. 8, Doc. 19-7.
288 Nicholson Ex. 9, Doc. 19-10.
51
Pohl took no action to recover his allegedly stolen property nor attempt to
stop the dissemination of his alleged trade secrets: he did not file a counterclaim for
theft, conversion, or violation of a trade secrets act, nor did he move for injunctive or
other relief to reacquire or protect his trade secrets, nor did move fork a protective
order regarding his alleged trade secrets or (until the March 20C17 confidentiality
order that was expressly not retroactive) enter into a confidentiality agreement to
protect and keep secret the documents produced during ithe lawsuit.289 In short,
Pohl failed to do any of the things that a person exercising reasonable diligence
regarding the theft of trade secrets would do.
On or about May 12, 2015, Walker, Ladner and Seymour sold Precision to
Scott Favre, and in conjunction with tlhe sale, they transferred the allegedly
misappropriated materials to Favre’sM office in Kiln, Mississippi.290 On May 12, 2015,
Nicholson entered an appearance in the Mississippi litigation as the attorney for
Precision.291 i
The sale of Precision to Favre apparently stimulated Pohl to determine
whether Nicholson haod the alleged trade secret materials. On May 15, 2015, Pohl’s
attorney sent Nichlolson a letter demanding that Walker, Ladner and Seymour turn
over to Pohl thie contracts between him and his BP clients. The letter stated, “The
contracts do not belong to your clients.”292 Pohl’s attorney sent Nicholson a second
letter on May 20, 2015. The letter repeated Pohl’s demand that Nicholson provide
289 Nicholson Ex. A, Nicholson Affidavit.
290 Nicholson Ex. 10, Doc. 396-2.
291 Nicholson Ex. 11, Doc. 77.
292 Nicholson Ex. 12, 2015 Communications.
52
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. Pohl needs the
contracts to address client matters relating to the deadline.”293 Of course, this was a
lie because Pohl had access to all contact information, if not from hkis own home
office where contracts were sent to him, his co-counsel who was adCministering all of
their claims in Houston had copies of all contracts and contact information.
On May 27, 2015, Nicholson emailed a letter to Poihl’s attorney, confirming
that the contracts in Precision’s possession were being held at the office of Scott
Favre, Precision’s new owner.294 In pertinent part, it said:
This letter responds to your faxed letters and addresses matters which
we discussed in our telephone conversation last Friday. Your client,
Michael Pohl, has demanded thalt my client, Precision Marketing
Group, LLC, hand over the oraiginals and copies of . . . contracts
between him . . . and the BP/DMeepwater Horizon claimants. . . Mr. Pohl
asserts that the documents do not belong to PMG or the other
Plaintiffs.295
Nicholson’s letter went on to istate that “PMG will not relinquish possession of the
original contracts at this time.”296 Nicholson stated that the documents in question
were being held at theo office of Scott Favre, Precision’s new owner.297 Nicholson also
mentioned that a lcomputer containing some of the information had been sent to a
forensic experti for recovery of date.298
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.
298 Nicholson Ex. 12, 2015 Communications.
53
Pohl swore to his lawyer’s letters being sent to Nicholson requesting return of
the materials in his interrogatory answers:
i 299
Accordingly, at least as of May 2015, Pohl knew that WaDlkier and Ladner (who Pohl
contends was part of Kassab’s “crew”) had transferresd the alleged trade secrets to
Favre who was represented by Nicholson (who Pohl contends are other members of
Kassab’s “crew”), and that Nicholson had refused Pohl’s demand for return of the
information. More than 3 years later, on Alugust 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 statute of limitations, and thus, summary
judgment must be granted. i
2. Pohl’s TUTSA is barred by the three-year statute of
limpitations.
TUTSA has a three-year statute of limitations: “A person must bring suit for
misappropriationi of trade secrets not later than three years after the
misapproproiation is discovered or by the exercise of reasonable diligence should
have been discovered.” TEX. CIV. PRAC. & REM. CODE § 16.010(a). “Misappropriation”
means, among other definitions, the acquisition of a trade secret of another by a
person who knows or has reason to know that the trade secret was acquired by
299 Nicholson Ex. 13, Pohl’s Interrogatory Answers at No. 4.
54
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
single cause of action and the limitations period … begins running without regard
to whether the misappropriation is a single or continuing act.” Id. at § 1k6.010(b).
Accordingly, the first act of misappropriation is whCen the statute of
limitation accrues for misappropriation of a trade secret. See Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 451 (5th Cir. 2007) (recognizinig the TUTSA “explicitly
precludes treating trade secret misappropriation as a continuing tort.”); Guajardo v.
Freddie Records, Inc., No. CV H-10-02024, 2014 WL 12603179, 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 lLegislature enacted a three-year statute
of limitations for suits alleging misaMppropriation of trade secrets in May 1997.”).
Accordingly, “the tort of misappropriation, as viewed under Texas law, occurs at the
moment of misappropriation.”i Bianco v. Globus Med., Inc., 53 F. Supp. 3d 929, 938
(E.D. Tex. 2014)
In this case, tohe limitation period on the TUTSA claim began to run in
summer 2014, wheln Precision and allegedly Kassab, to use Pohl’s own word, “stole”
the trade seicrets.300 Pohl testified that he had actual knowledge of the
misappropriation of his claimed property no later than July 2014.301 Accordingly,
the misappropriation occurred more than four years before Pohl filed this lawsuit
in August 2018.
300 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
301 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
55
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
a roundabout way at some later point in time when a similar prokduct hits the
market. In this case, Precision physically removed all of the doCcuments 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 whiat’s more, Pohl testified,
that Kassab and his “crew” participated in the theft of his trade secrets in 2014.
Thus, based upon Pohl’s own testimony, Pohl’s TUTSA claim against Kassab
expired in July 2017, over a year before Pohl filed this lawsuit.
The statutory language is very speclific as to when the statute begins to run.
It says that the limitation period staMrts when “misappropriation is discovered or by
the exercise of reasonable diligence should have been discovered.” TEX. CIV. PRAC. &
REM. CODE 16.010(a). Pohl diiscovered the theft of his trade secrets no later than
July 2014. Accordingly, the statute began to run on the misappropriation in July
2014, meaning Pohl’so TUTSA claim was barred by the time he filed suit in August
2018. l
Alternaitively, even if the statute began to run in May 2015, Pohl’s claim is
still barred. The May 2015 letters prove that Pohl knew in May 2015 that Walker,
Ladner and Seymour had transferred the disputed documents and information to
Favre and Nicholson.302 Nicholson’s letter of May 27, 2015, informed Pohl that
Favre had the hard copies of the trade secret documents at his Kiln, Mississippi
302 Nicholson Ex. 12, 2015 Communications.
56
office, they also had the computer with the alleged trade secrets, and that Nicholson
refused to return Pohl’s alleged information.303 Hence, Pohl “discovered” Nicholson’s
alleged “misappropriation” when he received her May 2015 letter confirming her
refusal to give them to Pohl, despite his assertion of ownership. Howekver, Pohl did
not file this lawsuit until August 28, 2018, around three monthCs after the latest
possible limitation period expired on May 27, 2018.
It is also important to understand that the allegedi subsequent 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 purportedly misappropriated in
2014, or alternatively 2015, they were allegedly subsequently used or transferred
did not restart the limitation period. Thel case Agar Corp. v. Electro Circuits Int'l,
LLC, 565 S.W.3d 12 (Tex. App.—HouMston [14th Dist.] 2016), aff'd in part, rev'd in
part on other grounds, 580 S.W.3d 136 (Tex. 2019) is instructive on this point. In
Agar, the plaintiff initially suied more than a dozen defendants in April 2008 in
connection with the defendants’ alleged misappropriation of the plaintiff’s
proprietary informatioon and use of that information to create knock-off products for
sale to its customlers. Id. at 19. The plaintiff added alleged co-conspirators who
allegedly purchiased and sold some of the trade secrets as defendants to the existing
lawsuit in November 2011 — more than three years after plaintiff initially filed suit
for the misappropriation. 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
303 Nicholson Ex. 12, 2015 Communications.
57
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
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 inkjury was the
one act of copyrighting the song.” Id. at 21 (quoting Rogers v. ACrdella Veigel Inter
Vivos Trust No. 2, 162 S.W.3d 281, 290 (Tex. App.–Amarillo 2005, pet. denied)).
Pohl “discovered” “the misappropriation” in tihe summer 2014, or
alternatively when he exchanged letters with Nicholson in May and June 2015. If
anyone subsequently disclosed the trade secrets, it did not give rise to a new cause
of action. The express language of the TUTSA statute of limitation expressly
precludes “continuing tort” theories. TEXl. CIV. PRAC. & REM. CODE § 16.010(a).
Accordingly, Pohl’s TUTSA claim aMgainst Kassab is barred by limitations and
summary judgment must be granted.
3. Pohl’s coniversion and conspiracy claims are barred
by limitaftions.
Pohl’s common-law claims against Kassab for conversion and civil conspiracy
are also barred by the statute of limitations.
A person imust bring suit for the conversion of personal property “not later
than two yoears after the day the cause of action accrues.” TEX. CIV. PRAC. & REM.
CODE § 16.003(a). Generally, the limitations period for a conversion claim begins to
run at the time 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
58
by the time Pohl filed suit in August 2018. Therefore, his conversation claim is
barred.
Pohl’s conspiracy claim is also barred by limitations. The Texas Supreme
Court has established that a claim for civil conspiracy accrues when thke underlying
tort accrues, and the limitation period for the conspiracy claim beCgins to run at the
same time as that for the underlying tort. Agar Corp., Inc. v. Electro Circuits Int’l,
LLC, 580 S.W.3d 136, 138 (Tex. 2019). “Understanding tihat civil conspiracy is a
theory of derivative liability, it follows that a civil conspiracy claim should share
both accrual and the limitations period of the underlying wrong.” Id. at 144.
Because the underlying conversion and TUTSA claims are barred by limitations,
Pohl’s derivative conspiracy claim againlst Kassab is barred as well, and thus,
summary judgment must be granted.M
E. Pohl’s claims are conclusively negated.
1. Pohl’s TiUTSA claim is conclusively negated
because fhis alleged trade secrets were not actually
kept secret.
Kassab adopts othe argument made and evidence identified on pages 45-49 of
the Nicholson M
otlion as if set forth verbatim herein. See TEX. R. CIV. P. 58. That
argument andi evidence is equally applicable to Kassab and establishes that, as a
matter of law, Pohl did not take any measures, let alone reasonable measures, to
keep his alleged information or client lists secret. Accordingly, Poh’s TUTSA claim
against Kassab fails as a matter of law, especially regarding the four barratry
lawsuits.
59
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.
HouseCanary, Inc., 612 S.W.3d 517, 527 (Tex. App.—San Antoenio 2020, pet.
denied); TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a), (6); M
organ v. Clements
Fluids S. Tex., Inc., 589 S.W.3d 177, 186-87 (Tex. App.—Tytler 2018, no pet.). The
claimant must also demonstrate that it is “the person or entity in whom or in which
rightful, legal, or equitable title to, or the right to eneforce rights in, the trade secret
is reposed.” TEX. CIV. PRAC. & REM. CODE § 134uA.002(3-a). Similarly, “[a] plaintiff
who has not shown title or some other right to possession of the property allegedly
converted may not maintain a suit in aconversion.” 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 aegainst Kassab fail because, as a matter of law, he is
not the owner of the purportefdly stolen property that he alleges is his trade secrets.
Pohl alleges that his trade secrets that were allegedly misappropriated are
“attorney–client fee agreements with clients/prospective clients, compilations of
clients, other coinfidential communications between the clients/prospective clients
and Pohl, sopecialized legal forms …, … proprietary administrative client forms, fee-
agreement forms …, internal emails, propriety marketing information … and other
work product relating to claims of Pohl’s clients and prospective clients.”304 But this
304 Amended Petition, at ¶ 20.
60
information makes 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 okf his or her
file.” In re McCann, 422 S.W.3d 701, 704-705 (Tex. Crim. ACpp. 2013) (citing
Thomson v. Findlater Hardware Co., 205 S.W. 831, 832 (Tex. 1918)) (emphasis
added). “The attorney is the agent of the client, and the wiork 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 disciplinary rules, an
attorney does not own and is therefore required to promptly surrender “papers and
property to which the client is entitled.” lTEX. DISC. R. PROF'L COND. 1.15. Texas
courts have interpreted the word “prMoperty” to mean “the client’s papers and other
documents that the lawyer had in his file.” TEX. COMM. ON PROF'L ETHICS Op. 570
(citing Hebisen v. State, 615 Si.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 Pohol. See George, 28 S.W.3d at 516.
Moreover, wlork product and attorney-client communications are owned by
the client as p
iart of the client’s file, and not the attorney. See TEX. COMM. ON PROF'L
ETHICS Op. 570 (noting that communications 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 issue of the ownership of files generated by a law firm during its
representation of a client and determining that the entire contents of the law firm’s
61
files concerning 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 relakting to claims
of Pohl’s clients and prospective clients” that he claims is a trade sCecret.
While client lists can be considered a trade secret, the lists that Precision
solicited to hire Pohl are owned by Precision, not Pohl.305 Sicott Favre, the owner of
Precision, testified that Precision “solicited many of the marketing contacts
(individuals and businesses) on these lists for representation” by Pohl.306 Favre
testified that the “marketing lists contain the names of thousands of persons who
eventually became [Pohl’s] former clielnts, and/or whom [Pohl] solicited for
representation.”307 Favre made clear Mthat the very information that Pohl claims are
the trade secretes allegedly converted by Kassab “were and are solely the work
product and property of Pirecision, developed during the normal course of its
marketing business.”308
Because Pohl dooes not own the purported trade secrets or property that he
alleges had been clonverted, his TUTSA and conversion claims fail as a matter of
law. And becaiuse the conversion and statutory claims fail, Pohl’s claim for civil
conspiracy also fails. See Trammel 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
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, ¶ 15.
308 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 12 (emphasis added).
62
the defendant was liable for some underlying tort). Accordingly, Kassab is entitled
to judgment as a matter of law.
F. Pohl’s illegal acts (barratry and unauthorized practice of
law) precludes any form of recovery against the
whistleblowers because his acts are inexokrably
intertwined with his crimes. e
Pohl committed barratry and wants his whistleblowers to pay for his barratry
defense costs. But the well-established and common-sense tunlawful acts doctrine
precludes any recovery for Pohl’s crimes. Pohl violated the Texas laws and rules
governing lawyers by committing barratry and peracticing in other jurisdictions
without a license, sharing an office and fees wuith non-lawyers, and he failed to
protect confidential client information in the process. Pohl also committed the
unauthorized practice of law in multaiple states, including Louisiana, Alabama,
Florida, and Mississippi where he maintained an unauthorized law office. All of
Pohl’s claims for recovery are einextricably intertwined with his violations of the
laws of Texas and other jufrisdictions. According, his claims are barred by their
illegality.
1. The Unlawful Acts Doctrine.
More thani a century ago, Texas developed the Unlawful Acts Rule, which
provides: o
no action will lie to recover a claim for damages, if to establish it the
plaintiff requires aid from an illegal transaction, or is under the
necessity of showing or in any manner depending upon an illegal act to
which he is a party.
63
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
injury.” McNally v. McNally, No. 02-18-00142-CV, 2020 WL 5241189k, at *10 (Tex.
App.—Fort Worth Sept. 3, 2020, pet. denied) (recognizing that tChe 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.—Hiouston [1st Dist.] 2013,
pet. denied). The purpose of this rule is to deter unlawful acts by making certain
“that the person should not even entertain the hope of indemnity for the offense
committed.” Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441, 450 (Tex.
App.—Houston [1st Dist.] 1993, no writ) (ilnternal quotations omitted). The rule can
be applied even if one or more defendMants 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 afifidavit on the advice of his attorney who knew the
affidavit was unlawful).
2. Poohl knew his acts were illegal.
Pohl is welll aware that his barratry precludes his claims. He asserted
“illegality and/ior public policy” as a defense to paying his runners in the Mississippi
Litigation. As Pohl himself explains in his Motion to Dismiss Precision’s Amended
Complaint:
The gist of Precision’s claims, as plead in the Amended Complaint, is
that Walker/Seymour/Ladner agreed to accept or accepted money to
improperly solicit BP clients for the alleged “Pohl/Williamson joint
64
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 clientks for a
lawyer; (2) under Mississippi law, it is illegal and against pubelic policy
for lawyers to share legal fees with non-lawyers; andC (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.309 t
And as Pohl himself further argued, he should be judicially estopped from arguing
against this position now. To allow him to do so, ase he says, “would allow [him] to
‘play fast and loose with the Court,’ which, in uturn, would negatively impact the
reputation of the judicial system.”310
The Mississippi Litigation courta 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 prosecutee a judicial action.”311 Additionally, the court went
onto explain that the Missisfsippi Rules of Professional conduct 5.4(a), 7.2(i), 7.3(a),
and 8.4(a) preclude attorneys from entering into fee-splitting arrangements with
non-lawyers. Precision could not violate attorney misconduct rules “as they are
neither lawyers inor a law firm. The only ‘immoral or illegal act,’ then, would have
been commoitted by [Pohl].”312 Pohl’s illegal acts precluded him and his co-
309 Nicholson Ex. 23, Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 192 ¶ 6.
310 Nicholson Ex. 23, Ex. 23: Doc. 192 ¶ 5
311 Nicholson Ex. 25, Order on Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 252 at 5.
312 Nicholson Ex. 25, Doc. 252 at 6.
65
conspirators from asserting a defense of illegality because of his unlawful
conduct.313
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 soelicitation cases.
In Truyen Luong v. McAllister, the appellate court affirmed summary judgment
where, as here, solicitation was an essential purpose of a tfee-sharing agreement
that rendered the contract void for illegality. No. 01-17-00198-CV, 2018 WL
3651103, at *4 (Tex. App.—Houston [1st Dist.] Auge. 2, 2018, pet. denied). Luong, a
paralegal, sued attorney McAllister for work uperformed on Gulf Coast Claims
Facility, BP, and Deepwater Horizon claims. Id. at *1. Luong alleged that he
brought a lot of customers to McAllistaer in return 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 claime was barred by illegality, which the trial court
granted. Id. The court of apfpeals agreed, stating “[t]his type of barratry contract is
prohibited by statute as well as by disciplinary rule.” Id. at *3. The court explained:
[A] contract between an attorney and one not an attorney, providing
that the [noln-attorney] shall procure the employment of the [attorney]
by a thirid person for the prosecution of suits to be commenced in
consideriation of a fee to be procured or collected therein, is void as
againost public policy, independent of statutes prohibiting the same.
Id. at *3. In turn, any such contract is void “to benefit and protect the public.” Id.
Luong’s agreement 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.
313 Nicholson Ex. 25, Doc. 252 at 6.
66
Accordingly, the appellate court affirmed the trial court’s grant of summary
judgment for McAllister, and this trial court should grant summary judgment here.
4. Texas courts have applied the Unlawful Acts Rule
to preclude claims for those who obtain property
illegally. k
Pohl is precluded from recovering damages on trade secretCs that he obtained
through illegal solicitation and the unauthorized practice of law. The case Sharpe v.
Turley, 191 S.W.3d 362 (Tex. App.—Dallas 2006, pet. deniied) is instructive on this
point. In Sharpe, the plaintiff, Sharpe, removed financial documents from a Roman
Catholic Diocese’s dumpster before alerting attorney Turley, who was suing the
Diocese. Turley obtained the documents from Sharpe via subpoena and following
the lawsuit both the Diocese and Sharpe clontended they were the rightful owners of
the documents. Sharpe subsequentMly sued Turley for obtaining the documents
through fraud. The trial court granted summary judgment under the Unlawful Acts
Rule and Fort Worth Court oif Appeals affirmed. Id. at 363-364. As the appellate
court explained, “Because [Sharpe’s] conduct in removing the Diocese’s items from
Diocesan property witohout its permission is the foundation of his allegation that he
has a superior riglht to the items and that alleged right is the basis of his fraud
claim against Tiurley, the trial court properly granted summary judgment in favor of
Turley [under the unlawful-acts rule].” Id. at 369.
As discussed 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
67
to pay them bounties for signing up clients. Former clients who hired Pohl,
including Barry, Speck, Bethley, Bikumbu, Cheatham Sr. and Reese, all testified
that they were illegally and unethically solicited to hire Pohl. And, Pohl admitted in
the Mississippi Litigation that such conduct would be illegal and akgainst public
policy. C
A person cannot “receive trade secret protection for information about
ongoing illegal activities.” Alderson v. United States, 718i F. Supp. 2d 1186, 1200
(C.D. Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012) (construing the Uniform Trade
Secrets Act and rejecting a claim of trade secret protection for fraudulent
accounting practices in connection with Medicare fraud); see also TEX. CIV. PRAC. &
REM. CODE §134A..008 (The Texas Uniforml Trade Secrets Act “shall be applied and
construed to effectuate its general puMrpose to make uniform the law . . . among the
states enacting it.”). “[T]here simply cannot be any trade secret about ongoing
illegality.” Alderson v. Uniteid States, 718 F. Supp. 2d at 1200. “Notably, this
conclusion is consistent with the underlying justifications of trade secrets law,
which include ‘[t]he moaintenance of standards of commercial ethics.”’ Id. (quoting
Kewanee Oil Co. lv. Bicron Corp., 416 U.S. 470, 481–482 (1974)). ‘“Commercial
ethics’ are not imaintained if businesses are able to conceal illegality.’” Id.
The existence of a privilege to disclose another's trade secret depends upon
the circumstances of the particular case, including the nature of the information,
the purpose of the disclosure, and the means by which the actor acquired the
information. A privilege is likely to be recognized, for example, in connection with
68
the disclosure of information that is relevant to public health or safety, or to the
commission of a crime or tort, or to other matters of substantial public concern.
Merckle GmbH v. Johnson & Johnson, 961 F. Supp. 721, 733 (D.N.J. 1997);
Restatement (Third) of Unfair Competition § 40, cmt. c (1995). The Repkorters’ Notes
to Section 40 indicate that “the policies underlying the privilege aCre similar to those
supporting the numerous state and federal 'whistleblower' statutes that prohibit
retaliatory personnel actions by employers against eimployees who disclose
violations to public officials.” Merckle GmbH, 961 F. Supp. at 733 quoting
Restatement (Third) of Unfair Competition § 40, Reporters’ Notes, cmt. c.
Thus, Kassab was privileged to disclose the illegal acts of Pohl even if to do so
was to disclose his alleged trade secrets. lAccordingly, Pohl cannot recover against
anyone for anything because be Macquired his client files and purportedly
confidential and protected information through illegal solicitation and unauthorized
practice of law. Thus, summairy judgment must be granted.
5. Pohl is precluded from claiming protection over
information he obtained through the unauthorized
proactice of law.
Moreover, Tlexas courts have consistently applied the Unlawful Acts Rule to
preclude recoviery 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 Professional Conduct makes it unlawful for a
Texas lawyer to commit the unauthorized 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
69
law. See TEX. DISC. R. PROF’L COND. 5.05. Consequently, this Court should preclude
recovery for any claim arising from his unlawful practice in other jurisdictions.
For instance, the Dallas Court of Appeals refused to permit a car dealership
to recover from a sales agent that fraudulently withheld money relatinkg to the sale
of cars because the dealership did not have the proper county licenCse to sell cars:
Appellants argue allowing the Credit Union to prevail on the illegality
defense allows it to walk away with a windfall. Althotugh this may be
true under these facts, to hold otherwise would aillow 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 Uenion that the rule applies
and bars appellants’ claims arising in tort because they are
inextricably intertwined with their illegaul contract to sell automobiles
in Dallas County without a license.
Denson v. Dallas Cnty. Credit Union, 262 lS.W.3d 846, 855 (Tex. App.—Dallas 2008,
no pet.) (emphasis added). M
The law is even stricter when applied to regulated professions. The Supreme
Court of Texas refused to permiit an engineer to recover a fee where he had failed to
pay the renewal fee for his license and was, therefore, practicing engineering
without a current licoense and in violation of the Texas Occupational Code. The
Court noted thatl the requirement of proper licensure for engineers was to
“safeguard lifei, health and property.” M. M. M., Inc., v. Mitchell, 265 S.W.2d 584,
585–86 (1954).
Similarly, the Fort Worth Court of 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 Court stated that to permit recovery was to undermine
70
the purpose of licensure, which 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 1964, writ ref’d n.r.e.). k
As member of Texas Bar, Pohl is subject to the requiremenCts imposed by the
Texas Rules of Professional Conduct. Rule 5.05 prohibits Texas attorneys from
committing the unauthorized practice of law in other jurisdiictions:
Rule 5.05. Unauthorized Practice of Law
A lawyer shall not:
(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 maember of the bar in the performance
of activity that constitutes the Munauthorized practice of law.
TEX. DISC. R. PROF’L COND. 5.05. The comment to the Rule explains, “Courts
generally have prohibited thei unauthorized practice of law because of a perceived
need to protect individuals and the public from the mistakes of the untrained and
the schemes of the uonscrupulous, who are not subject to the judicially imposed
disciplinary standlards of competence, responsibility and accountability. . . Limiting
the practice ofi law to members of the bar protects the public against rendition of
legal services by unqualified persons.” Id. at cmt. 1.
By his own admission, Pohl has never been licensed to practice law in any
state except Texas and Colorado.314 Yet, Pohl solicited and signed up auto accident
314 Nicholson Ex. 31, Pohl Aug 2016 Depo at 8.
71
clients in Mississippi,315 Louisiana,316 Missouri,317 and Arkansas.318 Santana
testified that she solicited BP clients for Pohl all across the Gulf Coast, including
Florida, Louisiana, and Mississippi.319 Further, Pohl assisted Walker, Ladner, and
the other runners in engaging in the unauthorized practice of law throkugh soliciting
and signing up clients in those jurisdictions. In doing so, Pohl hasC violated the laws
regulating Texas lawyers. Accordingly, Pohl cannot recover any fee related to his
unauthorized practice of law states in Louisiana, Alabamai, 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 misdemeanor
for a person to practice law without a licelnse. The Mississippi Supreme Court has
established that “the ‘practice of lawM’ has been defined to be as little as advising a
person of his legal rights.” In re Williamson, 838 So.2d 226, 234 (Miss. 2002) (citing
Darby v. Miss. State Bar, 185 iSo.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, 1o45 So.3d 1184 (Miss. App. 2013).
Pohl’s admiltted solicitation of Mississippi clients and his admitted visits to
Mississippi to iconfer with actual and potential clients constituted the unauthorized
practice of law in Mississippi. Pohl’s operation of a “law office” in Mississippi, and
even its very existence, violated Mississippi law. Pohl admitted that he was not
315 Exhibit 16, Declaration of Mae Berry; Exhibit 18, Declaration of Arthur Speck.
316 Exhibit 19, Declaration of Alphonse Bethley; Exhibit 29, Declaration of Mark Cheatham, Sr.
317 Exhibit 22, Declaration of Heraclite Bikumbu.
318 Exhibit 35, Declaration of Lacy Reese.
319 Exhibit 6, September 26, 2016 Affidavit; Exhibit 8, Santana Depositions.
72
admitted to practice law in Mississippi and the law office was not associated with
any Mississippi lawyer.320 Further, Pohl violated the law by sharing his office with
non-lawyers. Pohl admitted that he unlawfully shared his office space, telephones
and computers with a non-lawyer company, Precision, in violation of thke Mississippi
Rules of Professional Conduct.321 In addition to his practice of lawC in the Mississippi
office and his meetings with potential and actual Mississippi clients, Pohl admits
that, in 2012-2014, he spent the majority of his timei practicing law at his
Mississippi “law office.”322
Further, Pohl assisted Walker, Ladner and the other runners in engaging in
the unauthorized practice of law in Mississippi by paying them for soliciting and
signing up clients on his behalf. Pohl aldmits that he gave Walker and Ladner
advertising brochures for them to disMtribute as widely as possible in Mississippi and
other states. He admits that he gave Walker and Ladner blank contracts that they
were to use to sign up clients fior him.
Walker, Ladner and the other runners illegally solicited on Pohl’s behalf all
of the Mississippianso listed in the Gandy and Brumfield Petitions.323 Of the 133
plaintiffs in the Glandy lawsuit, 103 of them were Mississippians.324 Of the 272
Brumfield plaiintiffs, 153 were Mississippians.
Those Petitions list people whom Pohl illegally solicited in Mississippi, either
directly or through his runners. Since solicitation of work for an attorney
320 See Nicholson Ex. 2, Pohl May 2018 Depo 112:19-13:10.
321 Nicholson Ex. 1, Pohl Dec 2021 Depo at 16:15-21.
322 Exhibit 60, Sept. 17 2018 Deposition of Michael Pohl, at 292-293.
323 Nicholson Ex. 29, Brumfield Petition and Nicholson Ex. 30, Gandy Petition.
324 Nicholson Ex. 30, Gandy Petition at 2-6.
73
constitutes the unauthorized practice of law in Mississippi, Pohl committed that
crime, or assisted the runners in committing it, as to every one of the Mississippi
plaintiffs in those two Petitions.
Pohl also committed the unauthorized practice of law in regard kto Mae Berry
and Lisa and Arthur Speck, former clients who subsequently suedC Pohl for illegally
soliciting them in Mississippi.325 Pohl sent a runner, Ken Talley, to each of their
homes to solicit them as clients for Pohl regarding theiri 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 Mississippi laws by
engaging in the unauthorized practice of llaw in Mississippi while soliciting these
clients. Since all of the “trade secreMt” information regarding Mississippians and
others was gathered during Pohl’s illegal solicitation activities, he cannot show his
ownership of the information iwithout referencing his illegal activities. Pohl cannot
show that documents at his Mississippi “law office” were misappropriated without
showing that he opeorated an illegal law office in Mississippi. Consequently, the
Unlawful Acts Rulle precludes Pohl from recovering in this court for the alleged
misappropriatiion of “trade secrets” relating to Mississippians, or any others.
In Louisiana, it is a felony for a person or any entity not licensed to practice
law in Louisiana to engage in 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 or in any way suggesting that the person is entitled to practice
325 Nicholson Ex. 32, Berry Petition at 9-12.
74
law; or advertise the existence of a “law office of any kind.” LA Rev. Stat. 37:213.
Further, it is against 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). k
Walker, Ladner and the other runners illegally solicited oCn Pohl’s behalf all
of the Louisianans listed in the Gandy and Brumfield Petitions. Of the 133
plaintiffs in the Gandy lawsuit, 7 of them were Louiisianans.326 Of the 272
Brumfield plaintiffs, 54 were Louisianans.327
Those Petitions list people whom Pohl illegally solicited in Louisiana, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of llaw in Louisiana, Pohl committed that
crime, or assisted the runners in coMmmitting it, as to every one of the Louisiana
plaintiffs in those two Petitions.
In addition, Pohl commiitted the unauthorized practice of law in Louisiana in
relation to Mark Cheatham, Mark Cheatham, Jr. and Luella Miller, Louisianans
who filed the Cheathoam lawsuit against Pohl. As demonstrated above, Pohl sent
runner Ken Talleyl to solicit them in Louisiana, which means he assisted Talley in
engaging in thie unauthorized practice of law in Louisiana. Pohl personally traveled
to Louisiana to solicit and give legal advice to the Cheathams on at least two
occasions.
326 Nicholson Ex. 30, Gandy Petition at 2-9.
327 Nicholson Ex. 29, Brumfield Petition at 2-6.
75
Pohl also committed the unauthorized practice of law in regard to Sandra
Johnson and Alphonse Bethley, Louisiana residents who filed the Gandy lawsuit
against Pohl. Pohl sent runner Kirk Ladner to their home in Louisiana, where he
solicited them to hire Pohl for their personal injury claim and inducedk them to sign
a Pohl attorney-client contract. Accordingly, Pohl assisted LadnCer in engaging in
the unauthorized practice of law in Louisiana.
Pohl committed a misdemeanor and violated otiher Louisiana laws by
engaging in the unauthorized practice of law in Louisiana while soliciting these
clients. Since all of the alleged “trade secret” information regarding Louisianans
was gathered during Pohl’s illegal solicitation activities, he cannot show his
ownership of the information witholut referencing his illegal activities.
Consequently, the Unlawful Acts RuMle precludes Pohl from recovering in this court
for the alleged misappropriation of “trade secrets” relating to Louisianans.
It is a misdemeanor ini 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 ino the unauthorized practice of law, which includes soliciting,
interviewing and lsigning up clients. Davis v. Alabama State Bar, 676 So.2d 306
(Ala. 1996). i
Walker, Ladner and the other runners illegally solicited on Pohl’s behalf all
of the Alabamians listed in the Gandy and Brumfield Petitions. Of the 133 plaintiffs
76
in the Gandy lawsuit, 21 of them were Alabamians.328 Of the 272 Brumfield
plaintiffs, 39 were Alabamians.329
Those Petitions list people whom Pohl illegally solicited in Alabama, either
directly or through his runners. Since solicitation of work for kan attorney
constitutes the unauthorized practice of law in Alabama, PohCl committed that
crime, or assisted the runners in committing it, as to every one of the Alabama
plaintiffs in those two Petitions. i
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 pralctice of law. Id.
Walker, Ladner and the otherM runners illegally solicited on Pohl’s behalf all
of the Floridians listed in the Gandy and Brumfield Petitions. Of the 133 plaintiffs
in the Gandy lawsuit, 3 of theim were Floridians.330 Of the 272 Brumfield plaintiffs,
22 were Floridians.331
Those Petitionos list people whom Pohl illegally solicited in Florida, either
directly or throulgh his runners. Since solicitation of work for an attorney
constitutes thei unauthorized practice of law in Florida, Pohl committed that crime,
or assisted the runners in committing it, as to every one of the Florida plaintiffs in
those two Petitions.
328 Nicholson Ex. 30, Gandy Petition at 2-9.
329 Nicholson Ex. 29, Brumfield Petition at 2-6.
330 Nicholson Ex. 30, Gandy Petition at 2-9.
331 Nicholson Ex. 29, Brumfield Petition at 2-6.
77
6. All of Pohl’s claims fail because he cannot show
ownership of the alleged trade secrets or damages
without showing that he acquired the information
through barratry or the unauthorized practice of
law.
Simply put, Pohl cannot prove that he is the owner of the ktrade secret
information without showing how he acquired it. The evidence Cpresented herein,
and in the Nicholson Motion, demonstrates that Pohl acquired the information
through illegal activity which included barratry and the iunauthorized practice of
law in multiple states and assisting others to engage in the unauthorized practice of
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 expenlses in defending against the Cheatham,
Berry, Gandy and Brumfield lawsuMits. He claims as damages the expenses he
incurred in defending against the Barratry Litigation and grievance filed by
Kassab. Pohl also claims thati publicity about his illegal activities caused economic
harm to his “law practice.” Thus, Pohl’s claimed damages flow solely from the fact
that people discoveredo his unlawful acts.
Pohl cannotl claim the expense of defending against the Cheatham, Berry,
Gandy and Briumfield lawsuits without addressing what the lawsuits are about. All
four of those lawsuits were filed against him by persons who were illegally solicited
by him, including some of his former clients. One of the cases (Barry) settled, and
two of the cases (Brumfield and Gandy) were dismissed on limitations. See
Brumfield v. Williamson, 634 S.W.3d 170 (Tex. App.—Houston [1st Dist.] 2021, pet.
78
denied); Gandy v. Williamson, 634 S.W.3d 214, 219 (Tex. App.—Houston [1st Dist.]
2021, pet. denied). Although the last case (Cheatham) was dismissed on summary
judgment, the court of appeals recently reversed because there was evidence of a
“barratry scheme.” See Cheatham v. Pohl, No. 01-20-00046-CV, 20k22 Tex. App.
LEXIS 649, at *25-26 (Tex. App.—Houston [1st Dist.] Jan. 27,C 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 commiitting barratry.
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. Regardlelss, Pohl’s claim for damages arising from
any grievances are barred by immuniMty, as stated above.
Finally, Pohl claims that publicity about his illegal activities damaged his
law practice. Pohl has not andi cannot prove these damages without showing that he
committed unlawful acts. Since his claimed damages all spring from his former
clients and others beocoming aware of his barratry and other illegal activities, he
cannot prove any olf his damages without discussing barratry.
G. Piohl is not permitted to recovery as damages the
oattorney’s fees he incurred in the four barratry lawsuits
and two disciplinary grievances.
Damages in a TUTSA suit are generally comprised of losses such as “the
value of the plaintiff’s lost profits, the defendant’s actual profits from the use of the
secret, the value a reasonably prudent investor would have paid for the trade secret,
79
the development costs the defendant avoided by the misappropriation, and a
reasonable royalty.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710–11
(Tex. 2016).
There are no differences between existing Texas common lakw and
TUTSA regarding the economic damages available for traede secret
misappropriation. Under Texas common law, the plCaintiff 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 alsot could recover a
reasonable royalty for the defendant’s use of the plaiintiff’s trade secret.
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 suitsl and two disciplinary grievances. Nothing
the TUTSA statute permits recoverMy of such “damages”—indeed, the prevailing
party is not even entitled to recovery of its attorney’s fee under TUTSA, but instead,
the trial court has discretion wihether to award fees and only if willful and malicious
misappropriation exists. T EX. CIV. PRAC. & REM. CODE § 134A.005. If the TUTSA
plaintiff is not guaraonteed recovery of fees in the actual TUTSA suit, there is no
reason to permit thle TUTSA plaintiff to recover fees incurred in other suits.
Moreoveir, even applying common-law, Pohl is not entitled to attorney’s fees
as damages. “Whether a party is entitled 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 fees expended in prior litigation generally are not
recoverable as damages; attorney’s fees are recoverable only when an agreement
80
between the parties so provides.” Martin-Simon v. Womack, 68 S.W.3d 793, 797–98
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). As the Supreme Court has
explained, “For more than a century, Texas law has not allowed recovery of
attorney’s fees unless authorized by statute or contract. This rule isk so venerable
and ubiquitous in American courts it is known as ‘the American CRule.’” 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” eixception to the American
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.l 02-19-00301-CV, 2020 WL 719440, at *3
(Tex. App.—Fort Worth Feb. 13, 2020M, no pet.) (mem. op.) (“We do not hold that the
equitable exception allows the recovery of a prevailing party’s attorney’s fees even
in the absence of a contract or iauthorizing statute.
Indeed, the Texas Supreme Court’s language in Gullo and that court’s failure
to expressly adopt oor reject this equitable theory indicate that equity does not
extend this far.”); lRiner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011,
no pet.) (“Givein the supreme court’s faithful adherence to the American Rule, and
its strong statement in Tony Gullo that trial courts lack the inherent authority to
award attorney’s fees contrary to the Rule, we decline to adopt a
new equitable exception to the Rule.”); Naschke v. Gulf Coast Conference, 187
S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (declining to
81
adopt the “tort of another” exception to the American Rule because “we are bound to
follow the existing laws of the State, we are not at liberty to adopt a theory of
recovery that has not been enacted by the Legislature or adopted by the Texas
Supreme Court”).332 k
No statute or contract provides Pohl the right to recover hisC 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 preiclude Pohl’s request for
attorney’s fees damages makes sense here especially because Pohl was sued by
persons accusing him of improperly soliciting them in violation of barratry laws and
ethical rules—those persons exercised their right and choice to file suit against Pohl
for his wrongdoing. Under such circumstalnces, it would be inequitable and violate
public policy to allow Pohl to insuMlate himself from responsibility for his own
wrongdoing.
In a similar vein, even iif some equitable exception could apply here to permit
a plaintiff to recover its attorney’s fees defending an underlying lawsuit, it would
apply only if Pohl owere wholly innocent relative to the barratry suits and
grievances. See Pelr-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 WL
1539291, at *8i (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.)
332 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)
(“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.”).
82
(“[U]nder the ‘tort of another’ exception, BSG is not entitled to
recover attorney’s fees incurred in the arbitration because it is not a wholly
innocent party.”); Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834–35
(Tex. App.—Austin 2002, no pet.) (holding trial court properly refused kto award fees
to plaintiff because it was found partly negligent in underlyCing 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 ani innocent party forced to
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 Cheathalm barratry suit is ongoing, with Pohl
recently losing the appeal in that caMse, even on rehearing, meaning, putting aside
all the other reasons why his claims fail, it is premature for him to be seeking fees
related to Cheatham. Regaridless, the fact the Pohl violated ethical rules and
committed barratry in having others solicit the persons who filed the barratry suits
proves he was not whoolly innocent.
Finally, beclause, as established above, Pohl failed to maintain the secrecy of
his alleged traide secrets, he cannot recover any damages involving those alleged
trade secrets even if attorney’s fees could be recovered as damages:
Like injunctive relief, a monetary recovery for trade secret
misappropriation is appropriate only for the period in which
information is entitled to protection as a trade secret, plus the
additional period, if any, in which a misappropriator retains an
advantage over good faith competitors because of misappropriation.
Actual damage to a complainant and unjust benefit to a
83
misappropriator are caused by misappropriation during this time
alone. See Conmar Products Corp. v. Universal Slide Fastener Co., 172
F.2d 150 (CA2, 1949) (no remedy for period subsequent to disclosure of
trade secret by issued patent); Carboline Co. v. Jarboe, 454 S.W.2d 540
(Mo. 1970) (recoverable monetary relief limited to period that it would
have taken misappropriator to discover trade secret without
misappropriation). k
Uniform Trade Secrets Act at § 3 DAMAGES, comment. HenCce, for numerous
reasons, Pohl’s cannot recover his attorney’s fees as damages in this suit.
NO-EVIDENCE MOTION FOR SUMMARY JUiDGMENT
As stated above, Pohl sued the Kassab Defendants for (1) conversion, (2)
violations of the Texas Uniform Trade Secrets Actg (“TUTSA”), and civil conspiracy.
Because Pohl, after an adequate time for discovery, can produce no evidence to
support each of these claims he has alleged against the Kassab Defendants, the
Court should grant this motion and dMismiss Pohl’s claims with prejudice.
oSTANDARD
Under Texas Rule of Civil Procedure 166a(i), after an adequate time for
discovery has elapsed, the party without the burden of proof may, without
presenting evidence, omove for summary judgment on the grounds that there is no
evidence to supporl t an essential element of the non-movant’s claim. TEX. R. CIV. P.
166a(i). The buirden then shifts to the non-movant to produce evidence that raises a
fact issue non the challenged elements. Howell v. Hilton Hotels, 84 S.W.3d 708, 711-
12 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “If the proffered evidence [in
response to a motion for summary judgment] is so weak as to create no more than a
‘mere surmise or suspicion’ of a vital fact, less than a scintilla of evidence exists
because such evidence lacks probative force, and in legal effect, is no evidence at
84
all.” Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied) (citing Kindred v. Conn/Chem., Inc., 650 S.W.2d 61,
63 (Tex. 1983)). Further, “some suspicion linked to other suspicion produces only
more suspicion, which is not the same as some evidence.” Marathon Cokrp. v. Pitzner,
106 S.W.3d 724, 727–28 (Tex. 2003) (quoting Johnson v. Brewer C& Pritchard, P.C.,
73 S.W.3d 193, 210 (Tex. 2002)).
An adequate time for discovery has passed for Poihl to obtain evidence to
prove his affirmative claims. Indeed, “[a] discovery period set by pretrial order
should be adequate opportunity for discovery unless there is a showing to the
contrary[.]” TEX. R. CIV P. 166a cmt. That date has long passed. Therefore, this no-
evidence motion for summary judgment onl Pohl’s affirmative claims is proper.
RGUMENT
A. Pohl has no evidence to support his conversion claims
against the Kassaeb Defendants.
To establish a claim ffor conversion, a plaintiff must prove that: (1) plaintiff
owned or had possession of the property or entitlement to possession, (2) defendant
unlawfully and without authorization assumed and exercised control over the
property to the eixclusion of, or inconsistent with, the plaintiff's rights as an owner,
(3) plaintiffo demanded return of the property, and (4) defendant refused to return
the property. Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386-87 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). Pohl has no evidence of elements (1), (2),
(3) or (4).
85
First, Pohl has no evidence that he owned or had possession of the property
or entitlement to possession of any of the allegedly converted property. Second, Pohl
has no evidence that the Kassab Defendants unlawfully and without authorization
assumed and exercised control over the property to the exclusion of, ork inconsistent
with Pohl’s rights as an alleged owner. Third, Pohl has no Cevidence that he
demanded return of the property from the Kassab Defendants. Fourth, Pohl has no
evidence that the Kassab Defendants refused to return thie property after demand
was allegedly made. Accordingly, Pohl’s conversion claim against the Kassab
Defendants must be dismissed on summary judgment.
Moreover, a plaintiff who establishes conversion is entitled to either (1) the
return of the property and damages forl its loss of use during the time of its
detention, or (2) the value of the pMroperty. See Wiese v. Pro Am Svcs. Inc., 317
S.W.3d 857, 862 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Pohl cannot
produce evidence as to the damiages for the property’s loss of use during the time of
its detention or the value of the allegedly converted property. For these reasons too,
Pohl’s conversion claoim against the Kassab Defendants must be dismissed on
summary judgmenlt.
B. Piohl has no evidence to support his claims of TUTSA
oviolations.
The elements of a cause of action for trade-secret misappropriation under
TUTSA are the following: (1) the plaintiff owned a trade secret; (2) the defendant
misappropriated the trade secret; and (3) the misappropriation proximately caused
plaintiff damages. TEX. CIV. PRAC. & REM. CODE §§ 134A.002(1), (3), (6),
86
134A.004(a); Malone v. PLH Group, Inc., No. 01-19-00016-CV, 2020 WL 1680058, at
*5 (Tex. App.—Houston [1st Dist.] Apr. 7, 2020, pet. denied) (mem. op.); Morgan v.
Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 186 (Tex. App.—Tyler 2018, no pet.).
Pohl has no evidence to support elements (1), (2) or (3). k
First, Pohl must produce evidence that he owned a purpoCrted trade secret.
Pohl complains that the Kassab Defendants stole his “client files” to solicit his
clients. However, Pohl cannot produce any evidence thiat he owns a client file
because a lawyer does not own his client’s files as a matter of law.
Under TUTSA, for something to be a “trade secret,” the owner must have
taken reasonable measures under the circumstances to keep the information secret,
and the information must derive indepenldent economic value, actual or potential,
from not being generally known to,M and not being readily ascertainable through
proper means by, another person who can obtain economic value from the disclosure
or use of the information. TEiX. CIV. PRAC. & REM. CODE § 134A.002(6). Pohl can
present no evidence to establish this element. Pohl has no evidence that, for each
purported trade secreot, Pohl took reasonable measures under the circumstances to
keep the informatlion secret or that the information derived independent economic
value, actual oir potential, from not being generally known to, and not being readily
ascertainable through proper means by, another person who can obtain economic
value from the disclosure or use of the information. Moreover, a person must have
rightful, legal, or equitable title to trade secrets in order to be an “owner.” Id. at §
87
134A.002(3-a). Pohl has no evidence that he had a rightful, legal, or equitable title
to the purported trade secrets.
Second, Pohl has no evidence that the Kassab Defendants misappropriated
any of Pohl’s purported trade secrets. Additionally, to prove “willful aknd malicious
misappropriation,” a plaintiff must show defendant engagedC in “intentional
misappropriation resulting from the conscious disregard of the rights of the owner
of the trade secret.” Id. at § 134A.002(7). Pohl has no eividence that the Kassab
Defendants engaged in willful and malicious appropriation of any alleged trade
secret or that the Kassab Defendants engaged in intentional misappropriation
resulting from the conscious disregard of the rights of Pohl. Pohl can produce no
evidence of the Kassab Defendants’ intent.l
Third, Pohl has no evidenMce that the Kassab Defendants’ alleged
misappropriation of any alleged trade secrets proximately caused Pohl injury or
actual damages recoverable uinder TUTSA. Pohl has no evidence supporting his
claim for attorney’s fees. Pohl has no evidence of business losses.
Additionally, aossuming, arguendo, that the law allowed Pohl to recover as
damages the attolrney’s fees he incurred in defending against the four barratry
lawsuits, Pohli has no evidence (1) showing as to each of the plaintiffs in each of
those lawsuits that he had rightful, legal, or equitable title to their names and
contact information—meaning he properly and ethically came to possesses and can
properly and ethically use that information—(2) he took reasonable measures under
the circumstances to keep secret their names and contact information, and the
88
information derived independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable through proper means by,
another person who can obtain economic value from the disclosure or use of the
information, (3) the Kassab Defendants misappropriated their namesk and contact
information, and that (4) the Kassab Defendants’ misappropriatiCon of their names
and contact information proximately caused plaintiff actual damages recoverable
under TUTSA. i
Fourth, Pohl has no evidence that he is wholly innocent in the illegal
obtainment of any client for which his claims are based. Meaning, Pohl has no
evidence to show that he was not breaking the law when he obtained a client for
which his claims are based. The fact thatl he admittedly violated the unauthorized
practice of law during the entire perMiod for which he obtained clients or potential
clients, proves there is no evidence of his legally obtaining the clients for which he
basis his claims. i
C. Pohl has no evidence to support his conspiracy claim.
An action for coivil conspiracy has five elements: (1) a combination of two or
more persons; (2) lthe persons seek to accomplish an object or course of action; (3)
the persons reiach a meeting of the minds on the object or course of action; (4) one or
more unlawful, overt acts are taken in pursuance of the object or course of action;
and (5) damages occur as a proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556
(Tex. 2005); Haynes v. Bryan, No. 01-20-00685-CV, 2022 WL 2024837, at *4 (Tex.
App.—Houston [1st Dist.] June 7, 2022, no pet. h.).
89
Pohl has no evidence that (1) the Kassab Defendants were involved in a
combination of two or more persons; (2) that any persons involved in the alleged
conspiracy sought to accomplish an object or course of action; (3) the persons
involved reached a meeting of the minds on the object or course of actikon; (4) one or
more unlawful, overt acts were taken in pursuance of the object oCr course of action;
or (5) damages occurred as a proximate result.
CONCLUSION & PRAYER
For the foregoing reasons, the Court should grant Kassab’s Motion to
Reconsider Kassab’s Traditional Motion for Summary Judgment and No-Evidence
Motion for Summary Judgment and order that Plaintiffs, Michael A. Pohl and Law
Office of Michael A. Pohl, PLLC take lnothing on their claims against Lance
Christopher Kassab and The Kassab MLaw Firm.
i Respectfully submitted,
THE KASSAB LAW FIRM
a LANCE CHRISTOPHER KASSAB
c Texas State Bar No. 00794070
f lance@kassab.law
DAVID ERIC KASSAB
U Texas State Bar No. 24071351
david@kassab.law
NICHOLAS R. PIERCE
Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
90
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE e
I certify that on this date, January 4, 2023, 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 partiets or counsel of record.
LBANCE CHRISTOPHER KASSAB
91
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 71470463
Status as of 1/4/2023 1:23 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 1/4/2023 12:12:54 PM SENT
Jean C.Frizzell jfrizzell@reynoldgsfrizzell.com 1/4/2023 12:12:54 PM SENT
Harris Wells hwells@reynouldsfrizzell.com 1/4/2023 12:12:54 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/4/2023 12:12:54 PM SENT
Scott M.Favre scott@yfavrepa.com 1/4/2023 12:12:54 PM SENT
Lawyer Wade lawayerwade@hotmail.com 1/4/2023 12:12:54 PM SENT
Andrea Mendez andrea@kassab.law 1/4/2023 12:12:54 PM SENT
Lance Kassab olance@kassab.law 1/4/2023 12:12:54 PM SENT
David Kassab david@kassab.law 1/4/2023 12:12:54 PM SENT
Jason M.Ciofalo f jason@ciofalolaw.com 1/4/2023 12:12:54 PM SENT
Chris C.Pappas cpappas@krcl.com 1/4/2023 12:12:54 PM SENT
Todd Taylor p ttaylor@jandflaw.com 1/4/2023 12:12:54 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 1/4/2023 12:12:54 PM SENT
Nicholas Pierce a l nicholas@kassab.law 1/4/2023 12:12:54 PM SENT
Murray JFogler mfogler@foglerbrar.com 1/4/2023 12:12:54 PM SENT
Murray Fogler o mfogler@fbfog.com 1/4/2023 12:12:54 PM SENT
Andrew JohnsUon ajohnson@thompsoncoe.com 1/4/2023 12:12:54 PM SENT
Benjamin Ritz britz@thompsoncoe.com 1/4/2023 12:12:54 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 1/4/2023 12:12:54 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 1/4/2023 12:12:54 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 1/4/2023 12:12:54 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 1/4/2023 12:12:54 PM SENT
D Kassab david@kassab.law 1/4/2023 12:12:54 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/4/2023 12:12:54 PM SENT
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 71470463
Status as of 1/4/2023 1:23 PM CST
Case Contacts r i
L Kassab lance@kassab.law 1/4/2023 12:12:54 PM SENT
Kelly Skelton reception@kassab.lasw 1/4/2023 12:12:54 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 1/4/2023 12:12:54 PM SENT
Non-Party Witness Billy Shepherd bshepherd@supcounsel.com 1/4/2023 12:12:54 PM SENT
Lance Kassab eserve@kassab.law 1/4/2023 12:12:54 PM SENT"
46,2022-11-30,MSJ,Pohl,Partial MSJ on Barratry Liability,Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants,"Pre-trial motion filed November 30, 2022 by Pohl, five days before the December 5, 2022 trial setting. Seeks legal rulings under Tex. R. Civ. P. 166a(g) to narrow trial issues by: (1) finding barratry is not legally relevant to this lawsuit, and (2) striking 10+ of Kassab's affirmative defenses as barred as a matter of law.",MSJ-3,N/A,Phase 3,2022-11-30_MSJ_Pohl-Partial-MSJ-Barratry-Liability_FILED.pdf,"Find that: (1) establishing whether barratry occurred is not legally relevant to this lawsuit; (2) Kassab's affirmative defenses of unlawful acts, illegality, criminal acts, in pari delicto, justification, immunity under Rule 17.09, unclean hands, release, accord and satisfaction, estoppel, subject to a valid contract, assumption of the risk, and contribution are barred as a matter of law","11/30/2022 8:20 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 70589892
By: Deandra Mosley
Filed: 11/30/2022 8:20 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ r
LANCE CHRISTOPHER § l
KASSAB, et. al §
§ c
Defendants. § 189TH JUDrICIAL DISTRICT
PLAINTIFFS’ RULE 166(g) MOTION ON BARRATRY LIDABILITY AND SPECIFIC
AFFIRMATIVE DEFENSES ASSERTED BY THE KASSAB DEFENDANTS
Under Texas Rule of Civil Procedure 166(g), Plaintiffs Michael Pohl and Law Office of
Michael A. Pohl PLLC (collectively “Pohl”) file this Motion on the issues of the relevance of
barratry liability and the legal viability of specific affirmative defenses asserted by the Kassab
defendants (the “Motion”). Pohl requests tahat the Court find Defendants Lance Christopher
Kassab and Lance Christopher Kassab P.C.’s (collectively, “Kassab”) theories regarding
establishing barratry and certain otheer legal defenses fail as a matter of law.
f I. STANDARD
Under Texas Rule ofy Civil Procedure 166(g), this Court can decide legal issues at pretrial
“to assist in the disposition of the case without undue expense or burden to the parties . . . .” See
Tex. R. Civ. P. 166a(g). Allowing this trial to subsume the question of whether Pohl committed
barratry, in connfection with clients whose information Kassab later misappropriated, would greatly
extend the length of trial, and it would needlessly complicate the issues presented to the jury. A
legal determination by this Court that whether barratry did in fact occur is immaterial to Pohl’s
claims—whether as a matter of denial or as a defense—would assist in disposing of this case with
less undue burden and expense. Furthermore, determining whether certain defenses fail as a matter
of law is a set of legal questions the Court can decide to appropriately focus the trial in this case.
II. DISCUSSION
To prevent “undue expense” and additional “burden to the parties,” and to ensure that trial
does not proceed for longer than is necessary, this Court should find that establishing whether
barratry occurred is not legally relevant to the material issues in this case and that ten of Kassab’s
affirmative defenses are not legally viable and have no bearing at trial. l
A. The alleged existence of barratrous conduct by Pohl is not ac dtenial of or defense to
Pohl’s claims, and Kassab’s desire to present evidence on irti is not material.
Barratry does not constitute a defense to claims for theft oDf tirade secrets,1 conversion,2 or
conspiracy.3 Even if Kassab could show that all of Pohl’s fosrmer and prospective clients were
obtained through barratry—and he cannot—it would not prevent, nor is it material to, Pohl’s ability
to establish the elements of his claims. 4 Because the alleged existence of barratry does not impact
Pohl’s ability to establish his claims, nor does it constitute a defense to Pohl’s claims if established,
the Court should find that as a matter of lawM, establishing barratry is not legally relevant at trial.
Kassab’s position is that, as oa lawyer, he was entitled or otherwise justified in
misappropriating and converting ncot only another lawyer’s proprietary information, but also
confidential and privileged information about another lawyer’s clients simply because Kassab
hoped to find evidence of bparratry claims to pursue against Pohl. Kassab likewise suggests that it
was appropriate to solicit and entice the employees or contractors of another lawyer to violate their
1 A trade secrets cfl f aim under the Texas Uniform Trade Secrets Act (“TUTSA”) involves the following elements: (1)
a plaintiff owned trade secrets; (2) a defendant misappropriated the trade secrets; and (3) that the misappropriation
caused the plaintiff damages. See Tex. Civ. Prac. & Rem. Code §§ 134A.002 & 134A.004.
2 A conversion claim can include the following elements: “(1) the plaintiff owned, had legal possession of, or was
entitled to possession of the property; (2) the defendant assumed and exercised dominion and control over the property
in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the plaintiff’s rights; and [applicable
in some cases] (3) the defendant refused the plaintiff’s demand for return of the property.” Akin v. Santa Clara Land
Co., Ltd., 34 S.W.3d 334, 344 (Tex. App.—San Antonio 2000, pet. denied); see also Hunt v. Baldwin, 68 S.W.3d 117,
131 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
3 The elements of conspiracy are familiar: (1) a combination of at least two persons; (2) the persons seek to accomplish
an object or course of action; (3) there is a meeting of the minds on the object or course of action; (4) one or more
unlawful, overt acts are taken in furtherance of the conspiracy; and (5) damages occur.
4 Pohl asserts claims for conversion, TUTSA violations, and conspiracy. Plaintiff’s First Amended Petition ¶¶ 35–43.
obligations by disclosing confidential information, simply because Kassab believed it could help
support a claim against Pohl. However, the law does not authorize tortious conduct because a
person may believe that conduct could help them uncover some other allegedly wrongful acts.
As will be discussed further in the motions in limine and before the Coukrt, the topic of
barratry is relevant to this case in certain, limited respects. The fact that Kassabl wanted to and did
pursue barratry claims against Pohl necessarily will be a part of this casec. But evidence trying to
prove the merits of such claims for barratry should not be presented sto the jury. However, since
the start of this lawsuit, Kassab has attempted to inject the broader question of whether barratry
did in fact occur into this lawsuit—Kassab even surreptitiously asserted claims pending in other
lawsuits as counterclaims in this lawsuit. But there is a reason that Kassab uses bombastic
language and allegations rather than clear and plain language to articulate the relevance of
barratry—Kassab is intent on using this issuea to paint Pohl in a negative light in front of the jury.
Still, any presentation of evidence directed at establishing whether Pohl violated rules against
barratry is not material to the issues ine this case, because establishing barratry does not (1) prevent
Pohl from establishing the elemenfts of his claims; and (2) is not a defense to Pohl’s claims.
1. Establishing barryatry does not deny the factual bases of Pohl’s claims or prevent Pohl
from establishing the elements of his claims.
On their face, the elements necessary to establish a TUTSA claim, a conversion claim, and
the existence of ac conspiracy have nothing to do with barratry. Kassab conflates the idea that a
client contract procured through barratry is voidable (in an action brought by the client who is a
party to the contract) with the distinct issue of ownership of trade secret information. Establishing
that barratry occurred does not entail revoking an attorney’s ownership of compilations of
information about clients the attorney has represented. Nor does a contract’s voidability impact
the ownership of information reflected in the contract. Thus, whether Pohl committed barratry is
not a relevant matter that could deny Pohl the ability to establish the elements of his claims.
Kassab incorrectly appears to believe that barratry may implicate Pohl’s ownership of the
trade secrets. There is no legal basis for this position. Because establishing that bakrratry occurred
will not operate to deny Pohl the ability to establish his claims, it is not a relelvant issue that the
jury needs to consider or receive evidence on. c
i. The alleged barratry does not impact Pohl’s ownershisp of the trade secrets.
To prevail on his TUTSA claim, Pohl must be an owner of trade secrets. The statute
provides that owner “means, with respect to a trade secret, the person or entity in whom or in which
rightful, legal, or equitable title to, or the right to enforce rights in, the trade secret is reposed.”
See Tex. Civ. Prac. & Rem. Code § 134A.002(3 n -a).5 To the extent that Kassab argues that
establishing that Pohl committed barratry impracts Pohl’s ability to be the owner of any trade
secrets, that argument fails as a matter of law. Kassab has conflated the enforceability of a client
contract against a client allegedly eobtained through barratry with whether Pohl owns the
information regarding with whomf Pohl has contracted—information reflected on copies of Pohl’s
own client contracts. y
Pohl has legal or equitable title to the information that comprises his client list, as well as
the collection of coapies of attorney-client fee agreements, and the other files misappropriated by
Kassab regardlefss of how clients listed in those files were obtained. Based on his prior arguments,
Kassab appears to believe that Pohl cannot prevail on his claims without showing that every client
5 To the extent that Kassab suggests that the phrase “equitable title” imports some form of equitable analysis to whether
Pohl owns the trade secrets, there is no legal support for this position. The reference to “equitable title,” especially in
connection with the reference to “legal title,” simply incorporates the idea of beneficial ownership into the statutory
definition. Equitable title is a “title that indicates a beneficial interest in property and that gives the holder the right to
acquire formal legal title.” See Title: Equitable Title, Black’s Law Dictionary (11th ed. 2019).
behind each client contract was procured without barratry. That is not the case, and Kassab cannot
demonstrate that the existence of barratry is legally material to this lawsuit.
To understand why establishing barratry is not material, it may be useful to contemplate
what the impact would be if one assumed that Kassab can show that Pohl had obktained some, or
even all, of his clients and potential clients through barratry. Even if a client hlas a valid claim for
barratry, there is no legal support for the idea that simply because barractry occurred, the former
lawyer loses (1) ownership of the collection of information constitutisng the lawyer’s client list; or
(2) ownership of the attorney’s copy of the client contract. Rather, the statutory scheme suggests
the precise opposite. A client contract is not rendered void even if it is established that barratry
occurred. It is merely voidable if the client brings an action to have the contract declared void.
See Tex. Gov’t Code § 82.0651(a). There is no dispute that none of Pohl’s client contracts have
been declared void. This would not change eaven if Kassab established that barratry occurred in
this lawsuit, because only the client can have a contract declared void. See id.
But the lack of relevance exteends a step further. Even in a hypothetical world where some
of Pohl’s clients had their client cfontracts declared void, that would not mean that Pohl’s client list
and copies of client contractsy no longer belong to him. It would simply mean that a client contract
that was declared voidC is not enforceable against the client. There is no support for the idea once
a contract has been daeclared void, an attorney is divested of ownership of the information regarding
with whom he hfas contracted. Nor would an attorney be divested of ownership of all copies of the
void clienUt contract in his possession. Nor would the fact that a contract was declared void impact
an attorney’s ownership of a compilation of information about clients that included the information
about one client whose contract was declared void. There simply is no support for the idea that a
finding of barratry, even if it voids a client contract, results in relief, finding, or a circumstance
where an attorney must then purge his or her records of all references to that client and their
information.
Kassab’s arguments around barratry rely on obfuscating the issues that are actually before
the Court. Kassab has conflated the voidability of a contract—which can preveknt that contract
from being enforced—with ownership of trade secrets that include the compilaltion of information
contained in those contracts. Regardless of whether barratry occurred, Pohcl owned the information
about with whom he has done business, whether that information toosk the form of client contracts
or client lists. While Kassab may dispute if Pohl owned those trade secrets, whether barratry
occurred will not impact that determination.
2. Establishing barratry is not a standalone defense to Pohl’s claims.
While Kassab’s various other pled defenses are discussed below, it is important to note that
despite Kassab’s framing of this case, establishirng barratry is not an affirmative defense to Pohl’s
claims. There are no “outlaws” under Texas law. Kassab’s unsubstantiated belief that Pohl
engaged in barratry does not give Kaessab the right to ignore Pohl’s legal rights (and to treat Pohl
as outside the law’s protections) bfy misappropriating and converting Pohl’s property.
“An affirmative defeynse is defined as ‘a denial of the plaintiff’s right to judgment even if
the plaintiff establishes every allegation in its pleadings.’ An affirmative defense allows the
defendant to introdauce evidence to establish an independent reason why the plaintiff should not
prevail; it does fnot rebut the factual proposition of the plaintiff’s pleading.” Hassell Constr. Co.,
Inc. v. Stature Commercial Co., Inc., 162 S.W.3d 664, 667 (Tex. App.—Houston [14th Dist.] 2005,
no pet.) (citations omitted).
Despite prior insinuations from Kassab, establishing barratry is not a standalone defense to
Pohl’s claims, nor has Kassab pled it as a standalone defense. See generally Kassab’s Eighth
Amended Answer, Affirmative Defenses and Counterclaim (“Kassab’s Eighth Answer”). Even if
Kassab could prove that Pohl committed barratry, that is not an independent basis for denying Pohl
recovery on his claims in this lawsuit. Kassab’s desire to focus on allegations of barratry is part
of his strategy to distract and prejudice the jury against Pohl through Kassab’s repetitive,
inaccurate, and inflammatory claims that Pohl is a criminal or has violated felony crkiminal statutes.
Kassab’s attempts to use his allegations of barratry as a defense are novell and without legal
support. Kassab cannot cite to any Texas cases involving a claim for thceft of trade secrets or a
claim for conversion where barratry was found to be an affirmatisve defense to those claims.
Instead, what Kassab has pointed to are cases where courts have stated that they will not enforce
a contract that is void for illegality. The defenses of illegality and unlawful acts are discussed
more thoroughly below. See infra Part II(B)(1). But the Court should not be confused by Kassab’s
attempt to cite inapplicable caselaw in this context. Pohl is not seeking to enforce any client
contract, nor is he seeking to recover the procaeeds generated under any of those client contracts.
Because it does not constitute a defense and has not been explicitly pled as a defense, the Court
should find that establishing barratry eis not a standalone defense to Pohl’s claims.
3. Kassab should not be fpermitted to prejudice the jury through unconnected allegations
of prior bad acts that Kassab has no standing to assert.
The rules against barratry can only be enforced by specific parties against a lawyer through
specific and limited avenues. The Texas State Bar can enforce disciplinary rules involving barratry
through disciplincary proceedings brought against a lawyer. The State of Texas can enforce
criminal statutes prohibiting barratry by bringing criminal charges against a lawyer. And finally,
Texas allows clients who were solicited through barratry to sue under a civil statute. Kassab has
no standing under any of these three avenues to allege and prove that Pohl committed barratry.
If the Court permits Kassab to introduce evidence to try and establish that barratry
occurred, it would be allowing Kassab to enforce the disciplinary rules, criminal statutes, or the
civil liability statute even though Kassab would have no ability to do so in any other proceeding.
This would be improper and distract from the issues that the jury must decide in this case.
To the extent that evidence concerning, relating to, or mentioning barratry is permitted, it
should be limited, and be accompanied by a limiting instruction, to evidence thatk can be directly
linked to the plaintiffs who seek civil liability against Pohl (which are all reprelsented by Kassab).
These are the only clients for which allegations of barratry have any placusible bearing. But this
should be very carefully limited to prevent the use of the evidence as simproper character evidence
or to suggest that Pohl procured all of his clients through barratry.
B. Ten of Kassab’s so-called affirmative defenses fail as a matter of law.
In his eighth amended answer, Kassab asserted numerous affirmative defenses. As a matter
of law, ten of those defenses do not exist or do not apply in this case. To streamline the issues
presented at trial, the Court should find that the rten defenses discussed below are not legally viable
and will not be considered at trial. 
1. Kassab’s Unlawful Acts Deoctrine defense—whether called illegality, criminal acts, or
“in pari delicto”—is preccluded under clear Texas Supreme Court Precedent.
Kassab’s current pleading asserts a defense of “Illegality/Criminal Acts,” but his prior
answer described it as thep “Illegality/Criminal Acts/Unlawful Acts Rule” defense. Compare
Kassab’s Eighth Answer, at 4, with Kassab’s Seventh Answer, at 4. Separately, Kassab also asserts
a defense of “in pcairi delicto.” See Kassab’s Eighth Answer, at 4. Regardless of the title Kassab
uses to descroibe it, the unlawful acts doctrine has been supplanted under Texas law. As for
illegality and in pari delicto, they apply when a plaintiff seeks to enforce an illegal contract.
Because none of Pohl’s claims involve a request to enforce any contract—let alone one that is
allegedly illegal—the defenses of in pari delicto and illegality have no application to this case.
First, to the extent that the unlawful acts doctrine could have any relevance, it is preempted
by Texas’s proportionate responsibility statute. In Dugger v. Arredondo, the Texas Supreme Court
considered “whether the common law unlawful acts doctrine is available as an affirmative defense
under the proportionate responsibility framework.” 408 S.W.3d 825, 831–32 (Tekx. 2013). The
Court found that “it is not,” and that “[t]he plain language of section 33.003 cllearly indicates that
the common law unlawful acts doctrine is no longer a viable defense.” Idc. at 832.
Pohl laid out the preemption problem in his response to Kasssab’s affirmative motion for
traditional summary judgment.6 Kassab likely changed his description of this defense due to that
prior briefing and Pohl pointing out that Kassab acknowledged this defense was preempted in prior
briefing.7 However, Kassab describing the defense differently does not make a difference. While
this defense would fail on the merits, that question is not reached, as the defense is preempted. A
defense does not become un-preempted becauase a party calls it a different name.
Second, there are other related defenses that go by the name of “illegality,” or sometimes
“in pari delicto.” Kassab’s assertionse of these defenses also fail as a matter of law. Those defenses
apply to a party seeking to enforfce an illegal contract. Because it is undisputed that Pohl is not
attempting to enforce any coyntract, let alone an illegal contract, these defenses do not apply.
Illegality or theC in pari delicto defense apply when a party comes into court seeking to have
the court enforce ana illegal agreement. See Jefferson Cnty. v. Jefferson Cnty. Constables Ass’n,
546 S.W.3d 661f, 666 (Tex. 2018) (discussing illegality defense); Geis v. Colina Del Rio, LP, 362
S.W.3d 1U00, 106 (Tex. App.—San Antonio 2011, pet. denied) (“The defense of in pari delicto
requires Texas Courts, as a general rule, to decline to enforce illegal contracts when the contracting
6 Pohl incorporates that briefing and its evidence as it pertains to the issue of the Unlawful Acts Doctrine. See
Plaintiffs’ Response In Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholson Defendants, at 19–27, filed Sept. 12, 2022.
7 See Plaintiffs’ Response to the Kassab Defendants’ Motion to Abate Trial Setting, at 6–7, filed Sept. 15, 2022.
parties are equally blameworthy.”). These defenses are related to the unlawful acts doctrine. See
Dugger, 408 S.W.3d at 829 (unlawful acts “doctrine originated with the principle of in pari delicto
or ‘unclean hands’ in the contract context, but was extended to tort causes of action”).
Pohl has not asserted any contract claim against Kassab, nor do any ofk his tort claims
involve enforcing the terms of any allegedly illegal contract. See generallly Pohl’s Amended
Petition. Even if the enforceability of Pohl’s client fee agreements were rcelevant, that condition is
satisfied here. The Texas legislature provided that agreements prsocured through barratry are
voidable, not void, and that a client may obtain a finding that voids the agreement.8 It is undisputed
that not a single one of Pohl’s client fee agreements have been declared void.
Because the unlawful acts doctrine has been preempted it cannot apply, regardless of what
name Kassab uses to describe it. And because there is no contract the Court could decline to
enforce, the defenses of illegality and in pari daelicto do not apply as a matter of law. Alternatively,
even if such defenses could apply, they would not be triggered absent the statutory finding that a
contract was void, which has not ocecurred and cannot occur in this lawsuit. For these and the
reasons discussed above, the Coufrt should find that these defenses do not apply as matter of law.
2. The defense of “jyustification” is not available as a matter of law.
Kassab also asserts the defense of “justification.” Kassab’s Eighth Answer, at 3. Kassab
presumably contendas that he was “justified” in stealing Pohl’s client lists and other trade secrets
because he beliefves Pohl committed barratry. The problem with this theory is that “justification”
is not a defense to Pohl’s claims. Even if it were, Kassab could not arguably be “justified” in
stealing Pohl’s trade secrets because Kassab does not allege that Pohl’s barratry involved Kassab.
8 See Tex. Gov’t Code § 82.0651(a) (stating that “client may bring an action to void a contract for legal services that
was procured as a result of conduct” often described as barratry).
10
Justification is an affirmative defense to a claim of tortious interference with contract. See
Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996) (describing defense); Knox v.
Taylor, 992 S.W. 2d 40, 59 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (justification is an
affirmative defense to tortious interference). “Justification” is not a recognized dekfense to theft of
trade secrets, conversion, or conspiracy. The defense is an assertion that the deflendant was legally
justified in interfering with the plaintiff’s contract through either a contracctual or legal right. See
Tex. Beef Cattle, 921 S.W.2d at 210. It is not a generally available dsefense to all torts.9 Even for
claims where the justification is available as a defense, if a party’s acts “are tortious in themselves,
then the issue of privilege or justification never arises.” See Prudential Ins. Co. of Am. v. Fin.
Review Servs., Inc., 29 S.W.3d 74, 81 (Tex. 2000).
Even if Texas recognized “justification” as a defense to claims of theft of trade secrets,10
conversion, or conspiracy, Kassab has not anad could not allege a basis on which to assert such a
defense. First, Pohl’s allegations are that Kassab’s actions were tortious in themselves, and thus,
justification does not apply. See Prudeential, 29 S.W.3d at 81. Second, Kassab cannot legitimately
contend that Pohl took any actionf against them or that involved them before they committed the
torts that form the basis of Pyohl’s claim. The notion that Kassab was “justified” in committing
torts to obtain confidenCtial trade secrets so he could pursue claims of barratry, on behalf of third
9 There is one case, previously cited by Kassab, that states justification is an affirmative defense in the antitrust context.
See Money Mastefrs, Inc. v. TRW, Inc., No. 05-98-02017-CV, 2003 WL 152770, at *5 (Tex. App.—Dallas Jan. 23,
2003, pet. denied). However, this case further supports the conclusion that justification is not a generally applicable
defense that can be asserted against any tort claim. In finding that “[j]ustification is an affirmative defense to both an
antitrust claim and a claim for tortious interference,” the court cited to a specific statute that provides that a party is
justified in engaging in activities that may otherwise violate antitrust law if those activities are required under certain
statutory or regulatory authority. See id. (citing Tex. Bus. & Com. Code § 15.05(g)). Pohl does not dispute that the
Texas legislature could create a statutory justification defense to additional claims. However, the legislature has not
extended the applicability of the defense of justification to any of the claims asserted by Pohl in this case.
10 Kassab has also argued that “Texas courts have considered the defense in relation to theft of trade secrets” in his
prior briefing and cited to one case. See Lamont v. Vaquillas Energy Lopeno Ltd., LLP, 421 S.W.3d 198 (Tex. App.—
San Antonio 2013, pet. denied). While that case involved a claim for theft of trade secrets, the defense of justification
was not applied to that claim, rather, the court applied it to a tortious interference claim and stated that “[l]egal
justification or privilege ‘is an affirmative defense to tortious interference with contract.’” See id. at 218.
11
parties, fails as a matter of law and as a matter of logic. To the extent that Kassab argues that he
was justified in engaging in this tortious conduct on behalf of clients that did not exist at the time
he committed the relevant tortious activity, there is no support to his interpretation of this defense.
To streamline the issues presented at trial, the Court should find that this defense fkails legally.
3. The so-called defense of “Immunity under Rule 17.09 of thel Texas Rules of
Disciplinary Procedure” does not apply as a matter of law.
Kassab asserts that “Immunity under Rule 17.09 of the Texrais Rules of Disciplinary
Procedure” protects him from liability for his actions in this lawsuiDt. See Kassab’s Eighth Answer,
at 4. However, Kassab misunderstands Rule 17.09. It providess immunity to certain officials, such
as members of the Texas Commission for Lawyer Discipline. It also limits a plaintiff’s ability to
file a lawsuit predicated on a person’s involvement in the grievance process when that person is
the complainant or a witness. However, because Pohl’s claims, and thus the lawsuit, are not
predicated on Kassab’s involvement in the Mgrievance process, Rule 17.09 does not apply.
Rule 17.09 provides that: “Noo lawsuit may be instituted against any Complainant or
witness predicated upon the filing ocf a Grievance or participation in the attorney disciplinary and
disability system.” TEX. RULES DISCIPLINARY P. R. 17.09. It does not provide immunity simply
because there is some connection between a case and the grievance process. The immunity that is
provided under the rule is limited to certain officials connected to the State Bar, and such officials
“are immune fromc suit for any conduct in the course of their official duties.” Id. For a lawsuit to
be “predicate o d upon” something, that something must be what the lawsuit is based or founded on.11
Kassab’s involvement in the grievance process does not give rise to Pohl’s claims. Pohl’s
claims against Kassab are based on his misappropriation and conversion of Pohl’s property—
11 Predicate, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/predicate (accessed
Nov. 28, 2022) (listing “FOUND, BASE” as a definition of “predicated”).
12
including his improper purchase and/or acquisition of Pohl’s client list, which included actual
attorney-client fee agreements. See generally Amended Petition. These claims accrued upon
Kassab’s acquisition of the client information or use of the client information to solicit those
clients. Thus, Pohl’s claims accrued prior to any grievance being filed by Kassakb. Because the
claims asserted pre-date the filing or participation in any grievance by Kassab, lthis lawsuit cannot
have been “predicated upon the filing of a Grievance,” and Rule 17.09 doces not apply.
Based on Kassab’s prior briefing on this subject, he appears tos believe (or wish through his
selective quotations) that Rule 17.09 provides absolute immunity to him for anything he can
connect to the grievance process—even though he is not a State Bar official. But that is not what
the rule provides. A simple hypothetical shows how this lawsuit is not predicated on Kassab’s
participation in the grievance process. If Kassab had never filed or participated in the grievance
process, would Pohl’s claims in this lawsuit satill exist? Given that Pohl’s claims accrued prior to
Kassab’s participation in the grievance process (starting in 2028), the answer is clearly yes. The
fact that Kassab has taken the positioen on multiple occasions that Pohl’s claims accrued prior to
2018 and are barred by limitationfs shows that the fact that the basis or predicate of Pohl’s claims
predates the grievances is noyt something that can be disputed.12
Pohl anticipateCs that Kassab may argue that a small portion of Pohl’s damages are
connected to the griaevance process, and that this triggers application of Rule 17.09. However, the
fact that there isf some connection that can be drawn between a grievance and a lawsuit does not
implicateU Rule 17.09. There must be a showing that the lawsuit is predicated upon the grievance,
not merely connected to it, especially when the claims accrued prior to the filing of any grievance.
Participating in the grievance process is not a get-out-of-jail-free card for prior wrongful conduct.
12 See, e.g., Kassab’s Traditional Motion for Summary Judgment, at 2, 44–57, filed Aug. 29, 2022 (arguing that Kassab
had conclusively established that Pohl’s claims against Kassab accrued years prior to the filing of this lawsuit).
13
A party’s participation in the grievance process is protected. But a person who commits a tort and
then subsequently files a grievance is not somehow absolved for what they did prior to their
involvement in the grievance process.
Because this lawsuit is not predicated on Kassab’s participation in the grikevance process,
the Court should find that Rule 17.09 does not apply as a matter of law. l
4. Unclean hands is not a defense to legal claims. c
Kassab asserts “unclean hands” as an affirmative defense. Ssee Kassab’s Eighth Answer,
at 3. Here again, Kassab presumably hopes to inject his claims of barratry to muddy the issues in
the trial of this case. But unclean hands is not available as a defense to the claims asserted here,
nor is it applicable to the type of relief currently sought by Pohl.
Texas law provides that unclean hands is an affirmative defense that may bar a party with
unclean hands from obtaining equitable relief. r See Wood v. Wiggins, 650 S.W.3d 533, 556 (Tex.
App.—Houston [1st Dist.] 2021, pet. denied). However, there is both a nexus requirement, and a
requirement that the party invoking tehe defense “must show an injury to himself arising from the
conduct.” Id. “‘The clean hands mfaxim should not be applied when the defendants have not been
seriously harmed and the wryong complained of can be corrected without applying the doctrine.’”
Id. (citation omitted).
Kassab’s usae and dissemination of Pohl’s trade secrets is a bell that cannot be unrung.
Thus, while Pohfl previously pled injunctive relief in his petition, to streamline issues for trial, Pohl
will no longer seek this relief. Because Pohl does not seek any equitable relief, and the defense is
not available to Pohl’s tort claims, the Court should preclude consideration of the “unclean hands”
defense at trial as a matter of law.
To the extent that Kassab can show that the defense still has legal application for some
other reason, the Court can still narrow the issues for trial by finding that Kassab cannot use
14
allegations of barratry, improper solicitation, or other supposed conduct relating to Pohl’s former
and prospective clients to prove up this defense. There is no plausible theory by which that conduct
caused Kassab an injury, rather than an alleged injury to Pohl’s former clients. See Wiggins, 650
S.W.3d at 556 (party asserting defense “must show an injury to himself arising fromk the conduct.”).
Because the defense of unclean hands does not apply to Pohl’s claims orl the relief he seeks,
the Court should find that as a matter of law, the defense has no applicaction or relevance to the
trial in this matter. In the alternative, the Court should find that, as as matter of law, any theory of
unclean hands based on Kassab’s allegations that Pohl committed barratry or other misconduct
relating to Pohl’s former and prospective clients is not relevant, as it did not harm Kassab.
5. The defenses of release, accord and satisfaction, estoppel, and “subject to a valid
contract” are not available as a matter of law.
Kassab’s current answer also purports to assert defenses of “release,” “accord and
satisfaction,” “estoppel,” and “subject to a Mvalid contract.” See Kassab’s Eighth Answer, at 3–4.
However, in his prior summary judgmoent briefing, Kassab acknowledged that “contract-related
affirmative defenses of release, accocrd and satisfaction, estoppel do not apply to Kassab.”13 Pohl
agrees, and thus, this Court should find that because Pohl has not pled a contract claim against
Kassab, the defenses of release, accord and satisfaction, and estoppel do not apply in this case as
a matter of law. See Plaintiff’s First Amended Petition ¶¶ 35–43 (not asserting any claims
sounding in contrcact against Kassab).
As for Kassab’ assertion of the defense of “subject to a valid contract,” this defense appears
to be a rewording of the express contract defense. That defense has no application here as a matter
of law. The express contract defense applies to prevent a plaintiff from recovering in quantum
13 See The Kassab Defendants’ Response to Plaintiffs’ Motion for Partial Traditional and No-Evidence Summary
Judgment, at 16, filed Sept. 12, 2022.
15
meruit when a plaintiff seeks “to recover the reasonable value of services rendered or materials
supplied” but “there is an express contract that covers those services or materials.” See Pepi Corp.
v. Galliford, 254 S.W.3d 457, 462 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Pohl has
not pled or argued claims that would support such a defense, nor has Kassab madek any allegations
that could plausibly support this defense. l
Because these affirmative defenses relate to claims made in conctract, and Pohl has not
alleged any contract claims against Kassab, the Court should find sthat the defenses of release,
accord and satisfaction, estoppel, and “subject to a valid contract” do not apply as a matter of law.
6. Affirmative defenses of assumption of the risk and contributory negligence are no
longer independent defenses apart from proporrtionate responsibility.
Kassab asserts “assumption of the risk” and “contribution”14 as affirmative defenses. See
Kassab’s Eighth Answer, at 3–4. Neither of these defenses are proper defenses to the claims in
this case. The Texas Supreme Court has dMeclared that “the common law affirmative defenses of
assumption of the risk and contributory onegligence no longer exist under Texas law,” rather, their
“underlying concepts remain relevacnt under Texas’s proportionate-responsibility statute.” Austin
v. Kroger Tex., L.P., 465 S.W.3d 193, 209–10 (Tex. 2015) (footnote and citation omitted). To
narrow the issues at trial, the Court should find that these defenses are not legally viable.
PRAYER
For the recaisons set forth herein, Pohl asks the Court to find that establishing whether
barratry occuorred is not legally relevant to this lawsuit and that Kassab’s affirmative defenses of
unlawful acts; illegality; criminal acts; in pari delicto; justification; immunity under Rule 17.09;
unclean hands; release; accord and satisfaction; estoppel; subject to a valid contract; assumption
of the risk; and contribution are barred as a matter of law.
14 It is unclear what defense Kassab’s reference to “Contribution” could refer to other than contributory negligence.
16
Dated: November 30, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 r
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
17
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 70589892
Status as of 12/1/2022 8:34 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 11/30/2022 8:20:45 PM SENT
Zandra EFoley zfoley@thompsogncoe.com 11/30/2022 8:20:45 PM SENT
Andrew Johnson ajohnson@thoumpsoncoe.com 11/30/2022 8:20:45 PM SENT
Benjamin Ritz britz@thompsoncoe.com 11/30/2022 8:20:45 PM SENT
Murray JFogler mfogleyr@foglerbrar.com 11/30/2022 8:20:45 PM SENT
Murray Fogler mfaogler@fbfog.com 11/30/2022 8:20:45 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Raul Herman Suazo 24003021osuazo@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Misty Davis f mdavis@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 11/30/2022 8:20:45 PM SENT
Lance Kassab p eserve@kassab.law 11/30/2022 8:20:45 PM SENT
Jean C.Frizzell C jfrizzell@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Harris Wells a l hwells@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Scott M.Favre scott@favrepa.com 11/30/2022 8:20:45 PM SENT
Lawyer Wade o lawyerwade@hotmail.com 11/30/2022 8:20:45 PM SENT
Andrea MendeUz andrea@kassab.law 11/30/2022 8:20:45 PM SENT
Lance Kassab lance@kassab.law 11/30/2022 8:20:45 PM SENT
David Kassab david@kassab.law 11/30/2022 8:20:45 PM SENT
Nicholas Pierce nicholas@kassab.law 11/30/2022 8:20:45 PM SENT
D Kassab david@kassab.law 11/30/2022 8:20:45 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 8:20:45 PM SENT
L Kassab lance@kassab.law 11/30/2022 8:20:45 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 8:20:45 PM SENT"
47,2022-11-30,OBJ,Pohl,Objection to Kassab supp. RTP,Pohl's Objection to Kassab's Supplemental Motion to Designate Responsible Third Parties,"Filed November 30, 2022 in response to Kassab's Supplemental RTP Motion filed November 15, 2022. Judge Dollinger denied Kassab's original RTP Motion on October 31, 2022 (finding Pohl's objection was 'well taken') and gave Kassab 14 days to replead. Kassab filed 15 days later (one day late). Pohl argues the supplemental motion contains no new factual allegations. Pohl does not object to designation of Favre and Precision as RTPs.",RTP-1,N/A,Phase 3,2022-11-30_OBJ_Pohl-Objection-to-Kassab-Supp-RTP_FILED.pdf,"Deny Kassab's Supplemental RTP Motion without leave for Kassab to attempt to replead, as Kassab failed to plead sufficient facts after already being granted leave to replead","11/30/2022 4:26 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 70583280
By: Ashley Lopez
Filed: 11/30/2022 4:26 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 189TH JUDrICIAL DISTRICT
POHL’S OBJECTION TO KASSAB’S SUPPLEMENTAL MOTION TO DESIGNATE
RESPONSIBLE THIRD PARTsIES
Plaintiffs Michael Pohl and Law Office of Michael A. Pohl PLLC (collectively “Pohl”) file
this Objection to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law Firm’s Supplemental Motion to Designate Responsible Third Parties1 (the
“Supplemental RTP Motion”) and would showa the Court as follows:
Kassab’s Supplemental RTP Motion does not address the failings of the original RTP
Motion. The Court denied Kassab’se first RTP Motion2 because Kassab failed to plead sufficient
facts showing that the alleged resfponsible third parties were responsible for the harms underlying
Pohl’s claims. Kassab was ygiven a chance to replead with sufficient new facts to demonstrate
liability. However, thCe Supplemental RTP Motion contains the same factual allegations copied
and pasted from the briefing before the Court when it denied the RTP Motion. Kassab tried to
disguise this bfyf reordering and lightly paraphrasing or modifying the allegations. But Kassab
1 This Objection is primarily directed at Kassab’s Supplemental RTP Motion, filed Nov. 15, 2022. Kassab also filed
a Second Supplemental Motion to Designate Responsible Third Parties, filed Nov. 22, 2022 (“Second Supplemental
RTP Motion”). Pohl does not object to the designation of Scott Favre and Precision Marketing Group, LLC as
responsible third parties. However, Pohl objects to the Second Supplemental RTP Motion, on the same grounds as
set forth in this briefing, to the extent that it seeks the same relief sought in the Supplemental RTP Motion or seeks to
designate anyone as a responsible third party other than Scott Favre and Precision Marketing Group, LLC.
2 See Kassab’s Motion to Designate Responsible Third Parties, filed May 13, 2022 (the “RTP Motion”); see also Court
Order, dated Oct. 31, 2022 (denying the RTP Motion).
provided no new factual allegations since the Court ruled on the RTP Motion, and thus, the Court
should deny the Supplemental RTP Motion for the same reasons it denied the RTP Motion.
I. BACKGROUND
Kassab seeks the same relief in the Supplemental RTP Motion as he soukght in the RTP
Motion—he seeks to designate eight allegedly responsible third parties—Billly Shepherd, Scott
Walker (“Walker”), Steve Seymour (“Seymour”) Kirk Ladner (“Ladncer”), Dona Pohl, Edgar
Jaimes, Ken Talley, and Magdalena Santana (collectively, the “Allesged RTPs”). See generally
RTP Motion; Supplemental RTP Motion. 
After Kassab filed the RTP Motion, on May 31, 2022, Pohl timely filed his Objection to
Kassab’s Motion to Designate Responsible Third Parties (“Pohl’s Original RTP Objection”). It
clearly laid out how the allegations in Kassab’s original RTP Motion were deficient, and how none
of the Alleged RTPs “caused or contributed to causing” the harms underlying Pohl’s claims. See
generally Pohl’s Original RTP Objection (quoting TEX. CIV. PRAC. & REM. CODE § 33.011(6)).
The Court was required to designate tehe Alleged RTPs as responsible third parties unless the Court
found that Pohl’s Original RTP Ofbjection demonstrated that Kassab had failed to “plead sufficient
facts concerning the alleged yresponsibility of the person to satisfy the pleading requirement of the
Texas Rules of Civil PCrocedure.” See TEX. CIV. PRAC. & REM. CODE § 33.004(g)(1).
Kassab waiated until September 2022, to request a ruling on this issue. See generally
Kassab’s Motiofn to Rule on Plaintiffs’ Objection to Designation of Responsible Third Parties
(“MotionU to Rule”), filed Sept. 22, 2022. After Kassab’s Motion to Rule was filed, the Court held
an oral hearing, and the Court found that Pohl’s Original RTP Objection was “well taken,” and
denied Kassab’s RTP Motion. See Court Order, dated Oct. 31, 2022. Kassab was given leave to
“replead and seek the relief sought in the” RTP Motion “within 14 days of this ORDER.” Id.
Despite the Court’s deadline, Kassab took 15 days to file the Supplemental RTP Motion,3
and he then requested a continuance in part on the basis that responsible third parties had not been
designated. But even though he took 15 days, rending the request untimely, Kassab chose to
make no new material factual allegations when repleading. All of the factual akllegations in the
Supplemental Motion were contained in the RTP Motion and the Motion to Rulle. Thus, there are
no new factual allegations before the Court that the Court did not have in cfront of it when it denied
Kassab’s RTP Motion last month. s
II. COMPARISON OF THE ORIGINAL (ALREADY DENIEDs) RTP MOTION TO KASSAB’S
SUPPLEMENTAL RTP MO s TION
To assist the Court in understanding how Kassarb failed to plead new facts to justify
designating the Alleged RTPs as responsible third parties—and instead just copied and rearranged
prior allegations—Pohl provides the following dliscussion of how Kassab’s Supplemental RTP
Motion differs (or does not differ) from tMhe RTP Motion. The original RTP Motion and the
Supplemental RTP Motion are collectivoely referred to as the “Motions.”
The Motions are word-for-wcord identical for their first six and a half pages—excluding
references to the respective titles of the Motions. Compare RTP Motion, 1–7, with Supplemental
RTP Motion, 1–7. The “Facts” sections of both Motions are 100% identical to each other. See id.
The first set of real differences between the Motions are the opening three paragraphs of
the Supplementalc RTP Motion’s “Argument” section. These paragraphs discuss legal standards
and how the Court permitted Kassab to replead after the Court denied the RTP Motion. See
Supplemental RTP Motion ¶¶ 15–17. There are no new relevant factual allegations concerning
any Alleged RTP in these paragraphs. See id. Although these three paragraphs are not contained
3 The day before Kassab filed the Supplemental RTP Motion, Kassab filed an eighth amended answer containing the
same copied and pasted allegations found in his prior briefing. But Kassab did not replead and “seek the relief” he
sought in the RTP Motion until he filed the Supplemental RTP Motion after the Court-ordered deadline.
in the RTP Motion, they were copied almost word-for-word from Kassab’s Motion to Rule.
Compare id., with Motion to Rule, at 2–3.4
The only real addition of factual allegations comes with paragraph 18, which is not directly
copied and pasted from the prior RTP Motion. Compare Supplemental RTP Moktion ¶ 18, with
RTP Motion. This paragraph focuses exclusively on three Alleged RTPs—Wallker, Seymour, and
Ladner—it does not address the lack of allegations against other Alleged RcTPs. See Supplemental
RTP Motion ¶ 18. Furthermore, it is copied nearly word-for-word frosm Kassab’s brief asking the
Court to rule on the RTP Motion. Compare id., with Motion to sRule, at 3–4.5
The remaining seven paragraphs (paragraphs 19–25) of the Supplemental RTP Motion are
either directly copied from the RTP Motion, or they are lightly modified or paraphrased versions
of what was previously pled in the RTP Motion:
• Compare Supplemental RTP Maotion ¶ 19, with RTP Motion ¶ 19 (showing same
factual allegations were copMied and/or paraphrased).
• Compare Supplemental RoTfP Motion ¶ 20, with RTP Motion ¶ 17 (same).
• Compare Supplementeal RTP Motion ¶ 21, with RTP Motion ¶¶ 16–17 (same).
• Compare Supplemfeintal RTP Motion ¶ 22, with RTP Motion ¶ 18 (showing same
factual allegatioOns were copied and pasted with a few words deleted).
• Compare Supyplemental RTP Motion ¶ 23, with RTP Motion ¶ 20 (showing same
factual allegations were copied and/or paraphrased).
• Compare Supplemental RTP Motion ¶ 24, with RTP Motion ¶ 20 (showing same
factuaall allegations were copied and pasted with minor alterations or omissions).
• Co c mpare Supplemental RTP Motion ¶ 25, with RTP Motion ¶ 20 (showing same
ffactual allegations were copied and pasted with minor alterations).
4 Almost every word of these three paragraphs of the Supplemental RTP Motion was directly copied from the Kassab’s
Motion to Rule, other than a sentence noting that the Court denied the RTP Motion and granted leave to replead. See
Supplemental RTP Motion ¶ 16. This statement is not material.
5 The last clause of paragraph 18 adds: “as had Walker, Ladner and Seymour not stolen Pohl’s alleged trade secrets as
he alleges, they could not have sold the alleged trade secrets to Favre and thus, Favre could not have given the alleged
trade secrets to Kassab.” See Supplemental RTP Motion ¶ 18. However, this is not a new factual allegation, as it
simply lightly synthesizes other prior factual allegations. See generally RTP Motion.
There is one exception regarding those seven paragraphs. Paragraph 25 of the Supplemental RTP
Motion appears to be a combination of two different paragraphs—one from the RTP Motion, and
one from the Motion to Rule. Compare Supplemental RTP Motion ¶ 25 (containing new legal
arguments and citations), with RTP Motion ¶ 20, and Motion to Rule, at 4–5. Thkus, there are no
new substantive factual additions in the Supplemental RTP Motion. All thle facts alleged are
contained in the briefing that was before the Court when it ruled on the RcTP Motion.
III. DISCUSSION s
Resolution of Kassab’s Supplemental RTP Motion is easy. Despite the factual allegations
contained in the RTP Motion and the Motion to Rule, on October 31, 2022, this Court ruled that
Kassab had failed “plead sufficient facts concerning the alleged responsibility of the person to
satisfy the pleading requirement of the Texas Rules of Civil Procedure.” See Tex. Civ. Prac. &
Rem. Code § 33.004(g)(1). Nothing has chaanged since the Court made this ruling.
Because this Court already found that Pohl’s Original RTP Objection demonstrated that
Kassab’s allegations were deficient uender the rules, it should also be sufficient as an objection to
the substantively identical Supplefmental RTP Motion. Pohl therefore incorporates by reference,
in its entirety, Pohl’s Originayl RTP Objection. The Court should reject Kassab’s “butterfly effect”
theory of proportionateC responsibility and deny Kassab’s Supplemental RTP Motion for the same
reason it denied Kaassab’s prior RTP Motion—because Kassab fails to allege facts showing how
the alleged respfonsible third parties are responsible for the harms underlying Pohl’s tort claims.
U IV. CONCLUSION
For the foregoing reasons, and for the reasons stated in Pohl’s Original RTP Objection,
Pohl objects to Kassab’s Supplemental RTP Motion and request that the Court deny the
Supplemental RTP Motion without leave for Kassab to attempt to replead, as Kassab failed to
plead sufficient facts after being granted leave to replead.
Dated: November 30, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 70583280
Status as of 12/1/2022 8:15 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 11/30/2022 4:26:40 PM SENT
Zandra EFoley zfoley@thompsogncoe.com 11/30/2022 4:26:40 PM SENT
Andrew Johnson ajohnson@thoumpsoncoe.com 11/30/2022 4:26:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com 11/30/2022 4:26:40 PM SENT
Murray JFogler mfogleyr@foglerbrar.com 11/30/2022 4:26:40 PM SENT
Murray Fogler mfaogler@fbfog.com 11/30/2022 4:26:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 11/30/2022 4:26:40 PM SENT
Dale Jefferson 10607900ojefferson@mdjwlaw.com 11/30/2022 4:26:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 11/30/2022 4:26:40 PM SENT
Jason M.Ciofalo f jason@ciofalolaw.com 11/30/2022 4:26:40 PM SENT
Chris C.Pappas cpappas@krcl.com 11/30/2022 4:26:40 PM SENT
Todd Taylor p ttaylor@jandflaw.com 11/30/2022 4:26:40 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 11/30/2022 4:26:40 PM SENT
Non-Party Witness Billy Sahlepherd bshepherd@spcounsel.com 11/30/2022 4:26:40 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 11/30/2022 4:26:40 PM SENT
Todd Taylor o ttaylor@jandflaw.com 11/30/2022 4:26:40 PM SENT
Scott M.FavreU scott@favrepa.com 11/30/2022 4:26:40 PM SENT
Lawyer Wade lawyerwade@hotmail.com 11/30/2022 4:26:40 PM SENT
Andrea Mendez andrea@kassab.law 11/30/2022 4:26:40 PM SENT
Lance Kassab lance@kassab.law 11/30/2022 4:26:40 PM SENT
David Kassab david@kassab.law 11/30/2022 4:26:40 PM SENT
Nicholas Pierce nicholas@kassab.law 11/30/2022 4:26:40 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/30/2022 4:26:40 PM SENT
D Kassab david@kassab.law 11/30/2022 4:26:40 PM SENT
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 70583280
Status as of 12/1/2022 8:15 AM CST
Case Contacts r i
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 4:26:40 PM SENT
L Kassab lance@kassab.law s 11/30/2022 4:26:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 11/30/2022 4:26:40 PM SENT
Lance Kassab eserve@kassuab.law 11/30/2022 4:26:40 PM SENT"
45,2022-11-22,MTN,Kassab,2nd Supp. Motion to Designate RTP,"Kassab Defendants' Second Supplemental Motion to Designate Responsible Third Parties (Adding Scott Favre and Precision Marketing Group, LLC)","Filed November 22, 2022 before Judge Scot Dollinger, 189th Judicial District, Harris County, Texas. Filed 13 days before the December 5, 2022 trial date, after Pohl dismissed Favre and Precision as defendants on November 21, 2022. Kassab seeks good cause to designate newly dismissed parties as responsible third parties within 60 days of trial.",RTP-1,N/A,Phase 3,2022-11-22_MTN_Kassab-2nd-Supp-Mtn-to-Designate-RTP_FILED.pdf,"Grant leave to designate Favre and Precision Marketing Group, LLC as additional responsible third parties, in addition to the eight individuals from prior supplemental motion, plus all other relief in law or equity","11/22/2022 3:51 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 70416484
By: Ashley Lopez
Filed: 11/22/2022 3:51 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 LAlNCE
CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S
SECOND SUPPLEMENTAL MOTION TO DESIGNATE RcESPONSIBLE
THIRD PARTIES r
TO THE HONORABLE JUDGE SCOT DOLLINGER: D
Defendants, Lance Christopher Kassab and Lance Chsristopher Kassab, P.C. D/B/A The
Kassab Law Firm (“Kassab”), and file this, their Secornd Supplemental Motion to Designate
Responsible Third Parties.
REQUEaSTED RELIEF
1. Kassab files this Second Supplemental Motion to Designate Responsible Third
Parties to add Scott Favre (Favre) aned Precision Marketing Group, LLC (Precision) as additional
third parties. Favre and Precisionf were defendants in this lawsuit until Plaintiffs dismissed them
on November 21, 2022, jusyt 14 days prior to trail. Thus, Favre and Precision are no longer
parties to this suit. ThCus, there is good cause for designating Favre and Precision as responsible
Third Parties withina 60 days of trial due to the timing of Plaintiffs nonsuit of these parties.
2. Ffavre and Precision are central to this litigation as they purchased all of the
material Uand documents, which are the subject of Plaintiffs’ complaints, from Walker, Ladner
and Seymour, who previously owned Precision. Favre and Precision then gave some of the
material and documents to Kassab to notify Precision’s clients regarding Pohl’s illegal conduct
and potential claims they may have against Pohl. Thus, Favre and Pohl are central to this
litigation and are subject to potential third party liability, if there is liability at all.
3. Favre and Precision are outside of the subpoena power of this court. Although
Kassab has attempted to depose Favre and Precision for more than a year, Kassab has been
unsuccessful due to no fault of Kassab. Now that Plaintiffs have dismissed their claims against
Favre and Precision, Kassab cannot rely on Favre and Precision showing up to kthe trial in this
matter. l
II c
FACTS r
4. Pohl is a lawyer who commits barratry and has pDrayed on the less fortunate to
earn a living. On October 18, 2014, three Mississippi residensts, Scott Walker (“Walker”), Kirk
Ladner (“Ladner”) and Steve Seymour (“Seymour”),r and their related entities, including
Precision Marketing Group, LLC (“Precision”), filed suit against Michael Pohl (“Pohl”) and
others in Mississippi federal court (the “Misslissippi Litigation”). There, Precision, Walker,
Ladner and Seymour alleged that: (1) theyM had a joint venture with Pohl to sign up clients with
economic loss claims stemming fromo the BP Deepwater Horizon oil spill and clients with
personal injury claims; (2) that they successfully obtained these clients for Pohl; and (3) that
Pohl breached their agreement by not paying them what was owed, including their agreed share
of Pohl’s attorney’s fees.
5. The evidence presented in the Mississippi Litigation established that Pohl
engaged in barractry. See TEX. PEN. CODE § 38.12 (defining barratry generally as the improper
solicitation of clients). During that litigation, Walker testified that Pohl retained him and
Precision to “provide marking services to auto accident victims[.]” Walker testified that although
he and Pohl called it “marketing services” or “marketing money,” it was “clear to [him] it was
barratry.” In fact, Walker considered himself and his company “a pass-through for barratry
money.” All told, Walker, Ladner and Precision received over $5 million in “barratry pass-
through money” from Pohl and other lawyers to solicit potential clients, both auto-accident
victims and those involved in the BP litigation. They would use this money to pay contract
workers to solicit clients. They would locate and instruct contract workers on how to accomplish
the solicitation. They trained “40 or 50 people” on how to “go out and solicit conktracts.”
6. Walker and his team at Precision were first retained by Pohl lto “recruit clients”
with losses resulting from the Deepwater Horizon oil spill. When that lcitigation dwindled, Pohl
shifted his focus to auto accident cases, knowing that the group at Prsecision could go out and get
him those types of clients. To accomplish this task, individuals at Precision would receive
“Google alerts” or leads from Pohl on recent catastrophic auto accidents. Walker testified that he,
Ladner, or someone working for them would go to the victims of the auto accident to “do
marketing” by letting them know “there were attorneys [who] could help.” In exchange, these
runners – whoever visited the victims – whaere paid between $2,500 and $5,000 to solicit the
client. These payments flowed from Pohl through his wife’s wholly owned company, “Helping
Hands Financing,” to Precision, to eeach individual runner. Walker would simply submit to Pohl
the amount that Precision paid itsf runners and Pohl would reimburse Precision.
7. One of the ruynners, Santana, testified to the barratry in her September 24, 2016
affidavit filed in the MCississippi Litigation. She testified that Pohl sent her on “dozens and
dozens of car wrecak cases all over the country.” Pohl would email Santana the link of news
coverage depictfing the accident and ask her “to go to the victim or the victim’s family and try to
get them Uto sign up with him.” Pohl offered to pay Santana “$5,000 per case that [she] signed,
plus a percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even if
the family ... rejected [her].” Santana was instructed by Pohl to “approach the victims and their
families while they were vulnerable, in the emergency room, their hospital rooms or at the
funerals.” Id. Pohl told Santana that minorities “were especially vulnerable since they tended not
to know that the law prohibited barratry.” According to Pohl, they “were easier to sign up.”
8. Pohl would pay Santana “money to give to the victims or their families” but “only
if they agreed to sign a Pohl representation contract.” Pohl advised Santana that thke money was a
“foot in the door” but instructed Santana not to mention that she was there onl behalf of a lawyer
“until after they agreed to take the money.” “If the client agreed to hire Pcohl, then [Santana] was
to have the client sign a ‘Helping Hands’ contract.” Pohl would thens give Santana the money to
pay the client “from his own Helping Hands company.” When Santana questioned this, Pohl 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.”
9. Santana further confirmed the barratry in her deposition taken in the Mississippi
Litigation. She testified that she was hired bay Pohl to solicit auto accident cases, the first one
was an accident where a woman and her unborn child lost their lives. Santana was instructed by
Walker, who was instructed by Pohl,e to personally visit the mother of the deceased and sign her
up to sue the tire manufacturer anfd, if she succeeded, Pohl would pay her $5,000. Santana visited
the funeral of the deceased aynd got the family to feel comfortable with her. Although the mother
was grieving, Pohl toldC Santana: “take no prisoners, this is a cut-throat business, you get in there
and you do whatevaer it takes to get this client.” The solicitation was successful after Pohl gave
Santana $2,000 fto “give to the client to convince her into signing over with the firm.”
10U. Pohl later requested Santana to sign an agreement promising not to go to any law
enforcement, including various State Disciplinary boards regarding any wrongdoing, criminal or
unethical conduct. In fact, it is undisputed that Pohl paid Santana $50,000 in cash to sign this
agreement, which was delivered to her in Florida by Pohl’s paralegal, Jaimes. Santana confirmed
this in an affidavit and Jaimes confirmed this in his deposition. Santana signed the statement and
received the cash, although she believed she was “forced to sign” it while “under duress”.
11. Another runner, Talley, also testified in the Mississippi Litigation about the
barratry. Talley solicited over 20 auto accident cases for Pohl, including two famkilies who hired
Kassab to sue Pohl for barratry. Talley testified that he was first hired in relatilon to BP claims to
find “folks that lost money due to the oil spill” and “sign them up” and “cget a fee for it.” Talley
solicited and signed up more than 800 BP claims for Pohl and was spaid between $75 and $350
per client. 
12. Talley eventually transitioned to soliciting auto accident victims, “calling on folks
that had bad accidents.” Talley recalls that the first client he solicited was in “the hospital in
intensive care.” Talley maintained $1,000 in cash to pay the accident victims to “help them with
problems” and influence them to hire a lawyaer, because the victims received the money only if
they “were signed up.” Talley would advise the victims that he had attorneys who could help
them, and that one of those attorneyse was Pohl. For each auto accident case he solicited, Talley
was paid a fee of $1,400 plus hfis expenses by Pohl, through Walker and Precision. On some
cases, Talley was to receive ya portion of Pohl’s attorney’s fees, and even discussed with Pohl the
“percentage of settlemCents” he was to receive. When asked whether Pohl knew he was getting
paid to “contact vaehicle accident victims,” Talley responded, “the money was coming from
Edgar [Jaimes] fwho worked for him.” 1CR301. Although his paycheck was from Precision, “the
funding cUame by way of Edgar [Jaimes].” Talley testified that both he and Pohl knew what they
were doing was illegal.
13. In May of 2016, during the Mississippi Litigation, an insurance adjuster named
Scott Favre (“Favre”) purchased Precision and all the company’s assets, including client lists,
marketing lists, documents, files, computers, etc. from Walker, Seymore and Ladner. Included
in the purchase was the Mississippi Litigation, thus, Precision’s claims against Pohl in the
Mississippi Litigation were assigned to Favre. Favre and Precision were represented in the
Mississippi Litigation by Texas lawyer, Tina Nicholson and her firm, Baker Nicholson, LLP
(“Nicholson”). Pohl asserted counter claims in the Mississippi Litigation allegikng that Walker
and Precision (and other unknown defendants) converted his property. Polhl then moved to
dismiss the claims against him, arguing, among other things, that the acgreements between him
and the runners were illegal and unenforceable. More specifically, sPohl 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.” The Mississippi federal court rejected Pohl’s contention,
stating that the agreements to solicit clients would only be a violation of Texas law and Texas
disciplinary rules, which did not apply to Precision, a Mississippi company, and Walker and
Ladner, Mississippi residents. Having failead to obtain summary dismissal, Pohl settled the
Mississippi Litigation with all parties, including Favre, hoping to forever conceal his barratry
operation. Although Pohl had alreaedy paid the runners approximately $5,000,000 in barratry
money, Pohl paid the runners an fadditional $1,000,000 to settle the Mississippi Litigation.
14. Kassab heardy about the allegations being made by the runners in the Mississippi
Litigation. Kassab seaCrched PACER, the federal court’s online system, obtaining a plethora of
information relateda to the Mississippi Litigation. Kassab met with Favre and Precision’s
counsel, Nicholfson. Kassab obtained information directly from them, including the names and
addressesU of Pohl’s former clients or prospective clients from Precision’s marketing and client
lists. Precision, through Favre, informed Kassab that it owned all of its marketing lists and
information and also informed and verified that Precision was the main Plaintiff suing Pohl in
the Mississippi Litigation. Thereafter, Kassab used Precision’s marketing and client lists to
notify individuals who he believed may have been victims of Pohl’s barratry. Hundreds of
individuals responded, indicating that they had been personally solicited to hire Pohl in their auto
accident or BP claims. Kassab agreed to represent these clients, and more than 400 individuals
hired Kassab to represent them against Pohl and other lawyers involved in the illegal barratry
scheme. k
15. Kassab filed four petitions on behalf of these barratry victimsl in Harris County,
Texas (the “barratry lawsuits”). The barratry lawsuits communicated mcatters of public concern:
that Pohl conspired to commit barratry. After reviewing the esvidence obtained from the
Mississippi Litigation, Kassab believed he had a duty to file a grievance against Pohl pursuant to
Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct,1 and he did. Kassab also
filed a grievance against Pohl on behalf of one of his clients. In the grievances, Kassab and his
client expressed matters of public concern relating to Pohl’s legal services in the marketplace and
petitioned the State Bar of Texas to reprimanad and discipline Pohl in order to protect the public
as is mandated by Rule 8.03. 
16. Unfortunately, in direect retaliation to the lawsuits and grievances filed against
Pohl, Pohl filed this retaliatoryf litigation against Kassab, Precision, Nicholson, Favre and
Montague, alleging breach yof contract, theft of trade secrets, conversion and civil conspiracy.
Specifically, Pohl alleCged that these parties were “acting in combination with the agreed
objective” to misapapropriate his trade secrets and convert the marketing lists and attorney-client
contracts that Pfohl hired Precision to obtain. Pohl alleges Favre and Precision, with Nicholson’s
assistanceU, converted this property and provided it to Kassab and Montague in order to solicit
Pohl’s former clients “to bring cases against Pohl for alleged barratry and other claims.”
1 See TEX. DISC. R. PROF’L COND. 8.03(a) (except in circumstances which do not apply here, “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.”).
III
ARGUMENT
17. “A defendant may seek to designate a person as a responsible third party by filing
a motion for leave to designate that person as a responsible third party. The motion must be filed
on or before the 60th day before the trial date unless the court finds good caruse to allow the
motion to be filed at a later date.” TEX. CIV. PRAC. & REM. CODE § 33.0
04(a). That occurred
here, with Kassab filing his motion on May 13, 2022, more than 60 darys before the October 10,
2022 trial setting. The current trial setting is December 5, 2022.D Thus, the statute required the
Court to “grant leave to designate the named person as a ressponsible third party unless another
party files an objection to the motion for leave on or beforre the 15th day after the date the motion
is served.” Id. at § 33.004(f).
18. Kassab has good cause to desiglnate Favre and Pohl within 60 days of trial
because Plaintiff just dismissed Favre andM Pohl from this lawsuit 14 days prior to the current
scheduled trial. Kassab will be prejuodiced if Kassab is not allowed to designate Favre and
Precision at this late time due to the circumstances created by Plaintiff and at no fault of Kassab.
19. A responsible third party is “any person who is alleged to have caused or
contributed to causing in any way the harm for which recovery of damages is sought, whether by
negligent act or omission, by any defective or unreasonably dangerous product, by other conduct
or activity that vciolates an applicable legal standard, or by any combination of these.” Id. at §
33.011(6). Pohl claims that his harm is the allegedly “unlawful taking” or “use” of Pohl’s
purported trade secret information.2 Kassab denies Pohl’s allegations. But even assuming they
are true, Kassab’s designation satisfies the minimal notice pleading standard to demonstrate that
the Designated Parties caused or contributed to causing “in any way” the loss of or eventual
2 Pohl RTP Objection, at 2.
alleged misuse of purported trade secret information. See In re CVR Energy, Inc., 500 S.W.3d
67, 80 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“The standard for designating a
potentially responsible third party is notice pleading under the Texas Rules of Civil Procedure.”).
20. Kassab alleged that Walker, Ladner and Seymour are responsiblke for the harm
alleged to the extent they misappropriated Pohl’s trade secrets in the first instalnce and sold them
to Scott Favre and transferred Precision to Favre, who Pohl alleges thecn sold his alleged trade
secrets to Kassab to pursue the barratry litigation. In fact, Pohl himsself, swore under oath that
Walker, Lander and Seymour, who Pohl identified collectively as the “PR Consultants,”
attempted to sell his “accumulated work product to third parties”3 and “undertook to convert,
misappropriate for themselves and/or market to third parties claimant files and other information
and materials that belong to me.”4 Pohl testified that the purported information stolen by Walker,
Ladner and Seymour is the same informationa that Pohl claims is his trade secrets here: “original
client contingency fee contracts between [Pohl’s] clients and [Pohl], documentation of contact
and personal information, claim infoermation and supporting materials.”5 Pohl testified that this
purportedly trade secret informfation was delivered or sold Walker, Ladner and Seymour
“without his consent” to Fyavre.6 Pohl alleges in this lawsuit that Favre then sold that same
information to KassabC to pursue barratry claims against Pohl.7 If any loss or eventual misuse of
Pohl’s purported traade secret information did occur, Walker, Ladner and Seymour clearly caused
or contributed tfo causing it, as had Walker, Ladner and Seymour not stolen Pohl’s alleged trade
secrets asU he alleges, they could not have sold the alleged trade secrets to Favre and thus, Favre
could not have given the alleged trade secrets to Kassab.
3 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 18.
4 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 28.
5 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 28.
6 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶¶ 28-29.
7 Pohl’s First Amended Petition, at ¶ 24.
21. Additionally, if any loss or eventual misuse of Pohl’s purported trade secret
information occurred, Favre and Precision clearly caused or contributed to causing it, as Favre
and Precision certified and represented to Kassab that all of the material and documents given to
Kassab by Favre and Precision were owned by Favre and Precision after purchasking these items
from Walker, Ladner and Seymour. Walker, Ladner and Seymour certified land represented to
Favre that they owned all of the subject material when they sold it cand Precision to Favre.
Kassab relied on these representations when Kassab was given thes subject documents. Thus,
Kassab could not have misappropriated any alleged trade secret by improper means.
22. Walker testified under oath that he, Seymour and Ladner, through Precision,
owned all the assets/property, including computers and documents that were transferred to Favre.
Walker also testified that he had the legal right and authority, through Precision, to sell and
transfer all the subject assets/property to Faavre. Moreover, Walker, Seymour and Ladner
certified that they owned all of the subject property/assets and had authority to transfer all of the
subject property/assets to Favre. If Wealker, Seymour and Ladner did not have the legal right to
transfer all of the subject assets/pfroperty to Favre, then they caused or contributed to causing any
alleged harm for which recyovery of damages is sought by Pohl by selling the alleged trade
secrets to Favre. C
28. “Undaer the notice-pleading standard, fair notice is achieved if the opposing party
can ascertain frfom the pleading the nature and basic issues of the controversy, and what type of
evidence Umight be relevant.” In re CVR Energy, Inc., 500 S.W.3d at 80. “A trial court may not
review the truth of the allegations or consider the strength of the defendant's evidence.” Id.
Kassab satisfies this “low threshold” by alleging that the Designated Parties caused or
contributed to causing the alleged theft or misuse of Pohl’s purported trade secret information.
See id. Therefore, Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley, Santana are
10
persons who caused or contributed to causing any alleged harm for which recovery of damages is
sought by Pohl. Additionally, Favre and Precision are also persons who caused or contributed to
causing any alleged harm for which recovery of damages is sought by Pohl. Their conduct
caused or contributed to causing in part (if not entirely) the harm for which recovkery of damages
is sought by Pohl, and that conduct violated an applicable legal standard land/or constitutes
negligence. See TEX. CIV. PRAC. & REM. CODE § 33.011(6). Thus, the jcury should be permitted
to consider apportioning fault in this case to Favre, Precision, Sshepherd, Walker, Seymour,
Ladner, Dona, Jaimes, Talley, Santana. Their designation as responsible third parties is factually
justified and legally appropriate.8
PRAYER
For the reasons set forth herein, Defielndants, Counter-Plaintiffs, Lance Christopher
Kassab and Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm ask the Court to
grant the Kassab Defendants’ Motion to Designate Responsible Third Parties, in addition to the
Supplements, and grant all otheir relief in law or in equity as the Court sees fit and as
Defendants, Counter-Plaintiffs will forever pray.
8 It is also of no concern here that the Court might be unable to exert personal jurisdiction over either Walker,
Seymour, Ladner, Talley, Dona, Jaimes or Santana. In its 2003 revision of Chapter 33, the Legislature abolished the
predecessor law, which had defined responsible third parties to be only those over whom the court could exercise
jurisdiction, thus allowing the designation of those “who are not subject to the court’s jurisdiction or who are
immune from liability to the claimant.” See, e.g., In re Unitec Elevator Serv. Co., 178 S.W.3d 53, 58 & n. 5 (Tex.
App.-- Houston [1st Dist.] 2005, orig. proceeding); accord Hix-Hernandez v. Ford Motor Co., No. 1:20-cv-29-RP,
2021 WL 7632564, at *1 (W.D. Tex. May 6, 2021) (“A defendant may designate a responsible third party despite
the fact that the party has a defense to liability, cannot be joined as a defendant, or both. Even parties who are
outside the court’s jurisdiction or are immune from liability may be designated responsible third parties.”) (internal
citations omitted).
11
Respectfully submitted,
THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
LANCE CHRISTOPHER KASSABk
Texas State Bar No. 007940r70
lance@kassab.law l
DAVID ERIC KASSAB
Texas State Bar No. c24071351
david@kassab.lawr
NICHOLAS R. PIE s RCE
Texas State BDar No. 24098263
nicholas@kassab.law
1214 Elgisn Street
Houston, Texas 77004
Teleprhone: 713-522-7400
Facsimile: 713-522-7410
ATTORNEYS FOR THE KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true aned correct copy of the above and foregoing instrument has
been forwarded to all known parties and/or counsel of record pursuant to the Texas Rules of
Civil Procedure on this, the 22nd of f f November, 2022.
/ s / Lance Christopher Kassab
C Lance Christopher Kassab
12
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 70416484
Status as of 11/22/2022 3:54 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 11/22/2022 3:51:15 PM SENT
Jean C.Frizzell jfrizzell@reynoldgsfrizzell.com 11/22/2022 3:51:15 PM SENT
Harris Wells hwells@reynouldsfrizzell.com 11/22/2022 3:51:15 PM SENT
Todd Taylor ttaylor@jandflaw.com 11/22/2022 3:51:15 PM SENT
Scott M.Favre scott@yfavrepa.com 11/22/2022 3:51:15 PM SENT
Lawyer Wade lawayerwade@hotmail.com 11/22/2022 3:51:15 PM SENT
Andrea Mendez andrea@kassab.law 11/22/2022 3:51:15 PM SENT
Lance Kassab olance@kassab.law 11/22/2022 3:51:15 PM SENT
David Kassab david@kassab.law 11/22/2022 3:51:15 PM SENT
Jason M.Ciofalo f jason@ciofalolaw.com 11/22/2022 3:51:15 PM SENT
Chris C.Pappas cpappas@krcl.com 11/22/2022 3:51:15 PM SENT
Todd Taylor p ttaylor@jandflaw.com 11/22/2022 3:51:15 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 11/22/2022 3:51:15 PM SENT
Nicholas Pierce a l nicholas@kassab.law 11/22/2022 3:51:15 PM SENT
Murray JFogler mfogler@foglerbrar.com 11/22/2022 3:51:15 PM SENT
Murray Fogler o mfogler@fbfog.com 11/22/2022 3:51:15 PM SENT
Andrew JohnsUon ajohnson@thompsoncoe.com 11/22/2022 3:51:15 PM SENT
Vilma Yanes vyanes@thompsoncoe.com 11/22/2022 3:51:15 PM SENT
Benjamin Ritz britz@thompsoncoe.com 11/22/2022 3:51:15 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 11/22/2022 3:51:15 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 11/22/2022 3:51:15 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 11/22/2022 3:51:15 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/22/2022 3:51:15 PM SENT
D Kassab david@kassab.law 11/22/2022 3:51:15 PM SENT
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 70416484
Status as of 11/22/2022 3:54 PM CST
Case Contacts r i
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/22/2022 3:51:15 PM SENT
L Kassab lance@kassab.law s 11/22/2022 3:51:15 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 11/22/2022 3:51:15 PM SENT
Non-Party Witness Billy Shepherd bshepherd@supcounsel.com 11/22/2022 3:51:15 PM SENT"
44,2022-11-15,MTN,Kassab,1st Supp. Motion to Designate RTP,"Kassab Defendants' Supplemental Motion to Designate Responsible Third Parties (Shepherd, Walker, Seymour, Ladner, Dona Pohl, Jaimes, Talley, Santana)","Filed November 15, 2022 before Judge Scot Dollinger, 189th Judicial District, Harris County, Texas. Kassab's original RTP motion was filed May 13, 2022 (more than 60 days before the October 10, 2022 trial setting). Pohl objected May 30, 2022. Court denied the original motion on October 31, 2022 but gave Kassab an opportunity to replead. Trial reset to December 5, 2022.",RTP-1,N/A,Phase 3,2022-11-15_MTN_Kassab-Supp-Mtn-to-Designate-RTP_FILED.pdf,"Grant the Kassab Defendants' Amended Motion to Designate Responsible Third Parties (George W. (Billy) Shepherd, Scott Walker, Steve Seymour, Kirk Ladner, Dona Pohl, Edgar Jaimes, Ken Talley, Magdalena Santana) and grant all other relief in law or equity","11/15/2022 1:31 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 70189306
By: Deandra Mosley
Filed: 11/15/2022 1:31 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 LAlNCE
CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S
SUPPLEMENTAL MOTION TO DESIGNATE RESPONSIBLEc THIRD PARTIES
TO THE HONORABLE JUDGE SCOT DOLLINGER: s
Defendants, Lance Christopher Kassab and Lance Christopher Kassab, P.C. D/B/A The
Kassab Law Firm (“Kassab”), and file this, their Amended Motion to Designate Responsible
Third Parties.
REQUESTElD RELIEF
1. Kassab seeks to designate GMeorge W. (Billy) Shepherd (Shepherd), Scott Walker
(Walker), Steve Seymour (Seymour) oand Kirk Ladner (Ladner), Dona Pohl (Dona), Edgar
Jaimes (Jaimes), Ken Talley (Talley), Magdalena Santana (Santana) as responsible third parties
in this litigation. Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley and Santana are all
persons who are alleged to have caused or contributed to causing in any way the harm for which
recovery of damages by Pohl is sought. Thus, they are all responsible third parties in this cause.
TEX. CIV. PRAC. &c REM. CODE § 33.011(6).
U FACTS
2. Pohl is a lawyer who commits barratry and has prayed on the less fortunate to
earn a living. On October 18, 2014, three Mississippi residents, Scott Walker (“Walker”), Kirk
Ladner (“Ladner”) and Steve Seymour (“Seymour”), and their related entities, including
Precision Marketing Group, LLC (“Precision”), filed suit against Michael Pohl (“Pohl”) and
others in Mississippi federal court (the “Mississippi Litigation”). There, Precision, Walker,
Ladner and Seymour alleged that: (1) they had a joint venture with Pohl to sign up clients with
economic loss claims stemming from the BP Deepwater Horizon oil spill and clients with
personal injury claims; (2) that they successfully obtained these clients for Pohkl; and (3) that
Pohl breached their agreement by not paying them what was owed, includingl their agreed share
of Pohl’s attorney’s fees. c
3. The evidence presented in the Mississippi Litigastion established that Pohl
engaged in barratry. See TEX. PEN. CODE § 38.12 (defining b
arratry generally as the improper
solicitation of clients). During that litigation, Walker testified that Pohl retained him and
Precision to “provide marking services to auto accident victims[.]” Walker testified that although
he and Pohl called it “marketing services” or “marketing money,” it was “clear to [him] it was
barratry.” In fact, Walker considered himsealf and his company “a pass-through for barratry
money.” All told, Walker, Ladner and Precision received over $5 million in “barratry pass-
through money” from Pohl and otheer lawyers to solicit potential clients, both auto-accident
victims and those involved in tfhe BP litigation. They would use this money to pay contract
workers to solicit clients. Thyey would locate and instruct contract workers on how to accomplish
the solicitation. They tCrained “40 or 50 people” on how to “go out and solicit contracts.”
4. Walkaer and his team at Precision were first retained by Pohl to “recruit clients”
with losses resuflting from the Deepwater Horizon oil spill. When that litigation dwindled, Pohl
shifted hiUs focus to auto accident cases, knowing that the group at Precision could go out and get
him those types of clients. To accomplish this task, individuals at Precision would receive
“Google alerts” or leads from Pohl on recent catastrophic auto accidents. Walker testified that he,
Ladner, or someone working for them would go to the victims of the auto accident to “do
marketing” by letting them know “there were attorneys [who] could help.” In exchange, these
runners – whoever visited the victims – where paid between $2,500 and $5,000 to solicit the
client. These payments flowed from Pohl through his wife’s wholly owned company, “Helping
Hands Financing,” to Precision, to each individual runner. Walker would simply submit to Pohl
the amount that Precision paid its runners and Pohl would reimburse Precision. k
5. One of the runners, Santana, testified to the barratry in her Sleptember 24, 2016
affidavit filed in the Mississippi Litigation. She testified that Pohl scent her on “dozens and
dozens of car wreck cases all over the country.” Pohl would emasil Santana 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 with him.” Pohl offered to pay Santana “$5,000 per case that [she] signed,
plus a percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even if
the family ... rejected [her].” Santana was instructed by Pohl to “approach the victims and their
families while they were vulnerable, in thea emergency room, their hospital rooms or at the
funerals.” Id. Pohl told Santana that minorities “were especially vulnerable since they tended not
to know that the law prohibited barraetry.” According to Pohl, they “were easier to sign up.”
6. Pohl would pay Safntana “money to give to the victims or their families” but “only
if they agreed to sign a Pohly representation contract.” Pohl advised Santana that the money was a
“foot in the door” but Cinstructed Santana not to mention that she was there on behalf of a lawyer
“until after they agraeed to take the money.” “If the client agreed to hire Pohl, then [Santana] was
to have the cliefnt sign a ‘Helping Hands’ contract.” Pohl would then give Santana the money to
pay the cUlient “from his own Helping Hands company.” When Santana questioned this, Pohl 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.”
7. Santana further confirmed the barratry in her deposition taken in the Mississippi
Litigation. She testified that she was hired by Pohl to solicit auto accident cases, the first one
was an accident where a woman and her unborn child lost their lives. 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. Santana visited
the funeral of the deceased and got the family to feel comfortable with her. Althokugh the mother
was grieving, Pohl told Santana: “take no prisoners, this is a cut-throat businelss, you get in there
and you do whatever it takes to get this client.” The solicitation was succcessful after Pohl gave
Santana $2,000 to “give to the client to convince her into signing ovesr with the firm.”
8. Pohl later requested Santana to sign an agreement promising not to go to any law
enforcement, including various State Disciplinary boards regarding any wrongdoing, criminal or
unethical conduct. In fact, it is undisputed that Pohl paid Santana $50,000 in cash to sign this
agreement, which was delivered to her in Florida by Pohl’s paralegal, Jaimes. Santana confirmed
this in an affidavit and Jaimes confirmed thisa in his deposition. Santana signed the statement and
received the cash, although she believed she was “forced to sign” it while “under duress”.
9. Another runner, Talleey, also testified in the Mississippi Litigation about the
barratry. Talley solicited over 20f auto accident cases for Pohl, including two families who hired
Kassab to sue Pohl for barraytry. Talley testified that he was first hired in relation to BP claims to
find “folks that lost moCney due to the oil spill” and “sign them up” and “get a fee for it.” Talley
solicited and signeda up more than 800 BP claims for Pohl and was paid between $75 and $350
per client. f
10U. Talley eventually transitioned to soliciting auto accident victims, “calling on folks
that had bad accidents.” Talley recalls that the first client he solicited was in “the hospital in
intensive care.” Talley maintained $1,000 in cash to pay the accident victims to “help them with
problems” and influence them to hire a lawyer, because the victims received the money only if
they “were signed up.” Talley would advise the victims that he had attorneys who could help
them, and that one of those attorneys was Pohl. For each auto accident case he solicited, Talley
was paid a fee of $1,400 plus his expenses by Pohl, through Walker and Precision. On some
cases, Talley was to receive a portion of Pohl’s attorney’s fees, and even discussed with Pohl the
“percentage of settlements” he was to receive. When asked whether Pohl knewk he was getting
paid to “contact vehicle accident victims,” Talley responded, “the money lwas coming from
Edgar [Jaimes] who worked for him.” 1CR301. Although his paycheck wcas from Precision, “the
funding came by way of Edgar [Jaimes].” Talley testified that both she and Pohl knew what they
were doing was illegal. 
11. In May of 2016, during the Mississippi Litigation, an insurance adjuster named
Scott Favre (“Favre”) purchased Precision and all the company’s assets, including client lists,
marketing lists, documents, files, computers, etc. from Walker, Seymore and Ladner. Included
in the purchase was the Mississippi Litigaation, thus, Precision’s claims against Pohl in the
Mississippi Litigation were assigned to Favre. Favre and Precision were represented in the
Mississippi Litigation by Texas laweyer, Tina Nicholson and her firm, Baker Nicholson, LLP
(“Nicholson”). Pohl asserted coufnter claims in the Mississippi Litigation alleging that Walker
and Precision (and other uynknown defendants) converted his property. Pohl then moved to
dismiss the claims agaCinst him, arguing, among other things, that the agreements between him
and the runners weare illegal and unenforceable. More specifically, Pohl argued that under both
Texas and Missfissippi law “it is illegal for a non-lawyer to accept or agree to accept money to
improperUly solicit clients for a lawyer.” The Mississippi federal court rejected Pohl’s contention,
stating that the agreements to solicit clients would only be a violation of Texas law and Texas
disciplinary rules, which did not apply to Precision, a Mississippi company, and Walker and
Ladner, Mississippi residents. Having failed to obtain summary dismissal, Pohl settled the
Mississippi Litigation with all parties, including Favre, hoping to forever conceal his barratry
operation. Although Pohl had already paid the runners approximately $5,000,000 in barratry
money, Pohl paid the runners an additional $1,000,000 to settle the Mississippi Litigation.
12. Kassab heard about the allegations being made by the runners in the Mississippi
Litigation. Kassab searched PACER, the federal court’s online system, obtaininkg a plethora of
information related to the Mississippi Litigation. Kassab met with Favrle and Precision’s
counsel, Nicholson. Kassab obtained information directly from them, icncluding the names and
addresses of Pohl’s former clients or prospective clients from Precsision’s marketing and client
lists. Precision, through Favre, informed Kassab that it owned all of its marketing lists and
information and also informed and verified that Precision was the main Plaintiff suing Pohl in
the Mississippi Litigation. Thereafter, Kassab used Precision’s marketing and client lists to
notify individuals who he believed may have been victims of Pohl’s barratry. Hundreds of
individuals responded, indicating that they haad been personally solicited to hire Pohl in their auto
accident or BP claims. Kassab agreed to represent these clients, and more than 400 individuals
hired Kassab to represent them agaienst Pohl and other lawyers involved in the illegal barratry
scheme. f
13. Kassab filed yfour petitions on behalf of these barratry victims in Harris County,
Texas (the “barratry laCwsuits”). The barratry lawsuits communicated matters of public concern:
that Pohl conspiread to commit barratry. After reviewing the evidence obtained from the
Mississippi Litifgation, Kassab believed he had a duty to file a grievance against Pohl pursuant to
Rule 8.03U of the Texas Disciplinary Rules of Professional Conduct,1 and he did. Kassab also
filed a grievance against Pohl on behalf of one of his clients. In the grievances, Kassab and his
1 See TEX. DISC. R. PROF’L COND. 8.03(a) (except in circumstances which do not apply here, “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.”).
client expressed matters of public concern relating to Pohl’s legal services in the marketplace and
petitioned the State Bar of Texas to reprimand and discipline Pohl in order to protect the public
as is mandated by Rule 8.03.
14. Unfortunately, in direct retaliation to the lawsuits and grievanceks filed against
Pohl, Pohl filed this retaliatory litigation against Kassab, Precision, Nichlolson, Favre and
Montague, alleging breach of contract, theft of trade secrets, conversiocn and civil conspiracy.
Specifically, Pohl alleged that these parties were “acting in cosmbination with the agreed
objective” to misappropriate his trade secrets and convert the marketing lists and attorney-client
contracts that Pohl hired Precision to obtain. Pohl alleges Favre and Precision, with Nicholson’s
assistance, converted this property and provided it to Kassab and Montague in order to solicit
Pohl’s former clients “to bring cases against Pohl for alleged barratry and other claims.”
aIII
AMRGUMENT
15. “A defendant may seek too designate a person as a responsible third party by filing
a motion for leave to designate that person as a responsible third party. The motion must be filed
on or before the 60th day before the trial date unless the court finds good cause to allow the
motion to be filed at a later date.” TEX. CIV. PRAC. & REM. CODE § 33.004(a). That occurred
here, with Kassab filing his motion on May 13, 2022, more than 60 days before the October 10,
2022 trial settingc. The current trial setting is December 5, 2022. Thus, the statute required the
Court to “grant leave to designate the named person as a responsible third party unless another
party files an objection to the motion for leave on or before the 15th day after the date the motion
is served.” Id. at § 33.004(f).
16. Pohl filed his objection on May 30, 2022. Still, the Court was required to “grant
leave to designate the person as a responsible third party unless the objecting party establishes …
the defendant did not plead sufficient facts concerning the alleged responsibility of the person to
satisfy the pleading requirement of the Texas Rules of Civil Procedure[.]” Id. at § 33.004(f). In
any event, the Court denied the Kassab Defendants’ Motion to Designate Responsible Third
Parties on October 31, 2022, but gave the Kassab Defendants an opportunity to rekplead.
17. A responsible third party is “any person who is alleged tlo have caused or
contributed to causing in any way the harm for which recovery of damagces is sought, whether by
negligent act or omission, by any defective or unreasonably dangerosus product, by other conduct
or activity that violates an applicable legal standard, or by any combination of these.” Id. at §
33.011(6). Pohl claims that his harm is the allegedly “unlawful taking” or “use” of Pohl’s
purported trade secret information.2 Kassab denies Pohl’s allegations. But even assuming they
are true, Kassab’s designation satisfies the minimal notice pleading standard to demonstrate that
the Designated Parties caused or contributeda to causing “in any way” the loss of or eventual
alleged misuse of purported trade secret information. See In re CVR Energy, Inc., 500 S.W.3d
67, 80 (Tex. App.—Houston [1st eDist.] 2016, no pet.) (“The standard for designating a
potentially responsible third partyf is notice pleading under the Texas Rules of Civil Procedure.”).
18. Kassab allegeys that Walker, Ladner and Seymour are responsible for the harm
alleged to the extent thCey misappropriated Pohl’s trade secrets in the first instance and sold them
to Scott Favre, whoa Pohl alleges then sold them to Kassab to pursue the barratry litigation. In
fact, Pohl himsfelf, swore under oath that Walker, Lander and Seymour, who Pohl identified
collectiveUly as the “PR Consultants,” attempted to sell his “accumulated work product to third
parties”3 and “undertook to convert, misappropriate for themselves and/or market to third parties
2 Pohl RTP Objection, at 2.
3 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 18.
claimant files and other information and materials that belong to me.”4 Pohl testified that the
purported information stolen by Walker, Ladner and Seymour is the same information that Pohl
claims is his trade secrets here: “original client contingency fee contracts between [Pohl’s]
clients and [Pohl], documentation of contact and personal information, claim iknformation and
supporting materials.”5 Pohl testified that this purportedly trade secret informaltion was delivered
or sold Walker, Ladner and Seymour “without his consent” to Favre.6 Poch t l alleges in this lawsuit
that Favre then sold that same information to Kassab to pursue barrsatry claims against Pohl.7 If
any loss or eventual misuse of Pohl’s purported trade secret information did occur, Walker,
Ladner and Seymour clearly caused or contributed to causing it, as had Walker, Ladner and
Seymour not stolen Pohl’s alleged trade secrets as he alleges, they could not have sold the
alleged trade secrets to Favre and thus, Favre could not have given the alleged trade secrets to
Kassab. a
19. Walker testified under oath that he, Seymour and Ladner, through Precision,
owned all the assets/property, includieng computers and documents that were transferred to Favre.
Walker also testified that he hafd the legal right and authority, through Precision, to sell and
transfer all the subject assyets/property to Favre. Moreover, Walker, Seymour and Ladner
certified that they ownCed all of the subject property/assets and had authority to transfer all of the
subject property/assaets to Favre. If Walker, Seymour and Ladner did not have the legal right to
transfer all of thfe subject assets/property to Favre, then they caused or contributed to causing any
alleged hUarm for which recovery of damages is sought by Pohl by selling the alleged trade
secrets to Favre.
4 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 28.
5 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 28.
6 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶¶ 28-29.
7 Pohl’s First Amended Petition, at ¶ 24.
20. Kassab also sufficiently alleged how Pohl’s counsel in the Mississippi litigation,
Shepherd, caused or contributed to causing the purported loss or misuse of Pohl’s allegedly
confidential information. Specifically, Shepherd negotiated a settlement in thek litigation with
Walker, Ladner and Seymour but failed to protect Pohl by ensuring that all sulbject property was
gathered from all third parties and returned to Pohl or destroyed as pacrt of the any settlement
agreement, if in fact Pohl owned and/or desired to safeguard the subjsect property.
21. Shepherd knew that Walker, Seymour and Ladner had sold Precision to Favre and
knew that Walker, Seymour and Ladner had legally transferred Precision’s assets, including the
subject matter of Pohl’s conversion and theft of trade secrets claims, to Favre. Shepherd further
knew that Favre and/or his counsel had given documents to third parties, including Kassab and
others prior to negotiating a settlement in thae Mississippi Litigation. Thus, Shepherd failed to
protect Pohl’s alleged trade secrets by failing to include a provision in the settlement agreement
forcing all parties to gather the alleeged trade secrets from outside third parties like Kassab so
they could be returned to Pohl, fif in fact he owns them as alleged. This failure by Shepherd
caused and/or contributed toy causing the harm for which recovery of damages is sought by Pohl.
22. ShepherCd’s malfeasance was either negligent or intentional. If Shepherd knew
that the subject asseats/property were a point of contention in the Mississippi Litigation and knew
that the assets/pfroperty could be used by outside third parties to garner clients to sue Pohl, as
Pohl alleUges, Shepherd may have intentionally failed to protect Pohl’s interest so that he could
secure future lucrative employment for himself and his law firm for years to come by continuing
to represent Pohl in litigation to be brought against Pohl after the subject property was used to
garner clients to sue Pohl as Pohl alleges. Thus, Shepherd is a person who caused or contributed
to causing the harm for which recovery of damages is sought by Pohl.
10
23. Finally, Kassab sufficiently alleged how Dona Pohl, Jaimes, Tally and Santana
caused or contributed to causing the purported loss or misuse of Pohl’s alleged trade secret
information. Specifically, Kassab alleges that these persons failed to keep Pohl’s information
confidential because they routinely placed Pohl’s alleged trade secrets and dokcuments in the
public domain, circulating Precision’s marketing lists and other documents alllegedly belonging
to Pohl to numerous third parties rather than safeguard these documents acnd lists.
24. Additionally, if Walker, Seymour, Ladner, Dona, Jaismes, Talley or Santana had
an agreement and/or duty to safeguard any property allegedly owned by Pohl as Pohl alleges,
they are responsible for failing to safeguard the property. Additionally, Walker, Seymour,
Ladner, Dona, Jaimes, Talley and Santana routinely placed Pohl’s alleged trade secrets and
documents in the public domain, circulating Precision’s marketing lists and other documents
allegedly belonging to Pohl to numerous thirda parties rather than safeguard these documents and
lists. 
25. “Under the notice-pleeading standard, fair notice is achieved if the opposing party
can ascertain from the pleading tfhe nature and basic issues of the controversy, and what type of
evidence might be relevant.y” In re CVR Energy, Inc., 500 S.W.3d at 80. “A trial court may not
review the truth of thCe allegations or consider the strength of the defendant's evidence.” Id.
Kassab satisfies thais “low threshold” by alleging that the Designated Parties caused or
contributed to cfausing the alleged theft or misuse of Pohl’s purported trade secret information.
See id. UTherefore, Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley, Santana are
persons who caused or contributed to causing any alleged harm for which recovery of damages is
sought by Pohl. Their conduct caused or contributed to causing in part (if not entirely) the harm
for which recovery of damages is sought by Pohl, and that conduct violated an applicable legal
standard and/or constitutes negligence. See TEX. CIV. PRAC. & REM. CODE § 33.011(6). Thus, the
11
jury should be permitted to consider apportioning fault in this case to Shepherd, Walker,
Seymour, Ladner, Dona, Jaimes, Talley, Santana. Their designation as responsible third parties
is factually justified and legally appropriate.8 Accordingly, the Court should overrule Pohl’s
objection and grant leave to designate the requested third parties. See TEX. CIV.k PRAC. & REM.
CODE § 33.004(f) (providing that if pleadings are sufficient, the trial court “s
halll grant” leave).
IV c
PRAYER r
For the reasons set forth herein, Defendants, Counter-Plaintiffs, Lance Christopher
Kassab and Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm ask the Court to
grant the Kassab Defendants’ Amended Motion to Dersignate Responsible Third Parties and
grant all other relief in law or in equity as the Court sees fit and as Defendants, Counter-
Plaintiffs will ever pray. i l
8 It is also of no concern here that the Court might be unable to exert personal jurisdiction over either Walker,
Seymour, Ladner, Talley, Dona, Jaimes or Santana. In its 2003 revision of Chapter 33, the Legislature abolished the
predecessor law, which had defined responsible third parties to be only those over whom the court could exercise
jurisdiction, thus allowing the designation of those “who are not subject to the court’s jurisdiction or who are
immune from liability to the claimant.” See, e.g., In re Unitec Elevator Serv. Co., 178 S.W.3d 53, 58 & n. 5 (Tex.
App.-- Houston [1st Dist.] 2005, orig. proceeding); accord Hix-Hernandez v. Ford Motor Co., No. 1:20-cv-29-RP,
2021 WL 7632564, at *1 (W.D. Tex. May 6, 2021) (“A defendant may designate a responsible third party despite
the fact that the party has a defense to liability, cannot be joined as a defendant, or both. Even parties who are
outside the court’s jurisdiction or are immune from liability may be designated responsible third parties.”) (internal
citations omitted).
12
Respectfully submitted,
THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
LANCE CHRISTOPHER KASSABk
Texas State Bar No. 007940r70
lance@kassab.law l
DAVID ERIC KASSAB
Texas State Bar No. c24071351
david@kassab.lawr
NICHOLAS R. PIE s RCE
Texas State BDar No. 24098263
nicholas@kassab.law
1214 Elgisn Street
Houston, Texas 77004
Teleprhone: 713-522-7400
Facsimile: 713-522-7410
ATTORNEYS FOR THE KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true aned correct copy of the above and foregoing instrument has
been forwarded to all known parties and/or counsel of record pursuant to the Texas Rules of
Civil Procedure on this, the 15th off f November, 2022.
/ s / Lance Christopher Kassab
C Lance Christopher Kassab
13
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 70189306
Status as of 11/15/2022 1:37 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 11/15/2022 1:31:33 PM SENT
Jean C.Frizzell jfrizzell@reynoldgsfrizzell.com 11/15/2022 1:31:33 PM SENT
Harris Wells hwells@reynouldsfrizzell.com 11/15/2022 1:31:33 PM SENT
Todd Taylor ttaylor@jandflaw.com 11/15/2022 1:31:33 PM SENT
Scott M.Favre scott@yfavrepa.com 11/15/2022 1:31:33 PM SENT
Lawyer Wade lawayerwade@hotmail.com 11/15/2022 1:31:33 PM SENT
Andrea Mendez andrea@kassab.law 11/15/2022 1:31:33 PM SENT
Lance Kassab olance@kassab.law 11/15/2022 1:31:33 PM SENT
David Kassab david@kassab.law 11/15/2022 1:31:33 PM SENT
Jason M.Ciofalo f jason@ciofalolaw.com 11/15/2022 1:31:33 PM SENT
Chris C.Pappas cpappas@krcl.com 11/15/2022 1:31:33 PM SENT
Todd Taylor p ttaylor@jandflaw.com 11/15/2022 1:31:33 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 11/15/2022 1:31:33 PM SENT
Nicholas Pierce a l nicholas@kassab.law 11/15/2022 1:31:33 PM SENT
Murray JFogler mfogler@foglerbrar.com 11/15/2022 1:31:33 PM SENT
Murray Fogler o mfogler@fbfog.com 11/15/2022 1:31:33 PM SENT
Andrew JohnsUon ajohnson@thompsoncoe.com 11/15/2022 1:31:33 PM SENT
Vilma Yanes vyanes@thompsoncoe.com 11/15/2022 1:31:33 PM SENT
Benjamin Ritz britz@thompsoncoe.com 11/15/2022 1:31:33 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 11/15/2022 1:31:33 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 11/15/2022 1:31:33 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 11/15/2022 1:31:33 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/15/2022 1:31:33 PM SENT
D Kassab david@kassab.law 11/15/2022 1:31:33 PM SENT
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 70189306
Status as of 11/15/2022 1:37 PM CST
Case Contacts r i
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/15/2022 1:31:33 PM SENT
L Kassab lance@kassab.law s 11/15/2022 1:31:33 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 11/15/2022 1:31:33 PM SENT
Non-Party Witness Billy Shepherd bshepherd@supcounsel.com 11/15/2022 1:31:33 PM SENT"
43,2022-11-14,OA,Kassab,8th Amended Answer (final),"Kassab Defendants' Eighth Amended Answer, Affirmative Defenses and Counterclaim (Final Pre-Trial Pleading)","Filed November 14, 2022 in Cause No. 2018-58419, 189th Judicial District, Harris County, Texas. This is Kassab's final amended answer asserting 23 affirmative defenses, responsible third-party designations (8 individuals), and a counterclaim for civil barratry based on assigned claims from 242 claimants. Filed approximately three weeks before the December 5, 2022 trial setting, after all four MSJs were denied on October 31, 2022.",PLEAD-1,N/A,Phase 3,2022-11-14_OA_Kassab-8th-Amended-Answer-CC_FILED.pdf,"That Pohl recover nothing on his claims; that Kassab recover on counterclaims including (i) actual and consequential damages, (ii) statutory damages, (iii) pre- and post-judgment interest, (iv) attorneys' fees and costs, and (v) all other appropriate relief","11/14/2022 3:25 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 70152760
By: Deandra Mosley
Filed: 11/14/2022 3:25 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIArL DISTRICT
DEFENDANTS, LANCE CHRISTOPHER KASSAB AtND LANCE
CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAWi FIRM’S EIGHTH
AMENDED ANSWER, AFFIRMATIVE DEFENSES ANsD COUNTERCLAIM
TO THE HONORABLE JUDGE OF SAID COURT: 
COMES NOW, Defendants, Lance Christopher Kassab and Lance Christopher
Kassab, P.C. d/b/a The Kassab Law Firm and files this their Eighth Amended
Answer, Affirmative Defenses, and Counterclaim, and would respectfully show the
Court as follows; a
f  I
RULE 47 STATEMENT
1. The Kassab Deffendants, in their capacity as Counter-Plaintiffs, seek
monetary relief of more than $1,000,000.00.
C II
l PARTIES
2. Plaiintiff, Michael A. Pohl is an individual lawyer residing in Colorado
and is a paroty herein.
3. Plaintiff, Law Offices of Michael A. Pohl is a law firm set up for the
practice of law in various states of the union, including Texas and is a party herein.
4. Defendant, Scott Favre is a nonresident individual residing in
Mississippi and is a party herein.
5. Defendant, Scott M. Favre, PA, LLC is a nonresident limited liability
company located in Mississippi and is a party herein.
6. Defendant, Precision Marketing Group, LLC is a nonresident limited
liability company located in Mississippi and is a party herein. k
7. Defendant, F. Douglas Montague III is a nonresident iCndividual residing
in Mississippi.
8. Defendant, Montague, Pittman & Varnadoi, PA is a nonresident
professional association located in Mississippi.
9. Defendant, Tina Nicholson is an individual residing in Texas and is a
party herein.
10. Defendant, Baker Nicholson, lLLP, d/b/a Baker Nicholson Law Firm is a
limited liability partnership located inM Texas and is a party herein.
11. Defendant, Counter-Plaintiff, Lance Christopher Kassab is an
individual residing in Texas anid is a party herein.
12. Defendant, Counter-Plaintiff, Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm is ao professional corporation located in Texas and is a party herein.
l III
c i JURISDICTION AND VENUE
13. oThis matter is within the jurisdictional limits of this Court and
Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl
(“Pohl”) and Defendants, Counter-Plaintiffs, Lance Christopher Kassab (“LCK”) and
Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm (“Kassab, P.C.”)
(collectively “Kassab”) are subject to the Court’s jurisdiction. Venue is proper in this
county because one or more of the defendants are residents of this county and because
a substantial part of the acts and/or omissions that form the basis of this suit occurred
in this county.
IV k
GENERAL DENIAL e
14. Defendant, Counter-Plaintiff Kassab generally detnies all allegations
made by Plaintiffs, Counter-Defendants, Michael A. Pohl ansdt Law Offices of Michael
A. Pohl, and requests the Court to require Plaintiffs, Counter-Defendants, Michael
A. Pohl and Law Offices of Michael A. Pohl to carry their burden of proof regarding
all allegations against Kassab.
AFFIRMATIViE l DEFENSES
15. Defendant, Counter-Plaintiff Kassab pleads the following affirmative
defenses: 
1. Statute of limitationf is;
2. Justification; y 
3. Estoppel;
4. Waivera;
5. Ratiffication;
6.U Release;
7. Unclean hands;
8. Contribution;
9. Failure to mitigate;
10. Lack of standing;
11. Accord and Satisfaction;
12. Assumption of the Risk;
13. Illegality/Criminal Acts; k
14. First Amendment; C
15. Attorney Immunity;
16. Judicial Immunity; i
17. Immunity under Rule 17.09 of the Texas Rules of Disciplinary Procedure.
18. In Pari Delicto;
19. Res Judicata;
20. Defect of Parties; l
21. Abandonment; M
22. Subject of a Valid Contract; and
23. Preemption pursuanit to TEX. CIV. PRAC. & REM. CODE § 134A.007(a).
SPECIFIC DENIALS
16. Defendants, Counter-Plaintiffs specifically deny that all conditions
precedent regardiing Plaintiffs claims of conversion and theft of trade secrets have
been perforomed or occurred prior to Plaintiffs’ filing of suit against Kassab.
VII
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
17. LCK is a lawyer practicing law with The Kassab Law Firm, a law firm
in Houston, Texas focusing on plaintiffs’ legal malpractice cases. Kassab filed four
lawsuits on behalf of over four hundred clients against Pohl (the “Harris County
Lawsuits”). The main allegations against Pohl are civil barratry and conspiracy to
commit barratry, a third-degree felony in Texas. Pohl conspired with his wife,
Donalda Pohl (“Dona”), his paralegal, Edgar Jaimes (“Jaimes”) and thrkee runners in
Mississippi to illegally solicit clients on behalf of Pohl. Dona ownCs a sham lending
company in Texas called Helping Hands Financing, LLC (“HH Texas”). Jaimes rans
the day-to-day operations of HH Texas. The three ruinners are Scott Walker
(“Walker”), Steve Seymour (“Seymour”) and Kirk Ladner (“Ladner”) (collectively
“Runners”). The three Runners owned and operated two other sham companies called
Helping Hands Group, LLC and Helping Hands Financial, LLC (collectively “HH
Mississippi”). The three runners also olwned Precision Marketing Group, LLC
(“Precision”) which they sold to ScMott Favre and/or his companies (collectively
“Favre”). The runners had several other business entities from which they operated
and concealed their illegal soliicitation conspiracy.
18. With regard to the clients obtained in the BP Litigation, Walker,
Seymour and Ladnero hired other runners to literally go up and down streets in
specific locations klnocking on doors to solicit clients on behalf of Pohl for lawsuits
against Britishi Petroleum. Walker, Seymore and Ladner, through Precision and on
behalf of Pohl, paid these runners as much as $300-$400 for every potential client
they obtained. Pohl paid Precision as much as $1,500 for every client Precision
obtained and referred to Pohl. Walker, Seymore and Ladner paid the other runners
from this amount and pocketed the balance. Pohl also offered and agreed to pay
Walker, Seymour and Ladner a percentage of his legal fees once cases settled. This
percentage was disguised as an hourly rate of $1,500.00 per hour, but the percentage
of the “settlement” payment was never below the agreed percentage. For example,
no matter how much “hourly” time was actually spent on a case, thek agreed upon
percentage was always achieved by simply dividing the percentagCe amount of Pohl’s
legal fees by $1,500.00 to calculate the imaginary number of hours, and then the
Runners would submit an invoice for those imaginary numbier of hours. Whether the
Runners actually spent five (5) or fifty (50) hours on a particular case was not the
measure of the “settlement” fees to be paid to the Runners, it was always the agreed
upon percentage of attorney’s fees earned by Pohl regardless of actual hours spent on
a case. l
19. With regard to auto accidMents, Pohl set up a “Google Alerts” to be notified
whenever there was a horrific rollover or other type of horrific vehicle crash across
the nation. Pohl would then imimediately send the alert to the Runners so they could
arrange to visit hospitals, homes and funerals to contact the families of the injured
in order to solicit theom as clients. The Runners would use their sham companies,
“Helping Hands” tlo act as though they were approaching these victims to genuinely
help them rathier than solicit them. The Runners would falsely tell these victims that
they were there to provide money for burial services, food, clothing, lodging, etc. In
reality however, the Runners’ contacted these families under these false pretenses
with the sole objective of talking advantage of these victims and their families while
they were emotionally distraught and not thinking straight in order to lock them into
contracts which allowed the runners to select a lawyer for the victim. The victims
and the family members were encouraged to hire Pohl and told they could not get the
money unless they agreed to hire Pohl. Pohl would pay the Runners as much as
$7,500 per client they signed up and Pohl also promised the runners ask much as 33%
of Pohl’s legal fees on the back end when the case settled. AdditCionally, HH Texas
would pay HH Mississippi $2,500 for every client referred to HH Texas to “loan”
money to these victims and their family. Pohl used this priocedure as an attempt to
put an additional buffer between him and the actual Runners.
20. Pohl also helped the Runners form another sham entity, the GM
Settlement Verification Team (“GM Team”) after General Motors, Inc. issued a recall
on cars due to faulty ignition switches whiclh effected the safe operation of the airbag
systems on vehicles. Thus, the GM MTeam was designed to look official as if it was
part of General Motors. This conspiracy was to form an official looking entity from
GM as if GM was wanting to ciompensate people who had been harmed when airbags
failed to deploy in relation to the ignition recall. In reality, this was just another
sham company used too solicit and trick potential clients into hiring Pohl. Again, Pohl
would pay Walkerl and Ladner, through their sham entity, the GM Team, a fee for
every potentiail client it referred to Pohl, in addition to a percentage of his attorney’s
fees on the back end.
21. Pohl knew what he was doing was illegal barratry. Accordingly, he
knowingly formed entities that he perceived would insulate him from liability. In
fact, Walker testified that although he and Pohl called it “marketing services” or
“marketing money” it was “clear to [him] it was barratry.” In fact, Walker considered
himself and his company “a pass-through for barratry money.” All total, Walker,
Ladner and Precision received over $5 million in “barratry pass-through money” from
Pohl and other lawyers to solicit potential clients with claims, both kauto-accident
victims and those involved in the BP Deepwater Horizon litigationC.
22. One of the runners hired by Pohl and Walker to illegally solicit clients
on behalf of Pohl was Magdalena Santana (“Santana”). Ini her September 24, 2016
affidavit, Santana testified that Pohl sent her on “dozens and dozens of car wreck
cases all over the country.” Pohl would email Santana the link of news coverage he
obtained through Google Alerts depicting an accident and asked her “to go to the
victim or the victim’s family and try to get lthem to sign up with him.” Santana swore
under oath that Pohl agreed to pay Mher “$5,000 per case that [she] signed, plus a
percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even
if the family ... rejected [her]i.” Santana was instructed by Pohl to “approach the
victims and their families while they were vulnerable, in the emergency room, their
hospital rooms or at thoe funerals.” Pohl told Santana that minorities “were especially
vulnerable since tlhey tended not to know that the law prohibited barratry.”
According to Piohl, they “were easier to sign up.”
23. Pohl would give Santana “money to give to the victims or their families”
but would only give the money to the potential client “if they agreed to sign a Pohl
representation contract.” Pohl advised Santana that the money was a “foot in the
door” but instructed Santana not to mention anything about hiring a lawyer “until
after they agreed to take the money.” “If the client agreed to hire Pohl, then [Santana]
was to have the client sign a ‘Helping Hands’ contract.” Santana would then give
money to the client “from his own Helping Hands company.” When Santana
questioned this, Pohl told Santana that it “was illegal for him to pay [hekr] directly for
cases, and that’s why the money had to go through some company.C”
24. Pohl and/or his co-conspirators had Santana retract this affidavit
through a December 19, 2017 affidavit. This purported rietraction was likely the
result of Pohl paying Santana to retract the first affidavit, which is similar to
something Pohl had done in the past. In fact, Pohl’s own paralegal, Jaimes, testified
that on one occasion Pohl sent him to Florida with a suitcase containing $50,000 in
cash to give to Santana in exchange for lher agreement not to turn Pohl into the
authorities. Jaimes testified that SanMtana would only get the money if she signed a
statement agreeing not to mention Pohl’s illegal activity. Jaimes testified that
Santana signed the statementi and then he gave her the $50,000.
25. Santana’s deposition was even more detailed. Santana testified at her
deposition that the staotement was an agreement for her to keep quiet and not charge
Pohl with any wronlgdoing, criminal or unethical conduct. Santana testified that Pohl
paid her $50,0i00 in cash to sign this statement, which was delivered by Jaimes in
three bags marked “trick or treat.” Very symbolic given that Santana had been
tricked by Pohl into soliciting potential clients for him and was now being treated the
money she claimed was due under their agreement just to stay quiet. Santana
reiterated in her deposition that if she didn’t sign the gag agreement, she would not
have received the money from Pohl. Santana attempted to indicate on the 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. Santana did not write
the statement but “just signed it” because she felt she was being “forcked to sign” it
while “under duress.” C
26. Notably, nowhere in Santana’s December 19th affidavit does she state
the testimony in her former affidavit is untrue, only that shie does not “agree with” it
and that the affidavit is not “reliable.” Although Santana states in her December 19th
affidavit 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.” Santana testified that, unlike lwith Pohl, she was not paid and had never
been promised any money to provideM the testimony in the September 24th affidavit.
Santana reiterated to counsel for Pohl, Billy Shepherd, that she was there for her
deposition to tell the truth andi would not be bullied by his questioning or his efforts
to confuse her.
27. Regardleoss, Santana’s sworn deposition testimony confirmed most, if
not all of the factsl set forth in her initial affidavit and this deposition testimony has
never been retiracted. Therefore, Santana confirmed that she 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. 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. Following Walker
10
and Pohl’s instructions, Santana visited the funeral of the deceased and got the family
to feel comfortable with her. Although the mother was grieving, Pohl told Santana:
“take no prisoners, this is a cut throat business, you get in there and you do whatever
it takes to get this client.” The solicitation was successful after Pohl gkave Santana
$2,000 to “give to the client to convince her into signing over with Cthe firm.”
28. “Coach” Kenneth Talley (“Talley”) was another runner hired by Pohl
and Walker who solicited over 20 auto accident cases for Pohil. Talley has sworn under
oath that he was first hired in relation to BP claims to find “folks that lost money due
to the oil spill” and “sign them up” and “get a fee for it.” Talley testified that he went
to work “knocking on doors” looking for potential claimants for Pohl and his partner
in the BP litigation. Talley solicited and siglned up more than 800 BP claims for Pohl
and his co-conspirators. Talley was pMaid between $75 and $350 for each BP client he
signed up for Pohl and his partners.
29. Talley eventuallyi switched to illegally soliciting auto accident victims
for Pohl, “calling on folks that had bad accidents.” Talley recalls that the first client
he solicited for Pohl woas in “the hospital in intensive care.” Talley carried with him
up to $1,000 to paly the accident victims to “help them with problems” but paid the
potential clienit only once they “were signed up.” Talley kept a list of all the auto
accident cases he solicited so he could keep track of the cases that he was due a
percentage from Pohl’s attorney’s fees on the back end after the case settled. Talley
also 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
11
money but to “make sure the funding schedule” from HH Texas “is filled out properly
before releasing any cash.” Talley would advise the victims that he had attorneys who
could help them such as Pohl. Talley was paid a fee of $1,400 plus his expenses by
Pohl, through Walker and/or one of his sham business entities for any kauto accident
case he solicited and referred to Pohl. On some cases, Talley was tCo receive a portion
of the fee paid to Helping Hands out of Pohl’s attorney’s fees. Talley discussed with
Pohl the “percentage of settlements” he was to receive from ithe cases he solicited and
referred, and Pohl told Talley that the money was being placed in an “escrow account”
for him. 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.” And, although his paylcheck was from Walker’s company, “the
funding came by way of Edgar [JaimeMs].”
30. Talley testified that personally soliciting clients for Pohl became so
frequent that he began carryinig blank contracts to each solicitation. Talley testified
that he never recommended any lawyers other than Pohl. However, Talley never told
the clients that he waos getting paid to solicit them. Talley would present a contract
to the potential clilent. If the client did not agree to hire Pohl, the clients would not
get the moneyi. Talley testified that Jaimes and Dona (the operators of HH Texas)
would send him the money.
31. 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. Talley testified that during the attempted solicitation he was told by a
12
“lawyer or policeman” that “it was against the law what [he] was doing.” Talley
mentioned this to Pohl and Pohl told him “you’ve just got to leave...some people you
can’t help.”
32. Walker was eventually indicted and sent to prison. Beking afraid of
where Walker’s indictment might lead, Pohl and his lawyer partneCrs stopped paying
Walker and the other runners the illegal fees as Pohl had promised. Therefore,
Walker, Seymour, Ladner and Precision filed a lawsuit in Miississippi Federal Court
(“Federal Litigation”) against Pohl and his law partners claiming they were owed
millions of dollars in promised fees.
33. The above facts were compiled during the Federal Litigation.
Thereafter, more than four hundred clientsl who were illegally solicited contacted the
Kassab Law Firm and requested KassMab to represent them in litigation against Pohl
and his partners. Kassab filed lawsuits on behalf of these clients in four different
courts in Harris County. Addiitionally, 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 orequired to notify the Texas State Bar pursuant to Rule 8.03 of
the Texas Disciplinlary Rules of Professional Conduct. Due to this mandate, Kassab
filed grievanceis against Pohl pursuant to Rule 8.03. some of Pohl’s clients also
prepared and filed grievances against Pohl arising out of his egregious conduct.
34. Because of these actions in representing clients against Pohl and the
grievances filed against Pohl, Pohl filed this retaliatory lawsuit against Kassab
alleging conversion and theft of trade secrets. Pohl alleges that Kassab and others
13
stole his property and used it to bring lawsuits and grievances against Pohl.
Specifically, Pohl alleges in his petition that, “Kassab is a lawyer who specializes in
suing other lawyers”1 and “Kassab solicited clients/prospective clients [of Pohl’s] to
act as Plaintiffs . . . to bring cases against Pohl for alleged barratry and okther claims.”2
Thus, Pohl has judicially admitted that he has brought his suit agaiCnst Kassab simply
because Kassab contacted illegally solicited clients to notify them of Pohl’s illegal
conduct and to offer to represent them in suits against Pohli.
35. The lawsuit is frivolous and without merit as it is based upon false
pretenses and was brought solely for retaliation and harassment purposes.
Specifically, Kassab did not steal anything from Pohl. Additionally, Kassab did not
purchase any stolen documents belonging tlo Pohl. Nor did Kassab purchase anything
belonging to Pohl. Moreover, Pohl isM not the owner of documents received, if any,
from Precision, Favre, Nicholson, Montague or anyone else. Lastly, none of the
documents and/or informatioin that Kassab may have received from various
individuals or entities are Pohl’s trade secrets as Pohl alleges. Furthermore, Pohl
has failed to complyo with conditions precedent to filing his retaliatory suit for
conversion and thleft of trade secrets. Specifically, Pohl has never requested from
Kassab, the reiturn of his alleged property. Rather, Pohl abandoned all of the alleged
documents he now accuses Kassab of stealing and/or purchasing. Pohl abandoned all
of the documents he alleges were stolen and/or purchased because he knew that the
documents were not his and that he had no ownership interest in the documents. If
1 Pohl Original Petition, p. 6
2 Id. at p. 6-7
14
Pohl actually believed the subject documents were his, he would have safeguarded
the documents rather than abandon them with a convicted felon (Walker) and his
cohorts (Seymore and Ladner). Even as of today, the subject documents sit in a
warehouse, unattended and not safeguarded. k
VIII C
RESPONSIBLE THIRD PARTIES
36. A responsible third party is “any person who isst alleged to have caused
or contributed to causing in any way the harm for which recovery of damages is
sought, whether by negligent act or omission, by any defective or unreasonably
dangerous product, by other conduct or activity that violates an applicable legal
standard, or by any combination of these.” Id. at § 33.011(6). Pohl claims that his
harm is the allegedly “unlawful takinag” or “use” of Pohl’s purported trade secret
information.3 Kassab denies Pohl’sf allegations. But even assuming they are true,
Kassab’s designation satisfies the minimal notice pleading standard to demonstrate
that the Designated PartieOs caused or contributed to causing “in any way” the loss of
or eventual alleged mipsuse of purported trade secret information. See In re CVR
Energy, Inc., 500 S.W.3d 67, 80 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“The
standard for dceisignating a potentially responsible third party is notice pleading
under the Toexas Rules of Civil Procedure.”).
37. Kassab alleges that Walker, Ladner and Seymour are responsible for
the harm alleged to the extent they misappropriated Pohl’s trade secrets in the first
3 Pohl RTP Objection, at 2.
15
instance and sold them to Scott Favre, who Pohl alleges then sold them to Kassab to
pursue the barratry litigation. In fact, Pohl himself, swore under oath that Walker,
Lander and Seymour, who Pohl identified collectively as the “PR Consultants,”
attempted to sell his “accumulated work product to third parties”4 and k“undertook to
convert, misappropriate for themselves and/or market to third parCties claimant files
and other information and materials that belong to me.”5 Pohl testified that the
purported information stolen by Walker, Ladner and iSeymour is the same
information that Pohl claims is his trade secrets here: “original client contingency fee
contracts between [Pohl’s] clients and [Pohl], documentation of contact and personal
information, claim information and supporting materials.”6 Pohl testified that this
purportedly trade secret information wals delivered or sold Walker, Ladner and
Seymour “without his consent” to FavMre.7 Pohl alleges in this lawsuit that Favre then
sold that same information to Kassab to pursue barratry claims against Pohl.8 If any
loss or eventual misuse of Piohl’s purported trade secret information did occur,
Walker, Ladner and Seymour clearly caused or contributed to causing it, as had
Walker, Ladner and oSeymour not stolen Pohl’s alleged trade secrets as he alleges,
they could not havle sold the alleged trade secrets to Favre and thus, Favre could not
have given thei alleged trade secrets to Kassab.
4 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 18.
5 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 28.
6 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 28.
7 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶¶ 28-29.
8 Pohl’s First Amended Petition, at ¶ 24.
16
38. Walker testified under oath that he, Seymour and Ladner, through
Precision, owned all the assets/property, including computers and documents that
were transferred to Favre. Walker also testified that he had the legal right and
authority, through Precision, to sell and transfer all the subject assetks/property to
Favre. Moreover, Walker, Seymour and Ladner certified that theCy owned all of the
subject property/assets and had authority to transfer all of the subject property/assets
to Favre. If Walker, Seymour and Ladner did not have thei legal right to transfer all
of the subject assets/property to Favre, then they caused or contributed to causing
any alleged harm for which recovery of damages is sought by Pohl by selling the
alleged trade secrets to Favre.
39. Kassab also sufficiently allegled how Pohl’s counsel in the Mississippi
litigation, Shepherd, caused or contribMuted to causing the purported loss or misuse of
Pohl’s allegedly confidential information. Specifically, Shepherd negotiated a
settlement in the litigation wiith Walker, Ladner and Seymour but failed to protect
Pohl by ensuring that all subject property was gathered from all third parties and
returned to Pohl or deostroyed as part of the any settlement agreement, if in fact Pohl
owned and/or desirled to safeguard the subject property.
40. Sihepherd knew that Walker, Seymour and Ladner had sold Precision to
Favre and knew that Walker, Seymour and Ladner had legally transferred
Precision’s assets, including the subject matter of Pohl’s conversion and theft of trade
secrets claims, to Favre. Shepherd further knew that Favre and/or his counsel had
given documents to third parties, including Kassab and others prior to negotiating a
17
settlement in the Mississippi Litigation. Thus, Shepherd failed to protect Pohl’s
alleged trade secrets by failing to include a provision in the settlement agreement
forcing all parties to gather the alleged trade secrets from outside third parties like
Kassab so they could be returned to Pohl, if in fact he owns them as aklleged. This
failure by Shepherd caused and/or contributed to causing the harmC for which recovery
of damages is sought by Pohl.
40. Shepherd’s malfeasance was either negligient or intentional. If
Shepherd knew that the subject assets/property were a point of contention in the
Mississippi Litigation and knew that the assets/property could be used by outside
third parties to garner clients to sue Pohl, as Pohl alleges, Shepherd may have
intentionally failed to protect Pohl’s interelst so that he could secure future lucrative
employment for himself and his law fiMrm for years to come by continuing to represent
Pohl in litigation to be brought against Pohl after the subject property was used to
garner clients to sue Pohl as Piohl alleges. Thus, Shepherd is a person who caused or
contributed to causing the harm for which recovery of damages is sought by Pohl.
41. Finally, oKassab sufficiently alleged how Dona Pohl, Jaimes, Tally and
Santana caused olr contributed to causing the purported loss or misuse of Pohl’s
alleged trade siecret information. Specifically, Kassab alleges that these persons failed
to keep Pohl’s information confidential because they routinely placed Pohl’s alleged
trade secrets and documents in the public domain, circulating Precision’s marketing
lists and other documents allegedly belonging to Pohl to numerous third parties
rather than safeguard these documents and lists.
18
42. Additionally, if Walker, Seymour, Ladner, Dona, Jaimes, Talley or
Santana had an agreement and/or duty to safeguard any property allegedly owned
by Pohl as Pohl alleges, they are responsible for failing to safeguard the property.
Additionally, Walker, Seymour, Ladner, Dona, Jaimes, Talley and Santkana routinely
placed Pohl’s alleged trade secrets and documents in the public dComain, circulating
Precision’s marketing lists and other documents allegedly belonging to Pohl to
numerous third parties rather than safeguard these documients and lists.
43. “Under the notice-pleading standard, fair notice is achieved if the
opposing party can ascertain from the pleading the nature and basic issues of the
controversy, and what type of evidence might be relevant.” In re CVR Energy, Inc.,
500 S.W.3d at 80. “A trial court may not revliew the truth of the allegations or consider
the strength of the defendant's evidenMce.” Id. Kassab satisfies this “low threshold” by
alleging that the Designated Parties caused or contributed to causing the alleged
theft or misuse of Pohl’s puriported trade secret information. See id. Therefore,
Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley, Santana are persons who
caused or contributedo to causing any alleged harm for which recovery of damages is
sought by Pohl. Thleir conduct caused or contributed to causing in part (if not entirely)
the harm for wihich recovery of damages is sought by Pohl, and that conduct violated
an applicable legal standard and/or constitutes negligence. See TEX. CIV. PRAC. &
REM. CODE § 33.011(6). Thus, the jury should be permitted to consider apportioning
fault in this case to Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley,
19
Santana. Their designation as responsible third parties is factually justified and
legally appropriate.9
COUNTERCLAIM FOR CIVIL BARRATRY
44. Within the lawsuits that Kassab has filed against PoChll on behalf of his
former clients and/or potential clients, Pohl has judicially admcitted that a claim for
barratry is not a legal malpractice case. Pohl has also admitted that a because a
claim for barratry is not a claim for “legal malpractice,s” the Discovery Rule does not
apply to a barratry claim. Therefore, based upogn Pohl’s judicial admissions, the
assignment of a barratry claim is permitted unBder Texas law.
45. Thus, based upon express assignments of interest given to Kassab,
Kassab brings counterclaims againstM Pohl and his law firm pursuant to Texas Civil
Practice and Remedies Code, Sectioon 16.069. Section 16.069 provides:
(a) If a counterclaim or ccross claim arises out of the same transaction or
occurrence that is fthe basis of an action, a party to the action may
file the counterclaim or cross claim even though as a separate action
it would be baryred by limitations on the date the party’s answer is
required.
(b) The counterclaim or cross claim must be filed not later than the 30th
day after the date on which the party’s answer is required.
9 It is also onf no concern here that the Court might be unable to exert personal jurisdiction over
either WaUlker, Seymour, Ladner, Talley, Dona, Jaimes or Santana. In its 2003 revision of Chapter
33, the Legislature abolished the predecessor law, which had defined responsible third parties to be
only those over whom the court could exercise jurisdiction, thus allowing the designation of those
“who are not subject to the court’s jurisdiction or who are immune from liability to the claimant.”
See, e.g., In re Unitec Elevator Serv. Co., 178 S.W.3d 53, 58 & n. 5 (Tex. App.-- Houston [1st Dist.]
2005, orig. proceeding); accord Hix-Hernandez v. Ford Motor Co., No. 1:20-cv-29-RP, 2021 WL
7632564, at *1 (W.D. Tex. May 6, 2021) (“A defendant may designate a responsible third party
despite the fact that the party has a defense to liability, cannot be joined as a defendant, or both.
Even parties who are outside the court’s jurisdiction or are immune from liability may be designated
responsible third parties.”) (internal citations omitted).
20
Kassab has been assigned barratry claims on behalf of 242 claimants. These
counterclaims are timely because they were filed within 30 days of the date
Kassab filed his original answer.
X k
CLAIM FOR ATTORNEY’S FEES e
46. Defendants contend that all or some of Plaintiffs’ claims for
misappropriate under TUTSA were made in bad faith, enablitng Defendants to
recover their reasonable attorney’s fees. See TEX. CIV. P RAC. & REM. CODE §
134A.005. e
XI u
PRAYER FOR RELIEF
Wherefore, Defendants, Counter-Pllaintiffs respectfully pray that Plaintiffs
recover nothing on their claims and that the Defendants, Counter-Plaintiffs recover
on their claims against the Plaintiffs and/or any Third-Party Defendants as follows:
i) actual and conseqiuential damages;
ii) statutory damages;
iii) pre- and ppost-judgment interest;
iv) attorneys’ fees and costs; and
v) all other relief to which the Defendants, Counter-Plaintiffs may be justly
entitled.
21
Respectfully submitted,
THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
LANCE CHRISTOPHER KASS k AB
Texas State Bar No. 00e794070
lance@kassab.law C
DAVID ERIC KASSABt 
Texas State Bar No. 24071351
david@kassab.latw
1214 Elgin Stireet
Houston, Texas 77004
Telephone: 713.522.7400
Facsimeile: 713.522.7410
ATTOR u NEYS FOR LANCE CHRISTOPHER
KASSAB AND THE KASSAB LAW FIRM
lFOGLER, BRAR, O’NEIL AND GRAY, LLP
M /s/ Murray Fogler
 Murray Fogler
State Bar No. 07207300
e mfogler@foglerbrar.com
i 909 Fannin, Suite 1640
f Houston, Texas 77010
Telephone: 713-481-1010
Facsimile: 713-574-3224
ATTORNEY FOR LANCE
a l CHRISTOPHER KASSAB AND THE
c i KASSAB LAW FIRM REGARDING
i PLAINTIFFS’ AFFIRMATIVE CLAIMS
22
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 14th day of November 2022.
/ s / Lance Christopher Kassab
Lance Christopher KCassab
23
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 70152760
Status as of 11/14/2022 3:36 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 11/14/2022 3:25:53 PM SENT
Jean C.Frizzell jfrizzell@reynoldgsfrizzell.com 11/14/2022 3:25:53 PM SENT
Harris Wells hwells@reynouldsfrizzell.com 11/14/2022 3:25:53 PM SENT
Todd Taylor ttaylor@jandflaw.com 11/14/2022 3:25:53 PM SENT
Scott M.Favre scott@yfavrepa.com 11/14/2022 3:25:53 PM SENT
Lawyer Wade lawayerwade@hotmail.com 11/14/2022 3:25:53 PM SENT
Andrea Mendez andrea@kassab.law 11/14/2022 3:25:53 PM SENT
Lance Kassab olance@kassab.law 11/14/2022 3:25:53 PM SENT
David Kassab david@kassab.law 11/14/2022 3:25:53 PM SENT
Jason M.Ciofalo f jason@ciofalolaw.com 11/14/2022 3:25:53 PM SENT
Chris C.Pappas cpappas@krcl.com 11/14/2022 3:25:53 PM SENT
Todd Taylor p ttaylor@jandflaw.com 11/14/2022 3:25:53 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 11/14/2022 3:25:53 PM SENT
Nicholas Pierce a l nicholas@kassab.law 11/14/2022 3:25:53 PM SENT
Murray JFogler mfogler@foglerbrar.com 11/14/2022 3:25:53 PM SENT
Murray Fogler o mfogler@fbfog.com 11/14/2022 3:25:53 PM SENT
Andrew JohnsUon ajohnson@thompsoncoe.com 11/14/2022 3:25:53 PM SENT
Vilma Yanes vyanes@thompsoncoe.com 11/14/2022 3:25:53 PM SENT
Benjamin Ritz britz@thompsoncoe.com 11/14/2022 3:25:53 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 11/14/2022 3:25:53 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 11/14/2022 3:25:53 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 11/14/2022 3:25:53 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/14/2022 3:25:53 PM SENT
D Kassab david@kassab.law 11/14/2022 3:25:53 PM SENT
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 70152760
Status as of 11/14/2022 3:36 PM CST
Case Contacts r i
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/14/2022 3:25:53 PM SENT
L Kassab lance@kassab.law s 11/14/2022 3:25:53 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 11/14/2022 3:25:53 PM SENT
Non-Party Witness Billy Shepherd bshepherd@supcounsel.com 11/14/2022 3:25:53 PM SENT"
41,2022-09-21,NTC,Pohl,Filing evidence and request for leave,Pohl Plaintiffs' Notice of Filing of Evidence in Support of Claims of Privilege and Request for Leave,"Notice filed September 21, 2022 pursuant to Tex. R. Civ. P. 193.4, filing Pohl's declaration to support privilege claims in response to Kassab Defendants' Fifth Set of Written Discovery Requests and their related Motion to Compel. Filed before Judge Scot Dollinger, 189th Judicial District, Harris County, Texas.",MSJ-3,N/A,Phase 3,2022-09-21_NTC_Pohl-Filing-Evidence-and-Request-for-Leave_FILED.pdf,"Leave to file the declaration of Michael A. Pohl in support of privilege claims less than seven days in advance of the September 23, 2022 hearing on Kassab's Motion to Compel","9/21/2022 9:03 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68499533
By: Ashley Lopez
Filed: 9/21/2022 9:03 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
THE POHL PLAINTIFFS’ NOTICE OF FILING OF EVIDENCE IN SUPPORT OF
CLAIMS OF PRIVILEGE AND REQUEST FOR LEAVE
TO THE HONORABLE JUDGE SCOT “DOaLLI” DOLLINGER:
Pursuant to Texas Rule of Civil Procedure 193.4, Plaintiffs Michael A. Pohl and Law
Office of Michael A. Pohl, PLLC fieles and serves the attached declaration of Michael A. Pohl
which will be used to support thfe claims of privilege made by Pohl in response to the Kassab
Defendants’ Fifth Set of Wriytten Discovery Requests.
This declaratioCn is being filed as a result of the Kassab Defendants’ Motion to Compel
Removal of Pohl’sa Objections and Properly Respond to Discovery, filed Sept. 19, 2022 (the
“Motion”)—whfich was set for hearing on Sept. 23, 2022. Given that the Motion was both filed
and set for hearing less than seven days in advance of the hearing date, Pohl requests leave for the
filing of this declaration less than seven days in advance of the hearing under Texas Rule of Civil
Procedure 193.4(a). The Kassab Defendants and the Montague Defendants do not oppose this
request for leave.
Dated: September 21, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 C l
Tel. 713.485.7200 
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office ofs Michael A. Pohl, PLLC
CERTIFICATE OF CONFERENCE
I hereby certify that on September 21, 2022, a lawyer from my office asked counsel for
defendants if they opposed Plaintiffs’ request for lleave to file a declaration less than seven days in
advance of the hearing. Counsel for the Maontague Defendants and counsel for the Kassab
Defendants responded before the filing of tMhis document, and they indicated that those parties are
not opposed to Pohl’s request for leave. Counsel for Pohl did not receive a response from the
Favre Defendants or the Nicholson Defeondants prior to filing.
f /s/ Jean C. Frizzell
Jean C. Frizzell
C CERTIFICATE OF SERVICE
I hereby ceratify that a true and correct copy of this document was served on all counsel of
record pursuant toc the Texas Rules of Civil Procedure on this 21st day of September, 2022.
U /s/ Jean C. Frizzell
Jean C. Frizzell
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.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68499533 r
Status as of 9/22/2022 9:05 AM CST
Case Contacts
Name BarNumber Email TimsestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/21/2022 9:03:12 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r9/21/2022 9:03:12 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/21/2022 9:03:12 PM SENT
Andrew J. Sarne asarne@krcl.com  9/21/2022 9:03:12 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/21/2022 9:03:12 PM SENT
Kathryn Laflin KLaflin@KRCL.com l 9/21/2022 9:03:12 PM SENT
Murray JFogler mfogler@foglerbrar.coam 9/21/2022 9:03:12 PM SENT
Murray Fogler mfogler@fbfog.comM 9/21/2022 9:03:12 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/21/2022 9:03:12 PM SENT
Larry Newsom lnewsom@krcl.com 9/21/2022 9:03:12 PM SENT
Jason M.Ciofalo jason@ciofaelolaw.com 9/21/2022 9:03:12 PM SENT
Chris C.Pappas cpappas@krcl.com 9/21/2022 9:03:12 PM SENT
Todd Taylor ttaylor@fjandflaw.com 9/21/2022 9:03:12 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/21/2022 9:03:12 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/21/2022 9:03:12 PM SENT
Lawyer Wade olawyerwade@hotmail.com 9/21/2022 9:03:12 PM SENT
Scott M.Favre Cscott@favrepa.com 9/21/2022 9:03:12 PM SENT
Andrea Mendez  andrea@kassab.law 9/21/2022 9:03:12 PM SENT
Lance Kassab lance@kassab.law 9/21/2022 9:03:12 PM SENT
David Kassab david@kassab.law 9/21/2022 9:03:12 PM SENT
Nicholas Pierce f nicholas@kassab.law 9/21/2022 9:03:12 PM SENT
Dale Jefferson n10607900 jefferson@mdjwlaw.com 9/21/2022 9:03:12 PM SENT
Raul Herman SuazoU24003021 suazo@mdjwlaw.com 9/21/2022 9:03:12 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/21/2022 9:03:12 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/21/2022 9:03:12 PM SENT
L Kassab lance@kassab.law 9/21/2022 9:03:12 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/21/2022 9:03:12 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/21/2022 9:03:12 PM ERROR
Misty Davis mdavis@reynoldsfrizzell.com 9/21/2022 9:03:12 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/21/2022 9:03:12 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/21/2022 9:03:12 PM SENT
D Kassab david@kassab.law 9/21/2022 9:03:12 PM SENT"
40,2022-09-19,OBJ,Kassab,Objection to Pohl’s MSJ evidence,"Defendants' Objections to Plaintiffs' Summary Judgment Evidence — joint filing by Kassab and Nicholson Defendants challenging admissibility of Pohl's summary judgment evidence including the Pohl Declaration (paragraphs 4, 6, 10-18, 20-32) and numerous exhibits, with additional deposition testimony offered under Rule 107","Evidentiary objections filed September 19, 2022 at 8:16 AM by Kassab and Nicholson defendants jointly, on the morning of the summary judgment hearing. Challenges admissibility of Pohl's September 12, 2022 declaration and exhibits attached to both the traditional and no-evidence MSJ responses. Attaches complete depositions of Ladner, Seymour, and Walker under Rule 107. Addressed to Judge Scot 'Dolli' Dollinger.",MSJ-3,N/A,Phase 3,2022-09-19_OBJ_Kassab-Objection-to-Pohl-MSJ-Evidence_FILED.pdf,"Sustain all objections, strike objectionable portions of Pohl Declaration and exhibits, and grant summary judgment for Kassab and Nicholson defendants","9/19/2022 8:16 AM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68367189
By: Deandra Mosley
Filed: 9/19/2022 8:16 AM
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
DEFENDANTS’ OBJECTIONS TO C
PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE
TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGEtR:
Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.
d/b/a/ The Kassab Law Firm (“the Kassab Defendeants”) and Tina Nicholson and
Baker Nicholson, LLP (“Nicholson”) (both sets ouf Defendants collectively referred to
as “Defendants”) file this, their Objections to Plaintiffs’ Summary Judgment
Evidence, and would respectfully show athe following.
OBJECTIONS TO POHL’S EVIDENCE IN RESPONSE TO TRADITIONAL MSJ
Plaintiffs Michael A. Pohel and Law Office of Michael A. Pohl, PLLC (“Pohl”)
attached to his summary judfgment responses as Exhibit A a declaration from Pohl
dated September 12, 2022 with exhibits (“Pohl Declaration”). Defendants object to
the following statements or paragraphs in the Pohl Declaration for the following
reasons: i
Paoragraph/Statement Objection/Basis
¶ 4 – “During the period that I Conclusory. Unsupported by factual or
maintained office space in Mississippi, I legal basis.
shared that space only with contractors
and employees whom I employed full
time and were treated for privilege and
confidentiality purposes as functional
employees of my law firm.
¶ 6 – “I was informed that Maxwell- Hearsay.
Walker had retained Mississippi
attorneys to advise it and confirm that
its agreement with me as well as the
public relations and marketing services
it was anticipated to provide under the
agreement were in compliance with
Mississippi law.” e
¶ 10 – “Precision represented to me that Conclusory. Hearstay. Vague and
their independent attorney or attorneys ambiguous as to whio at “Precision” made
had reviewed and approved each of the alleged represtentations so this
contracts I signed with them. In fact, interested-witneiss testimony is not
Precision and/or their independent “clear, positive and direct” as required by
attorneys prepared or redrafted several Rule 166a(sc).
of the services agreements.” e
¶ 11 – “Precision also represented that, Conclusory. Hearsay. Vague and
in addition to their public relations ambiguous as to who at “Precision” made
services, they were competent to handle alleged representations so this
client liaison services and claims linterested-witness testimony from Pohl
management with respect to clients whao is not “clear, positive and direct” as
retained me and Jimmy WilliamsonM to required by Rule 166a(c).
investigate and potentially prosecute
their BP claims.”
¶ 12 – “I am and was the righitful owner Conclusory. Improper lay or expert
of all the confidential, pOrivileged and opinion on legal issues for which Pohl is
trade secret information and property not properly qualified or designated to
that Kassab, Montagupe and Nicholson provide testimony on. Unsupported by
obtained from Scott Foavre and Precision factual or legal basis. More specifically,
Marketing Group, LLC on which this Pohl’s statements that he is a rightful
lawsuit is baseda. l… as a lawyer, I am owner of the information, that the
also entitled tco imaintain a copy of the information is a “trade secret,” and that
files and havfei a possessory interest in he has a possessory and ownership
them. Moroeover, with respect to the interest in the information are
attorney-client contracts to which I was conclusory without any supporting basis.
a party, as a contracting party I likewise
have an ownership interest in each of
the attorney-client contracts.”
¶ 13 – “while a single client may have Conclusory. Improper lay or expert
the right to request and obtain his/her opinion on legal issues for which Pohl is
file, that client does not have the right to not properly qualified or designated to
possess or even access other client files. provide testimony on. Unsupported by
The compilation of my clients and their factual or legal basis.
contact information, or any subset of my
clients, belongs to me and is in fact a
‘customer list.’ This is equally true if the
materials consist of over 11,000
attorney-client contracts from which one
can ascertain my ‘client’ or ‘customer e
list’.” C
¶ 14 – “I repeatedly stressed to Precision Conclusory. Heairsay. Vague and
and its staff the importance of keeping ambiguous as to wtho at “Precision” made
client information confidential including alleged repreisentations so this
the attorney-client contracts and the interested-witness testimony from Pohl
corresponding files. In turn, Precision is not “clsear, positive and direct” as
represented to me that they would be required eby Rule 166a(c). Improper lay
providing their marketing and client or expert opinion on legal issues for
services exclusively to me and knew and which Pohl is not properly qualified or
understood that their work and designated to provide testimony on.
communications with clients including Unsupported by factual or legal basis.
the underlying information of the clients l
and any of my contracts with the clienats
were confidential and could not Mbe
disclosed without my express consent.
Although Precision was a third-party
provider of legal related services, for
purposes of privileged or cionfidential
information, they were eOffectively the
functional equivalent of employees
working full time for pme out of offices
arranged for and poaid for by me. I
considered them to be a ‘lawyer
representative’ asl that term is used in
the Texas Rules iof Civil Evidence.
¶ 15 – “I likoewise took additional steps to Conclusory. Improper lay or expert
safeguard my confidential and opinion on legal issues for which Pohl is
proprietary information. My offices, not properly qualified or designated to
where my information was kept, were at provide testimony on. Unsupported by
the top floor of a bank building which factual or legal basis.
had 24-hour security. The elevators were
programmed such that after hours a
person could only access a floor or floor
for which that person had authority. The
building itself contained numerous
security cameras. My firm would lock
and secure the offices after office hours,
and my files were therefore kept under
lock and key. I also made sure my
computers were password protected.
With respect to my contracts with my
clients, the contracts were written in a e
way that left no doubt that they were an C
agreement between a lawyer and a client t 
or clients for the rendition of legal
services.” t
¶ 16 – “I did not commit barratry. The Conclusory. Improper lay or expert
assertions made by the Defendants in opinion ons legal issues for which Pohl is
their motions for summary judgment not propeerly qualified or designated to
that I committed barratry and that I provide testimony on. Unsupported by
agreed to pay Precision any percentage factual or legal basis.
of the attorney’s fees I was to receive is
not true.”
¶ 17 – “At all times, I attempted tao Conclusory. Hearsay. Improper lay or
conform to the requirements relatinMg to expert opinion on legal issues for which
practicing in states in which I was not Pohl is not properly qualified or
licensed. I note that the filing process in designated to provide testimony on.
the BP Matter permitted the Unsupported by factual or legal basis.
participation of non-lawyers. iThere was
no requirement of bar Oadmission for
filing claims.” 
¶ 18 – “the assertionso that I ever agreed Conclusory. Vague and ambiguous as to
to pay any percentage of my attorney's who at “Precision” made alleged
fees to Precisiona lare not true. Instead, representations so this interested-
the May 25, c2i012 and July 15, 2012 witness testimony from Pohl is not
Contracts faiccurately reflect the “clear, positive and direct” as required by
agreement oorally discussed and Rule 166a(c). Unsupported by factual or
understood by all of the parties before legal basis.
their execution. The agreement required
that the Precision ""shall keep accurate
daily time records of all efforts expended
on behalf of LOMAP."" The %-of-
attorney's-fees clause was simply to
impose a ""cap"" on amounts that may be
due under the other terms of the
agreement, not an independent promise
to pay any percentage of the attorney's
fees earned by LOMAP on the subject
claims. This was orally discussed and
understood by the parties before the May
25, 2012 and July 15, 2012 Contracts
were executed.”
¶ 20 – “Further with respect to the terms Conclusory. Vague andC ambiguous as to
of agreement and services to be provided who at “Precisiont ” made alleged
under the May 25, 2012 Contract and representations sio this interested-
the July 15, 2012 Contract, I was witness testimonty from Pohl is not
informed by Precision that they wanted “clear, positive aind direct” as required by
to confer with their attorneys before Rule 166a(c). Unsupported by factual or
finalizing and executing the agreement legal basiss.
documentation. We specifically discussed e
that the inclusion of the agreed
maximum-price provisions was essential
to me in agreeing to either a ""reasonable
rate"" formula or a specified contract
rate. Precision subsequently confirmed l
to me that they had conferred with theiar
Mississippi attorneys, who had advMised
that the terms of the agreement and
anticipated services thereunder were
lawful, and executed the agreement
accordingly.” i
¶ 21 – “Precision and its members Hearsay.
agreed they would orpganize and host
festivals, town hall moeetings and other
gatherings to appropriately educate the
public as part of thleir marketing efforts.”
¶ 22- “On my cbiehalf, Precision and its Conclusory. Vague and ambiguous as to
members agrfeied they would organize who at “Precision” Pohl is referring to, so
and host foestivals, town hall meetings this interested-witness testimony from
and other gatherings to appropriately Pohl is not “clear, positive and direct” as
educate the public as part of their required by Rule 166a(c). Unsupported
marketing efforts. Precision was also by factual or legal basis.
responsible for training and supervising
their staff to ensure optimal results and
compliance with the rules governing
their marketing activities.”
¶ 22 – “This included Precision sending Conclusory. Vague and ambiguous as to
me falsified and inflated invoices and who at “Precision” Pohl is referring to, so
expense information. It was also later this interested-witness testimony from
discovered that Precision had Pohl is not “clear, positive and direct” as
systematically overcharged me on all required by Rule 166a(c). Unsupported
amounts I paid them under the public by factual or legal basis.
relations agreement.”
¶ 23 – “Precision admitted that they had Conclusory. Vague andC ambiguous as to
been stealing from me. Thus, from the who at “Precision” otr “PR Consultants”
inception of my relationship with PR Pohl is referring tio, so this interested-
Consultants, they consistently witness testimonty from Pohl is not
overstated to me the amount of the “clear, positive aind direct” as required by
actual costs they charged me for, and Rule 166a(c). Unsupported by factual or
then misappropriated, converted and/or legal basiss.
stole the inflated amounts for their own e
use and benefit.”
¶ 24 – “Precision took my property Conclusory. Vague and ambiguous as to
including my engagement agreements, who at “Precision” Pohl is referring to, so
client files, contact information, lthis interested-witness testimony from
computers and other informatioan Pohl is not “clear, positive and direct” as
without my permission. These files wMere required by Rule 166a(c). Unsupported
at one time maintained in approximately by factual or legal basis. Hearsay as to
seventeen clear plastic file containers. what Ladner – who is not a party to this
Ladner admitted absconding with those case – stated.
files from my satellite law ioffice and,
without my consent, keptO them at his
residence until they were later delivered,
also without my consenpt, to Scott Favre,
who had purchasedo Precision (from
Walker, Seymour, and Ladner) and
became its managilng member.”
¶ 24 – “Precf iision and Tina Nicholson Conclusory. Vague and ambiguous as to
refused to roeturn and converted to their who at “Precision” Pohl is referring to, so
own use my computers that I purchased this interested-witness testimony from
for my office and which Precision used Pohl is not “clear, positive and direct” as
while there performing services for me. required by Rule 166a(c). Improper lay
Those computers held software and or expert opinion on legal issues for
stored data that I had paid for, which Pohl is not properly qualified or
specialized legal forms (that had been designated to provide testimony on.
prepared in compliance with various Unsupported by factual or legal basis.
state law after consultation with local
counsel in those jurisdictions),
marketing information and other trade
secrets, my proprietary administrative
client forms, various fee-agreement
forms prepared in accordance with the
laws of various states, internal emails
and other work product relating to the
BP claims and other matters for which e
Precision rendered services in connection C
with our services agreements.” t 
¶ 25 – “This theft and unlawful Conclusory. Heatrsay. Vague and
disclosure was made even more ambiguous as toi who at “Precision” Pohl
egregious by the fact that, from the is referring to, so this interested-witness
outset of their contractual relationship testimony sfrom Pohl is not “clear,
with me, Precision expressed their positive aend direct” as required by Rule
understanding of the confidential nature 166a(c). Pohl’s statement about what
of the information based on their prior “appears” to have occurred is not
experience in providing litigation related competent summary judgment evidence,
services to attorneys, a field in which and his statement about a “barratry
Precision held themselves out to me as lscheme” is conclusory and unsupported
experienced professionals. Neverthelesas, by factual or legal basis. Moreover, not
without my consent, and without lMegal designated to opine on the issue of legal
title to the contracts, documents, title.
computers, passwords or data stored
thereon, Precision sold the contracts,
documents, computer, passwoirds and/or
stored data to Scott FavreO (even after I
had informed Favre that the materials
had been stolen from pme by Precision),
who it appears eventoually sold some or
all of those items and the information
therein to Kaslsab, Montague and
Nicholson for theiir barratry scheme.
¶ 26 – “Aso part of that enforcement of Conclusory and unsupported by factual
the settlement agreement, certain or legal basis.
Defendants were sanctioned.”
¶ 27 – “The materials at issue have Conclusory. Improper lay or expert
independent economic value from not opinion on legal issues for which Pohl is
being generally known to or not properly qualified or designated to
ascertainable through proper means by provide testimony on. Unsupported by
another person who can obtain economic factual or legal basis.
value from them.”
¶ 27 – “I agree with this valuation and Conclusory. Improper lay or expert
believe it constitutes the fair market opinion on legal issues for which Pohl is
price for what an investor would pay for not properly qualified or designated to
such information. However, the provide testimony on. Pohl’s statement
conversion and misappropriation of my about what he “believes” is not
client information has deprived me of competent summary judgement evidence.
this value.” Unsupported by factuaCl or legal basis.
¶ 28 – “I have suffered injury as a result Conclusory. Impropter lay or expert
of the Defendants’ misappropriation of opinion on legal issiues for which Pohl is
my trade secrets and conversion of my not properly quatlified or designated to
property. My injury includes the costs I provide testimDoiny on. Unsupported by
have incurred in legal fees and expenses factual or legal basis. Pohl fails to
that I would never have incurred but for provide susfficient factual support about
the conversion of my property and the fees hee alleges as damages.
misappropriation of my trade secrets. I
have personally incurred hundreds of
thousands of dollars in attorneys’ fees
and expenses in relation to defending
the lawsuits orchestrated by Defendants, l
including the Berry, Brumfielad,
Cheatham, and Gandy lawsuits. I Mwas
also harmed, as I paid a substantial sum
of money as part of a settlement
agreement under which certain
Defendants were required to ireturn my
materials and not fomOent litigation
against me. But I did not receive those
benefits.” p
¶ 29 – “The filing process in the BP Conclusory. Hearsay. Improper lay or
Matter permitteadl the participation of expert opinion on legal issues for which
non-lawyers. Tchiere was no requirement Pohl is not properly qualified or
of bar admissfioin for filing claims.” designated to provide testimony on.
o Unsupported by factual or legal basis.
¶ 30 – “At no time did I knowingly Conclusory. Unsupported by factual or
participate in any illegal solicitation of legal basis.
clients in Mississippi, Louisiana, Texas
or elsewhere. I always instructed
everyone in my employ to abide by the
laws of the state in which they were
acting. I, at all times, attempted to
adhere to the rules of the State Bar of
Texas and other relevant states
regarding the solicitation of clients.
¶ 31 – “Prior to the two year period Conclusory. Vague and ambiguous as to
leading up to the filing of this case, I was who at “Precision” Pohl is referring to, so
unaware that Scott Favre and Precision, this interested-witness testimony from
with the assistance of Tina Nicholson, Pohl is not “clear, positivee and direct” as
had sold my information to Kassab and required by Rule 166Ca(c). Unsupported
Montague. And, in fact, that sale by factual or legal bast is.
occurred in November of 2016, less than i
two years before this suit was filed. t
¶ 32 – “The grievances involved those Conclusory. 
same allegations.” s
Defendants request the Court to sustain these objections and strike these
objectionable portions of the Pohl Declaration. With those statements struck, Pohl
has no evidence to support his claimls against Kassab, rendering summary
judgment appropriate. M
In addition, Defendants object to several of Pohl’s summary judgment
exhibits on the following grounds.
Exhibit/Description Objection/Basis
Exhibit F - November 15, 2019 letter Hearsay. Irrelevant because outcomes of
from Office of Cohief Disciplinary grievance proceedings are not res
Counsel. judicata in civil matters. See Charles v.
l Diggs, No. 14-19-00725-CV, 2020 Tex.
Exhibit G – Feibruary 24, 2020 letter App. LEXIS 8502, at *5 (Tex. App.—
from Office iof Chief Disciplinary Houston [14th Dist.] Oct. 29, 2020, pet.
Counsel. o denied) (client’s claim against lawyer
Exhibit H – May 14, 2020 Letter from was not precluded by dismissal of
Board of Disciplinary Appeals. grievance because “the disciplinary rules
do not set the standard for civil
Exhibit I – January 14, 2020 letter from liability”); TEX. RULES DISCIPLINARY P. R.
Office of Chief Disciplinary Counsel. 17.03 (“Neither the Complainant nor the
Respondent is affected by the doctrines
Exhibit J – April 10, 2020 Letter from of res judicata or estoppel by judgment
Board of Disciplinary Appeals. from any Disciplinary Action.”).
Exhibit K – January 9, 2020 letter from
Office of Chief Disciplinary Counsel.
Exhibit L – April 10, 2020 Letter from
Board of Disciplinary Appeals.
Exhibit M – January 9, 2020 letter from e
Office of Chief Disciplinary Counsel. C
Exhibit N – April 10, 2020 Letter from
Board of Disciplinary Appeals. t
Exhibit O – January 9, 2020 letter from 
Office of Chief Disciplinary Counsel.
Exhibit P – April 10, 2020 Letter from
Board of Disciplinary Appeals.
Exhibit T – January 9, 2020 letter from
Office of Chief Disciplinary Counsel. l
Exhibit R – October 3, 2017 Letter fMrom Hearsay.
Magdalena Santana 
Exhibit S – Transcription of audiotaped Hearsay as to statements made by
conversation between Lance Kiassab and Magdalena Santana.
Magdalena Santana. O
Exhibit Y – emails and letter from Hearsay
counsel p
Additionalalyl, Pohl attached to his response only portions of the depositions of
Scott Walker f(iExhibit D), Kirk Ladner (Exhibit V), and Steve Seymour (Exhibit W),
taken August 29-31, 2022, after Defendants filed their motions for summary
judgment. For purposes of optional completeness, Defendants attach the entire
depositions of these witnesses as Exhibits 1 (Ladner), 2 (Seymour) and 3 (Walker) to
this pleading and asks the Court to consider those depositions part of the summary
10
judgment record. See TEX. R. EVID. 107 (“If a party introduces part of an act,
declaration, conversation, writing, or recorded statement, an adverse party may …
introduce any other act, declaration, conversation, writing, or recorded statement
that is necessary to explain or allow the trier of fact to fully understkand the part
offered by the opponent.”). This exhibits include, for example, adCditional proof for
Defendants’ summary-judgment arguments, such as Kirk Ladner’s following
testimony: i
• Precision owned the marketing and client lists. Ex. 1 at 44-45.
• Helping hands decided which law firms to refer clients to. Ex. 1 at 55-56, 62-
64
• Ladner did his own research to find lthe motor vehicle accident cases. Ex. 1 at
97, 285-89. M
• Pohl was really splitting attorney’s fees with Precision and his contracts were
a deceptive smokescreein to make the scheme appear legal. Ex. 1 at 77-79,
83-85, 94-95, 269-271, 276, 287-288, 398-416, 443
• Forms and maroketing lists used by Precision belonged to Precision. Ex. 1 at
128-29. l
• Pohl nef iver told Lander to return the documents, which belonged to ladner.
Ex. 1 at 133, 173-74
• The BP claimants were clients of Precision first. Ex. 1 at 214-215.
• Pohl never told Ladner to keep the information confidential. Ex. 1 at 232-35,
264-65, 500-502
11
• Spreadsheets of claimants and pre-questionnaire forms belonged to Precision.
Ex. 1 at 244-245, 262-263.
• Pohl committed barratry. Ex. 1 at 274-280, 285-86
• Helping Hands and GM Verification signed up the claimants as their own
clients. 444 C
Additionally, Steve Seymour testified that Walker creaited claimant lists but
Pohl never said the client lists were confidential. Ex. 2 ati 96-98, 147-149, 221-222.
Walker testified that the marketing lists were Precission’s work product and so was
the initial screening forming Precision had claimants compete. Ex. 3 at 232-33,
237-242.
OBJECTIONS TO POHL’S EVIDENCE INl RESPONSE TO NO-EVIDENCE MSJ
Because the Pohl DefendantsM use the same declaration to support their
Response to the No-Evidence Motion for Summary Judgment, Defendants
incorporate by reference all thie above-stated objections and assert them as to Pohl’s
declaration attached to the No-Evidence Response as Exhibit A.
EXHIBIT/DES o CRIPTION EXHIBIT/BASIS
Exhibit BB – Omnibus Transcript Hearsay
Exhibit D – Grcieivance documents Hearsay. Irrelevant because outcomes of
f i grievance proceedings are not res
o judicata in civil matters. See Charles v.
Diggs, No. 14-19-00725-CV, 2020 Tex.
App. LEXIS 8502, at *5 (Tex. App.—
Houston [14th Dist.] Oct. 29, 2020, pet.
denied) (client’s claim against lawyer
was not precluded by dismissal of
grievance because “the disciplinary rules
do not set the standard for civil
liability”); TEX. RULES DISCIPLINARY P. R.
12
17.03 (“Neither the Complainant nor the
Respondent is affected by the doctrines
of res judicata or estoppel by judgment
from any Disciplinary Action.”).
Exhibit S – Zavitsanos Report Hearsay, unsworn.
Exhibit T – Pohl Deposition at 115-116 Hearsay regarding what third-parties
allegedly told Nicholson. Also, Pohl’s
testimony was nonresponsive.
Exhibit Y – Pohl Declaration
¶ 4 Conclusory. Improiper lay or expert
opinion on legal sitssues for which Pohl is
not properly Dquialified or designated to
provide testimony on. Unsupported by
factual or slegal basis. More specifically,
Pohl’s statements that he is a rightful
owner of the information, that the
information is a “trade secret,” and that
he has a possessory and ownership
interest in the information are
lconclusory without any supporting basis.
¶¶ 5, 6 Conclusory. Vague and ambiguous as to
 who at “Precision” Pohl is referring to, so
this interested-witness testimony from
Pohl is not “clear, positive and direct” as
i required by Rule 166a(c). Unsupported
O by factual or legal basis. Hearsay as to
 what Ladner – who is not a party to this
p case – stated.
¶ 7 Conclusory. Hearsay. Vague and
a l ambiguous as to who at “Precision” Pohl
c i is referring to, so this interested-witness
f i testimony from Pohl is not “clear,
o positive and direct” as required by Rule
166a(c). Pohl’s statement about what
“appears” to have occurred is not
competent summary judgment evidence,
and his statement about a barratry
scheme is conclusory and unsupported
by factual or legal basis. Moreover, not
designated to opine on issue of legal
¶ 8 title.
13
¶ 9 Conclusory. Vague and ambiguous as to
who at “Precision” Pohl is referring to, so
this interested-witness testimony from
Pohl is not “clear, positive and direct” as
required by Rule 166a(c). Unsupported
by factual or legal basis. e
¶¶ 10, 13, 14 Not designated as an expert on damages,
and his damages topines are conclusory,
speculative, unireliable, and lack any
factual support.
¶ 11 Conclusoery
CONCLUSION & PRAYER
For the foregoing reasons, the Court should sustain these objections to Pohl’s
summary judgment evidence. With the aobjections sustained, the Court should grant
Kassab’s request for traditional and no-evidence summary judgment and order that
Pohl take nothing his claims against Kassab.
O Respectfully submitted,
p THE KASSAB LAW FIRM
/s/ David Eric Kassab
l DAVID ERIC KASSAB
i Texas State Bar No. 24071351
i david@kassab.law
o LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
lance@kassab.law
NICHOLAS R. PIERCE
Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
14
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
THOMPSON, COE, COUSINS & IRONS, LLP
By: /s/ Andrew L. Johneson
Andrew L. Johnson C
State Bar No.: 24060025
Zandra E. Foley
State Bar No.: 2t4032085
Benjamin S. Riitz
State Bar No.: 24096147
One Riverway, Suite 1400
Houstoen, Texas 77056
(713) 403-8210 – Telephone
(71u3) 403-8299 – Facsimile
ajohnson@thompsoncoe.com
zfoley@thompsoncoe.com
lbritz@thompsoncoe.com
ATTORNEYS FOR DEFENDANTS TINA
NICHOLSON AND BAKER
fNICHOLSON, LLP
OCERTIFICATE OF SERVICE
I certify that onp this date, September 19, 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.
f /s/ David Eric Kassab
DAVID ERIC KASSAB
15
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: 68367189 r
Status as of 9/19/2022 8:41 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/19/2022 8:16:53 AM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/19/2022 8:16:53 AM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/19/2022 8:16:53 AM SENT
Andrew J. Sarne asarne@krcl.com 9/19/2022 8:16:53 AM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/19/2022 8:16:53 AM SENT
Kathryn Laflin KLaflin@KRCL.com 9/19/2022 8:16:53 AM SENT
Dale Jefferson 10607900 jefferson@mdjwlarw.com 9/19/2022 8:16:53 AM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 9/19/2022 8:16:53 AM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/19/2022 8:16:53 AM SENT
Larry Newsom lnewsom@fkrcl.com 9/19/2022 8:16:53 AM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/19/2022 8:16:53 AM SENT
Chris C.Pappas cpappas@krcl.com 9/19/2022 8:16:53 AM SENT
Todd Taylor titaylor@jandflaw.com 9/19/2022 8:16:53 AM SENT
Misty Davis fmdavis@reynoldsfrizzell.com 9/19/2022 8:16:53 AM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/19/2022 8:16:53 AM SENT
Deidre Hicks y GWS_GROUP@spcounsel.com 9/19/2022 8:16:53 AM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/19/2022 8:16:53 AM SENT
Jean C.Frizzell C jfrizzell@reynoldsfrizzell.com 9/19/2022 8:16:53 AM SENT
Todd Taylor  ttaylor@jandflaw.com 9/19/2022 8:16:53 AM SENT
Lawyer Wade a lawyerwade@hotmail.com 9/19/2022 8:16:53 AM SENT
Scott M.Favre c scott@favrepa.com 9/19/2022 8:16:53 AM SENT
Andrea Mendez f i andrea@kassab.law 9/19/2022 8:16:53 AM SENT
Lance Kassab o lance@kassab.law 9/19/2022 8:16:53 AM SENT
David Kassab david@kassab.law 9/19/2022 8:16:53 AM SENT
Nicholas Pierce nicholas@kassab.law 9/19/2022 8:16:53 AM SENT
Murray Fogler mfogler@fbfog.com 9/19/2022 8:16:53 AM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/19/2022 8:16:53 AM SENT
Katie Budinsky kbudinsky@krcl.com 9/19/2022 8:16:53 AM ERROR
E. MarieJamison jamison@wrightclosebarger.com 9/19/2022 8:16:53 AM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/19/2022 8:16:53 AM SENT"
39,2022-09-18,NTC,Pohl,Withdrawal of partial MSJ on aff. def.,Pohl Plaintiffs' Notice of Drawing Down from Hearing Plaintiffs' Motion for Partial Summary Judgment on Defendants' Affirmative Defenses that Seek to Relitigate Failed Barratry Claims and No-Evidence Motion on the Remaining Affirmative Defenses,"Notice submitted September 18, 2022 (filed by clerk September 19, 2022) withdrawing Pohl's own motion for partial summary judgment on affirmative defenses from the September 19, 2022 hearing before Judge Scot 'Dolli' Dollinger, while defendants' MSJs remained pending for the same hearing date. Filed by Jean C. Frizzell of Reynolds Frizzell LLP.",MSJ-3,N/A,Phase 3,2022-09-18_NTC_Pohl-Withdrawal-of-Partial-MSJ-on-Aff-Def_FILED.pdf,"Request that Plaintiffs' Motion for Partial Summary Judgment on Defendants' Affirmative Defenses be drawn down from the September 19, 2022 hearing","9/18/2022 5:42 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68364897
By: Deandra Mosley
Filed: 9/19/2022 12:00 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
THE POHL PLAINTIFFS’ NOTICE OF DRAWING DOWN FROM HEARING
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON
DEFENDANTS’ AFFIRMATIVE DEFElNSES THAT SEEK TO RELITIGATE
FAILED BARRATRY CLAIMS AGaAINST PLAINTIFFS AND NO-EVIDENCE
MOTION ON THE REMAMINING AFFIRMATIVE DEFENSES
TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGER:
Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC file this notice to
draw down Plaintiffs’ Motion for Partial Summary Judgment on Defendants’ Affirmative
Defenses that Seek to Relitigate Failed Barratry Claims Against Plaintiffs and No-Evidence
Motion on the Remaining Affirmative Defenses, filed on August 29, 2022. This motion is
currently set for hcearing on September 19, 2022, and Plaintiffs request that it be drawn down from
that hearing so that the motion is not heard at that time.
Dated: September 18, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 C l
Tel. 713.485.7200 
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office ofs Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct coply of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Praocedure on this 18th day of September, 2022.
o /s/ Jean C. Frizzell
e Jean C. Frizzell
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.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68364897 r
Status as of 9/19/2022 8:35 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/18/2022 5:42:37 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/18/2022 5:42:37 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/18/2022 5:42:37 PM SENT
Andrew J. Sarne asarne@krcl.com 9/18/2022 5:42:37 PM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/18/2022 5:42:37 PM SENT
Kathryn Laflin KLaflin@KRCL.com 9/18/2022 5:42:37 PM SENT
Murray JFogler mfogler@foglerbrrar.com 9/18/2022 5:42:37 PM SENT
Murray Fogler mfogler@fbfog.com 9/18/2022 5:42:37 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2022 5:42:37 PM SENT
Larry Newsom lnewsom@fkrcl.com 9/18/2022 5:42:37 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/18/2022 5:42:37 PM SENT
Chris C.Pappas cpappas@krcl.com 9/18/2022 5:42:37 PM SENT
Todd Taylor titaylor@jandflaw.com 9/18/2022 5:42:37 PM SENT
Harris Wells fhwells@reynoldsfrizzell.com 9/18/2022 5:42:37 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/18/2022 5:42:37 PM SENT
Lawyer Wade y lawyerwade@hotmail.com 9/18/2022 5:42:37 PM SENT
Scott M.Favre scott@favrepa.com 9/18/2022 5:42:37 PM SENT
Andrea Mendez C andrea@kassab.law 9/18/2022 5:42:37 PM SENT
Lance Kassab  lance@kassab.law 9/18/2022 5:42:37 PM SENT
David Kassab a david@kassab.law 9/18/2022 5:42:37 PM SENT
Nicholas Pierce c nicholas@kassab.law 9/18/2022 5:42:37 PM SENT
Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/18/2022 5:42:37 PM SENT
Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/18/2022 5:42:37 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/18/2022 5:42:37 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/18/2022 5:42:37 PM SENT
L Kassab lance@kassab.law 9/18/2022 5:42:37 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/18/2022 5:42:37 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/18/2022 5:42:37 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/18/2022 5:42:37 PM SENT
Deidre Hicks GWS_GROUP@spcounsel.com 9/18/2022 5:42:37 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/18/2022 5:42:37 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/18/2022 5:42:37 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/18/2022 5:42:37 PM SENT
D Kassab david@kassab.law 9/18/2022 5:42:37 PM SENT"
37,2022-09-15,DECL,D. Kassab,David Kassab’s declaration,Declaration of David Eric Kassab in Support of Kassab Defendants' Summary Judgment Motions and Discovery Objections — sworn declaration under penalty of perjury providing factual basis for discovery burden objections and documenting the voluminous materials received from Pohl in the Barratry Litigation,"Evidentiary declaration filed September 15, 2022 in support of Kassab defendants' traditional and no-evidence motions for summary judgment. Provides factual basis for discovery burden objections by documenting the categories and volume of documents received from Pohl in the Barratry Litigation.",MSJ-2,N/A,Phase 3,2022-09-15_DECL_David-Kassab-Declaration_FILED.pdf,,"E
4
H

I

. Zo
: J ,

S ,
S |

CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
§
§
V. § OF HARRIS COUNTY, TEXAS
ae
SCOTT FAVRE, et al § 189th SUDIGIAL DISTRICT
DECLARATION OF DAVID ERIC KASSAB -

1. My name is David Eric Kassab. My date of birth Oetober 20, 1982.
My business address is 1214 Elgin Street, Houses) Texas 77004. I
declare under penalty of perjury that the statements of fact made
herein are within my personal knowledge and true and correct.

2. Jaman attorney licensed to practice Law the State of Texas. I have
been licensed to practice law by the State of Texas since 2010 and I
am in good standing. &

SS

3. Iam an attorney at Lance Chriesfphier Kassab, PC d/b/a The Kassab
Law Firm (“the Firm”). In thie suit I represent the Firm and its
owner, my uncle and law part , Lance Kassab.

4. J was an attorney for the plaintiff in the following litigation (and any
related appeals): (1) Catige No. 2017-38294, Dezzie Brumfield, et al. v.
Jimmy iiamson ea , in the 189 Judicial District Court of Harris
County, Texas (“th umfield case”) (2) Cause No. 459,062-401, Alice
Marie Gandy, et alyv. Jimmy Williamson, et al., In the Probate Court
No. 2 of taco Texas (“the Gandy case”), (3) Cause No. 2017-
37567, Mae (Bey y, et al. v. Michael Pohl, et al., in the 113 Judicial
District Cour (the “Berry case”). I am also currently counsel for
plaintiffs in” Cause No. 2017-41110, Mark Cheatham, et al. v. Michael
A. Po ee al., in the 55th Judicial District Court, Harris County Texas,
and ignthe related appeal (“the Cheatham case’). I will refer to these
& collectively as “the Barratry Litigation.”

5. The Berry case was filed on or about June 5, 2017, and ultimately
included seven plaintiffs that were alleged to have been solicited by
Precision Marketing Group (“Precision”) to hire Michael A. Pohl and
his firm (“Pohl”) to pursue auto accident claims. The Cheatham case
was filed on June 20, 2017, and ultimately included four plaintiffs who
were alleged to have been solicited by Precision to hire Pohl to pursue

1

auto accident claims. The Brumfield case was filed on June 8, 2017,
and by July 26, 2017, that suit had approximately 272 plaintiffs who
were alleged to have been solicited by Precision to hire Pohl and his
co-counsel Jimmy Williamson to pursue BP claims. The Gandy case
was filed on October 16, 2017, and that suit included approximately
135 plaintiffs who were alleged to have been solicited by Precision to
hire Pohl and Williamson to pursue BP claims. AS

6. In conjunction with representing these clients in the Brupipeld and
Gandy cases, my office requested from Pohl and Willia son the
clients’ original files. In response to that request, in -approximately
February 2018, we received hundreds of client files. Those files
contained contracts of employment and referral a ents between
the Brumfield and Gandy plaintiffs and Pohl an illiamson related
to the BP claims as well as communications ex¢hanged between the
clients and Pohl or Williamson, among other gs. Because Pohl had
previously represented those clients, each e client files that Pohl
or his co-counsel produced to Kassab nec rily contained documents
bearing Pohl’s name, letterhead, or ogo, or “Pohl Information,”
including client contracts and intake forms

7. Inthe Gandy case, Pohl filed an © vi wherein he included copies
of his contracts with the BP cNéts as well as an excel spreadsheet
entitled “Pohl Master List 6¢7Ns3.xlsx”. A true and correct copy of that
affidavit is attached hereto@s’ Exhibit A.

8. We also requested fron Pohl the client files for the plaintiffs in the
Berry and Cheatha A cases. Pohl and his co-counsel in two of the
underlying auto {ecldent cases, Robert Ammons, responded and
provided my offiee, with the client or prospective client files (if the
individuals h ver hired Pohl). Attached hereto as Exhibit A are
true and co copies of correspondence from Pohl’s counsel in the
Cheathamsan Berry cases, Billy Shepherd, providing my office with
that information. Because Pohl had previously represented those
clien seach of the client files necessarily contained documents
bear} Pohl’s name, letterhead, or logo, or “Pohl Information,”
he client contracts or intake forms.

9. In the Berry and Cheatham cases, Pohl produced to my firm in
response to discovery several categories of documents. I personally
reviewed that production, which included, among other things:

a. Attorney-client contracts between Pohl and the auto
accident clients, bearing Pohl’s letterhead.
2

b. Service agreements, operating agreements, “public
relations consulting agreements,” “Public Relations
Amendment” or other contracts or agreements between
Pohl and Scott Walker, Kirk Ladner and Steve Seymour,
or their respective companies, including Precision, related
to the BP claims or auto accident clients. Ne

c. Email communications between Pohl and others, including =
Scott Walker, related to “signing up” or “helping” auto
accident victims. ww

XS

d. Email communications between Pohl and others,siheluding
Walker and Ladner, related to payments to their
companies, including Precision, for BP cl s or auto
accident cases. ®

GP

e. Pohl’s banking records reflecting payments made to

Precision.
eS

f. Invoices from CMV Investigations.addressed to Pohl.

cats)

g. Text message cra a) etween Pohl and Dane
Maxwell and Florian (Ja ntana, many of which relate
to auto accident clients,""

10. Separately, during the Barratry Litigation, Pohl produced to my firm
approximately 6,937, es of information from the Mississippi
Litigation.! A ce oe copy of the production transmittal
letter is attached eto as Exhibit C. I personally reviewed that
production wnicaatyeiuded among other things:

a. Copies excel spreadsheets titled “Claimant logs” or
“Williamson-Pohl Master List” that identify hundreds of
BP -élients (sometimes by name, address, telephone
eee and email) and their estimated claim amount.

be Service agreements, operating agreements, “public

S relations consulting agreements,” “Public Relations
Amendment” or other contracts or agreements between
Pohl and Scott Walker, Kirk Ladner and Steve Seymour,
or their respective companies, including Precision, related
to the BP claims or auto accident cases.
1 This term refers to the Mississippi lawsuit filed against Pohl, Case No. 1:14cv381-KS-JCG.
3

c. Invoices from Precision addressed to Pohl related to the BP
claims or auto accident cases.

d. Emails communications between Pohl and Walker, Ladner
or Seymour related to the BP claims or auto accident cases.

e. Attorney-client contracts between Pohl and BP claimants\\_
or auto accident claimants. EN

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f. Marketing information related to Pohl, such ag, thn
brochures and advertisements, directed towards BP
claimants or auto accident victims. &

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g. Communications and financial informatién) reflecting
payments Pohl made to Walker, Ladner_6g Seymour or
their respective entities, including Precigion.

h. Financial information and exper > ons reflecting
attorney’s fees paid to Pohl and iamson from the BP
litigation. &

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i. Financial information and Rank records from Precision
reflecting payments Precis n made to its workers in
relation to the BP claims auto accident cases.

j. Emails and communieations between Pohl and his clients
or Pohl and thirds Lies concerning or relating to the BP
claims or auto ent cases.

k. “Operating Agreements” or “Distribution Agreements”
between Py¥egision and Magdalena Santana, Florian (Jay)
Santan en Talley related to their work for Precision.
t3 SS ° ” . . . .

l. BP.Settlement Claimant Forms” identifying BP clients

ith potential claims and their contact information, and
racts between BP claimants and the “BP Claim
ssistance Group.”

m. Contracts or agreements relating to “Helping Hands
Group, LLC” or “GM Settlement Verification Team” or
“Helping Hands Financing, LLC” with identifying client
information.

n. Attorney-client contracts for the Liberis Law Firm.

4

11. Inthis lawsuit, Pohl has served Lance Kassab and the Firm (“Kassab”)
with written discovery. The requests for production ask Kassab to
produce “Pohl Information” he has received, regardless of source,
between time periods beginning April 2012 to January 2021.
Interrogatories Nos. 1-3 ask Kassab to identify each contract or
document bearing Pohl’s name, letterhead, or logo, or contain on
Information” that “was or is” in Kassab’s possession and ide a
description of the material, the date it was sequired the date
possession was terminated, and the “identity of each per urrently
having possession or control over each such document.? Interrogatory
No. 9 asks Kassab to identify all “Pohl Information’ that Kassab
“obtained exclusively from or through the public ds involved in
the Mississippi Litigation.” The discovery defi the term “Pohl
Information” to include “information that concerfi{s] and/or identif[ies]
any past or current clients and/or prospective clients of Pohl” as well
as “all documents and information that inated from Pohl and
concern matters related to the British Petipleam Deepwater Horizon
oil spill and to General Motors ignitionS/and rollovers.”

12. Given the information Kassab received related to Pohl in the Barratry
Litigation, the discovery reaueets are over broad and unduly
burdensome. As drafted, the ret ists require Kassab to re-produce to
Pohl the thousands of docu s that Kassab received from Pohl in
the Barratry Litigation, whether in response to discovery in that case
or 1n response to Kassab’grequest for the client files. Additionally, the
requests require Kas produce information that he received from
his clients relating ‘oon Staff at my office have had to hundreds of
pages of documentsfrom hundreds of client files in the Barratry
Litigation and filter confidential or privileged information such as
Kassab’s com {uhications with his clients or co-counsel in that
litigation an@ gttorney work product.

13. Worse, tH@ Riscovery requires Kassab to identify in response to the
inter ories every document bearing Pohl’s name or letterhead,
desc the material, and to state the date it is was acquired. I
estimate that it would take me, as counsel for Kassab, more than 405
hous of time to undertake that task. At a rate of $450 per hour, this
would be a cost of $182,250 worth of time.

14. That estimate is based on my knowledge of the voluminous materials
that were provided to Kassab in the Barratry Litigation as well as the
following. There are more than 400 electronic or hardcopy client files
for the Brumfield and Gandy plaintiffs, each containing information

5

related to Pohl. If I spent 15 minutes reviewing each file and
identifying and transcribing responsive materials, I could complete
four files an hour. It would therefore take me more than 100 hours to
complete that task. In addition to the client files, Kassab received
thousands of pages of document production. For instance, in the
Cheatham case, more than 61,000 pages of documents were produced
in addition to the 6,000 plus pages of documents produced recast to
the Mississippi Litigation. That does not include the production rom
the Berry case, which was also voluminous. Even if I wenable to
review and transcribe responsive information at a rate of 0 pages
an hour, it would take me approximately 305 hours to.¢omplete that
task. &
°@

15. Nonetheless, Kassab has responded to Pohl’s whitten discovery and
has produced to Pohl twelve sets of productionGeginning in October
2021 and continuing into September 2022, containing more than
366,000 pages of responsive documents. A that production is the
actual documents and information conce g Precision’s clients that
the Runners solicited to hire Pohl thatKassab received from Favre.

Executed in Harris County, State of Texas,on the 15th day of September, 2022.
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«David Eric Kassab
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No. 459,062-401
IN RE: THE ESTATE OF § IN PROBATE COURT NO. 2
JIMMY GLENN WILLIAMSON §
(A/K/A JIMMY GLEN §
WILLIAMSON), §
§
DECEASED §
oo NS
§ OF HARRIS CO ,» TEXAS
ALICE MARIE GANDY, ET AL. §
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ESTATE OF JIMMY GLEN § NS
WILLIAMSON, DECEASED, § 2)
ET AL. § &
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es ee.
: AFFIDAVIT OF MICHA EL POHL
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BEFORE ME, the undersigne @Rhority, on this day personally appeared
Michael A. Pohl, who upon being ae orn, deposes and says:

1. My name is Michael Poh?) I am over eighteen years old, and I am fully
competent and able- make this affidavit. I make this affidavit in
connection with thé above-referenced case styled Alice Marie Gandy, et al.
v.. Estate of He) len Williamson, Deceased, et al., No. 459,062-401 in
Probate Court Nor? of Harris County, Texas (hereinafter, the “Lawsuit”), in
which I and Offices of Michael Pohl, PLLC are two of the named
Defendants m able to swear, as I do hereby swear, that all facts and
statemen{s contained in this affidavit are true and correct and within my
personal knowledge. ;

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2. I Qlawyer. I have done business as the Law Office of Michael A. Pohl. I
a e sole and managing member of the Law Office of Michael A. Pohl,

| C, which is a defendant in this lawsuit.

3S Beginning in mid-2012, I began representing persons and businesses with
claims arising from the British Petroleum Deepwater Horizon oil spill (“BP
oil spill claims”). I referred some of my clients and prospective clients with

i
EXHIBIT 2

BP oil spill claims, including certain plaintiffs in this lawsuit, to Jimmy
Wilbamson and/or Jimmy Williamson, P.C.

4. True and correct copies of ten (10) pages of business records from my law
practice and concerning certain of the plaintiffs in this lawsuit are attached
to this affidavit as Exhibit A. Those 10 pages of records are referred to as
the “Pohl/BP Claim Records.” I am the custodian of records for the Pohl/BP
Claim Records. The Pohl/BP Claim Records are memor. , reports,
records, or data compilations of acts, events, or conditions ma or near the

| time by, or from information transmitted by, a person with Inowledge The
Pohl/BP Claim Records are kept in the course of a reg rly conducted
business activity, my practice of law. It was the regdlst practice of that
| business activity to make the PohI/BP Claim Records:
Re)

5. As reflected in the PohY/BP Claim Records, the « date that each of the
following plaintiffs in this lawsuit signed an attorney-client fee agreement
with one or more of the Defendants in the Tgonuit to represent him/her in
connection with BP oil spill claims is n ter than the date contained
parenthetically next to each such Pain name below:

Plaintiff No. 23: Carlean skinner (February 14, 2013);
. Plaintiff No. 26: Charlee oney (February 5, 2013);
Plaintiff No. 30: ar Keys (February 7, 2013);
Plaintiff No. 69: _ Jeffery Shanks (September 19, 2012);
Plaintiff No. 98: Odessa Williams (February 26, 2013):
Plaintiff 00: Pamela Shanks (September 19, 2012); and
Plaintiff No. 130: Willie Keys (February 7, 2013).

6. The numbers ofthe plaintiffs identified in the immediately preceding two
paragraphs affidavit correspond to the numbers that identify them
in their mended petition in this lawsuit.

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* On the 10 pages of business records attached as Exhibit A, information concerning BP oil
spill clients and prospective clients who are not plaintiffs in this lawsuit has been redacted.
2
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FURTHER AFFIANT SAYETH NOT.
Michael Pohl 3 .
Nac
SUBSCRIBED AND SWORN TOpbefort, me on this \ a°) of Dest
MARY REX Notary P&blic ©)
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STARY 1D 10974013147 Ge
Hy COMMISSION EIRES JANUARY 12, 2019 ©
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POHL/GANDY 001-000105

(99/20/2012 89:52 6817356407 WAVNESRORO Lrprary LOL MACHR saris
O-Yo-t d
CONTRACT OF EMPLOYMENT
Jimmy Williamson, P.C. NS
Attorney at Law @
4310 Yoakum Boulevard )
Houston, Texas 77006 Ww
(713) 223-3330 oG
www. jimmywilliamson.com eS
Michael A, Pohl &
Attorney at Law
1114 Lashbrook Driyg
, Houston, Texas 77077
(713) 652-0180)
This Agreement is made between one) Shao NS (hereinafter
“Client’) and JIMMY WILLIAMSON, P.C., 4310 Yoakum Boulevard, Houston, Texas,
77008, 713-223-3330, and MICHAEL A. POHL, 1114 Lashbrook Drive, Houston, Texas i
77077, 713-652-0100 (hereinafter “Attomey"") to prosecute a-certain claim held by Cllent |
against: } Or | |
BP, PLC ORITS AFFILIATES OR ANY OTHER RESPONSIBLE PARTY !
{
in connection with the. following ators:
‘Monies due or clab rect connection with the Deepwater Horizon disaster
and oll spill occurrihig on April20, 2010 and the damages resulting therefrom,
inclading any claims available under the MDL 2178 {
onomie Claim Class Action Settlement. :
Attorney Is fully shored ous and prosecute same. No settlement shall be made by ‘
the Attorney a> t the Client's approval. |
Attomey fs hereby granted authority to prepare, sign and file all tegal instruments,
pleadi rafts, authorizations, and. papers as reasonably necessary to prosecute and
conclu is claim. Attorney's representation Is limited to the specific companies named,
and specific matters herein. Other attorneys may be engaged at Attorney's option.
Contract of Employment extends through the trial of this cause and the entry ofa final
| court judgment. Attorney will not have any duty to undertake post-judgment collection .
fforts or appeal unless and until there Is an agreement between Client and ‘the Attorney
to undertake same. Jimmy Williamson, P.C. and Michael A. Pohl are not specialized in,
nor do they. give, tax advice and they would recommend the retention of a Certified Public
Accountant (C:P.A.) or qualified tax lawyer with regard to any questions as to the taxability
of proceeds received pursuant to this agreement.
Pago | of 4
\
POHL/GANDY 001-000145

83/26/2812 69:52 6817356407 WAYNESBORO LIBRARY PAGE 93/18
in payment, Client does hereby assign and convey to Attorney a present and undivided
interest !n Client’s clalms set forth hereln, as a reasonable contingent fee for Attorney's
services. The Attorney's fee will be calculated on the total recovery. All sums are payable
at the office of Jimmy Willlamson, P.C., 4310 Yoakum Boulevard, Houston, Texas 77006.

25 % ofall payments made through fhe Class Action latins Process;
- 33413 %_if collection or settlement Is made outside of ie Class Action
Claims process,
&
COSTS ~S
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Client additionally agrees that Attomey is to be repald and reliqbutsed reasonable out-of-
pocket costs and expenses Attorney incurs in the specific p ution of Client's claim out
of Client’s recovery. If Attorney does not obtain for Gient any recovery, then the
Client will not pay any fees or costs or expenses. ®
| @
COMMON BENEFIT FEES AND EXPENSES
The Court ‘in the Deepwater Horizon MDL 247e gto and consolidated Limitatlon
proceedings may awatd Common Benefit_fees and expenses to Common Benefit
attorneys. If there isa Common Benefit Fe ‘or Cost award by the Court, any such award
to Attorney shal] not increase, or-reduce, Fees and Costs owed under the
Agreement. There is no credit or offset for any Common Benefit fees or costs
awarded. &©
‘or HER CLIENTS
Attorney represents other clignts who also have claims as a result of the Deepwater
Horizon oil spill. Having mdltiple cllents leads to. certain Issues regarding confidentiality.
Common Information, sich a for example, information relevant to what:caused the spill,
or the partlas respon@tly or the splll, or research applicable to an analysis of damages
under the spill, will be sHared with’all cllents. However, client specific information will be
Kept.confidential. fAttomey receives proprietary or secret information regarding a client
{for example, finaricial Information regarding a particular client not publicly available), then
the client has a igh? to insist that Attorney maintalns that confidence. Further, not all fees
are, identical. Other cllents who hired Attorney at a prior date (or who sigh up after this
date) may flave been charged a different percentage, which may be lower, or higher, than
the fees'sé (forth hereIn. Also, when‘a specific client settles thelr clalm, then that specific
client has fhe right to insist that the monetary settlement amount not be shared with other
clle tof e Attorney. BY SIGNING THE CONTRACT OF EMPLOYMENT, THE CLIENT
CONSENTS TO THIS PROVISION.
|
S GENERAL
Attorney cannot warrant or guarantee the outcome of the case and Attorney has not
: represented to the Client that the Cllent will recover all or any of the funds desired.
Page 2 of 4
POHL/GANDY 001-000146

93/28/2812 83:52 6017356487 WAYNESBORO LIBRARY PAGE 84/18

This Agreement shall be construed under and In accordance with the laws of the State of

Texas. To the extent this Contract is subject to the laws, rules and/or regulations for a
particular jurisdiction, thls Contract will bo interpreted to comply with the laws, rules and/or
regulations of that jurisdiction.

This Agreement/Contract of Employment constitutes the sole and only agre t of the
patties hereto and supersedes any prior understandings or written or o greement
between the partles. This Agreement shall be binding upon and Inure t eneflt of the
parties hereto and their respective heirs, executors, administrators, legal yepresentative,
successors and assigns, In case any one or more of the Ho Ow toccatie in this
Agreement shail for any reason be. held to be invalid, illegal, or.dinenforceable in any
respect, such invalldity, Uegality, or unenforceabllity shall not Gat any other provision
thereof and this Agreement shail be construed as If such invalidyilegal, or unenforceable
provision had never been contained herein. &

Client is hereby put on notice that the State Batof Texas Investigates and
prosecutes professional misconduct committed b fdxas attorneys. Although not
every complaint against or dispute with a lawyer involves professional misconduct,

the State Bar's Office of General Counsel will previde you with information about

how to file a complaint. Please call 1-80-98 2.1800 toll-free for more Information,

os 5 eS) | |
EXECUTED on this LA _dayot____ Sep , 2012. ;
Ae Snds eo ACCEPTED:
CLIENT SIGNATURE w
By:
Lr EN For Jimmy Willlamson, P.C.
| Client Printed Name @
ERE ETAT 6 WUE ee a)
—_————— By
Social Security NaJOr 1 ax ID # For Michaet A. Poht
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Street Address

CitysState & ZIp
a Numbers

pate of cir:

Page 3 of 4
POHL/GANDY 001-000147

Q9/28/2012 89:52 6817356407 WIAYNESBORO LIBRARY PAGE 95/18
POWER OF ATTORNEY
Cllent grants a Power of Attorney to Jimmy Williamson, P.C. and its attomeys fo act on
Client's behalf in all matters arising out the Deepwater Horizon Incident and to file and
pursue all claims of Client arising therefrom Including through any claims or settlement
process, settlement, mediation, suit, trial and/or appeal; notwithstanding same, Glen alone
determines whether to accept any settlement offer. @
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CLIENT NAME: p amela Shanks &
py: “(Pima Shautea> &
Sig ature °@
TITLE: Kronis radios Le fomela Shedtin , Una ©)
DATE: 4 | 19] 2.0}2 | @
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POHL/GANDY 001-000148

89/28/2812 93:52 6017356487 WIAYNESBORO LIBRARY PAGE 06/18
_ BP SETTLEMENT/ CLAIMANT FORM
ATTORNEYS, JIMMY WILLIAMSON & MICHAEL A, POHL
paTe__DAILS) Joa Ss
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Claim Area Zone: ee © eee . &
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Approx. Amt of Loss: __ Bg5,000 , eS
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Business Name @
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Client Printed Name 6)
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Telephone numbers“ CEL XMQUS INUIMUSLS _
Email: - ee
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So Oli Use Only Below this line:
Initials
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SHEPHERD PREWETT Puc
Billy Shepherd
June 28, 2017
Via Hand-Delivery/RRR NS
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David Eric Kassab ©
The Kassab Law Firm &
1420 Alabama Street S
Houston, Texas 77004 5 eS
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Re: Mark Kentrell Cheatham, Sr. and Luella Miller &
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Dear Mr. Kassab: &

I write in response to your June 21, 2017 Jette addressed to Michael A. Pohl
in care of me. I have enclosed Mr. Pohl’s ee relating to the referenced persons.
Information on certain of the documente\y garding unrelated clients has been
redacted. S

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770 South Post Oak lane Suite 4220 Houston, Texos 77056 T 713.955.4440 F 1.713.766.6542 www.spcounsel.com

SHEPHERD PREWETT pic
Billy Shepherd
June 26, 2017 NG
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or
Via Facimile & Email Ww
David Eric Kassab “GO
The Kassab Law Firm XG
. 1420 Alabama Street 2B)
Houston, Texas 77004 ©)
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Re: Mae Berry, Individually and as Representative of the Estate of Johnny Berry
Dear Mr. Kassab: ss
I write in response to your June 21, 20)@Netter addressed to Michael A. Pohl in
care of me. Mr. Pohl did not represent Ma ry, and has no client file concerning
her. However, I have enclosed documents ia Mr, Pohl’s possession, custody, or control
that reference Ms. Berry. LS 7
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770 South Post Oak Lane Suite 420 Houston, Texas 77056 T 713.955.4440 F 1.713.766.6542 www.spcounsel.com

HELPING
The Helping Hands Group, LLC
1 Hancock Plaza * 2510 14” Street Suite. 1200 * Gulfport, Mississippi * ae
‘ (228) 206-1996(p) * (228) 284-1677(f) Ke
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Www.thehelpinchandseroup.org (Website). ©
[hereby retain you to preserve my evidence, conduct a full scene investigation, exanaine the involved products.
for possible defects, and identify and interview witnesses in connection with my motor vehicle accident.
THERE WILL BE NO CHARGE IF THERE IS NO RECOVERS.
In payment of the services to be rendered, I agree to pay you from any recovery I may receive on an hourly fee
of $400 per hour, so long as the total fee does not exceed 32% of th ount rendered for me based on your
efforts. In performance of your services, you may hire such indepen experts or attorneys as you deem.
necessary, so long the total fee does not exceed the maximum ees ated above. If you have a case and suit is
filed on your behalf, the total fee increases to 40%. H)
The Helping Hands Group, LLC will advance funds payin and reasonable expenses of the claims which
shall be repaid out of the Client’s share of tenes he Helping Hands Group’s fee shall be calculated _
before deduction of costs and expenses: w
AGREED: Al § KOA Date: ¥ /2O}/¢
Print Name: Va ? Ne) a Ge ae Vv
7 i © L,
Address: _’ 30 L Ae Li
| (Chey liy el. Mo Bee
©
Phone: cele BG / = & Cay
| Email: ee
Date of Accident: &f A lef
Vehicle: Le wd p Milenll

; HELPING HANDS FINANCING, LLC.
FUNDING AGREEMENT
This Funding Agreement is made on the date below stated between Claimant and Helping
Hands Financing (“Funding Agent”) NS
Claimant and/or Claimants family was involved in'an accident described as? oy
Occurring on: s ind is asserting ale to recovery.
Claimant urgently requires financial assistance and has. no.other lteevative mean to meet
such needs. Funding Agent is taking a high degree of risk and ‘Claimant understands that
Funding Agent expects to make a profit from this funding. &
Funding Agent agrees that it will be repaid only if as nto ena recovery is funded.
| IF THERE IS NO RECOVERY, CLAIMANT HAS NO oBLiaTioN TO REPAY THIS DEBT.
| In consideration of the amount(s) set forth on hoon el together:with the application
- fee for each funding of $50.00 (fifty and SN rs) | hereby agree to repay such amounts
ae ». . frommy share of the proceeds of my case. if 2 Is no recovery, | owe nothing: | realize that if
cee “>. «my recovery is small, the above funding(s). qual or excéed my portion of the recovery.
This agreement must be approved aN ttorney prosecuting the case. Claimant's Attorney
shall be bound to honor the terms on(thi agreement.
Repayment shall be delivered to: Funding Agent at the address stated below unless. changed
with notice to Claimant: BS
{ hereby grant Funding ram) lien on the proceeds of my case to the extend of all funding here
: under, Before | incur a her or further liens on my case, | will, at the option of Funding Agent
pay off the indebted, created hereunder.
if Funding Avent (ao to initiate a collection action against me hereunder, 1 understand that I will
be obligated tp Bey Funding Agent’s fees and expenses of collection,
SS
Funding oe gent ‘shall have no say whatsoever in any court:action which Claimant’s.attorney may
intatn Been.
ein to drop my case and my Attorney believes my case is meritorious and economically
justifiable, then | must repay the indebtedness hereby created.

if any provision of this agreement is'deemed unenforceable, it shall not affect the validity of
any other parts on this. agreement. This agreement and the agreement with my Attorney
constitute the entire agreement of the parties.
Any controversy related hereto that cannot be resolved by mutual agreement shall be
submitted to final and binding arbitration administrated by the American Arbitration
Association in accordance with the Commercial Arbitration Rules and the ore ules for
Emergency Measures of Protection. The Federal Arbitration Act shall be applicable) any such
controversy and no state law shall apply: BW
% ce) .
Thave read this entire agreement. | have been:advised that'l should requ gabe tunding only as
= dast resource and only if absolutely necessary. | have the right to have ts Agreement reviewed
by an Attorney before | sign. 6
The Funding Schedule is made apart hereof forall purposes. &
AGREED AND ager
° — ‘signature .
KC Printed Name
State of AG a — oe
ral Sf s °
County of Veal Hiei LE A
Date: B12 (Uy
Address: ; |
1200 bere, Lert,
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aS eel
Helping Hands Financing, LLC
P.O. Box 1262
Montgomery, TX 77316

HELPING HANOS FINANCING, LLC.
FUNDIKG SCHEDULE :
Claimant/borrower:__X_ 7 VE) aad Z 5 ey Ty @
| ; {Name} SO .
Case Identity: Hele fe theat Bnol{etA_Y LO SUT. SIG why p 7
The Funding Agreement signed by me fs adopted by reference hi < By my signature below |
acknowledge the request for and receipt of the Case funding designated be low.
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On 8/21/14, 3:43 PM, ""Michael Pohl"" <pohlatty@me.com> wrote:
>Thanks. &
>Can family ask for photos of seat belt bruising. The bruising will appear about 24-g8,RoUrs after incident.
>
>Sent from my iPhone 5 &
>> On Aug 21, 2014, at 1:27 PM, Scott Walker <swalker@maxwell-walker.cém> wrote:
- S
>> Edgar, ®
>> oP
>> Attached is the signed Helping Hands Group, LLC contract and the Helping Hands Financing, LLC funding
agreement. S
>>
| >> Coach Ken will be getting the Pohl contract signed this afternoon.
>> ; \
>> We are working to get the accident report now. Unofficially the Deputy Coroner has confirmed that
Johnny Berry was wearing his seatbelt. Ww
>> &
>> | will mail the originals to the ranch. ©
>>
>> Thanks. 9 &
S
, >> -Scott &
>> <8.20.14 Berry Case (MS).pdf> O
IN
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1

From: Scott Walker <swalker@maxwell-walker.com>
Date: Thursday, August 28, 2014 at 3:51 PM NS |

To: Edgar Jaimes <edgarsroom@gmail.com> NZ)

Cc: Mike Pohl <pohlatty@mac.com> ©

Subject: Re: Berry &

| S
Edgar, 5 eS
: S
Attached is what I have in my file on the Berry Case (MS). a
Thanks! . GP .
-Scott.
&
On Thu, Aug 28, 2014 at 2:31 PM, Edgar Jaimes <edescom@smsil.con> wrote:
_ Scott,
| We have to reject this case, but | have not seen a cosSSeor this family, can you send me the contract and

_ the information of that case? Thank you. > =

_ Edgar. ~\

<8.20.14 Berry Case (MS).pdf> ©

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SHEPHERD PREWETT puic
Stephen R. Bailey sbailey@spcounsel.com
April 13, 2018

Mr. David Kassab Via Hand-Delivery/RRR

Kassab Law Firm cS

1214 Elgin Street NZ)

Houston, Texas 77004 ©

XK,

Re: Cause No. 2017-37567, Mae Berry, Individually and a Representative of the
Estate of Johnny Berry, Deceased v. Michael A. Pont et al., in the 113th
Judicial District Court of Harris County, Texas SS

Dear Mr. Kassab: &

Per your request of April 6, 2018, enclose please find two CDs with

documents labeled S
1. POHL/BERRY(Butts)—003—00000 {through POHL/BERRY (Butts)—003—

000002; ow
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2. and POHL/BERRY(Speck)-(04-000001 through POHL/BERRY(Speck)—
004—000137. KR
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It appears from the enclosed POHL/BERRY (Butts) documents that Mr. Pohl
did not represent Raymond Bu ts. Information regarding other clients has been
redacted. If you have any questions, please let me know.
. Very truly-yours,
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Stephen R. Bailey sbailey@spcounsel.com
April 13, 2018

Mr. David Kassab Via Hand-Delivery/RRR

Kassab Law Firm Ne

1214 Elgin Street RQ

Houston, Texas 77004 oy

Re: Cause No. 2017-41110; Mark Kenirell Cheatham, Sr., l. v. Michael A.

Pohl, et al., in the 55t Judicial District Court of Harrig.€ nty, Texas

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Dear Mr. Kassab: Q)
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Per your request of April 4, 2018, enclosed plegse find a CD with documents
labeled POHL/CHEATHAM (Reese)—003-—00000 (through POHL/CHEATHAM
(Reese)—003—000234.

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KR tephen R. Bailey
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JUL 10 2018
SHEPHERD PREWETT puc CEIVED
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July 10, 2018 ~~
Mr. Lance Kassab Via Hand-Delivery/RRR
Mr. David Kassab Gi
Kassab Law Firm j KASSA b
1214 Elgin Street & —
Houston, Texas 77004 &
JO-O+-2618
Re: Brumfield, et al v. Pohl,.et al;
Gandy, et al. v. Pohl, et al; 6)
Cheatham, et al v. Pohl, et al; & RECEIVED
Berry, et al v. Pohl, et al. ~
Dear Lance & David: Ww
In supplementation of disepery in the referenced matters, I have enclosed a
thumb drive containing docu $s Bates-labeled POHL/CHEATHAM-004-000001
through POHL/CHEATHAM- -006937. The documents include depositions and
deposition exhibits from th ississippi federal court case, hearing transcripts and
hearing exhibits from th ississippi federal court case, party affidavits from the
Mississippi federal cour case, and other documents. Note that, in the transcript of
the April 20, 2017 silent conference conducted by the Hon. Keith Starrett, the
settlement amounts a e been redacted. The parties agreed that the settlement
amounts would be\confidential, and Judge Starrett approved the agreement and
settlement, eve] ering that certain subsequent filings concerning the settlement
be filed under gen. ;
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38,2022-09-15,RSP,Pohl,Pohl’s response to MTA,"Plaintiffs' Response to the Kassab Defendants' Motion to Abate Trial Setting — opposes abatement of four-year-old case on eve of preferential trial setting, arguing future damages do not justify abatement and unlawful acts defense has been preempted","Response filed September 15, 2022 by Jean C. Frizzell of Reynolds Frizzell LLP opposing Kassab's motion to abate the trial setting in a four-year-old case with a preferential trial setting. Incorporates by reference Pohl's September 12, 2022 responses to defendants' summary judgment motions.",MTA-1,N/A,Phase 3,2022-09-15_RSP_Pohl-Response-to-Kassab-MTA-Trial_FILED.pdf,Deny Kassab's Motion to Abate Trial Setting and allow the case to proceed to trial during its current preferential trial setting,"9/15/2022 5:08 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68313271
By: Deandra Mosley
Filed: 9/15/2022 5:08 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE § IN THE DISTRICT COURT OF
OF MICHAEL A. POHL, PLLC, §
Plaintiffs, §
v. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § 189TH JUDICIAL DISTRICT
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, § r
P.C. d/b/a THE KASSAB LAW FIRM; TINA §
NICHOLSON and BAKER NICHOLSON, LLP §
d/b/a BAKER NICHOLSON LAW FIRM; and § s
DOUGLAS MONTAGUE III and MONTAGUE §
PITTMAN & VARNADO, P.A., § g
Defendants. § r HARRIS COUNTY, TEXAS
PLAINTIFFS’ RESPONSE TO THE KASSAB DEFENDANTS’
MOTION TO ABATEy TRIAL SETTING
Plaintiffs Michael Pohl and Law Officaes of Michael A. Pohl (collectively, “Pohl”) file this
this response to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.’s
(collectively, “Kassab”) Motion to Abeate Trial Setting (the “Motion to Abate”). Pohl requests that
the Court deny Kassab’s Motion fto Abate and allow this four-year-old case to be tried during its
current preferential trial settiyng—a trial setting that Kassab appears to be trying to avoid.
Kassab argues Cthat this case should be abated for two reasons: (1) Pohl is still incurring
damages; and (2) the outcome of a separate lawsuit—the Cheatham case—will impact Kassab’s
illegality (unlafwfful acts doctrine) defense. Neither argument has merit. First, the existence of
future daUmages does not justify abatement. For Pohl to recover future damages, he must satisfy
the ordinary standard of showing to the jury that he will sustain those damages with reasonable
probability. Second, Kassab’s unlawful acts defense has been preempted and does not apply—a
defense Kassab acknowledged in another case is “no longer good law.”
I. BACKGROUND1
Kassab’s campaign of lawsuits and bar grievances against Pohl can only be described as a
failure. Kassab facilitated the filing of seven separate grievances with the Texas State Bar and
four lawsuits—all based on Kassab’s theory that Pohl engaged in alleged barrkatrous conduct.
Every grievance failed, often with a finding that Pohl’s alleged conduct ldid not constitute
professional misconduct or a violation of the Texas Disciplinary Rules ocf Professional Conduct.
Two of the lawsuits resulted in a final judgment on the merits in favosr of Pohl. In a third lawsuit,
Pohl settled the lawsuit—not for the “substantial sum of money” alleged by Kassab—but instead
for an amount less than the cost of defense. It is the fourth case, the Cheatham case, that Kassab’s
Motion to Abate is concerned with.
It is worth noting that although the Cheatham case is pending, the allegations asserted in
that case are without merit. Like Kassab’s recycled barratry allegations in this lawsuit, many of
the allegations of supposed barratry by Pohl in Cheatham were the subject of a grievance that
Kassab helped file. The Office of ethe Chief Disciplinary Counsel for the State Bar of Texas
dismissed the grievance after it hafd “examined the Grievance and determined that the information
alleged does not demonstrayte Professional Misconduct or a Disability.”2 Kassab appealed the
dismissal of the CheathCam grievance, and The Board of Disciplinary Appeals (which is appointed
by the Texas Supreame Court) determined “that the conduct you described in the grievance does
not violate the Tfexas Disciplinary Rules of Professional Conduct.”3
WUhen the Office of the Chief Disciplinary Counsel found that allegations involved in the
Cheatham case did not “demonstrate Professional Misconduct,” the Cheatham case was on appeal
1 To avoid duplicative recitations of the factual background of this case, to the extent necessary, Pohl refers the Court
to the factual background included in his September 12, 2022 responses to Defendants’ summary judgment motions.
2 See Feb. 24, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, attached as Exhibit 1.
3 See May 14, 2020 Letter from The Board of Disciplinary Appeals, attached as Exhibit 2.
following a final judgment in favor of Pohl.4 Recently, the court of appeals reversed the trial court,
not because it found that barratry occurred, but because it believed the trial court erred in granting
summary judgment on the basis of limitations and whether the barratry statute was impermissibly
applied extraterritorially. See Cheatham, 2022 WL 3720139, at *9–10. Pohl is coknfident that this
case—which involves “[t]wo sets of wrongful-death claimants” out of the “l10,000 or more of
Pohl’s clients/prospective clients” whose information defendants cmisappropriated—will
ultimately be resolved in Pohl’s favor. Id. at *1; Pohl’s First Amendesd Petition ¶ 21. Regardless,
the outcome of the Cheatham case is not relevant to Pohl’s claimss or entitlement to damages. The
relevance of that case is that the fees and expenses Pohl incurs in defending it are a component of
Pohl’s actual damages in this lawsuit.
II. DISyCUSSION
Kassab presents two justifications for why abatement is necessary. First, he suggests that
the fact that Pohl may continue to suffer damages in connection with defending the Cheatham case
means the Court should wait to resolvee Pohl’s claims. Second, Kassab argues that the Cheatham
case is relevant to his “illegality”f defense. Neither argument has merit. Future damages are an
entirely normal occurrence thyat does not justify abatement of a case. Kassab’s affirmative defenses
are either preempted orC have little relevance. Regardless, they do not justify Kassab’s request for
abatement on the evae of trial.
A. The fpotential existence of future damages does not support abatement.
As the Court is surely familiar with, cases frequently arise and are tried despite the fact that
a party may not have suffered the full extent of the damages they will likely incur. In fact, Texas
4 See Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *4 (Tex. App.—Houston [1st Dist.] Aug. 30,
2022, no pet. h.) (noting the trial court entered a “final and appealable” order in Pohl’s favor); see also Notices of
Appeal filed on Jan. 15 & 17, 2022 in Cause No. 2017-41110, Mark K Cheatham, Sr., et al, v. Michael A. Pohl, et al.,
in the 55th Judicial District Court of Harris County, Texas, attached as Exhibit 3.
law often requires an injured party to bring their claims even when “all resulting damages have
not yet occurred.” See Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 834 (Tex. 2018)
(citation omitted) (discussing accrual of claims in the context of a statute of limitations). If the
fact that a party will continue to suffer damages required abating a case, there wokuld not be trials
in cases involving damages for lost profits, damages for loss of earning capaclity, or damages for
future medical expenses. Those cases go to trial, and the result should bec no different here.
The concept of future, and thus necessarily uncertain, damagess is not novel. In fact, there
is a standard for how a jury can analyze these types of damagess. See, e.g., GTE Mobilnet of S.
Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 617 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied) (discussing how a jury has discretion to award future damages that a party “in reasonable
probability will sustain in the future”). Given the existence of this standard, the fact that a case
involves future damages that are uncertain is naot sufficient to show that abatement is proper.
Kassab’s primary case to support his theory that Pohl’s future damages justify an abatement
is In re Tex. Collegiate Baseball Leageue, Ltd., 367 S.W.3d 462 (Tex. App.—Fort Worth 2012, no
pet.). See Motion to Abate, at f3–4 (citing Collegiate Baseball League). However, the facts
underlying that case are entiyrely dissimilar to those of this case, and the fact that abatement was
proper in that case doeCs not provide any useful guidance in this case.
Collegiate Baseball League involved a lawyer who was sued by two clients over an alleged
settlement agrefefment. 367 S.W.3d 462, 464 (Tex. App.—Fort Worth 2012, no pet.). The lawyer
asserted Ua counterclaim for recovery of his legal fees, and his clients subsequently asserted
malpractice claims against him based on three separate lawsuits that were still pending. Id. The
issue before the appellate court was over whether abatement or severance of the malpractice claims
was proper, and whether the attorneys’ fees claim should also be subject to any abatement or
severance. Id. at 465.
To understand the court’s decision in Collegiate Baseball League, it is important to know
that the parties did not dispute that the malpractice claims were premature. k Id. The claim
for fees brought by the lawyer involved fees he charged in connection withl the three pending
cases—the same three cases that were at issue in the clients’ malpractice cclaims against the lawyer.
Id. at 465–66. Given this, the court found that “[s]everance or sepsarate trials are therefore not
appropriate because the fee claim and the malpractice claims insvolve the same facts and issues.”
Id. at 467. The court also found abatement was appropriate, because severing the fees claim could
cause certain parties “to simultaneously take inconsistent litigation positions.” Id. at 467. It is in
this context that the court notes that “the malpractice allegations and damage theories will remain
fluid until the [other] litigations conclude.” Ida.
The issues present in the Collegiate Baseball League case are not analogous to those before
the Court. The Court is not faced wieth a situation where severance or abatement is required, and
it then must decide the scope of thfe severance or abatement. Nor does the Cheatham case and this
lawsuit involve the same facyts and issues. The shared issue is the far more common occurrence
that the full extent of PCohl’s damages has not been incurred at this time. The Court should deny
Kassab’s Motion to Abate, as the existence of future damages does not justify abatement.
B. Kasfsfab’s defense has been preempted and does not entitle him to abatement.
KUassab’s argues that under his “illegality” (unlawful acts doctrine) defense, “[i]f the
Cheatham plaintiffs establish these barratry claims against Pohl, then Pohl cannot be permitted to
recover any damages arising from his unlawful conduct.” Motion to Abate at 4.5 This is not
5 Kassab also mentions his “unclean hands” defense once, without any explanation. Motion to Abate at 2. He simply
states that the outcome of the Cheatham case will establish his “unclean hands” defense and as a result, “Pohl would
correct for multiple reasons.6 First, Kassab’s defense is not valid, as it was preempted years ago
by Texas’s proportionate responsibility statute. Second, even if the unlawful acts doctrine were
available as a defense, Kassab has not shown, or even alleged, how Pohl’s damages or injury in
this lawsuit were proximately caused by Pohl’s alleged unlawful conduct. Regkardless of any
unproven barratrous conduct, Pohl is entitled to recover damages that resultedl from defendants’
conversion and misappropriation of Pohl’s confidential information and fciles.
First, Kassab failed to disclose on-point authority from the Tsexas Supreme Court stating
that Kassab’s defense has been statutorily preempted. The sole scase Kassab cites for his unlawful
acts or illegality defense is Andrew Shebay & Co., P.L.L.C. v. Bishop, 429 S.W.3d 644 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied). Kassab’s “illegality” defense is also known as the
“unlawful acts doctrine.”7 However, after the court’s ruling in Bishop, the Texas Supreme Court
ruled that “[t]he plain language of section 33.a003 clearly indicates that the common law unlawful
acts doctrine is no longer a viable defense.” Dugger, 408 S.W.3d at 832.
Kassab—and lead counsel fore the Kassab law firm, David Kassab—should be aware that
Kassab’s asserted defense is no flonger viable, as demonstrated by the following argument they
made in a different case: y
be entitled to no damiages from Kassab.” Id. While the lack of explanation or argument from Kassab makes it
unnecessary to address this issue more fully, it is worth pointing out that “unclean hands” is a defense to equitable
relief that applies fwhen a party engaged in wrongful conduct that harmed the person raising the unclean hands defense.
See In re Nolle, 265 S.W.3d 487, 494 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Damages are not equitable
relief, and Kassab has not alleged that Pohl’s alleged conduct in the Cheatham case has harmed him. Thus, Kassab’s
“unclean hands” defense is not applicable and cannot support abatement of this case.
6 Kassab also does not explain how the outcome, as opposed to the facts, of the Cheatham case will impact this case.
It is not clear how any outcome in that case, which involves different parties, could have a preclusive effect in this
lawsuit. Furthermore, Kassab does not explain what further factual development will occur in the Cheatham case that
is necessary or impactful to the issues in this case.
7 Compare Dugger v. Arredondo, 408 S.W.3d 825, 829 (Tex. 2013) (stating that “this Court recognized the common
law unlawful acts doctrine as barring a plaintiff from recovering damages if it could be shown that, at the time of
injury, the plaintiff was engaged in an illegal act that contributed to the injury”), with Bishop, 429 S.W.3d at 648–49
(describing the defense, cited by Kassab, as providing that if “at the time of the plaintiff’s injury, the plaintiff was
engaged in an illegal act, and that act contributed to the injury, he may not recover”).
[T]he Texas Supreme Court has reiterated that “the comparative responsibility
scheme under Chapter 33 of the Texas Civil Practice and Remedies Code abrogated
the unlawful acts doctrine.” Boerjan v. Rodriguez, 2014 Tex. LEXIS 531 at *7
(Tex. 2014)(citing Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013)). Thus, the
illegal acts doctrine may not be used as a ground to support summary judgment
even if it is recast as a public policy argument. Id. (“Applying Dugger to this case,
the unlawful acts doctrine cannot provide the basis for summary judgmentk.”).8
Kassab was correct then. The unlawful acts doctrine is no longer a valid defenlse.
Second, even if Kassab’s use of the unlawful acts doctrine werec not preempted, Kassab
would still have to show that Pohl’s alleged barratry was “a prosximate cause of the injury
complained of in order to bar [Pohl’s] recovery.” See Arredondo v. Dugger, 347 S.W.3d 757,
761–62 (Tex. App.—Dallas 2011), aff’d on other grounds, 408 S.W.3d 825 (Tex. 2013). Even if
Pohl had committed barratry, it did not proximately cause Pohl’s injuries giving rise to his claims
here—defendants’ conversion and misappropriation of Pohl’s confidential and proprietary
information. Kassab’s unsupported assertions that the outcome of the Cheatham case matters or
impacts Pohl’s claims in this case should be rejected, and the Court should deny the Motion to
Abate. e
fIII. CONCLUSION
Plaintiffs Michael Poyhl and Law Offices of Michael A. Pohl respectfully request that the
Court deny Kassab’s Motion to Abate for the reasons set forth herein. Regardless of whether Pohl
is likely to incur fuarther damages in connection with the Cheatham case, and regardless of the
outcome of thatf case, Pohl is entitled to a trial on the merits of his claims. Abatement is neither
required nor appropriate in these circumstances.
8 See Plaintiffs’ Objections and Response to Defendants’ Supplemental Motion for Summary Judgment, dated Sept.
15, 2014, in Cause No. 2011-75990, William Beatty, et al, v. Jimmy Van Knighton, II, et al., in the 133rd Judicial
District Court of Harris County, Texas (a copy of this briefing is attached as Exhibit 4).
Dated: September 15, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct coply of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 15th day of September, 2022.
o /s/ Jean C. Frizzell
e Jean C. Frizzell
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.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68313271 r
Status as of 9/16/2022 8:04 AM CST
Case Contacts
Name BarNumber Email TimsestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r9/15/2022 5:08:42 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/15/2022 5:08:42 PM SENT
Andrew J. Sarne asarne@krcl.com  9/15/2022 5:08:42 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/15/2022 5:08:42 PM SENT
Kathryn Laflin KLaflin@KRCL.com l 9/15/2022 5:08:42 PM SENT
Murray JFogler mfogler@foglerbrar.coam 9/15/2022 5:08:42 PM SENT
Murray Fogler mfogler@fbfog.comM 9/15/2022 5:08:42 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/15/2022 5:08:42 PM SENT
Todd Taylor ttaylor@jandeflaw.com 9/15/2022 5:08:42 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Harris Wells hwells@freynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/15/2022 5:08:42 PM SENT
Lawyer Wade lawyerwade@hotmail.com 9/15/2022 5:08:42 PM SENT
Scott M.Favre oscott@favrepa.com 9/15/2022 5:08:42 PM SENT
Andrea Mendez Candrea@kassab.law 9/15/2022 5:08:42 PM SENT
Lance Kassab  lance@kassab.law 9/15/2022 5:08:42 PM SENT
David Kassab david@kassab.law 9/15/2022 5:08:42 PM SENT
Nicholas Pierce nicholas@kassab.law 9/15/2022 5:08:42 PM SENT
Dale Jefferson 10f607900 jefferson@mdjwlaw.com 9/15/2022 5:08:42 PM SENT
Raul Herman Suazo n24003021 suazo@mdjwlaw.com 9/15/2022 5:08:42 PM SENT
Kevin Graham CainU24012371 cain@mdjwlaw.com 9/15/2022 5:08:42 PM SENT
D Kassab david@kassab.law 9/15/2022 5:08:42 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/15/2022 5:08:42 PM SENT
L Kassab lance@kassab.law 9/15/2022 5:08:42 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/15/2022 5:08:42 PM SENT"
33,2022-09-12,DECL,Kassab,Lance Kassab’s declaration,"Declaration of Lance Christopher Kassab in support of Traditional Motion for Summary Judgment and Response to Pohl's MSJ — sworn testimony under penalty of perjury establishing Kassab's professional background, the joint venture with Montague and Nicholson, the source of client information from Precision Marketing, the four barratry lawsuits and their outcomes, and assertion of work product and attorney-client privilege over communications","Phase 3 evidentiary filing supporting Kassab's MSJ (Filing #30) and his Response to Pohl's No-Evidence MSJ (Filing #34). This is a sworn declaration under penalty of perjury providing foundational facts for Kassab's immunity and justification defenses. Filed September 12, 2022.",MSJ-2,N/A,Phase 3,2022-09-12_DECL_Lance-Kassab-Declaration_FILED.pdf,,"9/12/2022 3:28:03 PM
Marilyn Burgess - District Clerk
Harris County
Envelope No: 68168171
By: LOPEZ, ASHLEY V
Filed: 9/12/2022 3:28:03 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
§
§
V. § OF HARRIS COUNTY, TEXAS
ae
SCOTT FAVRE, et al § 189th SUDIGIAL DISTRICT
DECLARATION OF LANCE CHRISTOPHER KASSAB
1. My name is Lance Christopher Kassab. My date of. ~ is March 12,
1961. My business address is 1214 Elgin Street, H on, Texas 77004.
I am of sound mind and have never been conWicted of a felony or
misdemeanor involving moral turpitude anda erwise competent to
make this declaration. I declare under pe y of perjury that the
statements of fact made herein are within personal knowledge and
true and correct. 6)

2. Iam an attorney licensed to practice:iaie in the State of Texas. I have
been licensed to practice law by theState of Texas since 1995 and I am
in good standing. I graduated a a school with honors and was
editor-in-chief of Law Review also licensed to practice before the
United States Supreme Court, the United States Fifth Circuit Court of
Appeals and the United States District Court of Texas, Southern,
Eastern and Western Dagens. I was formerly a Briefing Attorney for
the First Judicial Disc ourt of Appeals in Houston, Texas and Iam
a former intern for Texas Supreme Court and the First Judicial District
Court of Appeals.

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3. For more thaw twenty-five (25) years I have been in private practice

handling complex legal malpractice cases. I have been involved in and/or
handled appvoximately 2,300 legal malpractice cases and have been
alee numerous appeals regarding numerous legal malpractice
issues Th e vast majority of these cases have been on the Plaintiff's side.
Ho I have also handled the defense of legal malpractice cases. I
have. andled cases for clients all over Texas and in numerous other
states within the Union such as California, Utah, Nevada, Oregon,
Idaho, Arkansas, Colorado, Virginia, Alabama, Louisiana, Florida and
Mississippi.

4. I am the owner of Lance Christopher Kassab, PC d/b/a The Kassab Law
Firm. I have associated with Hattiesburg attorney F. Douglas Montague

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(“Montague”) in the past. For instance, Montague and I were co-counsel
in lawsuits we brought against John O’Quinn, which we filed on behalf
of more than a thousand of O’Quinn’s former silicosis clients. That
litigation was filed in 2011 and litigated through 2015. Communications
between me or my office on the one hand and Montague and his office
on the other hand concerning or relating to that litigation are privileged
under the attorney-client and work product privileges and confidéntial
under the Texas Disciplinary Rules of Professional Conduct. @

5. Sometime in the fall of 2014, Montague notified me of litigation filed
against Michael A. Pohl (“Pohl”) in Mississippi, styled Cause No. 1:14-
cv-381-KS-JCG: Scott Walker, et al. v. Jimmy Williamson, et al.; In the
United States District Court for the Southern Dis ib of Mississippi,
Southern Division (the “Mississippi Litigation. The Mississippi
Litigation was filed by Scott Walker, Kirk Ladnefand Steve Seymore,
the then owners of a company named Precision Marketing Group, LLC
(“Precision Marketing”). Walker, Ladner and Symore alleged that Pohl
had hired their marketing company, Precision arketing, to find and
solicit clients to refer to Pohl in excharige for a percentage of Pohl’s
attorney’s fees. Precision Marketing algo. alleged that it would receive,
from Pohl, a sum certain for each client it referred to Pohl. Walker,
Ladner and Seymore alleged that hey acquired thousands of clients
relating to the BP Deepwater Hofigpn Oil Spill and referred those clients
to Pohl. They also alleged ne ey referred numerous auto accident
cases to Pohl. Walker, Ladner, eymore and Precision Marketing sued
Pohl claiming he breached ¢heir agreement by refusing to pay them for
all of the referrals. &

6. Upon learning of thé Mississippi Litigation, I and staff at my office
obtained a large amount of information related to the Mississippi
Litigation from ederal court’s online public access to court records
system, PACHR.;Falso met with Scott Favre (“Favre”), who I understood
became the, owner of Precision Marketing through a_ purchase
agreements be had with the prior owners. Upon reviewing the
informatior obtained from PACER and through my discussions with
Favre oncluded that the clients who were solicited to hire Pohl had
pote claims against him for civil barratry pursuant to Section
82.08 1 of the Texas Government Code.

7. On November 11, 2016, I entered into a joint venture agreement with
Montague and another lawyer named Tina Nicholson (“Nicholson”). A
copy of that agreement is attached hereto as Exhibit A. The purpose of
the joint venture was to pursue causes of action against Pohl and others
for civil barratry.

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8. Thereafter, Favre and his counsel, Nicholson, provided me with
information from Precision Marketing’s files, including the names and
addresses of Pohl’s former clients or prospective clients. This
information was provided to me prior to Favre and Precision Marketing
settlement of the Mississippi Litigation with Pohl. I understood that this
information belonged to and was the property of Precision Markéting,
not Pohl or any other person or entity. The basis of this understanding
is the purchase and sale agreements, where Walker, Letper and
Seymore stated they were the owners of all the assets ,of recision
Marketing, including all of the documents in _ thei)possession,
computers, computer files, client lists, etc. and that alkof those assets
were sold to Favre when her purchased Precision Mpxtsting

9. Pohl has alleged that all of Precision Marketing’sGssets, such as client
lists, marketing information and all other doc nts within Precision
Marketing’s possession was somehow acqui y improper means. I
did not know that the information I we provided by Precision
Marketing had been allegedly acquired from ohl by improper means or
misappropriated by anyone. In fact, Ichad reviewed agreements that
indicated the former owners of Precision Marketing, Scott Walker, Kirk
Ladner and Steve Seymour sediment had sold, conveyed, or
otherwise transferred all of theirGdeuments, lists, marketing materials,
and all other documents and ass s in their possession to Favre and/or
his companies. ©

10. Pursuant to the joint v & with Montague and Nicholson, I used the
information from th “Mississippi Litigation to send advertisement
letters to Precision Mayketine’s clients, informing them that they may
have been a victim-of barratry, that barratry is illegal and unethical in
Texas, and that, fact they were victims of barratry, they would be
entitled to fileciyil claims against Pohl. I sent the advertisement letters
to the Texas. tate Bar and the bars of other states in which the
advertiseménts were distributed for approval. Literally hundreds of
individ esponded, indicating that they had been, in fact, personally
solicit hire Pohl in their auto accident or BP claims.

11. Beginning at least by February 2017, my firm and the law firms of
Montague and Nicholson entered into contracts with more than four
hundred individuals to represent them in their claims against Pohl for
civil barratry. Attached hereto as Exhibit B are the contracts that we
received pertaining to Dezzie Brumfield (signed February 28, 2017),
Alice Marie Gandy (signed August 21, 2017), Mark Cheatham, Sr.
(signed April 20, 2017) and Mae Berry (signed April 14, 2017) who would

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become the lead plaintiffs in the four barratry lawsuits that Montague,
Nicholson and I were hired to pursue against Pohl.
12.Pursuant to the joint venture, I filed the four separate barratry lawsuits
against Pohl (collectively, “the Barratry Litigation”). The Berry case was
filed on June 5, 2017, and ultimately included seven plaintiffs that were
alleged to have been solicited by Pohl to pursue auto accident claims.
The Cheatham case was filed on June 20, 2017, and ultimately gpitided
four plaintiffs who were alleged to have been solicited to hess ohl to
pursue auto accident claims. The Brumfield case was fil June 8,
2017, and by July 26, 2017, that suit had vopronimatoly. 62 plaintiffs
who were alleged to have been solicited to hire Pohl to pursue BP claims.
The Gandy case was filed on October 16, 2017, an that suit included
approximately 135 plaintiffs who were alleged to ve) been solicited to
hire Pohl to pursue BP claims. &
13. Pohl filed this lawsuit against me, Nicholso and Montague on August
28, 2018, while the Barratry Litigation wag Spdoing
6)
14.The Berry case was settled on Decombges0 2019 with Pohl agreeing to
pay the plaintiffs a substantial sumof money. The Cheatham case was
initially dismissed on summary jidement, but the court of appeals
recently reversed, concluding oes ismissal of the case was erroneous.
See Cheatham v. Pohl, No. 01- 046-CV, 2022 Tex. App. LEXIS 6528
(Tex. App.—Houston [1st Dit Aug. 30, 2022, no pet. h.). Thus, the
Cheatham case is ongoi he Brumfield and Gandy cases were
dismissed on summary-iidement based on an affirmative defense of
limitations. See Brumfield v. Williamson, 634 S.W.3d 170 (Tex. App.—
Houston [1st Dist.] 2027, pet. denied); Gandy v. Williamson, 634 S.W.3d
214 (Tex. App.—Houston [1st Dist.] 2021, pet. denied). We represented
the plaintiffs 1 Appeals through the Texas Supreme Court. The
appellate courf affirmed on May 27, 2021, and the Texas Supreme Court
denied review on January 28, 2022. Our representation of the Brumfield
and Gandy @eintifis concluded shortly thereafter.
Sou a.
15.In thi wsuit, Pohl has requested communications and documents
exc ed between me or my firm on the one hand and Nicholson and
ague or their firms on the other hand. Those communications and
documents exchanged are protected by the work product privilege
because I anticipated litigation against Pohl no later than January of
2015. In fact, Montague and I started discussing litigation against Pohl
and others in late 2014 and started circulating a joint venture
agreement by January 15, 2015. Nicholson was brought in because she
was licensed to practice law in many of the gulf states where we
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contemplated filing lawsuits against Pohl. Communications and
documents exchanged between Montague, Nicholson and I after we
anticipated litigation consist of work product.

16. Pohl has also requested communications between me or my firm on the
one hand and my clients in the Barratry Litigation on the other hand.
Those communications are protected by the attorney-client angers
product privileges and are confidential communications under the: exas
Disciplinary Rules of Professional Conduct. The communicg iis were
made for the purposes of facilitating the rendition of profess} al legal
services to my clients in their pursuit of barratry claims Ggainst Pohl.
Likewise, the internal work product of my firm is eon: idential and
consists of mental impressions, opinions, conclusion eahétes and/or legal
theories concerning the Barratry Litigation. Ke)

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Executed in Harris County, State of Texas, on the 12tday of September, 2022.
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Lance Christopher Kassab
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LAW FIRM )
| November 11, 2016 GO
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| Via Email dmontague@mpviaw.com °@
| F, Douglas Montague, HI Z )
| MONTAGUE, PirrMAN & VARNADO, P_A, ®
| 525 Main Street @
Hattiesburg, MS 39403 SO
Via Email nicholson@ bakernicholson.com
Tina Nicholson s\
BAKER NICHOLSON LAW FIRM &
2402 Dunlavy Street Or
Houston, Texas 77006 ~\S
Re: Joint venture for cause{QF action against Jimmy Williamson, Michael
Pohl and any and all afGiiated entities, for violations of the Texas Barratry
Statute or any act@eVhegligence arising out of the Deep Water Horizon
Oil Disaster, ve accident cases, and any other types of cases solicited
by Willamson\and/or Pohl in violation of the Texas Barratry statute by
these lawyers,
Dear Doug and Tina: ou
Please alloy this letter to reflect our agreement regarding our joint venture for suits.
against Jimmy Vijtiamson (Williamson), Michael Pohl (Pohl) and any other lawyer or law firm
connected wig m responsible for violating of the Texas Barratry Statute arising out of the
Deep iene) tl Disaster, vehicle accident cases, and any other types of cases solicited by them
in Violation the Texas Barratry statute.
~) agreement is made between our respective law firms, The Kassab Law Firm
(Kassab), Montague, Pitman & Varnado, P.A. (Montague} and The Baker Nicholson Law Firm
(Baker). We have agreed to bring lawsuits on behalf of clients who were wrongfully solicited on
behalf of Williamson and/or Pohl. their respective law firms and anyone else that may be fiable
for these actions. Kassab agrees to send out solicitation letters and sign up clients for the
lawsuit. Kassab also agrees to drafi relevant petitions, do the bulk of the work in drafting and
responding to motions and other filed documents. litigate and try the cases. Kassab also agrees
to front fifty percent (50%) of the case expenses. Montague agrees to help manage the clients
and help with strategy and litigation where necessary. Montague also agrees to help try cases as
second chair if necessary, Montague also agrees to front fifty percent (50%) of the case
expenses. Baker agrees to help manage clients, strategize and participate or help in filing suits
1426 Alabanza Street | Houston | Texas | 77004 ~
£.733.929.7400 | f. 713.922.7410
sanane: Poseae) coalthda hives whines fev

F. Douglas Montague
November 11, 2076 ‘ ft
Page 2 of 2 Oy
where necessary, including, but not limited to other states where Baker’s atthendys are licensed.
Baker also agrees to provide previously prepared solicitation letter templates, thai comply with
the ethics rules of each applicable state. We have agreed to split any all attorney's fees
generated trom this joint effort in the following way: fifty perce: 30%) to Kassab, forty
percent (40%) to Montague and ten percent (10%) to Baker. In ea’és’ where Baker makes an
| appearance on the pleadings in States such as Florida and/or Alabina, the parties herein agree to
| the following split of fees regarding those cases only: fifty percept 50%) to Kassab, twenty five
| percent (25%) to Montague and twenty five percent (25%) (Baker. Cases in which Baker
| assumes primary responsibility for litigation as lead coun eli any, shall be negotiated on an
| individual basis. ©
| There may also be cases that arise from the RB Bractice of these lawyers including, but
| not limited to, negligence claims. The Parties her€it agree to the same arrangement outlined
above with regard to the litigation of these CaBRR, dditionally, some of the clients that have
been solicited by these potential defendants ns cancel their contracts and thus, need counsel
regarding their cases. Furthermore, some ts may have malpractice actions arising out of
Pohi/Williamson’s failure to timely file and@ursue their claims. The Parties herein agree to use
their best efforts to either find these cis counsel to handle their cases, in which we agree to
split any and all referral fees as outlin ove or we will handle their cases. In either event, the
Parties hereto agree to the same auogiess fee split as outlined above.
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If this letter accurately owtfines our agreement, please indicate by signing below.
w la p Y
S Sincerely, .
IN THE KASSAB LAW FIRM
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© “~~ Lance Christopher Kassab
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LAW FIRM
1420 Alabama Street | Houston | Texas | 77004
p. 713.522.7400 | f. 713.522.7410
www. TexasLegalMalpractice.com
POWER OF ATTORNEY FOR PROFESSIONAL SERVICES
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Client(s) full legal name: Dz Z2Z14EL Lam onl Lf. turn PIE I. of 3
Client(s) address: —__
Client(s) home phone number:_ ee x number: 2
Cell number: P| ‘lient(s) Email:
Client(s) social security number(s): : ss oe (Confidential)
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This agreement is between the above client(s), hereinafiet referred to as “Client” and LANCE
CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB oda FIRM, MONTAGUE, PITTMAN &
VARNADO, P.A. and the BAKER NICHOLSON LAW ne ereinafter referred to as “Attorneys.”
1. SCOPE OF SERVICES. Attorneys are hereby employed and appointed as Client’s true and
lawzul attorneys to act for Client and to prosgepite Client’s claims or causes of action against:
JIMMY WILLIAMSON, JIMMY WILLIAMSO - AND/OR MICHAEL A. POHL (Defendants) and
all other persons, firms, corporations, or byst ss entities legally responsible for causing Client’s
damages resulting from such acts as follows;
BARRATRY, LEGAL pRacrice AND/OR BREACH OF FIDUCIARY DUTY
ARISING O THE BP DEEP HORIZON LITIGATION
Client understands that Client’s case may be filed and litigated jointly with other clients
who are similarly situate ient and/or who have similar claims against Defendants. As
such, Client is aware rees that Client’s confidential information may necessarily be
disclosed among otherclients in order to effectuate a settlement. Client further
understands and a s that if a disagreement or dispute arises between any of the
common clients to sharing of the confidential information, the attorney-client privilege
may not be available for assertion by any of them against the other(s) on certain issues.
Finally, if a ca on or aggregate sett:ement is effectuated, Client understands and agrees
that the of demand may require ue consent of all commonly-represented clients and
the failure‘of one or a few members of the group to consent to the settlement may result in
the withdrawal of the settlement or offer.
Client further understands that Attorneys are not specialized in, nor do they give, tax advice,
bankruptcy advice, family law or estate planning advice or any other advice involving other non-
civil or non-personal injury areas of specialized practice of law and they would recommend the
retention of a Certified Public Accountant (CPA) or qualified tax lawyer with regard to any
questions as to the taxability of any proceeds that are received pursuant to this agreement.
Client(s) Initials: D LB Page 1 of 6

2. AUTHORITY. Client authorizes Attorneys to act as Client’s negotiator, to file pleadings
and appear in courts of law in Client’s behalf, to prosecute Client’s claims or causes of action to
settlement or final judgment, and to take any appropriate legal action they deem reasonably
necessary in the preservation of Client’s rights and claims. Client further authorizes attorneys to
do all things that Client might lawfully do in Client’s behalf, and ratifies and confirms all such
lawful acts that Attorneys may do or cause to be done on behalf of Client. Provided, however,
that no settlement shall be made by attorneys without Client’s approval. If C refuses an
offer of settlement against Attorney’s recommendation, then Client agrees to e responsible
for paying all costs and expenses of the case, and must reimburse Attoméy for expenses and
costs already incurred within seven (7) days of a written demand for such reimbursement. If
Client fails to timely reimburse Attorney after receiving such written e, then such failure
constitutes a termination of the representation by the Client. In the pave such termination,
Attorneys are entitled to retain their entire contingency fee meee
3. CONTINGENT FEE. In consideration of the services rémlered and to be rendered by
Attorneys, Client assigns and conveys to Attorneys the followiag present undivided interest in
and to Client’s claims or causes of action: S)
S
33-1/3% of any sum collected betes sui is filed; OR
40% of any sum collected suit is filed and settlement is
made without a ria OR
45% of any sum coll after the day prior to the first day
trial begins a lement is made or judgment is paid
without appéal.
The above percentages shall be calcul On the gross total settlement and/or recovery of cash,
property, reduction of debt or any, oi calculable benefit Client obtains through Attorney’s
representation, whether paid by pace ic payments, lump sum payment, transfer of property (real
or personal) or calculated by the cost of a structured settlement, or any combination
thereof. The contingent fee will be calculated on the gross recovery before the deduction of
costs and expenses. The co ent fee granted to attorneys based on the foregoing percentages
shall be and does hereby constitute a lien upon said claims or causes of action and any proceeds
of settlement or judgment, Client further understands that this Contract of Employment and
Power of Attorney extends through the trial of this cause and the post-trial motions leading to the
entry of a final trial Soot judgment. However, Attorneys will not have any duty to undertake an
appeal under this Co tract of Employment and Power of Attorney unless and until there is an
agreement bet eon Client and the Attorneys to undertake same for an additional fee. If there is
to be an ap cal; of this case and the Client and the Attorneys agree to appeal this case, then
Attorneys! feos for the consummation and handling of that appeal will be negotiated at that time.
4, REFERRAL FEE. Client understands that no one has an interest in this case as a referring
attorney included in the fees to be paid as described above. The referring attorney’s interest is
n/a of the gross attorney’s fees collected by Attorneys.
5. CosTS, EXPENSES AND COMMON EXPENSES. Client understands that Client’s claims may
be litigated together with similarly situated clients. Client therefore understands that Attorney
Client Initials: D Lf Page 2 of 6

may advance sums to.cover reasonable and necessary expenses which in his opinion are
reasonably necessary for the development of the Client’s case including any client-specific
expenses as well as Client’s share of various “common expenses.” Common expenses are
expenses that benefit multiple clients who are involved in the same litigation. Examples of
common expenses include costs associated with expert witnesses, consultants, investigators or
witnesses who will testify on common issues, deposition costs for deposing Defendants and
witnesses (i.e. the main defendants or the staff members of defendants), travel costs associated
with common depositions and with attending hearings at which motions on co issues are
heard, copying charges for copying or scanning documents that pertain to on issues or
clients, court reporter and deposition fees that pertain to common issues of ohents, as well as
miscellaneous costs such as parking costs, certified mail, delivery charges, and postage for
motions and briefings which pertain to common issues or clients. Client “spécific costs” are costs
that will likely be incurred that benefit only the one specific Sent eee would not be
incurred if that particular client did not exist. Examples of speéifié costs include physical
examinations, costs associated with deposition of the particulaf<client, costs associated with
expert witness testimony that will only benefit the specific cliént, copy charges, postage for
motions, letters, correspondence or other briefs which only benéfit the specific client as well as
travel costs to attend hearings, depositions or other legal eheening which only benefit the
specific client. Client understands and agrees that if Attomiey advance any court costs and other
litigation expenses incident to the handling of Clients) aims, including common expenses,
Client will be responsible for reimbursing Attorneys‘out of any recovery made in client’s
lawsuit. Common expense deductions will be called as follows:
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At the time of settlement or resolutio of Clients’ case, Client will be responsible

for its percentage of the common expenses which will be deducted from any

recovery after the deduction of any attorneys’ fees. The percentage will be

calculated by taking the total nuriber of clients and dividing this number by the

total amount of common expenses. As an example, if there are 100 clients and

common expenses amoun 0,000.00, then each client would be required to

pay $100.00 in common pens (100 clients / $10,000.00 = $100). As another

example, if there are 150\cHents and the common expenses amount to $30,000.00,

then each client woul fe required to pay $200.00 in common expenses (150

clients / $30,000.00 < 00).
Client further agrees meat sums advanced by Attorneys to cover such necessary court costs and
other litigation expenses incident to the preparation and prosecution of Client’s claims or causes
of action will beetaid to Attorneys out of any sum collected in addition to any contingent fee
set forth hereii ient agrees that any advancement of costs or expenses by Attorneys shall
also constitut ien on Client’s claims and any proceeds of any settlement or judgment. If
there is n very for Client, Client will not be responsible for any costs and/or expenses
to develop the case.
6. WARRANTIES AND REPRESENTATIONS. Attorneys agree to use the firm’s best efforts in
representing Client. Client understands that Attorneys make no warranties or representations
regarding the successful outcome of Client’s claims or causes of action, the value thereof, or any
expected recovery, and any expression relative thereto is a matter of Attorney's opinion only.
Attorneys do not guarantee any timeframe within which Client’s claims or causes of action will
be resolved.
Client Initials: DL (2 Page 3 of 6

7. CLIENT OBLIGATIONS. Client agrees to tell Attorneys the truth, to cooperate with and
keep Attorneys informed of any developments relative to Client’s claims or causes of action, to
faithfully comply with this agreement, and to keep Attorneys advised of any changes to Client’s
address or telephone number.
8. FICTITIOUS, GROUNDLESS, OR BAD FAITH. Client understands that in the event a suit
filed in Client’s behalf is found to be frivolous, fictitious, groundless, or brought in bad faith,
Client may be liable for defendant's attorney's fees. NZ)
9. SANCTIONS. Client agrees that Client must timely comply with diyeSPory requests from
opposing counsel. Client understands that Client’s failure to comply -with discovery requests
could result in the court imposing sanctions in the form of a fine or 0 penalty. Client agrees
that in the event sanctions are imposed, Client will be solely responsible for paying any and all
sanctions, and Client further agrees that Attorneys will not be onsible or liable for any
sanction award. ®
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10. LIABILITY FOR CourT CosTs. Client understands ht in the event a lawsuit is filed in
Client’s behalf and such lawsuit is not ultimately resolve Client’s favor, court costs could be
assessed against Client. Client understands that aap costs will not be paid by Attorneys
and agrees to pay such court costs should they be impage .
11. IF NO RECOVERY. Client further undeiSiands that if Attorneys are unable to recover
anything either by settlement or trial, Client alfjowe Attorneys nothing as a fee and Client shall
not be obligated to reimburse Attorneys rege advanced on Client’s behalf.
12. | CONSENT TO ASSOCIATE. Clier understands and agrees to the association of Lance
Kassab of The Kassab Law Firm, Ress Montague of the law firm Montague, Pittman &
Varnado, P.A. and Tina Nicholsosef the Baker Nicholson Law Firm to represent Client and
other similarly situated Clients ini gation and/or potential claims. Attorneys have agreed to
split all attorney’s fees in the RN ing manner:
Fifty percent (50%) the Kassab Law Firm:
Forty percent (40%) 0 Montague, Pittman & Varnado, P.A.: and
Ten percent Ce to The Baker Nicholson Law Firm.
of
However, if The a Nicholson Law Firm assumes primary responsibility for litigation as lead
counsel in Cli case, then the Attorney’s have agreed to split all attorney’s fees in the
following m :
Fis cent (50%) to The Kassab Law Firm
Twenty-Five percent (25%) to Montague, Pitman & Varnado, P.A.; and
Twenty-Five percent (25%) to The Baker Nicholson Law Firm.
The lawyers and law firms listed above have agreed to assume joint responsibility for the
representation of Client. Client understands and agrees to the association of these law firms and
the percentages of fees allocated to each law firm as stated above. The division of fees between
Client Initials: | yay, Page 4 of 6

the lawyers and law firms listed above will not increase or change the amount of attorneys’
fees charged to the Client as outlined in Paragraph 3 above.

13. TERMINATION AND WITHDRAWAL. Client understands and agrees that Attorneys may
terminate the attorney-Client relationship created by this agreement and withdraw from Client’s
representation with or without Client’s consent for any reason Attorneys deem necessary.

14. CONTROVERSY AND DISPUTES. Any controversy arising out of or relating to
Attorneys’ representation of Client or this contract or any modificatidg) or extension
thereof, including any claim for breach of contract, tort, for damages, Gr for rescission or
reformation of this contract, or any other claim shall be settled by ‘a_court of law with
competent jurisdiction in Harris County, Texas without a jury. ©

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15. CLIENT REQUESTS. Client understands that if requests by t are not consistent with
the standard of care required of Attorneys, the Texas Disciplinary s of Professional Conduct,
the Texas Supreme Court’s Mandate of Professionalism, or¢ommon courtesies expected
between Attorneys and other lawyers or third parties, Attorneys are entitled to refuse without
breaching this agreement.
)

16. DISCIPLINARY ISSUES. Client understands oa other alternative remedies against
Defendant attorneys may exist. For that reason th ployment of Attorneys are not for the
purpose of prosecuting other alternative remedie she criminal, disciplinary, or other civil
matters. However, Client is hereby specifically a ised in accordance with the Disciplinary
Rules of Texas that the State Bar of Texas i vest gates and prosecutes professional misconduct
committed by Texas attorneys. Although nak ever complaint against or dispute with a lawyer
involves professional misconduct, the St ar's Office of General Counsel will provide you
with information about how to file a complaint. You may call the State Bar's General Counsel
Office toll free at 1-800-932-1900 fo re information. The complaint that may be filed by the
State Bar's General Counsel’s officesot by you as part of a disciplinary proceeding is NOT the
same thing as a legal malpracticg e¢ that may be prosecuted on your behalf by Attorneys.

17. CONTRACT SURVIV TY. This agreement and the powers and authority granted
herein shall survive and cs inate upon Client’s death, mental incapacity, or legal disability.
18. | SINGULAR ANDXPLURAL. When the context requires, singular nouns and pronouns used
herein include the phi:

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19. Savina ann SEVERABILITY. If any provision of this agreement is held void and/or
unenforceabl en such provision will be modified to reflect the parties’ intention. All
remaining gibpisions of this agreement shall remain in full force and effect.

20. | COMPLETE AGREEMENT. This document sets forth the complete agreement between
Attorneys and Client and may be modified only by a written instrument signed by both a legal
representative of LANCE CHRISTOPHER KAssaB, P.C. and Client. It is agreed that there are no
oral representations of any kind.
21. COMPLETE UNDERSTANDING. By signing below and initialing each page, Client
acknowledges he has fully read this agreement, its terms, effects and consequences and that its
Client Initials: | ye Page 5 of 6

terms, effects and consequences have been fully and completely explained to Client by Attorneys
to Client’s full satisfaction.
PLEASE INITIAL EACH PAGE, PRINT NAME, SIGN AND DATE
patep: A~Z28 - _, 2017.
é
E226 Ames | Lv wt EY
CLIENT: (Printed Name)
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CLIENT: (Si re)
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LANCE CHRISTOPHER KASSAB, P.C. D/B/A S)
THE KASSAB LAW FIRM, MONTAGUE, PITTMAN & Varna ; P.A.
BAKER NICHOLSON LAW FIRM
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Client Initials: 9) Lts Page 6 of 6

LAW FIRM
1214 Elgin Street | Houston | Texas | 77004
p. 713.522.7400 | f. 713.522.7410
www.TexasLegalMalpractice.com
POWER OF ATTORNEY FOR PROFESSIONAL SERVICES
Client(s) full legal name: Al, cL M avit - 1th. ( Lawn Ws /Seadin Salon
Client(s) home phone number: i work number: ,
Cell number: ED ient(s) Emait:
Client(s) social security number(s): Po (Confidential)
p This agreement is between the above client(s), hereinafter referred to as “Client” and LANCE
Sy, CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAW FIRM, MONTAGUE, PITTMAN &
wo) D VARNADO, P.A. and the BAKER NICHOLSON LAW FIRM hereinafter referred to as “Attorneys.”
“Qe. 1. SCOPE OF SERVICES. Attorneys are hereby employed and appointed as Client’s true and
“(apt attorneys to act for Client and to prosecute Client’s claims or causes of action against:
Asie WILLIAMSON, JIMMY WILLIAMSON, P.C. AND/OR MICHAEL A. POHL (Defendants) and
all ersons, firms, corporations, or business entities legally responsible for causing Client’s
damage sulting from such acts as follows:
Bagh Y, LEGAL MALPRACTICE AND/OR BREACH OF FIDUCIARY DUTY
CAxisiNc OUT OF THE BP DEEP HORIZON LITIGATION
My
Client understands that t’s case may be filed and litigated jointly with other clients
who are similarly situated fo wR and/or who have similar claims against Defendants. As
such, Client is aware and agr (Chat Client’s confidential information may necessarily be
disclosed among other clients i (Sbrder to effectuate a settlement. Client further
understands and agrees that if a di iafeement or dispute arises between any of the
common clients to the sharing of the co dential information, the attorney-client privilege
may not be available for assertion by any of thea against the other(s) on certain issues.
Finally, if a common or aggregate settlement is ffesuatd, Client understands and agrees
that the offer or demand may require the consent 0 call) commonly-represented clients and
the failure of one or a few members of the group to consent to the settlement may result in
the withdrawal of the settlement or offer. 3 wy
Client further understands that Attorneys are not specialized in, nor y give, tax advice,
bankruptcy advice, family law or estate planning advice or any other advicé j volving other non-
civil or non-personal injury areas of specialized practice of law and they would recommend the
retention of a Certified Public Accountant (CPA) or qualified tax lawyer with regard to any
questions as to the taxability of any proceeds that are received pursuant to this agreement.
Client(s) Initials: fim CG, Page 1 of 6

2. AUTHORITY. Client authorizes Attomeys to act as Client’s negotiator, to file pleadings
and appear in courts of law in Client’s behalf, to prosecute Client’s claims or causes of action to
settlement or final judgment, and to take any appropriate legal action they deem reasonably
necessary in the preservation of Client’s rights and claims. Client further authorizes attorneys to
do all things that Client might lawfully do in Client’s behalf, and ratifies and confirms all such
lawful acts that Attorneys may do or cause to’be done on behalf of Client. Provided, however,
that no settlement shall be made by attorneys without Client’s approval. If Client refuses an
offer of settlement against Attorney’s recommendation, then Client agrees to become responsible
for paying all costs and expenses of the case, and must reimburse Attorney for expenses and
costs already incurred within seven (7) days of a written demand for such reimbursement. If
Client fails to timely reimburse Attorney after receiving such. written notice, then such failure
constitutes a termination of the representation by the Client. In the event of such termination,
Attorneys are entitled to retain their entire contingency fee interest.
3. CONTINGENT FEE. In consideration of the services rendered and to be rendered by
Attorneys, Client assigns and conveys to Attorneys the following present undivided interest in
and to Client’s claims or causes of action:
?.
% 33-1/3% of any sum collected before suit is filed; OR
XD 40% of any sum collected after suit is filed and settlement is
“Qe. made without a trial; OR
o, 45% of any sum collected after the day prior to the first day
Q trial begins and settlement is made or judgment is paid
SS) without appeal.
The above pee ntages shall be calculated on the gross total settlement and/or recovery of cash,
property, retin of debt or any other calculable benefit Client obtains through Attorney’s
representation, W ether aid by periodic payments, lump sum payment, transfer of property (real
or personal) or cli by using the cost of a structured settlement, or any combination
thereof. The continge ill be calculated on the gross recovery before the deduction of
costs and expenses. The c ent fee granted to attorneys based on the foregoing percentages
shall be and does hereby cons tutéalien upon said claims or causes of action and any proceeds
of settlement or judgment. Client t understands that this Contract of Employment and
Power of Attorney extends through tne hay f this cause and the post-trial motions leading to the
entry of a final trial court judgment. Hover Artomey will not have any duty to undertake an
appeal under this Contract of Employment akd’Power of Attorney unless and until there is an
agreement between Client and the Attorneys to wade e same for an additional fee. If there is
to be an appeal of this case and the Client and the eys agree to appeal this case, then
Attorneys’ fees for the consummation and handling of th RY, will be negotiated at that time.
4, REFERRAL FEE. Client understands that no one has an ie in this case as a referring
attorney included in the fees to be paid as described above. The F attorney’s interest is
n/a of the gross attorney’s fees collected by Attorneys. 7)
5. Costs, EXPENSES AND COMMON EXPENSES. Client understands that Client’s claims may
be litigated together with similarly situated clients. Client therefore understands that Attorney
Client Initials: Rife Page 2 of 6

may advance sums to cover reasonable and necessary expenses which in his opinion are
reasonably necessary for the development of the Client’s case including any client-specific
expenses as well as Client’s share of various “common expenses.” Common expenses are
expenses that benefit multiple clients who are involved in the same litigation. Examples of
common expenses include costs associated with expert witnesses, consultants, investigators or
witnesses who will testify on common issues, deposition costs for deposing Defendants and
witnesses (i.e. the main defendants or the staff members of defendants), travel costs associated
with common depositions and with attending hearings at which motions on common issues are
heard, copying charges for copying or scanning documents that pertain to common issues or
clients, court reporter and deposition fees that pertain to common issues or clients, as well as
miscellaneous costs such as parking costs, certified mail, delivery charges, and postage for
motions and briefings which pertain to common issues or clients. Client “specific costs” are costs
that will likely be incurred that benefit only the one specific client and likely would not be
incurred if that particular client did not exist. Examples of specific costs include physical
examinations, costs associated with deposition of the particular client, costs associated with
expert witness testimony that will only benefit the specific client, copy charges, postage for
motions, letters, correspondence or other briefs which only benefit the specific client as well as
travel costs to attend hearings, depositions or other legal proceedings which only benefit the
S) specific client. Client understands and agrees that if Attorneys advance any court costs and other
A) litigation expenses incident to the handling of Client’s claims, including common expenses,
Ae) Client will be responsible for reimbursing Attorneys out of any recovery made in client’s
Kp lawsuit. Common expense deductions will be calculated as follows:
""© At the time of settlement or resolution of Clients’ case, Client will be responsible
Sigfor its percentage of the common expenses which will be deducted from any
@eveyery after the deduction of any attomeys’ fees. The percentage will be
c ed by taking the total number of clients and dividing this number by the
= of common expenses. As an example, if there are 100 clients and
commo ses amount to $10,000.00, then each client would be required to
pay $100.00 ""6 on expenses (100 clients / $10,000.00 = $100). As another
example, if thee 50 clients and the common expenses amount to $30,000.00,
then each client veal required to pay $200.00 in common expenses (150
clients / $30,000.00 =
Client further agrees that all sums advan by Attomeys to cover such necessary court costs and
other litigation expenses incident to the rep and prosecution of Client’s claims or causes
of action will be repaid to Attorneys out 0 uncollected in addition to any contingent fee
set forth herein. Client agrees that any advancéient of costs or expenses by Attorneys shall
also constitute a lien on Client’s claims and any procel of any settlement or judgment. If
there is no recovery for Client, Client will not be response for any costs and/or expenses
to develop the case. Ye
6. WARRANTIES AND REPRESENTATIONS. Attorneys agree toisé the firm’s best efforts in
representing Client. Client understands that Attorneys make no vara or representations
regarding the successful outcome of Client’s claims or causes of action, theWalue thereof, or any
expected recovery, and any expression relative thereto is a matter of Attomey's opinion only.
Attorneys do not guarantee any timeframe within which Client’s claims or causes of action will
be resolved.
Client Initials: By WAG, Page 3 of 6

7. CLIENT OBLIGATIONS. Client agrees to tell Attorneys the truth, to cooperate with and
keep Attorneys informed of any developments relative to Client’s claims or causes of action, to
faithfully comply with this agreement, and to keep Attorneys advised of any changes to Client’s
address or telephone number.
8. FICTITIOUS, GROUNDLESS, OR BAD FAITH. Client understands that in the event a suit
filed in Client’s behalf is found to be frivolous, fictitious, groundless, or brought in bad faith,
Client may be liable for defendant's attorney's fees.
9, SANCTIONS. Client agrees that Client must timely comply with discovery requests from
opposing counsel. Client understands that Client’s failure to comply with discovery requests
could result in the court imposing sanctions in the form of a fine or other penalty. Client agrees
that in the event sanctions are imposed, Client will be solely responsible for paying any and all
sanctions, and Client further agrees that Attorneys will not be responsible or liable for any
sanction award.
10. LIABILITY FOR CourT Costs. Client understands that in the event a lawsuit is filed in
S) Client’s behalf and such lawsuit is not ultimately resolved in Client’s favor, court costs could be
A) assessed against Client. Client understands that such court costs will not be paid by Attorneys
Ae) and agrees to pay such court costs should they be imposed.
Z
“LG. IF NO RECOVERY. Client further understands that if Attorneys are unable to recover
° (apything either by settlement or trial, Client shall owe Attorneys nothing as a fee and Client shall
orb gbligated to reimburse Attorneys for expenses advanced on Client’s behalf.
12. Conse TO ASSOCIATE. Client understands and agrees to the association of Lance
Kassab of rn Law Firm, Doug Montague of the law firm Montague, Pittman &
Varnado, P.A.‘and Tina Nicholson of the Baker Nicholson Law Firm to represent Client and
other similarly situa jents in its litigation and/or potential claims. Attorneys have agreed to
split all attorney’s fees ollowing manner:
Fifty percent (50%) Hea Law Firm:
Forty percent (40%) to Mo gus Pittman & Varnado, P.A.: and
Ten percent (10%) to The Baker Nicholson Law Firm.
However, if The Baker Nicholson Law Firm sstimes primary responsibility for litigation as lead
counsel in Client’s case, then the Attorney’s ha’ (a eed to split all attorney’s fees in the
following manner: 5
Fifty percent (50%) to The Kassab Law Firm A Cy
Twenty-Five percent (25%) to Montague, Pitman & Varnad?.. and
Twenty-Five percent (25%) to The Baker Nicholson Law ©) GY
The lawyers and law firms listed above have agreed to assume joint reéponsibility for the
representation of Client. Client understands and agrees to the association of these law firms and
the percentages of fees allocated to each law firm as stated above. The division of fees between
Client Initials: (\\\G. Page 4 of 6

the lawyers and law firms listed above will not increase or change the amount of attorneys’
fees charged to the Client as outlined in Paragraph 3 above.
13. | TERMINATION AND WITHDRAWAL. Client understands and agrees that Attorneys may
terminate the attorney-Client relationship created by this agreement and withdraw from Client’s
representation with or without Client’s consent for any reason Attorneys deem necessary.
14. | CONTROVERSY AND DISPUTES. Any controversy arising out of or relating to
Attorneys’ representation of Client or this contract or any modification or extension
thereof, including any claim for breach of contract, tort, for damages, or for rescission or
reformation of this contract, or any other claim shall be settled by a court of law with
competent jurisdiction in Harris County, Texas without a jury.
15. | CLIENT REQUESTS. Client understands that if requests by Client are not consistent with
the standard of care required of Attorneys, the Texas Disciplinary Rules of Professional Conduct,
the Texas Supreme Court’s Mandate of Professionalism, or common courtesies expected
between Attorneys and other lawyers or third parties, Attorneys are entitled to refuse without
breaching this agreement.
?.
% 16. DISCIPLINARY ISSUES. Client understands that other alternative remedies against
Wi, Defendant attorneys may exist. For that reason the employment of Attorneys are not for the
Y, purpose of prosecuting other alternative remedies whether criminal, disciplinary, or other civil
° LS matters. However, Client is hereby specifically advised in accordance with the Disciplinary
° Cae of Texas that the State Bar of Texas investigates and prosecutes professional misconduct
ommutted by Texas attorneys. Although not every complaint against or dispute with a lawyer
invol essional misconduct, the State Bar's Office of General Counsel will provide you
with info ion about how to file a complaint. You may call the State Bar's General Counsel
Office toll ee 1-500-932-1900 for more information. The complaint that may be filed by the
State Bar's Ge Cpel's office or by you as part of a disciplinary proceeding is NOT the
same thing as a lega ‘appractice case that may be prosecuted on your behalf by Attorneys.
17. CONTRACT Sunvivainsty, This agreement and the powers and authority granted
herein shall survive and not te unBSS upon Client’s death, mental incapacity, or legal disability.
18. SINGULAR AND PLURAL. When tbe context requires, singular nouns and pronouns used
herein include the plural. &
19. SAVINGS AND SEVERABILITY. If any this i6n of this agreement is held void and/or
unenforceable, then such provision will be modi o reflect the parties' intention. All
remaining provisions of this agreement shall remain in TE effect.
O
20. © COMPLETE AGREEMENT. This document sets forth We plete agreement between
Attorneys and Client and may be modified only by a written insta signed by both a legal
representative of LANCE CHRISTOPHER KASSAB, P.C. and Client. It is seed that there are no
oral representations of any kind.
21. COMPLETE UNDERSTANDING. By signing below and initialing each page, Client
acknowledges he has fully read this agreement, its terms, effects and consequences and that its
Client Initials: AY \\ (, Page 5 of 6

terms, effects and consequences have been fully and completely explained to Client by Attorneys
to Client’s full satisfaction.
PLEASE INITIAL EACH PAGE, PRINT NAME, SIGN AND DATE
patep: -2\ 2017.
CLIENT: (Printed Name)
CLIENT: (Signature)
LANCE CHRISTOPHER KASSAB, P.C. D/B/A
S) THE KASSAB LAW FIRM, MONTAGUE, PITTMAN & VARNADO, P.A.
A) BAKER NICHOLSON LAW FIRM
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Client Initials: Qs Page 6 of 6

LAW FIRM
1420 Alabama Street | Houston | Texas | 77004
p. 713.522.7400 | f. 713.522.7410
www.TexasLegalMalpractice.com
POWER OF ATTORNEY FOR PROFESSIONAL SERVICES
@
Client(s) full legal name:
Client(s) address: _
Client(s) home phone number TE ork number; -_
Cell number: Client(s) Email:
Client(s) social security number(s): ____ (Confidential)
@
This agreement is between the above client(s), herein > ered to as “Client” and LANCE
CHRISTOPHER KASSAB, P.C. D/B/A THE KASS FIRM, MONTAGUE, PITTMAN &
VARNADO, P.A. and the BAKER NICHOLSON LAW ereinafter referred to as “Attorneys.”
1. SCOPE OF SERVICES. Attorneys are perdy npoyed and appointed as Client’s true and
lawful attorneys to act for Client and to pr égute Client’s claims or causes of action against:
MICHAEL A. POHL (Defendant) and all other persons, firms, corporations, or business entities
legally responsible for causing Client’s damages resulting from such acts as follows:
BARRATRY, LEGAL MAL TICE AND/OR BREACH OF FIDUCIARY DUTY
ARISING F A ROLLOVER CASE INCIDENT
Client understands that Cli ®) case may be filed and litigated jointly with other clients
who are similarly situated lient and/or who have similar claims against Defendants. As
such, Client is aware an rees that Client’s confidential information may necessarily be
disclosed among other) clients in order to effectuate a settlement. Client further
understands and agrees that if a disagreement or dispute arises between any of the
common clients to sharing of the confidentiai information, the attorney-client privilege .
may not be av ale e for assertion by any of them against the other(s) on certain issues.
inally,if-a corn on or-ageregate settlemen effectuated,-Client-understands-and-agrees———
that the off or oF demand may require the consent of all commonly-represented clients and
the failu ¢ of one or a few members of the group to consent to the settlement may result in
the withdrawal of the settlement or offer.
Client further understands that Attorneys are not specialized in, nor do they give, tax advice,
bankruptcy advice, family law or estate planning advice or any other advice involving other non-
civil or non-personal injury areas of specialized practice of law and they would recommend the
retention of a Certified Public Accountant (CPA) or qualified tax lawyer with regard to any
questions as to the taxability of any proceeds that are received pursuant to this agreement.
Client(s) Initials: MN C Page 1 of 6

2. AUTHORITY. Client authorizes Attorneys to act as Client’s negotiator, to file pleadings
and appear in courts of law in Client’s behalf, to prosecute Client’s claims or causes of action to
settlement or final judgment, and to take any appropriate legal action they deem reasonably
necessary in the preservation of Client’s rights and claims. Client further authorizes attorneys to
do all things that Client might lawfully do in Client’s behalf, and ratifies and confirms all such
lawful acts that Attorneys may do or cause to be done on behalf of Client. Provided, however,
that no settlement shall be made by attorneys without Client’s approval. If Client refuses an
offer of settlement against Attorney’s recommendation, then Client agrees to becaite responsible
for paying all costs and expenses of the case, and must reimburse Actornes expenses and
costs already incurred within seven (7) days of a written demand for sucheimbursement. If
Client fails to timely reimburse Attorney after receiving such written n , then such failure
constitutes a termination of the representation by the Client. In the event of such termination,
Attomeys are entitled to retain their entire contingency fee interest. . &
3. | CONTINGENT FEE. In consideration of the services renteved and to be rendered by
Attorneys, Client assigns and conveys to Attorneys the following present undivided interest in
and to Client’s claims or causes of action: &
33-1/3% of any sum collected before shit is filed; OR
40% of any sum collected afiereuit is filed and settlement is
made without a na ge
45% of any sum collected er the day prior to the first day
trial begins an ement is made or judgment is paid
without app nae
The above percentages shall be caleulaedn the gross total settlement and/or recovery of cash,
property, reduction of debt or any other calculable benefit Client obtains through Attorney’s
representation, whether paid by peri payments, lump sum payment, transfer of property (real
or personal) or calculated > cost of a structured settlement, or any combination
thereof. The contingent fee e calculated on the gross recovery before the deduction of
costs and expenses. The contingent fee granted to attorneys based on the foregoing percentages
shall be and does hereby constitute a lien upon said claims or causes of action and any proceeds
of settlement or jud ~” Client further understands that this Contract of Employment and
Power of Attorney exis through the trial of this cause and the post-trial motions leading to the
entry of a final trial ¢oyirt judgment. However, Attorneys will not have any duty to undertake an
appeal under thi Contract of Employment and Power of Attorney unless and until there is an
agreement betwss Client and the Attorneys to undertake same for an additional fee. If there is
to be an appe4lof this case and the Client and the Attorneys agree to appeal this case, then
Attomeys fees for the consummation and handling of that appeal will be negotiated at that time.
4. REFERRAL FEE. Client understands that no one has an interest in this case as a referring
attorney included in the fees to be paid as described above. The referring attorney’s interest is
n/a of the gross attorney’s fees collected by Attorneys.
5. Costs, EXPENSES AND COMMON EXPENSES. Client understands that Client’s claims may
be litigated together with similarly situated clients. Client therefore understands that Attorney
may advance sums to cover reasonable and necessary expenses which in his opinion are
Client Initials: me _ Page 2 of 6

reasonably necessary for the development of the Client’s case including any client-specific
expenses as well as Client’s share of various “common expenses.” Common expenses are
expenses that benefit multiple clients who are involved in the same litigation. Examples of
common expenses include costs associated with expert witnesses, consultants, investigators or
witnesses who will testify on common issues, deposition costs for deposing Defendants and
witnesses (i.e. the main defendants or the staff members of defendants), travel costs associated
with common depositions and with attending hearings at which motions on common issues are
heard, copying charges for copying or scanning documents that pertain to contin issues or
clients, court reporter and deposition fees that pertain to common issues or clients, as well as
miscellaneous costs such as parking costs, certified mail, delivery charges,))and postage for
motions and briefings which pertain to common issues or clients. Client “specific costs” are costs
that will likely be incurred that benefit only the one specific client i tikes would not be
incurred if that particular client did not exist. Examples of specificocosts include physical
examinations, costs associated with deposition of the particul tent, costs associated with
expert witness testimony that will only benefit the specific client/ copy charges, postage for
motions, letters, correspondence or other briefs which only be the specific client as well as
travel costs to attend hearings, depositions or other legal edings which only benefit the
specific client. Client understands and agrees that if Atto advance any court costs and other
litigation expenses incident to the handling of Client’s¢ aims, including common expenses,
Client will be responsible for reimbursing Attomne¥s_jout of any recovery made in client’s
lawsuit. Common expense deductions will be “— as follows:

At the time of settlement or resolution Clients case, Client will be responsible

for its percentage of the common expense which will be deducted from any

recovery after the deduction of attorneys’ fees. The percentage will be

calculated by taking the total number of clients and dividing this number by the

total amount of common expenses. As an example, if there are 100 clients and

common expenses amount tet 0,000.00, then each client would be required to

pay $100.00 in common expenses (100 clients / $10,000.00 = $100). As another

example, if there are 15G gents and the common expenses amount to $30,000.00,

then each client would be required to pay $200.00 in common expenses (150

clients / $0 000.00= $20
Client further agrees nit.all sums advanced by Attorneys to cover such necessary court costs and
other litigation expe incident to the preparation and prosecution of Client’s claims or causes
of action will be repaid to Attorneys out of any sum collected in addition to any contingent fee
set forth herein. ient agrees that any advancement of costs or expenses by Attorneys shall
also constitute@ ‘lien on Client’s claims and any proceeds of any settlement or judgment. If
there is n very for Client, Client will not be responsible for any costs and/or expenses
to re Ha ne feeover:
6. WARRANTIES AND REPRESENTATIONS. Attorneys agree to use the firm’s best efforts in
representing Client. Client understands that Attorneys make no warranties or representations
regarding the successful outcome of Client’s claims or causes of action, the value thereof, or any
expected recovery, and any expression relative thereto is a matter of Attorney's opinion only.
Attorneys do not guarantee any timeframe within which Client’s claims or causes of action will
be resolved.
Client Initials: Nn Page 3 of 6

7. CLIENT OBLIGATIONS. Client agrees to tell Attorneys the truth, to cooperate with and
keep Attorneys informed of any developments relative to Client’s claims or causes of action, to
faithfully comply with this agreement, and to keep Attorneys advised of any changes to Client’s
address or telephone number.
8. FICTITIOUS, GROUNDLESS, OR BAD FAITH. Client understands that in the event a suit
filed in Client’s behalf is found to be frivolous, fictitious, groundless, or broughtin bad faith,
Client may be liable for defendant's attorney's fees. RQ
@
9. SANCTIONS. Client agrees that Client must timely comply with discovery requests from
opposing counsel. Client understands that Client’s failure to comply | discovery requests
could result in the court imposing sanctions in the form of a fine or ot enalty. Client agrees
that in the event sanctions are imposed, Client will be solely responsible for paying any and all
sanctions, and Client further agrees that Attorneys will not be gesponsible or liable for any
sanction award.
&

10. LIABILITY FOR COURT Costs. Client understands thatin the event a lawsuit is filed in
Client’s behalf and such lawsuit is not ultimately sven Ce favor, court costs could be
assessed against Client. Client understands that such costs will not be paid by Attorneys
and agrees to pay such court costs should they be imposed.
11. IF NO RECOVERY. Client further indent that if Attorneys are unable to recover
anything either by settlement or trial, Client sh owe Attorneys nothing as a fee and Client shall
not be obligated to reimburse Attorneys for ¢ ses advanced on Client’s behalf.
12. CONSENT TO ASSOCIATE. Clieat understands and agrees to the association of Lance
Kassab of The Kassab Law Firm, Doug Montague of the law firm Montague, Pittman &
Vamado, P.A. and Tina Nicholso rhe Baker Nicholson Law Firm to represent Client and
other similarly situated Clients ins litigation and/or potential claims. Attorneys have agreed to
split all attorney’s fees in the following manner:

Fifty percent (50% The Kassab Law Firm:

Forty percent (4 0 Montague, Pittman & Varnado, P.A.: and

Ten percent a The Baker Nicholson Law Firm.
However, if The Baker Nicholson Law Firm assumes primary responsibility for litigation as lead
counsel in Client's case, then the Attorney’s have agreed to split all attorney’s fees in the
following mee

Pitty percent (50%) to The Kassab Law Firm

Twenty-Five percent (25%) to Montague, Pitman & Varnado, P.A.; and

Twenty-Five percent (25%) to The Baker Nicholson Law Firm.
The lawyers and law firms listed above have agreed to assume joint responsibility for the
representation of Client. Client understands and agrees to the association of these law firms and
the percentages of fees allocated to each law firm as stated above. The division of fees between
the lawyers and law firms listed above will not increase or change the amount of attorneys’
fees charged to the Client as outlined in Paragraph 3 above.
Client Initials: | hf Page 4 of 6

13. TERMINATION AND WITHDRAWAL. Client understands and agrees that Attorneys may
terminate the attorney-Client relationship created by this agreement and withdraw from Client’s
representation with or without Client’s consent for any reason Attorneys deem necessary.
14. CONTROVERSY AND DISPUTES. Any controversy arising out of or relating to
Attorneys’ representation of Client or this contract or any modification Ns extension
thereof, including any claim for breach of contract, tort, for damages, or fora scission or
reformation of this contract, or any other claim shall be settled by a colt of law with
competent jurisdiction in Harris County, Texas without a jury. GS
XS

15. CLIENT REQUESTS. Client understands that if requests by Clie not consistent with
the standard of care required of Attorneys, the Texas Disciplinary Rul Professional Conduct,
the Texas Supreme Court’s Mandate of Professionalism, or on courtesies expected
between Attorneys and other lawyers or third parties, Attorneys entitled to refuse without
breaching this agreement. &

16. DISCIPLINARY ISSUES. Client understands that ther alternative remedies against
Defendant attorneys may exist. For that reason the empJoyment of Attorneys are not for the
purpose of prosecuting other alternative remedies whether criminal, disciplinary, or other civil
matters. However, Client is hereby specifically advised in accordance with the Disciplinary
Rules of Texas that the State Bar of Texas investigates and prosecutes professional misconduct
committed by Texas attorneys. Although not complaint against or dispute with a lawyer
involves professional misconduct, the State s Office of General Counsel will provide you
with information about how to file a co t. You may call the State Bar's General Counsel
Office toll free at 1-800-932-1900 for moresinformation, The complaint that may be filed by the
State Bar's General Counsel’s office ox,by you as part of a disciplinary proceeding is NOT the
same thing as a legal malpractice ner may be prosecuted on your behalf by Attorneys.

17. CONTRACT SURVIVABILITY. This agreement and the powers and authority granted
herein shall survive and not tefquinate upon Clients death, mental incapacity, or legal disability.
18. SINGULAR AND Pian When the context requires, singular nouns and pronouns used
herein include the plugat

19. SaviNcs, 4) SEVERABILITY. If any provision of this agreement is held void and/or
unenforceable, (then such provision will be modified to reflect the parties’ intention. All
remaining Peon of this agreement shall remain in full force and effect.

20. COmDLETE AGREEMENT. This document sets forth the complete agreement between
Attorneys and Client and may be modified only by a written instrument signed by both a legal
representative of LANCE CHRISTOPHER KASSAB, P.C. and Client. It is agreed that there are no
oral representations of any kind.

21. COMPLETE UNDERSTANDING. By signing below and initialing each page, Client
acknowledges he has fully read this agreement, its terms, effects and consequences and that its
terms, effects and consequences have been fully and completely explained to Client by Attorneys
to Client’s full satisfaction.

Client Initials: / Zi Page 5 of 6

PLEASE INITIAL EACH PAGE, PRINT NAME, SIGN AND DATE
DATED: Agvil) ZO, , 2017.
CLIENT: (Printed Name) <o
~~
CLIENT: (Signature)>
LANCE CHRISTOPHER KASSAB, P.C. D/B/A Z)
THE KASSAB LAW FIRM, MONTAGUE, PITTMAN & VARNADQ; PA.
BAKER NICHOLSON LAW FIRM
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LAW FIRM
1420 Alabama Street | Houston | Texas | 77004
p. 713.522.7400 | f. 713.522.7410
www.TexasLegalMalpractice.com
POWER OF ATTORNEY FOR PROFESSIONAL SERVICES
Client(s) full legal name: MEP a Fi OAAS o WO -

(s) = —e- a
Client(s) home phone number: work number: XG a —
Cel! number a i ©
Client(s) social security number(s): cr (Confidential)

. ° : bd @ it . 39

This agreement is between the above client(s), hereinaft ferred to as “Client” and LANCE

CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB RM, MONTAGUE, PITTMAN &
VARNADO, P.A. and the BAKER NICHOLSON LAW FI ereinafter referred to as “Attorneys.”
1, SCOPE OF SERVICES. Attorneys are here Snployed and appointed as Client’s true and
lawful attorneys to act for Client and to prose lient’s claims or causes of action against:
MICHAEL A. POHL (Defendant) and all ot rsons, firms, corporations, or business entities
legally responsible for causing Client’s d: e s resulting from such acts as follows:

BARRATRY, LEGAL MALPR¢ on AND/OR BREACH OF FIDUCIARY DUTY
ARISING Our oF A ROLLOVER CASE INCIDENT
ca

Client understands that re ase may be filed and litigated jointly with other clients
who are similarly situated to.Client and/or who have similar claims against Defendants. As
such, Client is aware and es that Client’s confidential information may necessarily be
disclosed among other nts in order to effectuate a settlement. Client further
understands and agrées) that if a disagreement or dispute arises between any of the
common clients to the sharing of the confidential information, the attorney-client privilege
may not be available for assertion by any of them against the other(s) on certain issues.
Finally, if a co NRG i or aggregate settlement is effectuated, Client understands and agrees
that the offer ore lemand may require the consent of all commonly-represented clients and
the failure of on e or a few members of the group to consent to the settlement may result in
the withdraw al of the settlement or offer.

Client further understands that Attorneys are not specialized in, nor do they give, tax advice,
bankruptcy advice, family law or estate planning advice or any other advice involving other non-
civil or non-personal injury areas of specialized practice of law and they would recommend the
retention of a Certified Public Accountant (CPA) or qualified tax lawyer with regard to any
questions as to the taxability of any proceeds that are received pursuant to this agreement.
Client(s) Initials: WS Page 1 of 6

2. AUTHORITY. Client authorizes Attorneys to act as Client’s negotiator, to file pleadings
and appear in courts of law in Client’s behalf, to prosecute Client’s claims or causes of action to
settlement or final judgment, and to take any appropriate legal action they deem reasonably
necessary in the preservation of Client’s rights and claims. Client further authorizes attorneys to
do all things that Client might lawfully do in Client’s behalf, and ratifies and confirms all such
lawful acts that Attorneys may do or cause to be done on behalf of Client. Provided, however,
that no settlement shall be made by attorneys without Client’s approval. If Client refuses an
offer of settlement against Attorney’s recommendation, then Client agrees to becothe responsible
for paying all costs and expenses of the case, and must reimburse Attorne expenses and
costs already incurred within seven (7) days of a written demand for ok nen If
Client fails to timely reimburse Attorney after receiving such written notive/ then such failure
constitutes a termination of the representation by the Client. In the overt of such termination,
Attomeys are entitled to retain their entire contingency fee interest. eS
3. CONTINGENT FEE. In consideration of the services wa and to be rendered by
Attomeys, Client assigns and conveys to Attorneys the followjag resent undivided interest in
and to Client’s claims or causes of action: SF
33-1/3% of any sum collected before suitis filed; OR
40% of any sum collected ate suit is filed and settlement is
made without a trial; Re
45% of any sum collected:after the day prior to the first day
trial begins and settlement is made or judgment is paid
without oe
The above percentages shall be calculated.o the gross total settlement and/or recovery of cash,
property, reduction of debt or any oth& calculable benefit Client obtains through Attorney’s
representation, whether paid by periodié)payments, lump sum payment, transfer of property (real
or personal) or calculated by usi e cost of a structured settlement, or any combination
thereof. The contingent fee wi calculated on the gross recovery before the deduction of
costs and expenses. The conti t fee granted to attorneys based on the foregoing percentages
shall be and does hereby constignte a lien upon said claims or causes of action and any proceeds
of settlement or judgmen ke ient further understands that this Contract of Employment and
Power of Attorney ete hh the trial of this cause and the post-trial motions leading to the
entry of a final trial cour udgment. However, Attorneys will not have any duty to undertake an
appeal under this Coftiract of Employment and Power of Attomey unless and until there is an
agreement betw: ient and the Attorneys to undertake same for an additional fee. If there is
to be an appea' this case and the Client and the Attorneys agree to appeal this case, then
Attorneys' fep@r the consummation and handling of that appeal will be negotiated at that time.
4. Rikebean FEE. Client understands that no one has an interest in this case as a referring
attorney included in the fees to be paid as described above. The referring attorney’s interest is
n/a of the gross attorney’s fees collected by Attorneys.
5. COSTS, EXPENSES AND COMMON EXPENSES. Client understands that Client’s claims may
be litigated together with similarly situated clients. Client therefore understands that Attorney
may advance sums to cover reasonable and necessary expenses which in his opinion are
Client Initials: INS Page 2 of 6

reasonably necessary for the development of the Client’s case including any client-specific
expenses as well as Client’s share of various “common expenses.” Common expenses are
expenses that benefit multiple clients who are involved in the same litigation. Examples of
common expenses include costs associated with expert witnesses, consultants, investigators or
witnesses who will testify on common issues, deposition costs for deposing Defendants and
witnesses (i.e. the main defendants or the staff members of defendants), travel costs associated
with common depositions and with attending hearings at which motions on common issues are
heard, copying charges for copying or scanning documents that pertain to oo issues or
clients, court reporter and deposition fees that pertain to common issues or RO Ss, as well as
miscellaneous costs such as parking costs, certified mail, delivery char. d postage for
motions and briefings which pertain to common issues or clients. Client “s cific costs” are costs
that will likely be incurred that benefit only the one specific client and likely would not be
incurred if that particular client did not exist. Examples of specifig. cost include physical
examinations, costs associated with deposition of the particular Ko , costs associated with
expert witness testimony that will only benefit the specific cliget) opy charges, postage for
motions, letters, correspondence or other briefs which only benefit the specific client as well as
travel costs to attend hearings, depositions or other legal wedtsadings which only benefit the
specific client. Client understands and agrees that if Attorn dvance any court costs and other
litigation expenses incident to the handling of Client’s s, including common expenses,
Client will be responsible for reimbursing Attorne cout of any recovery made in client’s
lawsuit. Common expense deductions will be sels follows:

At the time of settlement or resolution of Clients case, Client will be responsible

for its percentage of the common expenses which will be deducted from an

P ge Mi

recovery after the deduction of ee fees. The percentage will be

calculated by taking the total nume of clients and dividing this number by the

total amount of common expensé§;’As an example, if there are 100 clients and

common expenses amount to $10,000.00, then each client would be required to

pay $100.00 in common e es (100 clients / $10,000.00 = $100). As another

example, if there are 3 do and the common expenses amount to $30,000.00,

then each client would\be required to pay $200.00 in common expenses (150

clients / $30,000.00 78200).
Client further agrees ht advanced by Attorneys to cover such necessary court costs and
other litigation expensessincident to the preparation and prosecution of Client’s claims or causes
of action will be r iF t0 Attorneys out of any sum collected in addition to any contingent fee
set forth herein, Client agrees that any advancement of costs or expenses by Attorneys shall
also constitute a lien on Client’s claims and any proceeds of any settlement or judgment. If
there is no reéovery for Client, Client will not be responsible for any costs and/or expenses
to develop the case.
6. WARRANTIES AND REPRESENTATIONS. Attorneys agree to use the firm’s best efforts in
representing Client. Client understands that Attorneys make no warranties or representations
regarding the successful outcome of Client’s claims or causes of action, the value thereof, or any
expected recovery, and any expression relative thereto is a matter of Attorney's opinion only.
Attorneys do not guarantee any timeframe within which Client’s claims or causes of action will
be resolved.
Client Initials: TY “ Page 3 of 6

7. CLIENT OBLIGATIONS. Client agrees to tell Attorneys the truth, to cooperate with and
keep Attorneys informed of any developments relative to Client’s claims or causes of action, to
faithfully comply with this agreement, and to keep Attorneys advised of any changes to Client’s
address or telephone number.
8. FICTITIOUS, GROUNDLESS, OR BAD FAITH. Client understands that in the event a suit
filed in Client’s behalf is found to be frivolous, fictitious, groundless, or brought in bad faith,
Client may be liable for defendant's attorney's fees. AS
9. SANCTIONS. Client agrees that Client must timely comply with disso requests from
opposing counsel. Client understands that Client’s failure to comply withsdiscovery requests
could result in the court imposing sanctions in the form of a fine or other penal Client agrees
that in the event sanctions are imposed, Client will be solely responsi or paying any and all
sanctions, and Client further agrees that Attorneys will not be responsible or liable for any
sanction award. &y
10. ‘LIABILITY FOR Court Costs. Client understands that ja the event a lawsuit is filed in
Client’s behalf and such lawsuit is not ultimately resolved inClient’s favor, court costs could be
assessed against Client. Client understands that such couthabsts will not be paid by Attorneys
and agrees to pay such court costs should they be imps
11. IF NO RECOVERY. Client further underst that if Attorneys are unable to recover
anything either by settlement or trial, Client sha Attorneys nothing as a fee and Client shall
not be obligated to reimburse Attorneys for expenses advanced on Client’s behalf.
12. CONSENT TO ASSOCIATE. Clint ndesands and agrees to the association of Lance
Kassab of The Kassab Law Firm, Dotg”’ Montague of the law firm Montague, Pittman &
Varnado, P.A. and Tina Nicholson ofthe Baker Nicholson Law Firm to represent Client and
other similarly situated Clients in its litigation and/or potential claims. Attorneys have agreed to
split all attorney’s fees in the owing manner:

Fifty percent (50%) tothe Kassab Law Firm:

Forty percent Orgs ontague, Pittman & Varnado, P.A.: and

Ten percent (0); e Baker Nicholson Law Firm.
However, if The Baker Nicholson Law Firm assumes primary responsibility for litigation as lead
counsel in Client’ sease, then the Attorney’s have agreed to split all attorney’s fees in the
following manrier:,""

©

Fifty percent (50%) to The Kassab Law Firm

T y-Five percent (25%) to Montague, Pitman & Varnado, P.A.; and

Twenty-Five percent (25%) to The Baker Nicholson Law Firm.
The lawyers and law firms listed above have agreed to assume joint responsibility for the
representation of Client. Client understands and agrees to the association of these law firms and
the percentages of fees allocated to each law firm as stated above. The division of fees between
the lawyers and law firms listed above will not increase or change the amount of attorneys’
fees charged to the Client as outlined in Paragraph 3 above.
Client Initials: TIt4 Page 4 of 6

13. TERMINATION AND WITHDRAWAL. Client understands and agrees that Attorneys may
terminate the attorney-Client relationship created by this agreement and withdraw from Client’s
representation with or without Client’s consent for any reason Attorneys deem necessary.

14, CONTROVERSY AND DISPUTES. Any controversy arising out of or relating to
Attorneys’ representation of Client or this contract or any modification or extension
thereof, including any claim for breach of contract, tort, for damages, or foxirescission or
reformation of this contract, or any other claim shall be settled by a cout of law with
competent jurisdiction in Harris County, Texas without a jury. )

15, CLIENT REQUESTS. Client understands that if requests by Clien not consistent with
the standard of care required of Attorneys, the Texas Disciplinary Rul rofessional Conduct,
the Texas Supreme Court’s Mandate of Professionalism, or co n courtesies expected
between Attorneys and other lawyers or third parties, Attomeys(are entitled to refuse without
breaching this agreement. S

16. DISCIPLINARY ISSUES. Client understands that oo alternative remedies against
Defendant attorneys may exist. For that reason the em ent of Attorneys are not for the
purpose of prosecuting other alternative remedies whee rime disciplinary, or other civil
matters. However, Client is hereby specifically advised in accordance with the Disciplinary
Rules of Texas that the State Bar of Texas investigates and prosecutes professional misconduct
committed by Texas attorneys. Although not ope opin against or dispute with a lawyer
involves professional misconduct, the State ‘s’ Office of General Counsel will provide you
with information about how to file a complaint’ You may call the State Bar's General Counsel
Office toll free at 1-800-932-1900 for m ormation. The complaint that may be filed by the
State Bar's General Counsel’s office or epyou as part of a disciplinary proceeding is NOT the
same thing as a legal malpractice case that may be prosecuted on your behalf by Attorneys.

17. CONTRACT sunvivanases This agreement and the powers and authority granted
herein shall survive and not tertninlate upon Client’s death, mental incapacity, or legal disability.
18. SINGULAR AND Pua When the context requires, singular nouns and pronouns used
herein include the plural‘

19. SAVINGS AND) SEVERABILITY. If any provision of this agreement is held void and/or
unenforceable, thenysuch provision will be modified to reflect the parties’ intention. All
remaining provisions of this agreement shall remain in full force and effect.

20. Contry AGREEMENT. This document sets forth the complete agreement between
Attorneys Client and may be modified only by a written instrument signed by both a legal
representative of LANCE CHRISTOPHER KASSAB, P.C. and Client. It is agreed that there are no
oral representations of any kind.

21. COMPLETE UNDERSTANDING. By signing below and initialing each page, Client
acknowledges he has fully read this agreement, its terms, effects and consequences and that its
terms, effects and consequences have been fully and completely explained to Client by Attorneys
to Client’s full satisfaction.

Client Initials: “7 f, “3 Page 5 of 6

PLEASE INITIAL EACH PAGE, PRINT NAME, SIGN AND DATE
J. /
DATED: “/ LE f -_, 2017.
Wise ~ faerry
CLIENT: (Printed Name) _<C (
CLIENT: (Signature) /
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LANCE CHRISTOPHER KASSAB, P.C. D/B/A Q
THE KASSAB LAW FIRM, MONTAGUE, PITTMAN & VARNADO PA.
BAKER NICHOLSON LAW FIRM
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34,2022-09-12,RSP,Kassab,Kassab’s response to Pohl no-evid MSJ,"Kassab's Response to Pohl's Motion for Partial Traditional and No-Evidence Summary Judgment on Affirmative Defenses — opposes Pohl's attempt to eliminate Kassab's affirmative defenses of justification, unclean hands, illegality, unlawful acts, criminal acts, and in pari delicto, and challenges Pohl's global no-evidence motion as procedurally defective under Timpte Industries v. Gish","Phase 3 response brief filed September 12, 2022 (same day as Kassab's declaration, Filing #33). Responds to Pohl's motion seeking to eliminate Kassab's key affirmative defenses before trial. Incorporates by reference Kassab's own MSJs (June 8, 2021 and August 29, 2022, i.e. Filing #30), the Nicholson MSJ (August 19, 2022), and Nicholson's response to Pohl's motion (September 12, 2022). Addressed to Judge Scot 'Dolli' Dollinger.",MSJ-3,N/A,Phase 3,2022-09-12_RSP_Kassab-Response-to-Pohl-No-Evid-MSJ_FILED.pdf,"Deny Pohl's Motion for Partial Traditional and No-Evidence Summary Judgment on Affirmative Defenses; alternatively, grant continuance under Rule 166a(g) to allow completion of discovery on illegality defense; grant summary judgment against Plaintiffs ordering they take nothing on their claims against Kassab","9/12/2022 6:16 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68179652
By: Deandra Mosley
Filed: 9/12/2022 6:16 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’ RESPONSE TO PLAINTIFFSC’ MOTION FOR
PARTIAL TRADITIONAL AND NO-EVIDENCE 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 (“Kassab”) file this, theeir Response to Plaintiffs’ Motion
for Partial Traditional and No-Evidence Suummary Judgment on Affirmative
Defenses,1 and would respectfully show the following.
INTRaODUCTION
Pohl2 committed illegal and unethical barratry and he wants Kassab, who
brought the barratry litigation aend grievances against Pohl on behalf of more than
four hundred (400) of Pohl’fs illegally solicited clients, to pay for Pohl’s barratry
defense costs. But Pohl’s claims are barred for several reasons, including based on
several affirmative defenses. Pohl has filed the instant Motion, seeking partial
traditional summiary judgment on the affirmative defenses of justification, unclean
hands, illegoality, and unlawful acts. However, Pohl has not negated those defenses
as a matter of law. As to the other defenses, Pohl attempts to dispose of them
through a global and conclusory no-evidence challenge, which is insufficient.
1 The self-serving title of the pleading is “Plaintiffs’ Motion for Partial Summary Judgment on
Defendants’ Affirmative Defenses that Seek to Relitigate Failed Barratry Claims Against Plaintiffs
and No-Evidence Motion on the Remaining Affirmative Defenses.”
2 This refers collectively to Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC.
Regardless, Kassab can demonstrate, either here or in incorporated summary
judgment briefing, that each of the defenses applicable to him apply, and that
evidence supports each of them. Accordingly, the Motion should be in all things
denied. k
GENERAL OBJECTION C
Pohl inappropriately suggests that all barratry suits were resolved on the
merits. That is incorrect. One of the lawsuits – the Berry caise – was settled,3 which
suggests that the case had merit. Another lawsuit – the Cheatham case – was
initially dismissed on summary judgment but recently reversed because fact issues
existed on whether Pohl and his co-counsel committed barratry. See Cheatham v.
Pohl, No. 01-20-00046-CV, 2022 Tex. Appl. LEXIS 6528 (Tex. App.—Houston [1st
Dist.] Aug. 30, 2022, no pet. h.). TheM other two lawsuits – Brumfield and Gandy –
were dismissed, not on the merits, but on the affirmative defense of limitations. See
Brumfield v. Williamson, 634 iS.W.3d 170, 177 (Tex. App.—Houston [1st Dist.] 2021,
pet. denied) and Gandy v. Williamson, 634 S.W.3d 214 (Tex. App.—Houston [1st
Dist.] 2021, pet. denoied). “An affirmative defense presents a situation where a
plaintiff cannot relcover even if his claims are true because of some other fact that
the defendant ihas pled as a bar.” Man Engines & Components, Inc. v. Shows, 434
S.W.3d 132, 137 (Tex. 2014), In other words, none of the barratry suits have
been adjudicated on the merits, and neither has the issue of whether Pohl
committed barratry.
3 Exhibit 1, September 12, 2022 Declaration of Lance Kassab at ¶ 14.
Kassab incorporates and adopts by reference all evidence and argument in
his Traditional Motion for Summary Judgment filed on August 29, 2022. See TEX. R.
CIV. P. 58. Kassab also incorporate all evidence and argument in the Traditional
Motion for Summary Judgment filed by Tina Nicholson and Baker Nikcholson, LLP
(“Nicholson”) on August 19, 2022, as well as Nicholson’s responsCe to Pohl’s Motion
filed September 12, 2022, to the extent that response is applicable to Kassab. The
combined evidence and argument of all those documents diemonstrate conclusively
that Pohl committed barratry and unauthorized practice of law, which bars him
from recovery in this retaliatory lawsuit.
RESPONSE TO TRADITIONAL SUMMARY JUDGMENT
A. Justification is a valid laffirmative defense to Pohl’s
claims. a
Kassab has asserted the affirmative defense of justification.4 Pohl contends
that justification “is not a defenese to any of Pohl’s claims.”5 Of course, Pohl fails to
support this statement with fany authority. Rather, he contends that justification “is
an affirmative defense to a claim of tortious interference with contract.”6 But just
because the defense is commonly applied to one type of claim does not mean, as Pohl
contends, that iti is “not a recognized defense” to other types of claims, such as theft
of trade secorets, conversion or conspiracy.7 In fact, the defense of justification has
been applied outside the context of tortious interference to anti-trust claims. See
Money Masters, Inc. v. TRW, Inc., No. 05-98-02017-CV, 2003 Tex. App. LEXIS 622,
4 See Kassab’s Sixth Amended Answer, at ¶ 15(2).
5 Mot. at 2.
6 Mot. at 3.
7 Mot. at 3.
at *17 (Tex. App.—Dallas Jan. 23, 2003, pet. denied) (mem. op.). And, Texas courts
have considered the defense in relation to theft of trade secrets. See Lamont v.
Vaquillas Energy Lopeno, Ltd., 421 S.W.3d 198, 220 (Tex. App.—San Antonio 2013,
pet. denied) (determining whether evidence supported defense of jukstification to
claim that seismic map of a gas prospect constituted a tradCe secret and was
acquired through improper means). Accordingly, Pohl has failed to demonstrate
that the defense of justification is inapplicable as a matter iof law.
Pohl argues that even if the defense applies, Kassab and Nicholson cannot
show that “Pohl took any action against them or that involved them before they
committed the torts that form the basis of Pohl’s claim.”8 But Pohl misunderstands
the nature of the justification defense, andl the factual basis giving rise to it.
Justification can be based on Mthe exercise of either (1) the party’s own legal
rights or (2) the party’s good faith claim to a colorable right, even though the claim
ultimately proves to be mistakien. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 211
(Tex. 1996). When the party conclusively establishes it had a legal right to engage
in the complained-of oconduct, the party's motive for engaging in that conduct is
irrelevant. Id. l
Here, Kiassab was justified in obtaining the information that Pohl contends is
his purported trade secrets. The information was obtained by Kassab as part of his
investigation and ultimate pursuit of barratry claims against Pohl on behalf of
hundreds of clients.9 Kassab concluded, based on discussions he had with and
8 Mot. at 3.
9 Exhibit 1, September 12, 2022 Declaration of Lance Kassab at ¶¶ 5-8.
documents obtained from Scott Favre, the owner of Precision Marketing, that the
information was owned by Precision Marketing, and not Pohl.10 In fact, Favre
testified that Precision Marketing owned the information, including client lists and
files the company acquired while soliciting clients,11 and shared wkith Kassab a
purchase agreement demonstrating that Favre was the owner oCf that information
through his purchase of Precision Marketing.12
Kassab had a legal right to acquire evidence to supiport the barratry claims
that would be made against Pohl on behalf of his clients without making himself
liable. See Taylor v. Tolbert, 644 S.W.3d 637, 647 (Tex. 2022) (“lawyers must be able
to pursue legal rights they deem necessary and proper for their clients without the
menace of civil liability looming over theml and influencing their actions.”). And in
carrying out that lawyerly duty, KasMsab had the right and obligation to investigate
the potential claims against Pohl or risk sanctions for not investigating the claims.
See TEX. R. CIV. P. 13. Kassaib was also justified in obtaining the information to
report Pohl to the State B
ar of Texas, which he did.13 See TEX. DISC. R. PROF’L COND.
8.03 (“a lawyer havinog knowledge that another lawyer has committed a violation of
applicable rules ofl professional conduct that raises a substantial question as to that
lawyer's honesity, trustworthiness or fitness as a lawyer in other respects, shall
inform the appropriate disciplinary authority.”); TEX. R. DISC. PROC. 17.09 (“No
lawsuit may be instituted against any Complainant or witness predicated upon the
10 Exhibit 1, September 12, 2022 Declaration of Lance Kassab at ¶¶ 8.
11 Exhibit 2, Affidavit of Scott Favre.
12 Exhibit 3, Purchase Agreement.
13 Exhibit 4, October 2018 Declaration of Lance Kassab, at p. 2; Exhibit 5, Grievance Complaint.
filing of a Grievance or participation in the attorney disciplinary and disability
system.”).
Under these circumstances, there are genuine issues of material fact as to
whether Kassab was justified in the actions that he took. k
B. Kassab may assert unclean hands as a defensCe because
Pohl seeks equitable relief. 
Kassab asserts unclean hands as a defense becauset Pohl seeks injunctive
relief and attorney’s fees as damages under the Texas Uniform Trade Secrets Act
(“TUTSA”). To the extent Pohl is permitted to seeke attorney’s fees as damages, his
unclean hands bar him from recovering under suuch an equitable exception.
Pohl’s summary judgment is based on the false premise that he “does not
seek equitable relief.”14 That contentioan is rebutted by Pohl’s own pleadings. Pohl
has pursued claims under TUTSA, which requires a person claiming ownership of a
trade secret to demonstrate “legeal, or equitable” title to the information. See TEX.
CIV. PRAC. & REM. CODE
§f 134A.002(3-a) (emphasis added). Additionally, “Pohl
seeks injunctive relief”15 and it is well-established that “[i]njunctive relief is an
equitable remedy.” Fetter v. Wells Fargo Bank Tex., N.A., 110 S.W.3d 683, 688
(Tex. App.—Houiston [14th Dist.] 2003, no pet.) (emphasis added). Moreover, Pohl’s
conclusion roequests “other and further or alternative relief (legal and equitable) to
which Pohl may be entitled,”16 for all of his causes of action. Because Pohl is seeking
equitable relief, he “must come into court with clean hands.” Fetter, 110 S.W.3d at
14 Mot. at 4.
15 See Pohl’s First Amended Petition, at ¶ 45.
16 Pohl’s First Amended Petition, at ¶ 50 (emphasis added).
688. Pohl’s contention that unclean hands is not a valid affirmative defense fails as
a matter of law.
C. Illegality.
1. Objection to Pohl’s lack of supporting evidencke.
Kassab objects to Pohl’s lack of evidence supporting his traCditional summary
judgment motion as to illegality. Pohl asserts that illegality does not apply because
it “is not part of a document,” and he “engaged in ‘illegal aicts” long before” Kassab
allegedly wronged Pohl.17 Pohl then incorrectly implies that his acts of barratry
“[have] largely been adjudicated” on the merits.18 That is untrue, as demonstrated
above. Pohl also asserts that his “claims do not seek to enforce any illegal contract
or other illegal action.”19 But Pohl prlovides no evidence in support of his
statements, and “motions and argumMents of counsel are not evidence.” Johnson v.
Scott, 113 S.W.3d 366, 373 (Tex. App.—Beaumont 2003, pet. denied). It is telling
that Pohl is unwilling to sweair to any of these facts in an affidavit. Kassab objects
to Pohl’s lack of summary judgment evidence.
2. Poohl has not negated the illegality defense.
Pohl arguesl that the illegality defense “is not a defense” to his claims, “and
even if it werei, it would not be available here.”20 Of course, Pohl does not cite any
case precluding the use of the illegality defense in claims arising from barratry.
This is because the defense has commonly been applied to bar claims stemming
17 Mot., at 4.
18 Mot., at 4-5.
19 Mot., at 5.
20 Mot., at 4.
from barratry. See Luong v. McAllister, No. 01-17-00198-CV, 2018 Tex. App. LEXIS
5998, at *9 (Tex. App.—Houston [1st Dist.] Aug. 2, 2018, pet. denied) (contract
between law firm and non-lawyer to solicit clients in exchange for share of
attorney’s fees was void due to illegality); Plumlee v. Paddock, 832 S.Wk.2d 757, 760
(Tex. App.—Fort Worth 1992, writ denied) (refusing equitable relCief where owner of
ambulance company had no basis to recover under fee-sharing agreement with
attorney without reliance on unlawful barratry agreemenit). And Pohl’s lawyers
are well aware of this doctrine. They recently used the illegality defense to
obtain summary judgment on a legal malpractice claim brought by an investor who
gave an attorney money in exchange for a share of attorneys’ fees from the BP
litigation. See Duncan Litig. Invs., LLC vl. Baker, Donelson, Bearman, Caldwell &
Berkowitz, No. 4:19-CV-3094, 2022 UM.S. Dist. LEXIS 147005, at *24-30 (S.D. Tex.
2022). Moreover, as demonstrated in the summary judgment briefing on file with
the Court, Pohl and his lawyeirs in the Mississippi Litigation also used the illegality
defense to Precisions Marketing’s claims against Pohl for failing to pay Precision
Marketing for referrinog thousands of BP cases.
The illegalitly defense applies here. To sustain his claims, Pohl must establish
a right to thei property he claims was misappropriated. The first element of a
TUTSA claim violation is that the plaintiff owned a trade secret. TEX. CIV. PRAC. &
REM. CODE §§ 134A.002(1), (3), (6), 134A.004(a). The statute defines “owner” to
mean “the person or entity in whom or in which rightful, legal, or equitable title to”
the trade secret. Id. at § § 134A.002(3-a). Because Pohl obtained the alleged trade
secret information illegally, through barratry and the unauthorized practice of law,
he necessarily does not have “rightful, legal, or equitable title” to the information.
Accordingly, Pohl’s illegal conduct necessarily negates his TUTSA claim.
Likewise, although common-law claims for conversion and conkspiracy are
preempted by TUTSA, Pohl would have to establish that hCe owned or had
possession of the property or entitlement to possession. See Freezia v. IS Storage
Venture, LLC, 474 S.W.3d 379, 386-87 (Tex. App.—Houstion [14th Dist.] 2015, no
pet.). Because Pohl’s claims rest on information acquired through illegal contracts,
Kassab can sustain an affirmative defense of illegality against Pohl.
Pohl provides a string cite of unrelated authority to improperly suggest that
illegality cannot be a defense in this casel. But none of the cases cited by Pohl are
relevant to the facts of this case or dMiscuss the interaction of the illegality defense
and the unlawful acts doctrine. See Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468,
483 (Tex. 2016) (in unrelated ilandlord tenant case); Lewkowicz v. El Paso Apparel
Corp., 625 S.W.2d 301, 303 (Tex.1981) (holding that illegal actions concerning
leather production anod improper jailing in Mexico violate the public policy of Texas);
Niles v. Harris Colunty Fresh Water Supply Dist., 339 S.W.2d 562, 563 (Tex. Civ.
App.—Waco 19i60, writ ref’d) (affirming pleading of illegality was unnecessary over
water supply where the contract was illegal on its face); Reid v. Associated
Employers Lloyds, 164 S.W.2d 584, 585–586 (Tex. Civ. App.—Fort Worth 1942, writ
ref’d) (whether illegality must be affirmatively asserted as a defense to worker’s
compensation claim originating from unlading a keg of beer); Montgomery Ward &
Co. v. Lusk, 52 S.W.2d 1110 (Tex. Civ. App.—Waco 1932, writ ref’d) (whether
contract requiring work for more than 9 hours a day violated a statute); Texas & P.
Coal Co. v. Lawson, 89 Tex. 394, 34 S.W. 919, 921 (1896) (concerning the legality of
a contract for the sale of liquor). k
Accordingly, this Court should deny Pohl’s traditional moCtion for summary
judgment on illegality as unsupported by law or fact.
D. Unlawful acts, criminal acts, and in pari dielicto.
1. Objection to Pohl’s lack of supporting evidence.
Kassab again objects to Pohl’s lack of evidence supporting his traditional
motion for summary judgment as to unlawful acts, criminal acts or in pari delicto.
Pohl asserts that “criminal acts,” “unlawlful acts,” and “in pari delicto” does not
apply because “(1) Pohl’s actions hMave been largely adjudicated and were not
‘admittedly’ criminal or unlawful; and (2) even if a fact issue remained regarding
the legality of Pohl’s acts, anyi wrongful act is not sufficiently tied to Pohl’s claims
here to give rise to a defense.”21 But Pohl’s barratry and unauthorized practice of
law in other states hoave not been disposed of on the merits. Instead, Pohl’s sole
evidence supportilng his motion is that “Pohl can certainly demonstrate the
elements of eaich of his claims without being required to prove any illegal act.”22 And
then he doesn’t—he provides no evidence whatsoever. Pohl is not even willing to
swear under oath that he did not commit barratry. Accordingly, Kassab objects to
Pohl’s lack of summary judgment evidence.
21 Mot., at 5.
22 Mot., at 6.
10
2. Kassab established that Pohl’s unlawful acts,
criminal acts and the doctrine of in pari delicto
preclude Pohl’s claims in prior summary judgment
briefing, which is incorporated herein.
In his Traditional Motion for Summary Judgment filed on August 29, 2022,
Kassab demonstrated that Pohl’s unlawful acts, criminal acts and thee in pari delicto
doctrines preclude Pohl’s claims as a matter of law. Kassab incorporates that
argument and evidence as if set forth verbatim herein. Kassatb also incorporates the
argument and evidence relating to the unlawful acts doctrine (including illegal or
criminal acts or in pari delicto) set forth on pages e9-14 of Nicholson’s Response to
Plaintiffs’ Traditional and No-Evidence Motionu for Summary Judgment, filed on
September 12, 2022.
In short, the Unlawful Acts ruale provides that “[i]f, at the time of the
plaintiff’s injury, the plaintiff was engaged in an illegal act, and that act contributed
to the injury, he may not recoveer.” Andrew Shebay & Co., P.L.L.C. v. Bishop, 429
S.W.3d 644, 648–49 (Tex. fApp.—Houston [1st Dist.] 2013, pet. denied). The
summary judgment evidence on file with the Court demonstrates that Pohl violated
Texas rules and laws governing lawyers by illegally soliciting clients, splitting fees
with a non-lawiyer, and failing to protect confidential client information. Pohl’s
former clienots then sued him for his barratry, and Pohl now seeks to recover fees
from defending his barratry.23 In sum, if Pohl had not been violating the law and
disciplinary rules by procuring the purported trade secret information through
23 In addition, Kassab attaches the expert reports from Lillian Hardwick (Exhibit 6), Benjamin
Cooper (Exhibit 7), and Joseph F. Cleveland, Jr. (Exhibit 8), which detail and explain why the
evidence in the summary judgment record establishes that Pohl committed barratry and other
unlawful acts which preclude his claims.
11
illegal and unethical means, he would not have been sued for barratry. The very
purpose of the doctrine is to make sure “that [Pohl] should not even entertain the
hope of indemnity for the offense committed.” Houston Ice & Brewing Co. v. Sneed,
63 Tex. Civ. App. 17, 21, 132 S.W. 386, 388 (1910, writ dism’d) (holdinkg that one of
two parties involved in the illegal sale of alcohol could not Csue the other for
misrepresentation).
Moreover, the First Court of Appeals has opined thait Pohl’s acts, if true—and
they are true—are illegal and preclude summary judgment. In the Cheatham case,
the court of appeals concluded that the same Walker deposition testimony as here
on the same allegations24 are “some evidence” that “Pohl and [his co-counsel]
coordinated the barratry scheme” and “thlat Pohl directly funded, and his wife and
her company further funded, the solMicitation of prospective clients” and that “Pohl
directed case runners to contact and solicit potential clients on his behalf, including
offering money from Pohl’s fiirm and his wife’s company.” Cheatham, 2022 WL
3720139, at *8. This evidence defeated the summary judgment filed by Pohl’s co-
counsel in the Cheathoam case, and is certainly enough to defeat it here.
Accordinglyl, this court can apply these doctrines to deny recovery to Pohl for
his illegal actis, even if the court holds that one or more defendants have also
committed an unlawful act. See Dover v. Baker, Brown, Sharman & Parker, 859
S.W.2d 441, 443, 450-51 (Tex. App.—Houston [1st Dist.] 1993, no writ) (denying
recovery to plaintiff who sued his attorney for malpractice claiming he signed a
24 Kassab attached Walker’s testimony as exhibits in his prior summary judgment motion, which is
incorporated by reference herein.
12
false affidavit on the advice of his attorney who knew the affidavit was unlawful).
This doctrine is not an “excuse” but a bar to Pohl bringing any claims that stem
from his own illegal and wrongful actions.
For these reasons, and those stated in the summary judgment bkriefing before
the Court, summary judgment on the affirmative defenses of unlawCful acts, criminal
acts and the in pari delicto should be denied.
RESPONSE TO NO-EVIDENCE SUMMARY J DUiDGMENT
A. Pohl’s global and conclusory no-evidence challenge is
defective and should not be consideered.
The no-evidence summary judgment rule uexplicitly requires Pohl to “state the
elements as to which there is no evidence.” TEX. R. CIV. P. 166a(i) (emphasis
added). “The motion must be specific ina challenging the evidentiary support for an
element of a claim or defense; paragraph (i) does not authorize conclusory
motions or general no-evideence challenges to an opponent’s case.” Timpte
Indus. v. Gish, 286 S.W.3d 30f6, 310 (Tex. 2009) (emphasis added).
Pohl’s no-evidence challenge violates this rule. His entire no-evidence
argument is as follows:
In additioin to the affirmative defenses set forth above, Defendants
assert tihe following affirmative defenses, some of which were already
consiodered and rejected by this Court and the court of appeals during
consideration of the Defendant’s Motions to Dismiss under the Texas
Citizens Participation Act: 1) Statute of limitations; 2) Estoppel; 3)
Waiver; 4) Ratification; 5) Release; 6) Contribution; 7) Failure to
mitigate; 8) Lack of standing; 9) Accord and Satisfaction; 10).
Assumption of the Risk; 11) First Amendment; 12) Attorney Immunity;
13) Res Judicata; 14) Defect of Parties; 15) Abandonment; 16) Subject
of a Valid Contract. Pohl is entitled to summary judgment pursuant to
Rule 166a(i) because after an adequate time for discovery, the
13
Defendants have no evidence to support any of these affirmative
defenses.
This conclusory no-evidence challenge is insufficient as a matter of law. See Dean v.
Aurora Bank, F.S.B., No. 01-15-00827-CV, 2016 Tex. App. LEXIS 13472, at *9 (Tex.
App.—Houston [1st Dist.] Dec. 20, 2016, no pet.) (mem. op.) (e“A no-evidence
summary judgment is insufficient as a matter of law if the motion is conclusory or
fails to challenge a specific essential element of a cause of acttion for which the non-
movant would have the burden of proof at trial.”).
When a no-evidence motion for summary ejudgment, as here, does not
challenge specific elements, it must be treatued as a traditional motion under
166a(c), which imposes the burden on the movant. Weaver v. Highlands Ins. Co., 4
S.W.3d 826, 829 n.2 (Tex. App.—Houstaon [1st Dist.] 1999, no pet.). As he provides
no facts or law in support of his argument, Pohl has not met his burden to prove
“there is no genuine issue as to aeny material fact and the moving party is entitled to
judgment as a matter of la
wf.” TEX. R. CIV. P. 166a(c); Hillis v. McCall, 602 S.W.3d
436, 439-40 (Tex. 2020). With Pohl not having met his burden, “the burden does not
shift and [Kassab] need not respond or present any evidence.” Chavez v. Kansas
City S. Ry. Co., 5i20 S.W.3d 898, 900 (Tex. 2017). Accordingly, the Court should deny
Pohl’s purpoorted “no-evidence” motion.
B. The court should deny Pohl’s “no-evidence” motion
because Kassab can provide sufficient evidence and law
to support his affirmative defenses.
In his Traditional Motion for Summary Judgment filed June 8, 2021, Kassab
established, as a matter of law, the defenses of limitations, res judicata, and
14
attorney immunity. Kassab incorporates that motion and the evidence attached
thereto for all purposes herein. See TEX. R. CIV. P. 58. In the Traditional Motion for
Summary Judgment filed on August 29, 2022, Kassab established, as a matter of
law, the defenses of immunity pursuant to Texas Rule of Disciplinakry Procedure
17.09, the judicial proceedings privilege, attorney immunity, limCitations, and that
Pohl’s claims are barred by illegal and unlawful acts. In that motion, Kassab also
demonstrated that the alleged trade secret information is niot owned by Pohl, but by
Precision Marketing or Pohl’s former clients, which demonstrates the lack of
standing and defect of parties affirmative defenses. Kassab also incorporates that
motion and the evidence attached thereto. See TEX. R. CIV. P. 58.
In addition, Kassab incorporates bly reference and adopts the response to
Pohl’s no-evidence motion for sumMmary judgment filed by the Nicholson on
September 12, 2022 as to those defenses which apply equally to Kassab, including
attorney immunity, limitationis, waiver, ratification and failure to mitigate. See TEX.
R. CIV. P. 58.
In addition, aos to the affirmative defense of standing or capacity and
ownership of the lpurportedly confidential information, the recent depositions of
Ladner and Wialker demonstrate that the information was Precision Marketing’s
work product and owned by Precision Marketing, not Pohl. Ladner testified that
“client information” was owned by Precision Marketing.25 Likewise, Walker testified
that his company owned the client list and documents containing information about
25 Exhibit 9, August 29, 2022 Deposition of Kirk Ladner, at 44-45.
15
clients with potential cases.26 Walker agreed that the client information was
Precision Marketing’s “work product.”27 Thus, Pohl does not have standing or
capacity to sue Kassab, and there is a defect of parties to this litigation.
As to the defense of assumption of the risk, Pohl assumed thek risk that his
purported trade secret information would be stolen when he placCed it in the hands
of Walker, a known convicted felon. Specifically, Walker pled guilty to “one count of
federal program fraud and one count of conspiracy to icommit federal program
fraud” because he “fraudulently diverted and misused both federal grants and
money belonging to the State of Mississippi.”28 Pohl knew that Walker was a
convicted felon.29 Yet, Pohl trusted Walker with his purported trade secrets, without
requiring Walker to sign a confidentiality lagreement or non disclosure agreement.30
Pohl did not require these agreemeMnts because the alleged trade secrets are not
trade secrets at all and Pohl has no ownership in the documents that are the subject
of this lawsuit. Thus, Pohl aissumed the risk that Walker, a convicted felon who
“diverted and misused” property belonging to the others, would divert and misuse
Pohl’s purportedly coonfidential information, if in fact the alleged confidential
information were hlis.
The remiaining contract-related affirmative defenses of release, accord and
satisfaction, estoppel do not apply to Kassab. But to the extent that they do, Kassab
26 Exhibit 10, August 31, 2022 Deposition of Scott Walker, at 250-251.
27 Exhibit 10, August 31, 2022 Deposition of Scott Walker, at 251.
28 https://archives.fbi.gov/archives/jackson/press-releases/2014/ocean-springs-businessman-pleads-
guilty-to-federal-program-fraud. The Court is requested to take judicial notice of this official press
release from the Federal Bureau of Investigation.
29 Exhibit 11, December 10, 2021 Deposition of Michael Pohl, at 104-105, 159-160.
30 Exhibit 11, December 10, 2021 Deposition of Michael Pohl, at 22-23, 159-161.
16
incorporates the argument and evidence set forth by Nicholson in her September 12,
2022 response to Pohl’s purported no-evidence challenge.
ALTERNATIVE REQUEST FOR CONTINUANCE
Texas Rule of Civil Procedure 166a(g) allows a continuance of kthe summary
judgment hearing “to permit affidavits to be obtained or depositiCons to be taken or
discovery to be had or may make such other order as is just.” T iEX. R. CIV. P. 166a(g).
To the extent the evidence is insufficient to raise a fact iissue on the affirmative
defense of illegality, Kassab objects and requests a continuance on the no-evidence
motion because Pohl has unreasonably resisted Kassab’s request for discovery
relating to that defense.
Pohl’s resistance prompted Kassab lto file his Motion to Compel Removal of
Pohl’s Objections and Properly RespMond to Discovery on August 25, 2022. Kassab
incorporates that motion as if set forth verbatim herein and asks the Court to take
judicial notice of it. See TEX. Ri. CIV. P. 58. As set forth in the motion to compel, Pohl
has refused to answer relevant and material discovery relating to his involvement
in the illegal barratroy scheme, which is discovery going to the heart of Kassab’s
illegality defense. lSpecifically, that discovery will aid in establishing that all of
Pohl’s purportiedly trade secret information was derived through illegal or unethical
conduct, such as barratry and the unauthorized practice of law.
Kassab used diligence in attempting to obtain this relevant discovery. Kassab
served the discovery requests beginning in May of 2021.31 Pohl amended his
31 See Motion to Compel, at Exhibit 1.
17
discovery responses through October 2021.32 Kassab attempted to seek additional
information and clarify or elaborate on certain discovery requests in later sets of
discovery, served September 2021 and December 2021.33 Pohl responded to that
discovery into January 2022.34 Over the course of the following moknths, Kassab
reviewed the discovery requests and then attempted to confer wiCth Pohl about the
discovery deficiencies. But Pohl refused to amend his discovery and produce
responsive information,35 thus necessitating the motion to ciompel.
Pohl cannot simultaneously withhold relevant discovery concerning his
illegal acts while, at the same time, move for summary judgment on illegality. See
Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.— Houston [14th
Dist.] 2000, pet. denied) (“A party should nlot be able to abuse the discovery process,
withhold key evidence from their oppMonents, and then use that lack of evidence to
win a judgment.”). Accordingly, a continuance of the summary judgment hearing
(and trial) should be granted iuntil after the motion to compel is heard and Pohl is
compelled to produce the improperly withheld information. See McInnis v. Mallia,
261 S.W.3d 197, 204 o(Tex. App.—Houston [14th Dist.] 2008, no pet.) (the fact that
movant “withheldl information in discovery” is a factor that weighed “in favor of”
permitting addiitional time for discovery); Tempay, Inc. v. TNT Concrete & Constr.,
Inc., 37 S.W.3d 517, 522-23 (Tex. App. – Austin 2001, pet. denied) (holding that the
trial court abused its discretion in determining that adequate time for discovery had
32 See Motion to Compel, at Exhibit 2 and 3.
33 See Motion to Compel, at Exhibit 4 and 5.
34 See Motion to Compel, at Exhibit 7.
35 See Motion to Compel, at Exhibit 9.
18
passed because movant successfully resisted nonmovant's attempts to obtain
discovery).
CONCLUSION & PRAYER
For the foregoing reasons, the Court should deny Plaintiffs’ Motikon for Partial
Traditional and No-Evidence Summary Judgment on AffirmatCive Defenses and
grant summary judgment against Plaintiffs, ordering that they take nothing on
their claims against Lance Christopher Kassab and The Kaissab Law Firm.
Respectfully submitted,
THE KASSAB LAW FIRM
__________________________
lDAVID ERIC KASSAB
a Texas State Bar No. 24071351
M david@kassab.law
 LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
e lance@kassab.law
i NICHOLAS R. PIERCE
f Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
o Houston, Texas 77004
Telephone: 713-522-7400
l Facsimile: 713-522-7410
i E-Service: eserve@kassab.law
o ATTORNEYS FOR KASSAB DEFENDANTS
19
CERTIFICATE OF SERVICE
I certify that on this date, September 12, 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.
___________________C____
DAVID ERIC KASSAtB 
20
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: 68179652 r
Status as of 9/13/2022 8:03 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 6:16:47 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 6:16:47 PM SENT
Andrew J. Sarne asarne@krcl.com 9/12/2022 6:16:47 PM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 6:16:47 PM SENT
Kathryn Laflin KLaflin@KRCL.com 9/12/2022 6:16:47 PM SENT
Murray JFogler mfogler@foglerbrrar.com 9/12/2022 6:16:47 PM SENT
Murray Fogler mfogler@fbfog.com 9/12/2022 6:16:47 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT
Larry Newsom lnewsom@fkrcl.com 9/12/2022 6:16:47 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 6:16:47 PM SENT
Chris C.Pappas cpappas@krcl.com 9/12/2022 6:16:47 PM SENT
Todd Taylor titaylor@jandflaw.com 9/12/2022 6:16:47 PM SENT
Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/12/2022 6:16:47 PM SENT
Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 6:16:47 PM SENT
Scott M.Favre scott@favrepa.com 9/12/2022 6:16:47 PM SENT
Andrea Mendez C andrea@kassab.law 9/12/2022 6:16:47 PM SENT
Lance Kassab  lance@kassab.law 9/12/2022 6:16:47 PM SENT
David Kassab a david@kassab.law 9/12/2022 6:16:47 PM SENT
Nicholas Pierce c nicholas@kassab.law 9/12/2022 6:16:47 PM SENT
Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 6:16:47 PM SENT
Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 6:16:47 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 6:16:47 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 6:16:47 PM SENT
L Kassab lance@kassab.law 9/12/2022 6:16:47 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 6:16:47 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 6:16:47 PM SENT
Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 6:16:47 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 6:16:47 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 6:16:47 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/12/2022 6:16:47 PM ERROR
D Kassab david@kassab.law 9/12/2022 6:16:47 PM SENT"
35,2022-09-12,RSP,Pohl,Pohl’s response to Kassab no-evid MSJ,"Plaintiffs' Response in Opposition to No-Evidence Motions for Summary Judgment Filed by Kassab and Nicholson Defendants — Pohl presents extensive evidence supporting all three claims (conspiracy, conversion, TUTSA) and rebuts defendants' challenges to ownership, protection, misappropriation, and damages elements","Response to no-evidence MSJs filed by Kassab and Nicholson defendants on August 29, 2022, in the third phase of litigation. Filed September 12, 2022 at 11:26 PM. Pohl incorporates by reference the discussion and evidence from his companion Response in Opposition to the Traditional Motions filed the same day. Filed by Jean C. Frizzell of Reynolds Frizzell LLP. Addressed to the 189th Judicial District Court of Harris County.",MSJ-2,N/A,Phase 3,2022-09-12_RSP_Pohl-Response-to-Kassab-No-Evid-MSJ_FILED.pdf,Deny the no-evidence motions for summary judgment filed by Kassab and Nicholson and allow all issues to be tried by a jury,"9/12/2022 11:26 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68182775
By: Deandra Mosley
Filed: 9/12/2022 11:26 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE
NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
FILED BY THE KASSAB DEFENDANTSl AND THE NICHOLSON DEFENDANTS
Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the No Evidence Motions for Summary Judgment filed by Defendants Lance
Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively
“Kassab”) and Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm
(collectively, “Nicholson”).
Given the overlapping issues in the multiple summary judgment motions before the Court,
Pohl also incorpcorates by reference the discussion and evidence included in his Response in
Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and
the Nicholson Defendants that is filed on the same day as this Response.
I. FACTUAL BACKGROUND
Pohl represented various persons and entities in claims arising from motor vehicle
accidents and the British Petroleum Deepwater Horizon oil spill.1 Pohl engaged Precision
Marketing Group, LLC (“Precision”) to provide public relations services, to gathker and preserve
evidence, and to screen and liaise with Pohl’s clients and prospective clients.2 l While working for
Pohl, Precision necessarily gained access to Pohl’s confidential and propcrietary information and
property, including trade secret materials.3 Scott Favre, individuaslly and/or through Scott M.
Favre PA, LLC (collectively “Favre”) is the managing member osf Precision.4 Favre took physical
copies of Pohl’s information, and possession of Pohl’s stolen computers and misappropriated
electronic data.5
In November 2016, Defendants Douglas Montague III, his law firm Montague Pittman &
Varnado, P.A. (collectively, “Montague”), Naicholson and Kassab arranged to purchase Pohl’s
stolen confidential information and property from Favre for $250,000, plus bonuses,6 taking
possession of at least some of the infoermation and property in December 2016.7 Kassab, Nicholson
and Montague highly valued Pofhl’s stolen and misappropriated confidential information and
property because, after purchyasing it, they intended to and did use it to contact and solicit Pohl’s
clients and prospectivCe clients.8 Defendants’ actions constitute conversion, violations of the
uniform trade secrets act (“TUTSA”), and conspiracy.
1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”), ¶ 2, attached as Exhibit A.
2 Id. ¶ 9.
3 Id.
4 Id. ¶ 24.
5 Id. ¶¶ 24–25.
6 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A).
7 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A).
8 Kassab has admitted using Pohl’s client files (while erroneously claiming that they belonged to Precision Marketing)
to contact Pohl’s clients and former clients to solicit them to file claims against Pohl. See Declaration of Lance
Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018, attached as Exhibit
Favre’s participation in the conspiracy to misappropriate and steal Pohl’s confidential
information and client communications violated the terms of a settlement agreement. That
confidential settlement agreement, executed in late April or early May 2017 (the “Settlement
Agreement”), resolved a lawsuit in federal court in Mississippi, styled No. 1:14-ckv-381-KS-JCG,
Scott Walker, et al. v. Jimmy Williamson, et al., In The United States Distrlict Court For The
Southern District of Mississippi, Southern Division (the “Federal Court Ccase”).9
Defendants’ efforts to monetize Pohl’s trade secrets through sassertions of barratry claims
has been nearly a complete failure. Defendants brought barratsry claims on behalf of more than
400 plaintiffs,10 and the claims of all but four plaintiffs have been finally resolved in Pohl’s favor.11
As to those four remaining plaintiffs, the viability of their claims remains in dispute.12 Kassab
asserted multiple grievances with the Texas State Bar,13 all of which have been rejected, many
with the finding that “the Board has determinaed that the conduct you described in the grievance
does not violate the Texas Disciplinary Rules of Professional Conduct.”14 Notwithstanding this
lack of success, Defendants continuee to make allegations regarding Pohl and seek to relitigate
irrelevant questions regarding Pohfl’s alleged conduct. The Court should reject Defendants’ efforts
to justify their theft of Pohl’sy trade secrets by reasserting their failed claims of barratry.
9 Pohl Declaration ¶ 26i, Ex. A.
10 See Petitions in four cases, attached as Exhs. 28-30; 32 to the Nicholson’s Traditional Motion for Summary
Judgment, attachefd as Exhibit C.
11 See Cause No. 2017–38294, Dezzie Brumfield d/b/a LAD Enterprises, et al v. Michael A. Pohl, et al, in the 189th
Judicial District Court of Harris County, Texas; No. 459,062-401, Alice Marie Gandy, et al v. Michael A. Pohl, et al.,
in the Probate Court No. 2 of Harris County, Texas; Cause No. 2017–37567, Mae Berry et al v. Michael A. Pohl, et
al, in the 113th Judicial District Court of Harris County, Texas; (showing the Brumfield, Gandy, and Berry cases are
final); see also Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *1 (Tex. App.—Houston [1st Dist.]
Aug. 30, 2022, no pet. h.) (showing that claims of four plaintiffs remain live). Pohl requests that the Court take judicial
notice of these publicly available facts.
12 Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *15 (Tex. App.—Houston [1st Dist.] Aug. 30,
2022, no pet. h.) (noting that “As to the barratry claim, we have concluded only that a fact issue continues to exist.
We take no position on the validity of the barratry claim against any of these parties.”).
13 See State Bar and Board of Disciplinary Appeals letters dismissing claims, attached as Exhibit D.
14 Id.
At core, Defendants’ challenges to the evidentiary basis for Pohl’s claims turn on two
fallacies that they have argued from the start. First, Defendants insist that Pohl did not own the
materials—including his own client agreements and client files—that they misappropriated. This
is clearly wrong and has been rejected by numerous courts in different jurisdictkions. See, e.g.,
Fred Siegel Co., L.P.A. v. Arter & Hadden, 1999-Ohio-260, 85 Ohio St. 3d 17l1, 182, 707 N.E.2d
853, 862 (discussing how law firm’s client list could constitute a trade seccret); Reeves v. Hanlon,
95 P.3d 513, 522 (Cal. 2004) (dealing with client data that constituteds trade secrets). Even giving
the argument that Pohl had no ownership interest in his client lsists, client agreements, and client
files the benefit of the doubt, at most the argument raises a disputed fact issue that cannot be
determined on a motion for summary judgment. Second, Defendants erroneously believe that
Pohl’s claims provide them an opportunity to reassert barratry claims that have failed in every
other forum. Those claims have no place herea and should be rejected.
II. ARGUMENT
Pohl has overwhelming prooef of each of the elements of his claims—far more than enough
to respond to Defendants’ no-evidfence challenges, as fully set forth below.
A. Pohl has ample evidyence of each element of conspiracy.
Pohl can readCily prove that Defendants, in combination with each other, sought to
accomplish the goals of conversion of Pohl’s property and misappropriation of Pohl’s trade secrets,
that they reachfefd a meeting of the minds, engaged in one or more unlawful overt acts, and that he
suffered dUamages as a result.
1. Pohl can prove that Defendants (a combination of two or more persons) acted in
combination to accomplish their goals of conversion and misappropriation,
reaching a meeting of the minds.
The evidentiary record of Defendants’ conspiracy is replete with emails establishing their
agreement to combine to acquire Pohl’s property and to use it for their own gaink in violation of
Pohl’s rights. Starting no later than September 2016, Kassab, Nicholson and lMontague engaged
in discussions with Scott Favre relating to a possible deal to bring barratcry claims against Pohl.15
The discussions between Montague and Kassab resulted in what Kasssab agreed could probably be
called a joint venture between the two of them.16 The purpose osf Montague’s joint venture was to
bring barratry claims against Pohl, a Texas lawyer, in Texas courts under the Texas barratry
statute.17
Kassab, Nicholson, and Montague also entered into a co-counsel agreement, the purpose
of which was to bring barratry claims in Texasa against Pohl.18 Kassab testified that this co-counsel
agreement was made in writing, but it has not yet been produced.19 However, Kassab has produced
contracts that he signed with Pohl’s feormer clients that show the co-counsel relationship between
Nicholson, Kassab, and Montagufe.20
Montague admits thyat he actually sent the information and materials that form the basis of
Pohl’s claims against thCem to Kassab in Texas.21 Montague states in his affidavit that he ‘informed
Kassab about this matter and sent him the PMG [Precision] documents owned by Favre that I
15 See Kassab Deposition at 27:4-13; 28:22-25, attached as Exhibit E; Montague Deposition at 72:4-15, attached as
Exhibit F; September 9, 2016 email from Montague, attached as Exhibit G (originally Ex. 2 to the Kassab Deposition);
see also Montague Deposition at 71:18-72:15 (stating that the email in Kassab Deposition Exhibit 2 “appears to be
something that I sent,” and not disputing its authenticity), Exhibit F.
16 See Kassab Deposition at 36:18-22, Ex. E.
17 See Montague Affidavit ¶ 7, Ex. H; Kassab Deposition at 53:13-15, Ex. E.
18 See Ex. F, Montague Deposition at 46:6-16; 49:1-15; Ex. I, Nicholson Deposition at 111:11-112:22.
19 See Ex. E, Kassab Deposition at 86:14-87:10.
20 See Ex. L.
21 See Montague Affidavit ¶ 7, Ex. H; Montague Deposition at 50:14-24, 53:19-54:6, Ex. F.
received.”22 Montague himself defines the “PMG [Precision] documents” in this context as
including “attorney-client contracts, communications, and lists of clients.”23 Nicholson herself
had an active role in attempting to ensure that the team received all of the client contracts.24
Montague took the lead in obtaining Pohl’s documents, including engagemkent agreements
between Pohl and his clients, which Montague helped facilitate the transfelr of to Kassab in
Texas:25 c
It is clear that Kassab and Montafgue were not satisfied with receiving Pohl’s engagement
agreements. They wanted to obtainc the names and the contact information for Pohl’s clients or
potential clients so that they coOuld solicit them to bring barratry claims against Mr. Pohl:26
22 Montague Affidavit ¶ 7, Ex. H (emphasis added).
23 Id. ¶ 6.
24 See Ex. M, Email dated November 22, 2016 from Nicholson to Kassab.
25 See Exhibit N, Dec. 7, 2016 email from Montague (originally used as Exhibit 11 to the Nicholson Deposition); see
also Exhibit O, Nov. 14, 2016 email from Montague (originally used as Exhibit 9 to the Nicholson Deposition)
(showing Montague instructed Favre to send documents to Kassab, a Texas lawyer); Exhibit F, Montague Deposition
at 89:1-10 (stating he recognized Nicholson Exhibit 9 and saying it was “what it appears to be, a request for [wiring]
instructions from Scott Favre.”); Exhibit E, Kassab Deposition at 138:5-9 (acknowledging that Nicholson Exhibit 11
appears to be an email from Montague to Kassab and other defendants and not disputing its authenticity).
26 See Exhibit P, Dec. 8, 2016 email from Montague (originally used as Exhibit 12 to the Nicholson Deposition); see
also Exhibit I, Nicholson Deposition at 162:5-164:15 (acknowledging that the email chain shown in Nicholson Exhibit
12 “was CC’ed to me” and not disputing its authenticity).
Kassab, Nicholson, and Montague were all active participants itn obtaining and processing
additional information to solicit Pohl’s clients or potential clients to bring additional claims in
Texas courts:27 e
When Montague realizeod that additional information was needed, Montague reached out to
Nicholson to obtain that additional converted and stolen information.28 Kassab was at all times
critical to the conspiracy, as he and his firm were the experts on claims of barratry in Texas.
27 See Exhibit Q, Dec. 8, 2016 email from Montague (originally used as Exhibit 13 to the Nicholson Deposition); see
also Exhibit F, Montague Deposition at 103:5-14 (acknowledging the email chain shown in Nicholson Exhibit 13
showed an email that appeared to be sent by Montague and not disputing its authenticity).
28 See Exhibit R, Feb. 15, 2017 email from Montague (originally used as Exhibit 14 to the Nicholson Deposition); see
also Exhibit F, Montague Deposition at 116:1-8 (acknowledging the email chain shown in Nicholson Exhibit 14 and
not disputing its authenticity).
Montague recognized Kassab’s experience and knowledge of civil barratry claims,29 and, as
Kassab points out on his website, a civil claim for barratry is “unique to Texas.”30
2. Pohl can prove that Defendants engaged in one or more overt unlawful acts in
furtherance of their conspiracy.
Defendants engaged in overt acts constituting both conversion and miseappropriation, and
Pohl’s evidence of each of those acts is set forth in the sections addressing them below.
3. Pohl can prove that he suffered damages as a result. r
Pohl has testified, as has his expert witnesses, about the eDxtensive damages arising from
the underlying torts—Defendants’ theft of trade secrets and csonversion.31 Those damages arose
directly from the actions of Defendants in converting anrd misappropriating Pohl’s trade secrets
and then attempting to monetize those secrets by contacting Pohl’s clients and former clients and
fomenting litigation against him. Pohl was alsol damaged by the loss of his property, and he is
entitled to recover the market value ofM the converted and misappropriated property and
information. There are multiple sources of evidence regarding the value of some or all of the
converted or misappropriated infor c mation.32 As these damages are derivative of the damages
suffered for the underlying torts, the evidence cited here supports damages in relation to those
torts, and Pohl incorporates his discussion and evidence in relation to those claims here. See infra
Parts II(B)(4) & II(C)(3).
29 See Exhibit G, Ex. 2 to the Kassab Deposition; Exhibit H, Montague Affidavit ¶ 7; Exhibit F, Montague Deposition
at 44:14-19.
30 See Barratry and Solicitation, Kassab Law Firm, https://texaslegalmalpractice.com/legal-malpractice/barratry-and-
solicitation/ (last visited Aug 7, 2022); see also Exhibit F, Montague Deposition at 49:9-18 (confirming that Montague
is not aware of any state, other than Texas, in which a civil claim for barratry exists).
31 See Report of John Zavitsanos on Fees, attached as Exhibit S; Pohl Declaration ¶¶ 27-28, Ex. A.
32 See Deposition of Scott Walker, at 328:10-16 (testifying about how he had heard Pohl’s client list was worth $6
million), attached as Exhibit V; Deposition of Kirk Ladner, at 314:10–315:18, 343:7-344:17 (recalling that he was
told that the boxes containing Pohl’s information were worth $6 million), attached as Exhibit W; Pohl Declaration ¶
28, Ex. A; see also 2016.11.10 Agreement Between Kassab, Montague, and Favre, attached as Exhibit EE; Montague
Deposition, at 79:11-82:21, Exhibit F (indicating that Kassab and Montague paid $250,000, plus agreed to pay
additional incentives, for access to Pohl’s information).
B. Pohl has ample evidence of each element of conversion
Conversion is the “unauthorized and wrongful assumption and exercise of dominion and
control over the personal property of another, to the exclusion of or inconsistent with the owner's
rights.” Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971). The elekments are: “(1)
the plaintiff owned, had legal possession of, or was entitled to possession of thle property; (2) the
defendant assumed and exercised dominion and control over the propcerty in an unlawful and
unauthorized manner, to the exclusion of and inconsistent with the splaintiff's rights; and (3) the
defendant refused the plaintiff’s demand for return of the propserty.” Akin v. Santa Clara Land
Co., Ltd., 34 S.W.3d 334, 344 (Tex.App.—San Antonio 2000, pet. denied); see also Hunt v.
Baldwin, 68 S.W.3d 117, 131 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
1. Pohl’s evidence that he owned, had legal possession of, or was entitled to
possession of the property is more thaln sufficient.
Pohl testified that he owns his compMuters, property, attorney-client contracts, forms created
for his practice, data, photographs, client files, attorney work product and financial information
that was stolen from his office.33 It c is not disputed that the materials at issue included Pohl’s client
lists, client files, and thousands of contracts between Pohl and his clients.34 In addition to Pohl’s
own testimony, the persons to whom Defendants now trace their purported ownership have
testified that the client contracts and/or client lists belong to Pohl.35 In fact, Pohl’s client lists were
valuable to Defencdants because they belonged to Pohl, and Defendants believed they had value as
a means for convincing Pohl’s clients and former clients to bring barratry claims against Pohl.36
33 See Deposition of Michael A. Pohl, at 5:22-7:23, attached as Exhibit T.
34 See Deposition of Scott M. Favre, at 119:2-13, Exhibit U; Deposition of Lance Kassab, at 59:5-60:15, Exhibit E;
Affidavit of Douglas Montague III ¶¶ 6, 7, Exhibit H.
35 See Deposition of Scott Walker, at 283:17-21, 316:5-319:14, 327:14-329:23, attached as Exhibit V; Deposition of
Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17, 350:1–351:21, 356:23–358:10, attached as Exhibit
W; Deposition of Steve Seymour, at 193:13-195:9, attached as Exhibit X.
36 See, e.g., Affidavit of Douglas Montague III ¶¶ 6-8, Ex. H.
The argument that Pohl did not own his own client list ignores completely the undisputed
fact that the list was a list of Pohl’s clients. Defendants’ insistence that Pohl did not own these
materials is simply an argument; their factual challenges to Pohl’s ownership are irrelevant and
should not be considered in disposing of the no-evidence motions for summary kjudgment. See
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003) (no-evidencel motion requires a
court to disregard all contrary evidence and inferences).37 But even cif it were relevant, the
immense amount of testimony declaring that Pohl does own his clienst list and contracts provides
far more than a scintilla of evidence in support of Pohl’s ownersship.38
2. Pohl’s evidence that Defendants assumed and exercised dominion and control over
the property in an unlawful and unauthorizedr manner, to the exclusion of and
inconsistent with Pohl’s rights is more than sufficient.
There is no dispute that Defendants obtained Pohl’s attorney-client contracts,
communications and client lists, nor is there aany dispute that they did so without obtaining Pohl’s
permission.39 Defendants expected to and did use that material and information to file suits and
grievances against Pohl.40 There is,e in fact, no evidence that Defendant’s actions were lawful,
authorized or consistent with Pohfl’s rights or frankly the right of Pohl’s clients.
3. Pohl’s evidence tyhat Defendants refused his demand for return of the property, if
necessary, is more than sufficient.
As a legal matter, Pohl contends that there was no requirement for Pohl to lodge a formal
demand for the creturn of his property, as Defendants wrongfully obtained possession of the
37 Furthermore, defendants’ argument ignores that a claim for conversion requires that a plaintiff have a right to
possession, not necessarily ownership, of the alleged converted property. See French v. Moore, 169 S.W.3d 1, 13
(Tex. App.—Houston [1st Dist.] 2004, no pet.). Even if defendants were correct that Pohl did not have legal title to
some of the converted information, the evidence Pohl cites to demonstrate his ownership would at the very least raise
a fact question about his superior right of possession against all third parties, such as against defendants.
38 See supra notes 33 & 35.
39 See Deposition of Tina Nicholson, at 70:7-15, attached as Exhibit I; Kassab Deposition, at 60:25-62:6, Exhibit E;
Pohl Declaration filed in response to TCPA Motion ¶ 8, Exhibit Y.
40 Kassab Deposition, at 70:4-20, Exhibit E.
10
converted property and their actions were a clear repudiation of Pohl’s rights to his property.41 As
a factual matter, Pohl and his counsel did repeatedly demand the return of Pohl’s property.42 To
the extent that there is any doubt that defendants wrongfully obtained possession of the materials,
this issue is a fact question.43 However, given that the individuals who tookk the materials
acknowledge that they believed it belonged to Pohl44 and did not have permislsion to take it, that
should remove any doubt. Additionally, there is enough evidence that Decfendants’ actions were a
repudiation of Pohl’s rights, as they used his converted materials to ssolicit clients to sue him and
disregarded his instructions to Precision to maintain the confidesntiality of the materials.45
Even if demand and refusal were necessary elements of Pohl’s claim, there is ample
evidence that Pohl sought the return of his files and other property from Precision, Nicholson, and
Kassab as well as from other defendants. Pohl’s counsel from another lawsuit made multiple
demands to Nicholson (then acting as the lawyaer for both Favre and Precision) for the return of his
property.46 Both Nicholson and Kassab testified in their depositions that they had entered a joint
venture to pursue barratry claims agaienst Pohl, and it is not disputed that, together with Montague,
they acted together.47 It is likewfise not disputed that Pohl struggled to obtain the return of his
41 See Guillory v. Dietrich, 598 S.W.3d 284, 294 (Tex. App.—Dallas 2020, pet. denied) (“demand and refusal are not
required if the defendanat wlrongfully acquired possession”); French v. Moore, 169 S.W.3d 1, 13 (Tex. App.—Houston
[1st Dist.] 2004, no peit.) (“A plaintiff is required to demand return of the property if the defendant legally obtained
possession.”); El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 625 (Tex. App.—Houston [1st Dist.]
2003, pet. denied)f (stating that a demand for return of the property is not required if the “possessor’s acts manifest a
clear repudiation of the plaintiff’s rights”).
42 See Collection of Letters from Billy Shepherd, attached as Exhibit Z; see also Exhibit 12 to the Nicholson Motion.
43 See supra notes 39-40.
44 See Deposition of Scott Walker, at 283:17-21, 316:5-319:14, 327:14-329:23, attached as Exhibit V; Deposition of
Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17, 350:1–351:21, 356:23–358:10, attached as Exhibit
W; Deposition of Steve Seymour, at 193:13-195:9, attached as Exhibit X.
45 See Ex. B, Declaration of Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed
October 24, 2018; Ex. E, Kassab Deposition 130:3-21 (admitting that Kassab attached Pohl’s fee agreements with
Pohl’s clients that he obtained from Precision to solicitation letters that Kassab sent to Pohl’s clients).
46 See Collection of Letters from Billy Shepherd, attached as Exhibit Z.
47 Nicholson Deposition, at 109:5-15, Ex, I; Kassab Deposition, at 37:2-7, Exhibit E; Exhibit AA (originally used as
Exhibit 8 to Kassab Deposition).
11
property, including by seeking sanctions from a federal court for failure to return everything to
him.48 Nicholson admits in her traditional motion for summary judgment that: “As part of the
settlement, the Parties entered into a confidential Settlement Agreement, and in the agreement Pohl
requested the return of the same trade secrets alleged here.” See Nicholson’s Amenkded Traditional
Motion for Summary Judgment, at 21, filed August 29, 2022. The evidence of dlemand and refusal
to return Pohl’s property is clear. c
4. Pohl’s evidence of damages resulting from the conversiosn of his property is more
than sufficient. D
Nicholson challenges Pohl’s evidence of damages asrising from the conversion of his
property. In so doing, she ignores established Texas law trhat provides:
An owner is competent to testify regarding the value of converted property and, in
the absence of controverting evidence, such testimony will sustain a verdict.
Wiese v. Pro Am Services, Inc., 317 S.W.3d 857, 862 (Tex. App.—Houston [14th Dist.] 2010, no
pet.) (citing Burns v. Rochon, 190 S.W.3d 263, 270–71 (Tex. App.—Houston [1st Dist.] 2006, no
pet.); see also Burlington N. R.R. ve. Gen. Projection Sys., No. 05–97–00425–CV, 2000 WL
1100874, at *8 (Tex. App.—Dalflas Aug. 8, 2000, pet. denied) (op. on reh’g) (not designated for
publication) (concluding tesytimony by plaintiff’s CFO concerning converted property’s rental
value was legally and Cfactually sufficient to support an award for loss of use damages). Pohl is
entirely competent ato testify regarding the value of the converted property.49
In additifon, there are multiple additional sources of evidence of the value of the converted
materialsU, including the amount Favre paid to acquire Precision Marketing and files in its
possession,50 Favre’s affidavit testimony regarding the value of the materials,51 and Defendants’
48 See Transcript of hearing on October 25, 2017, attached as Exhibit BB; Pohl Declaration ¶ 26, Ex. A.
49 Pohl Declaration ¶ 27, Ex. A.
50 The amount was $1.5 million; see Exhibit CC; see also Exhibit 10 to the Nicholson Motion.
51 See Favre Affidavit, Ex. DD.
12
payment of $250,000 plus bonuses for access to the materials.52 Finally, there is evidence that
Pohl suffered actual damages in the form of attorneys’ fees and expenses that he incurred
defending litigation that arose due to Defendants’ conversion of his property.53
C. Pohl has ample evidence of each element of TUTSA. k
Pohl has evidence to support each of the elements of his TUTSA claiml, as he can prove:
(1) that he owned trade secrets; (2) that Defendants knowingly acquired thcem by improper means,
and (3) that the misappropriation caused Pohl damages. See TEX. sCIV. PRAC. & REM. CODE §
134A.002. Texas law provides that a trade secret s 
may consist of any formula, pattern, device or compilation of information which is
used in one’s business, and which gives him an oprportunity to obtain an advantage
over competitors who do not know or use it. It may be a formula for a chemical
compound, a process of manufacturing, treating or preserving materials, a pattern
for a machine or other device, or a list of customers.
Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 463 (Tex. App.—Austin 2004,
pet. denied). 
Mr. Pohl has sworn that he eowns the materials and that the materials at issue have
independent economic value fromf not being generally known to or ascertainable through proper
means by another person wyho can obtain economic value from them.54 He has sworn that he
protected the trade secrCet information by strictly limiting access and maintaining them under lock
and key and by ensauring that those who had access to the information understood its confidential
nature.55 This fwas confirmed by the Precision witnesses.56 He has sworn that he has suffered
52 See 2016.11.10 Agreement Between Kassab, Montague, and Favre, attached as Exhibit EE; Montague Deposition,
at 79:11-82:21, Ex. F.
53 Pohl Declaration ¶ 28, Ex. A.
54 Pohl Declaration ¶ 27, Ex. A.
55 Id. ¶¶ 14-15.
56 See, e.g., Deposition of Michael A. Pohl, attached as Exhibit T, at 5:22-7:23; Deposition of Scott M. Favre at 119:2-
13, Exhibit U; Deposition of Lance Kassab at 59:5-60:15, Exhibit E; Deposition of Scott Walker, at 283:17-21, 316:5-
319:14, 327:14-329:23, Exhibit V; Deposition of Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17,
350:1–351:21, 356:23–358:10, Exhibit W; Deposition of Steve Seymour, at 193:13-195:9, Exhibit X.
13
injury as a result of Defendants’ misappropriation of those trade secrets.57 This evidence is
sufficient to overcome the challenges of the no-evidence motions. As set forth in greater detail
below, Pohl has substantial evidence of each element of his claims under TUTSA.
1. Pohl’s evidence that he owned the trade secrets is sufficient. k
TUTSA provides a statutory definition of the term “owner.” l
“Owner” means, with respect to a trade secret, the person or enticty in whom or in which
rightful, legal, or equitable title to, or the right to enforce rigrhts in, the trade secret is
reposed. s
TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a). Once agasin, Defendants challenge Pohl’s
evidence demonstrating his ownership of the materials, claiming both that he did not own it and
that his acquisition of the trade secrets was wrongful. Pohl’s evidence of ownership, as fully set
forth above is substantial;58 it is Defendants’ position that Pohl did not own the materials that is
unsupported by any evidence. Defendants’ caontention that Pohl has no legal or equitable title to
his attorney-client agreements, his confidential client lists, and his attorney work product because
he obtained those materials by impropeer means is just another reiteration of their failed arguments
regarding barratry. Defendants’ cfontention that Pohl obtained the client lists through illegal action
has been fought and lost, andy their efforts to reurge every failed argument should be rejected.
2. Pohl’s evideCnce that he protected the trade secrets is sufficient.
Mr. Pohl has sworn that he strictly limited access to the trade secrets, and he ensured that
those who had fafccess to that information fully understood as part of their professional obligations
the confiUdential character of that information. Defendants apparently believe that because they
57 Pohl Declaration ¶ 28, Ex. A.
58 See, e.g., Deposition of Michael A. Pohl, attached as Exhibit T, at 5:22-7:23; Deposition of Scott M. Favre at 119:2-
13, Exhibit U; Deposition of Lance Kassab at 59:5-60:15, Exhibit E; Deposition of Scott Walker, at 283:17-21, 316:5-
319:14, 327:14-329:23, Exhibit V; Deposition of Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17,
350:1–351:21, 356:23–358:10, Exhibit W; Deposition of Steve Seymour, at 193:13-195:9, Exhibit X.
14
were able to unlawfully obtain the information, Pohl cannot demonstrate that he protected that
information. If that argument succeeded, then in every claim of misappropriation, the
misappropriation itself would prove a failure to protect the information.
Defendants suggest that Pohl failed to protect the information at issue becaukse Pohl did not
include a specific confidentiality provision in his contract with Precision. Bult whether Pohl did
or did not take one of many potential steps to protect trade secrets does ncot support a no-evidence
motion for summary judgment. Pohl has more than a scintilla osf evidence of the statutory
requirement—that he take “reasonable measures under tshe circumstances” to preserve
confidentiality. Pohl testified that “numerous times throughout the relationship,” he emphasized
to Precision and its employees the importance of confidentiality.59 The testimony of individuals
associated with Precision shows that not only were they aware of the confidential nature of the
information, but they took reasonable steps ato protect the confidentiality of that information.60
These steps include (and are corroborated by Precision representatives):
• Pohl informed Preciseion and all of the staff of the confidential and privileged
nature of the inforfmation and instructed them to treat them accordingly.61
• Pohl maintai y ned his office at the top of Hancock Bank – “the most secure location
on the cCoast.”62
• The building had 24 hour/round the clock security.63
59 Deposition of Michael Pohl at 23:5-21, Exhibit T.
60 Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7, Exhibit V; Deposition of Kirk Ladner, at 355:18–
358:10, 372:7–374:24, 377:4–23, 501:3–502:18, Exhibit W; Deposition of Steve Seymour, at 96:16-24, 223:1-20,
Exhibit X.
61 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
62 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
63 See Deposition of Scott Walker, at 283:17-284:22, Exhibit W.
15
• The elevators were coded such that one could only get to one’s own floors.64
• There were security cameras at every floor.65
• The documents and computers were kept under “lock and seal.”66
• The engagement agreements were clearly labeled to identify the k m as contracts
between lawyers and clients.67 C l
Defendants’ focus on the absence of a written confidentiality provision is a distraction from the
evidence (which defeats a no evidence summary judgment) of Pohl’s efforts to protect
confidentiality. s
2. Pohl’s evidence that Defendants knowingly mgisappropriated the trade secrets is
sufficient. r
The statutory definition of “misappropriation” includes “acquisition” of a trade secret by
improper means and “use” of a trade secret by a iperson if the person knows or has reason to know
that the person’s knowledge of the trade secret was derived from or through a person who used
improper means to acquire the trade sec
ret. TEX. CIV. PRAC. & REM. CODE § 134A.002(3). Kassab
and Nicholson misappropriated Poihl’s trade secrets by participating in a scheme to acquire stolen
trade secrets and they then “used” Pohl’s trade secrets by contacting Pohl’s clients to solicit their
participation in barratry souits.
Through theirl training and experience as lawyers, Kassab and Nicholson knew or should
have known that it was improper to obtain an attorneys’ client contracts and list from a third party
without thant lawyer’s or the client’s authorization.68 Furthermore, the agreement that Kassab
(Nicholson’s co-counsel) signed to obtain Pohl’s trade secrets contains an indemnity provision for
64 See Deposition of Scott Walker, at 322:9-23, Exhibit V.
65 Id.
66 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V.
67 Pohl Declaration ¶ 15, Ex. A.
68 See Pohl Deposition at 115:5-116:1, Exhibit T.
16
Favre in which Kassab agreed to indemnify and hold harmless Favre in defending claims relating
to and/or arising from the disclosure of client information where such claims are asserted by Pohl
and certain others.69 Nicholson also was responsible for sending threatening letters to get Walker
and others to turn over Pohl’s information to Nicholson, Precision, and Favre.70 k
In addition, certain Defendants’ “uses” of the trade secrets occurred aftelr May 1, 2017, the
date of the Settlement Agreement that Nicholson discusses in her traditiocnal motion for summary
judgment.71 There can be no doubt that by the time Kassab and Nicholsson used Pohl’s trade secrets
to contact and solicit Pohl’s clients and former clients, they knsew that the materials belonged to
Pohl and their use violated his rights of ownership.
3. Pohl’s evidence that he incurred actual damages is sufficient.
Pohl has testified relating to his extensive damages arising from Defendants’ theft of trade
secrets.72 Those damages arose directly from athe actions of Defendants in misappropriating Pohl’s
trade secrets and attempting to monetize those secrets by contacting Pohl’s clients and former
clients and fomenting litigation againest him. Additionally, Pohl has provided evidence of damages
in the form of the market value fof his trade secrets that constitute unjust enrichment/reasonable
royalty damages for Defendaynts’ theft of those trade secrets.73
69 2016.11.10 Agreement Between Kassab, Montague, and Favre, Ex. EE.
70 See Letters from Nicholson (originally used as Exhibits 70 and 71 in the Walker Deposition), attached as Exhibit
FF; Deposition of Scott Walker, at 391, 394:11-395:9 (discussing Exhibits 70 and 71 and showing that they were
produced by Nicholson’s attorney in the deposition), Ex. V.
71 See Petitions in four cases, attached as Exhs. 28-30; 32 to the Nicholson’s Traditional Motion for Summary
Judgment, each filed after May 1, 2017, Exhibit C. These filings were in direct violation of the Settlement Agreement,
which requires that parties and their affiliates (defined to include their attorneys) will not file or cause to be filed any
complaint, claim or legal action against Pohl and others.
71 Cf. Nicholson’s Amended Traditional Motion for Summary Judgment, at 21, filed August 29, 2022
72 See Pohl Declaration ¶¶ 27-28, Ex. A.
73 See id. ¶ 27.
17
III.
CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the No Evidence Motions for Summary Judgment filedk by Kassab and
Nicholson be in all respects denied and that the issues raised in Plaintiffs’ Peltition be tried by a
jury. c
Dated: September 12, 2022 Respectfully submitted,s
REYNOLDS FRIZZEsLL LLP
By: /s/ Jean C. Frizzell
Jean rC. Frizzell
State Bar No. 07484650
1100 Louisiana St., Suite 3500
Houston, Texas 77002
Tel.l 713.485.7200
Faax 713.485.7250
Mjfrizzell@reynoldsfrizzell.com
oAttorney for Plaintiffs Michael Pohl
e and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the TCexas Rules of Civil Procedure on this the 12th day of September, 2022.
c /s/ Jean C. Frizzell
f Jean C. Frizzell
18
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.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68182775 r
Status as of 9/13/2022 8:05 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 11:26:05 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 11:26:05 PM SENT
Andrew J. Sarne asarne@krcl.com 9/12/2022 11:26:05 PM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 11:26:05 PM SENT
Kathryn Laflin KLaflin@KRCL.com 9/12/2022 11:26:05 PM SENT
Murray JFogler mfogler@foglerbrrar.com 9/12/2022 11:26:05 PM SENT
Murray Fogler mfogler@fbfog.com 9/12/2022 11:26:05 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Larry Newsom lnewsom@fkrcl.com 9/12/2022 11:26:05 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 11:26:05 PM SENT
Chris C.Pappas cpappas@krcl.com 9/12/2022 11:26:05 PM SENT
Todd Taylor titaylor@jandflaw.com 9/12/2022 11:26:05 PM SENT
Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/12/2022 11:26:05 PM SENT
Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 11:26:05 PM SENT
Scott M.Favre scott@favrepa.com 9/12/2022 11:26:05 PM SENT
Andrea Mendez C andrea@kassab.law 9/12/2022 11:26:05 PM SENT
Lance Kassab  lance@kassab.law 9/12/2022 11:26:05 PM SENT
David Kassab a david@kassab.law 9/12/2022 11:26:05 PM SENT
Nicholas Pierce c nicholas@kassab.law 9/12/2022 11:26:05 PM SENT
Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 11:26:05 PM SENT
Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 11:26:05 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 11:26:05 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:26:05 PM SENT
L Kassab lance@kassab.law 9/12/2022 11:26:05 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:26:05 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 11:26:05 PM SENT
Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 11:26:05 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 11:26:05 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 11:26:05 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/12/2022 11:26:05 PM ERROR
D Kassab david@kassab.law 9/12/2022 11:26:05 PM SENT"
36,2022-09-12,RSP,Pohl,Pohl’s response to Kassab trad MSJ,"Plaintiffs' Response in Opposition to Traditional Motions for Summary Judgment Filed by Kassab and Nicholson Defendants — comprehensive 38-page response opposing limitations, unlawful acts doctrine, attorney immunity, judicial proceedings privilege, release, TUTSA protection, ownership, and damages defenses","Response to traditional MSJs filed by Kassab (Aug. 29, 2022) and Nicholson (Amended, Aug. 29, 2022), four years into litigation. Filed September 12, 2022 at 11:55 PM. Incorporates arguments and evidence from companion no-evidence MSJ response filed same day. Filed by Jean C. Frizzell of Reynolds Frizzell LLP. Notes Court previously denied Kassab's first MSJ (limitations, res judicata, attorney immunity) on August 3, 2021.",MSJ-2,N/A,Phase 3,2022-09-12_RSP_Pohl-Response-to-Kassab-Trad-MSJ_FILED.pdf,Deny the traditional motions for summary judgment filed by Kassab and Nicholson in all respects,"9/12/2022 11:55 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68182991
By: Deandra Mosley
Filed: 9/12/2022 11:55 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE
TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
FILED BY THE KASSAB DEFENDANTSl AND THE NICHOLSON DEFENDANTS
Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the Traditional Motion for Summary Judgment filed by Defendants Lance
Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively
“Kassab”) and the Amended Traditional Motion for Summary Judgment filed by Tina Nicholson
and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm (collectively, “Nicholson,” and
together with Kassab, the “Moving Defendants”).
c I. INTRODUCTION
On June 8, 2021, Kassab moved for traditional summary judgment on the grounds of
limitations, res judicata, and attorney immunity. By order dated August 3, 2021, the Court denied
Kassab’s motion. Although nothing has changed relative to the facts relating to the defenses of
limitations and attorney immunity, Kassab reargues those issues to the Court. Nicholson likewise
asserts limitations and immunity defenses. For the same reasons the Court rejected those defenses
in Kassab’s original motions, the Court should reject those defenses again here.
The Moving Defendants’ assertion of an “illegal acts” defense fails as both a matter of fact
and a matter of law. Both Nicholson and Kassab expend countless breathless pakges and submit
dozens of exhibits in an effort to prove what they have been unable to demolnstrate in multiple
prior lawsuits and in Texas State Bar Grievances. The claim that Pohl engcaged in acts that violated
the Texas Rules governing lawyers has been examined and rejected bsy the State Bar of Texas, and
the enormous evidentiary record does not alter that determinatiosn. Instead, it merely exposes once
again the Moving Defendants’ overall strategy of muddying the record with extraneous allegations
against Pohl, in spite of the Court’s dismissal of all the counterclaims previously asserted against
him.
The “illegal acts” defense does noat apply because (1) it is preempted by Texas’s
proportionate responsibility statute; (2) Pohl’s actions have been adjudicated and were not
“admittedly” criminal or unlawful; aned (3) even if a fact issue remained regarding the legality of
Pohl’s acts, any wrongful act is fnot sufficiently tied to and is not a proximate cause of Pohl’s
claims here to give rise to a dyefense.
Nicholson contCends that any torts they committed against Pohl were released as a result of
the a confidential settlement agreement, executed in late April and early May 2017 (the
“Settlement Agf freement”), that resolved a lawsuit in federal court in Mississippi, styled No. 1:14-
cv-381-KUS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., In The United States District
Court For The Southern District of Mississippi, Southern Division (the “Federal Court Case”), in
which Tina Nicholson represented Precision, then owned by Favre. Given that Nicholson has
flagrantly and repeatedly violated obligations arising from that Settlement Agreement, including
by fomenting litigation against Pohl and by failing to return all originals and all copies of materials
stolen from Pohl, it is surprising that Nicholson would invoke that agreement here. In any event,
the release on which Nicholson relies does not extend to the acts committed here.
The Moving Defendants also contend that various forms of immunity proktect them from
this suit, but their arguments fail as a matter of law. The attorney immunityl doctrine does not
protect lawyers from claims of conversion and theft of trade secrets comcmitted when they were
not representing any client. Similarly, the “judicial proceedings privislege” does not apply to those
torts in that context. s 
The final two defenses that the Moving Defendants assert in their traditional motions for
summary judgment are Pohl’s alleged failure to protect his trade secrets by requiring a
confidentiality agreement, and an argument that the damages Pohl seeks are not available as
recompense for misappropriation of trade secarets and conversion. Both defenses fail as a matter
of law and as a matter of fact. 
I. FeACTUAL BACKGROUND1
Pohl represented variousf persons and entities in claims arising from motor vehicle
accidents and the British Peytroleum Deepwater Horizon oil spill (“BP Matter”).2 Pohl engaged
Precision Marketing GCroup, LLC (“Precision”) to provide public relations services, to gather and
preserve evidence, a and to screen and liaise with Pohl’s clients and prospective clients.3 While
working for Pfofhl, Precision naturally gained access to Pohl’s confidential and proprietary
informatiUon and property, including trade secret materials.4 Scott Favre, individually and/or
1 Pohl incorporates by reference both the arguments and evidence contained in his Response to the No-Evidence
Motions for Summary Judgment that is filed on the same day as this Response.
2 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 2, attached as Exhibit A.
3 Id. ¶ 9.
4 Id.
through Scott M. Favre PA, LLC (collectively “Favre”) is the managing member of Precision.5
Favre took physical copies of Pohl’s information, and took possession of Pohl’s stolen computers
and misappropriated electronic data.6
In November 2016, facilitated by Nicholson, Kassab and Douglas Mokntague III and
Montague, Pittman & Varanado, P.A. purchased Pohl’s stolen confidentiall information and
property from Favre for a whopping $250,000, plus bonuses,7 taking poscsession of at least some
of the information and property in December 2016.8 The Moving Defsendants highly valued Pohl’s
stolen and misappropriated confidential information and propertys because, after purchasing it, they
intended to and did contact and solicit Pohl’s clients and prospective clients.9 These actions
constitute conversion, violations of the uniform trade secrets act (“TUTSA”), and conspiracy. Pohl
timely brought this lawsuit alleging those torts on August 28, 2018.10
The Barraatry Allegations
Although any attempt to relitigate the failed barratry allegations should not be permitted
(and will be the subject of appropriaete motions in limine and evidentiary objections), and Pohl
hesitates to give the allegations unfnecessary attention, Pohl will address those claims briefly below
out of an abundance of cautiyon and to not leave the inaccurate, and often purposefully misleading,
allegations unrebuttedC. While the problems and misstatements contained in Kassab’s and
5 Id. ¶ 24.
6 Id. ¶¶ 24–25.
7 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A).
8 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A).
9 The defendants have admitted using Pohl’s client files (while erroneously claiming that they belonged to Precision
Marketing) to contact Pohl’s clients and former clients to solicit them to file claims against Pohl. See Declaration of
Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018, Exhibit B;
Kassab Deposition 130:3-21 (admitting that Kassab attached Pohl’s fee agreements with Pohl’s clients that he obtained
from Precision to solicitation letters that Kassab sent to Pohl’s clients), Exhibit C.
10 See generally Pohl’s Original Petition, filed August 28, 2018.
Nicholson’s motions could result in an 80-page response, Pohl will address a few key issues and
rely upon his declaration to further rebut the allegations.
Precision, before the sale to the Favre parties, was owned and run by Kirk Ladner, Steve
Seymour, and Scott Walker.11 At the time that Pohl retained Precision, Preckision made the
following representations to Pohl: l
• That Precision had considerable experience in working wcith many law firms and
could provide marketing and public relations services, gather and preserve
evidence and act as a liaison with Pohl’s
clientss;12
• That Precision operated under the guidancge of experienced Mississippi attorneys
to ensure the propriety of their marketBing activities;13
• That Precision would organize anyd host festivals, town hall meetings and other
gatherings to appropriately edaucate the public as part of their marketing efforts;14
• That Precision would traifn  and supervise the Precision staff so as to ensure optimal
results and complian e ce with the rules governing their marketing activities.15
Mr. Pohl and Mr. WilOliafmson relied on these representations in moving forward with
Precision’s principals and entered into services agreements that provided for an hourly rate for
services that was cappCed at a percentage of Pohl’s fees.16 Precision worked out of an office
11 Pohl Declaration ¶¶ 5-8, 24, Exhibit A.
12 Pohl Declaration ¶¶ 5, 9, 25.
13 Pohl Declaration ¶¶ 10, 20.
The evidence still supports this representation. As Walker testified less than two weeks ago: “We ran [the
contracts between Precision and Pohl] past multiple law firms and they all approved those.” Deposition of Scott
Walker, at 209:25-211:9, attached as Exhibit D.
14 Pohl Declaration ¶ 21.
15 Pohl Declaration ¶ 21.
16 Pohl Declaration ¶ 18; see also Exhibit 2 to the Kassab Motion (attaching a later example of such an agreement).
supplied by Pohl and Precision’s owners and staff were Pohl’s agents facilitating the rendition of
Pohl’s and Williamson’s legal service.17
Precision did not live up to expectations. Precision committed the following misconduct:
• Referred certain clients to other lawyers when they were supposed kto be providing
services full time to Pohl and Williamson; C l
• Fabricated expenses to overcharge Pohl for fraudulent expcense reimbursements;
• Systematically overcharged Pohl in violation of the services agreements;
• Failed to keep time records as both required sby the services agreements and
repeatedly requested by Pohl. g
• Brought suit in Mississippi Federal CBourt claiming Precision was underpaid for
their marketing and public relatioyns services. Precision initially (and correctly)
argued that they were paid by a hourly fee.18 When their lack of supporting time
records became a problemf and when Nicholson became involved in the litigation,
their position changed to that they were guaranteed a percentage of the fee.19 As
will be addressOed below, it was Nicholson who raised the issue of barratry,
provided the Precision witnesses scripts to follow to assert barratry allegation,
and threatened witnesses unless they delivered the scripted testimony concocted
by hier.
• o fPrecision then stole Pohl’s client files, information and computers so that they
could sell them ostensibly as part of a sale of Precision to Favre with Favre then
17 Pohl Declaration ¶ 14 (discussing how Precision’s principals acted as the functional equivalent of employees).
18 See Original Complaint in MS Lawsuit, at 5-6, attached as Exhibit 4 to the Nicholson Motion (discussing how
Precision was entitled to “hourly fees”).
19 See Amended Complaint in MS Lawsuit filed March 17, 2016, at 12-13, attached as Exhibit E (including different
allegations that Precision was entitled to a percentage of fees, not an “hourly rate”).
acting as managing member of Precision to move forward with a concerted
scheme to bring barratry claims against Pohl, Williamson and a third lawyer Rob
Ammons.
After the sale of Precision to Favre, Nicholson represented Favre, Precisiokn and the three
individuals (Ladner, Seymour and Walker) and actively suborned perjury. It lis against this back
drop that Kassab and Nicholson have selectively pulled testimony capparently scripted by
Nicholson and designed to further Precision’s claims in the Mississisppi suit and provide support
for the barratry lawsuit scheme—now largely recanted—to suppsort their assertion of barratry.
The Multiple Grievances
As a starting point, it is important to note that all of the allegedly illegal acts argued by
Kassab and Nicholson were the subject of a grievance brought by Kassab against Pohl individually,
as well as multiple grievances brought by Kasasab as counsel for former clients of Pohl that Kassab
had solicited after purchasing Pohl’s files. Kassab, in a manner very similar to the course chosen
by Kassab and Nicholson for their Meotion for Summary Judgment, submitted over 60 pages of
argument for his individual grievfance and over 2,300 pages of exhibits. However, once Pohl had
an opportunity to respond ywith the actual facts and by pointing out the misstatements and
fabrications in Kassab’Cs submissions, Pohl was cleared of any wrongdoing:
The Kassab a Grievance: State Bar of Texas: Summarily Dismissed.20
The Chf f eatham Grievance:
U• State Bar of Texas: “This office has examined the Grievance and determined that
the information alleged does not demonstrate Professional Misconduct or a
Disability.21
20 See Nov. 15, 2019 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. F, at 12.
21 See Feb. 24, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. G, at 11.
• The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, the Board has determined that the
conduct you described in the grievance does not violate the Texas Disciplinary
Rules of Professional Conduct.”22 k
The Bikumbu Grievance: C l
• State Bar of Texas: dismissed on limitations grounds:23 c
• The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, thse Board has determined that the
conduct you described in the grievance doges not violate the Texas Disciplinary
Rules of Professional Conduct.”24 B
The Speck Grievance: y
• State Bar of Texas: dismissed oan limitations grounds:25
• The Board of Disciplinafry Appeals: “After reviewing your grievance as you
originally filed it and no other information, the Board has determined that the
conduct you deOscribed in the grievance does not violate the Texas Disciplinary
Rules of Professional Conduct.”26
The Berry Grievance:
• Statie Bar of Texas: dismissed on limitations grounds:27
• o f The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, the Board has determined that the
22 See May 14, 2020 Letter from The Board of Disciplinary Appeals, Ex. H, at 5.
23 See Jan. 14, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. I, at 10.
24 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. J, at 4.
25 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. K, at 8.
26 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. L, at 1.
27 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. M, at 7.
conduct you described in the grievance does not violate the Texas Disciplinary
Rules of Professional Conduct.”28
The Miller Grievance:
• State Bar of Texas: “This office has examined the Grievance and kdetermined that
the information alleged does not demonstrate ProfessionCall Misconduct or a
Disability.”29 c
• The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, thse Board has determined that the
conduct you described in the grievance doges not violate the Texas Disciplinary
Rules of Professional Conduct.”30 B
Undeterred, Kassab and Nicholson rely yheavily for their allegations of barratry upon
portions of testimony from Scott Walker takaen from his 2016 deposition in the Mississippi suit
when: a) he was trying to obtain funds from Pohl and Williamson; b) he was represented by
Nicholson; and c) he was directed by Nicholson on what he should and should not say including
the instruction to pepper his testimfony with barratry allegations.31
Q. (Kassab) Now, I hear what you said. You said that Tina Nicholson prepared
you for the deposoition. Is that what I heard?
A. (Walker) Yes
Q. And idid Ms. Nicholson tell you to lie?
A. She just told us things, buzz words to say. I had never heard the word
“barratry” before, “cold calling.” Those were the things Ms. Nicholson wanted us
to say throughout the deposition as much as we could.”
Q. Do you recall my question?
28 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. N, at 2.
29 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. O, at 9.
30 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. P, at 3.
31 See Deposition of Scott Walker, at 198:19-199:19, 203:15-204:23, Exhibit D.
A. What was it?
Q. I asked you if Ms. Nicholson instructed you or told you to lie in the deposition.
A. Yes.
Q. Okay. And is it your testimony today that you, in fact, perjured yourself in the
deposition by lying?
A. No. r
Q. Well, did you lie in the deposition? C
A. I listened and did what my attorney said to do.32 t
This is a stunning admission given that Walker is an ex-felon.t He went on to testify that
he did not knowingly intend to lie but relied upon the advice of Nicholson to give the testimony
he gave.33 e
Kassab and Nicholson also rely heavily on a uSeptember 24, 2016 affidavit and some
testimony by Magdelena Santana. While Kassab annd Nicholson do mention that she swore out an
additional affidavit, they do not describe it accur irately. Nor do they mention Ms. Santana’s letter
sent to Judge Starett in Mississippi (among other recipients) and the taped conversation that
occurred solely between Ms. Santana and Kassab.
Ms. Santana’s letter statedf ais follows:34
32 See Deposition of Scott Walker, at 203:15-204:23 (emphasis added), Exhibit D.
33 See Deposition of Scott Walker at 205:1-14, Exhibit D; see also Deposition Instructions to Walker, attached as
Exhibit Q (used as Walker Ex. 69 in the deposition); Deposition of Scott Walker at 347:20-350:7, Exhibit D
(authenticating Walker Ex. 69).
34 See October 3, 2017 letter from Magdalena Santana copying Judge Starett, attached as Exhibit R.
10
The private call between Kassab and Santana, secretly recorded by Kassab on August 15th,
2017 confirms her letter to Judge Starret and reflects the pressure brought to bear by Nicholson
and Favre against Ms. Santana:
…I’m still going through emotional distress. Recently I just finished that
subpoena, going to be a year in November, with the whole scenario that they
promised cthat I would – the firm, Tina Nicholson and Scott [Favre], they signed the
documefnft that said that if I testified – actually they were calling my mom’s house,
calling me, saying that if I didn’t come and testify, that I was going to be in
trUouble, that they were going to go send – subpoena my brother. I don’t know. It’s
been super-stressful. It’s been super stressful. They’ve been calling and telling me
all kinds of stuff. And I agreed to go and testify just to avoid any type of problems
to come to my family, to my mother’s house and my brother’s house in the fact –
and due to the fact that they were going to pay me what was owed, they got settled
money and then they just kicked me to the curb.35
35 See Audio Transcription dated August 15, 2017, at pp. 6-7, attached as Exhibit S.
11
And although Kassab sought to coax Santana into supporting the claim that Pohl and
Williamson were involved in an alleged barratry scheme, Santana rejected that contention as well:
MR. KASSAB: My understanding is Williamson Pohl set up the scheme. I thought
that’s what you told me.
MS. SANTANA: The marketing firm is the one that hired me. I didn’t eeven go out
and meet Pohl and Williamson during the course of that whole thing…l.36
Kassab and Nicholson also assert that Pohl paid Santana $50,00c0 and imply that it was
payment to retract her September 14, 2016 affidavit and to sign her Dsecember 19, 2017 affidavit.
This is not only false but is clearly designed to mislead the Cousrt.
The actual facts surrounding the disturbing story of Ms. Santana are as follows. Ms.
Santana wrote/signed the relevant agreements, correspondence and affidavits on the following
dates:
May 21, 2014: Santana/Walker eat al./Pohl release and non-disparagement
agreement a/k/a “sworn statement” M(Santana is paid $50,000 as consideration).
September 24, 2016: Santana’s “ffirst affidavit” (prepared by Tina Nicholson)
October 3, 2017: Santana’s eletter to Favre/Nicholson/Judge Starrett (stating she
was coerced into signing thec “first affidavit”)
December 19, 2017: SOantana’s “second affidavit” (retracting the “first affidavit”).
The Moving Defendants’ reliance on testimony from a retracted affidavit demonstrates that their
Motions are not to be tCaken seriously.
II. ARGUMENT
A. The Efvidence Cited by the Moving Defendants Is Not Competent Summary
Jundgment Evidence and Pohl Objects to Consideration of It.
As a threshold matter, the Moving Defendants rely on numerous inadmissible deposition
transcripts taken in other lawsuits, many of which involve persons who are not parties to this
lawsuit. Additionally, the exhibits attached to Kassab’s Motion are not properly authenticated as
36 Id. at 3-4.
12
evidence, as the attached declaration incorrectly claims that everything attached to Kassab’s
Motion are business records of Kassab’s firm. The lack of seriousness with which the Moving
Defendants approach summary judgment evidence is not surprising, given that the motions also
rely on controverted evidence, which cannot support a traditional motion for summkary judgment.
The Moving Parties cite to numerous deposition transcripts from plrior lawsuits that
constitute inadmissible hearsay that the Court should disregard. The Tcexas Rules of Evidence
provide an exclusion from the hearsay rule for testimony from a desposition “taken in the same
proceeding.” TEX. R. EVID. 801(3). However, deposition testims ony from a different proceeding
is inadmissible unless it falls within an exclusion to the hearsay rule. See Taylor v. Baylor Scott
& White Med. Ctr.-Frisco, No. 05-20-00352-CV, 2022 WL 405896, at *3 (Tex. App.—Dallas
Feb. 10, 2022, no pet.) (“Because the record establishes that Dr. Carmody’s deposition testimony
is not from the same proceeding, and the deposaition did not fall within any exclusion to the hearsay
rule, the trial court did not abuse its discretion in excluding this evidence.”).
Kassab cites to eight differenet inadmissible deposition transcripts from prior lawsuits.37
These are not tangential to Kassfab’s Motion, as he cites to these inadmissible depositions well
over a hundred times. See gyenerally Kassab’s Motion. Nicholson’s Motion fares a little better.
She cites to four diffeCrent inadmissible deposition transcripts from prior lawsuits38 well over a
dozen times. See generally Nicholson’s Motion. Furthermore, Kassab incorporated Nicholson’s
briefing and evfifdence. See Kassab’s Motion, at 2. Pohl objects to these exhibits, and the Court
should exUclude all of this inadmissible evidence and deny the Motions as insufficient on this
ground alone.
37 See Kassab Ex. 3-A; Kassab Ex. 3-B; Kassab Ex. 4; Kassab Ex. 7; Kassab Ex. 8; Kassab Ex. 15; Kassab Ex. 25;
Kassab Ex. 39.
38 See Nicholson Ex. 18; Nicholson Ex. 19; Nicholson Ex. 25; Nicholson Ex. 26.
13
Pohl also objects on the grounds that Kassab’s Motion improperly attempts to authenticate
evidence as business records without proper support. Despite attaching 60 exhibits, which include
items like contracts to which Kassab is not a party39 and correspondence between third parties,40
Kassab attempts to authenticate all of the exhibits by stating: k
Attached to the Motion are true and correct copies of documents whichl were either
exchanged in discovery in the Barratry Litigation, including document production
and depositions, or used in the Barratry Litigation, like declacrations from my
clients. These documents are considered business records of the Frirm and have been
kept in the regular course of business. The records attached tos the Motion are exact
duplicates.41 D
First, this does not satisfy the requirements of a business recsords affidavit. See TEX. R. EVID.
902(10). Furthermore, much of the evidence cannot satisfry the requirements of a business record,
as there is no way for David Kassab to be familiar with the creation of items that were produced
in discovery by other parties and whether “the relcord was made at or near the time by—or from
information transmitted by—someone withM knowledge.” See TEX. R. EVID. 803(6)(A).
Because they are not properly aouthenticated as evidence, the Court should not consider
Kassab Exhibits 2-5, 7-8, 10-15, 17c, 20-21, 23-28, 30-34, 36-38, 40, & 51.
B. Pohl’s Claims are Not Barred by Limitations.
Pohl’s claims against the Moving Defendants accrued no earlier than November 2016
because they arise from the November 2016 purchase—and subsequent use—of information and
property stolen frcom Pohl. As no claim has a limitations period of less than two years, and Pohl
brought this lawsuit in August 2018, Pohl’s claims are not barred.
39See, e.g., Kassab Exhibits 26 & 31.
40 See, e.g., Kassab Exhibit 38.
41 See Declaration of David Kassab ¶ 5, attached as Exhibit 1 to the Kassab Motion.
14
1. The summary judgment standard for the affirmative defense of limitations.
Defendants seeking summary judgment on limitations bear the burden of proof and must
conclusively prove when each of the alleged causes of action accrued. See Regency Field Services,
LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818 (Tex. 2021) (“a defkendant seeking
summary judgment based on limitations must conclusively establish that thel limitations period
expired before the claimant filed suit”). “Generally, a claim accruecs when the defendant’s
wrongful conduct causes the claimant to suffer a legal injury, which gsives the claimant the right to
seek a judicial remedy.” Id. Texas courts apply specific tests to determine the accrual of certain
claims, including the three claims at issue here.
A claim for conversion generally accrues at the time of the defendant’s “unlawful taking”
of the plaintiff’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st
Dist.] 2006, no pet.). When property is alleged to have been converted and then transferred to
another party, “each possession is a new conversion.” Pemex Exploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WLe 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (citation omitted)
(applying Texas law). There is a ftwo-year limitations period for conversion. See TEX. CIV. PRAC.
& REM. CODE § 16.003(a). y
“A cause of acCtion for trade-secret misappropriation accrues when the trade secret is
actually used. Use aof the trade secret means commercial use by which the offending party seeks
to profit from thfe use of the secret.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699,
721–22 (UTex. 2016) (cleaned up). There is a three-year limitations period for TUTSA violations.
See TEX. CIV. PRAC. & REM. CODE § 16.010(a). The civil conspiracy claim is derivative of the
underlying torts, and it accrues “as to each alleged underlying tort when that tort occurs.” Agar
Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 145 (Tex. 2019).
15
2. Pohl’s claims accrued within two years of the initiation of this suit.
Pohl brought suit on August 28, 2018.42 Because Pohl’s conversion claim accrued after
August 28, 2016 and Pohl’s TUTSA claim accrued after August 28, 2015, the affirmative defense
of limitations fails. k
Pohl’s conversion claim arises from Defendants’ purchase and slubsequent use of
information and property that they knew had been stolen from Pohl. Seec Amended Complaint ¶¶
36–38.43 The evidence shows that Defendants made this purchasse through a contract dated
November 10, 2016.44 The Defendants took possession of at least some of Pohl’s information and
property no earlier than that date and mostly beginning in De e cember 2016.45
Pohl’s conversion claim accrued when the Defendants obtained Pohl’s property. See Burns
v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Contrary to the
Defendants’ arguments, a prior claim for conversion against other individuals or entities is entirely
irrelevant, as “each possession is a new conversion.” Pemex Exploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WLe 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (emphasis added)
(applying Texas law). Defendafnts’ liability did not accrue when other people and entities
committed wrongs against Pyohl; that liability accrues when Defendants themselves committed the
tortious acts. BecauseC the contract to purchase the property is dated in November 2016,46 and
Kassab was still acaquiring possession of the stolen property in December 2016,47 Pohl’s claim
against Kassab ffor conversion accrued, no earlier than November 2016—well within the two-year
period. U
42 See generally Pohl’s Original Petition, filed August 28, 2018.
43 See also November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
44 Id.
45 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
46 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
47 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
16
Pohl’s TUTSA claim is based on Defendants’ knowing purchase and subsequent use of
stolen trade secrets. See Amended Complaint ¶¶ 39–42. Pohl’s TUTSA claim accrued upon the
Defendants’ use of Pohl’s stolen trade secrets. See Sw. Energy Prod. Co. v. Berry-Helfand, 491
S.W.3d 699, 721–22 (Tex. 2016). For Defendants to obtain summary judgmentk on limitations,
they must conclusively show that Pohl’s TUTSA claim against accrued prior tlo August 28, 2015.
See TEX. CIV. PRAC. & REM. CODE § 16.010(a) (providing a three-year limcitations period). Pohl’s
claims accrued no earlier than November 10, 2016, as that is the date osf the contract through which
Defendants purchased Pohl’s trade secrets.48 Given that Defensdants had not collected all of the
materials by December 7, 2015,49 their use of Pohl’s trade secrets—and the accrual of Pohl’s
TUTSA claim—occurred after November 10, 2016.
3. The arguments and evidence about the actions of others are irrelevant to the Moving
Defendants’ limitations defense. l
Kassab and Nicholson focus on wrMongful conduct by others—conduct that does not give
rise to Pohl’s claims in this lawsuit—too argue that limitations bars Pohl’s claims. See Nicholson
Defendants’ Motion at 36-40; Kascsab Defendants’ Motion at 45-51. However, in determining
when claims accrued against a defendant, it is that defendant’s alleged wrongful conduct that is
relevant, not the conduct of others. Defendants’ participation in the sale and purchase of Pohl’s
information, through a contract dated in November 2016, and their subsequent use of that
information is thec conduct that gives rise to Pohl’s claims. See Amended Petition ¶¶ 21–23, 26–
29, 33.50 D o efendants’ arguments suggest a sort of reverse discovery rule—i.e., they hope to
convince the Court that because Pohl allegedly knew that others may have stolen and otherwise
48 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
49 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
50 See November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance Christopher
Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018, attached as Exhibit B.
17
mistreated certain of his trade secrets and other property belonging to him, his causes of action for
separate torts by these Defendants accrued before any Defendants had even committed the torts
for which Pohl seeks to recover. The discovery rule does not operate to shorten the statutory
limitations period to cause a claim to accrue before the defendant commits a tort. k
Even if the wrongful conduct of others (that did not give rise to Polhl’s claims) were
somehow relevant to a limitations defense—and it is not—the Movincg Defendants have not
factually established that Pohl “knew or in the exercise of reasonable dsiligence should have known
of the wrongful act and resulting injury” more than three years psrior to this lawsuit for his TUTSA
claim and more than two years prior for the conversion claim. See Regency Field Services, LLC
v. Swift Energy Operating, LLC, 622 S.W.3d 807, 817 (Tex. 2021).
Nicholson argues that Pohl knew or should have known that Precision stole the trade
secrets in 2014 or that Favre claimed ownaership of the trade secret documents and Pohl’s
computers by no later than May 2015. She does not explain, however, how that knowledge can
possibly trigger limitations on sepaerate torts committed by Nicholson. She cites case law
indicating that trade secrets claimfs are not continuing offences and that “the wrong occurs at the
time of the improper acquisiytion.” Nicholson Defendants’ Motion at 42. Pohl agrees—the wrong
occurred no earlier thaCn the time of the improper acquisition of the trade secrets, no earlier than
November or December 2016. How could Pohl have known about that in May 2015 when it had
not even happef fned yet?
SiUmilarly, Kassab argues that “at least of May 2015, Pohl knew that Walker and Ladner
had transferred the alleged trade secrets to Favre.” Such knowledge, even if established, does not
address a claim of conversion or theft of trade secrets committed by Kassab. Kassab also purports
to negate the application of the discovery rule through Pohl’s testimony. The evidence Kassab
18
cites suggests only that Pohl may have had knowledge of some wrongful conduct by some
individual or individuals that occurred in 2014.51 It does not address when Pohl knew of Kassab’s
own wrongful conduct.52 Again, the discovery rule does not cause limitations to commence before
the defendant has even committed the wrongful act for which the plaintiff sues. k
As much as they struggle to establish their limitations defense as a maltter of law, Kassab
and Nicholson have at most raised a question of fact regarding the acccrual date of the asserted
causes of action. Indeed, the evidence is undisputed that as to Kassabs and Nicholson, the dates of
their torts are well within the statutory limitations period. Thse Court should deny the Moving
Defendants’ Motions to the extent that they are based on limitations.
C. The Unlawful Acts Doctrine53 is not legally available or factually established.
The Moving Defendants expend pages and pages and submit volumes of exhibits—
including exhibits that are not competent evidaence—attempting to establish their contention that
Pohl committed various violations of the Texas Rules. See Nicholson Defendants’ Motion at 3-
25; Kassab Defendants’ Motion at 3-3e2. Apparently disappointed in their inability to successfully
present this collection of materifals in their failed efforts to obtain a judgment against Pohl—
through separate failed lawsuyits—they are attempting to salvage some value out of it by submitting
to the Court in this caseC. This “evidence” has no place here. It is irrelevant, it establishes nothing
as a matter of law, and it is simply an attempt to distract from the Moving Defendants’ patently
51 See Exhibit 58 to Kassab’s Motion (discussing Pohl’s knowledge and contentions made in May 2018).
52 See generally id.
What Pohl’s prior testimony shows is that he was contending that, at that time, he believed Kassab had
conspired with individuals who had previously wronged Pohl. As a co-conspirator, Kassab would thus be responsible
for their acts. A past belief about conspirator liability does not change the fact that Kassab’s wrongful conduct took
place within the limitations period.
53 The Moving Defendants variously characterize this defense as the “illegal acts rule,” the “unlawful acts doctrine,”
“in pari delicto” and “equity.” This section of Pohl’s response covers each of those defenses, as they are treated as
interchangeable by the Moving Defendants.
19
tortious acts. Furthermore, to the extent that the doctrine could have applied, it is preempted by
Texas’s proportionate responsibility statute.
1. The Unlawful Acts Doctrine is preempted.
To the extent that the unlawful acts doctrine could have any relevance tok this case, it is
preempted by Texas’s proportionate responsibility statute. In Dugger v. Arrledondo, the Texas
Supreme Court explicitly considered “whether the common law unlawful cacts doctrine is available
as an affirmative defense under the proportionate responsibility framsework.” 408 S.W.3d 825,
831–32 (Tex. 2013). The Court found that ""it is not,” and thast “[t]he plain language of section
33.003 clearly indicates that the common law unlawful acts doctrine is no longer a viable defense.”
Id. at 832.
The claims alleged against the Moving Defendants, conversion, theft of trade secrets, and
conspiracy, are torts that are subject to the praoportionate liability statute. See TEX. CIV. PRAC. &
REM. CODE § 33.002. Kassab clearly thinks this statute applies as well, as he filed a flawed motion
to designate responsible third partiees under this statute. See generally Kassab’s Motion to
Designate Responsible Third Parfties, filed May 13, 2022. While Kassab is incorrect that people
other than defendants in this ylawsuit are responsible for the damages Pohl seeks, he cannot dispute
that the unlawful acts dCoctrine is not a valid defense in this lawsuit.
2. Even if not preempted, the Unlawful Acts Doctrine does not apply in this case.
Under Tf fexas law, the concepts of “unlawful acts,” “illegal acts rule,” or “in pari delicto”
provide tUhat “no action may be predicated upon an admittedly unlawful act of the party asserting
it.” Denson v. Dallas Cnty. Credit Union, 262 S.W.3d 846, 855 (Tex. App.—Dallas 2008, no pet.)
(emphasis added). Courts have interpreted this defense to mean that if the illegal act is inextricably
intertwined with the claim and the alleged damages would not have occurred but for the illegal act,
20
the plaintiff is not entitled to recover as a matter of law.” See Sharpe v. Turley, 191 S.W.3d 362,
366 (Tex. App.—Dallas 2006, pet. denied).
An examination of the caselaw—including the caselaw cited by the Moving Defendants—
shows that courts apply the doctrine when “at the time of the plaintiff’s injury, tkhe plaintiff was
engaged in an illegal act, and that act contributed to the injury.” Andrew Sheblay & Co., P.L.L.C.
v. Bishop, 429 S.W.3d 644, 648–49 (Tex. App.—Houston [1st Dist.] 20c13, pet. denied); Kassab
Defendants’ Motion at 62 (citing Bishop). It is not enough to plausibsly connect a claim to illegal
conduct, courts look at whether the plaintiff’s claim is prediscated on and must be proven in
connection with an illegal act. See Carcamo-Lopez v. Does 1 through 20, 865 F. Supp. 2d 736,
767 (W.D. Tex. 2011) (“But when the illegal conduct arises in a defense and not in the plaintiff’s
case, the unlawful acts rule will not bar a plaintiff’s claims.”).
As an initial matter, there is no “admitatedly unlawful act” that would allow the application
of the doctrine. See Macias v. Moreno, 30 S.W.3d 25, 29 (Tex. App.—El Paso El Paso 2000, pet.
denied). In addition, any alleged unlaewful act was not inextricably intertwined with Pohl’s causes
of action. To determine whether tfhe illegal act is “inextricably intertwined” courts look to whether
“whether the person seekingy to enforce [his claim] requires any aid from the illegal transaction to
establish his case.” SeCe Marathon Oil Co. v. Hadley, 107 S.W.2d 883, 885 (Tex. Civ. App. 1935)
(quotation omitted).
No recof fvery can be had if it is necessary for the plaintiff to prove, as part of his
cause of action, his own illegal contract or other illegal transaction. But the plaintiff
mUay recover if he can show a complete cause of action without being obliged to
prove his own illegal act, although such act may incidentally appear, and may be
explanatory even of other facts in the case, it being sufficient if his cause of action
is not essentially founded upon something which is illegal.
Id. See also Macias, 30 S.W.3d at 29 (“However, if a party can show a complete cause of action
without being obliged to prove their own illegal act, although the illegal act may appear
21
incidentally and may be important in explanation of other facts in the case, they may recover.”).
Pohl can certainly demonstrate the elements of each of his claims without being required to prove
any illegal act.54 Nothing about Pohl’s claims requires him to show that his client contracts are
enforceable or are free from any alleged barratrous activity. He owns his own kclient contracts
regardless of how he procured them. l
Another impediment to the application of the unlawful acts thec Texas Supreme Court
clarified long ago that the illegal act must have been a proximate casuse of the plaintiff’s injury.
Pyeatt v. Anderson, 269 S.W. 429, 430 (Tex. Comm’n App. 1s925); Arredondo v. Dugger, 347
S.W.3d 757, 761–62 (Tex. App.—Dallas 2011), aff’d 408 S.W.3d 825 (Tex. 2013); Petta v. Rivera,
985 S.W.2d 199, 204 (Tex. App.—Corpus Christi–Edinburg 1998), rev’d on other grounds sub
nom. Texas Dep’t of Public Safety v. Petta, 44 S.W.3d 575 (Tex. 2001). Even crediting the Moving
Defendants’ arguments, any illegal act by Paohl is not the proximate cause of Pohl’s injuries.
Instead, the cause of his injuries were the tortious acts of the Moving Defendants.
The illegal acts doctrine is noet applicable to Pohl’s claims as a matter of law. Whether
Pohl committed any of the acts thef Moving Defendants allege (and he did not) is in no way relevant
to Pohl’s claims against themy. It is nothing more than a side-show. And, as set forth below, the
Moving Defendants haCve wholly failed to establish their defense as a matter of fact.
3. Kassab’s use of caselaw on the unlawful acts doctrine is misleading.
Kassabf fcontends that “Texas courts have applied the Unlawful Acts Rule to preclude
claims arUising from barratry.” Kassab’s Motion, at 64 (emphasis removed). They cite to Truyen
Luong v. McAllister, No. 01-17-00198-CV, 2018 WL 3651103 (Tex. App.—Houston [1st Dist.]
54 As addressed more fully below, the Moving Defendants’ strident contentions that Pohl obtained the client lists and
other property and materials through “illegal acts” are false, as evidenced by the failure of both the grievance procedure
and their barratry suits.
22
Aug. 2, 2018, pet. denied). Id. But Kassab’s discussion of McAllister has no bearing on this
lawsuit. McAllister dealt with a non-lawyer suing to recover compensation under an agreement
where all parties admitted the compensation was a percentage of a lawyer’s fees. McAllister, 2018
WL 3651103, at *2. The court held that “the contract was void due to illegality.” k Id. at *4. Pohl
is not attempting to enforce any client agreement or agreement with anyone whlo worked for him.
The fact that a court refused to enforce a contract that was admittedly illecgal is not surprising, and
it provides no guidance in this case. s
4. The Moving Defendants have not and cannot establissh that Pohl committed illegal acts.
The Moving Defendants allege that their torts are excused because Pohl allegedly violated
the Texas Rules governing lawyers in four ways: (1) practicing law in other jurisdictions without
a license; (2) sharing an office with non-lawyers; (3) illegally soliciting clients; and (4) failing to
protect confidential client information. Saee Nicholson Defendants’ Motion at 1; Kassab
Defendants’ Motion at 2. Although the Moving Defendants go to some length in their effort to
establish these allegations as a mattere of law, they have wholly failed to do so. At most, they have
raised a fact issue regarding wholfly irrelevant allegations.
Before addressing tyhe individual allegations relating to Pohl’s actions, it deserves
repeating: these allegCed actions were brought to the attention of the relevant authorities
through grievance a s filed with the State Bar of Texas, which dismissed the grievances.55 For
those grievancfefs that were appealed to the Board of Disciplinary Appeals, that Board rendered
findings tUhat “the Board has determined that the conduct you described in the grievance does
not violate the Texas Disciplinary Rules of Professional and affirms the dismissal.” The
contention that Pohl violated the Texas Rules governing lawyers has been determined, and the
55 See Grievance dismissal letters, attached as Exhibit T.
23
claim has failed. This Court should decline to rehear these allegations, as they have been resolved.
Furthermore, as set forth below, they are false.
a. Pohl did not engage in unauthorized practice of law.
The State Bar of Texas appropriately dismissed claims against Pohl krelating to the
unauthorized practice of law because Pohl at all times attempted to conform tlo the requirements
relating to practicing in states in which he was not licensed.56 Moreovcer, the process for filing
claims relating to the BP Matter did not even require that a licensesd attorney participate in the
filing.57
The materials that the Moving Defendants have submitted do not conclusively establish
that Pohl engaged in the unauthorized practice of law. Instead, to the extent that the question can
even be considered by this Court, given that the State Bar of Texas has finally resolved the issue,
there is substantial controverting evidence. Aaccordingly, the allegation does not provide a basis
on which to enter summary judgment in the Moving Defendants’ favor.
b. Pohl shared office space weith contractors and secretaries who worked for him full time.
The Moving Defendants afttack Pohl for sharing office space with non-lawyers. Here again,
the State Bar of Texas propeyrly dismissed the claim because Pohl employed everyone with whom
he shared an office, Cor they were a functional equivalent of an employee or a lawyer’s
representative.58 a
The maf fterials that the Moving Defendants have submitted do not support much less
conclusivUely establish that Pohl wrongfully shared office space with non-lawyers. Instead, to the
extent that the question can even be considered by this Court given that the State Bar of Texas has
56 Pohl Declaration, ¶ 17.
57 Id. ¶ 29.
58 Id. ¶ 14.
24
finally resolved the issue, there is substantial controverting evidence. Accordingly, the allegation
does not provide a basis on which to enter summary judgment in the Moving Defendants’ favor.
c. Pohl legally solicited his clients.
Pohl instructed all of those working for him as subcontractors never to illegkally solicit any
potential client.59 Pohl himself never intentionally directly or illegally solilcited any client or
clients.60 Pohl at all times attempted to adhere to the rules of the Statec Bar of Texas and other
relevant states regarding the solicitation of clients.61 s
The materials that the Moving Defendants have submitsted do not conclusively establish
that Pohl illegally solicited clients. Instead, to the extent that the question can even be considered
by this Court given that the State Bar of Texas has finally resolved the issue, there is substantial
controverting evidence. Accordingly, the allegation does not provide a basis on which to enter
summary judgment in the Moving Defendantsa’ favor.
d. Pohl reasonably protected client information.
Pohl testified in his depositioen regarding the reasonable steps he took to protect the client
information, confidential informaftion, and trade secrets that are the subject matter of this suit.62
At all times, Pohl strictly limyited access to the trade secrets, and he ensured that those who had
access to that informatiCon fully understood as part of their professional obligations the confidential
character of that a information.63 Pohl also testified that “numerous times throughout the
relationship,” hfef emphasized to Precision and its employees the importance of confidentiality.64
59 Id. ¶ 30.
60 Id. ¶
61 Id. ¶
62 Pohl Deposition, at 15:21-16:18, attached as Exhibit U.
63 Pohl Declaration ¶¶ 14-15, Exhibit A; see also Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7, Exhibit
D; Deposition of Kirk Ladner, at 355:18–358:10, 372:7–374:24, 377:4–23, 501:3–502:18, Exhibit V; Deposition of
Steve Seymour, at 96:16-24, 223:1-20, Exhibit W.
64 Deposition of Michael Pohl, at 23:5-21, Ex. U.
25
The materials that the Moving Defendants have submitted do not conclusively establish
that Pohl failed to protect client information. Instead, to the extent that the question can even be
considered by this Court given that the State Bar of Texas has finally resolved the issue, there is
substantial controverting evidence. Accordingly, the allegation does not provide ak basis on which
to enter summary judgment in the Moving Defendants’ favor. l
e. Pohl legally obtained the materials at issue. c
The Moving Defendants also assert that Pohl cannot recover fosr their violations of TUTSA
because the materials at issue did not legally belong to him. Tshis allegation depends entirely on
the Moving Defendants’ failed arguments relating to the unauthorized practice of law and illegal
solicitation of clients. For the same reasons that those arguments fail, this challenge to Pohl’s
ownership of the materials at issue fails and does not provide a basis on which to enter summary
judgment in the Moving Defendants’ favor. a
Additionally, the Moving Defendants seem to suggest that Pohl cannot own his client
contracts if they are illegal. Howeveer, TEX. GOV’T CODE § 82.0651(a) indicates that an attorney-
client contract is voidable, not vfoid. There is no evidence that any of Pohl’s contracts were
declared void, as provided foyr in the barratry statute. TEX. GOV’T CODE § 82.0651(a). Thus, even
if the Moving DefendaCnts were correct factually on the barratry issue—and they are not—Pohl’s
contracts were still effective and worthy of protection. The Moving Defendants failed to establish
as a matter of lfafw that Pohl does not own the materials at issue.
InU any event, Pohl does not have to demonstrate how he acquired his engagement
agreements with his clients or his client files to pursue his claims. The agreements are clear on
their face. While Kassab claims to have relied upon the non-lawyers Walker and Ladner, and
Favre relied on Nicholson for the idea that Precision somehow owned Pohl’s files, the evidence
26
(and an ounce of common sense) does not support it. Walker repeatedly admitted that he knew
the attorney-client contracts, the computers containing Pohl’s files and any list of clients belonged
to Pohl.65 Mr. Ladner indicated that he believed those materials belonged to Pohl, questioned
Favre about it and was told to consult Nicholson. Nicholson told him that Pohl’ks contracts and
files did not belong to Pohl.66 However, in reality, Ladner had to concede thalt the contracts and
case files were all “Pohl’s stuff.”67 c
D. None of the Asserted Immunity Doctrines Apply. s
The Moving Defendants hope to cloak their tortious actsions in one variety or another of
immunity, variously asserting attorney immunity, judicial proceeding privilege, and immunity for
filing a grievance. None of these doctrines supplies the shield that the Moving Defendants hope
to hide behind.
Pohl sued the Moving Defendants for coanverting his property and misappropriating his trade
secrets. They argue that they are entitled to immunity because after they engaged in this wrongful
acquisition of property and informateion, they sought to profit from their torts by suing Pohl for
barratry and other claims. Texas fdoes not recognize any form of immunity for the tortious actions
of lawyers taken outside they attorney-client relationship and outside of the judicial process. As
hard as the Moving DCefendants may try to characterize their actions as being part of “judicial
proceedings” or as being part of their work as attorneys, that effort fails.
1. The aftftorney immunity doctrine does not apply.
TUhe common-law attorney-immunity defense applies to lawyerly work in “all adversarial
contexts in which an attorney has a duty to zealously and loyally represent a client” but only when
65 Deposition of Scott Walker, at 316-319; 327-329, Ex. D.
66 Deposition of Kirk Ladner, at 119:21-120:15, 127:5-25, 340:10-342:17, Exhibit V.
67 Id. at 350:11-351:21, 356:11-359:12.
27
the claim against the attorney is based on “the kind of conduct” attorneys undertake while
discharging their professional duties to a client. Taylor v. Tolbert, 644 S.W.3d 637, 646 (Tex.
2022). Where, as here, an attorney engages in conduct that is not “lawyerly work” or is “entirely
foreign to the duties of a lawyer” or falls outside the scope of client representatiokn, the attorney-
immunity defense is inapplicable. Id.; see also Haynes & Boone, LLP v. NFTDl, LLC, 631 S.W.3d
65, 67 (Tex. 2021); Landry’s, Inc. v. Animal Legal Defense Fund, 63c1 S.W.3d 40, 47 (Tex.
2021); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 201s5).
Attorney immunity does not protect conduct s 
simply because attorneys often engage in that activity or because an attorney
performed the activity on a client’s behalf. Ratherr, the conduct must involve the
uniquely lawyerly capacity and the attorney’s skills as an attorney. For example, a
lawyer who makes publicity statements to the press and on social media on a client’s
behalf does not partake of the office, professional training, skill, and authority of an
attorney because anyone—including presls agents, spokespersons, or someone with
no particular training or authority at aall—can publicize a client’s allegations to the
media. Immunity attaches only if theM attorney is discharging “lawyerly” duties to his
or her client. 
Tolbert, 644 S.W.3d at 646 (footnotees omitted) (cleaned up).
The Texas Supreme Courft has held that two inquiries are relevant to an attorney-immunity
defense: “the type of conduyct at issue and the existence of an attorney–client relationship at the
time.” Youngkin v. HCines, 546 S.W.3d 675, 683 (Tex. 2018). The claims against the Moving
Defendants do not fall within the attorney-immunity doctrine because the conduct at issue does
not qualify as “f fthe kind of conduct in which an attorney engages when discharging his duties to
his clientU.” Canty Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). The Moving
Defendants have not and cannot establish the existence of an attorney–client relationship at the
time of their wrongful conduct.
28
The Moving Defendants’ knowing purchase of stolen property before representation of a
client is neither within the scope of the client representation nor is it an activity undertaken in a
“uniquely lawyerly capacity.” See Landry’s, 631 S.W.3d at 47. The use of the information by the
Moving Defendants to solicit and advertise to obtain clients is not within the kscope of client
representation, because this conduct necessarily precedes the “meeting of thel minds” between a
potential client and attorney necessary to form an attorney–client relationcship. See Tanox, Inc. v.
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55s (Tex. App.—Houston [14th
Dist.] 2003, pet. denied). s 
The Moving Defendants attempt to address this issue by arguing the non-relevant point
that attorney immunity can apply prior to any litigation. While the doctrine can in certain
circumstances apply prior to litigation, that fact is not relevant here. Pohl asserts claims for
conduct, not just before litigation, but before thae Moving Defendants had a single client with whom
they could have the requisite attorney–client relationship. Tanox, Inc. v. Akin, Gump, Strauss,
Hauer & Feld, L.L.P., 105 S.W.3d e244, 254–55 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied) (noting that attorney–clifent relationship cannot be formed prior to a “meeting of the
minds”). y
In sum, the MoCving Defendants cannot show that their wrongful actions were “within the
scope of client representation” and were “not foreign to the duties of a lawyer.” Youngkin, 546
S.W.3d at 682f. f Immunity arises only if a lawyer can establish as a matter of law that when he
engaged Uin his alleged wrongful acts, he was acting not only within the scope of client
representation, but that there was something “particular to ‘the office, professional training, skill,
and authority of an attorney’ about” his alleged wrongful conduct. See Landry’s, 631 S.W.3d at
47.
29
Because the Moving Defendants did not and cannot provide evidence of the existence of
an attorney–client relationship at the time of their wrongful actions and evidence that those actions
were within the scope of their representation, their request for summary judgment on the attorney-
immunity doctrine must be denied. The fact that their wrongful conduct of pukrchasing stolen
information was not the type of conduct undertaken in a “uniquely lawyerly caplacity” only further
supports this conclusion. c
2. The judicial proceedings privilege does not apply. s
The judicial proceedings privilege applies only to commsunications “in the due course of a
judicial proceeding” and the privilege protects against a claim for libel or slander. Landry’s, 631
S.W.3d at 46. Given that the basis of Pohl’s claim is not a communication made in the due course
of a judicial proceeding and given that Pohl has not sued for libel or slander, the judicial
proceedings privilege does not apply as a matater of law.
Kassab argues that even though Pohl’s claims do not assert claims for libel or slander, the
judicial proceedings privilege shoueld apply because Pohl’s claims arise somehow out of
communications. Pohl’s claims dfo not however, arise out of communications. They arise out of
theft. Misappropriation of ytrade secrets is not a form of communication, nor is conversion.
Kassab’s arguments faCil.
3. The judicial proceedings privilege does not apply. Section 17.09 of the Texas
Disciplicnary Rules does not apply
Although Kassab contends baldly that “it is undisputed that Pohl’s allegations of
wrongdoing are predicated on Kassab’s filing of grievances against Pohl,” Kassab Defendants’
Motion at 35, that is untrue. Instead, Pohl’s suit is predicated on the Defendants’ conversion of
his property and misappropriation of his trade secrets. The fact that Kassab subsequently used
those trade secrets and that property to file grievances does not trigger the protections of TEX. R.
30
DISC. P. 17.09. In short, that section does not apply to the claims asserted here, as they are based
on conversion and theft.
E. Pohl’s Claims Have Not Been Released
Nicholson erroneously contends that the Settlement Agreement that she repkeatedly ignored
and flagrantly breached released her from the claims that Pohl now asserts. Thlis argument fails.
As an initial matter, Nicholson has provided the Court with no adcmissible evidence of the
terms of the Settlement Agreement on which they rely. Althougsh the Amended Motion for
Traditional Summary Judgment purports to quote the termss of the confidential agreement,
Nicholson has not attached or verified the agreement itself. Without the Settlement Agreement as
evidence, the Court cannot enter summary judgment on the argument that it contains release
language that would effectively release the claims asserted here.
In addition, contrary to Nicholson’s ianterpretation of the language of the releases in the
Settlement Agreement, that language does not provide a release for future torts not yet committed
by the released parties at the time of tehe Settlement Agreement.
More importantly, howefver, the Settlement Agreement requires specific actions (in
addition to the return of docyuments) that Nicholson quite plainly violated. That is, Paragraph 27
of the Settlement AgreCement provides that “Claimants and Affiliates of Claimants promise and
agree not to make or cause to be made any claim, not to file or cause to be filed any complaint
(administrativef for otherwise), and not to file or cause to be filed any legal action against any of the
Lawyer RUeleasees [which includes Pohl].” Nicholson’s blatant violation of this provision
invalidates any contention that the Settlement Agreement Releases her from the claims Pohl asserts
here.
31
F. Pohl’s TUTSA Claim is not “Conclusively Negated”
Nicholson contends that Pohl’s TUTSA claim is “conclusively negated” because of the
absence of a confidentiality provision in Pohl’s agreement with Precision. This is not a
requirement of TUTSA, which simply requires “reasonable measures under the cirkcumstances” to
preserve confidentiality. This also ignores the “circumstance” of the special natlure of the attorney-
client relationship and the ability and often need for a lawyer to share mcaterials with employees,
consultants, and vendors who qualify as “lawyer representatives” usnder Rule 503 of the Texas
Rules of Evidence. s 
Moreover, Pohl has sworn that he took steps to protect and limit access to the trade secrets,
and he ensured that those who had access to that information fully understood as part of their
professional obligations the confidential character of that information.68
These steps include (and are corroboraated by Precision representatives):
• Pohl informed Precision and all of the staff of the confidential and privileged
nature of the informateion and instructed them to treat them accordingly.69
• Pohl maintained hfis office at the top of Hancock Bank – “the most secure location
on the coast. y ”70
• The buCilding had 24 hour/round the clock security.71
• The elevators were coded such that one could only get to one’s own floors.72
• fThere were security cameras at every floor.73
68 Pohl Declaration ¶¶ 14-15, Exhibit A.
69 Id.; Deposition of Scott Walker, at 283:17-284:22, Exhibit D; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
70 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
71 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D.
72 See Deposition of Scott Walker, at 322:9-23, Exhibit D.
73 Id.
32
• The documents and computers were kept under “lock and seal.”74
• The engagement agreements were clearly labeled to identify them as contracts
between lawyers and clients.75
While Nicholson claims that the lists at issue here have been previously usekd as exhibits in
various depositions and hearings, she ignore the facts surrounding the limiteCd plroduction.
First, Pohl and Williamson were both lawyers who owed duties tco their clients and had a
proprietary interest in their own files. All of the defendants were “lawyer representatives” and had
a continuing responsibility to protect the confidential informatsion of both Pohl and Williamson
and the underlying clients. g
Second, all of the parties to the Mississippi laBwsuit already had the either possession (by
virtue of stealing Pohl’s files) or a proprietary iynterest in and in some cases possession of the
documents (Pohl and Williamson). Any limaited production simply went from one party who
already had the information to another party who had the information and did not expand
disclosure of privileged and confidential information beyond those that already had it.
Unsurprisingly, Defendanfts have offered no authority to support the assertion that merely
producing information from one party with continuing duties to protect it to another party who
already has the informaCtion and a continuing duty to protect it somehow waives confidentiality.
Equally important, and surprisingly absent from Kassab’s and Nicholson’s motion, are two
separate ordersf f issued in the Mississippi suit. On October 14th, 2016, Magistrate Judge John C.
Gargiulo Udenied Precision’s Motion for Protective Order where they sought to prevent discovery
of any of the “marketing lists” in their possession. In denying the motion, Judge Garguilo orders
the production of information but with very strict confidentiality protections, limiting who can
74 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D.
75 Pohl Declaration ¶ 15, Ex. A.
33
even have access to the client-based information.76 This was followed up by a letter from Pohl’s
counsel Mr. Bailey.77
On March 22, 2017, Judge Garguilo issued a protective order that was sought by all parties
and approved as to form by all counsel. In that order, the Court defined “Confidentikal Information”
as including the names, addresses and telephone numbers of the Pohl and/orl Williamson along
with amount of gross recovery and fees received and placed strict protectiocns on that information.78
While the Order indicated that it did not apply to previously produceds documents or to Exhibit 70
(which had been previously publicly filed and merely contasined information about totals of
categories of clients and did not identify individual clients), it specifically held that it did apply to
the underlying data to Exhibit 70 (the individual client information) and to any supplements of
Exhibit 70 and to the underlying data to the supplements.79 Accordingly, to the extent even needed
given the continuing duties of the parties and athe fact that all parties already had the information,
the Court reinforced the confidentiality of all the underlying client data by specifically holding it
fell within the scope of the Confidenteiality Order.
Finally, even ignoring allf of the above, Defendants have no summary judgment evidence
that the client lists and client ycontact information is the same or even overlaps. Instead, they simply
erroneously assert that Cclient lists were submitted without the protection of a protective order. Far
from conclusively establishing anything at all, Nicholson has at most raised a potential fact issue
relative to somfef of the materials that are the subject of the suit.
76 See October 14, 2016 Order from Mississippi Court, attached as Exhibit X.
77 See October 27, 2016 email and letter from Counsel to Pohl, attached as Exhibit Y.
78 See Exhibit 21 to the Nicholson Motion, at 1-2.
79 Exhibit 70 is attached hereto as Exhibit Z.
34
G. Pohl’s ownership has not been disproven.
Kassab’s allegations regarding the ownership of Pohl’s trade secrets and information are
self-defeating. Kassab states:
The claimant must also demonstrate that it is “the person or entity in whokm or in
which rightful, legal, or equitable title to, or the right to enforce rights ine, the trade
secret is reposed.” TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a)l. Similarly,
“[a] plaintiff who has not shown title or some other right to possession of the
property allegedly converted may not maintain a suit in convercsion.” Catania v.
Garage de Le Paix, Inc., 542 S.W.2d 239, 242 (Tex. Civ. App.—rTyler 1976, writ
ref'd n.r.e.). s
Kassab Motion at 58. However, Kassab’s entire theory regarding why these requirements are not
met is because he alleges that Pohl’s trade secrets and other information constitute part of the client
file, which they contend belongs to the client, and must be turned over to the client upon the client’s
demand. See Kassab’s Motion, at 58-59. But even if that were the entire story, that would not
mean that Pohl did not have a right to possession of the client file up until his clients demanded he
turn over the contents of their client file to them. There is no evidence of any such demand that
would limit Pohl’s possessory rights.e However, as laid out in more detail in Pohl’s Response to
the No-Evidence Motions for Sumfmary Judgment, there is evidence demonstrating that Pohl is the
rightful owner of misappropyriated and converted files and information.80
H. Pohl’s AllegeCd Damages are Recoverable
In their finaal effort to prevent Pohl’s claims from being presented to a jury, the Moving
Defendants relyf on inapplicable case law to argue that Pohl is not entitled to recover for the injuries
that theyU inflicted. Relying on standard case law relating to the availability of attorney’s fees
arising during the pursuit of the case at issue, the Moving Defendants argue that Pohl cannot claim
80 Pohl incorporates by reference both the arguments and evidence on the ownership of the information contained in
his Response to the No-Evidence Motions for Summary Judgment that is filed on the same day as this Response.
35
as damages the harm he suffered in being forced to defend himself from the Moving Defendants’
failed barratry actions.
As the Moving Defendants point out, a plaintiff in a TUTSA action is entitled to “the value of
the plaintiff’s lost profits, the defendant’s actual profits from the use of the seckret, the value a
reasonably prudent investor would have paid for the trade secret, the developmentl costs the defendant
avoided by the misappropriation, and a reasonable royalty.” Sw. Energy Prodt. Co. v. Berry-Helfand,
491 S.W.3d 699, 710–11 (Tex. 2016). In this case, the fees and expensses incurred by Pohl to defend
against the scurrilous actions brought by the Moving Defendants fall squarely within the category of
actual loss damages that are expressly recoverable under the eterms of TUTSA explicitly authorizes
recovery of. TEX. CIV. PRAC. & REM. CODE § 134A.004(au) (providing that TUTSA damages include
“the actual loss caused by misappropriation”).81 
Furthermore, the only case the Moving Defiendants cite relating to the availability of attorneys’
fees from a prior case as damages has been directly questioned on that point by the Texas Supreme
Court. See Martin-Simon v. Womack, 68 S.W.3d 793 ,797-98 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied), declined to extend by Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development
and Research Corp., 299 S.W.3d 106, 120 (Tex. 2009). The Moving Defendants’ citation of the case
for the broad proposition that attorneys’ fees in a prior case are not available as damages misstates the
governing precedent. Furthermore, subsequent caselaw has confirmed that attorneys’ fees from prior
litigation may be rceciovered as actual damages in a subsequent suit in certain circumstances. See Dixon
Fin. Services,o Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
Finally, Defendants fail to even address the other damages sought by Pohl. One component of
damages is the value a reasonably prudent investor would have paid for the trade secret. Here, the
evidence demonstrates that Defendants believed Pohl’s protected information was worth $6 million.
81 Pohl also seeks other types of damages in relation to his TUTSA claim.
36
Both Mr. Walker and Mr. Ladner testified hearing Favre and Nicholson discuss on multiple occasions
that Pohl’s files, and specifically the identity of Pohl’s clients, were worth $6mm.82 Pohl as owner of
the assets confirms this value.83 Mr. Favre confirmed that Pohl’s information had independent value
and was one of Precisions “most valuable asset” such that the value of the entire company would be
substantially reduced if they were disclosed.84
III. CONCLUSION t
For the foregoing reasons, Plaintiffs Michael Pohl and Law Otffices of Michael A. Pohl
respectfully request that the Kassab Defendants’ Motion for Traditional Summary Judgment and
the Nicholson Defendants’ Amended Motion for Traditional eSummary Judgment be in all respects
denied. u
82 See Deposition of Scott Walker, at 328:10-16 (testifying about how he had heard Pohl’s client list was worth $6
million), attached as Exhibit D; Deposition of Kirk Ladner, at 314:10–315:18, 343:7-344:17 (recalling that he was
told that the boxes containing Pohl’s information were worth $6 million), attached as Exhibit V.
83 Pohl Declaration ¶ 27, Ex. A.
84 See Exhibit 50 to the Kassab Motion.
37
Dated: September 12, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 12th day of September, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
38
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.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68182991 r
Status as of 9/13/2022 8:05 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 11:55:09 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 11:55:09 PM SENT
Andrew J. Sarne asarne@krcl.com 9/12/2022 11:55:09 PM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 11:55:09 PM SENT
Kathryn Laflin KLaflin@KRCL.com 9/12/2022 11:55:09 PM SENT
Murray JFogler mfogler@foglerbrrar.com 9/12/2022 11:55:09 PM SENT
Murray Fogler mfogler@fbfog.com 9/12/2022 11:55:09 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Larry Newsom lnewsom@fkrcl.com 9/12/2022 11:55:09 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 11:55:09 PM SENT
Chris C.Pappas cpappas@krcl.com 9/12/2022 11:55:09 PM SENT
Todd Taylor titaylor@jandflaw.com 9/12/2022 11:55:09 PM SENT
Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/12/2022 11:55:09 PM SENT
Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 11:55:09 PM SENT
Scott M.Favre scott@favrepa.com 9/12/2022 11:55:09 PM SENT
Andrea Mendez C andrea@kassab.law 9/12/2022 11:55:09 PM SENT
Lance Kassab  lance@kassab.law 9/12/2022 11:55:09 PM SENT
David Kassab a david@kassab.law 9/12/2022 11:55:09 PM SENT
Nicholas Pierce c nicholas@kassab.law 9/12/2022 11:55:09 PM SENT
Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 11:55:09 PM SENT
Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 11:55:09 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 11:55:09 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:55:09 PM SENT
L Kassab lance@kassab.law 9/12/2022 11:55:09 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:55:09 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 11:55:09 PM SENT
Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 11:55:09 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 11:55:09 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 11:55:09 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/12/2022 11:55:09 PM ERROR
D Kassab david@kassab.law 9/12/2022 11:55:09 PM SENT"
32,2022-09-06,MTA,Kassab,Motion to Abate Trial,"Kassab's Motion to Abate Trial Setting pending resolution of the related Cheatham v. Pohl barratry case, which was reversed on appeal August 30, 2022 and remanded for further proceedings","Phase 3 procedural motion filed one week after the Traditional MSJ and Seventh Amended Answer. Kassab argues trial should be abated because the still-pending Cheatham case will determine the full extent of Pohl's alleged damages and may establish Pohl's barratry, which would bar his claims entirely. Addressed to Judge Scot 'Dolli' Dollinger. Counsel for Plaintiffs (Jean Frizzell) opposed.",MTA-1,N/A,Phase 3,2022-09-06_MTA_Kassab-Mtn-to-Abate-Trial_FILED.pdf,Abate the trial setting in this case pending the resolution of the Cheatham v. Pohl barratry case,"9/6/2022 8:41 AM
Marilyn Burgess - District Clerk Harris County
Envelope No. 67958716
By: Deandra Mosley
Filed: 9/6/2022 8:41 AM
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’ MOTION TO ABATE TRIACL SETTING
TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGER:
Defendants/Counter-Plaintiffs Lance Christopheir Kassab and Lance
Christopher Kassab, P.C. d/b/a/ The Kassab Law Firm files this, Motion to Abate
Trial Setting, and would respectfully show the following.
BACKGROUND
Lance Kassab and his firm were hlired by more than 400 of Michael Pohl’s
former clients to sue Pohl and othersM for barratry – the illegal solicitation of clients.
Kassab v. Pohl, 612 S.W.3d 571, 575 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied). Kassab field four sieparate lawsuits against Pohl, two of which Pohl
successfully dismissed on limitations. See Brumfield v. Williamson, 634 S.W.3d 170,
177 (Tex. App.—Houoston [1st Dist.] 2021, pet. denied) and Gandy v. Williamson,
634 S.W.3d 214 (Tlex. App.—Houston [1st Dist.] 2021, pet. denied). Another of the
cases settled, iwith Pohl paying a substantial sum of money to Kassab and his
clients. The fourth case – the Cheatham case – was dismissed by the trial court but
recently reversed by the Houston Court of Appeals and remanded for further
proceedings. See Cheatham v. Pohl, No. 01-20-00046-CV, 2022 Tex. App. LEXIS
6528, at *1 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet. h.).
In retaliation, Pohl filed this litigation against Kassab and others, alleging
specious claims for conversion and misappropriation of trade secrets.1 Specifically,
Pohl alleges that the runners he hired to commit the barratry “gained access to
[Pohl’s] confidential and proprietary information and property, inckluding trade
secret materials” and “work product” and “illegally misapCpropriated” that
information and then allegedly “secretly sold [it] to Kassab”2 who then “solicited
clients/prospective clients [of Pohl’s] to act as [p]laintiffs . i. . to bring cases against
Pohl for alleged barratry and other claims.”3 Pohl seeks as damages “costs and
expenses of serial litigations” that Kassab filed against Pohl, including “[a]ny fees
[and] any expenses [Pohl] had, hotel rooms, long-distance phone calls, copy costs” –
“[Pohl] intend[s] to sue Mr. Kassab for all olf it.”4
RGUMENT
Pohl has no basis to obtain attorney’s fees and expenses incurred by Pohl in
the underlying barratry litigaition when Pohl never requested and was not entitled
to recover those fees. But since Pohl asserts that he can, then the extent of Pohl’s
alleged damages are onot yet known because the Cheatham case is still ongoing. In
fact, the outcome olf Cheatham could result in a judgment against Pohl for barratry,
which will deifinitively establish Kassab’s illegality, unclean hands and other
affirmative defenses. In that case, Pohl would be entitled to no damages from
Kassab. Rather, Kassab would be entitled to attorney’s fees from Pohl in addition to
1 See Pohl’s First Amended Petition (on file with the Court) (“Petition”),
2 Petition, at ¶¶ 20-21.
3 Petition, at ¶ 29.
4 Exhibit 1, December 2021 Deposition of Michael Pohl, at 121.
the disgorgement of Pohl’s fees and expenses in the underlying cases. Thus, for the
reasons stated below, the Court should exercise its discretion and abate the trial of
this case until the Cheatham case is finally resolved. See Kallinen v. City of Hous.,
462 S.W.3d 25, 28 (Tex. 2015) (a court may decide, exercising sound kdiscretion, to
abate proceedings to await a relevant ruling from another proceedCing).
The case In re Tex. Collegiate Baseball League, Ltd., 367 S.W.3d 462 (Tex.
App.—Fort Worth 2012, no pet.) demonstrates why abatemient is required. There, a
client sued its attorney to enforce a settlement agreement concerning legal fees that
the attorney claimed he was owed. Id. at 464. The attorney counterclaimed for
attorney’s fees. Id. The client amended its pleadings to assert malpractice against
the attorney and then sought to abate lthe case pending the resolution of the
underlying litigation from which the Mmalpractice and fee claims arose. Id. The trial
court denied the motion to abate, and the client filed a petition for writ of
mandamus. Id. The court of aippeals agreed, and conditionally granted mandamus
relief. It agreed that if the malpractice and fee claims were not abated, the parties
would be required too pursue claims “for which their alleged damages are not yet
known.” Id. at 46l5. The court of appeals reasoned that the “damage theories will
remain fluid uintil the [underlying] litigations conclude.” Id. at 468. The court of
appeals believed it made “little sense” for the parties to “prepare for trial concerning
the fee claim” when the underlying litigation giving rise to the fee claim was still
pending. Id.
Here too it makes “little sense” for the parties to prepare for and proceed to
trial without knowing the full extent of Pohl’s alleged damages, if any, stemming
from the still-pending Cheatham case. Just as in Tex. Collegiate Baseball, the extent
of Pohl’s alleged damages are not yet known and remain fluid unktil the final
resolution of the Cheatham case. Accordingly, the Court would aCbuse its discretion
by declining to abate the trial of this matter until after the Cheatham case is
resolved. See Tex. Collegiate Baseball, 367 S.W.3d at 468-69i.
Moreover, the Cheatham case will have a substantial impact on whether Pohl
can recover anything because of his illegal and other conduct. In Cheatham, two
groups of clients sued Pohl and his co-counsel Robert Ammons for barratry after the
clients were illegally and unethically soliclited. 2022 Tex. App. LEXIS 6528, at *2-3.
The trial court granted no-evidence aMnd traditional summary judgment in favor of
Pohl and Ammons. Id. at *4-5. But the court of appeals reversed, concluding that
the clients “presented more thian a scintilla of evidence to support their allegations”
of barratry, rendering summary judgment improper. Id. at *17 n. 7. That evidence
included proof that “Poohl and Ammons coordinated the barratry scheme” and “that
Pohl directly fundled, and his wife and her company further funded, the solicitation
of prospective iclients” and that “Pohl directed case runners to contact and solicit
potential clients on his behalf, including offering money from Pohl’s firm and his
wife's company.” Id. at *17. If the Cheatham plaintiffs establish these barratry
claims against Pohl, then Pohl cannot be permitted to recover any damages arising
from his unlawful conduct. See Andrew Shebay & Co., P.P.L.C. v. Bishop, 429
S.W.3d 644, 648 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (“Texas public
policy prohibits a plaintiff from recovering damages from his own illegal acts.”).
Accordingly, the outcome of the Cheatham case will have a direct impact on
Kassab’s illegality and other defenses, and Pohl’s ability to recover in kthis case. For
this reason too, abatement of the trial is required. See Tex. CollegCiate Baseball, 367
S.W.3d at 467 (abating case because defense to fee claim was “unripe” while
underlying litigation was pending); U.S. Fire Ins. Co. v. Miillard, 847 S.W.2d 668,
673 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding) (requiring abatement of
bad faith claims when they could be rendered moot by outcome of underlying
contract proceedings).
CONCLUSIONl & PRAYER
For the foregoing reasons, the MCourt should grant this motion and abate the
trial setting in this case pending the resolution of the Cheatham case.
i Respectfully submitted,
THE KASSAB LAW FIRM
__________________________
l LANCE CHRISTOPHER KASSAB
i Texas State Bar No. 00794070
i lance@kassab.law
o DAVID ERIC KASSAB
Texas State Bar No. 24071351
david@kassab.law
NICHOLAS R. PIERCE
Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB PARTIES
CERTIFICATE OF CONFERENCE k
I certify that I conferred with Jean Frizzell, counsel for PlCaintiffs, and he is
opposed to the relief requested in this motion. 
_____________i__________
DAVID ERIC KASSAB
CERTIFICATE OF SE u RVICE
I certify that on this date, September 6, 2022, I electronically filed this
document with the Clerk of the Court usinlg the eFile.TXCourts.gov electronic filing
system which will send notification of suach filing to all parties or counsel of record.
_______________________
e DAVID ERIC KASSAB
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: 67958716 r
Status as of 9/6/2022 8:47 AM CST
Case Contacts
Name BarNumber Email TimsestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/6/2022 8:41:44 AM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com r9/6/2022 8:41:44 AM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/6/2022 8:41:44 AM SENT
Todd Taylor ttaylor@jandflaw.com  9/6/2022 8:41:44 AM SENT
Scott M.Favre scott@favrepa.com 9/6/2022 8:41:44 AM SENT
Lawyer Wade lawyerwade@hotmail.coml 9/6/2022 8:41:44 AM SENT
Lance Kassab eserve@kassab.law a 9/6/2022 8:41:44 AM SENT
Murray JFogler mfogler@foglerbraMr.com 9/6/2022 8:41:44 AM SENT
Murray Fogler mfogler@fbfog.com 9/6/2022 8:41:44 AM SENT
Larry Newsom lnewsom@krcl.com 9/6/2022 8:41:44 AM SENT
Jason M.Ciofalo jason@ciofaelolaw.com 9/6/2022 8:41:44 AM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/6/2022 8:41:44 AM SENT
Chris C.Pappas cpappafs@krcl.com 9/6/2022 8:41:44 AM SENT
Todd Taylor ttaylor@jandflaw.com 9/6/2022 8:41:44 AM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/6/2022 8:41:44 AM SENT
Andrew Johnson oajohnson@thompsoncoe.com 9/6/2022 8:41:44 AM SENT
Andrew J. Sarne Casarne@krcl.com 9/6/2022 8:41:44 AM SENT
Kathryn Laflin  KLaflin@KRCL.com 9/6/2022 8:41:44 AM SENT
Benjamin Ritz britz@thompsoncoe.com 9/6/2022 8:41:44 AM SENT
Zandra EFoley zfoley@thompsoncoe.com 9/6/2022 8:41:44 AM SENT
Dale Jefferson 10f607900 jefferson@mdjwlaw.com 9/6/2022 8:41:44 AM SENT
Raul Herman Suazo n24003021 suazo@mdjwlaw.com 9/6/2022 8:41:44 AM SENT
Kevin Graham CainU24012371 cain@mdjwlaw.com 9/6/2022 8:41:44 AM SENT
D Kassab david@kassab.law 9/6/2022 8:41:44 AM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/6/2022 8:41:44 AM SENT
L Kassab lance@kassab.law 9/6/2022 8:41:44 AM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/6/2022 8:41:44 AM SENT
Katie Budinsky kbudinsky@krcl.com 9/6/2022 8:41:44 AM ERROR
E. MarieJamison jamison@wrightclosebarger.com 9/6/2022 8:41:44 AM SENT"
31,2022-08-29,OA,Kassab,7th Amended Answer,"Kassab's Seventh Amended Answer, Affirmative Defenses, and Counterclaim — adds Judicial Immunity (#16) and Immunity under Rule 17.09 (#17) as new affirmative defenses, expands Illegality to include 'Unlawful Acts Rule' (#13), bringing total to 23 defenses. Filed same day as Traditional MSJ.","Phase 3 amended pleading superseding the Sixth Amended Answer, filed the same day as the Traditional Motion for Summary Judgment (Filing #30). Expands affirmative defenses from 21 to 23, adding Judicial Immunity (#16), Rule 17.09 disciplinary immunity (#17), and expanding #13 to include the Unlawful Acts Rule. This becomes the live answer going into the MSJ hearing.",PLEAD-1,N/A,Phase 3,2022-08-29_OA_Kassab-7th-Amended-Answer-CC_FILED.pdf,"That Pohl recover nothing; that Kassab recover (i) actual and consequential damages, (ii) statutory damages, (iii) pre- and post-judgment interest, (iv) attorneys' fees and costs, and (v) all other just relief","8/29/2022 4:43 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 67770941
By: Ashley Lopez
Filed: 8/29/2022 4:43 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIArL DISTRICT
DEFENDANTS, LANCE CHRISTOPHER KASSAB AtND LANCE
CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAWi FIRM’S SEVENTH
AMENDED ANSWER, AFFIRMATIVE DEFENSES ANsD COUNTERCLAIM
TO THE HONORABLE JUDGE OF SAID COURT: 
COMES NOW, Defendants, Lance Christopher Kassab and Lance Christopher
Kassab, P.C. d/b/a The Kassab Law Firm and files this their Seventh Amended
Answer, Affirmative Defenses, and Counterclaim, and would respectfully show the
Court as follows; a
f  I
RULE 47 STATEMENT
1. The Kassab Deffendants, in their capacity as Counter-Plaintiffs, seek
monetary relief of more than $1,000,000.00.
C II
l PARTIES
2. Plaiintiff, Michael A. Pohl is an individual lawyer residing in Colorado
and is a paroty herein.
3. Plaintiff, Law Offices of Michael A. Pohl is a law firm set up for the
practice of law in various states of the union, including Texas and is a party herein.
4. Defendant, Scott Favre is a nonresident individual residing in
Mississippi and is a party herein.
5. Defendant, Scott M. Favre, PA, LLC is a nonresident limited liability
company located in Mississippi and is a party herein.
6. Defendant, Precision Marketing Group, LLC is a nonresident limited
liability company located in Mississippi and is a party herein. k
7. Defendant, F. Douglas Montague III is a nonresident iCndividual residing
in Mississippi.
8. Defendant, Montague, Pittman & Varnadoi, PA is a nonresident
professional association located in Mississippi.
9. Defendant, Tina Nicholson is an individual residing in Texas and is a
party herein.
10. Defendant, Baker Nicholson, lLLP, d/b/a Baker Nicholson Law Firm is a
limited liability partnership located inM Texas and is a party herein.
11. Defendant, Counter-Plaintiff, Lance Christopher Kassab is an
individual residing in Texas anid is a party herein.
12. Defendant, Counter-Plaintiff, Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm is ao professional corporation located in Texas and is a party herein.
l III
c i JURISDICTION AND VENUE
13. oThis matter is within the jurisdictional limits of this Court and
Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl
(“Pohl”) and Defendants, Counter-Plaintiffs, Lance Christopher Kassab (“LCK”) and
Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm (“Kassab, P.C.”)
(collectively “Kassab”) are subject to the Court’s jurisdiction. Venue is proper in this
county because one or more of the defendants are residents of this county and because
a substantial part of the acts and/or omissions that form the basis of this suit occurred
in this county.
IV k
GENERAL DENIAL e
14. Defendant, Counter-Plaintiff Kassab generally detnies all allegations
made by Plaintiffs, Counter-Defendants, Michael A. Pohl ansdt Law Offices of Michael
A. Pohl, and requests the Court to require Plaintiffs, Counter-Defendants, Michael
A. Pohl and Law Offices of Michael A. Pohl to carry their burden of proof regarding
all allegations against Kassab.
AFFIRMATIViE l DEFENSES
15. Defendant, Counter-Plaintiff Kassab pleads the following affirmative
defenses: 
1. Statute of limitationf is;
2. Justification; y 
3. Estoppel;
4. Waivera;
5. Ratiffication;
6.U Release;
7. Unclean hands;
8. Contribution;
9. Failure to mitigate;
10. Lack of standing;
11. Accord and Satisfaction;
12. Assumption of the Risk;
13. Illegality/Criminal Acts/Unlawful Acts Rule; k
14. First Amendment; C
15. Attorney Immunity;
16. Judicial Immunity; i
17. Immunity under Rule 17.09 of the Texas Rules of Disciplinary Procedure.
18. In Pari Delicto;
19. Res Judicata;
20. Defect of Parties; l
21. Abandonment; M
22. Subject of a Valid Contract; and
23. Preemption pursuanit to TEX. CIV. PRAC. & REM. CODE § 134A.007(a).
SPECIFIC DENIALS
16. Defendants, Counter-Plaintiffs specifically deny that all conditions
precedent regardiing Plaintiffs claims of conversion and theft of trade secrets have
been perforomed or occurred prior to Plaintiffs’ filing of suit against Kassab.
VII
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
17. LCK is a lawyer practicing law with The Kassab Law Firm, a law firm
in Houston, Texas focusing on plaintiffs’ legal malpractice cases. Kassab filed four
lawsuits on behalf of over four hundred clients against Pohl (the “Harris County
Lawsuits”). The main allegations against Pohl are civil barratry and conspiracy to
commit barratry, a third-degree felony in Texas. Pohl conspired with his wife,
Donalda Pohl (“Dona”), his paralegal, Edgar Jaimes (“Jaimes”) and thrkee runners in
Mississippi to illegally solicit clients on behalf of Pohl. Dona ownCs a sham lending
company in Texas called Helping Hands Financing, LLC (“HH Texas”). Jaimes rans
the day-to-day operations of HH Texas. The three ruinners are Scott Walker
(“Walker”), Steve Seymour (“Seymour”) and Kirk Ladner (“Ladner”) (collectively
“Runners”). The three Runners owned and operated two other sham companies called
Helping Hands Group, LLC and Helping Hands Financial, LLC (collectively “HH
Mississippi”). The three runners also olwned Precision Marketing Group, LLC
(“Precision”) which they sold to ScMott Favre and/or his companies (collectively
“Favre”). The runners had several other business entities from which they operated
and concealed their illegal soliicitation conspiracy.
18. With regard to the clients obtained in the BP Litigation, Walker,
Seymour and Ladnero hired other runners to literally go up and down streets in
specific locations klnocking on doors to solicit clients on behalf of Pohl for lawsuits
against Britishi Petroleum. Walker, Seymore and Ladner, through Precision and on
behalf of Pohl, paid these runners as much as $300-$400 for every potential client
they obtained. Pohl paid Precision as much as $1,500 for every client Precision
obtained and referred to Pohl. Walker, Seymore and Ladner paid the other runners
from this amount and pocketed the balance. Pohl also offered and agreed to pay
Walker, Seymour and Ladner a percentage of his legal fees once cases settled. This
percentage was disguised as an hourly rate of $1,500.00 per hour, but the percentage
of the “settlement” payment was never below the agreed percentage. For example,
no matter how much “hourly” time was actually spent on a case, thek agreed upon
percentage was always achieved by simply dividing the percentagCe amount of Pohl’s
legal fees by $1,500.00 to calculate the imaginary number of hours, and then the
Runners would submit an invoice for those imaginary numbier of hours. Whether the
Runners actually spent five (5) or fifty (50) hours on a particular case was not the
measure of the “settlement” fees to be paid to the Runners, it was always the agreed
upon percentage of attorney’s fees earned by Pohl regardless of actual hours spent on
a case. l
19. With regard to auto accidMents, Pohl set up a “Google Alerts” to be notified
whenever there was a horrific rollover or other type of horrific vehicle crash across
the nation. Pohl would then imimediately send the alert to the Runners so they could
arrange to visit hospitals, homes and funerals to contact the families of the injured
in order to solicit theom as clients. The Runners would use their sham companies,
“Helping Hands” tlo act as though they were approaching these victims to genuinely
help them rathier than solicit them. The Runners would falsely tell these victims that
they were there to provide money for burial services, food, clothing, lodging, etc. In
reality however, the Runners’ contacted these families under these false pretenses
with the sole objective of talking advantage of these victims and their families while
they were emotionally distraught and not thinking straight in order to lock them into
contracts which allowed the runners to select a lawyer for the victim. The victims
and the family members were encouraged to hire Pohl and told they could not get the
money unless they agreed to hire Pohl. Pohl would pay the Runners as much as
$7,500 per client they signed up and Pohl also promised the runners ask much as 33%
of Pohl’s legal fees on the back end when the case settled. AdditCionally, HH Texas
would pay HH Mississippi $2,500 for every client referred to HH Texas to “loan”
money to these victims and their family. Pohl used this priocedure as an attempt to
put an additional buffer between him and the actual Runners.
20. Pohl also helped the Runners form another sham entity, the GM
Settlement Verification Team (“GM Team”) after General Motors, Inc. issued a recall
on cars due to faulty ignition switches whiclh effected the safe operation of the airbag
systems on vehicles. Thus, the GM MTeam was designed to look official as if it was
part of General Motors. This conspiracy was to form an official looking entity from
GM as if GM was wanting to ciompensate people who had been harmed when airbags
failed to deploy in relation to the ignition recall. In reality, this was just another
sham company used too solicit and trick potential clients into hiring Pohl. Again, Pohl
would pay Walkerl and Ladner, through their sham entity, the GM Team, a fee for
every potentiail client it referred to Pohl, in addition to a percentage of his attorney’s
fees on the back end.
21. Pohl knew what he was doing was illegal barratry. Accordingly, he
knowingly formed entities that he perceived would insulate him from liability. In
fact, Walker testified that although he and Pohl called it “marketing services” or
“marketing money” it was “clear to [him] it was barratry.” In fact, Walker considered
himself and his company “a pass-through for barratry money.” All total, Walker,
Ladner and Precision received over $5 million in “barratry pass-through money” from
Pohl and other lawyers to solicit potential clients with claims, both kauto-accident
victims and those involved in the BP Deepwater Horizon litigationC.
22. One of the runners hired by Pohl and Walker to illegally solicit clients
on behalf of Pohl was Magdalena Santana (“Santana”). Ini her September 24, 2016
affidavit, Santana testified that Pohl sent her on “dozens and dozens of car wreck
cases all over the country.” Pohl would email Santana the link of news coverage he
obtained through Google Alerts depicting an accident and asked her “to go to the
victim or the victim’s family and try to get lthem to sign up with him.” Santana swore
under oath that Pohl agreed to pay Mher “$5,000 per case that [she] signed, plus a
percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even
if the family ... rejected [her]i.” Santana was instructed by Pohl to “approach the
victims and their families while they were vulnerable, in the emergency room, their
hospital rooms or at thoe funerals.” Pohl told Santana that minorities “were especially
vulnerable since tlhey tended not to know that the law prohibited barratry.”
According to Piohl, they “were easier to sign up.”
23. Pohl would give Santana “money to give to the victims or their families”
but would only give the money to the potential client “if they agreed to sign a Pohl
representation contract.” Pohl advised Santana that the money was a “foot in the
door” but instructed Santana not to mention anything about hiring a lawyer “until
after they agreed to take the money.” “If the client agreed to hire Pohl, then [Santana]
was to have the client sign a ‘Helping Hands’ contract.” Santana would then give
money to the client “from his own Helping Hands company.” When Santana
questioned this, Pohl told Santana that it “was illegal for him to pay [hekr] directly for
cases, and that’s why the money had to go through some companyC.”
24. Pohl and/or his co-conspirators had Santana retract this affidavit
through a December 19, 2017 affidavit. This purported rietraction was likely the
result of Pohl paying Santana to retract the first affidavit, which is similar to
something Pohl had done in the past. In fact, Pohl’s own paralegal, Jaimes, testified
that on one occasion Pohl sent him to Florida with a suitcase containing $50,000 in
cash to give to Santana in exchange for lher agreement not to turn Pohl into the
authorities. Jaimes testified that SanMtana would only get the money if she signed a
statement agreeing not to mention Pohl’s illegal activity. Jaimes testified that
Santana signed the statementi and then he gave her the $50,000.
25. Santana’s deposition was even more detailed. Santana testified at her
deposition that the staotement was an agreement for her to keep quiet and not charge
Pohl with any wronlgdoing, criminal or unethical conduct. Santana testified that Pohl
paid her $50,0i00 in cash to sign this statement, which was delivered by Jaimes in
three bags marked “trick or treat.” Very symbolic given that Santana had been
tricked by Pohl into soliciting potential clients for him and was now being treated the
money she claimed was due under their agreement just to stay quiet. Santana
reiterated in her deposition that if she didn’t sign the gag agreement, she would not
have received the money from Pohl. Santana attempted to indicate on the 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. Santana did not write
the statement but “just signed it” because she felt she was being “forcked to sign” it
while “under duress.” C
26. Notably, nowhere in Santana’s December 19th affidavit does she state
the testimony in her former affidavit is untrue, only that shie does not “agree with” it
and that the affidavit is not “reliable.” Although Santana states in her December 19th
affidavit 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.” Santana testified that, unlike lwith Pohl, she was not paid and had never
been promised any money to provideM the testimony in the September 24th affidavit.
Santana reiterated to counsel for Pohl, Billy Shepherd, that she was there for her
deposition to tell the truth andi would not be bullied by his questioning or his efforts
to confuse her.
27. Regardleoss, Santana’s sworn deposition testimony confirmed most, if
not all of the factsl set forth in her initial affidavit and this deposition testimony has
never been retiracted. Therefore, Santana confirmed that she 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. 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. Following Walker
10
and Pohl’s instructions, Santana visited the funeral of the deceased and got the family
to feel comfortable with her. Although the mother was grieving, Pohl told Santana:
“take no prisoners, this is a cut throat business, you get in there and you do whatever
it takes to get this client.” The solicitation was successful after Pohl gkave Santana
$2,000 to “give to the client to convince her into signing over with Cthe firm.”
28. “Coach” Kenneth Talley (“Talley”) was another runner hired by Pohl
and Walker who solicited over 20 auto accident cases for Pohil. Talley has sworn under
oath that he was first hired in relation to BP claims to find “folks that lost money due
to the oil spill” and “sign them up” and “get a fee for it.” Talley testified that he went
to work “knocking on doors” looking for potential claimants for Pohl and his partner
in the BP litigation. Talley solicited and siglned up more than 800 BP claims for Pohl
and his co-conspirators. Talley was pMaid between $75 and $350 for each BP client he
signed up for Pohl and his partners.
29. Talley eventuallyi switched to illegally soliciting auto accident victims
for Pohl, “calling on folks that had bad accidents.” Talley recalls that the first client
he solicited for Pohl woas in “the hospital in intensive care.” Talley carried with him
up to $1,000 to paly the accident victims to “help them with problems” but paid the
potential clienit only once they “were signed up.” Talley kept a list of all the auto
accident cases he solicited so he could keep track of the cases that he was due a
percentage from Pohl’s attorney’s fees on the back end after the case settled. Talley
also 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
11
money but to “make sure the funding schedule” from HH Texas “is filled out properly
before releasing any cash.” Talley would advise the victims that he had attorneys who
could help them such as Pohl. Talley was paid a fee of $1,400 plus his expenses by
Pohl, through Walker and/or one of his sham business entities for any kauto accident
case he solicited and referred to Pohl. On some cases, Talley was tCo receive a portion
of the fee paid to Helping Hands out of Pohl’s attorney’s fees. Talley discussed with
Pohl the “percentage of settlements” he was to receive from ithe cases he solicited and
referred, and Pohl told Talley that the money was being placed in an “escrow account”
for him. 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.” And, although his paylcheck was from Walker’s company, “the
funding came by way of Edgar [JaimeMs].”
30. Talley testified that personally soliciting clients for Pohl became so
frequent that he began carryinig blank contracts to each solicitation. Talley testified
that he never recommended any lawyers other than Pohl. However, Talley never told
the clients that he waos getting paid to solicit them. Talley would present a contract
to the potential clilent. If the client did not agree to hire Pohl, the clients would not
get the moneyi. Talley testified that Jaimes and Dona (the operators of HH Texas)
would send him the money.
31. 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. Talley testified that during the attempted solicitation he was told by a
12
“lawyer or policeman” that “it was against the law what [he] was doing.” Talley
mentioned this to Pohl and Pohl told him “you’ve just got to leave...some people you
can’t help.”
32. Walker was eventually indicted and sent to prison. Beking afraid of
where Walker’s indictment might lead, Pohl and his lawyer partneCrs stopped paying
Walker and the other runners the illegal fees as Pohl had promised. Therefore,
Walker, Seymour, Ladner and Precision filed a lawsuit in Miississippi Federal Court
(“Federal Litigation”) against Pohl and his law partners claiming they were owed
millions of dollars in promised fees.
33. The above facts were compiled during the Federal Litigation.
Thereafter, more than four hundred clientsl who were illegally solicited contacted the
Kassab Law Firm and requested KassMab to represent them in litigation against Pohl
and his partners. Kassab filed lawsuits on behalf of these clients in four different
courts in Harris County. Addiitionally, 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 orequired to notify the Texas State Bar pursuant to Rule 8.03 of
the Texas Disciplinlary Rules of Professional Conduct. Due to this mandate, Kassab
filed grievanceis against Pohl pursuant to Rule 8.03. some of Pohl’s clients also
prepared and filed grievances against Pohl arising out of his egregious conduct.
34. Because of these actions in representing clients against Pohl and the
grievances filed against Pohl, Pohl filed this retaliatory lawsuit against Kassab
alleging conversion and theft of trade secrets. Pohl alleges that Kassab and others
13
stole his property and used it to bring lawsuits and grievances against Pohl.
Specifically, Pohl alleges in his petition that, “Kassab is a lawyer who specializes in
suing other lawyers”1 and “Kassab solicited clients/prospective clients [of Pohl’s] to
act as Plaintiffs . . . to bring cases against Pohl for alleged barratry and okther claims.”2
Thus, Pohl has judicially admitted that he has brought his suit agaiCnst Kassab simply
because Kassab contacted illegally solicited clients to notify them of Pohl’s illegal
conduct and to offer to represent them in suits against Pohli.
35. The lawsuit is frivolous and without merit as it is based upon false
pretenses and was brought solely for retaliation and harassment purposes.
Specifically, Kassab did not steal anything from Pohl. Additionally, Kassab did not
purchase any stolen documents belonging tlo Pohl. Nor did Kassab purchase anything
belonging to Pohl. Moreover, Pohl isM not the owner of documents received, if any,
from Precision, Favre, Nicholson, Montague or anyone else. Lastly, none of the
documents and/or informatioin that Kassab may have received from various
individuals or entities are Pohl’s trade secrets as Pohl alleges. Furthermore, Pohl
has failed to complyo with conditions precedent to filing his retaliatory suit for
conversion and thleft of trade secrets. Specifically, Pohl has never requested from
Kassab, the reiturn of his alleged property. Rather, Pohl abandoned all of the alleged
documents he now accuses Kassab of stealing and/or purchasing. Pohl abandoned all
of the documents he alleges were stolen and/or purchased because he knew that the
documents were not his and that he had no ownership interest in the documents. If
1 Pohl Original Petition, p. 6
2 Id. at p. 6-7
14
Pohl actually believed the subject documents were his, he would have safeguarded
the documents rather than abandon them with a convicted felon (Walker) and his
cohorts (Seymore and Ladner). Even as of today, the subject documents sit in a
warehouse, unattended and not safeguarded. k
VIII C
COUNTERCLAIM FOR CIVIL BARRATRY
36. Within the lawsuits that Kassab has filed agaisntst Pohl on behalf of his
former clients and/or potential clients, Pohl has judicially admitted that a claim for
barratry is not a legal malpractice case. Pohl has also admitted that a because a
claim for barratry is not a claim for “legal malpractice,” the Discovery Rule does not
apply to a barratry claim. Therefore, based upon Pohl’s judicial admissions, the
assignment of a barratry claim is permiatted under Texas law.
37. Thus, based upon expfress assignments of interest given to Kassab,
Kassab brings counterclaims against Pohl and his law firm pursuant to Texas Civil
Practice and Remedies CodOe, Section 16.069. Section 16.069 provides:
(a) If a counterclpaim or cross claim arises out of the same transaction or
occurrence tohat is the basis of an action, a party to the action may
file the counterclaim or cross claim even though as a separate action
it woulad lbe barred by limitations on the date the party’s answer is
requicreid.
(b) Tohe counterclaim or cross claim must be filed not later than the 30th
day after the date on which the party’s answer is required.
Kassab has been assigned barratry claims on behalf of 242 claimants. These
counterclaims are timely because they were filed within 30 days of the date
Kassab filed his original answer.
15
CLAIM FOR ATTORNEY’S FEES
38. Defendants contend that all or some of Plaintiffs’ claims for
misappropriate under TUTSA were made in bad faith, enabling Defendants to
recover their reasonable attorney’s fees. See TEX. CIV. PRAC. & REM e. CODE §
134A.005. 
X t
PRAYER FOR RELIEF D i
Wherefore, Defendants, Counter-Plaintiffs resspectfully pray that Plaintiffs
recover nothing on their claims and that the Deferndants, Counter-Plaintiffs recover
on their claims against the Plaintiffs and/or any Third-Party Defendants as follows:
i) actual and consequential damlages;
ii) statutory damages; M
iii) pre- and post-judgmentf interest;
iv) attorneys’ fees and costs; and
v) all other relief tof f which the Defendants, Counter-Plaintiffs may be justly
entitled.
p Respectfully submitted,
THE KASSAB LAW FIRM
c / s / David Eric Kassab
f LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
U lance@kassab.law
DAVID ERIC KASSAB
Texas State Bar No. 24071351
david@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713.522.7400
Facsimile: 713.522.7410
16
ATTORNEYS FOR LANCE CHRISTOPHER
KASSAB AND THE KASSAB LAW FIRM
FOGLER, BRAR, O’NEIL AND GRAY, LLP
/s/ Murray Fogler k
Murray Fogler e
State Bar No. 072073C00
mfogler@foglerbrar.com
909 Fannin, Suite 1640
Houston, Texast 77010
Telephone: 71i3-481-1010
Facsimile: 713-574-3224
ATTORNEY e FOR LANCE
CHRISTOPHER KASSAB AND THE
KASSA u B LAW FIRM REGARDING
PLAINTIFFS’ AFFIRMATIVE CLAIMS
CERTIFICAaTE 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 29th day ofe August 2022.
 / s / Lance Christopher Kassab
p Lance Christopher Kassab
17
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: 67770941 r
Status as of 8/30/2022 8:18 AM CST
Case Contacts
Name BarNumber Email TimsestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 8/29/2022 4:43:08 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com r8/29/2022 4:43:08 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 8/29/2022 4:43:08 PM SENT
Todd Taylor ttaylor@jandflaw.com  8/29/2022 4:43:08 PM SENT
Scott M.Favre scott@favrepa.com 8/29/2022 4:43:08 PM SENT
Lawyer Wade lawyerwade@hotmail.coml 8/29/2022 4:43:08 PM SENT
Lance Kassab eserve@kassab.law a 8/29/2022 4:43:08 PM SENT
Lance Kassab lance@kassab.lawM 8/29/2022 4:43:08 PM SENT
David Kassab david@kassab.law 8/29/2022 4:43:08 PM SENT
Larry Newsom lnewsom@krcl.com 8/29/2022 4:43:08 PM SENT
Jason M.Ciofalo jason@ciofaelolaw.com 8/29/2022 4:43:08 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 8/29/2022 4:43:08 PM SENT
Nicholas Pierce nicholafs@kassab.law 8/29/2022 4:43:08 PM SENT
Murray JFogler mfogler@foglerbrar.com 8/29/2022 4:43:08 PM SENT
Murray Fogler mfogler@fbfog.com 8/29/2022 4:43:08 PM SENT
Andrew Johnson oajohnson@thompsoncoe.com 8/29/2022 4:43:08 PM SENT
Andrew J. Sarne Casarne@krcl.com 8/29/2022 4:43:08 PM SENT
Kathryn Laflin  KLaflin@KRCL.com 8/29/2022 4:43:08 PM SENT
Benjamin Ritz britz@thompsoncoe.com 8/29/2022 4:43:08 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 8/29/2022 4:43:08 PM SENT
Dale Jefferson 10f607900 jefferson@mdjwlaw.com 8/29/2022 4:43:08 PM SENT
Raul Herman Suazo n24003021 suazo@mdjwlaw.com 8/29/2022 4:43:08 PM SENT
Kevin Graham CainU24012371 cain@mdjwlaw.com 8/29/2022 4:43:08 PM SENT
D Kassab david@kassab.law 8/29/2022 4:43:08 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 8/29/2022 4:43:08 PM SENT
L Kassab lance@kassab.law 8/29/2022 4:43:08 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 8/29/2022 4:43:08 PM SENT
Chris C.Pappas cpappas@krcl.com 8/29/2022 4:43:08 PM SENT
Todd Taylor ttaylor@jandflaw.com 8/29/2022 4:43:08 PM SENT
Katie Budinsky kbudinsky@krcl.com 8/29/2022 4:43:08 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 8/29/2022 4:43:08 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 8/29/2022 4:43:08 PM SENT"
29,2022-08-02,OA,Kassab,6th Amended Answer,"Kassab's Sixth Amended Answer, Affirmative Defenses, and Counterclaim — adds 21st affirmative defense (TUTSA preemption under § 134A.007(a)) and attorney's fees claim for bad faith TUTSA prosecution under § 134A.005; otherwise substantively identical to the Fifth Amended Answer","Phase 3 amended pleading superseding the Fifth Amended Answer. Key additions over Filing #27: (1) new affirmative defense #21 for preemption under Tex. Civ. Prac. & Rem. Code § 134A.007(a), and (2) new section claiming attorney's fees under Tex. Civ. Prac. & Rem. Code § 134A.005 for bad faith TUTSA claims by Pohl. All prior content maintained including 20 affirmative defenses, factual background, and barratry counterclaim.",PLEAD-1,N/A,Phase 3,2022-08-02_OA_Kassab-6th-Amended-Answer-CC_FILED.pdf,"That Pohl recover nothing; that Kassab recover (i) actual and consequential damages, (ii) statutory damages, (iii) pre- and post-judgment interest, (iv) attorneys' fees and costs, and (v) all other just relief","8/2/2022 4:00 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 66899970
By: Ashley Lopez
Filed: 8/2/2022 4:00 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIrAL DISTRICT
DEFENDANTS, LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER
KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S SIXTH AMENDED
ANSWER, AFFIRMATIVE DEFENSES AND COUNtTERCLAIM
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendants, Lance Christopher Kassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm and files this their Sixth Armended Answer, Affirmative Defenses,
and Counterclaim, and would respectfully show the Court as follows;
iIl
RULE 47a STATEMENT
1. The Kassab Defendantso, in their capacity as Counter-Plaintiffs, seek monetary
relief of more than $1,000,000.00.
y PARTIES
2. Plaintiff, Michael A. Pohl is an individual lawyer residing in Colorado and is a
party herein. c i
3. oPlaintiff, Law Offices of Michael A. Pohl is a law firm set up for the practice of
law in various states of the union, including Texas and is a party herein.
4. Defendant, Scott Favre is a nonresident individual residing in Mississippi and is a
party herein.
5. Defendant, Scott M. Favre, PA, LLC is a nonresident limited liability company
located in Mississippi and is a party herein.
6. Defendant, Precision Marketing Group, LLC is a nonresident limited liability
company located in Mississippi and is a party herein. k
7. Defendant, F. Douglas Montague III is a nonresident indilvidual residing in
Mississippi. c
8. Defendant, Montague, Pittman & Varnado, PA is sa nonresident professional
association located in Mississippi. 
9. Defendant, Tina Nicholson is an individual residing in Texas and is a party herein.
10. Defendant, Baker Nicholson, LLP, d/b/a Baker Nicholson Law Firm is a limited
liability partnership located in Texas and is a party herein.
11. Defendant, Counter-Plaintiff, Laance Christopher Kassab is an individual residing
in Texas and is a party herein. 
12. Defendant, Counter-Pelaintiff, Lance Christopher Kassab, P.C. d/b/a The Kassab
Law Firm is a professional corpofration located in Texas and is a party herein.
y III
JURISDICTION AND VENUE
13. Thisa matter is within the jurisdictional limits of this Court and Plaintiffs, Counter-
Defendants, Mifcihael A. Pohl and Law Offices of Michael A. Pohl (“Pohl”) and Defendants,
Counter-Plaintiffs, Lance Christopher Kassab (“LCK”) and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law Firm (“Kassab, P.C.”) (collectively “Kassab”) are subject to the Court’s
jurisdiction. Venue is proper in this county because one or more of the defendants are residents of
this county and because a substantial part of the acts and/or omissions that form the basis of this
suit occurred in this county.
GENERAL DENIAL
14. Defendant, Counter-Plaintiff Kassab generally denies all allegations made by
Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl, and requests
the Court to require Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Oeffices of Michael
A. Pohl to carry their burden of proof regarding all allegations against Kassab.
V r
AFFIRMATIVE DEFENSES
15. Defendant, Counter-Plaintiff Kassab pleads the fsollowing affirmative defenses:
1. Statute of limitations; g
2. Justification; B
3. Estoppel; y
4. Waiver;
5. Ratification; f
6. Release;
7. Unclean hands; O
8. Contribution;
9. Failure to mitigate;
10. Lack ofi standing;
11. Accford and Satisfaction;
12. Assumption of the Risk;
13. Illegality/Criminal Acts;
14. First Amendment;
15. Attorney Immunity;
16. In Pari Delicto;
17. Res Judicata;
18. Defect of Parties;
19. Abandonment; k
20. Subject of a Valid Contract; and l
21. Preemption pursuant to TEX. CIV. PRAC. & REM. CODE § 134Ac.007(a).
VI s
SPECIFIC DENIALS D
16. Defendants, Counter-Plaintiffs specifically dseny that all conditions precedent
regarding Plaintiffs claims of conversion and theft of rtrade secrets have been performed or
occurred prior to Plaintiffs’ filing of suit against Kassab.
VIlI
FACTUAL BACKGROUNDa AND PROCEDURAL HISTORY
17. LCK is a lawyer practicinog law with The Kassab Law Firm, a law firm in Houston,
Texas focusing on plaintiffs’ legal mcalpractice cases. Kassab filed four lawsuits on behalf of over
four hundred clients against Pohl (the “Harris County Lawsuits”). The main allegations against
Pohl are civil barratry andp conspiracy to commit barratry, a third-degree felony in Texas. Pohl
conspired with his wife, Donalda Pohl (“Dona”), his paralegal, Edgar Jaimes (“Jaimes”) and three
runners in Missiscsiippi to illegally solicit clients on behalf of Pohl. Dona owns a sham lending
company in Toexas called Helping Hands Financing, LLC (“HH Texas”). Jaimes rans the day-to-
day operations of HH Texas. The three runners are Scott Walker (“Walker”), Steve Seymour
(“Seymour”) and Kirk Ladner (“Ladner”) (collectively “Runners”). The three Runners owned and
operated two other sham companies called Helping Hands Group, LLC and Helping Hands
Financial, LLC (collectively “HH Mississippi”). The three runners also owned Precision
Marketing Group, LLC (“Precision”) which they sold to Scott Favre and/or his companies
(collectively “Favre”). The runners had several other business entities from which they operated
and concealed their illegal solicitation conspiracy.
18. With regard to the clients obtained in the BP Litigation, Walkerk, Seymour and
Ladner hired other runners to literally go up and down streets in specific localtions knocking on
doors to solicit clients on behalf of Pohl for lawsuits against British Petrolceum. Walker, Seymore
and Ladner, through Precision and on behalf of Pohl, paid these runnesrs as much as $300-$400 for
every potential client they obtained. Pohl paid Precision as much as $1,500 for every client
Precision obtained and referred to Pohl. Walker, Seymore and Ladner paid the other runners from
this amount and pocketed the balance. Pohl also offered and agreed to pay Walker, Seymour and
Ladner a percentage of his legal fees once cases settled. This percentage was disguised as an
hourly rate of $1,500.00 per hour, but the percaentage of the “settlement” payment was never below
the agreed percentage. For example, no matter how much “hourly” time was actually spent on a
case, the agreed upon percentage wase always achieved by simply dividing the percentage amount
of Pohl’s legal fees by $1,500.00 fto calculate the imaginary number of hours, and then the Runners
would submit an invoice for tyhose imaginary number of hours. Whether the Runners actually spent
five (5) or fifty (50) hoCurs on a particular case was not the measure of the “settlement” fees to be
paid to the Runnersa, it was always the agreed upon percentage of attorney’s fees earned by Pohl
regardless of acftual hours spent on a case.
19U. With regard to auto accidents, Pohl set up a “Google Alerts” to be notified
whenever there was a horrific rollover or other type of horrific vehicle crash across the nation.
Pohl would then immediately send the alert to the Runners so they could arrange to visit hospitals,
homes and funerals to contact the families of the injured in order to solicit them as clients. The
Runners would use their sham companies, “Helping Hands” to act as though they were
approaching these victims to genuinely help them rather than solicit them. The Runners would
falsely tell these victims that they were there to provide money for burial services, food, clothing,
lodging, etc. In reality however, the Runners’ contacted these families under thesek false pretenses
with the sole objective of talking advantage of these victims and their famililes while they were
emotionally distraught and not thinking straight in order to lock them intoc contracts which allowed
the runners to select a lawyer for the victim. The victims and the familsy members were encouraged
to hire Pohl and told they could not get the money unless they agreed to hire Pohl. Pohl would pay
the Runners as much as $7,500 per client they signed up and Pohl also promised the runners as
much as 33% of Pohl’s legal fees on the back end when the case settled. Additionally, HH Texas
would pay HH Mississippi $2,500 for every client referred to HH Texas to “loan” money to these
victims and their family. Pohl used this procedaure as an attempt to put an additional buffer between
him and the actual Runners. 
20. Pohl also helped thee Runners form another sham entity, the GM Settlement
Verification Team (“GM Team”)f after General Motors, Inc. issued a recall on cars due to faulty
ignition switches which effeycted the safe operation of the airbag systems on vehicles. Thus, the
GM Team was designeCd to look official as if it was part of General Motors. This conspiracy was
to form an official laooking entity from GM as if GM was wanting to compensate people who had
been harmed wfhen airbags failed to deploy in relation to the ignition recall. In reality, this was
just anothUer sham company used to solicit and trick potential clients into hiring Pohl. Again, Pohl
would pay Walker and Ladner, through their sham entity, the GM Team, a fee for every potential
client it referred to Pohl, in addition to a percentage of his attorney’s fees on the back end.
21. Pohl knew what he was doing was illegal barratry. Accordingly, he knowingly
formed entities that he perceived would insulate him from liability. In fact, Walker testified that
although he and Pohl called it “marketing services” or “marketing money” it was “clear to [him]
it was barratry.” In fact, Walker considered himself and his company “a pass-throkugh for barratry
money.” All total, Walker, Ladner and Precision received over $5 million in “balrratry pass-through
money” from Pohl and other lawyers to solicit potential clients with clacims, both auto-accident
victims and those involved in the BP Deepwater Horizon litigation. s
22. One of the runners hired by Pohl and Walker to illegally solicit clients on behalf of
Pohl was Magdalena Santana (“Santana”). In her September 24, 2016 affidavit, Santana testified
that Pohl sent her on “dozens and dozens of car wreck cases all over the country.” Pohl would
email Santana the link of news coverage he obtained through Google Alerts depicting an accident
and asked her “to go to the victim or the victima’s family and try to get them to sign up with him.”
Santana swore under oath that Pohl agreed to pay her “$5,000 per case that [she] signed, plus a
percentage of his attorney’s fees.” Sanetana was advised by Pohl to “be persistent even if the family
... rejected [her].” Santana was insftructed by Pohl to “approach the victims and their families while
they were vulnerable, in they emergency room, their hospital rooms or at the funerals.” Pohl told
Santana that minoritiesC “were especially vulnerable since they tended not to know that the law
prohibited barratray.” According to Pohl, they “were easier to sign up.”
23. Pfohl would give Santana “money to give to the victims or their families” but would
only giveU the money to the potential client “if they agreed to sign a Pohl representation contract.”
Pohl advised Santana that the money was a “foot in the door” but instructed Santana not to mention
anything about hiring a lawyer “until after they agreed to take the money.” “If the client agreed to
hire Pohl, then [Santana] was to have the client sign a ‘Helping Hands’ contract.” Santana would
then give money to the client “from his own Helping Hands company.” When Santana questioned
this, Pohl 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.”
24. Pohl and/or his co-conspirators had Santana retract this affidkavit through a
December 19, 2017 affidavit. This purported retraction was likely the result of Plohl paying Santana
to retract the first affidavit, which is similar to something Pohl had done icn the past. In fact, Pohl’s
own paralegal, Jaimes, testified that on one occasion Pohl sent hims to Florida with a suitcase
containing $50,000 in cash to give to Santana in exchange for her agreement not to turn Pohl into
the authorities. Jaimes testified that Santana would only get the money if she signed a statement
agreeing not to mention Pohl’s illegal activity. Jaimes testified that Santana signed the statement
and then he gave her the $50,000.
25. Santana’s deposition was evena more detailed. Santana testified at her deposition
that the statement was an agreement for her to keep quiet and not charge Pohl with any
wrongdoing, criminal or unethical coenduct. Santana testified that Pohl paid her $50,000 in cash to
sign this statement, which was dfelivered by Jaimes in three bags marked “trick or treat.” Very
symbolic given that Santanay had been tricked by Pohl into soliciting potential clients for him and
was now being treatedC the money she claimed was due under their agreement just to stay quiet.
Santana reiterated ian her deposition that if she didn’t sign the gag agreement, she would not have
received the mfoney from Pohl. Santana attempted to indicate on the agreement that she was
receivingU $50,000 to keep quiet, but Jaimes told her Pohl demanded that she state she only received
nominal consideration, like $100. Santana did not write the statement but “just signed it” because
she felt she was being “forced to sign” it while “under duress.”
26. Notably, nowhere in Santana’s December 19th affidavit does she state the testimony
in her former affidavit is untrue, only that she does not “agree with” it and that the affidavit is not
“reliable.” Although Santana states in her December 19th affidavit that her prior affidavit was
drafted by a lawyer, Santana testified in her deposition that the September 24kth affidavit was
created voluntarily with her own “testimony.” Santana testified that, unlike witlh Pohl, she was not
paid and had never been promised any money to provide the testimoncy t in the September 24th
affidavit. Santana reiterated to counsel for Pohl, Billy Shepherd, sthat she was there for her
deposition to tell the truth and would not be bullied by his questioning or his efforts to confuse
her.
27. Regardless, Santana’s sworn deposition testimony confirmed most, if not all of the
facts set forth in her initial affidavit and this deposition testimony has never been retracted.
Therefore, Santana confirmed that she was haired by Pohl to solicit auto accident cases, the first
one being an accident where a woman and her unborn child lost their lives. Santana was instructed
by Walker, who was instructed by Poehl, to personally visit the mother of the deceased and sign her
up to sue the tire manufacturer fand, if she succeeded, Pohl would pay her $5,000. Following
Walker and Pohl’s instructioyns, Santana visited the funeral of the deceased and got the family to
feel comfortable withC her. Although the mother was grieving, Pohl told Santana: “take no
prisoners, this is a acut throat business, you get in there and you do whatever it takes to get this
client.” The solficitation was successful after Pohl gave Santana $2,000 to “give to the client to
convinceU her into signing over with the firm.”
28. “Coach” Kenneth Talley (“Talley”) was another runner hired by Pohl and Walker
who solicited over 20 auto accident cases for Pohl. Talley has sworn under oath that he was first
hired in relation to BP claims to find “folks that lost money due to the oil spill” and “sign them
up” and “get a fee for it.” Talley testified that he went to work “knocking on doors” looking for
potential claimants for Pohl and his partner in the BP litigation. Talley solicited and signed up
more than 800 BP claims for Pohl and his co-conspirators. Talley was paid between $75 and $350
for each BP client he signed up for Pohl and his partners. k
29. Talley eventually switched to illegally soliciting auto accidenlt victims for Pohl,
“calling on folks that had bad accidents.” Talley recalls that the first clicent he solicited for Pohl
was in “the hospital in intensive care.” Talley carried with him up tos $1,000 to pay the accident
victims to “help them with problems” but paid the potential client only once they “were signed
up.” Talley kept a list of all the auto accident cases he solicited so he could keep track of the cases
that he was due a percentage from Pohl’s attorney’s fees on the back end after the case settled.
Talley also followed a checklist that instructed him to, among other things, bring flowers to the
initial hospital visit (but to spend no more thaan $50) and to offer the victims money but to “make
sure the funding schedule” from HH Texas “is filled out properly before releasing any cash.”
Talley would advise the victims thate he had attorneys who could help them such as Pohl. Talley
was paid a fee of $1,400 plus his efxpenses by Pohl, through Walker and/or one of his sham business
entities for any auto accidenyt case he solicited and referred to Pohl. On some cases, Talley was to
receive a portion of theC fee paid to Helping Hands out of Pohl’s attorney’s fees. Talley discussed
with Pohl the “peracentage of settlements” he was to receive from the cases he solicited and
referred, and Pofhl told Talley that the money was being placed in an “escrow account” for him.
When askUed 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.” And, although
his paycheck was from Walker’s company, “the funding came by way of Edgar [Jaimes].”
10
30. Talley testified that personally soliciting clients for Pohl became so frequent that
he began carrying blank contracts to each solicitation. Talley testified that he never recommended
any lawyers other than Pohl. However, Talley never told the clients that he was getting paid to
solicit them. Talley would present a contract to the potential client. If the client dkid not agree to
hire Pohl, the clients would not get the money. Talley testified that Jaimes and Dlona (the operators
of HH Texas) would send him the money. c
31. Talley further testified that both he and Pohl knew whast they were doing was illegal.
In one instance, Talley was “run out of town” while soliciting clients for Pohl. Talley testified that
during the attempted solicitation he was told by a “lawyer or policeman” that “it was against the
law what [he] was doing.” Talley mentioned this to Pohl and Pohl told him “you’ve just got to
leave...some people you can’t help.”
32. Walker was eventually indicteda and sent to prison. Being afraid of where Walker’s
indictment might lead, Pohl and his lawyer partners stopped paying Walker and the other runners
the illegal fees as Pohl had promisede. Therefore, Walker, Seymour, Ladner and Precision filed a
lawsuit in Mississippi Federal Cfourt (“Federal Litigation”) against Pohl and his law partners
claiming they were owed miyllions of dollars in promised fees.
33. The aboCve facts were compiled during the Federal Litigation. Thereafter, more
than four hundred aclients who were illegally solicited contacted the Kassab Law Firm and
requested Kassfab to represent them in litigation against Pohl and his partners. Kassab filed
lawsuits oUn behalf of these clients in four different courts in Harris County. 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 required to notify the Texas State Bar
pursuant to Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct. Due to this
11
mandate, Kassab filed grievances against Pohl pursuant to Rule 8.03. some of Pohl’s clients also
prepared and filed grievances against Pohl arising out of his egregious conduct.
34. Because of these actions in representing clients against Pohl and the grievances
filed against Pohl, Pohl filed this retaliatory lawsuit against Kassab alleging convkersion and theft
of trade secrets. Pohl alleges that Kassab and others stole his property and usedl it to bring lawsuits
and grievances against Pohl. Specifically, Pohl alleges in his petition thcat, “Kassab is a lawyer
who specializes in suing other lawyers”1 and “Kassab solicited clsients/prospective clients [of
Pohl’s] to act as Plaintiffs . . . to bring cases against Pohl for alleged barratry and other claims.”2
Thus, Pohl has judicially admitted that he has brought his suit against Kassab simply because
Kassab contacted illegally solicited clients to notify them of Pohl’s illegal conduct and to offer to
represent them in suits against Pohl.
35. The lawsuit is frivolous and waithout merit as it is based upon false pretenses and
was brought solely for retaliation and harassment purposes. Specifically, Kassab did not steal
anything from Pohl. Additionally, Keassab did not purchase any stolen documents belonging to
Pohl. Nor did Kassab purchase afnything belonging to Pohl. Moreover, Pohl is not the owner of
documents received, if any, yfrom Precision, Favre, Nicholson, Montague or anyone else. Lastly,
none of the documents Cand/or information that Kassab may have received from various individuals
or entities are Pohl’as trade secrets as Pohl alleges. Furthermore, Pohl has failed to comply with
conditions precfedent to filing his retaliatory suit for conversion and theft of trade secrets.
SpecificaUlly, Pohl has never requested from Kassab, the return of his alleged property. Rather,
Pohl abandoned all of the alleged documents he now accuses Kassab of stealing and/or purchasing.
Pohl abandoned all of the documents he alleges were stolen and/or purchased because he knew
1 Pohl Original Petition, p. 6
2 Id. at p. 6-7
12
that the documents were not his and that he had no ownership interest in the documents. If Pohl
actually believed the subject documents were his, he would have safeguarded the documents rather
than abandon them with a convicted felon (Walker) and his cohorts (Seymore and Ladner). Even
as of today, the subject documents sit in a warehouse, unattended and not safeguarkded.
VIII l
COUNTERCLAIM FOR CIVIL BARRATRY
36. Within the lawsuits that Kassab has filed against Pohl on brehalf of his former clients
and/or potential clients, Pohl has judicially admitted that a claim for barratry is not a legal
malpractice case. Pohl has also admitted that a because a claim for barratry is not a claim for
“legal malpractice,” the Discovery Rule does not apply to ra barratry claim. Therefore, based upon
Pohl’s judicial admissions, the assignment of a barratry claim is permitted under Texas law.
37. Thus, based upon express assignmlents of interest given to Kassab, Kassab brings
counterclaims against Pohl and his law firm pursuant to Texas Civil Practice and Remedies Code,
Section 16.069. Section 16.069 provides:
(a) If a counterclaim or cross claim arises out of the same transaction or occurrence
that is the basis of an faction, a party to the action may file the counterclaim or
cross claim even though as a separate action it would be barred by limitations
on the date the party’s answer is required.
(b) The counteCrclaim or cross claim must be filed not later than the 30th day after
the date on which the party’s answer is required.
Kassab has been assigned barratry claims on behalf of 242 claimants. These counterclaims
are timely because they were filed within 30 days of the date Kassab filed his original
answer.
13
CLAIM FOR ATTORNEY’S FEES
38. Defendants contend that all or some of Plaintiffs’ claims for misappropriate
under TUTSA were made in bad faith, enabling Defendants to recover their reasonable
attorney’s fees. See TEX. CIV. PRAC. & REM. CODE § 134A.005.
PRAYER FOR RELIEF c
Wherefore, Defendants, Counter-Plaintiffs respectfully pray that Plaintiffs recover nothing
on their claims and that the Defendants, Counter-Plaintiffs rescover on their claims against the
Plaintiffs and/or any Third-Party Defendants as follows:
i) actual and consequential damages; B
ii) statutory damages; n
iii) pre- and post-judgment interest; i
iv) attorneys’ fees and costs; anMd
v) all other relief to which tohe Defendants, Counter-Plaintiffs may be justly entitled.
O Respectfully submitted,
p THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
l LANCE CHRISTOPHER KASSAB
i Texas State Bar No. 00794070
i lance@kassab.law
o f DAVID ERIC KASSAB
n Texas State Bar No. 24071351
david@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713.522.7400
Facsimile: 713.522.7410
ATTORNEYS FOR DEFENDANTS,
14
COUNTER-PLAINTIFFS LANCE CHRISTOPHER
KASSAB AND THE KASSAB LAW FIRM
/s/ Murray Fogler
Murray Fogler k
State Bar No. 07207300 r
mfogler@foglerbrar.com l
FOGLER, BRAR, O’NEIL AND GRAY, LLP
909 Fannin, Suite 16c40
Houston, Texas 77r010
Telephone: 713-s481-1010
Facsimile: 71D3-574-3224
ATTORNEsY FOR LANCE
CHRISTOPHER KASSAB AND THE
KASSrAB LAW FIRM REGARDING
P BLAINTIFFS’ AFFIRMATIVE CLAIMS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct caopy of the above and foregoing instrument has been
forwarded to all parties pursuant to the TexaMs Rules of Civil Procedure on this the 2nd day of August
2022. 
/ s / Lance Christopher Kassab
f Lance Christopher Kassab
15
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: 66899970 r
Status as of 8/2/2022 4:19 PM CST
Case Contacts
Name BarNumber Email TimsestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 8/2/2022 4:00:29 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com r8/2/2022 4:00:29 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 8/2/2022 4:00:29 PM SENT
Todd Taylor ttaylor@jandflaw.com  8/2/2022 4:00:29 PM SENT
Scott M.Favre scott@favrepa.com 8/2/2022 4:00:29 PM SENT
Lawyer Wade lawyerwade@hotmail.coml 8/2/2022 4:00:29 PM SENT
Lance Kassab eserve@kassab.law a 8/2/2022 4:00:29 PM SENT
Lance Kassab lance@kassab.lawM 8/2/2022 4:00:29 PM SENT
David Kassab david@kassab.law 8/2/2022 4:00:29 PM SENT
Nicholas Pierce nicholas@kassab.law 8/2/2022 4:00:29 PM SENT
Murray Fogler mfogler@fbefog.com 8/2/2022 4:00:29 PM SENT
Murray JFogler mfogler@foglerbrar.com 8/2/2022 4:00:29 PM SENT
Kathryn Laflin KLaflinf@KRCL.com 8/2/2022 4:00:29 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 8/2/2022 4:00:29 PM SENT
Larry Newsom lnewsom@krcl.com 8/2/2022 4:00:29 PM SENT
Jason M.Ciofalo ojason@ciofalolaw.com 8/2/2022 4:00:29 PM SENT
Jessica Z.Barger Cbarger@wrightclosebarger.com 8/2/2022 4:00:29 PM SENT
Chris C.Pappas  cpappas@krcl.com 8/2/2022 4:00:29 PM SENT
Todd Taylor ttaylor@jandflaw.com 8/2/2022 4:00:29 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 8/2/2022 4:00:29 PM SENT
Andrew J. Sarne f asarne@krcl.com 8/2/2022 4:00:29 PM SENT
Benjamin Ritz n britz@thompsoncoe.com 8/2/2022 4:00:29 PM SENT
Zandra EFoley U zfoley@thompsoncoe.com 8/2/2022 4:00:29 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 8/2/2022 4:00:29 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 8/2/2022 4:00:29 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 8/2/2022 4:00:29 PM SENT
D Kassab david@kassab.law 8/2/2022 4:00:29 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 8/2/2022 4:00:29 PM SENT
L Kassab lance@kassab.law 8/2/2022 4:00:29 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 8/2/2022 4:00:29 PM SENT
Katie Budinsky kbudinsky@krcl.com 8/2/2022 4:00:29 PM ERROR"
28,2022-05-31,OBJ,Pohl,Pohl’s objection to RTP designation,"Pohl's Objection to Kassab's Motion to Designate Responsible Third Parties, arguing the designated persons did not cause or contribute to the harms underlying Pohl's tort claims and that Kassab failed to satisfy pleading requirements","Phase 3 response to Kassab's RTP motion. Pohl objects on grounds that the designated persons are not responsible for the specific harms underlying Pohl's conversion and TUTSA claims, distinguishing between harm to Pohl and general connection to events. Also argues Kassab failed to timely disclose RTP identities in discovery. Filed by Reynolds Frizzell LLP.",RTP-1,N/A,Phase 3,2022-05-31_OBJ_Pohl-Objection-to-Kassab-RTP-Designation_FILED.pdf,Deny Kassab's Motion to Designate Responsible Third Parties with leave for Kassab to attempt to replead,"5/31/2022 5:00 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 64998436
By: cassie combs
Filed: 5/31/2022 5:00 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ r
SCOTT FAVRE and SCOTT M. FAVRE PA, § l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, § D
LLP d/b/a BAKER NICHOLSON LAW § 
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
POHL’S OBJECTION TO KASSAB’S MOTION TO DESIGNATE RESPONSIBLE
THIRD PARTIES
Plaintiffs Michael Pohl and Law Officae of Michael A. Pohl (collectively “Pohl”) file this
Objection to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm’s Motion to Desiegnate Responsible Third Parties (the “Motion”) and would
show the Court as follows: f
y I. INTRODUCTION
The Court shouCld deny Kassab’s Motion because he fails to allege facts showing how the
alleged responsiblea third parties are responsible for the harms underlying Pohl’s tort claims.
Kassab seeks tfo designate eight different allegedly responsible third parties—Billy Shepherd
(“ShepheUrd”), Scott Walker (“Walker”), Steve Seymour (“Seymour”) Kirk Ladner (“Ladner”),
Dona Pohl (“Dona”), Edgar Jaimes (“Jaimes”), Ken Talley (“Talley”), and Magdalena Santana
(“Santana”) (collectively, the “Alleged RTPs”). None of the Alleged RTPs “caused or contributed
to causing” the harms underlying Pohl’s claims. TEX. CIV. PRAC. & REM. CODE § 33.011(6).
Reading Kassab’s Motion, one might be forgiven for thinking that a responsible third party
is any person who bears some (or any) connection with events related to a lawsuit and whose
actions could allegedly have impacted the amount of damages suffered by a claimant. See
generally Motion. But Texas has not adopted a “butterfly effect” theory okf proportionate
responsibility. Texas’s proportionate responsibility statute requires sufficielnt allegations of a
party’s responsibility for the harm underlying a plaintiff’s cause of acction before designation
as a responsible third party is proper. s
The statute applies only to tort claims and requires that potential responsibility be
determined as to each cause of action asserted. See TEX. CIV. PRAC. & REM. CODE §§ 33.002,
33.003. The tort claims relevant to this analysis are Pohl’s claims for (1) conversion and (2)
violations of the Texas Uniform Trade Secrets Act (“TUTSA”).
In his Motion, Kassab fails to sufficieantly plead the Alleged RTPs “caused or contributed
to causing . . . the harm for which recovery of damages is sought.” See TEX. CIV. PRAC. & REM.
CODE § 33.011(6). The Alleged RTPes did not cause or contribute to the harm underlying Pohl’s
conversion claim—Defendants’ f“unlawful taking” of Pohl’s property. Nor did they cause or
contribute to Defendants’ “yuse” of Pohl’s trade secrets, which is the harm underlying Pohl’s
TUTSA claim. SimpCly put, Kassab’s allegations about the Alleged RTPs’ conduct do not
sufficiently plead thaat the Alleged RTPs meet the statutory definition of a responsible third party.
f II. LEGAL STANDARD
AU party seeking to designate responsible third parties must timely file “a motion for leave
to designate” that pleads sufficient facts concerning those parties’ responsibility as responsible
third parties. See TEX. CIV. PRAC. & REM. CODE § 33.004(a) & (g). A party can object to the
motion on the basis that the movant did satisfy their pleading obligations. Id. § 33.004(g).
To withstand an objection, the movant must satisfy the notice pleading standard with its
allegations regarding the responsibility of potential responsible third parties. In re Cordish Co.,
617 S.W.3d 909, 913 (Tex. App.—Houston [14th Dist.] 2021, orig. proceeding). This requires the
movant to provide notice of the alleged duty breached and sufficient allegations kof causation, so
that the parties to the lawsuit “can ascertain from [the allegations] the nature land basic issues of
the controversy regarding causation, and what type of evidence might be rcelevant.” See id. at 915.
The statute defines a responsible third party, as a person whso “caused or contributed to
causing in any way the harm for which recovery of damages is sought, whether by negligent act
or omission, by any defective or unreasonably dangerous product, by other conduct or activity that
violates an applicable legal standard, or by any comb
ination of these.” TEX. CIV. PRAC. & REM.
CODE § 33.011(6). Importantly, responsibility for “harm” in this context is not the same as
responsibility for “damages.” See In re Smitah, 366 S.W.3d 282, 286 (Tex. App.—Dallas 2012,
orig. proceeding); City Nat’l Bank of Sulphur Springs v. Smith, No. 06-15-00013-CV, 2016 WL
2586607, at *7 (Tex. App.—Texarkeana May 4, 2016, pet. denied) (discussing how “harm” is
synonymous with “injury” and hafs a meaning distinct from “damages”).
A potential responsibyle third party must allegedly be responsible for the harm underlying
the pled cause of actionC, not merely be plausibly connected with the damages associated with that
harm. See City Nata’l Bank of Sulphur Springs, 2016 WL 2586607, at *7–9 (“to be a responsible
third party, onef must contribute to the harm for which damages are sought, not to the damages
themselvUes”); DLA Piper LLP (US) v. Linegar, 539 S.W.3d 512, 517 (Tex. App.—Eastland 2017,
pet. denied).
III. FACTUAL BACKGROUND ON POHL’S CLAIMS
In Pohl’s First Amended Petition, the live pleading, he asserts four different causes of
action: (1) A breach of contract claim; (2) conversion; (3) violations of TUTSA; and (4)
conspiracy. See Plaintiffs Michael Pohl and Law Office of Michael A. Pohlk, PLLC’s First
Amended Petition (the “Petition”) ¶¶ 35–43, filed Nov. 30, 2018. l
Pohl’s first claim, for breach of contract, is not subject to the procportionate responsibility
statute. See TEX. CIV. PRAC. & REM. CODE § 33.002 (“This chapters applies to: (1) any cause of
action based on tort . . . .”). The harm underlying Pohl’s conspiracy claim is entirely derivative of
the conversion and TUTSA claims, and thus there is no need to analyze it independently from
those claims. Thus, the only claims relevant to the responsible third party analysis are Pohl’s
claims for (1) conversion and (2) violations of TUTSA. See TEX. CIV. PRAC. & REM. CODE §
33.003 (stating trier of fact shall determine reasponsibility “as to each cause of action asserted”).
A. The harm or injury for Pohl’s conversion claim is the “unlawful taking” of his property.
Pohl’s conversion claim ceneters around his allegations that “Kassab and Montague
knowingly purchased [Pohl’s] stolfen information/property.” Petition ¶ 38. The “injury” or “harm”
that gives rise to a claim fyor conversion is a defendant’s “unlawful taking” of the plaintiff’s
property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). Each wrongfaul possession is a separate conversion. See Pemex Exploracion y Produccion
v. BASF Corp., fCIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (applying
Texas law).
The conversions that Pohl complains about involve the Defendants in this lawsuit, not any
of the Alleged RTPs. See Petition ¶¶ 36–38. Thus, the alleged harms or injuries for which Pohl
seeks recovery for in relation to his conversion claim are the “unlawful takings” by Defendants in
this lawsuit.
B. The harm or injury for Pohl’s TUTSA claim is the wrongful “use” of his property.
Pohl’s TUTSA claim is based on the improper acquisition and sale of Pohl’s trade secrets,
particularly in relation to the sale and subsequent use of them by Kassab and Montague. See
Petition ¶¶ 39–42. The harm or injury giving rise to a trade-secret misappropriation claim, like
Pohl’s TUTSA claim, is the unauthorized use of the trade secrets. See Sw. Elnergy Prod. Co. v.
Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016). c t
There are multiple harms or injuries for which Pohl seekss recovery of damages in
connection with his TUTSA claim. One such harm is when Pohl’s trade secrets were used by
Favre, Precision, and Nicholson in their sale of the trade secrets to Kassab and Montague. See
Petition ¶ 41; Berry-Helfand, 491 S.W.3d at 722 (discussing how “[u]se of the trade secret means
commercial use by which the offending party seeks to profit from the use of the secret.” (citation
omitted)). Another harm is Kassab and Montrague’s use of Pohl’s stolen trade secrets to bring
unfounded lawsuits against him. See Petition ¶¶ 26–29; Motion ¶ 12 (confirming Kassab used the
alleged stolen materials to solicit clieents to bring claims against Pohl).
fIV. DISCUSSION
Kassab does not bothyer to identify which Alleged RTP is responsible for which of Pohl’s
claims, nor does he identify the harms underlying Pohl’s claims that the Alleged RTPs are
supposed to have caaused or contributed to. See generally Motion. Kassab’s conclusory and vague
allegations do nfot meet the fair notice standard because Pohl cannot ascertain the nature and basic
issues of the potential controversies with the Alleged RTPs. Kassab has not sufficiently pled that
the Alleged RTPs violated legal duties in a way that proximately caused Pohl’s harms. Finally,
Kassab failed to timely provide notice of the identity of potential responsible third parties in his
discovery responses.
A. Shepherd is not a responsible third party.
Kassab’s allegations against Pohl’s attorney, Billy Shepherd, are especially tortured.
Kassab apparently contends that in the scope of Shepherd’s representation of Pohl in a separate
lawsuit, Shepherd failed to protect Pohl from Kassab’s intentionally tortious conduct. This theory
is as ridiculous as it sounds. Such a tenuous connection to the harm on its face ldoes not satisfy the
definition of a responsible third party. Kassab has not sufficiently pled cthtat Shepherd possessed
any legal duty that he violated, nor has he adequately alleged that Shespherd’s conduct proximately
caused Pohl’s harms. 
Kassab’s factual allegations concerning Shepherd are limited to three paragraphs. See
Motion ¶¶ 16–18. The only allegations relevant to establishing a duty are that Shepherd was
“Pohl’s attorney in the Mississippi Litigation,” and he negotiated a settlement with certain person
connected to that litigation. Id. ¶ 17. But Kassrab’s allegations only suggest that Shepherd owed
a duty in relation to “the Mississippi Litigation,” and nothing pled supports a duty on Shepherd’s
part to go out and prevent tortious acetivities “from all third parties” who may have gained access
to Pohl’s information. Id. Nor cafn Kassab allege in good faith that Shepherd was retained to do
so. Without adequate alleygations that Shepherd violated an applicable duty, he cannot be
designated as a respons
ible third party. See TEX. CIV. PRAC. & REM. CODE § 33.011(6).
Even if Kasasab’s conclusory allegations were sufficient at this stage to allege a legal duty,
he has not sufficfiently alleged that any breach of that duty proximately caused the harms suffered
by Pohl. Even if Kassab’s allegations were true, Shepherd’s conduct in relation to negotiating the
settlement in the Mississippi Litigation wase not a substantial and foreseeable factor in bringing
about the harms for which Pohl seeks recovery in connection with his conversion and TUTSA
claims. In fact, Kassab’s allegations actively undermine proximate cause, as Shepherd’s alleged
failure to go out and prevent the intentionally tortious conduct of third parties at most suggests
Shepherd “furnish[ed] a condition that made the injury possible.” Ambrosio v. Carter’s Shooting
Ctr., Inc., 20 S.W.3d 262, 266 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Alleging in
a conclusory manner that Shepherd could have stopped unspecified parties from engaging in
tortious conduct outside the litigation in which he represented Pohl does not sufkficiently allege
causation. l
Ultimately, there are not sufficient allegations that Shepherd vicolated a legal duty that
existed in a way that proximately caused Defendants’ “unlawful taksing” of (for the conversion
claim) or use of (for the TUTSA claim) Pohl’s confidential and trade secret information. See
generally Motion. Without sufficient allegations that Shepherd “caused or contributed to causing”
these harms, he cannot be designated as a responsibl
e third party. See TEX. CIV. PRAC. & REM.
CODE § 33.011(6).
B. The remaining Alleged RTPs do naot meet the definition of responsible third parties.
Kassab’s theory of why the other Alleged RTPs—Walker, Seymour, Ladner, Dona, Jaimes,
Talley and Santana—are responsiblee third parties is similarly lacking. Kassab fails to make any
factual allegations connecting onef Alleged RTP with the claims in this lawsuit, and for others,
Kassab makes the conclusoyry allegation that they independently “placed Pohl’s alleged trade
secrets and documents in the public domain,” not that they caused or contributed to Defendants’
unlawful taking or ause of those materials. See Motion ¶ 20. These allegations are not sufficient
to designate thefse persons as responsible third parties.
One of the most egregious examples of Kassab’s failure to satisfy the pleading requirement
is in relation to Dona. Kassab makes no particularized allegations concerning Dona at all. See
generally Motion. There is no explanation of who she is, what conduct she engaged in, why she
possessed a legal duty that she violated, or how she proximately caused or contributed to Pohl’s
harms. See id. Kassab’s single conclusory allegation that Dona, listed with six other Alleged
RTPs, “routinely placed Pohl’s alleged trade secrets and documents in the public domain,
circulating Precision’s marketing lists and other documents allegedly belonging to Pohl to
numerous third parties rather than safeguard these documents and lists,” is not sufficient to satisfy
the fair notice pleading standard. Id. ¶ 20. Even if that conclusory allegation wkere true, it does
not even suggest that Dona caused or contributed to the harms at issue in this lawlsuit—Defendants’
unlawful taking and/or use of Pohl’s materials. c
Kassab provides slightly more information in connection withs his allegations about Jaimes,
Talley and Santana. See Motion ¶¶ 5–10. However, none of those allegations connect Jaimes,
Talley or Santana with the harms underlying Pohl’s claims—Defendants’ unlawful taking and/or
use of Pohl’s materials. Like with Dona, the closest Kassab comes is the conclusory allegation
that these individuals “routinely placed Pohl’s alleged trade secrets and documents in the public
domain . . . . Id. ¶ 20. But this allegation doaes not provide fair notice of how these individuals
caused or contributed to the relevant harms in this lawsuit.1
Finally, Kassab alleges that eWalker, Seymour, and Ladner were previous owners of
Precision, allegedly making themf responsible for conversion by Defendants in the case. See
Motion ¶ 19. However, aty most, their ownership connects them with a separate instance of
conversion, which givCes rise to its own harm. See Pemex Exploracion y Produccion v. BASF
Corp., CIV.A. H-10a-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (stating that when
property is allegfed to have been converted and then transferred to another party, “each possession
is a new cUonversion.” applying Texas law)). Movant’s allegations against Walker, Seymour, and
1 For many of the Alleged RTPs—such as Dona, Jaimes, Talley and Santana—Kassab did not allege that they had a
legal duty that they violated that proximately caused Pohl’s harms. See Motion ¶ 20. Instead, Kassab merely states
that these persons could have breached a duty “if” they “had an agreement and/or duty to safeguard any property,” but
without ever alleging such an agreement or duty existed. See generally id.
Ladner are not sufficient to demonstrate they are responsible for or contributed to the relevant
harms giving rise to the conversion and TUTSA claims against Defendants in this lawsuit.
C. Kassab has not timely disclosed the identities of responsible third parties.
Kassab cannot designate the Alleged RTPs as responsible third parties because the
limitations periods on Pohl’s torts claims have passed with respect the Allegedl RTPs, and Kassab
failed to comply with his obligations “to timely disclose that the[se] perscont[s] may be designated
as a responsible third party under the Texas Rules of Civil Procedusre.” See TEX. CIV. PRAC. &
REM. CODE § 33.004(d). Pohl’s conversion and TUTSA claims are subject to two and three-year
statutes of limitations respectively. See TEX. CIV. PRAC. & REM. CODE § 16.003(a) (conversion);
TEX. CIV. PRAC. & REM. CODE § 16.010(a) (trade secrets). Given that Pohl filed this lawsuit in
2018, these limitations periods have all run.
In response to Pohl’s requests for disclorsure, Kassab was required to provide “the name,
address, and telephone number of any person who may be designated as a responsible third party.”
TEX. R. CIV. P. 194.2(l) (rule in effecet for cases filed prior to Jan. 1, 2021). However, Kassab’s
responses do not provide this infofrmation.2 A party’s failure to provide any of the three pieces of
information in their disclosuyre responses can show they did not satisfy their “obligations under
Rule 194.2(l) and section 33.004(d).” See In re Dawson, 550 S.W.3d 625, 630 (Tex. 2018).
Kassab’s disaclosure responses do not name Shepherd as a person that may be designated
as a third partyf.
The responses also do not provide the address or telephone number for any
Alleged RTP.4 As a result, Kassab “may not designate [any Alleged RTP] as a responsible third
2 See Kassab Defendants’ First Amended Response to Plaintiffs’ Request for Disclosure, at 3, attached as Exhibit A.
3 See id.
4 See id.
party,” because he has not timely disclosed any Alleged RTP under the Texas Rules of Civil
Procedure. See TEX. CIV. PRAC. & REM. CODE § 33.004(d); Dawson, 550 S.W.3d at 630.
V. CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Mkichael A. Pohl
object to Kassab’s Motion and request that the Court deny the Motion with lleave for Kassab to
attempt to replead. c
Dated: May 31, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650
1100l Louisiana St., Suite 3500
Haouston, Texas 77002
MTel. 713.485.7200
Fax 713.485.7250
ojfrizzell@reynoldsfrizzell.com
c Attorney for Plaintiffs Michael Pohl
f and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby ccertify that a true and correct copy of this document was served on all counsel of
record pursuantf to the Texas Rules of Civil Procedure on this 31st day of May, 2022.
/s/ Jean C. Frizzell
Jean C. Frizzell
10
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 64998436
Status as of 6/1/2022 8:30 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Zandra EFoley zfoley@thompsoncoe.com s5/31/2022 5:00:45 PM SENT
Andrew Johnson ajohnson@thompsoncoe.comg5/31/2022 5:00:45 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.coum 5/31/2022 5:00:45 PM SENT
Murray JFogler mfogler@foglerbrar.com 5/31/2022 5:00:45 PM SENT
Andrew J. Sarne asarne@krcl.com y 5/31/2022 5:00:45 PM SENT
Dale Jefferson 10607900 jefferson@mdjwalaw.com 5/31/2022 5:00:45 PM SENT
Larry Newsom lnewsom@krcl.com 5/31/2022 5:00:45 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 5/31/2022 5:00:45 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 5/31/2022 5:00:45 PM SENT
Solace Southwick ssofuthwick@reynoldsfrizzell.com 5/31/2022 5:00:45 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 5/31/2022 5:00:45 PM SENT
Todd Taylor pttaylor@jandflaw.com 5/31/2022 5:00:45 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 5/31/2022 5:00:45 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 5/31/2022 5:00:45 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 5/31/2022 5:00:45 PM SENT
Chris C.Pappas o cpappas@krcl.com 5/31/2022 5:00:45 PM SENT
Todd Taylor U ttaylor@jandflaw.com 5/31/2022 5:00:45 PM SENT
David R.Wade lawyerwade@hotmail.com 5/31/2022 5:00:45 PM SENT
Katie Budinsky kbudinsky@krcl.com 5/31/2022 5:00:45 PM SENT
Scott M.Favre scott@favrepa.com 5/31/2022 5:00:45 PM SENT
Lance Kassab eserve@kassab.law 5/31/2022 5:00:45 PM SENT
Murray Fogler mfogler@fbfog.com 5/31/2022 5:00:45 PM SENT
Kathryn Laflin KLaflin@KRCL.com 5/31/2022 5:00:45 PM SENT"
26,2022-05-13,MTN,Kassab,Motion to Designate RTP,Kassab's Motion to Designate Responsible Third Parties seeking to add eight non-party individuals to the verdict form for proportionate responsibility allocation,"Phase 3 procedural motion filed after counterclaims were dismissed and before trial, seeking to designate eight individuals as responsible third parties under Texas proportionate responsibility statute to reduce potential damages allocation against Kassab.",RTP-1,N/A,Phase 3,2022-05-13_MTN_Kassab-Mtn-to-Designate-RTP_FILED.pdf,"Designate George W. (Billy) Shepherd, Scott Walker, Steve Seymour, Kirk Ladner, Dona Pohl, Edgar Jaimes, Ken Talley, and Magdalena Santana as responsible third parties for proportionate responsibility allocation, and grant all other relief in law or equity","5/13/2022 6:22 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 64509093
By: Deandra Mosley
Filed: 5/13/2022 6:22 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 LAlNCE
CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S
MOTION TO DESIGNATE RESPONSIBLE THIRD PcARTIES
TO THE HONORABLE JUDGE SCOT DOLLINGER: s
Defendants, Lance Christopher Kassab and Lance Christopher Kassab, P.C. D/B/A The
Kassab Law Firm (“Kassab”), and file this, their Motion to Designate Responsible Third Parties.
REQUESTED R ELIEF
1. Kassab seeks to designate Georgel W. (Billy) Shepherd (Shepherd), Scott Walker
(Walker), Steve Seymour (Seymour) andM Kirk Ladner (Ladner), Dona Pohl (Dona), Edgar
Jaimes (Jaimes), Ken Talley (Talley), Moagdalena Santana (Santana) as responsible third parties
in this litigation. Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley and Santana are all
persons who are alleged to have caused or contributed to causing in any way the harm for which
recovery of damages by Pohl is sought. Thus, they are all responsible third parties in this cause.
TEX. CIV. PRAC. & REM. CODE § 33.011(6).
c II
f FACTS
2.U Pohl is a lawyer who commits barratry and has prayed on the less fortunate to
earn a living. On October 18, 2014, three Mississippi residents, Scott Walker (“Walker”), Kirk
Ladner (“Ladner”) and Steve Seymour (“Seymour”), and their related entities, including
Precision Marketing Group, LLC (“Precision”), filed suit against Michael Pohl (“Pohl”) and
others in Mississippi federal court (the “Mississippi Litigation”). There, Precision, Walker,
Ladner and Seymour alleged that: (1) they had a joint venture with Pohl to sign up clients with
economic loss claims stemming from the BP Deepwater Horizon oil spill and clients with
personal injury claims; (2) that they successfully obtained these clients for Pohl; and (3) that
Pohl breached their agreement by not paying them what was owed, including thekir agreed share
of Pohl’s attorney’s fees. l
3. The evidence presented in the Mississippi Litigationc established that Pohl
engaged in barratry. See TEX. PEN. CODE § 38.12 (defining barratrsy generally as the improper
solicitation of clients). During that litigation, Walker testified that Pohl retained him and
Precision to “provide marking services to auto accident victims[.]” Walker testified that
although he and Pohl called it “marketing services” or “marketing money,” it was “clear to [him]
it was barratry.” In fact, Walker considered himself and his company “a pass-through for barratry
money.” All told, Walker, Ladner and Precaision received over $5 million in “barratry pass-
through money” from Pohl and other lawyers to solicit potential clients, both auto-accident
victims and those involved in the BeP litigation. They would use this money to pay contract
workers to solicit clients. They wfould locate and instruct contract workers on how to accomplish
the solicitation. They traineyd “40 or 50 people” on how to “go out and solicit contracts.”
4. Walker Cand his team at Precision were first retained by Pohl to “recruit clients”
with losses resultinag from the Deepwater Horizon oil spill. When that litigation dwindled, Pohl
shifted his focufs to auto accident cases, knowing that the group at Precision could go out and get
him thosUe types of clients. To accomplish this task, individuals at Precision would receive
“Google alerts” or leads from Pohl on recent catastrophic auto accidents. Walker testified that he,
Ladner, or someone working for them would go to the victims of the auto accident to “do
marketing” by letting them know “there were attorneys [who] could help.” In exchange, these
runners – whoever visited the victims – where paid between $2,500 and $5,000 to solicit the
client. These payments flowed from Pohl through his wife’s wholly owned company, “Helping
Hands Financing,” to Precision, to each individual runner. Walker would simply submit to Pohl
the amount that Precision paid its runners and Pohl would reimburse Precision.
5. One of the runners, Santana, testified to the barratry in her Septekmber 24, 2016
affidavit filed in the Mississippi Litigation. She testified that Pohl sent helr on “dozens and
dozens of car wreck cases all over the country.” Pohl would email Sacntana the link of news
coverage depicting the accident and ask her “to go to the victim or thse victim’s family and try to
get them to sign up with him.” Pohl offered to pay Santana “$5,000 per case that [she] signed,
plus a percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even if
the family ... rejected [her].” Santana was instructed by Pohl to “approach the victims and their
families while they were vulnerable, in the emergency room, their hospital rooms or at the
funerals.” Id. Pohl told Santana that minoritieas “were especially vulnerable since they tended not
to know that the law prohibited barratry.”  According to Pohl, they “were easier to sign up.”
6. Pohl would pay Santaena “money to give to the victims or their families” but “only
if they agreed to sign a Pohl reprefsentation contract.” Pohl advised Santana that the money was a
“foot in the door” but instruycted Santana not to mention that she was there on behalf of a lawyer
“until after they agreedC to take the money.” “If the client agreed to hire Pohl, then [Santana] was
to have the client siagn a ‘Helping Hands’ contract.” Pohl would then give Santana the money to
pay the client “ffrom his own Helping Hands company.” When Santana questioned this, Pohl told
Santana tUhat it “was illegal for him to pay [her] directly for cases, and that’s why the money had
to go through some company.”
7. Santana further confirmed the barratry in her deposition taken in the Mississippi
Litigation. She testified that she was hired by Pohl to solicit auto accident cases, the first one
was an accident where a woman and her unborn child lost their lives. 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. Santana visited
the funeral of the deceased and got the family to feel comfortable with her. Although the mother
was grieving, Pohl told Santana: “take no prisoners, this is a cut-throat business, kyou get in there
and you do whatever it takes to get this client.” The solicitation was successlful after Pohl gave
Santana $2,000 to “give to the client to convince her into signing over wicth the firm.”
8. Pohl later requested Santana to sign an agreement prosmising not to go to any law
enforcement, including various State Disciplinary boards regarding any wrongdoing, criminal or
unethical conduct. In fact, it is undisputed that Pohl paid Santana $50,000 in cash to sign this
agreement, which was delivered to her in Florida by Pohl’s paralegal, Jaimes. Santana confirmed
this in an affidavit and Jaimes confirmed this in his deposition. Santana signed the statement and
received the cash, although she believed she waas “forced to sign” it while “under duress”.
9. Another runner, Talley, also testified in the Mississippi Litigation about the
barratry. Talley solicited over 20 auteo accident cases for Pohl, including two families who hired
Kassab to sue Pohl for barratry. fTalley testified that he was first hired in relation to BP claims to
find “folks that lost money dyue to the oil spill” and “sign them up” and “get a fee for it.” Talley
solicited and signed upC more than 800 BP claims for Pohl and was paid between $75 and $350
per client. a
10. Tfalley eventually transitioned to soliciting auto accident victims, “calling on folks
that had Ubad accidents.” Talley recalls that the first client he solicited was in “the hospital in
intensive care.” Talley maintained $1,000 in cash to pay the accident victims to “help them with
problems” and influence them to hire a lawyer, because the victims received the money only if
they “were signed up.” Talley would advise the victims that he had attorneys who could help
them, and that one of those attorneys was Pohl. For each auto accident case he solicited, Talley
was paid a fee of $1,400 plus his expenses by Pohl, through Walker and Precision. On some
cases, Talley was to receive a portion of Pohl’s attorney’s fees, and even discussed with Pohl the
“percentage of settlements” he was to receive. When asked whether Pohl knew he was getting
paid to “contact vehicle accident victims,” Talley responded, “the money waks coming from
Edgar [Jaimes] who worked for him.” 1CR301. Although his paycheck was frlom Precision, “the
funding came by way of Edgar [Jaimes].” Talley testified that both he acnd Pohl knew what they
were doing was illegal. s
11. In May of 2016, during the Mississippi Litigation, an insurance adjuster named
Scott Favre (“Favre”) purchased Precision and all the company’s assets, including client lists,
marketing lists, documents, files, computers, etc. from Walker, Seymore and Ladner. Included
in the purchase was the Mississippi Litigation, thus, Precision’s claims against Pohl in the
Mississippi Litigation were assigned to Favare. Favre and Precision were represented in the
Mississippi Litigation by Texas lawyer, Tina Nicholson and her firm, Baker Nicholson, LLP
(“Nicholson”). Pohl asserted counteer claims in the Mississippi Litigation alleging that Walker
and Precision (and other unknofwn defendants) converted his property. Pohl then moved to
dismiss the claims against hyim, arguing, among other things, that the agreements between him
and the runners were iCllegal and unenforceable. More specifically, Pohl argued that under both
Texas and Mississiappi law “it is illegal for a non-lawyer to accept or agree to accept money to
improperly solicfit clients for a lawyer.” The Mississippi federal court rejected Pohl’s contention,
stating thUat the agreements to solicit clients would only be a violation of Texas law and Texas
disciplinary rules, which did not apply to Precision, a Mississippi company, and Walker and
Ladner, Mississippi residents. Having failed to obtain summary dismissal, Pohl settled the
Mississippi Litigation with all parties, including Favre, hoping to forever conceal his barratry
operation. Although Pohl had already paid the runners approximately $5,000,000 in barratry
money, Pohl paid the runners an additional $1,000,000 to settle the Mississippi Litigation.
12. Kassab heard about the allegations being made by the runners in the Mississippi
Litigation. Kassab searched PACER, the federal court’s online system, obtaininkg a plethora of
information related to the Mississippi Litigation. Kassab met with Favrle and Precision’s
counsel, Nicholson. Kassab obtained information directly from them, icncluding the names and
addresses of Pohl’s former clients or prospective clients from Precsision’s marketing and client
lists. Precision, through Favre, informed Kassab that it owned all of its marketing lists and
information and also informed and verified that Precision was the main Plaintiff suing Pohl in
the Mississippi Litigation. Thereafter, Kassab used Precision’s marketing and client lists to
notify individuals who he believed may have been victims of Pohl’s barratry. Hundreds of
individuals responded, indicating that they haad been personally solicited to hire Pohl in their auto
accident or BP claims. Kassab agreed to represent these clients, and more than 400 individuals
hired Kassab to represent them agaienst Pohl and other lawyers involved in the illegal barratry
scheme. f
13. Kassab filed yfour petitions on behalf of these barratry victims in Harris County,
Texas (the “barratry laCwsuits”). The barratry lawsuits communicated matters of public concern:
that Pohl conspiread to commit barratry. After reviewing the evidence obtained from the
Mississippi Litifgation, Kassab believed he had a duty to file a grievance against Pohl pursuant to
Rule 8.03U of the Texas Disciplinary Rules of Professional Conduct,1 and he did. Kassab also
filed a grievance against Pohl on behalf of one of his clients. In the grievances, Kassab and his
1 See TEX. DISC. R. PROF’L COND. 8.03(a) (except in circumstances which do not apply here, “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.”).
client expressed matters of public concern relating to Pohl’s legal services in the marketplace and
petitioned the State Bar of Texas to reprimand and discipline Pohl in order to protect the public
as is mandated by Rule 8.03.
14. Unfortunately, in direct retaliation to the lawsuits and grievanceks filed against
Pohl, Pohl filed this retaliatory litigation against Kassab, Precision, Nichlolson, Favre and
Montague, alleging breach of contract, theft of trade secrets, conversiocn and civil conspiracy.
Specifically, Pohl alleged that these parties were “acting in cosmbination with the agreed
objective” to misappropriate his trade secrets and convert the marketing lists and attorney-client
contracts that Pohl hired Precision to obtain. Pohl alleges Favre and Precision, with Nicholson’s
assistance, converted this property and provided it to Kassab and Montague in order to solicit
Pohl’s former clients “to bring cases against Pohl for alleged barratry and other claims.”
aIII
AMRGUMENT
15. A responsible third paorty is someone “who [is] alleged to have caused or
contributed to causing in any way the harm for which recovery of damages is sought, whether by
negligent act or omission . . . [or] by other conduct or activity that violates an applicable legal
standard,” making them responsible third parties in this cause. TEX. CIV. PRAC. & REM. CODE §
33.011(6). Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley and Santana are all
persons who havce caused or contributed to causing the harm for which Pohl seeks to recover
damages.
16. Shepherd knew that Walker, Seymour and Ladner had sold Precision to Favre and
knew that Walker, Seymour and Ladner had legally transferred Precision’s assets, including the
subject matter of Pohl’s conversion and theft of trade secrets claims, to Favre. Shepherd further
knew that Favre and/or his counsel had given documents to third parties, including Kassab and
others prior to negotiating a settlement in the Mississippi Litigation.
17. Shepherd negotiated the settlement in the Federal Litigation between Walker,
Seymour, Ladner, Favre and Precision on the one hand and Pohl on the other hankd. If Pohl now
complains in this lawsuit that he was entitled to the return and/or dlestruction of said
assets/property, Shepherd, as Pohl’s attorney in the Mississippi Liticgation wholly failed to
protect Pohl by ensuring that all subject property was gathered from sall third parties and returned
to Pohl or destroyed as part of the any settlement agreement, if in fact Pohl owned and/or desired
to safeguard the subject property.
18. Shepherd’s malfeasance was either negligent or intentional. If Shepherd knew
that the subject assets/property were a point of contention in the Mississippi Litigation and knew
that the assets/property could be used by ouatside third parties to garner clients to sue Pohl, as
Pohl alleges, Shepherd may have intentionally failed to protect Pohl’s interest so that he could
secure future lucrative employment feor himself and his law firm for years to come by continuing
to represent Pohl in litigation to fbe brought against Pohl after the subject property was used to
garner clients to sue Pohl yas Pohl alleges. Thus, Shepherd is a person who is caused or
contributed to causing Cin any way the harm for which recovery of damages is sought by Pohl.
19. Walkaer, Seymour and Ladner sold Precision to Favre. Walker, Seymour and
Ladner also tranfsferred the subject assets/property of Precision to Favre. Walker testified under
oath thatU he, Seymour and Ladner, through Precision, owned all the assets/property, including
computers and documents that were transferred to Favre. Walker also testified that he had the
legal right and authority, through Precision, to sell and transfer all the subject assets/property to
Favre. Moreover, Walker, Seymour and Ladner certified that they owned all of the subject
property/assets and had authority to transfer all of the subject property/assets to Favre. If
Walker, Seymour and Ladner did not have the legal right to transfer all of the subject
assets/property to Favre, then they caused or contributed to causing any alleged harm for which
recovery of damages is sought by Pohl.
20. Additionally, if Walker, Seymour, Ladner, Dona, Jaimes, Talley kor Santana had
an agreement and/or duty to safeguard any property allegedly owned bly Pohl, they are
responsible for failing to safeguard the property. Additionally, Walker, Sceymour, Ladner, Dona,
Jaimes, Talley and Santana routinely placed Pohl’s alleged trade sescrets and documents in the
public domain, circulating Precision’s marketing lists and other documents allegedly belonging
to Pohl to numerous third parties rather than safeguard these documents and lists. Therefore,
Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley, Santana are persons who caused or
contributed to causing any alleged harm for which recovery of damages is sought by Pohl. Their
conduct caused or contributed to causing in paart (if not entirely) the harm for which recovery of
damages is sought by Pohl, and that conduct violated an applicable legal standard and/or
constitutes negligence. See Tex. Civ.e Prac. & Rem. Code § 33.011(6). Therefore, the jury should
be permitted to consider apportiofning fault in this case to Shepherd, Walker, Seymour, Ladner,
Dona, Jaimes, Talley, Sanytana. Their designation as responsible third parties is factually
justified and legally apCpropriate.2
2 It is also of no concern here that the Court might be unable to exert personal jurisdiction over either Walker,
Seymour, Ladner, Talley, Dona, Jaimes or Santana. In its 2003 revision of Chapter 33, the Legislature abolished the
predecessor law, which had defined responsible third parties to be only those over whom the court could exercise
jurisdiction, thus allowing the designation of those “who are not subject to the court’s jurisdiction or who are
immune from liability to the claimant.” See, e.g., In re Unitec Elevator Serv. Co., 178 S.W.3d 53, 58 & n. 5 (Tex.
App.-- Houston [1st Dist.] 2005, orig. proceeding); accord Hix-Hernandez v. Ford Motor Co., No. 1:20-cv-29-RP,
2021 WL 7632564, at *1 (W.D. Tex. May 6, 2021) (“A defendant may designate a responsible third party despite
the fact that the party has a defense to liability, cannot be joined as a defendant, or both. Even parties who are
outside the court’s jurisdiction or are immune from liability may be designated responsible third parties.”) (internal
citations omitted).
PRAYER
For the reasons set forth herein, Defendants, Counter-Plaintiffs, Lance Christopher
Kassab and Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm ask the Court to
grant this Motion to Designate Responsible Third Parties and grant all other reelief in law or in
equity as the Court sees fit and as Defendants, Counter-Plaintiffs will ever pray.
Respectfully submitted,
THE KASSAeB LAW FIRM
rLANCE CHRISTOPHER KASSAB
M Texas State Bar No. 00794070
 lance@kassab.law
o DAVID ERIC KASSAB
e Texas State Bar No. 24071351
c david@kassab.law
f f NICHOLAS R. PIERCE
Texas State Bar No. 24098263
y nicholas@kassab.law
1214 Elgin Street
Houston, Texas 77004
 Telephone: 713-522-7400
a Facsimile: 713-522-7410
f ATTORNEYS FOR THE KASSAB DEFENDANTS
10
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has
been forwarded to all known parties and/or counsel of record pursuant to the Texas Rules of
Civil Procedure on this, the 13th of May, 2022.
/ s / Lance Christopher Kalssab
Lance Christopher Kassab
11
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 64509093
Status as of 5/16/2022 7:55 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com s5/13/2022 6:22:10 PM SENT
Scott M.Favre scott@favrepa.com g5/13/2022 6:22:10 PM SENT
Lance Kassab eserve@kassab.law u 5/13/2022 6:22:10 PM SENT
Murray JFogler mfogler@foglerbrar.com 5/13/2022 6:22:10 PM SENT
Murray Fogler mfogler@fbfog.comy 5/13/2022 6:22:10 PM SENT
Andrew Johnson ajohnson@thomapsoncoe.com 5/13/2022 6:22:10 PM SENT
Larry Newsom lnewsom@krcl.com 5/13/2022 6:22:10 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 5/13/2022 6:22:10 PM SENT
Andrew J. Sarne asarne@krcl.com 5/13/2022 6:22:10 PM SENT
Kathryn Laflin KLafflin@KRCL.com 5/13/2022 6:22:10 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 5/13/2022 6:22:10 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 5/13/2022 6:22:10 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 5/13/2022 6:22:10 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 5/13/2022 6:22:10 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 5/13/2022 6:22:10 PM SENT
Solace Southwicko ssouthwick@reynoldsfrizzell.com 5/13/2022 6:22:10 PM SENT
E. MarieJamisUon jamison@wrightclosebarger.com 5/13/2022 6:22:10 PM SENT
Chris C.Pappas cpappas@krcl.com 5/13/2022 6:22:10 PM SENT
Todd Taylor ttaylor@jandflaw.com 5/13/2022 6:22:10 PM SENT
David R.Wade lawyerwade@hotmail.com 5/13/2022 6:22:10 PM SENT
Katie Budinsky kbudinsky@krcl.com 5/13/2022 6:22:10 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 5/13/2022 6:22:10 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 5/13/2022 6:22:10 PM SENT"
27,2022-05-13,OA,Kassab,5th Amended Answer,"Kassab's Fifth Amended Answer, Affirmative Defenses, and Counterclaim — live pleading asserting 20 affirmative defenses, general and specific denials, detailed factual background of Pohl's barratry scheme, and counterclaim for civil barratry on behalf of 242 assigned claimants","Phase 3 amended pleading filed simultaneously with the Motion to Designate Responsible Third Parties. This is Kassab's fifth iteration of his answer, expanding affirmative defenses and maintaining the barratry counterclaim based on assigned claims from 242 of Pohl's former clients.",PLEAD-1,N/A,Phase 3,2022-05-13_OA_Kassab-5th-Amended-Answer-CC_FILED.pdf,"That Pohl recover nothing; that Kassab recover (i) actual and consequential damages, (ii) statutory damages, (iii) pre- and post-judgment interest, (iv) attorneys' fees and costs, and (v) all other just relief on counterclaims","5/13/2022 6:22 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 64509093
By: Deandra Mosley
Filed: 5/13/2022 6:22 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIrAL DISTRICT
DEFENDANTS, LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER
KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S FIFTH AMENDED
ANSWER, AFFIRMATIVE DEFENSES AND COUNtTERCLAIM
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendants, Lance Christopher Kassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm and files this their Fifth Armended Answer, Affirmative Defenses,
and Counterclaim, and would respectfully show the Court as follows;
iIl
RULE 47a STATEMENT
1. The Kassab Defendantso, in their capacity as Counter-Plaintiffs, seek monetary
relief of more than $1,000,000.00.
y PARTIES
2. Plaintiff, Michael A. Pohl is an individual lawyer residing in Colorado and is a
party herein. c i
3. oPlaintiff, Law Offices of Michael A. Pohl is a law firm set up for the practice of
law in various states of the union, including Texas and is a party herein.
4. Defendant, Scott Favre is a nonresident individual residing in Mississippi and is a
party herein.
5. Defendant, Scott M. Favre, PA, LLC is a nonresident limited liability company
located in Mississippi and is a party herein.
6. Defendant, Precision Marketing Group, LLC is a nonresident limited liability
company located in Mississippi and is a party herein. k
7. Defendant, F. Douglas Montague III is a nonresident indilvidual residing in
Mississippi. c
8. Defendant, Montague, Pittman & Varnado, PA is sa nonresident professional
association located in Mississippi. 
9. Defendant, Tina Nicholson is an individual residing in Texas and is a party herein.
10. Defendant, Baker Nicholson, LLP, d/b/a Baker Nicholson Law Firm is a limited
liability partnership located in Texas and is a party herein.
11. Defendant, Counter-Plaintiff, Laance Christopher Kassab is an individual residing
in Texas and is a party herein. 
12. Defendant, Counter-Pelaintiff, Lance Christopher Kassab, P.C. d/b/a The Kassab
Law Firm is a professional corpofration located in Texas and is a party herein.
y III
JURISDICTION AND VENUE
13. Thisa matter is within the jurisdictional limits of this Court and Plaintiffs, Counter-
Defendants, Mifcihael A. Pohl and Law Offices of Michael A. Pohl (“Pohl”) and Defendants,
Counter-Plaintiffs, Lance Christopher Kassab (“LCK”) and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law Firm (“Kassab, P.C.”) (collectively “Kassab”) are subject to the Court’s
jurisdiction. Venue is proper in this county because one or more of the defendants are residents of
this county and because a substantial part of the acts and/or omissions that form the basis of this
suit occurred in this county.
GENERAL DENIAL
14. Defendant, Counter-Plaintiff Kassab generally denies all allegations made by
Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl, and requests
the Court to require Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Oeffices of Michael
A. Pohl to carry their burden of proof regarding all allegations against Kassab.
V r
AFFIRMATIVE DEFENSES
15. Defendant, Counter-Plaintiff Kassab pleads the fsollowing affirmative defenses:
1. Statute of limitations; g
2. Justification; B
3. Estoppel; y
4. Waiver;
5. Ratification; f
6. Release;
7. Unclean hands; O
8. Contribution;
9. Failure to mitigate;
10. Lack ofi standing;
11. Accford and Satisfaction;
12. Assumption of the Risk;
13. Illegality/Criminal Acts;
14. First Amendment;
15. Attorney Immunity;
16. In Pari Delicto;
17. Res Judicata;
18. Defect of Parties;
19. Abandonment; and k
20. Subject of a Valid Contract. l
VI c
SPECIFIC DENIALS r
16. Defendants, Counter-Plaintiffs specifically deny Dthat all conditions precedent
regarding Plaintiffs claims of conversion and theft of trades secrets have been performed or
occurred prior to Plaintiffs’ filing of suit against Kassab. r
VII
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
17. LCK is a lawyer practicing lMaw with The Kassab Law Firm, a law firm in Houston,
Texas focusing on plaintiffs’ legal malporactice cases. Kassab filed four lawsuits on behalf of over
four hundred clients against Pohl (tche “Harris County Lawsuits”). The main allegations against
Pohl are civil barratry and conspiracy to commit barratry, a third-degree felony in Texas. Pohl
conspired with his wife, Dopnalda Pohl (“Dona”), his paralegal, Edgar Jaimes (“Jaimes”) and three
runners in Mississippi to illegally solicit clients on behalf of Pohl. Dona owns a sham lending
company in Texacs icalled Helping Hands Financing, LLC (“HH Texas”). Jaimes rans the day-to-
day operationos of HH Texas. The three runners are Scott Walker (“Walker”), Steve Seymour
(“Seymour”) and Kirk Ladner (“Ladner”) (collectively “Runners”). The three Runners owned and
operated two other sham companies called Helping Hands Group, LLC and Helping Hands
Financial, LLC (collectively “HH Mississippi”). The three runners also owned Precision
Marketing Group, LLC (“Precision”) which they sold to Scott Favre and/or his companies
(collectively “Favre”). The runners had several other business entities from which they operated
and concealed their illegal solicitation conspiracy.
18. With regard to the clients obtained in the BP Litigation, Walker, Seymour and
Ladner hired other runners to literally go up and down streets in specific locatiokns knocking on
doors to solicit clients on behalf of Pohl for lawsuits against British Petroleum.l Walker, Seymore
and Ladner, through Precision and on behalf of Pohl, paid these runners acs much as $300-$400 for
every potential client they obtained. Pohl paid Precision as muchs as $1,500 for every client
Precision obtained and referred to Pohl. Walker, Seymore and Ladner paid the other runners from
this amount and pocketed the balance. Pohl also offered and agreed to pay Walker, Seymour and
Ladner a percentage of his legal fees once cases settled. This percentage was disguised as an
hourly rate of $1,500.00 per hour, but the percentage of the “settlement” payment was never below
the agreed percentage. For example, no mattaer how much “hourly” time was actually spent on a
case, the agreed upon percentage was always achieved by simply dividing the percentage amount
of Pohl’s legal fees by $1,500.00 to caelculate the imaginary number of hours, and then the Runners
would submit an invoice for thosef imaginary number of hours. Whether the Runners actually spent
five (5) or fifty (50) hours oyn a particular case was not the measure of the “settlement” fees to be
paid to the Runners, itC was always the agreed upon percentage of attorney’s fees earned by Pohl
regardless of actuala hours spent on a case.
19. Wfith regard to auto accidents, Pohl set up a “Google Alerts” to be notified
wheneverU there was a horrific rollover or other type of horrific vehicle crash across the nation.
Pohl would then immediately send the alert to the Runners so they could arrange to visit hospitals,
homes and funerals to contact the families of the injured in order to solicit them as clients. The
Runners would use their sham companies, “Helping Hands” to act as though they were
approaching these victims to genuinely help them rather than solicit them. The Runners would
falsely tell these victims that they were there to provide money for burial services, food, clothing,
lodging, etc. In reality however, the Runners’ contacted these families under these false pretenses
with the sole objective of taling advantage of these victims and their families wkhile they were
emotionally distraught and not thinking straight in order to lock them into contrlacts which allowed
the runners to select a lawyer for the victim. The victims and the family mcembers were encouraged
to hire Pohl and told they could not get the money unless they agreed sto hire Pohl. Pohl would pay
the Runners as much as $7,500 per client they signed up and Pohl also promised the runners as
much as 33% of Pohl’s legal fees on the back end when the case settled. Additionally, HH Texas
would pay HH Mississippi $2,500 for every client referred to HH Texas to “loan” money to these
victims and their family. Pohl used this procedure as an attempt to put an additional buffer between
him and the actual Runners. a
20. Pohl also helped the Runners form another sham entity, the GM Settlement
Verification Team (“GM Team”) afteer General Motors, Inc. issued a recall on cars due to faulty
ignition switches which effected fthe safe operation of the airbag systems on vehicles. Thus, the
GM Team was designed to lyook official as if it was part of General Motors. This conspiracy was
to form an official lookCing entity from GM as if GM was wanting to compensate people who had
been harmed when aairbags failed to deploy in relation to the ignition recall. In reality, this was
just another shafm company used to solicit and trick potential clients into hiring Pohl. Again, Pohl
would paUy Walker and Ladner, through their sham entity, the GM Team, a fee for every potential
client it referred to Pohl, in addition to a percentage of his attorney’s fees on the back end.
21. Pohl knew what he was doing was illegal barratry. Accordingly, he knowingly
formed entities that he perceived would insulate him from liability. In fact, Walker testified that
although he and Pohl called it “marketing services” or “marketing money” it was “clear to [him]
it was barratry.” In fact, Walker considered himself and his company “a pass-through for barratry
money.” All total, Walker, Ladner and Precision received over $5 million in “barratry pass-through
money” from Pohl and other lawyers to solicit potential clients with claims, botkh auto-accident
victims and those involved in the BP Deepwater Horizon litigation. l
22. One of the runners hired by Pohl and Walker to illegally soclicit clients on behalf of
Pohl was Magdalena Santana (“Santana”). In her September 24, 201s6 affidavit, Santana testified
that Pohl sent her on “dozens and dozens of car wreck cases all over the country.” Pohl would
email Santana the link of news coverage he obtained through Google Alerts depicting an accident
and asked her “to go to the victim or the victim’s family and try to get them to sign up with him.”
Santana swore under oath that Pohl agreed to pay her “$5,000 per case that [she] signed, plus a
percentage of his attorney’s fees.” Santana waas advised by Pohl to “be persistent even if the family
... rejected [her].” Santana was instructed by Pohl to “approach the victims and their families while
they were vulnerable, in the emergenecy room, their hospital rooms or at the funerals.” Pohl told
Santana that minorities “were espfecially vulnerable since they tended not to know that the law
prohibited barratry.” Accoyrding to Pohl, they “were easier to sign up.”
23. Pohl woCuld give Santana “money to give to the victims or their families” but would
only give the moneay to the potential client “if they agreed to sign a Pohl representation contract.”
Pohl advised Safntana that the money was a “foot in the door” but instructed Santana not to mention
anything Uabout hiring a lawyer “until after they agreed to take the money.” “If the client agreed to
hire Pohl, then [Santana] was to have the client sign a ‘Helping Hands’ contract.” Santana would
then give money to the client “from his own Helping Hands company.” When Santana questioned
this, Pohl 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.”
24. Pohl and/or his co-conspirators had Santana retract this affidavit through a
December 19, 2017 affidavit. This purported retraction was likely the result of Pohlk paying Santana
to retract the first affidavit, which is similar to something Pohl had done in the lpast. In fact, Pohl’s
own paralegal, Jaimes, testified that on one occasion Pohl sent him toc Florida with a suitcase
containing $50,000 in cash to give to Santana in exchange for her agrseement not to turn Pohl into
the authorities. Jaimes testified that Santana would only get the money if she signed a statement
agreeing not to mention Pohl’s illegal activity. Jaimes testified that Santana signed the statement
and then he gave her the $50,000.
25. Santana’s deposition was even more detailed. Santana testified at her deposition
that the statement was an agreement for haer to keep quiet and not charge Pohl with any
wrongdoing, criminal or unethical conduct. Santana testified that Pohl paid her $50,000 in cash to
sign this statement, which was deliveered by Jaimes in three bags marked “trick or treat.” Very
symbolic given that Santana had fbeen tricked by Pohl into soliciting potential clients for him and
was now being treated the myoney she claimed was due under their agreement just to stay quiet.
Santana reiterated in hCer deposition that if she didn’t sign the gag agreement, she would not have
received the moneya from Pohl. Santana attempted to indicate on the agreement that she was
receiving $50,00f0 to keep quiet, but Jaimes told her Pohl demanded that she state she only received
nominal cUonsideration, like $100. Santana did not write the statement but “just signed it” because
she felt she was being “forced to sign” it while “under duress.”
26. Notably, nowhere in Santana’s December 19th affidavit does she state the testimony
in her former affidavit is untrue, only that she does not “agree with” it and that the affidavit is not
“reliable.” Although Santana states in her December 19th affidavit 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.” Santana testified that, unlike with Pohl, she was not
paid and had never been promised any money to provide the testimony in the kSeptember 24th
affidavit. Santana reiterated to counsel for Pohl, Billy Shepherd, that she lwas there for her
deposition to tell the truth and would not be bullied by his questioning cor his efforts to confuse
her. s
27. Regardless, Santana’s sworn deposition testimony confirmed most, if not all of the
facts set forth in her initial affidavit and this deposition testimony has never been retracted.
Therefore, Santana confirmed that she 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. Santana was instructed
by Walker, who was instructed by Pohl, to perasonally 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. Following
Walker and Pohl’s instructions, Santeana visited the funeral of the deceased and got the family to
feel comfortable with her. Althfough the mother was grieving, Pohl told Santana: “take no
prisoners, this is a cut throayt business, you get in there and you do whatever it takes to get this
client.” The solicitatioCn was successful after Pohl gave Santana $2,000 to “give to the client to
convince her into siagning over with the firm.”
28. f“Coach” Kenneth Talley (“Talley”) was another runner hired by Pohl and Walker
who solicUited over 20 auto accident cases for Pohl. Talley has sworn under oath that he was first
hired in relation to BP claims to find “folks that lost money due to the oil spill” and “sign them
up” and “get a fee for it.” Talley testified that he went to work “knocking on doors” looking for
potential claimants for Pohl and his partner in the BP litigation. Talley solicited and signed up
more than 800 BP claims for Pohl and his co-conspirators. Talley was paid between $75 and $350
for each BP client he signed up for Pohl and his partners.
29. Talley eventually switched to illegally soliciting auto accident victims for Pohl,
“calling on folks that had bad accidents.” Talley recalls that the first client he soklicited for Pohl
was in “the hospital in intensive care.” Talley carried with him up to $1,000 lto pay the accident
victims to “help them with problems” but paid the potential client only conce they “were signed
up.” Talley kept a list of all the auto accident cases he solicited so he scould keep track of the cases
that he was due a percentage from Pohl’s attorney’s fees on the back end after the case settled.
Talley also 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 “make
sure the funding schedule” from HH Texas “is filled out properly before releasing any cash.”
Talley would advise the victims that he had aattorneys who could help them such as Pohl. Talley
was paid a fee of $1,400 plus his expenses by Pohl, through Walker and/or one of his sham business
entities for any auto accident case he esolicited and referred to Pohl. On some cases, Talley was to
receive a portion of the fee paid tfo Helping Hands out of Pohl’s attorney’s fees. Talley discussed
with Pohl the “percentage yof settlements” he was to receive from the cases he solicited and
referred, and Pohl toldC Talley that the money was being placed in an “escrow account” for him.
When asked whethear Pohl knew he was getting paid to “contact vehicle accident victims,” Talley
responded, “thef money was coming from Edgar [Jaimes] who worked for him.” And, although
his paychUeck was from Walker’s company, “the funding came by way of Edgar [Jaimes].”
30. Talley testified that personally soliciting clients for Pohl became so frequent that
he began carrying blank contracts to each solicitation. Talley testified that he never recommended
any lawyers other than Pohl. However, Talley never told the clients that he was getting paid to
10
solicit them. Talley would present a contract to the potential client. If the client did not agree to
hire Pohl, the clients would not get the money. Talley testified that Jaimes and Dona (the operators
of HH Texas) would send him the money.
31. Talley further testified that both he and Pohl knew what they were doking was illegal.
In one instance, Talley was “run out of town” while soliciting clients for Pohl. Tlalley testified that
during the attempted solicitation he was told by a “lawyer or policeman”c that “it was against the
law what [he] was doing.” Talley mentioned this to Pohl and Pohl stold him “you’ve just got to
leave...some people you can’t help.” 
32. Walker was eventually indicted and sent to prison. Being afraid of where Walker’s
indictment might lead, Pohl and his lawyer partners stopped paying Walker and the other runners
the illegal fees as Pohl had promised. Therefore, Walker, Seymour, Ladner and Precision filed a
lawsuit in Mississippi Federal Court (“Fedearal Litigation”) against Pohl and his law partners
claiming they were owed millions of dollars in promised fees.
33. The above facts weree compiled during the Federal Litigation. Thereafter, more
than four hundred clients who fwere illegally solicited contacted the Kassab Law Firm and
requested Kassab to represeynt them in litigation against Pohl and his partners. Kassab filed
lawsuits on behalf of thCese clients in four different courts in Harris County. Additionally, due to
the egregiousness aof Pohl’s violation of the Texas Penal Code and violations of the Texas
Disciplinary Rufles of Professional Conduct, Kassab was required to notify the Texas State Bar
pursuant Uto Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct. Due to this
mandate, Kassab filed grievances against Pohl pursuant to Rule 8.03. some of Pohl’s clients also
prepared and filed grievances against Pohl arising out of his egregious conduct.
11
34. Because of these actions in representing clients against Pohl and the grievances
filed against Pohl, Pohl filed this retaliatory lawsuit against Kassab alleging conversion and theft
of trade secrets. Pohl alleges that Kassab and others stole his property and used it to bring lawsuits
and grievances against Pohl. Specifically, Pohl alleges in his petition that, “Kasksab is a lawyer
who specializes in suing other lawyers”1 and “Kassab solicited clients/proslpective clients [of
Pohl’s] to act as Plaintiffs . . . to bring cases against Pohl for alleged barcra t try and other claims.”2
Thus, Pohl has judicially admitted that he has brought his suit agasinst Kassab simply because
Kassab contacted illegally solicited clients to notify them of Pohl’s illegal conduct and to offer to
represent them in suits against Pohl.
35. The lawsuit is frivolous and without merit as it is based upon false pretenses and
was brought solely for retaliation and harassment purposes. Specifically, Kassab did not steal
anything from Pohl. Additionally, Kassab daid not purchase any stolen documents belonging to
Pohl. Nor did Kassab purchase anything belonging to Pohl. Moreover, Pohl is not the owner of
documents received, if any, from Preecision, Favre, Nicholson, Montague or anyone else. Lastly,
none of the documents and/or infofrmation that Kassab may have received from various individuals
or entities are Pohl’s trade syecrets as Pohl alleges. Furthermore, Pohl has failed to comply with
conditions precedent Cto filing his retaliatory suit for conversion and theft of trade secrets.
Specifically, Pohl haas never requested from Kassab, the return of his alleged property. Rather,
Pohl abandonedf all of the alleged documents he now accuses Kassab of stealing and/or purchasing.
Pohl abanUdoned all of the documents he alleges were stolen and/or purchased because he knew
that the documents were not his and that he had no ownership interest in the documents. If Pohl
actually believed the subject documents were his, he would have safeguarded the documents rather
1 Pohl Original Petition, p. 6
2 Id. at p. 6-7
12
than abandon them with a convicted felon (Walker) and his cohorts (Seymore and Ladner). Even
as of today, the subject documents sit in a warehouse, unattended and not safeguarded.
VIII
COUNTERCLAIM FOR CIVIL BARRATRY
36. Within the lawsuits that Kassab has filed against Pohl on behalf of his former clients
and/or potential clients, Pohl has judicially admitted that a claim for btarratry is not a legal
malpractice case. Pohl has also admitted that a because a claim fosr barratry is not a claim for
“legal malpractice,” the Discovery Rule does not apply to a barratry claim. Therefore, based upon
Pohl’s judicial admissions, the assignment of a barratry claime is permitted under Texas law.
37. Thus, based upon express assignments ouf interest given to Kassab, Kassab brings
counterclaims against Pohl and his law firm pursuannt to Texas Civil Practice and Remedies Code,
Section 16.069. Section 16.069 provides: r
(a) If a counterclaim or cross claim arises out of the same transaction or occurrence
that is the basis of an action,o a party to the action may file the counterclaim or
cross claim even though as a separate action it would be barred by limitations
on the date the party’s ancswer is required.
(b) The counterclaim o O r cross claim must be filed not later than the 30th day after
the date on whichy the party’s answer is required.
Kassab has been assigned barratry claims on behalf of 242 claimants. These counterclaims
are timely because athey were filed within 30 days of the date Kassab filed his original
answer. f i
PRAYER FOR RELIEF
Wherefore, Defendants, Counter-Plaintiffs respectfully pray that Plaintiffs recover nothing
on their claims and that the Defendants, Counter-Plaintiffs recover on their claims against the
Plaintiffs and/or any Third-Party Defendants as follows:
13
i) actual and consequential damages;
ii) statutory damages;
iii) pre- and post-judgment interest;
iv) attorneys’ fees and costs; and
v) all other relief to which the Defendants, Counter-Plaintiffs may ber justly entitled.
Respectfully submitted,
THE KASSAB LAW
FIRM
/ s / Lance sChristopher Kassab
LANCE C eHRISTOPHER KASSAB
Texasg State Bar No. 00794070
lancer@kassab.law
DBAVID ERIC KASSAB
Texas State Bar No. 24071351
ydavid@kassab.law
i l1214 Elgin Street
a Houston, Texas 77004
Telephone: 713.522.7400
f Facsimile: 713.522.7410
ATTORNEYS FOR DEFENDANTS,
i COUNTER-PLAINTIFFS LANCE CHRISTOPHER
O f KASSAB AND THE KASSAB LAW FIRM
C /s/ Murray Fogler
l  Murray Fogler
State Bar No. 07207300
mfogler@foglerbrar.com
f FOGLER, BRAR, O’NEIL AND GRAY, LLP
n 909 Fannin, Suite 1640
U Houston, Texas 77010
Telephone: 713-481-1010
Facsimile: 713-574-3224
ATTORNEY FOR THE KASSAB LAW
FIRM REGARDING PLAINTIFFS’
AFFIRMATIVE CLAIMS
14
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 13th day of May
2022.
/ s / Lance Christopher Kasesab
Lance Christopher KassCabl
15
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 64509093
Status as of 5/16/2022 7:55 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s5/13/2022 6:22:10 PM SENT
Todd Taylor ttaylor@jandflaw.com g5/13/2022 6:22:10 PM SENT
Scott M.Favre scott@favrepa.com u 5/13/2022 6:22:10 PM SENT
Lance Kassab eserve@kassab.law  5/13/2022 6:22:10 PM SENT
Murray JFogler mfogler@foglerbrar.cyom 5/13/2022 6:22:10 PM SENT
Murray Fogler mfogler@fbfog.caom 5/13/2022 6:22:10 PM SENT
Larry Newsom lnewsom@krcl.com 5/13/2022 6:22:10 PM SENT
Andrew Johnson ajohnson@othompsoncoe.com 5/13/2022 6:22:10 PM SENT
Andrew J. Sarne asarne@krcl.com 5/13/2022 6:22:10 PM SENT
Kathryn Laflin KLafflin@KRCL.com 5/13/2022 6:22:10 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 5/13/2022 6:22:10 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 5/13/2022 6:22:10 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 5/13/2022 6:22:10 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 5/13/2022 6:22:10 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 5/13/2022 6:22:10 PM SENT
Harris Wells o hwells@reynoldsfrizzell.com 5/13/2022 6:22:10 PM SENT
Solace SouthwUick ssouthwick@reynoldsfrizzell.com 5/13/2022 6:22:10 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 5/13/2022 6:22:10 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 5/13/2022 6:22:10 PM SENT
Chris C.Pappas cpappas@krcl.com 5/13/2022 6:22:10 PM SENT
Todd Taylor ttaylor@jandflaw.com 5/13/2022 6:22:10 PM SENT
David R.Wade lawyerwade@hotmail.com 5/13/2022 6:22:10 PM SENT
Katie Budinsky kbudinsky@krcl.com 5/13/2022 6:22:10 PM SENT"
24,2022-02-04,RPL,Pohl,Pohl’s reply ISO MSJ on counterclaims,Plaintiffs' Reply in Support of Their Motion for Summary Judgment on Defendants' Counterclaims for Civil Barratry,"Pohl's reply brief supporting his MSJ on Kassab's barratry counterclaims, filed February 4, 2022. This is the final brief in the CC-1 motion chain before the court's ruling (which ultimately granted Pohl's motion). Attorney: Jean C. Frizzell of Reynolds Frizzell LLP.",CC-1,N/A,Phase 2,2022-02-04_RPL_Pohl-Reply-ISO-MSJ-on-CC_FILED.pdf,Grant summary judgment dismissing Kassab's counterclaims for civil barratry,"2/4/2022 3:45 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 61466983
By: Deandra Mosley
Filed: 2/4/2022 3:45 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY
JUDGMENT ON DEFENDANTS’ COUNTERCLAIMS
Plaintiffs Michael Pohl and Law Officae of Michael A. Pohl (collectively “Pohl”) file this
Reply in Support of Their Motion for Summary Judgment on Defendants’ Counterclaims for Civil
Barratry. e
In his Response to Plfaintiffs’ Motion (the “Response”) Kassab admits that the
Assignments1 underlying hisy counterclaims were shams that altered nothing about the ownership
of the claims and wereC made explicitly for the purpose of circumventing the statute of limitations
and fomenting otherwise barred litigation. See Response, at 6 (“Seeing Pohl’s retaliatory suit as a
means to potenftfially revive the barratry claims dismissed on limitations in Brumfield and Gandy,
Kassab aUnd his clients executed 242 Limited Assignments.”); see also Declaration of Lance
Kassab ¶ 12, Ex. 5 to the Response (after purported “assignment,” clients retained 60% interest in
claims and Kassab retained 40% contingent fee interest). These admissions demonstrate the
1 Terms defined in Plaintiffs’ Motion carry the same meaning in this Reply.
invalidity of the Assignments and therefore the Counterclaims. In addition to effectively admitting
that the Assignments are shams, Kassab’s Response fails to rebut any of the other bases on which
Pohl moved for summary judgment.
The Court can resolve Pohl’s Motion based on a straightforward applicationk of res judicata,
as Kassab freely admits that he is asserting the very same claims that are subjectl to final judgments.
Furthermore, even if they were not barred by res judicata, Kassab’s claims cdo not meet the statutory
elements for revival and are themselves barred by limitations. Fsinally, the invalidity of the
Assignments only further supports the conclusion that summarsy judgment on Kassab’s claims is
proper.
I. Res judicata applies and is dispositive of Kassab’s counterclaims.
Kassab has confirmed that his counterclaims are the same claims that were resolved by
prior final judgments on the merits. See Response, at 6 (confirming that Assignments were for the
claims “dismissed on limitations in Brumfield and Gandy”). Res judicata applies to such claims,
and the prior judgments dismissing thee Barratry Claims on the basis of limitations preclude Kassab
from re-litigating the same claimsf in this lawsuit.
Kassab’s sole argumyent against res judicata is a purported “change in material facts” that
prevents the applicatioCn of res judicata. See id. at 8. But Kassab supplies no legal support for his
argument that a chaange in facts, like an assignment, has any impact on res judicata. Despite the
dispositive natufre of the res judicata argument, Kassab devotes just over a single page of his 27-
page ResUponse and cites to two cases to address this issue. See id. at 8–9. The two cases deal with
application of res judicata to a claim that did not exist at the time of a prior judgment. Neither
case supports the conclusion that res judicata does not apply to stale claims that were previously
dismissed, merely because a party attempted to circumvent the statute of limitations by assigning
their claim to be asserted as a revived counterclaim.
In Marino v. State Farm Fire & Cas. Ins. Co., the first case Kassab relies on, the Court
“addressed the issue of whether res judicata can bar a subsequent suit on a cause of action that was
not recognized until after judgment was rendered in the first suit.” 787 S.W.2d 948, 949 (Tex.
1990) (emphasis added). In the first lawsuit between Marino and State Farm, Markino prevailed at
trial on a claim for breach of contract based on State Farm’s denial of an insulrance claim. Id. at
948–49. After the judgment, the Texas Supreme Court “recognized a tocrt cause of action for an
insurer’s breach of the duty of good faith and fair dealing,” commonsly called a “bad faith” claim.
Id. at 949. The Court found that Marino’s “bad faith” claim, assserted in the second lawsuit, was
not barred by res judicata, because it “was based on rights subsequently acquired, [and] it was not
part of his former cause of action.” Id. at 950.
Kassab’s other case is City of Lubbock v. Stubbs, 327 S.W.2d 411 (Tex. 1959), which
addresses the application of res judicata to a ciaty’s attempt to enjoin Stubbs from violating a zoning
ordinance. Stubbs, 327 S.W.2d at 414. In a suit involving a prior ordinance, Stubbs prevailed,
permitting him to continue using his eland for specific business purposes. The city then passed an
ordinance that zoned his land asf residential. Id. at 413. In the second suit, the city sought to
enforce the new zoning ordyinance against Stubbs. Stubbs argued that, like in the first suit, he
should be able to contiCnue using his land for purposes he was engaged in prior to the passing of
the ordinance. Id. at 414. However, the Court found that res judicata did not apply, in part based
on the fact thatf Sftubbs’s “present use” of his land differed in each of the suits and that the city was
enforcingU a new ordinance. Id.
The application of res judicata to Kassab’s counterclaims is not analogous to the situations
presented in Marino and Stubbs. Kassab’s Barratry Claims not only existed at the time of the prior
final judgments on the merits, the prior judgments apply to the same claims Kassab attempts to
assert here. See Response, at 8 (acknowledging that “the prior judgments in Brumfield and Gandy
concluded” that “the barratry claims were barred by the statute of limitations”). Courts citing to
the Marino and Stubbs cases have properly focused on the existence of a claim and whether it was
a “a claim that was raised or that could have been raised in the first action.” Hernakndez v. Del Ray
Chem. Intern., Inc., 56 S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 200l1, no pet.).
Kassab is incorrect that his strategic use of assignments combinecd with section 16.069 of
the Civil Practice and Remedies Code allow him to not only avoid tshe proper application of the
statute of limitations, but also to avoid the effects of res judicatas. Because the Assignors’ Barratry
Claims are the subjects of final judgments, and Kassab is in privity with the Assignors, res judicata
applies and prevents Kassab from recovering on his counterclaims. The Court should grant Pohl’s
Motion and dismiss Kassab’s Barratry Claims.
II. Kassab’s counterclaims are not reavived and are thus barred by limitations.
Kassab’s counterclaims for civil barratry are barred by limitations because they accrued
more than four years before Kassabe filed the counterclaims. Kassab does not dispute that the
underlying Barratry Claims are bafrred by limitations or that his claims are governed by a four-year
statute of limitations. See geynerally Response. Instead, Kassab argues that section 16.069 of the
Civil Practice and RemCedies Code revives claims purportedly assigned to him. Kassab’s three
arguments in responase to Pohl’s Motion do not demonstrate that section 16.069 applies.
A. Pfohl’s claims against the Defendants arise of out of a different transaction or
occurrence than Kassab’s assigned Barratry Claims.
Kassab selectively quotes the standard for determining if section 16.069 applies and
misconstrues what facts are relevant to the claims and counterclaims in this lawsuit. See Response,
at 10–14. One reason that section 16.069 does not apply is because Kassab cannot show that “[t]he
essential facts on which the counterclaim is based [are] significantly and logically relevant to both
claims.” Smith v. Ferguson, 160 S.W.3d 115, 120 (Tex. App.—Dallas 2005, pet. denied).
As Pohl stated in his Motion, and as Kassab acknowledged in his Response, courts use a
“logical relationship test,” when determining whether counterclaims arise oukt of the same
transaction or occurrence. See Motion, at 9; see also Response at 10. Howevler, Kassab fails to
acknowledge that his own cases state that this test “is met when the same cfacts, which may or may
not be disputed, are significant and logically relevant to both claimss.” Commint Tech. Services,
Inc. v. Quickel, 314 S.W.3d 646, 653 (Tex. App.—Houston [14sth Dist.] 2010, no pet.) (emphasis
added); see generally Response (not using the term “significant” to discuss application of section
16.069).
Pohl asserts claims for theft of trade secrets and conversion relating to the Defendants’
theft and misuse of Pohl’s stolen client files anad information. Kassab argues that his counterclaims
arise out of the same transaction or occurrence as Pohl’s claims because: “The facts relevant to
determining whether Precision gaineed access to Pohl’s confidential information while ‘liaising’
with prospective clients are alsof relevant to determining whether the ‘liaising’ conducted by
Precision – at Pohl’s directioyn – amounted to unlawful barratry.” See Response, at 11. Without
ever explaining why, KCassab asserts that Pohl’s claims “depend on the manner in which Precision
worked for Pohl to procure client contact information.” See id. at 13. Kassab is wrong.
“[D]etefrfmining whether Precision gained access to Pohl’s confidential information while
‘liaising’U with prospective clients” is in no way “significant and logically relevant” to Pohl’s
claims for conversion and theft of trade secrets against Kassab. Id. at 11; see also Pohl’s First
Amended Petition, at 5–12 (describing the factual bases for Pohl’s claims). It does not matter at
all to Pohl’s claims whether the information Precision stole and sold was acquired during proper
“liaising” or if it was acquired doing alleged barratrous activity. What matters are the facts
underlying Kassab’s 2016 purchase and subsequent use of Pohl’s stolen property. Because
Kassab’s counterclaims do not arise out of the same transaction or occurrence as Pohl’s claims,
section 16.069 does not apply. k
B. Kassab did not provide fair notice of valid counterclaimCs lwithin the 30-day
period required under section 16.069. 
It is undisputed that a counterclaim that does not provide fair nortiice of the facts giving rise
to the claims does not satisfy the requirement to assert a counterDclaim within the 30-day period
prescribed by section 16.069. See Response, at 14–18 (not dissputing this rule). Instead, Kassab
simply asserts that he met this requirement because he argures that his “pleading met that fair notice
standard.” See id. at 18. His pleadings demonstrate otherwise.
Kassab admits that “fair notice” requires thlat a party be able to “ascertain from the pleading
the nature, basic issues, and the type of evidMence that might be relevant to the controversy.” Id. at
17 (quoting Low v. Henry, 221 S.W.3d 6o09, 612 (Tex. 2007)). However, Kassab does not explain
how Pohl could understand the natucre, issues, and types of evidence relevant to the barratry claims
when Pohl did not know who he was alleged to have committed barratry against. Instead, Kassab
argues that even less fair notice was provided by a party in a case cited by Pohl—seeming to
suggest that he merely needed to distinguish the facts of that case from the facts in this lawsuit.
See id. at 14–17. c However, the distinguishing facts Kassab points out do nothing to change that
he was obligated to provide fair notice to Pohl of the bases and nature of his counterclaims.
The Court can decide this issue with ease. The question is whether Pohl had “fair notice”
of Kassab’s barratry counterclaims when Kassab did not provide the means for Pohl to determine
who he was alleged to have committed barratry against. Kassab argues that there is fair notice
because of the seven pages of “facts” included in Kassab’s Third Amended Counterclaim. See id.
at 16. Even if those “facts” were part of the counterclaims,2 they did not inform Pohl who he
allegedly improperly solicited and committed barratry against. Pohl could not understand the
nature, issues, and types of evidence relevant to the counterclaims without knowing who he was
alleged to have committed barratry against. k
Kassab’s allegation of unspecified “assigned barratry claims”—withoult any indication of
who assigned the claims—does not provide “fair notice” of the claims uncder Texas law.3 Kassab
did not assert his counterclaims within the required 30-day periods to revive claims barred by
limitations, and this Court should dismiss Kassab’s counterclaimss.
C. Kassab has no response to the reasoning demonstrating that the Barratry
Claims assigned to Kassab after this lawrsuit was filed cannot be revived.
In his Motion, Pohl argued that section 16.069 cannot revive claims assigned after a lawsuit
to circumvent the otherwise applicable statute lof limitations. He noted that courts apply the
provisions of the Code Construction Act whMen construing section 16.069, and thus, its purpose and
the consequences of a particular interpreotation are relevant to determining if section 16.069 should
apply. See Motion, at 13 (citations comitted).
Instead of challenging the legal principles that led to the reasoning of the cases cited by
Pohl, Kassab argues simply that the cases are factually distinguishable and sought different forms
of relief. See Response, at 18–19. Kassab does not explain why the Court, in considering the
object and purposce of section 16.069, should construe the statute to apply in circumstances when
a defendant engages in gamesmanship to attempt “to circumvent limitations by relying on section
2 That factual discussion was not incorporated into Kassab’s counterclaim and appeared to be an explanation for why
Kassab believes the lawsuit was retaliatory, not the basis of the counterclaims. See Kassab’s Counterclaim, at 11–12.
3 Kassab’s suggestion that Pohl somehow should not be able to assert this argument because “Pohl could have obtained
a hearing on his special exceptions if he actually believed that Kassab’s pleadings were deficient,” misses the point.
See Response, at 18. The issue for Kassab is whether he gave fair notice of his counterclaim within the required 30-
day period. It does not matter if subsequent to that, Pohl fails to secure a ruling on potential special exceptions.
16.069.” See Ball v. SBC Communications, Inc., 04-02-00702-CV, 2003 WL 21467219, at *5
(Tex. App.—San Antonio June 25, 2003, pet. denied).
The Court should not allow Kassab to use section 16.069 to revive claims that he did not
even own until after this lawsuit was filed. The object and purpose of section 1k6.069 would be
frustrated by permitting its application to these claims. l
III. Kassab’s arguments regarding the validity of the Assignmcents of the Barratry
Claims fail and do not address the substance of Pohl’s argruments.
In his Motion, Pohl argued that the Assignments of the BaDrratry Claims are void because
they (1) are impermissible assignments of statutory punitive cslaims, and (2) violate public policy
by acting as an improperly obtained, transparent device to ravoid limitations and increase litigation.
See Motion, at 14. Kassab’s lead argument in response is that the Assignments are valid because
Pohl is estopped from arguing otherwise. Kassabl’s misleading attempt to invoke estoppel and his
responses to Pohl’s actual arguments do noMt work.
A. Kassab’s invocation of ojudicial estoppel is misleading, and it does not apply.
Kassab’s opening and primcary argument regarding the validity of the Assignments is a
legally deceptive argument that Pohl should be estopped from arguing they are invalid because he
purportedly made an inconpsistent argument in other cases. See Response, at 20 (stating that Pohl
“has simultaneously argued to the Texas Supreme Court that the Assignments are valid”). It is
unclear why Kasscab would seek to draw this Court’s attention to the fact that while asserting his
“assigned” Boarratry Claims in this Court, he simultaneously was representing clients asserting the
exact same claims in two appellate proceedings without having notified those courts of the
purported assignments.
Contrary to Kassab’s arguments, Pohl did not take an inconsistent position in the Texas
Supreme Court. Instead, Pohl’s briefing referred to “purported” assignments and notified the
Supreme Court that Kassab himself had argued that the Assignments are valid. See Response,
Exs. 5A, 5B. Furthermore, even had Pohl taken inconsistent position, he did not prevail on this
position, making estoppel inapplicable.4
Kassab was aware that Pohl did not prevail on this alternative argument, kand yet he still
makes his estoppel argument, citing to a single case. See id. at 21 (citing lFerguson v. Bldg.
Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009)). However, Fecrguson makes clear that
estoppel is not applicable here, because it “precludes a party whso successfully maintains a
position in one proceeding from afterwards adopting a clearlys inconsistent position in another
proceeding to obtain an unfair advantage.” Ferguson, 295 S.W.3d at 643 (emphasis added).
Kassab somehow failed to include the full standard for judicial estoppel, despite it being contained
on the same page that he cited. See Response, at 21 (citing to Ferguson, 295 S.W.3d at 643).
B. Kassab has no real responase to the fact that the Assignments contain
impermissible assignmentsM of statutory punitive claims.
In his Response, Kassab does noot address the fact that punitive statutory claims are often
not assignable, nor does he address cthe four factors the Texas Supreme Court uses when analyzing
the assignability of a statutory cause of action. See Response, at 21–24. Instead, Kassab discusses
the assignability of legal malpractice claims—which Pohl did not bring up and which has no
relevance to Pohl’s actual arguments—and sets up a straw man of Pohl’s arguments by contending
that Pohl relies onc an exception to assignability that is limited to DTPA claims. See id. at 21–22.
Kassab contends that Pohl’s arguments regarding the invalidity of an assignment of a civil
barratry claim fail because of “the simple fact that a civil barratry claim is not a DTPA claim.”
4 See January 28, 2022 Notices filed Brumfield v. Williamson, No. 21-0563, in The Supreme Court of Texas, and
Gandy v. Williamson, No. 21-0564, in The Supreme Court of Texas (denying petitions for review and dismissing
Pohl’s Motions to Dismiss “as moot.”). These records are available at https://search.txcourts.gov/Case.aspx?cn=21-
0563&coa=cossup and https://search.txcourts.gov/Case.aspx?cn=21-0564&coa=cossup. This Court may take judicial
notice of these facts. See TEX. R. EVID. 201(b).
See id. at 22. This is a non sequitur. While the seminal case on the assignability of statutory claims
dealt with assignment of a DTPA claim, its reasoning was explicitly not limited to such claims.
See PPG Indus., Inc. v. JMB/Houston Centers Partners Ltd. P’ship, 146 S.W.3d 79, 87 (Tex. 2004)
(noting that “the assignability of most claims does not mean all are assignable; exckeptions may be
required due to equity and public policy” (footnotes omitted)). l
Kassab all but ignores the four factors considered by the Court inc PPG. See Response, at
21–24. Kassab does not address the fact that the legislature knew hsow to make barratry claims
assignable, yet the statute is silent. See TEX. GOV’T CODE § 82.s0651. That the legislature did not
explicitly provide for assignment “can be significant” and provides the starting point for a court’s
analysis. PPG, 146 S.W.3d at 84. Nor does Kassab discuss the purpose of the civil barratry statute,
related common-law principles prohibiting assignments of punitive statutory claims, or whether
the Assignments may increase litigation. See aPPG, 146 S.W.3d at 83–92; Response, at 23–24.
Kassab argues that some of the risks of distortion discussed in PPG are not present here.
See Response, at 23–24. However, thee risks of distortion discussed in PPG were not alleged to be
present in that case either. See PfPG, 146 S.W.3d at 91–92. The Court instead was concerned
about the rule as applied to ya class of claims. Id. The risks of distortion are present for barratry
claims as a class. AndC it is clear that assignments made to avoid limitations, “increase” litigation.
Because civil barratry claims are personal and punitive in design, and for the other reasons
discussed in thfef Motion, the claims are not assignable. Kassab’s attempt to factually distinguish
PPG hasU no effect on the rule and reasoning it laid out. This Court should find that the
Assignments of the Barratry Claims to Kassab are void and without effect.
C. Kassab’s own admissions show that the Assignments violate public policy.
Kassab admits that the Assignments were a sham device used as part of an attempt to avoid
the application of the statute of limitations. See Response, at 6 (“Seeing Pohl’s retaliatory suit as
10
a means to potentially revive the barratry claims dismissed on limitations in Brumfield and Gandy,
Kassab and his clients executed 242 Limited Assignments”). Kassab also describes in his
Response how the Assignments have no practical effect and were simply “effectuated in an attempt
to salvage the clients’ barratry claims,” and Kassab would return any recovery ikn excess of his
contingency fee to the assignors. See id. at 23. These admissions demlonstrate that the
Assignments violate public policy, and the Court should decline to enforcce them.
As discussed more thoroughly in the Motion, “the assignabislity of most claims does not
mean all are assignable; exceptions may be required due to equsity and public policy.” PPG, 146
S.W.3d at 87 (emphasis in original) (footnotes omitted). Courts may look to equitable
considerations to invalidate assignments when the assignments “tend to increase or prolong
litigation unnecessarily” or when an assignment is used as a “transparent device” to “increase and
distort litigation.” See Sw. Bell Tel. Co. v. Mkatg. on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010);
LAKXN Income, Inc. v. TLC Hosp., LLC, 02-20-00415-CV, 2021 WL 3085755, at *5 (Tex. App.—
Fort Worth July 22, 2021, no pet.) (cietation omitted).
The Assignments Kassabf received undisputedly “tend to increase or prolong litigation
unnecessarily” and are admiytted “transparent device[s]” to “increase and distort litigation.” Sw.
Bell Tel. Co., 308 S.WC.3d at 916; LAKXN, 2021 WL 3085755, at *5. Kassab’s sole response is
simply that “Pohl has the filthiest of hands” and that Pohl should not benefit from any equitable
consideration. f fSee Response, at 26. However, Kassab’s overheated statements and citation to a
court’s dUiscussion of “the past litigation that led to this suit as it is relevant to the issues being
decided now,” are not competent evidence of unclean hands. See Kassab v. Pohl, 612 S.W.3d 571,
574 (Tex. App.—Houston [1st Dist.] 2020, pet. denied); Response, at 26 (citing Kassab v. Pohl).
11
Kassab ignores the fact that the Court must consider both public policy and equitable
considerations, and he does not explain why Pohl’s analysis of those considerations is incorrect.
Instead Kassab focuses on a side issue, arguing that the Assignments cannot be invalidated even
if he did violate Disciplinary Rule 1.08(h). See Response, at 24–26. While his akttempt to argue
that the Assignments do not violate Rule 1.08(h) makes little sense, it is worthl noting that Kassab
quotes the relevant caselaw in a misleading fashion. Kassab suggests that “ceven if the Assignments
are unethical and in violation of Rule 1.08 . . . the Court cannot void tshem.” See Response, at 25–
26 (citing M.A. Mills, P.C. v. Kotts, No. 14-20-00395-CV, 2022s WL 176125, at *8 (Tex. App.—
Houston [14th Dist.] Jan. 20, 2022, no pet. h.)). However, Knotts dealt with a different provision
of the Rules, and the court explicitly stated: “We previously opined that courts ‘may deem these
rules to be an expression of public policy, so that a contract violating them is unenforceable
as against public policy,’ but we also said thaat courts ‘are not required to do so.’” Kotts, 2022
WL 176125, at *6 (citations omitted) (emphasis added).
Ultimately, whether Kassab oebtained these assignments in violation of the ethical rules is
just an additional factor for the Cfourt to consider along with the other public policy and equitable
considerations. Kassab is attyempting to use the Assignments to avoid the application of the statute
of limitations in a manCner that increases and promotes litigation, rather than curbing it. The sole
purpose of the Assignments was to circumvent the statute of limitations and promote further
litigation. Assfigfnments that injure the public good such as these should be rejected.
U PRAYER
For the foregoing reasons, and the reasons stated in Pohl’s Motion, Pohl requests that the
Court grant summary judgment dismissing Kassab’s counterclaims.
12
Dated: February 4, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 4th day of February, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
13
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.
Melissa Hyland on behalf of Jean Frizzell
Bar No. 7484650
mhyland@reynoldsfrizzell.com r
Envelope ID: 61466983
Status as of 2/4/2022 3:50 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s2/4/2022 3:45:54 PM SENT
Todd Taylor ttaylor@jandflaw.com g2/4/2022 3:45:54 PM SENT
Scott M.Favre scott@favrepa.com u 2/4/2022 3:45:54 PM SENT
Lance Kassab eserve@kassab.law  2/4/2022 3:45:54 PM SENT
Murray JFogler mfogler@foglerbrar.cyom 2/4/2022 3:45:54 PM SENT
Murray Fogler mfogler@fbfog.caom 2/4/2022 3:45:54 PM SENT
Larry Newsom lnewsom@krcl.com 2/4/2022 3:45:54 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 2/4/2022 3:45:54 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 2/4/2022 3:45:54 PM SENT
Andrew J. Sarne asafrne@krcl.com 2/4/2022 3:45:54 PM SENT
Kathryn Laflin KLaflin@KRCL.com 2/4/2022 3:45:54 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 2/4/2022 3:45:54 PM SENT
Solace Southwicko ssouthwick@reynoldsfrizzell.com 2/4/2022 3:45:54 PM SENT
E. MarieJamisUon jamison@wrightclosebarger.com 2/4/2022 3:45:54 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 2/4/2022 3:45:54 PM SENT
Chris C.Pappas cpappas@krcl.com 2/4/2022 3:45:54 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/4/2022 3:45:54 PM SENT
David R.Wade lawyerwade@hotmail.com 2/4/2022 3:45:54 PM SENT
Felicia Grace fgrace@krcl.com 2/4/2022 3:45:54 PM SENT"
23,2022-01-31,RSP,Kassab,Kassab’s response to Pohl MSJ on CC,The Kassab Parties' Response to Plaintiffs' Motion for Summary Judgment on Defendants' Counterclaims for Civil Barratry,"Kassab's opposition brief responding to Pohl's Motion for Summary Judgment seeking dismissal of Kassab's barratry counterclaims. Filed January 31, 2022, approximately 55 days after Pohl's motion. This is the response in the CC-1 motion chain. Attorneys: Lance Christopher Kassab, David Eric Kassab, and Nicholas R. Pierce of The Kassab Law Firm.",CC-1,N/A,Phase 2,2022-01-31_RSP_Kassab-Response-to-Pohl-MSJ-on-CC_FILED.pdf,Deny Pohl's Motion for Summary Judgment on Defendants' Counterclaims,"1/31/2022 3:03 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 61310680
By: Deandra Mosley
Filed: 1/31/2022 3:03 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 PARTIES’ RESPONSE TO PLAINTIFFS’ MCOTION FOR
SUMMARY JUDGMENT ON DEFENDANTS’ COUNTERCLAIMS
Defendants and Counter-Plaintiffs Lance Christophter Kassab and Lance
Christopher Kassab, P.C. d/b/a/ The Kassab Law Firm (collectively, “Kassab”), files
this, their Response to Plaintiff and Counter-Defeendants Michael Pohl and Law
Office of Michael A. Pohl, PLLC’s Motion for Suummary Judgment on Defendants’
Counterclaims, and would respectfully show the following.
SUaMMARY
The Motion filed by Michael A. Pohl and Law Office of Michael A. Pohl, PLLC
(“Pohl”) should be denied. Res jeudicata does not apply because facts have changed
and the relationship betweefn the parties has been altered. Specifically, Pohl sued
Kassab arising from the same transaction where the barratry occurred, and the
clients assigned the barratry claims to Kassab to be brought as counterclaims in
this action, thuis allowing Section 16.069 to revive the otherwise time-barred
barratry cloaims. Section 16.069 plainly applies because Pohl’s claims against
Kassab and the barratry counterclaims arise from the same transaction in which
Precision Marketing Group, LLC (“Precision”) solicited clients for Pohl and obtained
the alleged confidential information that Kassab is alleged to have obtained. The
clients’ assignments of their barratry counterclaims against Pohl to Kassab are not
invalid, either as a matter of law or for purported non-compliance with the
Disciplinary Rules. Regardless, the law is clear that technical non-compliance with
the Disciplinary Rules is insufficient to void otherwise valid contracts like the
Assignments. k
BACKGROUND C
On October 8, 2014, Scott Walker, Kirk Ladner, and their company Precision
sued Pohl and his law firm for breach of contract and fraiud, among 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”) alleged that Pohl contracted
with them to provide “public relations anld marketing services” to potential clients
impacted by the Deepwater HorizonM 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. “There iis evidence that the [Runners] contacted people and
businesses in Mississippi to determine if they might have a claim against BP,
encouraged those peoople to retain Pohl as their attorney, and were paid over $5
million in ‘barratrly pass-through money’ for their services.” Kassab v. Pohl, 612
S.W.3d 571, 57i4 (Tex. App. – Houston [1st Dist.] 2020, pet. denied).
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). Among those solicited were two
families from Louisiana and Arkansas, who presented evidence that they were
illegally and unethically solicited by the Runners to hire Pohl. See Cheatham v.
Pohl, No. 01-20-00046-CV, 2022 Tex. App. LEXIS 649, at *9 (Tex. App.—Houston
[1st Dist.] Jan. 27, 2022, no pet.). They presented evidence that kPohl and his
associating attorney “were aware of the solicitation of potentiaCl clients and that
[Walker] had phone conversations with Pohl and [his associating counsel] from
inside potential clients’ hospital rooms to discuss the attorniey ‘marketing.’” Id.
The Runners eventually sued Pohl because they “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. 1:14l-cv-381-KS-JCG, 2016 U.S. Dist. LEXIS
76488, at *5, 24 (S.D. Miss. Mar. 1, 20M16).
During discovery in the Federal Court Case, Pohl discovered that the
Runners allegedly “disclosedi confidential and proprietary information to third
parties without authorization” and proposed “the ‘sale’ of all of [his] accumulated
work product to thirod parties” while working for him.1 Pohl testifies that the
Runners “undertolok to convert, misappropriate for themselves and/or market to
third parties iclaimant files and other information and materials” that allegedly
belonged to Pohl2 – including “marketing information and other trade secrets”3 –
1 Exhibit 1, Pohl’s June 19, 2018 Affidavit, at ¶ 18.
2 Exhibit 1, at ¶ 28.
3 Exhibit 1, at ¶ 28.
and then the new owner of Precision, Scott Favre, allegedly “sold those items and
the information” to Kassab.4
As a result, Pohl “asserted multiple claims against” the Runners in the
Federal Court Case based on their alleged “fraudulent and bad faith coknduct.”5 Pohl
did not assert any claims against Kassab in the Federal Court CasCe, 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 his confiidential information and
purported trade secrets.6 Pohl eventually settled his claims against the Runners,
and the Federal Court Case was dismissed with prejudice on April 24, 2017.7
After hearing about Pohl’s client-solicitation activities, Kassab began
researching the matter and met with Favlre and his counsel, Tina Nicholson. Pohl,
612 S.W.3d at 574. Favre informedM Kassab that, when he bought Precision, he
acquired files related to Pohl and Favre transferred that information to Kassab. Id.
Kassab prepared advertisemenit 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 have potential obarratry claims against Pohl. Id. at 575. “Hundreds of
Mississippi residenlts responded to Kassab’s advertisement letter”, “[m]ore than 400
signed represientation contracts with Kassab’s firm to pursue barratry claims
4 Exhibit 1, at ¶ 29.
5 Exhibit 1, at ¶ 19; 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.
against Pohl”, and “Kassab filed four barratry suits against Pohl in Harris County
district courts, each with multiple named plaintiffs.” Id.
One of those lawsuits – the Berry case – settled for a confidential amount.8
Another of those lawsuits – the Cheatham case – was wrongly kdismissed on
summary judgment in favor of Pohl by the trial court and reversCed and remanded.
See Cheatham, 2022 Tex. App. LEXIS 649, at *34. The two other cases – Brumfield
and Gandy – were dismissed on summary judgment soliely based on limitations
grounds. See Brumfield v. Williamson, 634 S.W.3d 170 (Tex. App.—Houston [1st
Dist.] 2021, pet. denied); Gandy v. Williamson, 634 S.W.3d 214 (Tex. App.—Houston
[1st Dist.] 2021, pet. denied).
Meanwhile, Pohl filed this litigatlion against Kassab, Favre, Nicholson,
Precision, and others, for conversMion, misappropriation of trade secrets and
conspiracy.9 Here, Pohl rehashes his allegations from the Federal Court Case,
claiming that “Precision gaiined access to Pohl’s confidential and proprietary
information and property, including trade secret materials” and “work product” and
“illegally misapproprioated” this information and then allegedly “secretly sold Pohl’s
confidential informlation to Kassab”10 who then “solicited clients/prospective clients
[of Pohl’s] to aict as Plaintiffs . . . to bring cases against Pohl for alleged barratry and
other claims.”11
8 Exhibit 5, Declaration of Lance Kassab, at ¶ 5.
9 See Pohl’s First Amended Petition (“Petition”),
10 Petition, at ¶¶ 20-21.
11 Petition, at ¶ 29.
Seeing Pohl’s retaliatory suit as a means to potentially revive the barratry
claims dismissed on limitations in Brumfield and Gandy, Kassab and his clients
executed 242 Limited Assignments (“the Assignments”).12 The Assignments
assigned only the clients’ barratry claims against Pohl to Kassab, in kconsideration
of Kassab’s continued work on the claims.13 Importantly, howeveCr, Kassab and the
clients agreed that, in the event there was a recovery on the assigned barratry
claims against Pohl, Kassab would only deduct his 40% conitingency fee interest and
the remaining 60% of the recovery would go to the clients.14
Accordingly, within 30 days of his answer being due, Kassab filed his third
amended counterclaim, asserting 242 barratry claims against Pohl pursuant to the
Assignments. See Kassab 3rd Am. Countelrclaim at 11. Kassab affirmatively pled
Section 16.069 of the Texas Civil PraMctice & Remedies Code, which provides that a
counterclaim arising out of the same transaction or occurrence that is the basis of
an action may be brought evein if it would be barred by limitations. Id. Kassab also
provided a multi-page statement of facts, explaining how the barratry claims arise
out of the same transoaction and occurrence as Pohl’s claims against Kassab. Id. at
4-11. Finally, Kalssab asserted several affirmative defenses, including unclean
hands, illegaliity, and in pari delicto. Id. at 3.
12 Kassab Declaration, at ¶ 11.
13 Kassab Declaration, at ¶ 11; Motion, at Exhibit J (example Assignments).
14 Kassab Declaration, at ¶ 11.
Pohl now moves for traditional summary judgment on the barratry
counterclaims. For the reasons stated herein, summary judgment should be denied.
SUMMARY JUDGMENT STANDARD
In a traditional summary judgment motion, the movant has tkhe burden to
show that no genuine issue of material fact exists and that the Ctrial court should
grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KP
MG Peat Marwick v.
Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tiex. 1999). A defendant
moving for traditional summary judgment must negate at least one essential
element of each of the plaintiff's causes of action or establish each element of an
affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997). The Court must (1) take as true all levidence favorable to the nonmovant and
(2) indulge every reasonable inferencMe and resolve any doubts in the nonmovant's
favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
ARiGUMENT & AUTHORITIES
Pohl makes three arguments to support his request for dismissal of the
barratry counterclaimos: (1) res judicata; (2) limitations; and (3) the Assignments are
invalid as a mattler of law, based on public policy and because they purportedly
violate the Disiciplinary Rules. Each argument will be addressed, but none warrant
summary judgment.
A. Res judicata does not apply because facts have changed
and the relationship between the parties has been
altered.
The Texas Supreme Court has made clear that “a judgment in one suit will
not operate as res judicata to a subsequent suit on the same questionk between the
same parties where, in the interval, the facts have changed, oCr new facts have
occurred which may alter the legal rights or relations of the parties.” Marino v.
State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 949-i50 (Tex. 1990). In other
words, “res judicata is not a defense in a subsequent action if there has been a
change in the material facts” because “no judgment can affect subsequently arising
rights and duties.” Id. Simply put, “[e]stoppel by judgment extends only to facts in
issue as they existed at the time the judgmlent was rendered[.]” Lubbock v. Stubbs,
327 S.W.2d 411, 414 (1959). M
Even if the barratry claims were barred by the statute of limitations as the
prior judgments in Brumfield iand Gandy concluded, there was a change in material
facts when Pohl sued Kassab for claims arising from the same transaction that the
barratry occurred, anod the barratry claims were assigned to Kassab thereby giving
Kassab the abilityl to revive the once-barred claims pursuant to Section 16.069. In
other words, tihe prior judgments based on limitations are not res judicata on the
barratry counterclaims because Section 16.069 was not an available defense to the
clients in the prior litigation. See Marino, 787 S.W.2d at 950 (res judicata did not
bar insured’s subsequent suit for bad faith because claim was not available when
the first judgment was entered). Accordingly, res judicata does not apply.15
B. The barratry counterclaims are not barred by
limitations.
Even if the barratry claims were at one time barred by limietations, Section
16.069 of the Civil Practice and Remedies Code revived those claims when Kassab
brought them as counterclaims to Pohl’s action. Section 16.06t9 section provides:
(a) If a counterclaim or cross claim arises out of the same
transaction or occurrence that is the basis of an action, a party
to the action may file the counterclaeim or cross claim even
though as a separate action it would be barred by limitation on
the date the party’s answer is requiured.
(b) The counterclaim or cross claim must be filed not later than the
30th day after the date on whlich the party’s answer is required.
TEX. CIV. PRAC. & REM. CODE § 16.06M9. Pohl contends that Section 16.069 does not
apply here because (1) the barratry counterclaims “do not arise out of the same
transaction or occurrence” ias Pohl’s claims; (2) Kassab did not assert the
counterclaims within the 30-day deadline; and (3) the purpose of the statute would
be frustrated. Mot. ato 9-14. All three arguments fail.
15 Res judicata also does not apply because, according to Pohl, the barratry claims that were
dismissed “do not arise out of the same transaction or occurrence as Pohl’s claims.” Motion, at 9. If
that is true, then Pohl is not entitled to summary judgment on res judicata because that doctrine
only works to bar subsequent claims that arise out of the same transaction or occurrence. See Barr v.
Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (“a final judgment
on an action extinguishes the right to bring suit on the transaction, or series of connected
transactions, out of which the action arose.”).
1. Both Pohl’s claims and Kassab’s counterclaims
arise out of the same transaction or occurrence:
Pohl’s engagement of Precision to “liaise” with
prospective clients.
Texas courts apply “a logical relationship test to determine whether
counterclaims arise out of the same transaction or occurrence.” Comemint Technical
Servs., Inc. v. Quickel, 314 S.W.3d 646, 653 (Tex. App. – Houston [14th Dist.] 2010,
no pet.). Pohl argues that the facts relevant to the barratry ctounterclaims are “in no
way relevant to Pohl’s claims of conversion and theft of trade secrets.” Mot. at 9.
But the facts for both claims need only arise frome the same “transaction,” which
courts define as a “flexible [and] comprehenduing a series of many occurrences
logically related to one another.” Wells v. Dotson, 261 S.W.3d 275, 281 (Tex. App.—
Tyler 2008, no pet.). The facts underlyinag Pohl’s conversion and theft of trade secret
claims are logically related to the same facts underlying the barratry counterclaims.
A comparison of the pleadings deemonstrates this point.
In his petition, Pohl aflleges that he “engaged Precision for a period of time to
provide public relations services, to gather and preserve evidence, and to screen and
liaise with Pohl’s clients/prospective clients” and that, during this engagement,
“Precision gaineid access to Pohl’s confidential and proprietary information and
property, inocluding trade secret materials, that included the identities of Pohl’s
clients/prospective clients, as well as their detailed contact information.” Pohl Am.
Pet. at ¶ 20. Pohl alleges that Precession and its subsequent owner Farve “secretly
sold Pohl’s stolen and confidential information” to Kassab, which is the basis of
Pohl’s theft and trade secret claims. Id. at ¶ 21.
10
In his counterclaim, Kassab alleges that Pohl’s engagement of Precision was
not to provide “public relations services” but was to illegally and unethically solicit
clients in violation of the laws and rules governing barratry. See Kassab 3rd Am.
Ans. and Counterclaim at 4-5. Kassab alleges that Pohl did not hirek Precision to
“liaise” with clients, but to unethically solicit them to retain PoChl. Id. at 5-6. The
barratry counterclaims are based on 242 Assignments that Kassab received from
the clients who were solicited by Precision, at Pohl’s instruiction, and are part of the
group of clients who own the information that Pohl alleges Kassab misappropriated.
Id. at 10-11.
Pohl’s claims against Kassab and Kassab’s counterclaims against Pohl both
arise from the relationship between Polhl and Precision. The facts relevant to
determining whether Precision gainMed access to Pohl’s confidential information
while “liaising” with prospective clients are also relevant to determining whether
the “liaising” conducted by Priecision – at Pohl’s direction – amounted to unlawful
barratry. Accordingly, the logical relationship test is satisfied. See Quickel, 314
S.W.3d at 653 (breaoch of contract claim and defamation claim met the logical
relationship test elven though one “span[ed] a longer time period and involve[d]
broader issuesi” because they both arose “from the breakdown of the employment
relationship between” the two parties).
Pohl cites several cases to argue that courts have refused to apply Section
16.069 “in cases involving much more related claims than the counterclaims Kassab
asserts.” Mot. at 10. But the cases that Pohl cites are clearly distinguishable.
11
Pohl first relies on Freeman v. Cherokee Water Co., 11 S.W.3d 480 (Tex.
App.—Texarkana 2000, pet. denied). In Freeman, the Cherokee Water Company
brought a declaratory judgment action against the Freemans to interpret one
provision in a deed, pertaining to a grant of fishing rights. Id. at 483. Ikn response to
that action, the Freemans filed a counterclaim to set aside the enCtire deed based on
an alleged fraudulent execution of the deed. Id. at 483. The court concluded that the
Freemans’ counterclaim for fraud was not logically relaited to Cherokee’s action
because it “in no way relate[d] to the fishing rights [provision], or any other
interpretation of the deed.” Id.
Freeman has no application here. Pohl’s claims and Kassab’s counterclaims
are logically related, particularly becausel both claims depend on the manner in
which Precision worked for Pohl Mto procure client contact information. Pohl
contends that during the relationship, Precision obtained client information and
sold it to Kassab, while Kaissab contends that during that same relationship
Precision obtained the clients giving rise to the purportedly confidential information
illegally. Kassab’s couonterclaims arise out of the same transaction or occurrence –
the work providedl by Precision “marketing group” to acquire clients and client
information – iwhich is also the basis for Pohl’s action.
Pohl’s reliance on T&C Constr., Ltd. v. Brown Mech. Servs., No. 01-19-00041-
CV, 2020 Tex. App. LEXIS 5067 (Tex. App.—Houston [1st Dist.] July 9, 2020, no
pet.) is also mistaken. The court in T&C Constriction declined to apply Section
16.069 to save an otherwise barred unjust enrichment claim because it related not
12
to the transaction underlying the breach of contract claim brought by the plaintiff,
but to “payments made for a separate job” relating to separate contract. Id. at
*16. Here, Kassab’s counterclaims for barratry and Pohl’s claim for theft of trade
secrets all arise from the same transaction or occurrence: Precision’s kmarketing to
to acquire clients and secure client information. It is immateriaCl that the claims
may also require a showing of different facts because only “some of the facts
surrounding the causes of action [need] arise from thie same transaction or
occurrence.” Encore Enters., Inc. v. Borderplex Realty Tr., 583 S.W.3d 713, 722 (Tex.
App.—El Paso 2019, no pet.) (emphasis added).
Pohl argues that whether he solicited the clients in 2012 to 2014 has no
bearing on Kassab’s alleged misconduct inl 2016. Mot. at 11. But again, claims can
arise from the same transaction evenM if they involve “a series of many occurrences”
so long as they are “logically related to one another.” Wells, 261 S.W.3d at 281. That
is the case here. Pohl compilains that Kassab allegedly purchased confidential
information acquired by Precision while it was performing client acquisition
services, thus giving orise to Pohl’s claim for misappropriation. Kassab complains
that the client acqluisition performed by Precision was illegal and unethical, thus
giving rise to tihe barratry counterclaims. Simply put, Kassab’s alleged purchase of
client information from Precision (which is contested) derived out of the client
acquisition from Precision. Both claims are logically related to one another,
regardless of the time that elapsed between occurrences. See Rahlek, Ltd. v. Wells,
587 S.W.3d 57, 75 (Tex. App.—Eastland 2019, pet. denied) (concluding declaratory
13
judgment action to construe 2006 deed was logically related to unjust enrichment
counterclaim arising out of royalty payments made pursuant to the deed in 2013).
Accordingly, Section 16.069(a) is satisfied, and the statute of limitations on
the barratry counterclaims is tolled once Kassab complied with sectionk (b) by filing
the counterclaims not later than the 30th day after the date on Cwhich his answer
was due.
2. Kassab asserted valid and suifficiently pled
counterclaims within the 30-day deadline.
Pohl does not dispute that Kassab filed his baerratry counterclaims within the
30-day deadline. Mot. at 11. Instead, Pohl arugues that the counterclaims were
insufficiently alleged to “satisfy the requirements of the statute” because they did
not provide “any indication of who assiganed the claims” or provide “fair notice of the
facts giving rise to the claims[.]” Mot. at 11. This argument fails as well.
Pohl relies on Rogers v. eVeigel Inter Vivos Tr. No. 2, 162 S.W.3d 281 (Tex.
App.—Amarillo 2005, pet. defnied) to argue that Kassab’s pleadings were deficient.
Mot. at 11-12. Notably, Pohl does so without discussing the facts of Rogers. Pohl
fails to do so because Rogers is easily distinguishable.
Rogers wais an estate dispute. 162 S.W.3d at 285. The plaintiff, ANB, sued to
be removedo as trustee of the decedent’s estate. Id. The grandchildren of the
decedent, R.W., answered and asserted the following “averment” in their “answer”
as a purported counterclaim for damages:
[R.W.] denies that ANB should be removed as Trustee at this time, in
that there is a question as to acts of the Trustee under Ardella's
Intervivos Trust No. 2 and under the estate of Charles[.]
14
Id. at 289-290 (cleaned up). The Rogers court looked to Rule 47 and concluded that
the averment was insufficient to assert a counterclaim, reasoning:
There is no general prayer for relief, no allegation that the damages
were within the trial court's jurisdictional limits, and no description of
any particular cause of action. All [the defendant] did was deny [the
plaintiff’s] allegation that it should be allowed to resign as trustee.
And, he based that denial upon the mere suggestion thatt there were
“questions” about [the plaintiff’s] “acts.” What the “quesitions” or “acts”
were, what rights or interests of [the defendant], if asnty, were involved,
or the injury, if any, supposedly suffered by [the dDefiendant] due to the
unspecified acts went unmentioned. 
While Texas follows the theory of “notice pleadings,” … the concept
still requires the litigant to provide fair notice of the claims involved to
the accused. [citation omitted]. And, to be fair, the allegations must be
sufficient to inform a reasonably competent attorney of the nature and
basic issues of the controversy and of the potentially relevant evidence.
[citation omitted]. Merely stating tlhat ANB should not be allowed to
resign because of unspecified “quaestions” created by unspecified “acts”
hardly falls within that ambit.
Id. at 289.
The Rogers court also nioted that, after a discovery dispute arose relating to
the allegations in R.W.’s answer, R.W.’s counsel stated to the trial court that R.W.
“filed nothing seekingo affirmative relief from [ANB]” and “there is no affirmative
relief sought froma l [ANB].” Id. “Given the oblique nature of the allegations relied
upon by R.W.f,i their failure to satisfy the requirements of Rule 47, and R.W.’s own
representation to the trial court made in effort to defeat discovery, [the Rogers court
was] unable to say that the original answers of R.W. included counterclaims.” Id. at
289-290.
15
Rogers does not apply here. Unlike R.W., Kassab has not agreed that he is
not seeking affirmative relief. To the contrary, Kassab has plainly asserted a
counterclaim against Pohl:
See Kassab 3rd Am. Ans. and Counterclaim aBt 1. And unlike the pleading filed by
R.W., Kassab contained an allegation ythat the damages were within the
jurisdictional limitation of the Court:
Id. at 2. Moreover, unlpike R.W., Kassab included a specific cause of action against
Pohl: “a counterclaim for civil barratry.” Id. at 11. And unlike the single sentence
asserted by R.Wi., Kassab’s counterclaim is supported by seven pages of facts
discussing oconduct committed by Pohl which amounted to barratry.16 Id. at 4-11.
Finally, unlike R.W., Kassab asserted a prayer for affirmative relief:
16 For this reason, Pohl’s contention that Kassab’s counterclaim is “devoid of any of the facts giving
rise to the claims” is false, as with most of his factual assertions. Mot. at 12.
16
Id. at 13. Kassab’s counterclaim was more than suffiscient “to provide fair notice of
the claims involved to the accused.” Rogers, 162 S.rW.3d at 289.
In essence, Pohl’s argument is that Kassab’s counterclaim is insufficient to
provide fair notice because Kassab did notl specifically identify who the assignors of
the claims were. Mot. at 12. But there is no requirement under Rule 47 for an
assignee to state the identity of the assignor; rather, the claimant need only provide
“a short statement of the cauise of action sufficient to give fair notice of the claim
involved.” TEX. R. CIV. P. 47(a) (emphasis added). Nor does Rule 45 – the rule
stating what pleadingos must include – require the assignee to identify the assignor.
See TEX. R. CIV. Pa.l 45(b) (requiring only that the pleading “consist of a statement in
plain and conf icise language of the plaintiff’s cause of action or the defendant’s
grounds of defense.”). Rather, “Texas follows a ‘fair notice’ standard for pleading, in
which courts assess the sufficiency of pleadings by determining whether an
opposing party can ascertain from the pleading the nature, basic issues, and the
type of evidence that might be relevant to the controversy.” Low v. Henry, 221
17
S.W.3d 609, 612 (Tex. 2007). Kassab’s pleading met that fair notice standard, and
any details about the Assignments could be obtained by Pohl through discovery,
which he did.17
3. Pohl’s policy arguments about why Skection
16.069 should not apply here fail. e
Pohl next resorts to policy, arguing that the “object and purpose” of Section
16.069 would be frustrated if it is applied here. Mot. at t12-14. This last-resort
argument is also unavailing.
Pohl begins by relying on Holman St. Baptist eChurch v. Jefferson, 317 S.W.3d
540, 545 (Tex. App.—Houston [14th Dist.] 20u10, pet. denied) and Ball v. SBC
Communs., Inc., No. 04-02-00702-CV, 2003 Tex. App. LEXIS 5286 (Tex. App.—San
Antonio June 25, 2003, pet. denied) tao argue that “courts have limited [Section
16.069’s] reach, such as ruling it does not revive claims made in response to
declarations not requesting aeffirmative relief.” Mot. at 13. But Ball has no
application here because Pofhl is not seeking a declaration which does not request
affirmative relief, and Holman contradicts Pohl’s argument.
The court in Ball concluded that Section 16.069 “does not revive or save
claims brought biy a party as counterclaims in a suit for declaratory judgment which
alleges thaot such claims are absolutely barred by limitations as a matter of law.”
2003 Tex. App. LEXIS 5286 at *16. The court held that to conclude otherwise would
lead to an “unjust and unreasonable” result not intended by the legislature because
it would allow otherwise barred claims to be revived in an action brought to declare
17 Moreover, Pohl could have obtained a hearing on his special exceptions if he actually believed that
Kassab’s pleadings were deficient. He failed to do so.
18
the claims barred by limitations. Id. at *11-13. “Were [the court] to hold that section
16.069 revives claims which are absolutely barred by limitations as a matter of law,
the result would be that a litigant would never be able to seek a declaratory
judgment based on limitations because a defendant could always use skection 16.069
to defeat such a suit.” Id. at *11. C
Holman relied on Ball to state that one party’s “mere seeking of a declaration
on limitations regarding his purported debt to [the otheir party] did not trigger
section 16.069(a).” 317 S.W.3d at 545. Importantly, however, the Holman court
recognized that if, “in addition to the declaration on limitations, [the party] also
sought affirmative relief”, than Section 16.069 would apply. Id. at 546. This is
because “[c]ourts have interpreted sectionl 16.069 as permitting a party’s otherwise
time-barred counterclaims or cross clMaims only when the opposing party has sought
‘affirmative relief,’ rather than just a declaration on a dispute between the parties.”
Id. at 545. The Holman courti concluded “the request for return of the stock [made
by the plaintiff] was a request for affirmative relief triggering section 16.069(a).” Id.
at 546. o
Ball is distilnguishable because this is not a suit brought by Pohl solely to
obtain a declairation that the assigned barratry claims are barred by limitations. In
fact, Pohl does not seek declaratory relief at all. Rather, just as in Holman, Pohl
seeks affirmative relief against Kassab for purported conversion and theft of trade
secrets arising out of the documents that evidence Pohl’s illegal barratry scheme.
19
Accordingly, Section 16.069 applies, and Pohl is not entitled to summary judgment
on limitations. See Holman, 317 S.W.3d at 545.
C. The Assignments are not invalid, do not violate public
policy or the Disciplinary Rules, and should be enforced.
Pohl’s last argument again resorts to public policy and asks theis Court to void
the Assignments because they are purportedly in “violation of ethical rules.” Mot. at
14. Although Pohl’s sudden regard for ethics is refreshing, Ttexas law is clear that a
purported violation of an ethical rule does not void an otherwise valid contract. And
Pohl’s reliance on cases prohibiting assignments eof claims under the DTPA is
unavailing because this is not a DTPA case. Moure fundamentally, Pohl has argued
that the Assignments are valid, and he should be estopped from taking a contrary
position in this case. We will address thaat point first.
1. Pohl should be estopped from arguing that the
Assignments are invalid.
Although Pohl arguesi that the Assignments are invalid here, he has
simultaneously argued to the Texas Supreme Court that the Assignments are valid.
Specifically, Pohl reqouested the Texas Supreme Court to dismiss the appeals filed
by the assignee cllients in Brumfield and Gandy because the barratry claims were
assigned to Kiassab.18 Pohl argued that, “[o]n its face, the documents [the
assignments] assign ‘any and all’ barratry claims [so] the Assignor retains no
justiciable interest in the claims.”19 Pohl should be estopped from playing “fast and
18 Exhibit 5-A, Brumfield Motion to Dismiss; Exhibit 5-B, Gandy Motion to Dismiss.
19 Exhibit 5-A, Brumfield Motion to Dismiss, at 5; Exhibit 5-B, Gandy Motion to Dismiss, at 5.
20
loose” with the judicial system by taking these two wholly inconsistent and contrary
positions. See Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex.
2009) (stating that a litigant is estopped from taking inconsistent positions to obtain
an unfair advantage). k
2. The Assignments are not invalid as a mattCer of law.
A civil barratry claim under Section 82.0651(a) brought by a client is a
“contract-based” claim. See Cheatham, 2022 Tex. Appi. LEXIS 649, at *23.
Generally, claims sounding in contract are assignable, regardless of whether they
are created by statute. See Lindsay ex. rel. Lindsay v. South San Antonio Indep.
Sch. Dist., 983 S.W.2d 778, 779-80 (Tex. App.—San Antonio 1998, no pet.) (claim for
statutory benefits was assignable becausel although the “cause of action exists by
virtue of statutory law, it bears signiMficant resemblance to a common law action for
breach of contract.”). Civil barratry claims under Section 82.0651(c) sound in tort.
Nguyen v. Watts, 605 S.W.3di 761, 781 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied). Generally, tort claims are also assignable. State Farm Fire & Cas. Co. v.
Gandy, 925 S.W.2d 6o96, 707 (Tex. 1996). There are two exceptions to assignability
of claims that warlrant discussion, but neither applies here.
The firsit exception is that “an assignment of a legal malpractice action
arising from litigation is invalid.” Zuniga, Jr. v. Groce, Locke & Hebdon, 878 S.W.2d
313, 318 (Tex. App.-San Antonio 1994, writ ref'd). However, Pohl has argued – and
the court of appeals has agreed – that a civil barratry claim “is not malpractice that
is committed in the prosecution or defense of a claim” resulting from litigation.
21
Brumfield, 634 S.W.3d at 206. In fact, the court in Brumfield rejected as
“misplaced” the clients’ effort to “analogize legal-malpractice claims to civil-barratry
claims … because any alleged improper solicitation would have occurred before the
formation of the attorney-client relationship[.]” Id. at 205 n. 34. Acckordingly, the
rule prohibiting assignments of legal malpractice claims has noC application here.
See id. (declining to extend the Hughes tolling rule – which tolls limitations on
claims against the attorney when he commits malpractiice in the prosecution or
defense of a claim that results in litigation – to civil barratry claims).
The second exception – which is principally relied on by Pohl20 – is that
“DTPA claims generally cannot be assigned by an aggrieved consumer to someone
else.” PPG Indus. v. JMB/Houston Ctrs. Lltd. P'ship, 146 S.W.3d 79, 92 (Tex. 2004).
That exception does not apply here foMr the simple fact that a civil barratry claim is
not a DTPA claim. In fact, in his briefing filed with the Texas Supreme Court in
Brumfield and Gandy, Pohli explicitly stated that “civil barratry claims are
different” than DTPA claims.21 Nonetheless, Pohl again attempts to play loose with
contrary arguments boy analogizing barratry claims to DTPA claims and asserting
that the “analysisl” of PPG “applies to the assignability of barratry claims in this
case.” Mot. at 1i6. Pohl’s reliance on PPG is mistaken for at least two reasons.
First, the court in PPG noted that its decision did “not prohibit equitable
assignments, such as a contingent-fee interest assigned to a consumer’s attorney.”
20 Mot. at 15-17.
21 Exhibit 5-C, Brumfield Response, at 22; Exhibit 5-D, Gandy Response, at 22.
22
146 S.W.3d at 91-92. The Assignments in this case were just that; equitable
assignments from Kassab’s clients to Kassab in exchange for continuing work that
Kassab would perform on the claims.22 The assignments were effectuated in an
attempt to salvage the clients’ barratry claims, with the intention okf paying any
proceeds from the assigned claims back to the clients in proportCion to the original
contingency fee agreement should Kassab obtain any recovery.23 The assignments
were equitable in nature, created to benefit the clients whoi were unknowing victims
of barratry committed by Pohl.24
Second, the concerns that the PPG court had with DTPA assignments are not
present here. The court noted that it had “prohibited assignments that may skew
the trial process, confuse or mislead thel jury, promote collusion among nominal
adversaries, or misdirect damages froMm more culpable to less culpable defendants.”
146 S.W.3d at 90. Those issues are not present in this case, under these unique
circumstances. Kassab and hiis clients who assigned the claims are not adversaries,
they are aligned. And the damages will not be misdirected from the more culpable
to less capable partieos, but will remain directed to the most culpable party: Pohl.
Finally, no jury colnfusion will occur. The PPG court noted that, because the DTPA
permits mentail anguish and exemplary damages, “[j]urors are bound to experience
some confusion in assessing mental anguish of a consumer, or punitive damages
22 Kassab Declaration, at ¶ 11.
23 Kassab Declaration, at ¶ 11.
24 Kassab Declaration, at ¶ 11; Given this evidence, Pohl’s contention that “[l]awyers like Kassab are
in a position to take advantage of clients by purchasing assignments far below their potential value
given statutory penalties” is unsupported and without merit.
23
based on the situation and sensibilities of the parties when the affected consumer is
not a party.” Id. Unlike the DTPA, the civil barratry statute does not provide for
mental anguish or punitive damages; it permits only actual damages, attorney’s
fees, disgorgement, and civil penalties. TEX. GOV’T CODE § 82.0651(bk), (d). These
remedies may be awarded regardless of the “situation and seCnsibilities” of the
solicited client.
Therefore, the reasoning of PPG is inapplicable to thie Assignments here, and
they are presumptively valid and should be enforced.
3. The Assignments do not violate public policy,
nor were they procuured in violation of the
ethical rules; regardless, the Assignments
cannot be voided on those grounds.
Suddenly struck by a sense of eathical responsibility which has been lacking
from Pohl’s moral compass for at least two decades,25 Pohl argues that the
Assignments are invalid becausee Kassab allegedly obtained them in violation of the
ethical rules. Mot. at 17. Of fcourse, Pohl cites no evidence for this proposition; only
argument of counsel. See Mot. at 17-19. While words from Pohl’s counsel may carry
great weight within the confines of their own office, it is well-settled that in the
court of law “coiunsel’s statements are not evidence.” Ex parte Ubadimma, 623
S.W.3d 530o, 533 (Tex. App.—Houston [14th Dist.] 2021, no pet.). Regardless, Pohl’s
argument not only lacks evidentiary support, but legal support as well.
25 Pohl indisputably began committing barratry shortly after the 2010 BP Deepwater Horizon when
he paid Precision and its members “over $5 million in ‘barratry pass-through money’ for their
services” which included “contact[ing] people and businesses in Mississippi to determine if they
might have a claim against BP [and] encourage[ing] those people to retain Pohl as their attorney[.]”
Pohl, 612 S.W.3d at 574. Later, in 2014, Pohl illegally and unethically solicited two families who lost
loved ones. See Cheatham, 2022 Tex. App. LEXIS 649, at *3.
24
Pohl argues that the Assignments purportedly violated Rule 1.08(h) because
they “concern causes of action and the subject matter of litigation where Kassab
represented those clients.” Mot. at 19. However, Rule 1.08(h) specifically allows a
lawyer to “acquire a lien granted by law to secure the lawyer’s fee ork expenses[.]”
TEX. R. PROF’L COND. 1.08(h). The Assignments do not violate RuCle 1.08(h) because
they were effectuated to secure a lien in Kassab’s existing fee, and help Kassab
recover that fee, with the remainder from any recovery baised on the Assignments
going back to the clients.26
But even if the Assignments are noncompliant under sine unknown
technicality with Rule 1.08(h), that alone is insufficient to void them. This is
demonstrated by Wright v. Sydow – a clase cited by Pohl27 – which held that a
settlement agreement would be enforMced even if it were executed in violation of Rule
1.08 because a purported violation of the disciplinary rules does not void an
otherwise valid contract. See 1i73 S.W.3d 534, 549 (Tex. App.—Houston [14th Dist.]
2004, pet. denied) (“We decline to use Disciplinary Rule 1.08 to void an otherwise
valid settlement agreoement entered into at arm’s length”). The Fourteenth Court of
Appeals very recenltly reiterated this holding and concluded that “an agreement is
not illegal, voiid, or unenforceable as against public policy when the agreement
contravenes [a Disciplinary Rule].” M.A. Mills, P.C. v. Kotts, No. 14-20-00395-CV,
2022 Tex. App. LEXIS 359, at *17 (Tex. App.—Houston [14th Dist.] Jan. 20, 2022,
no pet.). Therefore, even if the Assignments are unethical and in violation of Rule
26 Kassab Declaration, at ¶ 11.
27 See Mot. at 18.
25
1.08 (and they are not), the Court cannot void them. See id. at *21 (concluding that
an oral agreement between attorneys “was not illegal, void, and unenforceable
because it contravened Rule 1.08(a).”).
Pohl also contends that the Assignments should be declared invkalid based on
“equitable considerations” because they “injury the public good.C” Mot. at 18. But
“one who comes seeking equity must come with clean hands.” Omohundro v.
Matthews, 341 S.W.2d 401, 410 (1960). Pohl has the fiilthiest of hands, having
committed felony barratry28 by illegally and unethically soliciting the clients who
assigned their claims. See Pohl, 612 S.W.3d at 574 (noting the “evidence” that
Precision and its members were hired by Pohl to solicit clients and “paid over $5
million in ‘barratry pass-through money’ lfor their services.”). It would not “injure
the public good” to allow clients whosMe barratry claims may otherwise be barred by
limitations to assert those claims through an assignment to their attorney if it
means that the claims would ibe salvaged, and the clients could obtain a relief for
Pohl’s unethical conduct. To the contrary, voiding the Assignments only injures the
unknowing clients aond the public, because it rewards attorneys like Pohl who
knowingly commilt felony barratry and then breach their fiduciary duty of full
disclosure by cioncealing the crime so that limitations may expire.
The Court should not invalidate the Assignments, it should enforce them so
that Pohl may finally be held accountable for his reprehensible actions that the
Legislature has mandated courts like this one to protect against. See TEX. GOV’T
CODE § 82.0651(e) (providing for liberal construction and application of the civil
28 See TEX. PEN. CODE § 38.12.
26
barratry statute “to protect those in need of legal services against unethical,
unlawful solicitation and to provide efficient and economical procedures to secure
that protection.”).
CONCLUSION & PRAYER k
For the foregoing reasons, the Court should deny MichaelC A. Pohl and Law
Office of Michael A. Pohl, PLLC’s Motion for Summary Judgment on Defendants’
Counterclaims. i
Respectfully submitted,
THE KASSAB LAW FIRM
__________________________
lLANCE CHRISTOPHER KASSAB
a Texas State Bar No. 00794070
M lance@kassab.law
 DAVID ERIC KASSAB
Texas State Bar No. 24071351
e david@kassab.law
i NICHOLAS R. PIERCE
f Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
o Houston, Texas 77004
Telephone: 713-522-7400
l Facsimile: 713-522-7410
i E-Service: eserve@kassab.law
o ATTORNEYS FOR KASSAB PARTIES
27
CERTIFICATE OF SERVICE
I certify that on this date, January 31, 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.
______________________e_
DAVID ERIC KASSAB C
28
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 61310680
Status as of 1/31/2022 3:07 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s1/31/2022 3:03:09 PM SENT
Todd Taylor ttaylor@jandflaw.com g1/31/2022 3:03:09 PM SENT
Scott M.Favre scott@favrepa.com u 1/31/2022 3:03:09 PM SENT
Lance Kassab eserve@kassab.law  1/31/2022 3:03:09 PM SENT
Murray Fogler mfogler@fbfog.comy 1/31/2022 3:03:09 PM SENT
Murray JFogler mfogler@foglerbarar.com 1/31/2022 3:03:09 PM SENT
Larry Newsom lnewsom@krcl.com 1/31/2022 3:03:09 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 1/31/2022 3:03:09 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 1/31/2022 3:03:09 PM SENT
Andrew J. Sarne asafrne@krcl.com 1/31/2022 3:03:09 PM SENT
Kathryn Laflin KLaflin@KRCL.com 1/31/2022 3:03:09 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 1/31/2022 3:03:09 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 1/31/2022 3:03:09 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 1/31/2022 3:03:09 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/31/2022 3:03:09 PM SENT
Solace Southwicko ssouthwick@reynoldsfrizzell.com 1/31/2022 3:03:09 PM SENT
E. MarieJamisUon jamison@wrightclosebarger.com 1/31/2022 3:03:09 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 1/31/2022 3:03:09 PM SENT
Chris C.Pappas cpappas@krcl.com 1/31/2022 3:03:09 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/31/2022 3:03:09 PM SENT
David R.Wade lawyerwade@hotmail.com 1/31/2022 3:03:09 PM SENT
Felicia Grace fgrace@krcl.com 1/31/2022 3:03:09 PM SENT"
21,2021-10-18,OA,Pohl,Pohl’s response and special exceptions,"Plaintiffs-Counter Defendants Pohl's Verified Original Answer and Special Exceptions to Kassab's Fourth Amended Answer, Counterclaim, and Designation of Responsible Third Parties","Pohl's responsive pleading to Kassab's Fourth Amended Answer and Counterclaim filed on October 13, 2021. Filed October 18, 2021, five days after Kassab's amended pleading. Challenges Kassab's legal capacity to assert assigned barratry claims through verified denials and seeks clarification of the counterclaim through special exceptions. Attorney: Jean C. Frizzell of Reynolds Frizzell LLP.",PLEAD-1,N/A,Phase 2,2021-10-18_OA_Pohl-Response-and-Special-Exceptions_FILED.pdf,That the Court render judgment that Kassab take nothing; dismiss Kassab's counterclaim for barratry on its merits; and grant such other and further or alternative relief (legal and equitable) to which Pohl may be entitled,"10/18/2021 5:07 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 58297712
By: Deandra Mosley
Filed: 10/18/2021 5:07 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS–COUNTER DEFENDANTS MICHAEL POHL AND
LAW OFFICE OF MICHAEL A. POHL, PLLC’S
VERIFIED ORIGINAL ANSWERl AND SPECIAL EXCEPTIONS
Plaintiffs–Counter Defendants MichMael Pohl and Law Office of Michael A. Pohl, PLLC
(collectively “Pohl”), file this Verified Original Answer and Special Exceptions to Defendants,
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm’s Fourth
Amended Answer, Affirmative Defenses and Counterclaim, and Designation of Responsible Third
Parties, filed October 13, 2021 (the “Counterclaim”), and would show as follows:
 I. Verified Denials
Pursuant tco Rules 93(1) and 93(2) of the Texas Rules of Civil Procedure, Pohl denies that
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm
(collectively “Kassab”) has legal capacity to sue or recover in the capacity in which he sued. Kassab
purports to assert barratry claims assigned to him by his clients. Such assignments of barratry claims
(whether complete or partial) are void, and Kassab both lacks legal capacity to sue and to recover.
Pohl’s Verification is attached as Exhibit A.
II. Answer
Pursuant to Rule 92, Pohl generally denies each and every, all and singular, of the
allegations made in Kassab’s Counterclaim, and demands strict proof thereof.
Pohl hereby pleads the following affirmative defenses: k
i. Statute of limitations; l
ii. Laches; 
iii. Lack of standing; c
iv. Illegality; t
v. Res judicata; i
vi. Estoppel; 
vii. Failure to mitigate; and s
viii. Waiver.
III. Special Exceptions
Pohl specially excepts to the Counterclaim on the grounds of obscurity and lack of fair
notice. As currently pled, Pohl is unable to ascrertain the nature and basic issues presented by the
Counterclaim in order to adequately defend himself. See Counterclaim, at 12.
“An opposing party should usee special exceptions to identify defects in a pleading so that
they may be cured, if possible, bfy amendment.” Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 897 (Tex. 2000y). “The purpose of a special exception is to compel clarification of
pleadings when the pleadings are not clear or sufficiently specific or fail to plead a cause of action.”
Baylor Univ. v. Sonanichsen, 221 S.W.3d 632, 635 (Tex. 2007). Sw. Bell Tel. Co. v. Garza, 164
S.W.3d 607, 61f7 (Tex. 2004) (“Had SWBT been in doubt about Garza’s claims, it could have
sought clarification through special exceptions.”). Special exceptions are “‘the appropriate
vehicle . . . by which an adverse party may force clarification of vague pleadings,’ thereby
narrowing the range of facts that will be of consequence in the action.” In re Mem’l Hermann
Hosp. Sys., 464 S.W.3d 686, 708 (Tex. 2015) (citation omitted).
-2-
Clarification regarding the nature and basis of Kassab’s counterclaim for barratry is
necessary. In his Counterclaim, Kassab appears to be more concerned with attacking Pohl than
articulating the basis of a claim or claims that Kassab is entitled to assert against Pohl. Kassab
does not identify the specific cause of action asserted, who the original owners kof the assigned
claims are, or any facts that give rise to his barratry counterclaim. l
Without identifying the cause of action, Kassab asserts generic c“counterclaims” against
Pohl “based upon express assignments,” and then states that he “has bseen assigned barratry claims
on behalf of 242 claimants.” See Counterclaim, at 12. He does snot identify who the assignors are,
nor does Kassab state any facts that give rise to the allegedly assigned barratry claims. See id.
To the extent that Kassab argues that the “Factual Background” section is incorporated into
his barratry counterclaim, it further demonstrates the need for clarification. See id. at 4–12. The
facts discussed in that portion of the Countercalaim lead up to Kassab stating that: “more than four
hundred clients who were illegally solicited contacted the Kassab Law Firm and requested Kassab
to represent them in litigation againset Pohl and his partners. Kassab filed lawsuits on behalf of
these clients in four different coufrts in Harris County.” Id. at 11.
If those facts give risey to Kassab’s barratry counterclaim, are the claims asserted by Kassab
in this lawsuit the samCe as those asserted by Kassab’s clients in prior litigation? If so, it raises
serious questions about Kassab’s barratry counterclaim, including whether it is barred by res
judicata. The nfefed for clarification and fair notice is apparent, and the Court should require Kassab
to clarifyU the basis of the counterclaim and provide Pohl with fair notice.
IV. Conclusion
For the foregoing reasons, Pohl prays that the Court render judgment that Kassab take
nothing by reason of his allegations; dismiss Kassab’s counterclaim for barratry on its merits; and
for such other and further or alternative relief (legal and equitable) to which Pohl may be entitled.
-3-
Dated: October 18, 2021 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 0748465k0
1100 Louisiana St., Suite 3e500
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsrfrizzell.com
Attorney for PDlaintiffs Michael Pohl
and Law Osffice of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 18th day of October, 2021.
a /s/ Jean C. Frizzell
M Jean C. Frizzell
-4-
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 58297712
Status as of 10/19/2021 7:47 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s10/18/2021 5:07:28 PM SENT
Todd Taylor ttaylor@jandflaw.com g10/18/2021 5:07:28 PM SENT
Scott M.Favre scott@favrepa.com u 10/18/2021 5:07:28 PM SENT
Lance Kassab eserve@kassab.law  10/18/2021 5:07:28 PM SENT
Murray JFogler mfogler@foglerbrar.cyom 10/18/2021 5:07:28 PM SENT
Andrew J. Sarne asarne@krcl.coma 10/18/2021 5:07:28 PM SENT
Larry Newsom lnewsom@krcl.com 10/18/2021 5:07:28 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 10/18/2021 5:07:28 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 10/18/2021 5:07:28 PM SENT
Harris Wells hweflls@reynoldsfrizzell.com 10/18/2021 5:07:28 PM SENT
Kathryn Laflin KLaflin@KRCL.com 10/18/2021 5:07:28 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 10/18/2021 5:07:28 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 10/18/2021 5:07:28 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 10/18/2021 5:07:28 PM SENT
Solace Southwick ssouthwick@reynoldsfrizzell.com 10/18/2021 5:07:28 PM SENT
Felicia Grace o fgrace@krcl.com 10/18/2021 5:07:28 PM SENT
Chris C.PappaUs cpappas@krcl.com 10/18/2021 5:07:28 PM SENT
Todd Taylor ttaylor@jandflaw.com 10/18/2021 5:07:28 PM SENT
David R.Wade lawyerwade@hotmail.com 10/18/2021 5:07:28 PM SENT"
20,2021-10-13,OA,Kassab,4th Amended Answer — adds RTP designations,"Defendants Kassab's Fourth Amended Answer, Affirmative Defenses, Counterclaim, and Designation of Responsible Third Parties","Kassab's fourth amended pleading filed October 13, 2021, after denial of his traditional MSJ. Adds responsible third party designations and reasserts counterclaims for civil barratry based on 242 assigned claims. Relies on Tex. Civ. Prac. & Rem. Code § 16.069 to revive otherwise time-barred counterclaims. Filed during Phase 2 of litigation. Two sets of counsel: Lance and David Kassab for defense; Murray Fogler for affirmative claims.","PLEAD-1, RTP-1",N/A,Phase 2,2021-10-13_OA_Kassab-4th-Amended-Answer-CC_FILED.pdf,That Pohl recover nothing on his claims; actual and consequential damages on counterclaims; statutory damages; pre- and post-judgment interest; attorneys' fees and costs; and all other relief to which Kassab may be justly entitled,"10/13/2021 12:33 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 58144098
By: Deandra Mosley
Filed: 10/13/2021 12:33 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIrAL DISTRICT
DEFENDANTS, LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER
KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S FOURTH AMENDED
ANSWER, AFFIRMATIVE DEFENSES AND COUNtTERCLAIM,
AND DESIGNATION OF RESPONSIBLE THIRD PARTIES
TO THE HONORABLE JUDGE OF SAID COURT: s
COMES NOW, Defendants, Lance Christopher Kgassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm and files this theBir Fourth Amended Answer, Affirmative
Defenses, and Counterclaim, and Designation of Ryesponsible Third Parties, and would respectfully
show the Court as follows; a
RULfE 47 STATEMENT
The Kassab Defendants, in teheir capacity as Counter-Plaintiffs, seek monetary relief of
more than $1,000,000.00. f
y PARTIES
Plaintiff, Michael A. Pohl is an individual lawyer residing in Colorado and is a party herein.
Plaintiff, Laawl Offices of Michael A. Pohl is a law firm set up for the practice of law in
various states of ithe union, including Texas and is a party herein.
Defendant, Scott Favre is a nonresident individual residing in Mississippi and is a party
herein.
Defendant, Scott M. Favre, PA, LLC is a nonresident limited liability company located in
Mississippi and is a party herein.
Defendant, Precision Marketing Group, LLC is a nonresident limited liability company
located in Mississippi and is a party herein.
Defendant, F. Douglas Montague III is a nonresident individual residing in Mississippi.
Defendant, Montague, Pittman & Varnado, PA is a nonresident professioknal association
located in Mississippi. l
Defendant, Tina Nicholson is an individual residing in Texas and cis a party herein.
Defendant, Baker Nicholson, LLP, d/b/a Baker Nicholson Lasw Firm is a limited liability
partnership located in Texas and is a party herein. 
Defendant, Counter-Plaintiff, Lance Christopher Kassab is an individual residing in Texas
and is a party herein.
Defendant, Counter-Plaintiff, Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm
is a professional corporation located in Texas aand is a party herein.
JURISDICTION AND VENUE
This matter is within the jurisdictional limits of this Court and Plaintiffs, Counter-
Defendants, Michael A. Pohl andf Law Offices of Michael A. Pohl (“Pohl”) and Defendants,
Counter-Plaintiffs, Lance Christopher Kassab (“LCK”) and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law Firm (“Kassab, P.C.”) (collectively “Kassab”) are subject to the Court’s
jurisdiction. Venue aisl proper in this county because one or more of the defendants are residents of
this county and biecause a substantial part of the acts and/or omissions that form the basis of this
suit occurred in this county.
GENERAL DENIAL
Defendant, Counter-Plaintiff Kassab generally denies all allegations made by Plaintiffs,
Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl, and requests the Court
to require Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl to
carry their burden of proof regarding all allegations against Kassab.
AFFIRMATIVE DEFENSES
Defendant, Counter-Plaintiff Kassab pleads the following affirmative defenses:
1. Statute of limitations
2. Justification. t
3. Estoppel. t
4. Waiver. 
5. Ratification. e
6. Release. u
7. Unclean hands. n
8. Contribution. r
9. Failure to mitigate.
10. Lack of standing. 
11. Accord and Satisfactiofn.
12. Assumption of the Risk.
13. Illegality/Criminal Acts.
14. First Amaelndment.
15. Attoriney Immunity.
16. In Pari Delicto.
17. Res Judicata.
18. Defect of Parties.
SPECIFIC DENIALS
Defendants, Counter-Plaintiffs specifically deny that all conditions precedent regarding
Plaintiffs claims of conversion and theft of trade secrets have been performed or occurred prior to
Plaintiffs’ filing of suit against Kassab.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY l
LCK is a lawyer practicing law with The Kassab Law Firm, a law firm in Houston, Texas
focusing on plaintiffs’ legal malpractice cases. Kassab filed four lawstuits on behalf of over four
hundred clients against Pohl (the “Harris County Lawsuits”). The main allegations against Pohl
is civil barratry and conspiracy to commit barratry, a third-degree felony in Texas. Pohl conspired
with his wife, Donalda Pohl (“Dona”), his paralegal, Edgarr Jaimes (“Jaimes”) and three runners in
Mississippi to illegally solicit clients on behalf of Pohl. Dona owns a sham lending company in
Texas called Helping Hands Financing, LLC (“HiHl Texas”). Jaimes runs the day-to-day operations
of HH Texas. The three runners are Scott Walker (“Walker”), Steve Seymour (“Seymour”) and
Kirk Ladner (“Ladner”) (collectively “Runners”). The three Runners owned and operated two
other sham companies called Helpiing Hands Group, LLC and Helping Hands Financial, LLC
(collectively “HH Mississippi”). The three runners also owned Precision Marketing Group, LLC
(“Precision”) which theyo sold to Scott Favre and/or his companies (collectively “Favre”). The
runners had several ol ther business entities from which they operated and concealed their illegal
solicitation conspiracy.
Witnh regard to the clients obtained in the BP Litigation, Walker, Seymour and Ladner hired
other runners to literally go up and down streets in specific locations knocking on doors to solicit
clients on behalf of Pohl for lawsuits against British Petroleum. Walker, Seymore and Ladner,
through Precision and on behalf of Pohl, paid these runners as much as $300-$400 for every
potential client they obtained. Pohl paid Precision as much as $1,500 for every client Precision
obtained and referred to Pohl. Pohl also offered and agreed to pay Walker, Seymour and Ladner
a percentage of his legal fees once the cases settled. This percentage was disguised as an hourly
rate of $1,500.00 per hour, but the percentage of the “settlement” payment was never below the
agreed percentage. For example, no matter how much “hourly” time was actually kspent on a case,
the agreed upon percentage was always achieved by simply dividing the perclentage amount by
$1,500.00 to calculate the imaginary number of hours, and then the Rucnners would submit an
invoice for those imaginary number of hours. Whether the Runners asctually spent five (5) or fifty
(50) hours on a particular case was not the measure of the “settlement” fees to be paid to the
Runners, it was always the agreed upon percentage of attorney’s fees earned by Pohl regardless of
actual hours spent on a case.
With regard to auto accidents, Pohl set up a “Google Alerts” to be notified whenever there
was a horrific rollover or other type of vehiclea crash. Pohl would then immediately send the alert
to the Runners so they could arrange to visit hospitals, homes and funerals to contact the families
of the injured in order to solicit theme as clients. The Runners would use their sham companies,
“Helping Hands” to act as thougfh they were approaching these victims to genuinely help them
rather than solicit them. Thye Runners would falsely tell these victims that they were there to
provide money for burCial services, food, clothing, lodging, etc. In reality however, the Runners’
contacted these famailies under these false pretenses with the sole objective of taling advantage of
these victims anfd their families while they were emotionally distraught and not thinking straight
in order tUo lock them into contracts which allowed the runners to select a lawyer for the victim.
The victims and the family members were encouraged to hire Pohl and told they could not get the
money unless they agreed to hire Pohl. Pohl would pay the Runners as much as $7,500 per client
they signed up and Pohl also promised the runners as much as 33% of Pohl’s legal fees on the back
end when the case settled. Additionally, HH Texas would pay HH Mississippi $2,500 for every
client referred to HH Texas to “loan” money to these victims and their family. Pohl used this
procedure as an attempt to put an additional buffer between him and the actual Runners.
Pohl also helped the Runners form another sham entity, the GM Settlemeknt Verification
Team (“GM Team”) after General Motors, Inc. issued a recall on cars duel to faulty ignition
switches which effected the safe operation of the airbag systems on vehiccles. Thus, the GM Team
was designed to look official as if it was part of General Motors. Thsis conspiracy was to form an
official looking entity from GM as if GM was wanting to compensate people who had been harmed
when airbags failed to deploy in relation to the ignition recall. In reality, this was just another
sham company used to solicit and trick potential clients into hiring Pohl. Again, Pohl would pay
Walker and Ladner, through their sham entity, the GM Team, a fee for every potential client it
referred to Pohl, in addition to a percentage ofa his attorney’s fees on the back end.
Pohl knew what he was doing was illegal barratry. Accordingly, he knowingly formed
entities that he perceived would insuleate him from liability. In fact, Walker testified that although
he and Pohl called it “marketingf services” or “marketing money” it was “clear to [him] it was
barratry.” In fact, Walker cyonsidered himself and his company “a pass-through for barratry
money.” All total, WalkCer, Ladner and Precision received over $5 million in “barratry pass-through
money” from Pohl aand other lawyers to solicit potential clients with claims, both auto-accident
victims and thosfe involved in the BP Deepwater Horizon litigation.
OUne of the runners hired by Pohl and Walker to illegally solicit clients on behalf of Pohl
was Magdalena Santana (“Santana”). In her September 24, 2016 affidavit, Santana testified that
Pohl sent her on “dozens and dozens of car wreck cases all over the country.” Pohl would email
Santana the link of news coverage he obtained through Google Alerts depicting an accident and
asked her “to go to the victim or the victim’s family and try to get them to sign up with him.”
Santana swore under oath that Pohl agreed to pay her “$5,000 per case that [she] signed, plus a
percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even if the family
... rejected [her].” Santana was instructed by Pohl to “approach the victims and theikr families while
they were vulnerable, in the emergency room, their hospital rooms or at the flunerals.” Pohl told
Santana that minorities “were especially vulnerable since they tended noct to know that the law
prohibited barratry.” According to Pohl, they “were easier to sign usp.”
Pohl would give Santana “money to give to the victims or their families” but would only
give the money to the potential client “if they agreed to sign a Pohl representation contract.” Pohl
advised Santana that the money was a “foot in the door” but instructed Santana not to mention
anything about hiring a lawyer “until after they agreed to take the money.” “If the client agreed to
hire Pohl, then [Santana] was to have the clieant sign a ‘Helping Hands’ contract.” Santana would
then give money to the client “from his own Helping Hands company.” When Santana questioned
this, Pohl told Santana that it “was ilelegal for him to pay [her] directly for cases, and that’s why
the money had to go through somfe company.”
Pohl and/or his co-coynspirators had Santana retract this affidavit through a December 19,
2017 affidavit. This puCrported retraction was likely the result of Pohl paying Santana to retract the
first affidavit, whicah is similar to something Pohl had done in the past. In fact, Pohl’s own
paralegal, Jaimefs, testified that on one occasion Pohl sent him to Florida with a suitcase containing
$50,000 Uin cash to give to Santana in exchange for her agreement not to turn Pohl into the
authorities. Jaimes testified that Santana would only get the money if she signed a statement
agreeing not to mention Pohl’s illegal activity. Jaimes testified that Santana signed the statement
and then he gave her the $50,000.
Santana’s deposition was even more detailed. Santana testified at her deposition that the
statement was an agreement for her to keep quiet and not charge Pohl with any wrongdoing,
criminal or unethical conduct. Santana testified that Pohl paid her $50,000 in cash to sign this
statement, which was delivered by Jaimes in three bags marked “trick or treat.” kVery symbolic
given that Santana had been tricked by Pohl into soliciting potential clients folr him and was now
being treated the money she claimed was due under their agreement jucst to stay quiet. Santana
reiterated in her deposition that if she didn’t sign the gag agreement, sshe would not have received
the money from Pohl. Santana attempted to indicate on the 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. Santana did not write the statement but “just signed it” because she felt
she was being “forced to sign” it while “under duress.”
Notably, nowhere in Santana’s Decemab r er 19th affidavit does she state the testimony in her
former affidavit is untrue, only that she does not “agree with” it and that the affidavit is not
“reliable.” Although Santana states ein her December 19th affidavit that her prior affidavit was
drafted by a lawyer, Santana tesf f tified in her deposition that the September 24th affidavit was
created voluntarily with her oywn “testimony.” Santana testified that, unlike with Pohl, she was not
paid and had never beCen promised any money to provide the testimony in the September 24th
affidavit. Santana areiterated to counsel for Pohl, Billy Shepherd, that she was there for her
deposition to tefll the truth and would not be bullied by his questioning or his efforts to confuse
her. U
Regardless, Santana’s sworn deposition testimony confirmed most, if not all of the facts
set forth in her initial affidavit and this deposition testimony has never been retracted. Therefore,
Santana confirmed that she 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. 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. Following Walker and
Pohl’s instructions, Santana visited the funeral of the deceased and got the kfamily to feel
comfortable with her. Although the mother was grieving, Pohl told Santana: l“take no prisoners,
this is a cut throat business, you get in there and you do whatever it takecs to get this client.” The
solicitation was successful after Pohl gave Santana $2,000 to “give sto the client to convince her
into signing over with the firm.” 
“Coach” Kenneth Talley (“Talley”) was another runner hired by Pohl and Walker who
solicited over 20 auto accident cases for Pohl. Talley has sworn under oath that he was first hired
in relation to BP claims to find “folks that lost money due to the oil spill” and “sign them up” and
“get a fee for it.” Talley testified that he wenta to work “knocking on doors” looking for potential
claimants for Pohl and his partner in the BP litigation. Talley solicited and signed up more than
800 BP claims for Pohl and his co-coenspirators. Talley was paid between $75 and $350 for each
BP client he signed up for Pohl afnd his partners.
Talley eventually swyitched to illegally soliciting auto accident victims for Pohl, “calling
on folks that had bad acCcidents.” Talley recalls that the first client he solicited for Pohl was in “the
hospital in intensivae care.” Talley carried with him up to $1,000 to pay the accident victims to
“help them withf problems” but paid the potential client only once they “were signed up.” Talley
kept a lisUt of all the auto accident cases he solicited so he could keep track of the cases that he was
due a percentage from Pohl’s attorney’s fees on the back end after the case settled. Talley also
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 “make sure the funding
schedule” from HH Texas “is filled out properly before releasing any cash.” Talley would advise
the victims that he had attorneys who could help them such as Pohl. Talley was paid a fee of $1,400
plus his expenses by Pohl, through Walker and/or one of his sham business entities for any auto
accident case he solicited and referred to Pohl. On some cases, Talley was to recekive a portion of
the fee paid to Helping Hands out of Pohl’s attorney’s fees. Talley discuslsed with Pohl the
“percentage of settlements” he was to receive from the cases he solicitecd and referred, and Pohl
told Talley that the money was being placed in an “escrow account” fosr him. 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.” And, although his paycheck was from
Walker’s company, “the funding came by way of Edgar [Jaimes].”
Talley testified that personally soliciting clients for Pohl became so frequent that he began
carrying blank contracts to each solicitationa. Talley testified that he never recommended any
lawyers other than Pohl. However, Talley never told the clients that he was getting paid to solicit
them. Talley would present a contraect to the potential client. If the client did not agree to hire
Pohl, the clients would not get thfe money. Talley testified that Jaimes and Dona (the operators of
HH Texas) would send him ythe money.
Talley further tCestified that both he and Pohl knew what they were doing was illegal. In
one instance, Talleya was “run out of town” while soliciting clients for Pohl. Talley testified that
during the attemfpted solicitation he was told by a “lawyer or policeman” that “it was against the
law whatU [he] was doing.” Talley mentioned this to Pohl and Pohl told him “you’ve just got to
leave...some people you can’t help.”
Walker was eventually indicted and sent to prison. Being afraid of where Walker’s
indictment might lead, Pohl and his lawyer partners stopped paying Walker and the other runners
10
the illegal fees as Pohl had promised. Therefore, Walker, Seymour, Ladner and Precision filed a
lawsuit in Mississippi Federal Court (“Federal Litigation”) against Pohl and his law partners
claiming they were owed millions of dollars in promised fees.
The above facts were compiled during the Federal Litigation. Thereafter,k more than four
hundred clients who were illegally solicited contacted the Kassab Law Firm anld requested Kassab
to represent them in litigation against Pohl and his partners. Kassab filced lawsuits on behalf of
these clients in four different courts in Harris County. Additionally,s 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 required to notify the Texas State Bar pursuant to Rule 8.03 of
the Texas Disciplinary Rules of Professional Conduct. Due to this mandate, Kassab filed
grievances against Pohl pursuant to Rule 8.03. some of Pohl’s clients also prepared and filed
grievances against Pohl arising out of his egreagious conduct.
Because of these actions in representing clients against Pohl and the grievances filed
against Pohl, Pohl filed this retaliatoery lawsuit against Kassab alleging conversion and theft of
trade secrets. Pohl alleges that Kfassab and others stole his property and used it to bring lawsuits
and grievances against Pohly. Specifically, Pohl alleges in his petition that, “Kassab is a lawyer
who specializes in suiCng other lawyers”1 and “Kassab solicited clients/prospective clients [of
Pohl’s] to act as Plaaintiffs . . . to bring cases against Pohl for alleged barratry and other claims.”2
Thus, Pohl has fjudicially admitted that he has brought his suit against Kassab simply because
Kassab coUntacted illegally solicited clients to notify them of Pohl’s illegal conduct and to offer to
represent them in suits against Pohl.
1 Pohl Original Petition, p. 6
2 Id. at p. 6-7
11
The lawsuit is frivolous and without merit as it is based upon false pretenses and was
brought solely for retaliation purposes. Specifically, Kassab did not steal anything from Pohl.
Additionally, Kassab did not purchase any stolen documents belonging to Pohl. Kassab did not
purchase anything belonging to Pohl. Moreover, Pohl is not the owner of documeknts received, if
any, from Precision, Favre, Nicholson, Montague or anyone else. Lastly, nonle of the documents
and/or information that Kassab may have received from various individucals or entities are Pohl’s
trade secrets as Pohl alleges. Furthermore, Pohl has failed to comply swith conditions precedent to
filing his retaliatory suit for conversion and theft of trade secrets.
COUNTERCLAIM FOR CIVIL BARRATRY
Within the lawsuits that Kassab has filed against uPohl on behalf of his former clients and/or
potential clients, Pohl has judicially admitted that na claim for barratry is not a legal malpractice
case. Pohl has also admitted that a becauser a claim for barratry is not a claim for “legal
malpractice,” the Discovery Rule does not apply to a barratry claim. Therefore, based upon Pohl’s
judicial admissions, the assignment of a barratry claim is permitted under Texas law.
Thus, based upon expresfs assignments of interest given to Kassab, Kassab brings
counterclaims against Pohl and his law firm pursuant to Texas Civil Practice and Remedies Code,
Section 16.069. Section 16.069 provides:
(a) If a counatelrclaim or cross claim arises out of the same transaction or occurrence
that is tihe basis of an action, a party to the action may file the counterclaim or
crossi claim even though as a separate action it would be barred by limitations
ono the date the party’s answer is required.
(b) The counterclaim or cross claim must be filed not later than the 30th day after
the date on which the party’s answer is required.
Kassab has been assigned barratry claims on behalf of 242 claimants. These counterclaims
are timely because they were filed within 30 days of the date Kassab filed his original
answer.
12
DESIGNATION OF RESPONSIBLE THIRD PARTIES
A responsible third party is someone who caused or contributed to cause a portion of the
Plaintiff’s alleged damages. Defendant/Counter-Plaintiffs, Kassab, designate George W. (Billy)
Shepherd, Scott Walker, Steve Seymour and Kirk Ladner, Dona Pohl, Edgar Jaimes, Ken Talley,
Magdalena Santana, Helping Hands Financing, LLC (“HH Texas”), Helping Hands Group, LLC,
Helping Hands Financial, LLC (“HH Mississippi”) and GM Settlement Vetrification Team, LLC.
as responsible third parties as these individuals and/or entities are the tsole or proximate cause of
any damages alleged by Pohl. Billy Shepherd (“Shepherd”) represented Pohl in the Federal
Litigation filed against Pohl by Walker, Seymour, Ladner eand Precision. Shepherd knew that
Walker, Seymour and Ladner had sold Precision to Fauvre and knew that Walker, Seymour and
Ladner had legally transferred Precision’s assets annd property to Favre. Shepherd further knew
that Favre and/or his counsel had given documrents to third parties, including Kassab and others
prior to negotiating a settlement in the Federal Litigation. The documents, assets and all other
property that Precision owned that were transferred to Favre are the subject of Pohl’s lawsuit
herein. f
Shepherd negotiated the settlement in the Federal Litigation between Walker, Seymour,
Ladner, Favre and Precision on the one hand and Pohl on the other hand. If Pohl now complains
in this lawsuit thaat lhe was entitled to the return and/or destruction of said assets/property,
Shepherd, as Poihl’s attorney in the Federal Litigation wholly failed to protect Pohl by ensuring
that all subject property was gathered from all third parties and returned to Pohl or destroyed as
part of the any settlement agreement.
Shepherd’s malfeasance was either negligent or intentional. If Shepherd knew that the
subject assets/property were a point of contention in the Federal Litigation and knew that the
assets/property could be used by outside third parties to garner clients to sue Pohl, as Pohl alleges,
13
Shepherd may have intentionally failed to protect Pohl’s interest so that he could secure future
lucrative employment for himself and his law firm for years to come by continuing to represent
Pohl in litigation to be brought against Pohl after the subject property was used to garner clients to
sue Pohl as Pohl alleges. Thus, Shepherd is the sole or proximate cause of Pohl’s alkleged damages.
Walker, Seymour and Ladner sold Precision to Favre. Walker, Seymolur and Ladner also
transferred the subject assets/property of Precision to Favre. Walker testcified under oath that he,
Seymour and Ladner, through Precision, owned all the assets/propersty, including computers and
documents that were transferred to Favre. Walker also testified that he had the legal right and
authority, through Precision, to sell and transfer all the subject assets/property to Favre. Moreover,
Walker, Seymour and Ladner certified that they owned all of the subject property/assets and had
authority to transfer all of the subject property/assets to Favre. If Walker, Seymour and Ladner
did not have the legal right to transfer all of thae subject assets/property to Favre, then they are the
sole or proximate cause of Pohl’s alleged damages. Additionally, if Walker, Seymour, Ladner,
Dona, Jaimes, Talley, Santana or thee business entities listed above had an agreement and/or duty
to safeguard any property allegedfly owned by Pohl, they are responsible for failing to safeguard
the property. Additionally,y the business entities outlined as HH Texas, HH Mississippi, GM
Settlement VerificationC Team, LLC., Walker, Seymour, Ladner, Dona, Jaimes, Talley and Santana
routinely placed Poahl’s alleged trade secrets and documents in the public domain, circulating
Precision’s marfketing lists and other documents allegedly belonging to Pohl to numerous third
parties raUther than safeguard these documents and lists. Therefore, if Pohl has been damaged in
any way as he alleges, Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley, Santana,
Helping Hands Financing, LLC (“HH Texas”), Helping Hands Group, LLC, Helping Hands
14
Financial, LLC (“HH Mississippi”) and GM Settlement Verification Team, LLC. are the sole
and/or proximate cause of his damages.
PRAYER FOR RELIEF
Wherefore, Defendants, Counter-Plaintiffs respectfully pray that Plaintiffs recover nothing
on their claims and that the Defendants, Counter-Plaintiffs recover on their claims against the
Plaintiffs and/or any Third-Party Defendants as follows: t
i) actual and consequential damages; t
ii) statutory damages;
iii) pre- and post-judgment interest; s
iv) attorneys’ fees and costs; and
v) all other relief to which the DefendantsB, Counter-Plaintiffs may be justly entitled.
aRespectfully submitted,
 THE KASSAB LAW FIRM
e / s / Lance Christopher Kassab
c LANCE CHRISTOPHER KASSAB
f Texas State Bar No. 00794070
lance@kassab.law
y DAVID ERIC KASSAB
Texas State Bar No. 24071351
C david@kassab.law
 1214 Elgin Street
a Houston, Texas 77004
c Telephone: 713.522.7400
f Facsimile: 713.522.7410
U ATTORNEYS FOR DEFENDANTS,
COUNTER-PLAINTIFFS LANCE CHRISTOPHER
KASSAB AND THE KASSAB LAW FIRM
15
/s/ Murray Fogler
Murray Fogler
State Bar No. 07207300
mfogler@foglerbrar.com
FOGLER, BRAR, O’NEIL AND GRAY, LLP
909 Fannin, Suite 1640
Houston, Texas 77010 k
Telephone: 713-481-1010 r
Facsimile: 713-574-3224 l
ATTORNEY FOR LANcCE
CHRISTOPHER KArSSAB AND
THE KASSAB LA s W FIRM
REGARDING T D HE AFFIRMATIVE
CLAIMS BYs P LAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copyl of the above and foregoing instrument has been
forwarded to all parties pursuant to the Texaas r Rules of Civil Procedure on this the 13th day of
October 2021. M
e / s / Lance Christopher Kassab
Lance Christopher Kassab
16
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
Bar No. 24071351
david@kassab.law r
Envelope ID: 58144098
Status as of 10/13/2021 12:41 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s10/13/2021 12:33:34 PM SENT
Todd Taylor ttaylor@jandflaw.com g10/13/2021 12:33:34 PM SENT
Scott M.Favre scott@favrepa.com u 10/13/2021 12:33:34 PM SENT
Lance Kassab eserve@kassab.law  10/13/2021 12:33:34 PM SENT
Murray JFogler mfogler@foglerbrar.cyom 10/13/2021 12:33:34 PM SENT
Andrew J. Sarne asarne@krcl.coma 10/13/2021 12:33:34 PM SENT
Larry Newsom lnewsom@krcl.com 10/13/2021 12:33:34 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 10/13/2021 12:33:34 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 10/13/2021 12:33:34 PM SENT
Harris Wells hweflls@reynoldsfrizzell.com 10/13/2021 12:33:34 PM SENT
Kathryn Laflin KLaflin@KRCL.com 10/13/2021 12:33:34 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 10/13/2021 12:33:34 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 10/13/2021 12:33:34 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 10/13/2021 12:33:34 PM SENT
Solace Southwick ssouthwick@reynoldsfrizzell.com 10/13/2021 12:33:34 PM SENT
E. MarieJamison o jamison@wrightclosebarger.com 10/13/2021 12:33:34 PM SENT
Jessica Z.BarUger barger@wrightclosebarger.com 10/13/2021 12:33:34 PM SENT
Felicia Grace fgrace@krcl.com 10/13/2021 12:33:34 PM SENT
Chris C.Pappas cpappas@krcl.com 10/13/2021 12:33:34 PM SENT
Todd Taylor ttaylor@jandflaw.com 10/13/2021 12:33:34 PM SENT
David R.Wade lawyerwade@hotmail.com 10/13/2021 12:33:34 PM SENT"
18,2021-08-02,RPL,Kassab,Kassab’s reply ISO Traditional MSJ,"Kassab's Objections to Pohl's Response and Reply in Support of Traditional Motion for Summary Judgment, with extensive evidentiary objections and rebuttal arguments on all three grounds","Reply brief filed one week after Pohl's response (July 26, 2021) to Kassab's Traditional MSJ. Filed August 1-2, 2021. Contains two major sections: (1) detailed paragraph-by-paragraph evidentiary objections to Pohl's Declaration (Exhibit A) seeking to strike key paragraphs and exhibits as conclusory, hearsay, or lacking foundation; (2) substantive reply arguments on limitations, res judicata, and attorney immunity. Kassab represents himself pro se with David Eric Kassab.",MSJ-1,N/A,Phase 2,2021-08-02_RPL_Kassab-Reply-ISO-Traditional-MSJ_FILED.pdf,"Sustain all evidentiary objections; strike Paragraphs 5, 6, 7, 8, 9, and 10 of Pohl's Declaration and Exhibits 1-2; grant Traditional Motion for Summary Judgment ordering that Plaintiffs take nothing","8/1/2021 7:39 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 55892722
By: Deandra Mosley
Filed: 8/2/2021 12:00 AM
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’ OBJECTIONS TO PLAINTIFCFS’ RESPONSE
AND REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGEtR:
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a/ The
Kassab Law Firm file this, their Objections to Plaeintiffs’ Response and Reply in
Support of Motion for Summary Judgment uand would respectfully show the
following.
BJECTIONS
Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.
d/b/a/ The Kassab Law Firm i(collectively, “Kassab”) object to Plaintiffs’ Exhibit A,
the sworn declaration of Michael A. Pohl, because statements contained in this
declaration are concluosory, contain hearsay and contain no foundation or predicate
to support personall knowledge, and thus, constitute no evidence at all.
Conclusiory affidavits do not raise fact issues and are incompetent evidence as
a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996);
Stephens v. Precision Drilling Oilfield Servs. Corp., No. 01-11-00326-CV, 2013 Tex.
App. LEXIS 5700, at *19 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.)
(mem. op.). “A conclusory statement is one that does not provide the underlying
facts to support the conclusion.” Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex.
App. – Houston [14th Dist.] 2000, pet. denied). Moreover, an affidavit is conclusory
when it expresses “a factual inference without stating the underlying facts on which
the inference is based.” E.I. du Pont de Nemours & Co. v. Shell Oil Cok., 259 S.W.3d
800, 809 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). ThusC, bare conclusions
are not evidence and are not probative of any facts. See Bavishi v. Sterling Air
Conditioning, Inc., No. 01-10-00610-CV, 2011 Tex. App.i LEXIS 6271, at *24-26
(Tex. App.—Houston [1st Dist.] 2011, no pet.) (mem. op.). Pohl’s declaration consists
of nothing but conclusory statements.
Kassab objects to Paragraph 4, which states: “Pohl engaged Precision
Marketing Group, LLC (“Precision”) to prlovide public relations services, to gather
and preserve evidence, and to screenM and liaise with Pohl’s clients and prospective
clients.” This statement is conclusory because Pohl fails to provide any foundation
or predicate for the statementi such as when, where, and how he engaged Precision.
Pohl does not state what Precision is, who owns Precision, who he met with at
Precision, when he ostruck an agreement with Precision, when Precision was
supposed to condulct its work or what Precision was to receive. Pohl does not state
what any of thie details of the agreement with Precision are, when Precision is to act
and for how long the agreement is to take place or where it is to take place. And,
although Pohl states why he allegedly “engaged Precision,” he does not provide any
detail or specificity regarding the conclusory remark in paragraph 4. “[G]ather and
preserve” what evidence? “[S]creen and liaise with Pohl’s clients and prospective
clients” how? What type of screening? What type of liaising? What location? For
what purpose? There is simply no predicate or foundation to support this conclusory
statement, and thus, Pohl’s paragraph 4 contains nothing but bare conclusions
which constitutes no evidence and is not probative of any facts. See Bkavishi, 2011
Tex. App. LEXIS 6271, at *24-26. C
Kassab objects to Paragraph 5, which states: “I was and am the owner of the
confidential, privileged and trade secret information thait Kassab obtained from
Scott Favre, Precision Marketing Group, LLC (“Precision”), and Tina Nicholson on
which this suit is based.” This statement is conclusory because Pohl fails to describe
what the purported confidential information or trade secrets are or explain how he
is the rightful owner of this information asl opposed to Favre or Precision, who have
claimed to be the owner of the aMlleged marketing lists provided to Kassab.
Additionally, Pohl fails to state when or why he obtained this information or what
makes it confidential or priivileged. Moreover, Pohl fails to explain how the
information even constitutes a trade secret. See Game Sys. v. Forbes Hutton
Leasing, Inc., No. 02-o09-00051-CV, 2011 Tex. App. LEXIS 4098, at *76 (Tex. App. –
Fort Worth, Mayl 26, 2011, no pet.) (mem. op.) (statement that the software
“constitutes ai trade secret” was conclusory and not proper evidence). Pohl’s
paragraph 5 contains nothing but bare conclusions which constitutes no evidence
and is not probative of any facts. See Bavishi, 2011 Tex. App. LEXIS 6271, at *24-
26.
Kassab objects to Paragraph 6 because it is conclusory and contains hearsay.
First, Kassab objects to the following statement as conclusory: “Specifically,
prior to that sale, Precision undertook to convert, misappropriate for itself, and/or
market to third parties claimant files and other information and materials that
belong to me, and to which they had access while working for me.”k Pohl fails to
explain what “sale” he is referring to. Who purchased what from wChom? When was
there a sale? Where did a sale take place? Pohl even fails to provide personal
knowledge regard a sale. i
Pohl also fails to provide any factual support about how Precision allegedly
converted his purported “information or materials.” Pohl also fails to provide and
foundation or predicate for the statement. Pohl fails to state how Precision
undertook to convert or misappropriate forl itself anything. Pohl fails to state when
items were converted or misapproprMiated, why Precision undertook to convert or
misappropriate something, where it was converted or misappropriated, how long
something was converted or miisappropriated, whether Pohl attempted to stop the
conversion or misappropriation, when and how Pohl attempted to stop the
conversion or misapporopriation, and what Pohl did to stop, prevent or safeguard
against any converlsion or misappropriation.
Moreoveir, Kassab also objects to the next sentence in this paragraph,
wherein Pohl claims that the information taken “include[s] original client
contingency fee contracts between my clients and me (and to which Precision and/or
its affiliates are not parties); documentation of contact and personal information;
claim information; compilations of former and current clients; and supporting
materials.” Under Texas law, Pohl is not the owner of this information; “a client
owns the contents of his or her file.” In re Cook, 597 S.W.3d 589, 597 (Tex. App. –
Houston [14th Dist.] 2020, no pet.). Therefore, Pohl’s statement that he is the owner
of this information is conclusory because Pohl does not explain howk he owns the
information as opposed to his clients. C
Pohl’s statement that “Kirk Ladner (a former owner of Precision) admitted to
absconding with those files and, without my consent, kepit them at his residence
until they were later delivered, also without my consent, to Scott Favre, the
subsequent managing member of Precision” is conclusory and contains hearsay.
What Ladner purportedly admitted to is hearsay. See TEX. R. EVID. 801(c).
Additionally, Pohl does not provide any lfactual support for his conclusion that
Ladner purportedly absconded withM the files. Therefore, in addition to being
hearsay, the statement is also conclusory.
Kassab objects to Paragiraph 7 which states, “Precision also refused to return
and converted to its own use multiple computers that I purchased for my office and
which Precision usedo while there performing services for me.” This statement is
conclusory becausle it fails to provide any factual support for the statement that
Precision allegiedly refused to return or converted to its own use computers allegedly
purchased by Pohl. Pohl fails to state when he allegedly purchased computers, how
many computers were purchased, which of the computers purchased were
converted, what type of computers he is referring to and when these mysterious
computers where converted.
Kassab objects to multiple statements in Paragraph 8 as conclusory and
speculative, lacking personal knowledge and because they contain hearsay.
First, the statement “Precision expressed their understanding of the
confidential nature of the information based on their prior experiencek in providing
litigation-related services to BP claims facilities and to attorneyCs, a field in which
Precision held themselves out to me as experienced professionals” is conclusory.
Pohl does not state who at Precision allegedly expressed thieir understanding of the
confidential nature of the information, how it was expressed, when it was
expressed, where it was expressed, why it was expressed or who it was expressed to.
Pohl also does not state who at Precision allegedly held themselves out to Pohl as
“experienced professionals” or provide factls to demonstrate how that occurred, when
it occurred, or where it occurred, if it Meven did.
Second, the statement, “Precision expressed their understanding of the
confidential nature of the infoirmation” is also impermissible hearsay. See TEX. R.
EVID. 801(c).
Third, Kassab oobjects to the following statement “Nevertheless, without my
consent, and altholugh they were without legal title to the contracts, documents,
computers, paisswords or data stored thereon, Precision purported to sell the
contracts, documents, computer, passwords and/or stored data to Scott Favre (even
after I had informed Favre that the materials had been stolen from me by
Precision), who it appears (with Tina Nicholson’s assistance) eventually sold those
items and the information therein to Kassab.” This statement is conclusory because
Pohl does not explain why Precision would not have his consent to do what it
allegedly did, or why Precision would not have “legal title” to the information. Pohl’s
contention that Precision did not have “legal title” is an unsupported legal
conclusion. Moreover, Pohl’s statement that Precision “purportedk to sell” or
“appears” to have eventually sold the information to Kassab is nCothing more than
speculation by Pohl as what Precision did, which is insufficient. See Ryland Grp. v.
Hood, 924 S.W.2d 120, 122 (Tex. 1996) (“interested witnesis’ affidavit which recites
that the affiant ‘estimates,’ or ‘believes’ certain facts to be true will not support
summary judgment.”); Essex Ins. Co. v. Mason Bros. Constr., Inc., No. 07-02-0408-
CV, 2004 Tex. App. LEXIS 5740, at *13 (Tex. App. – Amarillo June 29, 2004, pet.
denied) (mem. op.) (statement that “it appelars” some fact occurred was conclusory).
Kassab also objects to ParagrMaph 9 as conclusory. Pohl states “Prior to the
two year period leading up to the filing of this case, I was unaware that Scott Favre
and Precision, with the assistiance of Tina Nicholson, had sold my information to
Kassab and Montague.” But Pohl provides no facts to support any conclusion that
an actual sale occurreod. Pohl does not state how he knows a sale occurred or provide
any details of thel purported sale. Pohl fails to state where an alleged sale took
place, what wias sold, who paid what for an alleged sale, how he was privy to this
alleged sale or how he has personal knowledge of any kind related to this alleged
sale. Moreover, Pohl fails to provide facts to support his conclusion that he was
unaware of any purported sale.
Pohl also states, “And, in fact, that sale occurred in November of 2016, less
than two years before this suit was filed.” But again, Pohl fails to provide any detail
relating to how he knows or has personal knowledge of a purported sale occurring
on this date. Thus, Kassab objects to this statement as well because it iks conclusory.
Kassab also objects to paragraph 10 because it is vagueC, ambiguous, not
clear, positive or direct, or free from contradiction. Pohl states in paragraph 10
that, “Pohl, Precision, and other entities and individuals weire parties to a lawsuit in
Federal court in Mississippi, . . .” He then states, “No other Defendants were
parties to the Federal Court Case.” Pohl does not identify what “other entities and
individuals were parties to the lawsuit.” Therefore, when he states, “No other
Defendants were parties to the Federal Clourt Case”, the entire paragraph is not
clear, positive, direct or free from conMtradiction, and therefore, it is also vague and
ambiguous, and must be struck. TEX. R. CIV. P. 166a(c); McIntire v. Ramirez, 109
S.W.3d 741, 749 (Tex. 2003); Tirico Techs. Montiel, 949 S.W.2d 308, 310 (Tex. 1997)
(to establish facts, an interested witness’s testimony must be clear, positive, direct,
credible, free from conotradiction and uncontroverted even though it could have been
readily controverteld). Since the testimony does not meet these requirements, it will
not support suimmary judgment. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex.
1989).
Kassab also objects to Exhibits 1 and 2 attached to Pohl’s declaration and
objects to paragraphs 12 and 13, which attempt to authenticate Exhibits 1 and 2
within the declaration. Pohl swears under oath that Exhibits 1 and 2 are “true and
correct”, however, Pohl provides no basis for this statement.
Pohl states that “Exhibit 1 is a true and correct copy of an agreement among
and between Scott Favre, PA LLC, the Kassab Law Firm and Montakgue, Pittman
and Varnado, P.A., dated November 10, 2016 executed by LCance Kassab and
produced by Precision to Pohl after the court’s April 24, 2017 order in the Federal
Court Case.” However, Pohl is not a party to the alleged aigreement. Additionally,
Pohl does not state how he knows the document is what he purports it to be. Pohl
does not state that he was present when the alleged agreement was executed, nor
does he state that he saw the parties execute the alleged agreement. Moreover,
Pohl does not provide any details relatling to his statement that this alleged
agreement was “produced by PrecisiMon to Pohl.” Pohl does not state how it was
allegedly produced, when it was produced, where it was produced or why it was
produced. Pohl also fails to staite what order he is referring to.
Additionally, Pohl states that “Exhibit 2 is a true and correct copy of an
email, dated Decembeor 7, 2016 from Doug Montague to Lance Kassab, with copies
to Tina Nicholson,l Scott Favre, and Andrea Mendez, and produced by Precision to
Pohl after thei court’s April 24, 2017 order in the Federal Court Case.” However,
Pohl is not a party to the alleged email. Furthermore, Pohl does not state how he
knows the document is what he purports it to be. Pohl does not state that he was
present when the alleged email was drafted, who drafted it or why it was drafted or
sent, nor does he state that he saw the parties draft or send the alleged email.
Moreover, Pohl does not provide any details relating to his statement that this
alleged agreement was “produced by Precision to Pohl.” Pohl does not state how it
was allegedly produced, when it was produced, where it was produced or why it was
produced. Pohl also fails to state what order he is referring to. k
An affidavit must show affirmatively that the witness is cCompetent. Tex. R.
Civ. P. 166a(f). Competency does not refer to the sufficiency of the specific
testimony, which is an issue of personal knowledge. Laidilaw Waste Sys. v. City of
Wilmer, 904 S.W.2d 656, 661 (Tex. 1995) (witness was found not competent to
testify about property metes and bounds because he made only conclusory
statements). Additionally, an affidavit must be based on the affiant’s personal
knowledge and must state that the facts lin it are true and correct. Humphreys v.
Caldwell, 888 S.W.2d 469, 470 (TexM. 1994); see TEX. R. EVID. 602 (evidence must
show how witness has personal knowledge); Kerlin v. Arias, 274 S.W.3d 666, 668
(Tex. 2008) (affidavit did not ishow how witness could have personal knowledge of
particular events); Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex.
1988 (affidavit did noto show how witness became familiar with facts about operation
of radio station). lBecause Pohl’s declaration fails to show personal knowledge and
competency reigarding the prove up Exhibits 1 and 2, they must be struck.
Accordingly, Kassab requests that Paragraphs 5, 6, 7, 8, 9 and 10 of Pohl’s
declaration be stuck. Additionally, Kassab requests that Exhibits 1 and 2 attached
to Pohl’s affidavit be struck. With these paragraphs and exhibits struck, Pohl has
failed to raise a genuine issue of material fact to defeat Kassab’s claims of
10
limitations, res judicata and attorney immunity, rendering summary judgment in
favor of Kassab proper.
REPLY
A. Limitations e
Pohl argues that his claims against Kassab accrued when Kasab allegedly
purchased Pohl’s confidential information through a contratct dated November 10,
2016. Resp. at 5. However, Pohl testified under oath, and the evidence demonstrates
that Pohl accused Kassab of stealing his informeation and knew of Kassab’s
involvement in 2014 but did not immediately filue 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.” Mot. Eaxhibit 3, at 93. Pohl’s argument that “it does
not matter” that he knew of Precision’s purported theft earlier is without merit
because a cause of action accruees when (1) “the allegedly tortious act was committed
and caused an injury;” or (2f) “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). This is true
even if all resuliting damages have not yet occurred. Schlumberger Tech. Corp. v.
Pasko, 544 oS.W.3d 830, 834 (Tex. 2018)
Pohl testified under oath that he learned of the basis of his purported claims
against Kassab during discovery in the Federal Court Case. Mot. Exhibit 1.
Specifically, Pohl testified during the course of discovery in that case it was
“revealed” that Precision – a defendant in this case – and the company’s former
11
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 belong to [him].” Mot. Exhibit 1, at 28. Pohl
testified: “Those items include original client contingency fee contractsk between my
clients and me …, documentation of contact and personal inCformation, claim
information and supporting materials.” Id. Pohl testified that those files “were at
one time maintained in approximately seventeen clear plaistic file containers” and
that “Ladner admitted absconding with those 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] consent, to Scott Favre” – the current owner of
Precision, who is also a defendant in this lcase. Id. Pohl complains in that affidavit
that Nicholson “refused to return anMd converted to [her] own use” four computers
that Pohl purchased for his office and which Precision used while soliciting clients
for Pohl. Id. Pohl testifies thait those computers contained “marketing information
and other trade secrets, [his] proprietary client forms” and other unidentified work
product. Id. Pohl testoifies that the “theft and unlawful disclosure was made even
more egregious” wlhen Favre refused to return the information and “appears [to
have] eventuailly sold those items and the information therein to [Kassab].” Mot.
Exhibit 1, at 29. In substance, Pohl testified under oath that Kassab and his “crew”
broke into his office in “Gulfport, Mississippi” and stole his stuff in 2014.
Notably, Pohl does not dispute any of this testimony in his Response. Rather,
Pohl states that “Kassab bears the burden to and must ‘conclusively prove when’
12
each of Pohl’s causes of action accrued and must also negate the discovery rule to be
entitled to summary judgment on limitations. Resp. at 3. However, Kassab has
conclusively proven when each of Pohl’s causes of action accrued—the testimony
came straight from Pohl’s mouth when he testified under oath as ouktlined above
and in more detail within the Motion for Summary JudgmentC. And, although
Kassab did negate the discovery rule by Pohl’s own sworn testimony, Pohl never
pled the discovery rule. Thus, the discovery rule does niot apply to the pending
motion. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988) (party
seeking to avail itself of the discovery rule must plead the rule). Moreover, the
discovery rule only applies when the subject matter is inherently undiscoverable
and objectively verifiable. Wagner & Brouln, Ltd. v. Horwood, 58 S.W. 3d 732, 734
(Tex. 2001). Pohl testified under oaMth that Kassab and his crew stole his stuff in
2014. There is nothing inherently undiscoverable about this.
Pohl attempts to autheinticate and cite to an alleged email that somehow
proves that Kassab obtained his documents at a later date beyond 2014. However,
the proposition Pohl oattempts by way of the alleged email is not only contrary to
Pohl’s sworn testilmony, but it also proves absolutely nothing relating to Kassab’s
alleged unlawiful conduct. The alleged email not only contains hearsay, but it also
does not provide any passage that states that Pohl’s documents are being obtained
by Kassab on a particular date. In fact, Pohl’s name is nowhere to be found in the
email. Nor was he a party to the email. Thus, the alleged email proves nothing
even if it were admitted into the summary judgment record.
13
B. Res Judicata
Pohl argues that Kassab has not established that he was in privity with the
parties in the Federal Court Case and has not established that the claims against
Kassab are the same that were made in the Federal Court Casek. Resp. at 8.
However, Kassab conclusively did establish the element of priCvity and that the
second action was based on the same claims as were or could have been raised in
the first action. i
Pohl has sued Favre and Precision in this litigation for the same conversion
and theft of trade secrets he is suing Kassab for. Pohl also sued Precision in the
Federal Court Case. And, of course, Precision was owned by Favre during the
pendency and settlement of the Federal Clourt Case. Additionally, Pohl has alleged
and judicially admitted that Favre, PMrecision and Kassab are co-conspirators to the
conversion and trade secrets claims. Thus, Kassab is in privity with Precision and
Favre relating to the claims miade in the Federal Court Case. Palaxar Grp., LLC v.
Williams, No. 6:14-cv-758-0rl-28GJK, 2014 U.S. Dist. LEXIS 138533, at *43 (M.D.
Fla. Sep. 30, 2014); oSeenyur v. Coolidge, No. 16-cv-3832 (WMW/BRT), 2018 U.S.
Dist. LEXIS 5895l, at *6 (D. Minn. Jan. 12, 2018) (“Members of a conspiracy are
deemed underi 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). See also SED Holdings, L.L.C. v. TM Prop. Sols., L.L.C. (In re 3 Star Props.,
L.L.C.), 2021 U.S. App. LEXIS 22430 (5th Cir. 2021).
14
Additionally, Kassab conclusively proved that the claims made in this case.
In the Federal Court Case, not only did Pohl sue Precision for alleged theft of his
property (Mot. Exhibit 2, par. 6), but Pohl recognized during discovery that
Precision and Walker had allegedly “undertook to convert, misappkropriate, for
themselves and/or market to third parties” like Kassab “claimaCnt files and other
information and materials” that allegedly belonged to Pohl, including “original
client contingency fee contracts between [Pohl’s] cilients and [Pohl] …,
documentation of contact and personal information, claim information and
supporting materials.” Mot. Exhibit 1, par 28. Pohl identifies that material as
“marketing information and other trade secrets,” and claims that it was stolen by
Precision and its current or former ownelrs, including Favre, a defendant in this
case, and Favre’s counsel, Nicholson, Malso a defendant in this case. Id. Pohl testifies
that the “theft and unlawful disclosure was made even more egregious” when Favre
“appears [to have] eventualliy sold those items and the information therein to
[Kassab].” Mot. Exhibit 1, par. 29.
In this case, Poohl alleges that, while working for him, Precision “gained
access to Pohl’s colnfidential and proprietary information and property, including
trade secret miaterials, that included the identities of Pohl’s clients/prospective
clients, as well as their detailed contact information.” Pohl’s Pet., p. 20. Pohl
alleges that Favre and Precision “stole physical copies of certain of the information,
stole Pohl’s computers, and misappropriated electronic data to which they had
access through Precision’s work for Pohl.” Pohl’s Pet., p. 21. Pohl can not run away
15
from his own sworn testimony. Therefore, res judicata has been conclusively
proved.
C. Attorney Immunity
Pohl argues that the attorney immunity doctrine does not applky to Kassab’s
conduct, and thus, summary judgment cannot be granted on atCtorney immunity.
Pohl cites a couple of cases that stand for general principals which do not apply
here, yet fails to distinguish any of the multitude of caises that Kassab cites to
support his argument regarding attorney immunity.
However, the law in Texas is clear and unambiguous, “[A]n attorney is
immune from liability to nonclients for conduct within the scope of his
representation of his clients.” Youngkin v.l Hines, 546 S.W.3d 675, 681 (Tex. 2018).
The inquiry “focuses on the kind Mof conduct at issue rather than the alleged
wrongfulness of said conduct.” Id. “That is, a lawyer is no more susceptible to
liability for a given action meriely because it is alleged to be fraudulent or otherwise
wrongful.” Id. “Merely labeling an attorney’s conduct ‘fraudulent’ does not and
should not remove it ofrom the scope of client representation or render it ‘foreign to
the duties of an alttorney.’” Id. at 483. Even “criminal conduct is not categorically
excepted fromi the protections of attorney civil immunity when the conduct alleged
is connected with representing a client 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, 483 (Tex. 2015) (“an attorney’s conduct may be
wrongful but still fall within the scope of client representation”).
16
The entire basis for Pohl’s lawsuit against Kassab is that Kassab allegedly
purchased the purportedly stolen information and “solicited [Pohl’s]
clients/prospective clients to act as plaintiffs … to bring cases against Pohl for
alleged barratry and other claims.” Pohl’s Pet., par. 29. The esseknce of Pohl’s
claims against Kassab are “that Kassab bought Pohl’s client list fCrom [Precision] so
that Kassab could send advertisements to Pohl’s former clients and solicit them to
become Kassab’s clients in barratry suits against Pohl.” Kaissab v. Pohl, 612 S.W.3d
571, 578 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (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
Capital Mgmt., LP v. Looper Reed & McGlraw, P.C., No. 05-15-00055-CV, 2016 Tex.
App. LEXIS 442 (Tex. App.—Dallas JMan. 14, 2016, pet. denied) (mem. op.) (“That [a
party] characterized the firm’s conduct as fraudulent or otherwise wrongful was
immaterial to [the court’s] evailuation of the immunity defense.”).
The fact that Kassab is alleged to have committed the misconduct prior to
any litigation is immaoterial because “attorney immunity applies to claims based on
conduct outside thle litigation context[.]” See Haynes & Boone, LLP v. NFTD, LLC,
No. 20-0066, i2021 Tex. LEXIS 423, at *32 (May 21, 2021); 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 Zientz & Mann, P.C., No. 05-16-00394-CV,
17
2017 Tex. App. LEXIS 2092, at *10 (Tex. App.—Dallas Mar. 10, 2017, no pet.)
(mem. op.) (recognizing that Texas courts “have noted that attorney
immunity applies outside of the litigation context” and citing opinions).
In this very case, the court of appeals opined that “the allegedk purchase of
Pohl[’s] client list for those clients’ contact information, followedC by the mailing of
attorney advertisements to those individuals about specific types of claims they
might be able to pursue against a specifically identifiedi 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 (emphasis added).1 That court opined that “the intended audience of [Kassab’s
alleged] statement or conduct were indilviduals with potential legal claims who
Kassab sought to represent in barrMatry suits against Pohl. These were Kassab’s
potential clients to whom he offered the kind of legal services he provides.” Id. at
579. i
The acquisition of clients and filing of lawsuits are actions “taken and
communications madeo to facilitate the rendition of legal services” and are protected
by the attorney imlmunity doctrine. Youngkin, 546 S.W.3d at 682. Because Pohl’s
claims againsti Kassab are “based in part” on that conduct (Pohl’s Pet., par. 29), 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.—
1 This is the law of the case. No matter how Pohl wishes to characterize the facts, he cannot escape
the court of appeals opinion and renderings in this case.
18
Houston [1st Dist.] Nov. 20, 2014, no pet.) (mem. op.) (attorney not liable to third
party for filing confidential medical records because the filing of 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.] 1992, writ denied) (“an kattorney does
not have a right of recovery, under any cause of action, againsCt another attorney
arising from conduct the second attorney engaged in as part of the discharge of his
duties in representing a party.”) (emphasis added). i
III
CONCLUSION & PRAYE e R
For the reasons set forth herein and inu the initial Motion for Summary
Judgment, Defendants/Counter-Plaintiffs Lance Christopher Kassab and The
Kassab Law Firm respectfully requesta the Court to sustain the objections made
herein and grant this Motion for Summary Judgment, ordering that Plaintiffs take
nothing in their claims againste Lance Christopher Kassab and The Kassab Law
Firm. f
Respectfully submitted,
THE KASSAB LAW FIRM
i / s / Lance Christopher Kassab
i LANCE CHRISTOPHER KASSAB
o Texas State Bar No. 00794070
lance@kassab.law
DAVID ERIC KASSAB
Texas State Bar No. 24071351
david@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713.522.7400
Facsimile: 713.522.7410
19
ATTORNEYS FOR LANCE
CHRISTOPHER KASSAB AND THE
KASSAB LAW FIRM
CERTIFICATE OF SERVICE C
I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded to all parties pursuant to thte Texas Rules of Civil
Procedure on this the 1st day of August, 2021. i
/ s / Lance Christopher Kassab
Lance eChristopher Kassab
20"
17,2021-07-26,RSP,Pohl,Pohl’s response to Kassab MSJ,"Pohl's Response in Opposition to Kassab's Traditional Motion for Summary Judgment, addressing all three grounds (limitations, res judicata, attorney immunity)","Response brief filed in Phase 2 opposing Kassab's dispositive Traditional MSJ. Pohl argues Kassab's motion recycles the same arguments and limited evidence from the TCPA motion and interlocutory appeal, and was filed prior to responding to any discovery. Filed July 26, 2021, approximately 7 weeks after Kassab's MSJ.",MSJ-1,N/A,Phase 2,2021-07-26_RSP_Pohl-Response-to-Kassab-Traditional-MSJ_FILED.pdf,Deny Kassab's Traditional Motion for Summary Judgment in all respects,"7/26/2021 2:51 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 55701585
By: Deandra Mosley
Filed: 7/26/2021 2:51 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS LANCE
CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, PC’S
TRADITIONAL MOTION FOlR SUMMARY JUDGMENT
Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the Traditional Motion for Summary Judgment filed by Defendants Lance
Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively
“Kassab”). Kassab’s Traditional Motion for Summary Judgment (the “Motion”), which Kassab
filed prior to responding to any discovery, relies on the same arguments and (very limited)
evidence previously presented to this Court and the First Court of Appeals in Kassab’s motion
under the TCPA.c Kassab’s arguments were not persuasive then, nor is his recycled assertion of
them persuasive now.
I. FACTUAL BACKGROUND
Pohl is a lawyer who represented various persons and entities in claims arising from motor
vehicle accidents and the British Petroleum Deepwater Horizon oil spill.1 Pohl engaged Precision
1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 3, attached as Exhibit A.
Marketing Group, LLC (“Precision”) to provide public relations services, to gather and preserve
evidence, and to screen and liaise with Pohl’s clients and prospective clients.2 While working for
Pohl, Precision naturally gained access to Pohl’s confidential and proprietary information and
property, including trade secret materials.3 Scott Favre, individually and/or thkrough Scott M.
Favre PA, LLC (collectively “Favre”) is the managing member of Precision.4 Flavre took physical
copies of Pohl’s information, stole Pohl’s computers, and misappropriatecd electronic data.5
In November 2016, Kassab—a lawyer who specializes in suinsg other lawyers—purchased
Pohl’s stolen confidential information and property from Favsre (with the assistance of other
Defendants) for a whopping $250,000, plus bonuses,6 taking possession of at least some of the
information and property in December 2016.7 Kassab highly valued Pohl’s stolen and
misappropriated confidential information and property because, after purchasing it, he used it to
contact and solicit Pohl’s clients and prospectiave clients.8 Kassab’s actions constitute conversion,
violations of the uniform trade secrets act (“TUTSA”), and conspiracy.
Favre’s sale of Pohl’s stolen ceonfidential information and client communications to Kassab
violated the terms of a settlementf agreement. That confidential settlement agreement, executed in
late April or early May 2017y (the “Settlement Agreement”), resolved a lawsuit in federal court in
Mississippi, styled No.C 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., In
The United States District Court For The Southern District of Mississippi, Southern Division (the
2 Id. ¶ 4.
3 Id. ¶ 6.
4 Id.
5 Id. ¶¶ 6–8.
6 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A).
7 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A).
8 Kassab has admitted using Pohl’s client files (while erroneously claiming that they belonged to Precision Marketing)
to contact Pohl’s clients and former clients to solicit them to file claims against Pohl. See Declaration of Lance
Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
“Federal Court Case”).9 Favre is a party to the Settlement Agreement, but he was not a party to
the Federal Court Case.10 Precision is the only Defendant in this lawsuit that was also party to the
Federal Court Case.11
Pohl timely brought this lawsuit against Kassab and the other Defendantsk on August 28,
2018.12 l
II. ARGUMENT c
A. Pohl’s Claims are Not Barred by Limitations. s
Pohl’s claims against Kassab accrued no earlier than Nsovember 2016 because they arise
from Kassab’s November 2016 purchase—and subsequent use—of information and property
stolen from Pohl. As no claim has a limitations period of less than two years, and Pohl brought
this lawsuit in August 2018, Pohl’s claims are not barred. Even if this were not so, Kassab has
failed to carry his burden to show that the claimas against him accrued outside the limitations period.
1. The summary judgment standard for the affirmative defense of limitations.
Kassab bears the burden to aned must “conclusively prove when” each of Pohl’s causes of
action accrued and must also nefgate the discovery rule to be entitled to summary judgment on
limitations. See Regency Fiyeld Services, LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807,
818 (Tex. 2021) (“a deCfendant seeking summary judgment based on limitations must conclusively
establish that the limaitations period expired before the claimant filed suit”); see also Motion at 6
(acknowledgingf that Kassab bears this burden).
9 Pohl Declaration ¶¶ 10–11, attached as Exhibit A.
10 Id.
11 See id. ¶ 10; Federal Court Case Order, attached as Exhibit 4 to the Motion (showing parties in the caption). Pohl
made Precision a party to the Federal Court Case through a counterclaim. See generally Pohl’s Federal Counterclaim,
attached as Exhibit 2 to the Motion.
12 See generally Pohl’s Original Petition, filed August 28, 2018.
“Generally, a claim accrues when the defendant’s wrongful conduct causes the claimant to
suffer a legal injury, which gives the claimant the right to seek a judicial remedy.” Regency, 622
S.W.3d at 814 (emphasis added). Texas courts apply specific tests to determine the accrual of
certain claims, including the three claims at issue here. k
A claim for conversion generally accrues at the time of the defendant’sl “unlawful taking”
of the plaintiff’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tcex. App.—Houston [1st
Dist.] 2006, no pet.). When property is alleged to have been convesrted and then transferred to
another party, “each possession is a new conversion.” Pemex Esxploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (citation omitted)
(applying Texas law). There is a two-year limitations
period for conversion. See TEX. CIV. PRAC.
& REM. CODE § 16.003(a).
“A cause of action for trade-secret maisappropriation accrues when the trade secret is
actually used. Use of the trade secret means commercial use by which the offending party seeks
to profit from the use of the secret.”e Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699,
721–22 (Tex. 2016) (cleaned up)f. There is a three-year limitations period for TUTSA violations.
See TEX. CIV. PRAC. & REM y. CODE § 16.010(a). The civil conspiracy claim is derivative of the
underlying torts, and itC accrues “as to each alleged underlying tort when that tort occurs.” Agar
Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 145 (Tex. 2019).
2. Pohflf’s claims against Kassab accrued within two years of the initiation of this suit.
PoUhl brought suit on August 28, 2018 against Kassab and the other Defendants.13 Because
Pohl’s conversion claim accrued after August 28, 2016 and Pohl’s TUTSA claim accrued after
August 28, 2015, Kassab’s affirmative defense of limitations fails.
13 See generally Pohl’s Original Petition, filed August 28, 2018.
Pohl’s conversion claim arises from Kassab’s purchase and subsequent use of information
and property stolen from Pohl. See Amended Complaint ¶¶ 36–38.14 The undisputed evidence
shows that Kassab made this purchase through a contract dated November 10, 2016.15 Kassab
took possession of at least some of Pohl’s information and property in December 2k016.16
Pohl’s conversion claim against Kassab accrued when Kassab took polssession of Pohl’s
property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houcston [1st Dist.] 2006, no
pet.). It does not matter if there was a prior claim for conversion sagainst other individuals or
entities, as “each possession is a new conversion.” Pemex Exsploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (emphasis added).
Because the contract to purchase the property is dated in November 201617 and Kassab was still
acquiring possession of the stolen property in December 2016,18 Pohl’s claim against Kassab for
conversion accrued, no earlier than Decembera 1, 2016—well within the two-year period.
Pohl’s TUTSA claim against Kassab is based on overlapping conduct. Kassab’s knowing
purchase and subsequent use of stolene trade secrets violated TUTSA. See Amended Complaint ¶¶
39–42. Pohl’s TUTSA claim agfainst Kassab accrued upon Kassab’s use of Pohl’s stolen trade
secrets. See Sw. Energy Proyd. Co. v. Berry-Helfand, 491 S.W.3d 699, 721–22 (Tex. 2016).
For Kassab’s liCmitation defense to prevail, he must conclusively show that Pohl’s TUTSA
claim against him accrued prior to August 28, 2015. See TEX. CIV. PRAC. & REM. CODE §
16.010(a) (profvfiding a three-year limitations period). Pohl’s claims accrued no earlier than
NovembeUr 10, 2016, as that is the date of the contract through which Kassab purchased Pohl’s
14 See also November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance
Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
15 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
16 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
17 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
18 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
trade secrets.19 As Kassab was still acquiring possession of these materials in December 2016,20
his use of Pohl’s trade secrets—and the accrual of Pohl’s TUTSA claim—necessarily occurred
after November 10, 2016.
3. Kassab’s arguments and evidence about prior wrongdoing are irkrelevant to his
limitations defense. e
Kassab focuses on wrongful conduct by others—conduct that does not give rise to Pohl’s
claims in this lawsuit—to argue that limitations bars Pohl’s claims. See Mr iotion at 7–12. However,
in determining when claims against Kassab accrued, it is Kassab’Ds alleged wrongful conduct that
is relevant, not the conduct of others. Kassab’s participations in the sale and purchase of Pohl’s
information, through a contract dated in November 2016r, and Kassab’s subsequent use of that
information is the conduct that gives rise to Pohl’s claims. See Amended Petition ¶¶ 21–23, 26–
29, 33.21 l
Even if the wrongful conduct of oMthers (that did not give rise to Pohl’s claims) were
somehow relevant to Kassab’s limitaotions defense—and it is not—Kassab has not met his
summary judgment burden. Kasscab acknowledges that he bears the burden of negating the
discovery rule. See Motion at 6.22 To do so, Kassab must conclusively establish that Pohl “knew
or in the exercise of reasonable diligence should have known of the wrongful act and resulting
injury” more than three years prior to this lawsuit for his TUTSA claim and more than two years
prior for the convcersion claim. See Regency Field Services, LLC v. Swift Energy Operating, LLC,
622 S.W.3d 807, 817 (Tex. 2021).
19 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
20 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
21 See November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance Christopher
Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
22 See also Pohl’s November 2018 Declaration ¶ 9, attached as Exhibit A to the Amended Petition (providing notice
of the potential application of the discovery rule).
Kassab purports to negate the application of the discovery rule through Pohl’s testimony.
See Motion at 11. However, Kassab’s evidence does not establish what he says it does. The
testimony Kassab cites only shows that at an undefined point prior to Pohl’s May 15, 2018
deposition, Pohl had knowledge of some wrongful conduct by some individual or kindividuals that
occurred in 2014.23 Nothing in Pohl’s testimony establishes when Pohl gaineld knowledge about
the 2014 conduct discussed, nor does it address when Pohl knew of Kassacb’s wrongful conduct.24
And, even if the testimony contained evidence that Kassab wishes its contained, it at most would
create a fact issue regarding the accrual of Pohl’s claims. Pohls has affirmatively testified that he
was not aware of the claims in this case in the two-year period prior to the filing of this case.25
Limitations does not bar Pohl’s claims, and Kassab has not shown that he is entitled to judgment
as a matter of law.
B. Res Judicata Does Not Apply to Poahl’s Claims Against Kassab.
Kassab confuses and contorts the conduct at issue in this lawsuit to argue that Pohl’s claims
are barred by res judicata as a result oef the settlement and dismissal of the Federal Court Case. See
Motion at 12–16. Because Kassafb was not a party to the judgment in the Federal Court Case, he
tries to base his res judicatya defense on an unsupported allegation that he is in privity with
Precision—which wasC a party to the Federal Court Case. Id. at 13–14. Tellingly, Precision did
not move for summary judgment (or to dismiss) on the basis that res judicata bars the claims in
this lawsuit.26 f f
23 See Exhibit 3 to the Motion (discussing Pohl’s knowledge and contentions made in May 2018).
24 See generally id.
25 Pohl’s November 2018 Declaration ¶ 9, attached as Exhibit A to the Amended Petition; see also Pohl Declaration
¶ 9, attached as Exhibit A.
26 See generally Motion to Dismiss filed by Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing
Group, LLC on November 16, 2018.
Kassab is not entitled to summary judgment on his res judicata defense because he has not
provided evidence that conclusively establishes its three elements. “Res judicata requires: (1) a
prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties or
those in privity with them, and (3) a second action based on the same claims thakt were raised or
could have been raised in the first action.” Burchfield v. Prosperity Bank, 408l S.W.3d 542, 545–
46 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citation omitted). c
The second and third elements are at issue here. Kassab scannot establish the second
element, because he admits he was not a party to the prior judsg  ment and provides no evidence
that he is in privity with anyone who was a party to a prior judgment. Furthermore, Kassab’s
evidence does not establish the third element—that Pohl’s claims against Kassab are “the same
as” the claims settled in the other case or that they could have been brought in that case—as the
evidence shows that each of the two actions haas distinct factual bases and parties.
1. Kassab fails to conclusively establish he is in privity with any party to a final judgment.
Kassab is not entitled to summeary judgment because he provided no evidence that he is in
privity with any party to the judgmfent in the Federal Court Case, nor can he provide such evidence.
See Motion at 13. The couryt in the Federal Court Case dismissed all claims with prejudice after
the parties entered intoC the voluntary Settlement Agreement.27 Kassab was not a party to that
agreement or to thea Federal Court Case, and no party to the Federal Court Case represented his
interests in that faction.
TUexas has rejected categorical approaches to privity, and a court must examine the
particular circumstances of a case before it can determine if parties are in privity. See Burchfield,
408 S.W.3d at 546–47. To determine if a person is in privity with a party to a prior action, a court
27 See Federal Court Case Order, attached as Exhibit 4 to the Motion.
must determine if that person satisfies one of three tests: “(1) they can control an action even if
they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they
can be successors in interest, deriving their claims through a party to the prior action.” Burchfield,
408 S.W.3d at 546–47 (quoting Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653k (Tex. 1996)).
Kassab does not allege that any of these three tests are satisfied, let alonle provide evidence
to conclusively establish privity with a party to the Federal Court Case. Scee Motion at 13. Rather
than addressing the controlling Texas standard, Kassab asserts thats privity exists because Pohl
alleges in this lawsuit that Kassab conspired with Precision—asn entity which was a party to the
Federal Court Case. Motion at 13. Kassab provides no Texas authority to support this assertion,
instead, Kassab cites to three out-of-state cases, none of which apply Texas law. Id.28
While it is possible for co-conspirators to be in privity with each other, under Texas law,
allegations of conspiracy alone are not enougah—Kassab must show that one of the three tests for
privity is satisfied. See Rogers v. Walker, 13-12-00048-CV, 2013 WL 2298449, at *4 (Tex.
App.—Corpus Christi May 23, 2013,e pet. denied); New York Pizzeria, Inc. v. Syal, 53 F. Supp. 3d
962, 969 n.6 (S.D. Tex. 2014) (“Tfhis Court predicts that the Texas Supreme Court would not adopt
a rule that alleged coconspiryators are always in privity for the purposes of claim preclusion, but
would instead hold thaCt courts must consider whether the circumstances justify such a ruling.”).
Kassab does not allege or provide any evidence that he (1) had any control in relation to
the Federal Cofufrt Case; (2) that Precision, any other party, represented Kassab’s interests; or (3)
Kassab wUas a successor in interest to Precision or any other party.
28 Kassab relies on out-of-state cases which are distinct from the facts of this case. For example, he relies on RSM
Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 800 F. Supp. 2d 182 (D.D.C. 2011). See Motion at 13. The
court in RSM found co-conspirators to be in privity with each other after the plaintiff attempted to assert the “exact
same alleged corrupt conspiracy” with a new party after that conspiracy claim had been dealt with in a prior action.
See RSM, 800 F. Supp. 2d at 194. The conspiracy alleged in this lawsuit was not part of the Federal Court Case.
Kassab cannot provide evidence to establish control, because, “[i]n determining whether
privity exists through control over a prior action, Texas courts have focused on whether an
individual actively and openly participated in the prior proceedings to such an extent that it was
clear that the individual had the right to direct them.” McNeil Interests, Inc. v. Qkuisenberry, 407
S.W.3d 381, 389 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (quotation lomitted). There is
no evidence to establish that Kassab “openly participated”—or participatced at all—in the Federal
Court Case. s
Kassab also completely fails to prove that Precision reprsesented his interests in the Federal
Court Case. Kassab does not state that he had an interest in the Federal Court Case, let alone
identify that interest or provide evidence that Precision could have represented that interest. See
generally Motion; see also Rogers, 2013 WL 2298449, at *3 (refusing to affirm summary
judgment when movant “did not state that [maovant] had an interest in the probate action, identify
his interest, or state that [a party to the action] could have represented his interest”). The same is
true for the successor in interest test.e No allegations or evidence from Kassab even address this
test, let alone carry Kassab’s sumfmary judgment burden on the issue. See generally Motion.
2. The factual basesy of Pohl’s claims against Kassab are not the “same” as those asserted
in the Federal Court Case, nor could Pohl’s claims have been asserted in that action.
Kassab’s failure to provide evidence of privity prevents him from establishing res judicata.
However, even ifc he had provided evidence of privity, Kassab does not conclusively establish that
this lawsuit “arises out of the same subject matter as the” Federal Court Case and that it could have
been litigated there. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007).
To determine whether the Federal Court Action shares the same “subject matter” as this
lawsuit, the Court should look to “the factual matters that make up the gist of the complaint,
without regard to the form of action.” Id. (cleaned up). “This should be done pragmatically, giving
10
weight to such considerations as whether the facts are related in time, space, origin, or motivation,
whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to
the parties’ expectations or business understanding or usage.” Id. (cleaned up).
Kassab cites to two pieces of evidence to show “the factual basis of Pohl’sk claims or even
potential claims in the Federal Court Case.” Motion at 14. First, he citesl to Pohl’s Federal
Counterclaim filed in that action. See id. at 13–14 (citing to Pohl’s Federacl Counterclaim, attached
as Exhibit 2 to the Motion). Second, he cites a June 2018 affidavit sfrom Pohl. See id. at 14–15
(citing to Exhibit 1 to the Motion). Neither is sufficient to satsisfy Kassab’s summary judgment
burden.
First, contrary to what Kassab’s misleading citations indicate, the factual basis of Pohl’s
Federal Counterclaim does not overlap at all with the factual bases of this lawsuit. See generally
Pohl’s Federal Counterclaim, attached as Exhaibit 2 to the Motion. To disguise this fact, Kassab
impermissibly focuses on the “form of action,” noting that Pohl “alleged theft” in the
Counterclaim. See Motion at 14. Heowever, the factual basis for that claim in the Federal Court
Case focuses entirely on impropefr billing and charging of expenses by Precision, not the theft of
personal property at issue in ythis lawsuit. Compare Pohl’s Federal Counterclaim, at 2–5, attached
as Exhibit 2 to the MoCtion (discussing conversion of “funds”), with Amended Petition ¶¶ 20–26,
36–38 (discussing the conversion of Pohl’s “confidential information and property”).
Kassabf’fs citation to Pohl’s Federal Counterclaim does not show that the factual bases of
the two aUctions overlap or are the same; it instead demonstrates that the allegations before the
federal court were entirely separate from the allegations in this lawsuit. See Citizens Ins. Co. of
Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007) (discussing how courts look to the “gist of the
complaint”). Pohl’s claims do not arise out of the alleged fraudulent billing practices of entities
11
or individuals in the Federal Court Action. See generally Amended Petition. Pohl’s claims against
Kassab in this lawsuit arise out of the conversion and theft of personal property. See id.
Second, Kassab’s other piece of evidence is Pohl’s June 2018 affidavit filed in response to
a grievance complaint initiated by Kassab against Pohl. See Motion at 14–15 (citking to Exhibit 1
to the Motion). Kassab’s use of this affidavit is misleading because the affidlavit reflects Pohl’s
knowledge after the conclusion of the Federal Court Case. Nor does thce affidavit establish that
the basis of the two actions was the same. s
Kassab triumphantly notes that the affidavit alleges that sFavre (who was not a party to the
Federal Court Case) “appears [to have] eventually sold those items and the information therein to
[Kassab].” See Motion at 15 (quoting Exhibit 1 to the Motion) (alterations from Motion). This
allegation does not establish that Pohl could have brought his current claims in the Federal Court
Case. Pohl’s statement in June 2018—over aa year after the judgment in the Federal Court
Case—about what he believed occurred does not show that the conversion claim in this lawsuit
could have been brought years prior. e In fact, the testimony makes perfect sense, as Pohl filed this
lawsuit just months later, in Augufst 2018.29 Furthermore, even if Pohl did have this knowledge of
prior to the judgment in the Fyederal Court Case, that does not change the fact that the subject matter
of the Federal Court CaCse differs from the factual basis of this lawsuit. See Barr v. Resolution Tr.
Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (“A subsequent suit will be
barred if it arifs f es out of the same subject matter of a previous suit and which through the
exercise oUf diligence, could have been litigated in a prior suit.” (emphasis added)).
Kassab was not a party to the Federal Court Case, the Settlement Agreement or the
judgment. Ignoring the applicable Texas legal standard, Kassab simply asserts that he was in
29 See generally Pohl’s Original Petition, filed August 28, 2018.
12
privity with Precision. Assertions without evidence do not satisfy Kassab’s summary judgment
burden to establish each essential element of res judicata, and his argument fails. Kassab also fails
to demonstrate that the gist of the Federal Court Case overlaps with the present lawsuit, which is
also fatal to Kassab’s res judicata defense. Summary judgment is not available. k
C. The Attorney-Immunity Doctrine Does Not Apply. C l
Kassab contrives an argument that, as an attorney, he is immcune from liability for
converting the property of others and misappropriating trade secretss because after his wrongful
acquisition of property, he used that stolen information for the “sacquisition of clients and filing of
lawsuits.” See Motion at 20. Texas does not recognize any application of the attorney-immunity
doctrine outside of an attorney–client relationship, and Kassab’s wrongful conduct was not the
type of conduct an attorney uniquely engages in to discharge duties to a client. Kassab’s attorney-
immunity doctrine defense fails. a
The Texas Supreme Court has held that two inquiries are relevant to an attorney-immunity
defense: “the type of conduct at issuee and the existence of an attorney–client relationship at the
time.” Youngkin v. Hines, 546 Sf.W.3d 675, 683 (Tex. 2018). The claims against Kassab do not
fall within the attorney-immyunity doctrine because the conduct at issue does not qualify as “the
kind of conduct in whCich an attorney engages when discharging his duties to his client.” Canty
Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). Additionally, Kassab has not established
the existence offf an attorney–client relationship at the time of his wrongful conduct.
KUassab purchased the stolen information and then used it to solicit and advertise to Pohl’s
clients/prospective clients. See Motion at 18–19 (discussing what Kassab contends is the “basis
for Pohl’s lawsuit”). Kassab’s knowing purchase of stolen property prior to his representation of
a client is neither within the scope of his representation of a client nor is it an activity undertaken
13
in a “uniquely lawyerly capacity.” See Landry’s, 2021 WL 2021130, at *3. The use of the
information by Kassab to solicit and advertise to obtain clients is not within the scope of client
representation, because this conduct necessarily precedes the “meeting of the minds” between a
potential client and attorney necessary to form an attorney–client relationship. Seke Tanox, Inc. v.
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55 (Tex. Aplp.—Houston [14th
Dist.] 2003, pet. denied). c
Kassab’s reliance on the First Court of Appeal’s opinion (in wshich that court affirmed this
Court’s denial of his TCPA Motion) is misplaced. Kassab suggessts that the court’s conclusion that
his conduct “qualifies as statements or conduct that arose out of a commercial transaction
involving the type of legal services Kassab provides” demonstrates that his conduct is of the “kind”
that attorneys provide and is thus protected by the attorney-immunity doctrine. See Motion at 19–
20 (discussing Kassab v. Pohl, 612 S.W.3d 5a71, 578 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied)). Kassab’s argument conflates the appellate court’s discussion of the scope of a
commercial transaction with the scoepe of Kassab’s duties to a client. The fact that Kassab’s
conduct was part of a commerciafl transaction does not mean that it was both “within the scope of
client representation” and wyas “not foreign to the duties of a lawyer.” Youngkin, 546 S.W.3d at
682. C
Kassab also failed to establish or provide any evidence of “the existence of an attorney–
client relationsfhfip at the time” of his wrongful conduct. Youngkin, 546 S.W.3d at 683. Kassab
attempts Uto obfuscate his inability to provide evidence of this essential fact by discussing how the
attorney-immunity doctrine can apply “prior to any litigation.” See Motion at 19. While the
doctrine can apply prior to litigation, that is not relevant. Pohl asserts claims for conduct, not just
before litigation, but before Kassab had a single client with whom he could have the requisite
14
attorney–client relationship. See, e.g., Amended Petition ¶ 29 (discussing how Kassab used “the
stolen confidential information and property” to subsequentially solicit “clients/prospective clients
to act as plaintiffs”); see also Tanox, 105 S.W.3d at 254–55 (noting how attorney–client
relationship cannot be formed prior to a “meeting of the minds”). k
In sum, Kassab cannot show that his wrongful actions were “within lthe scope of client
representation” and were “not foreign to the duties of a lawyer.” Youngckin, 546 S.W.3d at 682.
In other words, Kassab is entitled to immunity only if he can establishs as a matter of law that when
he engaged in his alleged wrongful acts, he was acting nots only within the scope of client
representation, but that there was something “particular to ‘the office, professional training, skill,
and authority of an attorney’ about” his alleged wrongful conduct. See Landry’s, Inc. v. Animal
Legal Def. Fund, --- S.W.3d ---, 19-0036, 2021 WL 2021130, at *3, *8 (Tex. May 21, 2021)
(citation omitted). Kassab has not shown thisa. See Motion at 17–20.
Because Kassab did not provide evidence of the existence of an attorney–client relationship
at the time of his wrongful actiones and that those actions were within the scope of his
representation, his request for sufmmary judgment on the attorney-immunity doctrine must be
denied. The fact that his wryongful conduct of purchasing stolen information was not the type of
conduct undertaken in Ca “uniquely lawyerly capacity” only further supports this conclusion.
III. CONCLUSION
For thef fforegoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfuUlly request that Kassab’s Motion be in all respects denied.
15
Dated: July 26, 2021 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 26th day of July, 2021.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
16"
15,2018-12-26,RSP,Pohl,Pohl’s response to supp. TCPA motion,"Pohl's combined notice of mandatory stay, response in opposition to motion for leave to file late TCPA motion, and response in opposition to Favre/Precision's TCPA Motion to Dismiss","Filed December 26, 2018 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Filed after Kassab's TCPA motion was denied by operation of law and Kassab noticed an interlocutory appeal on December 18, 2018. Pohl argues a mandatory stay bars consideration of the Favre/Precision TCPA motion. This response addresses both the timeliness of the Favre/Precision motion (filed after the 60-day TCPA deadline) and the merits of the TCPA dismissal arguments.",TCPA-1,N/A,Phase 1,2018-12-26_RSP_Pohl-Response-to-Supp-MTD-TCPA_FILED.pdf,Deny the Motion for Leave to file late TCPA motion; deny the Motion to Dismiss as untimely and on the merits; deny attorney's fees,"12/26/2018 11:52 AM
Chris Daniel - District Clerk Harris County
Envelope No. 29957412
By: Deandra Mosley
Filed: 12/26/2018 11:52 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, § D
LLP d/b/a BAKER NICHOLSON LAW § s 
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL’S
NOTICE OF MANDATORY STAY OF ALL PROCEEDINGS, RESPONSE IN
OPPOSITION TO MOTION FOR LEAVEl TO FILE MOTION TO DISMISS, AND
RESPONSE IN OPPOSITION TO aDEFENDANTS’ MOTION TO DISMISS
Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl (collectively, “Pohl”) provide
this notice that all proceedings are staeyed, respond in opposition to the Motion for Leave to File a
Motion to Dismiss filed by Defenfdants Scott Favre (“Mr. Favre”), Scott M. Favre Public Adjuster,
LLC (“Favre”), and Precisioyn Marketing Group, LLC (“Precision”) (collectively, “Defendants”),
and respond in oppositCion to the Defendants’ Motion to Dismiss (the “Motion”).
In light of the filing of an interlocutory appeal, this case is currently subject to a mandatory
stay, precludinfgf the Court’s consideration of the Motion. In addition, the Motion was not timely
filed andU should be denied for that reason. Finally, the Motion purports to find its basis in the
Texas Citizens’ Participation Act, Texas Civil Practice and Remedies Code Section 27.001 et. seq.
(“TCPA”), but the TCPA does not apply to Pohl’s claims, and even if it did, the Motion would
fail.
THIS CASE IS SUBJECT TO A MANDATORY STAY OF ALL PROCEEDINGS
Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm (“Kassab”) moved to dismiss the claims against Kassab by a kmotion filed on
October 24, 2018. That motion was overruled by operation of law, and Kassabl noticed an appeal
of that denial on December 18, 2018. Kassab’s notice of appeal gave risce to a mandatory stay of
“all other proceedings in the trial court pending resolution of that asppeal.” TEX. CIV. PRAC. &
REM. CODE § 51.014(b). The stay applies to all of the “trial csourt’s proceedings, including all
discovery.” In re Roser, 14-16-00065-CV, 2016 WL 2605686, at *1 (Tex. App.—Houston [14th
Dist.] May 5, 2016, orig. proceeding). The stay precludes this Court’s consideration of the Motion.
See In re Texas Educ. Agency, 441 S.W.3d 747, 750 (Tex. App.—Austin 2014, orig. proceeding.)
(“Conducting hearings and signing the challenaged orders denying supersedeas was an abuse of the
district court’s discretion because it violated the automatic stay of ‘all other proceedings in the trial
court’ under section 51.014(b).”). Tehe mandatory stay of section 51.014(b) prevents the Court
from considering the Motion, or ftaking any other action, until the appeal is resolved. See In re
Bliss & Glennon, Inc., 1-13-y00320-CV, 2014 WL 50831, at *2 (Tex. App.—Houston [1st Dist.]
Jan. 7, 2014, orig. proCceeding) (finding abuse of discretion and granting mandamus relief after
trial court took action during a mandatory stay under section 51.014(b)).
So longf fas the appeal of the denial of Kassab’s TCPA motion to dismiss remains pending,
this CourUt must stay all proceedings, including a hearing on the Motion. Any action taken in
violation of the stay will be voidable. See Roccaforte v. Jefferson County, 341 S.W.3d 919, 923
(Tex. 2011) (noting that a trial court’s actions taken in violation of section 51.014(b) are “voidable,
not void”).
II.
THE COURT SHOULD DENY DEFENDANTS’ MOTION FOR LEAVE TO FILE
THEIR MOTION OUT OF TIME
The TCPA supplies a deadline for filing: “A motion to dismiss a legal action under this
section must be filed not later than the 60th day after the date of service of the leegal action.” TEX.
CIV. PRAC. & REM. CODE § 27.003(b). The 60-day period begins to run upon
service of the original
petition and is not reset by the filing of amended petitions. See Bachararch v. Garcia, 485 S.W.3d
600, 602 (Tex. App.—Houston [14th Dist.] 2016, no pet.). D
Defendants acknowledge in their Motion for Leave thast they filed their Motion to Dismiss
after the deadline had passed. See Motion for Leave at 1.r While a showing of good cause would
permit this Court to allow an out-of-time filing, Defendants failed to request an extension within
the requisite sixty-day period and have failed to lmake such a showing of good cause. TEX. CIV.
PRAC. & REM. CODE § 27.003(b) (“court mMay extend the time to file a motion under this section
on a showing of good cause.” (emphasis added)). The term “showing” indicates that “proof” is
involved and that good cause will be “establish[ed] through evidence and argument.” See Bryan
A. Garner, Black’s Law Dictionary (10th ed. 2014) (defining “showing”).
Defendants attempt but fail to make any showing of good cause. Defendants provide no
explanation for the failure to file timely and therefore no basis on which to rest a finding of good
cause. Instead, cDefendants ask the Court to find that the late filing could not have been
“intentional” because they “had nothing to gain by filing the Motion after the deadline.” See
Motion for Leave at 3. In fact, Defendants did gain something by filing late; because the Court
conducted the hearing on Kassab’s TCPA Motion to Dismiss on November 5, 2018, Defendants
were able to tailor their Motion in response to the Court’s reaction to Kassab’s Motion.
Additionally, even if Defendants did not “gain” anything by a late filing, this is not
evidence of an absence of intent; it is merely a suggestion of an absence of motive. Defendants
have not provided any support for their position that the delay was for good cause.
Defendants similarly have provided no support for their argument that thek late filing was
not the result of conscious indifference. They argue only that the Court shoulld find that counsel
was not consciously indifferent because the filing was only three days clate. See id. Favre had
sixty days within which to file his motion, and his co-defendant Kasssab filed and served a TCPA
motion to dismiss on the fortieth day of that period.1 Kassab’s fsiling would have alerted a careful
lawyer to the impending deadline for his own filing. Defendants’ failure to make a timely filing
after that reminder actually suggests conscious indifference. See Wheeler v. Green, 157 S.W.3d
439, 442 n.1 (Tex. 2005) (characterizing a lawyer’s failure to meet a deadline as an “elementary
mistake” that could warrant a conclusion of inatent or conscious indifference).
Given the absence of any evidence to support their claim for good cause, Defendants’
Motion for Leave should be denied. Peohl respectfully requests that the Court deny the Motion for
Leave and decline to hear the Moftion to Dismiss as untimely.
y III.
RESPCONSE IN OPPOSITION TO MOTION TO DISMISS
A. Background
Defendfafnts, with Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law
Firm’s (cUollectively “Nicholson”) assistance, illegally sold Pohl’s stolen property to defendant
Lance Kassab for $250,000. Through this purchase, Kassab obtained the stolen names, addresses,
and in some instances actual confidential client files of Pohl’s former and potential clients so that
1 Favre was served on September 14, and Kassab filed his motion to dismiss on October 24, 2018.
Kassab could solicit those clients to assert barratry claims. To vindicate his rights, Pohl filed suit
on August 28, 2018. Since the initiation of this case, Kassab and Nicholson have already sought
dismissal of the claims against them; now Defendants ask the Court to hold that their actions in
selling and actually providing the stolen materials are protected by the TCPA. k
In an attempt to contort the application of the TCPA and delay this lalwsuit, Defendants
assert that the TCPA applies to Pohl’s causes of action for conversion of cconfidential information,
misappropriation of trade secrets, and conspiracy without sustaining tsheir burden of demonstrating
why. Contrary to Defendants’ arguments, Pohl’s claims do not starget Defendants for the exercise
of any rights of free speech, petition, or association. Pohl brings claims to hold Defendants
responsible for their wrongful conversion of Pohl’s information and misappropriation of trade
secrets, together with their participation in a conspiracy to commit both torts. The claims on their
face do not implicate the TCPA, and the inquiary should end there.
Defendants have the burden of demonstrating the applicability of the TCPA by a
preponderance of the evidence. See LeFMC Enterprises, LLC v. Baker, 546 S.W. 3d 893, 897 (Tex.
App.—Houston [1st Dist.] 2018,f pet. denied). In spite of this requirement, Defendants offer no
evidence of any kind to suppyort their position that the legal action is based on, relates to or is in
response to DefendantsC’ exercise of any protected right. Instead, Defendants, relying entirely on
non-binding precedent, simply argue that the TCPA necessarily applies to any claim for theft of
trade secrets, cfofnversion, and conspiracy, without examining those claims as they are asserted in
this case.U
Even if Defendants had demonstrated by a preponderance of the evidence that the TCPA
applies, Defendants’ Motion would nevertheless fail. Pohl’s suit is exempt from the TCPA by
virtue of the commercial exception to that statute. See TEX. CIV. PRAC. & REM. CODE § 27.010(b).
The communications at issue with Defendants arose out of a transaction involving the types of
goods and services Precision provides. Precision was primarily engaged in the business of
providing goods and services related to marketing lists, including those for potential customers—
like the converted trade secret information at issue here. The intended audikence for those
communications was Kassab and Montague, who eventually purchased the stollen information. In
a similar fashion, through the combined ownership and control interests inc Precision, which places
them in charge of Precision’s business, Mr. Favre and Favre’s condusct also falls squarely into the
commercial speech exception. s 
Although it is clear that the TCPA does not apply to Pohl’s claims, Pohl fully sets forth his
prima facie case for each element of his causes of action. The pleadings and the affidavits Pohl
supplies can leave no question that he has satisfied the second prong of the TCPA analysis.
Defendants argue but fails to conclusively estaablish the affirmative defense of limitations, which
does not bar Pohl’s claims. 
B. Defendant’s Motion Shoulde Be Denied
The Texas Legislature enfacted the TCPA “to encourage and safeguard the constitutional
rights of persons to petition, sypeak freely, associate freely, and otherwise participate in government
to the maximum extenCt permitted by law and, at the same time, protect the rights of a person to
file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002
(emphasis addefdf). The TCPA is intended to identify and dispose of lawsuits that are “designed to
chill FirstU Amendment Rights, not to dismiss meritorious lawsuits.” In re Lipsky, 460 S.W.3d 579,
589 (Tex. 2015).
“Courts use a ‘two-step procedure to expedite the dismissal of claims brought to intimidate
or to silence a defendant’s exercise of these First Amendment rights.’” Wayne Dolcefino &
Dolcefino Communications, LLC v. Cypress Creek EMS, 540 S.W.3d 194, 198 (Tex. App.—
Houston [1st Dist.] 2017, no pet.) (quoting ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895,
898 (Tex. 2017)). The first step of the TCPA analysis requires that the movant establish by “a
preponderance of evidence that the suit he is seeking to dismiss ‘is based on, relkates to, or is in
response to the [movant’s] exercise of: (1) the right of free speech; (2) the righlt to petition; or (3)
the right of association.’” Id. (alterations in original) (quoting TEX. CIVc. PRAC. & REM. CODE §
27.003). s
If the movant sustains its burden of demonstrating by a psreponderance of the evidence that
the claims asserted in the petition fall within the ambit of the TCPA, and only then, the court turns
to the second step in the process. That step shifts the burden to the non-movant to provide by clear
and specific evidence a prima facie case supporting the elements of its claim. TEX. CIV. PRAC. &
REM. CODE § 27.005(c). In examining awhether a plaintiff has sustained its burden of
demonstrating a prima facie case, a court is obligated to consider “the pleadings and supporting
and opposing affidavits stating the facets on which the liability or defense is based.” Id. § 27.006(a).
A prima facie case is established wfhen the pleadings and evidence supply the “‘minimum quantum
of evidence necessary to suypport a rational inference that the allegation of fact is true.’” In re
Lipsky, 460 S.W.3d atC 590 (quoting In re E.I DuPont de Nemours & Co., 136 S.W.3d 218, 223
(Tex. 2004)).
As set ffofrth below, neither of the two prongs necessary to dismiss claims under the TCPA
are satisfiUed here, and Defendants’ Motion should be denied.
1. Pohl’s allegations on their face do not implicate the TCPA
To determine whether Defendants have proved to the Court by a preponderance of the
evidence that the TCPA applies to Pohl’s claims, the Court should start with the most recent
petition to determine the alleged conduct that forms the basis of the legal action. See Hersh v.
Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (the “basis of a legal action is not determined by the
defendant’s admissions or denials but by the plaintiff’s allegations”). Courts “do not blindly accept
attempts by the [defendants] to characterize [plaintiff’s] claims as implicakting protected
expression.” Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2l015, pet. dism’d).
Instead, courts should “favor[] the conclusion that [the plaintiff’s] claimcs are not predicated on
protected expression.” Id. Further, “any activities by the [defendsants] that are not a factual
predicate for [the plaintiff’s] claims are simply not pertinent to tshe inquiry.” Id.
A movant under the TCPA must establish “a connection between the claims in the lawsuit
and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. In conducting this
review, the Court must view the evidence “in the light most favorable to the nonmovant.” Id. at
199. The Court’s inquiry should focus on (1a) what conduct forms the factual bases for Pohl’s
claims, based on the pleadings and evidence viewed in the light most favorable to him, and (2) the
extent to which that conduct is, as ae matter of law, are protected expression within the TCPA’s
definition. Sloat, 513 S.W.3d at f504.
Examining each of Pyohl’s claims against Defendants makes clear that they are not subject
to the TCPA. As PohlC’s First Amended Petition makes clear, Defendants engaged in conversion
through the act and a participation in Precision’s sale of stolen information to Kassab.2 Defendants’
liability for thisf f wrongful conduct is not based on facts related to the exercise of the rights of free
speech, pUetition, or association. Instead, their liability is based on their conduct of facilitating the
sale and the actual selling of the stolen materials.
2 See Amended Petition at ¶¶ 21–23.
Similarly, Pohl’s TUTSA claim is based on Defendants’ conduct in misappropriating trade
secrets through their sale to Kassab. For the same reasons as above, the factual basis of liability
for this claim does not trigger protections under the TCPA.
Pohl’s conspiracy claim involves Defendants’ overt acts in selling and Pohkl’s trade secrets
and other proprietary information.3 Yet again, nothing in the factual basis of lialbility provided for
this claim is based on or targets Defendants for the exercise of their rightsc of free speech, petition,
or association. s
Pohl has also asserted a claim for breach of contract agsainst Defendants. See Amended
Petition ¶ 35. Defendants have failed to seek the dismissal of the breach of contract claim in their
Motion. See generally Motion (containing no reference or discussion of the breach of contract
claim). Accordingly, Pohl’s breach of contract claim cannot be dismissed.
For all four of Pohl’s claims against aDefendants, the theory of liability is predicated on
wrongful acts, not protected speech or conduct. Pohl brought this lawsuit to vindicate his rights,
and not in response to or based upone any TCPA protected conduct. The pleadings and evidence
the Court must use to determine fif the TCPA applies make this clear. The Texas Supreme Court
has held that the petition is thye “best and all-sufficient evidence of the nature of the action.” Hersh
v. Tatum, 526 S.W.3d C462, 467 (Tex. 2017) (quoting Stockyards Nat. Bank v. Maples, 95 S.W.2d
1300, 1302 (Tex. Comm’n App. 1936)), and Pohl’s Amended Petition establishes that the nature
of the action dof fes not implicate the TCPA.
2.U Defendants have not sustained their burden of demonstrating the applicability
of the TCPA to Pohl’s claims.
As the movants, Defendants have the burden to show by a preponderance of the evidence
that Pohl’s claims are “based on, relate[] to, or [are] in response to [the Defendants’] exercise of”
3 See Amended Petition ¶ 43. See id. ¶ 38.
some protected speech or act. TEX. CIV. PRAC. & REM. CODE § 27.005(b). As set forth above,
Pohl’s claims on their face do not support Defendants’ invocation of the TCPA, and Defendants
are required to show a “connection between the claims in the lawsuit and the alleged protected
conduct.” Wayne Dolcefino, 540 S.W.3d at 201. Also, the Defendants must demoknstrate that the
protected conduct on which the Defendants rely is connected to the “facts on wlhich the liability or
defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a). c
Defendants filed no evidentiary support for their Motion. Aslthough five exhibits were
attached to Favre’s Motion, those exhibits are not verified, and thse Court should decline to consider
them. Defendants have failed to establish by a preponderance of the evidence that Pohl’s claims
are based on any act or communication protected under the TCPA. Instead, Defendants make
sweeping generalizations about the case law and rely on recharacterizations of the allegations in
Pohl’s Amended Petition. Courts have explicaitly rejected this very tactic, holding that defendants
cannot rely on their own theories of what may have motivated a claim or what its underlying basis
might be in order to support a motione to dismiss under the TCPA. See Sloat, 513 S.W.3d at 504
(rejecting the defendant’s effort tfo “recast [the Plaintiff’s] petition as complaining principally” of
actions of protest instead of ythe actions on which the petition was based). Although Defendants
make conclusory asserCtions that Pohl’s claims are “based on” or are “in response to” their alleged
protected conduct, the Court may not “blindly accept” those characterizations of Pohl’s
allegations. Infsftead, the Court must keep in mind that there needs to “be a connection between the
claims inU the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201.
a. No Showing Was Made that the Right of Association is Implicated by Pohl’s Claims
Defendants make unsupported assertions that Pohl’s trade secret and conspiracy claims
implicate their right of association. See Motion at 4–6. Instead of carrying their burden to show
10
that Pohl’s specific claims implicate their right of association, Defendants’ argument confuses
necessary and sufficient conditions; they mistakenly believe that because the TCPA can apply to
a trade secrets claim that it must apply to theirs. That simply does not follow. Even with the heavy
reliance on non-binding authority to argue for their expansive view of the TCPAk’s applicability,
Defendants are still unable to support this conclusion. l
The Motion cites the same two cases (both non-binding) discussicng the application of the
TCPA to cases involving trade secrets as were discussed in the Nichoslson Motion. See Motion at
4–5; Nicholson Motion at 4–5. Although it is certainly possibles for the TCPA to apply to a trade
secrets case, Defendants fail to provide any support for the notion that in every case, the mere
assertion of a trade secrets claim necessarily implicates the TCPA. To suggest that it does leads
to the absurd conclusion that instead of modifying trade secrets procedure directly, the Texas
Legislature decided to modify the administraation of all trade secrets cases through a statute that
does not even reference or deal with trade secrets.
The Motion does not provide eany evidence or even a quote from the Petition to argue that
Pohl’s trade secrets claims are anfalogous to those at issue in the cases cited. Instead, Defendants
rely on generic assertions thayt the TCPA must apply in this case as well. Defendants are required
to provide more to sCustain their burden of demonstrating the statute’s applicability by a
preponderance of the evidence.
Similarflfy, the Motion fails to carry its burden to show that the TCPA applies to Pohl’s
claim of cUonspiracy. Ignoring the fact that Defendants rely heavily on non-binding authority, there
is yet again a failure by the Defendants to carry their burden. Other than a single citation to the
Original Petition (which merely confirms that a civil conspiracy claim was made), no evidence is
provided to the Court at all—let alone evidence sufficient to support the application of the TCPA
11
to this claim. Defendants yet again relies on the mere existence of a conspiracy claim to trigger
the application of the TCPA. No legal authority is provided to support this idea. And again, it
would lead to ridiculous results for this Court to hold that Defendants can take advantage of the
TCPA merely by pointing out that a conspiracy claim was made, without also esktablishing by a
preponderance of the evidence that the factual basis of the claim implicates thel TCPA.
b. No Showing Was Made that the Right to Free Speech is Implicatecd by Pohl’s Claims
The Motion’s arguments related to free speech focus not on sPohl’s claims, but rather on
the Defendants’ conduct subsequent to engaging in the wrongfusl acts that form the basis of Pohl’s
claims. The problem with this approach should be immediately apparent to this Court. To allow
this to trigger the TCPA would allow Defendants to manufacture TCPA applicability. Defendants
could engage in wrongful conduct and then simply undertake activities afterwards that involve
speech or association to ensure that the TCPAa applies to claims brought against them. This cannot
be the way the TCPA works, and it is not the way it works.
In this case, the Defendanets are not being sued for bringing barratry claims or
communicating about alleged attforney misconduct. Defendants are being sued for selling stolen
trade secrets. This is not a ysituation where a plaintiff is suing defendants regarding defamation
related to their commuCnications and complaints about barratry. Defendants’ conduct subsequent
to their sale of the stolen trade secrets is not the basis of their liability. Defendants cannot carry
their burden tof fshow that Pohl’s claims implicate their free speech rights. Nothing in the four
paragraphUs of Pohl’s Original Petition cited by the Motion show that Pohl’s claims are based on
communications by Defendants that implicate their right to free speech. See Motion at 7–8 (citing
paragraphs 19–23 of Pohl’s Original Petition).
12
It should not be surprising that Defendants’ Motion does not discuss Pohl’s actual claims
in its arguments—to do so would illustrate that they are not based on Defendants exercising any
free speech rights. Defendants’ wholesale failure to support by a preponderance of the evidence
their position that the TCPA applies is fatal to the Motion. The Court should denyk the Motion on
that basis alone. l
3. Even if the TCPA otherwise applies, the commerciacl exception precludes
dismissal here. r
Even if Defendants had sustained their initial burden to showD the applicability of the TCPA,
the commercial exception to its application applies to Pohl’s cslaims. The TCPA provides:
This chapter does not apply to a legal action brorught against a person primarily
engaged in the business of selling or leasing goods or services, if the statement or
conduct arises out of the sale or lease of goods, services, or an insurance product,
insurance services, or a commercial transaction in which the intended audience is
an actual or potential buyer or customer. l
TEX. CIV. PRAC. & REM. CODE § 27.010(bM). The Texas Supreme Court has interpreted this as
requiring the following four-part test:
(1) the defendant was primarily engaged in the business of selling or leasing goods
[or services], (2) the defefndant made the statement or engaged in the conduct on
which the claim is based in the defendant’s capacity as a seller or lessor of those
goods or services, (3y) the statement or conduct at issue arose out of a commercial
transaction involving the kind of goods or services the defendant provides, and (4)
the intended aCudience of the statement or conduct were actual or potential
customers of the defendant for the kind of goods or services the defendant provides.
Castleman v. Intecrnet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018).
It is notable that the Motion does not even attempt to claim that the commercial speech
exception to the TCPA does not apply to Precision. See Motion at 9–12. The allegations against
Precision are precisely the situation that the commercial speech exception was made for: (1) As a
marketing firm, Precision is primarily engaged in the business of providing goods and services
related to marketing lists, including those for potential customers—like the converted trade secret
13
information at issue here; (2) Precisions’ conversion and sale of Pohl’s trade secrets was done in
its capacity as a seller of its marketing goods and services; (3) the conversion and sale of Pohl’s
trade secrets was a commercial transaction involving the marketing goods and services Precision
provides; and (4) Precision’s intended audience for that conduct was its actual cukstomer, Kassab
as the purchaser of the converted trade secrets. All four elements of Castlemanl are clearly met.
In a similar fashion, through the combined ownership and controlc of Precision, Mr. Favre
and Favre’s conduct also fall squarely into the commercial speech esxception. See Castleman v.
Internet Money Ltd., 546 S.W.3d 684, 689 (Tex. 2018) (discusssing how the “capacity” of the
person is relevant to whether the person was primarily engaged in selling goods or services). The
basis of Mr. Favre and Favre’s liability in this case stems from their actions taken in their capacity
as owners and managers of Precision.
The Motion attempts to shift away froma the commercial speech exception by distinguishing
between other activities undertaken by Mr. Favre and Favre (such as public adjusting) and the
marketing activities of Precision. Seee Motion at 10–12. However, Castleman makes clear that it
is possible to for both Mr. Favref and Favre to have multiple capacities, including ones that are
primarily engaged in selling ygoods or services.
4. There iCs clear and specific evidence demonstrating a prima facie case.
Defendants’ failure to demonstrate the applicability of the TCPA relieves Pohl of any
burden of demfofnstrating a prima facie case of his claims. Furthermore, Pohl has established the
applicabiUlity of the commercial exception to the TCPA, which likewise obviates the need to show
a prima facie case. Pohl nevertheless sets forth below the clear and specific evidence found in his
14
Amended Petition and the attached affidavits for each element of the claims he has asserted against
Defendants.4
In examining whether a plaintiff has sustained its burden of demonstrating a prima facie
case, the Court is obligated to consider “the pleadings and supporting and oppkosing affidavits
stating the facts on which the liability or defense is based.” TEX. CIV. PRCAlC. & REM. CODE §
27.006(a). Where a plaintiff provides enough detail in his pleading to “schow the factual basis for
its claim,” such a pleading “is sufficient to resist a TCPA motion tos dismiss.” In re Lipsky, 460
S.W.3d 579, 591 (Tex. 2015). A prima facie case is establisheds when the pleadings and evidence
supply the “‘minimum quantum of evidence necessary to support a rational inference that the
allegation of fact is true.’” Id. at 590 (quoting from In re E.I DuPont de Nemours & Co., 136
S.W.3d 218, 223 (Tex. 2004)).
The nonmovant’s evidence of a primaa facie case must be “clear and specific” in order to
avoid dismissal, id. § 27.005(c), although the statute does not define “clear and specific.” The
Texas Supreme Court, in Lipsky, refeerenced “clear” as meaning “‘unambiguous,’ ‘sure,’ or ‘free
from doubt,’” and “specific” as “f‘explicit’ or ‘relating to a particular named thing.’” Lipsky, 460
S.W.3d at 590; see also S &y S Emergency Training Sols., Inc. v. Elliott, ---S.W.3d---, 17-0628,
2018 WL 6711322, at C*3 (Tex. Dec. 21, 2018). The Court has also held that “direct evidence of
damages is not required, but the evidence must be sufficient to allow a rational inference that some
damages naturaf flly flowed from the defendant’s conduct. See Lipsky, 460 S.W.3d. at 591, 592.
InU his Amended Petition, Pohl asserts four causes of action against Defendants: (1) breach
of contract; (2) conversion; (3) violations of the Texas Uniform Trade Secrets Act, Texas Civil
Practices and Remedies Code Chapter 134A (“TUTSA”); and (4) conspiracy to commit conversion
4 In support of this Response, Pohl has attached two sworn documents, the affidavit of Billy Shepherd, Exhibit A, and
the declaration of Michael Pohl, Exhibit B.
15
and to violate TUTSA. Pohl sets forth in detail below the clear and specific evidence
demonstrating a prima facie case of each of these claims.
Because Defendants have not moved to dismiss Pohl’s breach of contract claim, Pohl is
not required to provide a prima facie case of that claim. Pohl can nevertheless ekstablish such a
prima facie case by demonstrating the existence of the Settlement Agreement land release, Pohl’s
performance under that agreement, Defendants’ failure to perform under thcat Agreement by selling
Pohl’s confidential materials to Kassab; and Pohl’s damages resultisng from that sale. See, e.g.,
Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636s (Tex. App.—Houston [1st Dist.]
2002, pet. denied) (setting forth elements of a breach of contract claim).
The elements of the conversion claim are that (a) Pohl owned and owns certain property
and information; and (b) Defendants wrongfully exercised dominion and control over Pohl’s
property in contravention of Pohl’s rights aby participating in the sale of the property and
information to Kassab for $250,000. The elements of a violation of TUTSA against Defendants
are that Defendants, without Pohl’s econsent knowingly participated in the sale of Pohl’s trade
secrets to Kassab for $250,000. f Finally, the conspiracy claim alleges that Defendants acted in
combination with other defyendants and committed overt acts toward unlawful conversion and
misappropriation. C
Pohl’s pleading—the First Amended Petition—sets forth in abundant detail each element
of each cause foff action. Pohl alleges that he hired defendant Precision Marketing Group, LLC
(“PrecisioUn”) to assist him in gathering and preserving evidence and liaise with Pohl’s clients.5
Precision thereby gained access to Pohl’s confidential and proprietary information relating to his
client’s identity and their detailed contact information.6 The information and property also included
5 Amended Petition ¶¶ 19–20.
6 Id. ¶ 20.
16
actual attorney-client fee agreements with clients/prospective clients, compilations of clients, other
confidential communications between the clients/prospective clients and Pohl, specialized legal forms
that had been prepared in compliance with various state laws after consultation with local counsel in
those jurisdictions, Pohl’s proprietary administrative client forms, fee-agreement fokrms prepared in
accordance with the laws of various states, internal emails, propriety marketing inlformation and other
trade secrets, and other work product relating claims of Pohl’s clients cand prospective clients.7
Despite Defendants’ claims to the contrary, these materials belonged tos Pohl, not Precision.
After a dispute arose between Pohl and Defendants concesrning the Defendants’ provision of
services, Pohl, Precision and Mr. Favre entered into a binding Settlement Agreement dated late April
and early May 2017.8 The Settlement Agreement expressly provides that Mr. Favre and Precision
will return to Pohl all originals and all copies of documents in their and their counsel’s possession,
custody, or control that concern or identify all apast or current clients or prospective clients of Pohl,
and that Mr. Favre and Precision will delete all such electronically stored information.9 The
Settlement Agreement also providede that Mr. Favre and Precision would not cause any claim,
complain, or legal action to be filefd f or made against Pohl.10 Defendants breached each aspect of the
Settlement Agreement by failying to return or delete the materials as promised and by causing claims,
complaints and legal acCtions—not their own—to be filed and prosecuted against Pohl.11 The very
existence of the cases that Kassab, Montague, and Nicholson are pursuing against Pohl is a breach of
the Settlement Af fgreement.12
7 Id.
8 Id. ¶¶ 30, 31.
9 Id. ¶ 31.
10 Id. ¶ 32.
11 Id. ¶ 32.
12 Id. ¶ 32.
17
Defendants, with the assistance of Nicholson who helped broker the transaction and
actually provided Pohl’s stolen information and property to Kassab, secretly entered into an
agreement with Kassab and defendants F. Douglas Montague III and Montague Pittman &
Varnado, P.A. (collectively, “Montague”) to sell Pohl’s stolen confidential inkformation and
property.13 Defendants, with the assistance of Nicholson, struck a rich balrgain; Kassab and
Montague paid Favre $250,000.00 in cash together with substantial bonuses.c14 Kassab and Montague
knew that the information and property that they were purchasing was sstolen and not Favre’s and/or
Nicholson’s to sell.15 Defendants and Nicholson likewise knews that the information and property
that they were selling or helping to sell was stolen and belonged to Pohl.16
The sale and unlawful disclosure of Pohl’s proprietary, confidential and trade secret
information was made even more egregious by the fact that from the outset of the relationship between
Pohl and Precision, Pohl made clear to Precisioan and its representatives the confidential nature of the
above listed information.17 Precision and its representatives expressed their understanding of the
confidential and proprietary nature of ethe information and that the information belonged to Pohl.18
In addition, as described afbove and in conjunction with the sale of Pohl’s information and
property to Kassab and Montaygue, all Defendants converted Pohl’s confidential information/property
by knowingly and uCnlawfully assuming and exercising dominion and control over that
information/property in a way that was inconsistent with Pohl’s ownership. Each of the Defendants,
individually andf f in combination with each other, misappropriated Pohl’s trade secrets in violation of
the TUTUSA by unlawfully obtaining and using Pohl’s confidential and trade secret
13 Id. ¶ 22–23.
14 Id. ¶ 23 & Exhibit B.
15 Id.
16 Id.
17 Id.¶ 25.
18 Id.
18
information/property in the sale of such information/property to Kassab and Montague and continuing
to use Pohl’s information and property to solicit cases against Pohl.19
These specific, detailed allegations of each element of breach of contract, conversion, theft
of trade secrets, and conspiracy are by themselves sufficient to set forth a prima fackie case meeting
the requirements of the TCPA. TEX. CIV. PRAC. & REM. CODE § 27.005(a); se
e allso Hicks v. Group
& Pension Administrators, Inc., 473 S.W.3d 518, 526 (Tex. App.—Corpucs Christi 2015, no pet.).
Although Pohl’s Amended Petition establishes a prima facie csase without the necessity for
further inquiry, Pohl provides additional evidence to supposrt his prima facie case against
Nicholson in the form of the attached affidavit of Billy Shepherd and the exhibits thereto, as well
as the declaration of Michael Pohl.
As quoted above, Kassab supplied an affidavit in which he admitted that he obtained from
Defendants and Nicholson information that iancluded the names and addresses of Pohl’s former
clients and prospective clients.20 
The admissions of both Kasesab and Nicholson make clear that it is not disputed that
Montague and Kassab bought inffo f rmation relating to Pohl’s client lists from Defendants.21 Most
elements of Pohl’s prima faycie case are therefore uncontroverted. The only controverted fact
involves ownership of Cthe materials, as Defendants claim that the materials belong to them, while
Pohl contends that the materials were his. This disputed fact is one as to which Pohl has provided
prima facie profoff.22
TUhe attached affidavits provide prima facie evidence of the following facts. Favre, the
Kassab Law Firm and Montague, Pittman and Varnado, P.A., represented by Nicholson, entered
19 Id. ¶ 33.
20 See page 2 of the Declaration of Lance Christopher Kassab.
21 Id.
22 Amended Petition ¶ 20; Declaration of Michael Pohl ¶¶ 4–6, attached as Exhibit B hereto.
19
into an Agreement, dated November 10, 2016, executed by Lance Kassab (the “Favre–Kassab
Agreement”).23 The Favre–Kassab Agreement contains many relevant provisions, including:
• That Kassab and Montague will pay Favre an hourly rate of $250, a large per-case fee,
and an “upfront advance pay retainer to Favre forin [sic] the amount of k$250,000 to be
credited against first fees earned by Favre. This retainer is fully eCarlned at the time of
payment and is not refundable. Subsequent hourly fees are not toc be credited against the
retainer.”24 s
• That Kassab and Montague “shall indemnify and hold hsarmless Favre for from [sic] any
and all costs he incurs in defending claims relatingg to an/or arising from the disclosure of
any client information where such claims areB asserted by . . . Michael Pohl. . . . Favre
certifies that he is not aware of any contractual or legal provision that prohibits him from
making such disclosure to [Kassab anad Montague].”25
• That the parties “agree that this Af greement is confidential and shall remain confidential
for all times.”26 e
On its face, the Favre–Kassab Afgreement proves that Kassab agreed to pay Favre an enormous
upfront payment of $250,000, together with substantial sums over time. The amount of the
payment alone is primaC facie evidence that Defendants knew that the confidential information and
material they were selling was not publicly known and that it belonged to Pohl.
The Favfre–Kassab Agreement also obligates Kassab to indemnify Favre from claims that
Pohl migUht bring—making clear that Nicholson and Favre contemplated that Pohl might assert
23 A copy of the Favre–Kassab Agreement is attached as Exhibit 3 to the Shepherd Affidavit, attached hereto as Exhibit
A, and also to the Amended Petition as Exhibit D.
24 See Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit, Exhibit A hereto, Exhibit D to the Amended
Petition, p. 1.
25 Id. p. 3.
26 Id.
20
such claims at the time he executed the agreement. What possible reason could there be for
Nicholson to require Kassab to indemnify if Defendants owned the materials and information that
was the subject of the Favre–Kassab Agreement? Why would indemnity be necessary if the
information and materials were publicly known? Again, these facts support Pohkl’s prima facie
case of misappropriation. l
Similarly, the requirement in the Favre–Kassab Agreement thcat the parties keep the
agreement confidential suggests that the parties understood that disclsosure of the existence of the
agreement and its terms might raise substantial issues. If thes materials and information were
publicly known and belonged to Defendants, what was the necessity for confidentiality? Each of
these facts supports Pohl’s allegation that the materials and information were trade secrets and that
Kassab knew that the confidential information and material he purchased from Favre was stolen.
Mr. Favre’s testimony regarding the paarties’ performance of the Favre–Kassab Agreement
provides additional support for Pohl’s contentions. In a hearing conducted on October 25, 2017
in Cause No. 1:14-cv-381-KS-JCG, Secott Walker, et al. v. Jimmy Williamson, et al., in the United
States District Court for the Sofuthern District of Mississippi, Southern Division (“Walker v.
Williamson Litigation”),27 Myr. Favre confirmed that Kassab, Montague or their firms had in fact
paid the $250,000 to FCavre.28 Mr. Favre testified that he did not sell attorney/client fee contracts
to Kassab and Mon a tague but instead gave them away to Nicholson.29 Mr. Favre acknowledged
that an email, fdfated December 7, 2016 and sent from Montague to Kassab and others, reflected
that Mr. FUavre had called to check that Kassab’s office had been receiving Dropbox deliveries of
27 A copy of the relevant portions of the October 25, 2017 hearing transcript in the Walker v. Williamson Litigation is
attached hereto and to the Amended Petition as Exhibit 2 to the Shepherd Affidavit.
28 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 63.
29 Id. at 92–93.
21
contracts over the last several days.30 Mr. Favre testified that between the time he received the
payment of $250,000 and April 2017, he had received no fees, provided no work and exchanged
no documents under the Favre–Kassab Agreement.31
Nicholson’s testimony contradicts Mr. Favre’s testimony in at least onke enlightening
way.32 Nicholson testified that Mr. Favre did not give her the Pohl fee conltracts; instead, she
believes he gave them to “one of her co-counsel in the Texas cases agcainst Mr. Pohl.”33 Mr.
Favre’s and Nicholson’s testimony and the emails about which they tsestify further support Pohl’s
prima facie case of intentional misappropriation, conversion sand conspiracy. The emails and
testimony confirm that Scott M. Favre, P.A. was in fact paid $250,000, and that Kassab and
Montague understood that they were to receive Dropbox deliveries of contracts. The large amount
of the payment to Favre, in advance of the delivery of contracts to the Dropbox and the absence of
any further work by Favre, supports a strong ainference that the payment was in fact in exchange
for the contracts and not for any future services. Mr. Favre’s testimony that he had given the
attorney/client fee contracts to Nichoelson and Nicholson’s disavowal of that testimony strongly
suggests that each witness hopesf to distance him or herself from the ultimate transfer to Kassab.
This contradiction supports Pyohl’s allegation that all parties to the Favre–Kassab Agreement knew
that the files and informCation being transferred had been converted or misappropriated.
As lawyers, Nicholson, Kassab, and Montague knew that the materials that were being
bought and soflfd included confidential information protected by the attorney–client privilege,
30 Id. at 95; see also email dated December 7, 2016, attached as Exhibit C to the Amended Petition.
31 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 121–27.
32 See Deposition of Tina Nicholson, dated November 27, 2017, attached as exhibit 5 to the Shepherd Affidavit at
65:11–66:10.
33 Id. at 66:7–9.
22
including actual attorney–client fee agreements.34 Mr. Favre has confirmed under oath that he
maintained the materials as confidential and protected them as valuable trade secrets.35
In sum, Pohl’s prima facie evidence in the form of both pleadings and affidavits
demonstrates each element of each of Pohl’s causes of action as set forth below: k
BREACH OF CONTRACT l
• Favre, Precision and Pohl entered into a binding agreemenct.36
• Pohl timely and fully performed that agreement.37 s
• Favre and Precision breached that agreement.38 s
• Pohl suffered damages.39 g
CONVERSION B
• The information and materials Deyfendants sold to Kassab was personal property
subject to conversion.40 a
• Pohl owned the informatiofn and materials Defendants sold.41
• Defendants wrongfully exercised dominion and control over the property.42
• Pohl has incurOred actual damages caused by Defendants’ conversion by at a
minimum hpis loss of the intrinsic value of the materials.43
34 Amended Petition ¶ 20.
35 See Affidavit off f Scott Favre, filed in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et
al., in the United States District Court for the Southern District of Mississippi, Southern Division, and attached as
Exhibit 7 to the Affidavit of Billy Shepherd.
36 Amended Petition ¶¶ 30, 31.
37 Amended Petition ¶ 35.
38 Amended Petition ¶¶ 32, 35.
39 Amended Petition ¶ 32, 35.
40 Amended Petition ¶¶ 20–21, 27; Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit; Email, Exhibit 4 to
the Shepherd Affidavit.
41 Amended Petition ¶¶ 20–21, 27, 38; Declaration of Michael Pohl ¶¶ 4–5.
42 Amended Petition ¶¶ 20, 21, 27; Declaration of Michael Pohl¶¶ 4–8.
43 Amended Petition ¶ 38; Favre Kassab Agreement, Exhibit 3 to Shepherd Affidavit (demonstrating that Kassab
placed a value on the materials of at least $250,000); Affidavit of Michael Pohl ¶¶ 5–7, 10, 12.
23
MISAPPROPRIATION OF TRADE SECRETS
• Pohl owned trade secrets.44
• Pohl maintained that information as a secret, taking substantial measures to
maintain its confidentiality.45 k
• The information has independent economic value from not beCin l g generally known
to, and not readily being ascertainable through proper mceans by, another person
who can obtain economic value from the disclosure or s use of the information.46
• Defendants misappropriated the trade secrets bsy participating in their sale with
knowledge that they had been acquired throgugh improper means—i.e., by theft.47
• The misappropriation damaged Pohl iBn the form of both actual loss and unjust
enrichment.48 y
• Defendants’ misappropriation a was willful and malicious.49
CONSPIRACY f
• Defendants were members of a combination of two or more persons.50
• The agreed objeOct of the combination was to accomplish the unlawful purposes of
conversion pand misappropriation of trade secrets.51
• Defendants and the other conspirators committed tortious overt acts to further the
objeict of the conspiracy.52
44 Amended Petition ¶¶ 20–21, 39; Declaration of Michael Pohl ¶¶ 4–5.
45 Amended Petition ¶ 39; Declaration of Michael Pohl ¶ 11.
46 Amended Petition ¶ 39; Declaration of Michael Pohl ¶ 12.
47 Amended Petition ¶¶ 40–41; Declaration of Michael Pohl ¶ 7.
48 Declaration of Michael Pohl ¶ 13.
49 Amended Petition ¶ 41; Declaration of Michael Pohl ¶¶ 5–8.
50 Amended Petition ¶¶ 33, 43.
51 Id. ¶ 43.
52 Id. ¶¶ 23, 27, 38, 43.
24
• Pohl suffered injury as a result.53
Pohl denies that Defendants have demonstrated by a preponderance of the evidence that
Pohl has asserted a legal action based on related to or in response to Defendants’ exercise of rights
to free speech, petition, or association. To the extent that the Court disagrees, Pokhl has provided
clear and specific evidence to support his petition, and the Court should denyC Dlefendants’ Motion.
5. Defendants cannot conclusively establish the defense ocf limitations.
Defendants argue that, even though Pohl may be able to establish a prima facie case, they
are still entitled to dismissal because they can establish by a prseponderance of the evidence each
essential element of the affirmative defense of limitations. This defense is not available, and
Defendants have not established it—let alone by a preponderance of the evidence.
The parties entered the Settlement Agreement in April and May 2017. Limitations for
breach of contract is four years. TEX. CIV. PaRAC. & REM. CODE § 16.051; Stine v. Stewart, 80
S.W.3d 586, 592 (Tex. 2002). The breach of contract claim is not time-barred.
As to the remainder of the claiems against Defendants, Kassab purchased the stolen material
from the Defendants by virtue of tfhe Favre–Kassab Agreement, which was executed on November
10, 2016, well under two yeayrs prior to the filing of this suit. Pohl’s claims against Defendants are
based on that purchase,C and no claim has a limitations period of less than two years. See TEX. CIV.
PRAC. & REM. CODE § 16.003(a) (two-year limitation period for conversion); TEX. CIV. PRAC. &
REM. CODE § 1f6.010(a) (three-year limitation period for TUTSA violations); Mayes v. Stewart,
316 S.W.U3d 715, 719 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Defendants contend that limitations bars this action because they engaged in wrongful
conduct more than four years ago. See Motion at 13–15. But, the Amended Petition makes clear
53 Amended Petition ¶ 43; Declaration of Michael Pohl ¶ 14.
25
that the wrongful conduct to which they refer is not the basis of this lawsuit. Furthermore, Pohl
was not aware of the claims in this case in the two year period prior to the filing of this case.
Declaration of Michael Pohl ¶ 9. Defendant has not established the defense of limitations and their
Motion to dismiss cannot be granted on that ground. k
C. Defendants Are Not Entitled to Attorney’s Fees l
Defendants are not entitled to an award of attorneys’ fees becausec their Motion should be
overruled. Furthermore, Defendants fail entirely to support their cslaim for fees. Defendants’
Motion mentions attorney’s fees precisely once. In the final ssentence, Defendants requests an
award of fees. Defendants provides no argument, and more to the point no evidentiary support for
an award of attorneys’ fees. Without an affidavit or other evidence proving the expenditure of fees
and the amount, the Court should decline to award fees in any amount. See Sullivan v. Abraham,
488 S.W.3d 294, 299–300 (Tex. 2016) (movaant has the burden of proof on fees, “‘includ[ing], at
a minimum, documentation of the services performed, who performed them and at what hourly
rate, when they were performed, ande how much time the work required.’” (citation omitted)). In
the absence of such proof, the Cofurt is not empowered to award fees.
y CONCLUSION
For the foregoiCng reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the Motion be in all respects denied.
26
Dated: December 26, 2018 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorneys for PlaintiDffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 26th day of December, 2018.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
27"
14,2018-11-30,AP,Pohl,Pohl’s 1st Amended Petition,"Pohl's First Amended Petition asserting four causes of action (breach of contract, conversion, TUTSA violations, civil conspiracy) against all defendants","Filed November 30, 2018 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Amended pleading filed approximately three months after the original petition (August 28, 2018). Filed during the pendency of Kassab's TCPA motion to dismiss. Adds detail to factual allegations and refines causes of action. This is the operative petition in Phase 1. Jury trial demanded.",PLEAD-1,N/A,Phase 1,2018-11-30_AP_Pohl-1st-Amended-Petition_FILED.pdf,Judgment against all defendants; actual damages within jurisdictional limits; injunctive relief under § 134A.003; exemplary damages under §§ 41.001 et seq. and 134A.004(b); attorney's fees under §§ 38.001 et seq. and 134A.005; pre-judgment and post-judgment interest; trial by jury,"11/30/2018 9:45 PM
Chris Daniel - District Clerk Harris County
Envelope No. 29415016
By: ARIONNE MCNEAL
Filed: 11/30/2018 9:45 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS MICHAEL POHL AND LAW OyFFICE OF MICHAEL A. POHL, PLLC’S
FIRST AMENDiED PETITION
fSUMMARY
1. Plaintiffs Michael Pcohl and Law Office of Michael A. Pohl, PLLC (sometimes
collectively “Pohl”) sue DefendOants Scott Favre and Scott M. Favre PA, LLC (collectively “Favre”);
Precision Marketing Groupp, LLC (“Precision”); Lance Christopher Kassab and Lance Christopher
Kassab, P.C. D/B/A The Kassab Law Firm (collectively “Kassab”); Tina Nicholson and Baker
Nicholson, LLP Di/B/A Baker Nicholson Law Firm (collectively “Nicholson”); and F. Douglas
Montague III oand Montague Pittman & Varnado, P.A. (collectively “Montague”). Favre, Precision,
Kassab, Nicholson, and Montague are collectively called “Defendants.”
2. Defendants engaged in a scheme pursuant to which they illegally obtained,
maintained, and used trade secrets and other confidential information and property belonging to
Pohl. Favre and Precision’s actions are in breach of a settlement agreement to which Pohl, Favre,
and Precision are parties, and all Defendants’ actions constitute the torts of conversion and
violations of the uniform trade secrets act, as well as conspiracy.
3. More specifically, Favre and Precision executed a settlement agreement with Pohl
pursuant to which they agreed to return to Pohl certain information in their andk their counsel’s
possession, custody, or control; to permanently delete such electronically-storeld information; and
not to cause any claim to be made or filed against Pohl. Favre and Precicsion also warranted that
they had not caused any suit or action to be filed against Pohl. Psohl fully complied with his
obligations under the agreement. Favre and Precision breachsed and continue to breach their
obligations under the agreement by causing claims to be made or filed against Pohl.
4. Defendants knowingly and illegally obtained and/or used confidential information
and property that belongs to Pohl, and exercised dominion and control over the information and
property in a manner inconsistent with Pohla’s rights of ownership—each of which constitutes
actionable conversion. 
5. The actions of each ofe the Defendants relative to the confidential information and
property that they obtained, mafintained, and used constitute misappropriation and violate the
Texas Uniform Trade Secretys Act. Tex. Civ. Prac. & Rem Code, § 134A.001, et seq. (“TUTSA”).
6. DefendaCnts entered into a combination with the object of unlawfully
misappropriating Pohl’s trade secrets and, in so doing, they engaged in one or more unlawful overt
acts, includinf fg stealing Pohl’s confidential information/property and using the
informatiUon/property for their own gain. Pohl has suffered damages as a proximate result of
Defendants’ conduct.
7. Pohl brings this action to recover damages and other relief for Defendants’ breach of
contract, conversion, violations of TUTSA, and conspiracy. Pohl seeks monetary relief in an amount
-2-
over $1,000,000.00. All conditions precedent to Pohl maintaining this action and recovering from
Defendants have been performed or have occurred.
DEFENDANTS
8. Scott Favre is a nonresident individual who is a licensed public adjuskter in Texas and
who engages in business in Texas. He does not maintain a regular place of busliness in Texas or a
designated agent for service of process in Texas. Mr. Favre may be servced with citation and this
petition: (a) at his office address at 7044 Stennis Airport Road, Kiln, Misssissippi 39556; or (b) through
the Texas Secretary of State under Texas Civil Practice and Remsedies Code Sections 17.044(a)(1)
and (b).
9. Scott M. Favre PA, LLC is a nonresident limited liability company that engages in
business in Texas. It does not maintain a regular place of business in Texas or a designated agent for
service of process in Texas. Scott M. Favre PAa, may be served with citation and this petition: (a) by
serving Scott Favre, the person in charge of Scott M. Favre PA, LLC’s business, at the address of the
business, 7044 Stennis Airport Road, eKiln, Mississippi 39556; or (b) through the Texas Secretary of
State under Texas Civil Practice anfd Remedies Code Sections 17.044(a)(1) or (b).
10. Precision is a ynonresident limited liability company that engages in business in Texas.
It does not maintain a rCegular place of business in Texas or a designated agent for service of process
in Texas. Precision may be served with citation and this petition: (a) by serving Scott Favre, the
person in chargfef of Precision’s business, at 7044 Stennis Airport Road, Kiln, Mississippi 39556; or
(b) througUh the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections
17.044(a)(1) or (b).
-3-
11. Lance Christopher Kassab is an individual and resident of Texas. He is an attorney
who specializes in legal malpractice claims. He may be served with citation and this petition: (a)
at 1214 Elgin Street, Houston, Texas 77004; or (b) at 5314 Navarro Street, Houston, Texas 77056.
12. Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm is a Tekxas professional
corporation. It may be served with citation and this petition by serving its regilstered agent, Lance
Christopher Kassab: (a) at 1214 Elgin Street, Houston, Texas 77004; or (bc) at 5314 Navarro Street,
Houston, Texas 77056. s
13. Tina Nicholson is an individual and a resident ofs Texas. She is an attorney. Tina
Nicholson may be served with citation and this petition: (a) at 4306 Yoakum Blvd., Suite 400,
Houston, Texas 77006; or (b) at 1607 Dove Ridge Drive, Katy, Texas 77493.
14. Baker Nicholson, LLP D/B/A Baker Nicholson Law Firm is a Texas limited liability
partnership. It may be served with citation and athis petition: (a) by serving its partner, Allison Baker,
at 4306 Yoakum Blvd., Suite 400, Houston, Texas 77006; or (b) by serving its partner, Tina
Nicholson, at 4306 Yoakum Blvd., Sueite 400, Houston, Texas 77006.
15. F. Douglas Montagfue III is a nonresident individual who engages in business in Texas.
He does not maintain a regulayr place of business in Texas or a designated agent for service of process
in Texas. Mr. MontaguCe may be served with citation and this petition: (a) at his office address at 525
Main Street, Hattiesburg, Mississippi 39401; or (b) through the Texas Secretary of State under Texas
Civil Practice afnfd Remedies Code Sections 17.044(a)(1) or (b).
16U. Montague Pittman & Varnado, P.A. is a non-resident professional association that
engages in business in Texas. It does not maintain a regular place of business in Texas or a designated
agent for service of process in Texas. Montague Pittman & Varnado, P.A. may be served with citation
and this petition: (a) by serving F. Douglas Montague III, its registered agent for services of process
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and the person in charge of its business, at 525 Main Street, Hattiesburg, Mississippi 39401; or (b)
through the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections
17.044(a) (1) or (b).
JURISDICTION/VENUE k
17. The damages that Pohl seeks in this case are within the jurisdicltional limits of this
Court. The Court has jurisdiction over Defendants because they have cthe necessary minimum
contacts with Texas, which include engaging in business in Texas, comsmitting torts in Texas and, as
to some of them, residing in Texas. Further, Favre and Precission contracted with Pohl, a Texas
resident at the time, for Pohl to perform the contract at issue in whole or in part in Texas. This case
arises out of business done in Texas by Defendants.
18. Venue is proper in Harris County under Texas Civil Practice and Remedies Code
Sections 15.002 and 15.062. a
BACKGROUND
19. Pohl is a lawyer who reepresented various persons and entities in claims arising from
motor vehicle accidents and the Bfritish Petroleum Deepwater Horizon oil spill. (See the attached
Declaration of Michael Pohl, yExhibit A, ¶ 3). Scott Favre, individually and/or through Scott M. Favre
PA, LLC, is the managiCng member of Precision, a public relations and marketing firm. Nicholson is
a lawyer who represented Favre and Precision, including for purposes of the settlement agreement
mentioned abovf fe as well as in facilitating the sale of Pohl’s confidential and proprietary information
and propeUrty to Kassab and Montague. At the time the settlement agreement was entered into and
still today, Nicholson was also Kassab and Montague’s co-counsel in connection with claims that
they are prosecuting against Pohl.
-5-
20. Pohl engaged Precision for a period of time to provide public relations services, to
gather and preserve evidence, and to screen and liaise with Pohl’s clients/prospective clients. While
working for Pohl, Precision gained access to Pohl’s confidential and proprietary information and
property, including trade secret materials, that included the identities of Pohl’s clikents/prospective
clients, as well as their detailed contact information. The information and prolperty also included
actual attorney–client fee agreements with clients/prospective clients, comcpilations of clients, other
confidential communications between the clients/prospective clients ands Pohl, specialized legal forms
that had been prepared in compliance with various state laws aftesr consultation with local counsel in
those jurisdictions, Pohl’s proprietary administrative client forms, fee-agreement forms prepared in
accordance with the laws of various states, internal emails, propriety marketing information and other
trade secrets, and other work product relating to claims of Pohl’s clients and prospective clients.
Despite Favre and Precision’s claims to the conatrary, these materials belonged to Pohl, not Precision.
Favre and Nicholson also ultimately gained access to the information.
21. Favre and Precision iellegally misappropriated Pohl’s proprietary and confidential
information and property describedf above, which included information about and/or communications
with as many as 10,000 or ymore of Pohl’s clients/prospective clients. Favre and Precision stole
physical copies of certaCin of the information, stole Pohl’s computers, and misappropriated electronic
data to which they had access through Precision’s work for Pohl. Favre, with Nicholson or with
Nicholson’s acftfive and knowing and intentional assistance, then secretly sold Pohl’s stolen
confidentUial information and property to Kassab and Montague.
22. As Kassab himself indicated in a sworn affidavit: “Favre and his counsel, Tina
Nicholson (‘Nicholson’), provided me with information from Precision Marketing’s files, including
the names and addresses of Pohl’s former clients or prospective clients.” This information, which
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included compilations of former, current and prospective clients—as well as actual engagement
agreements—did not belong to Precision, however. As with any law firm, information such as
compilations of former, current and prospective clients, belong to the law firm itself. Thus,
Nicholson’s active, knowing and intentional assistance included brokering the illegakl sale of Pohl’s
information and property as well as actually providing such information and proplerty to Kassab.
23. Favre and Precision, with the assistance of Nicholson, strucck a rich bargain; Kassab
and Montague paid Favre $250,000.00 in cash together with substsantial bonuses. Kassab and
Montague knew that the information and property that they were psurchasing was stolen and not Favre
and/or Nicholson’s to sell. (A true and correct copy of the agreement to sell Pohl’s information is
attached hereto as Exhibit B). Favre, Precision, and Nicholson likewise knew that the information
and property that they were selling or helping to sell was stolen and belonged to Pohl.
24. Like Favre and Precision, Nichoalson was also motivated to participate in and facilitate
the illegal transaction with Kassab and Montague described above in furtherance of her own business.
As a direct result of the transaction aned Nicholson’s role in the transaction, Kassab and Nicholson
have apparently successfully solicfited clients for whom Nicholson is now co-counsel with Kassab.
Nicholson is a lawyer primaryily in the business of obtaining legal work and providing legal services.
Nicholson obtains legaCl work either through directly obtaining clients or entering into co-counsel
relationships with other counsel. Her participation in the illegal transaction described above and the
conduct for whfifch she is being sued was done for the purpose of and resulted in her obtaining a co-
counsel reUlationship with Kassab and thereby gaining the opportunity to provide legal services.
25. The theft, sale and unlawful disclosure of Pohl’s proprietary, confidential and trade
secret information was made even more egregious by the fact that from the outset of the relationship
between Pohl and Precision, Pohl made clear to Precision and its representatives the confidential
-7-
nature of the above listed information. Precision and its representatives expressed their understanding
of the confidential and proprietary nature of the information and that the information belonged to
Pohl.
26. Kassab is a lawyer who specializes in suing other lawyers and who, ukpon information
and belief, has worked with Montague in this connection in the past. Kassab sawl the value of Pohl’s
stolen and misappropriated confidential information and property because ict provided him the ability
to contact and solicit Pohl’s clients/prospective clients. As noted prevsiously, included in the stolen
information purchased by Kassab and Montague were actual engsagement agreements between Pohl
and his clients. (Attached as Exhibit C hereto is an email between Montague and Kassab and copying
Nicholson dated December 7, 2016 reflecting the transfer of actual engagement agreements to
Kassab).
27. Kassab and Montague had to knaow that the information and property they purchased
for a non-refundable $250,000.00 along with promises of future payments was stolen. Nicholson
likewise had to know that the informaetion and property that she assisted in selling was stolen. Any
attorney, and especially an attornefy specializing in legal malpractice, would know not to purchase or
sell another law firm’s engagyement agreements, client compilations and other materials from a third-
party. C
28. The fact that Kassab, Montague and Nicholson all knew that the information and
property involvfefd in the sale was stolen is further evidenced by terms of the purchase agreement itself.
That agreUement obligates Kassab and Montague to indemnify Favre from claims that Pohl might
bring—making clear that everyone understood that Pohl might assert a claim. Indemnity would be
unnecessary if Favre owned the materials or if they were publicly known.
-8-
29. Using the stolen confidential information and property that he knowingly purchased,
Kassab solicited those clients/prospective clients to act as plaintiffs and, joined by Nicholson and
Montague, to bring cases against Pohl for alleged barratry and other claims.
30. The actions of Favre and Precision, in addition to being tortious andk in violation of
Texas law, were in direct violation and breach of the settlement agreement, lwhich is a binding
contract. More specifically, a dispute arose resulting in a lawsuit in federal ccourt in Mississippi, styled
No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson,s et al., In The United States
District Court For The Southern District of Mississippi, Soutshern Division. That lawsuit was
resolved pursuant to a Confidential Settlement Agreement, executed in late April/early May 2017 (the
“Settlement Agreement”). Nicholson represented Favre and Precision in connection with the
Settlement Agreement, including its execution, while at the same time serving as co-counsel with
Kassab and Montague for the claims now beinga asserted against Pohl.
31. The Settlement Agreement was executed by Favre, as managing member of Precision
and on behalf of Scott M. Favre PA, LLeC, and by Pohl. The Settlement Agreement expressly provides
that Favre and Precision will returnf to Pohl all originals and all copies of documents in their and their
counsel’s possession, custodyy, or control that concern and/or identify all past or current clients and/or
prospective clients of PCohl, and that Favre and Precision will delete all such electronically-stored
information. At the time, Nicholson was not only Favre and Precision’s agent and counsel in
connection witfhf the Settlement Agreement; she was also Kassab and Montague’s co-counsel in
connectioUn with the claims now being made against Pohl in various cases.
32. The Settlement Agreement also provided that Favre and Precision would not cause
any claim, complaint, or legal action to be filed or made against Pohl. Favre and Precision further
warranted and represented that they had not caused any suit or action to be filed against Pohl. Favre
-9-
and Precision breached these provisions of the Settlement Agreement by, inter alia, causing claims,
complaints, and legal actions—not their own—to be filed and/or prosecuted against Pohl. The very
existence of the cases that Kassab, Montague, and/or Nicholson are prosecuting against Pohl is a
breach of the Settlement Agreement. k
33. In addition, as described above and in conjunction with the sale ofl Pohl’s information
and property to Kassab and Montague, all Defendants convertced Pohl’s confidential
information/property by knowingly and unlawfully assuming and exesrcising dominion and control
over that information/property in a way that was inconsistent wisth Pohl’s ownership. Each of the
Defendants, individually and in combination with each other, misappropriated Pohl’s trade secrets in
violation of the TUTSA by unlawfully obtaining and using Pohl’s confidential and trade secret
information/property in the sale of such information/property to Kassab and Montague and continuing
to use Pohl’s information and property to soliciat cases against Pohl.
34. Paragraphs 1 through 7 and 19 through 33 are incorporated into all following
paragraphs of this petition. In additione, attached hereto as Exhibit D is the affidavit of Billy Shepherd
and certain information confirminfg and further explaining the claims asserted herein.
y CAUSES OF ACTION
CounCt One: Breach of Contract (Against Favre and Precision)
35. Favre and Precision are bound by the terms of the Settlement Agreement. Pohl timely
and fully perfofrmed the Settlement Agreement. Favre and Precision breached the Settlement
AgreemenUt by assisting and continuing to assist in the manufacture and prosecution of claims against
Pohl. Their breaches include causing claims to be made against Pohl; causing complaints and legal
actions to be filed against Pohl; and Favre’s assisting Kassab and his co-counsel, Montague and
-10-
Nicholson, in pursuing claims, complaints, and actions against Pohl. Favre and Precision’s breaches
resulted in damages to Pohl.
Count Two: Conversion (Against All Defendants)
36. In selling Pohl’s proprietary and confidential information, Favre,k Precision, and
Nicholson have wrongfully assumed and exercised dominion and control ovCer Pohl’s property in
contravention of Pohl’s rights as owner of that property. c
37. In knowingly purchasing the stolen information, Kassab and Montague have
wrongfully exercised dominion and control over Pohl’s property sin contravention of Pohl’s rights as
owner of that property. g
38. In knowingly maintaining and using the Bstolen information and property since the sale
of said information and property to Kassab and Moyntague, all Defendants have wrongfully exercised
dominion and control over Pohl’s property in coantravention of Pohl’s rights as owner of that property.
Pohl owned and owns the information/prof perty, and Favre and Precision (with Nicholson or with
Nicholson’s active and knowing and intentional assistance as described above) disclosed the
information/property and sold it fto Kassab and Montague. Kassab and Montague knowingly
purchased the stolen information/property. Pohl has been damaged thereby in an amount in excess
of $250,000 which is thCe price that Kassab and Montague paid for Pohl’s information and property.
Count Three: Violation of TUTSA (Against All Defendants)
39. Pfohl maintained information regarding his clients/prospective clients and their contact
information and related data including compilations of former, current and prospective clients, as well
as other information concerning his practice of law, as confidential trade secret information. Pohl
took substantial measures to maintain the confidentiality of that information and obtained assurances
from Precision that Precision would maintain the confidentiality of Pohl’s information. That
information has independent economic value from not being generally known to, and not readily
-11-
being ascertainable through proper means by, another person who can obtain economic value from
the disclosure or use of the information. The value of the information exceeds $250,000, which is the
price Kassab and Montague paid to obtain Pohl’s information.
40. Favre, Precision, and Nicholson willfully and maliciously misapprkopriated Pohl’s
trade secrets by acquiring them through improper means—specifically, by theft. l See Tex. Civ. Prac.
& Rem. Code § 134A.002(2), (3)(A). c
41. Favre, Precision, and Nicholson willfully and maliciosusly misappropriated Pohl’s
trade secrets by disclosing them via sale to Kassab and Montaguse (who purchased the trade secret
information knowing that it had been stolen) without the express or complied consent of Pohl. See
Tex. Civ. Prac. & Rem. Code § 134A.002(3)(B).
42. All Defendants willfully and maliciously misappropriated Pohl’s trade secrets by
using them without the express or implied coansent of Pohl. See Tex. Civ. Prac. & Rem. Code §
134A.002(3)(B). 
Count Four: Civeil Conspiracy (Against All Defendants)
43. Acting in combination with the agreed object of misappropriating Pohl’s trade secrets
and converting Pohl’s property, each of the Defendants committed overt acts toward the unlawful
misappropriation of Pohl’s trade secrets, which were unlawful and which proximately caused
damages to Pohl. c
DAMAGES
44. Pohl seeks actual damages within the jurisdictional limits of this Court.
45. Pohl seeks injunctive relief pursuant to Texas Civil Practice and Remedies Code
Section 134A.003.
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46. Pohl seeks exemplary damages pursuant to Texas Civil Practice and Remedies Code
Sections 41.001, et seq, and 134A.004(b).
47. Pohl seeks attorney’s fees pursuant to Texas Civil Practice and Remedies Code
Sections 38.001, et seq, and 134A.005. k
48. Pohl seeks pre-judgment and post-judgment interest. l
TRIAL BY JURY c
49. Pohl requests trial by jury and has submitted the appropsriate jury fee.
CONCLUSION s
50. Pohl requests that judgment be entered in Pohl’s favor and against Defendants on the
counts and as requested above, and for such other and further or alternative relief (legal and equitable)
to which Pohl may be entitled.
Dated: November 30, 2018 M
Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
y Jean C. Frizzell
State Bar No. 07484650
 1100 Louisiana St., Suite 3500
Houston, Texas 77002
c Tel. 713.485.7200
f f Fax 713.485.7250
jfrizzell@reynoldsfrizzell.com
Attorneys for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2018.
/s/ Jean C. Frizzell k
Jean C. Frizzell e
-14-"
12,2018-11-07,OA,Kassab,3rd Amended Answer,"Kassab's Third Amended Answer, Affirmative Defenses, Counterclaim, and Designation of Responsible Third Parties","Filed November 7, 2018 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. The day after the Second Amended Answer. Third amended responsive pleading, further expanding counterclaims from 235 to 242 assigned barratry claimants. Adds additional detail to the Designation of Responsible Third Parties section regarding Shepherd's knowledge of Favre's document transfers to third parties prior to the Federal Litigation settlement.",PLEAD-1,N/A,Phase 1,2018-11-07_OA_Kassab-3rd-Amended-Answer-CC_FILED.pdf,"Plaintiffs take nothing; Kassab recovers on counterclaims and against third-party defendants including actual and consequential damages, statutory damages, pre- and post-judgment interest, attorneys' fees and costs, and all other just relief","11/7/2018 4:22 PM
Chris Daniel - District Clerk Harris County
Envelope No. 28873961
By: ARIONNE MCNEAL
Filed: 11/7/2018 4:22 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIrAL DISTRICT
DEFENDANTS, LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER
KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S THIRD AMENDED
ANSWER, AFFIRMATIVE DEFENSES AND COUNtTERCLAIM,
AND DESIGNATION OF RESPONSIBLE THIRD PARTIES
TO THE HONORABLE JUDGE OF SAID COURT: s
COMES NOW, Defendants, Lance Christopher Kgassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm and files this thBeir Third Amended Answer, Affirmative
Defenses, and Counterclaim, and Designation of Ryesponsible Third Parties, and would respectfully
show the Court as follows; a
RULfE 47 STATEMENT
The Kassab Defendants, in teheir capacity as Counter-Plaintiffs, seek monetary relief of
more than $1,000,000.00. f
y PARTIES
Plaintiff, Michael A. Pohl is an individual lawyer residing in Colorado.
Plaintiff, Laawl Offices of Michael A. Pohl is a law firm set up for the practice of law in
various states of ithe union, including Texas.
Defnendant, Scott Favre is a nonresident individual residing in Mississippi.
Defendant, Scott M. Favre, PA, LLC is a nonresident limited liability company located in
Mississippi.
Defendant, Precision Marketing Group, LLC is a nonresident limited liability company
located in Mississippi.
Defendant, F. Douglas Montague III is a nonresident individual residing in Mississippi.
Defendant, Montague, Pittman & Varnado, PA is a nonresident professional association
located in Mississippi.
Defendant, Tina Nicholson is an individual residing in Texas. k
Defendant, Baker Nicholson, LLP, d/b/a Baker Nicholson Law Firm ils a limited liability
partnership located in Texas. c
Defendant, Counter-Plaintiff, Lance Christopher Kassab is an sindividual residing in Texas.
Defendant, Counter-Plaintiff, Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm
is a professional corporation located in Texas.
JURISDICTION AND VENUE
This matter is within the jurisdictional lnimits of this Court and Plaintiffs, Counter-
Defendants, Michael A. Pohl and Law Officers of Michael A. Pohl (“Pohl”) and Defendants,
Counter-Plaintiffs, Lance Christopher Kassab (“LCK”) and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law Firm (“Kassab, P.C.”) (collectively “Kassab”) are subject to the Court’s
jurisdiction. Venue is proper in thifs county because one or more of the defendants are residents of
this county and because a substantial part of the acts and/or omissions that form the basis of this
suit occurred in this county.
a l GENERAL DENIAL
Defendant, Counter-Plaintiff Kassab generally denies all allegations made by Plaintiffs,
Counter-Denfendants, Michael A. Pohl and Law Offices of Michael A. Pohl, and requests the Court
to require Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl to
carry their burden of proof regarding all allegations against Kassab.
AFFIRMATIVE DEFENSES
Defendant, Counter-Plaintiff Kassab pleads the following affirmative defenses:
1. Statute of limitations
2. Justification.
3. Estoppel.
4. Waiver. t
5. Ratification. t
6. Release. 
7. Unclean hands. e
8. Contribution. u
9. Failure to mitigate damages. n
10. Lack of standing. r
11. Accord and Satisfaction.
12. Assumption of the Risk. 
13. Illegality/Criminal Actfs
14. First Amendment. 
15. Attorney Imm
unity.
16. In Pari Daellicto.
17. Res juidicata.
SPECIFIC DENIALS
Defendants, Counter-Plaintiffs specifically deny that all conditions precedent regarding
Plaintiffs claims of conversion and theft of trade secrets have been performed or occurred prior to
Plaintiffs filing suit against Kassab.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
LCK is a lawyer practicing law with Kassab, P.C., a law firm in Houston, Texas focusing
solely on plaintiffs’ legal malpractice. Kassab filed four lawsuits on behalf of over four hundred
clients against Pohl (the “Harris County Lawsuits”). The main allegations against Pohl is civil
barratry and conspiracy to commit barratry, a third-degree felony in Texas. Pohl conspired with
his wife, Donalda Pohl (“Dona”), his paralegal, Edgar Jaimes (“Jaimes”t), and three runners in
Mississippi to illegally solicit clients on behalf of Pohl. Dona owns at sham lending company in
Texas called Helping Hands Financing, LLC (“HH Texas”). Jaimes runs the day-to-day operations
of HH Texas. The three runners are Scott Walker (“Walkere”), Steve Seymour (“Seymour”) and
Kirk Ladner (“Ladner”). The three runners own and ouperate two other sham companies called
Helping Hands Group, LLC and Helping Hands Finnancial, LLC (collectively “HH Mississippi”).
The three runners also owned Precision Markerting Group, LLC (“Precision”) which they sold to
Scott Favre and/or his companies (collectively “Favre”).
With regard to the clients obtained in the BP Litigation, Walker, Seymour and Ladner hired
other runners to literally go up anfd down streets knocking on doors to solicit clients on behalf of
Pohl for lawsuits against British Petroleum. Precision paid these runners as much as $300-$400
for every client they obtained. Pohl then paid Precision as much as $1,500 for every client
Precision referred tao lPohl. Pohl also offered and agreed to pay Walker, Seymour and Ladner a
percentage of hisi legal fees once the cases settled. This percentage was disguised as an hourly rate
of $1,500.00 per hour.
With regard to auto accidents, Pohl set up a “Google Alerts” to be notified whenever there
was a horrific rollover crash. Pohl would then send his runners to hospitals, homes and funerals
to contact the families of the injured. The runners would use their sham companies, “Helping
Hands” to act as though they were genuinely there to help these victims. The runners would falsely
tell these victims that they were there to help the victims’ in their time of need in the form of
money for burial services, food, clothing, lodging, etc. In reality, the runners’ contacted these
families under false pretenses with the sole objective to take advantage of these victims and their
families while they were emotionally distraught and not thinking straight in ordker to lock them
into contracts which allowed the runners to select a lawyer for the victim. Tlhe victims and the
family members were encouraged to hire Pohl and told they could not gect the money unless they
agreed to hire Pohl. Pohl would pay the runners as much as $7,5s00 per client and Pohl also
promised the runners as much as 33% of Pohl’s legal fees on the back end when the case settled.
Additionally, HH Texas would pay HH Mississippi $2,500 for every client referred to HH Texas
to “loan” money to these victims and their family. Pohl used this procedure as an attempt to put
an additional layer between him and the actual runners.
Pohl also helped the runners form anaother sham entity, the GM Settlement Verification
Team (“GM Team”) after General Motors, Inc. issued a recall on cars due to faulty ignition
switches which effected the safe opereation of the airbag systems on vehicles. Thus, the GM Team
was designed to look official as iff it was part of General Motors. The conspiracy was to form an
official looking entity as if GyM was contacting people who had been harmed when airbags failed
to deploy in relation toC the ignition recall. In reality, this was just another sham company used to
trick clients into hiaring Pohl. Again, Pohl would pay Walker and Ladner, through their sham
entity, the GM Tfeam, a fee for every client it referred to Pohl, in addition to a percentage of fees
on the baUck end.
Pohl knew what he was doing was illegal barratry. Accordingly, he knowingly formed
entities that he perceived would insulate him from liability. In fact, Walker testified that although
he and Pohl called it “marketing services” or “marketing money” it was “clear to [him] it was
barratry.” In fact, Walker considered himself and his company “a pass-through for barratry
money.” All total, Walker, Ladner and Precision received over $5 million in “barratry pass-through
money” from Pohl and other lawyers to solicit potential clients with claims, both auto-accident
victims and those involved in the BP Deepwater Horizon litigation. k
One of the runners hired by Pohl and Walker to solicit illegally solicit cllients on behalf of
Pohl was Magdalena Santana (“Santana”). In her September 24, 2016 afcfidavit, Santana testified
that Pohl sent her on “dozens and dozens of car wreck cases all ovser the country.” Pohl would
email Santana the link of news coverage he obtained through Google Alerts depicting an accident
and asked her “to go to the victim or the victim’s family and try to get them to sign up with him.”
Santana swore under oath that Pohl agreed to pay her “$5,000 per case that [she] signed, plus a
percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even if the family
... rejected [her].” Santana was instructed by Paohl to “approach the victims and their families while
they were vulnerable, in the emergency room, their hospital rooms or at the funerals.” Pohl told
Santana that minorities “were especieally vulnerable since they tended not to know that the law
prohibited barratry.” Accordingf to Pohl, they “were easier to sign up.”
Pohl would give Sanytana “money to give to the victims or their families” but would give
the money to the client C“if they agreed to sign a Pohl representation contract.” Pohl advised Santana
that the money was aa “foot in the door” but instructed Santana not to mention anything about hiring
a lawyer “untilf after they agreed to take the money.” “If the client agreed to hire Pohl, then
[Santana]U was to have the client sign a ‘Helping Hands’ contract.” Pohl would then give Santana
the money to pay the client “from his own Helping Hands company.” When Santana questioned
this, Pohl 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.”
Pohl and/or his co-conspirators had Santana retract this affidavit through a December 19,
2017 affidavit. This purported retraction was likely the result of Pohl paying Santana to provide
testimony, which is something he has done in the past. In fact, Pohl’s own paralegal, Jaimes,
testified that on one occasion Pohl sent him to Florida with a suitcase filled with $k50,000 in cash
to give to Santana in exchange for her signing a statement for him. Jaimes tesltified that Santana
would only get the money if she signed the statement for Pohl. Jaimes testcified that Santana signed
the signed the statement and got the money. s
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,
criminal or unethical conduct. Santana testified that Pohl paid her $50,000 in cash to sign this
statement, which was delivered by Jaimes in three bags marked “trick or treat.” Very symbolic
given that Santana had been tricked by Pohla into soliciting clients for him and was now being
treated the money she claimed was due under their agreement just to stay quiet. Santana reiterated
in her deposition that if she didn’t sigen the gag agreement, she would not receive the money from
Pohl. Santana attempted to indicafte on the agreement that she was receiving $50,000 to keep quiet,
but Jaimes told her Pohl deymanded that she state she only received nominal consideration, like
$100. Santana did not wCrite the statement but “just signed it” because she felt she was being “forced
to sign” it while “unader duress.”
Notablyf, nowhere in Santana’s December 19th affidavit does she state the testimony in her
former afUfidavit is untrue, only that she does not “agree with” it and that the affidavit is not
“reliable.” Although Santana states in her December 19th affidavit 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.” 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. Santana reiterated to counsel for Pohl, Billy Shepherd, that she was there in her
deposition to tell the truth and would not be bullied by his questioning or his efforts to confuse
her. k
Regardless, Santana’s sworn deposition testimony confirmed most of tlhe facts set forth in
her initial affidavit and this deposition testimony has never been rectracted. There, Santana
confirmed that she was hired by Pohl to solicit auto accident cases, thse first one being an accident
where a woman and her unborn child lost their lives. 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. Santana visited the funeral of the
deceased and got the family to feel comfortable with her. Although the mother was grieving, Pohl
told Santana: “take no prisoners, this is a cut tharoat business, you get in there and you do whatever
it takes to get this client.” The solicitation was successful after Pohl gave Santana $2,000 to “give
to the client to convince her into signeing over with the firm.”
“Coach” Kenneth Talleyf (“Talley”) was another runner hired by Pohl and Walker who
solicited over 20 auto accideynt cases for Pohl. Talley has sworn under oath that he was first hired
in relation to BP claimCs to find “folks that lost money due to the oil spill” and “sign them up” and
“get a fee for it.” Taalley testified that he went to work “knocking on doors” looking for potential
claimants for Pofhl and his partner in the BP litigation. Talley solicited and signed up for Pohl and
his co-coUnspirators more than 800 BP claims. Talley was paid between $75 and $350 for each BP
client he signed up for Pohl and his partners.
Talley eventually switched to soliciting auto accident victims, “calling on folks that had
bad accidents.” Talley recalls that the first client he solicited was in “the hospital in intensive care.”
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.” Talley kept a list of all the auto accident cases he solicited so he
could keep track of the cases that he was due a fee on the back end after the case settled. Talley
also followed a checklist that instructed him to, among other things, bring flowekrs to the initial
hospital visit (but to spend no more than $50) and to offer the victims moneyl but to “make sure
the funding schedule” from HH Texas “is filled out properly before relecasing any cash.” Talley
would advise the victims that he had attorneys who could help them ssuch as Pohl. Talley was paid
a fee of $1,400 plus his expenses by Pohl, through Walker, for any auto accident case he solicited
and referred to Pohl. On some cases, Talley was to receive a portion of the fee paid to Helping
Hands out of Pohl’s attorney’s fees. Talley discussed with Pohl the “percentage of settlements”
he was to receive from the cases he solicited and referred, and Pohl told Talley that the money was
being placed in an “escrow account” for him. aWhen 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.” Ande, although his paycheck was from Walker’s company, “the
funding came by way of Edgar [Jfaimes].”
Talley testified that pyersonally soliciting clients for Pohl became so frequent that he began
carrying blank Pohl coCntracts to each solicitation. Talley testified that he never recommended any
lawyers other than Paohl. However, Talley never told the clients that he was getting paid to solicit
them. Talley wofuld present a Pohl contract to the potential client. If the client did not agree to hire
Pohl, the Uclients would not get the money. Talley testified that Jaimes and Dona (the operators of
HH Texas) would send him the money.
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. Talley testified that
during the attempted solicitation he was told by a “lawyer or policeman” that “it was against the
law what [he] was doing.” Talley mentioned this to Pohl and Pohl told him “you’ve just got to
leave...some people you can’t help.”
Walker was eventually indicted and sent to prison. Thereafter, Pohl and hisk lawyer partners
refused to pay Walker and the other runners the ill gained fees as Pohl had prolmised. Therefore,
Walker, Seymour, Ladner and Precision filed a lawsuit in Mississippi cFederal Court (“Federal
Litigation”) against Pohl and his law partners claiming they were sowed millions of dollars in
promised fees. 
The above facts were compiled during the Federal Litigation. Thereafter, more than four
hundred clients who were illegally solicited contacted the Kassab Law Firm and requested Kassab
to represent them in litigation against Pohl and his partners. Kassab filed lawsuits on behalf of
these clients in four different courts in Harrisa County. 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 Rule 8.03 of
the Texas Disciplinary Rules of Pfrofessional Conduct. Thus, Kassab filed grievances against Pohl
pursuant to Rule 8.03. Pohl’ys clients are also preparing and filing grievances against Pohl arising
out of his blatant barraCtry.
Because of athese actions in representing clients against Pohl and the grievances filed
against Pohl, Pofhl has filed a retaliatory lawsuit against the Kassab alleging conversion and theft
of trade sUecrets. Pohl alleges that Kassab and others stole his property and are using it to bring
lawsuits and grievances against Pohl. Specifically, Pohl alleges in his petition against Kassab that,
“Kassab is a lawyer who specializes in suing other lawyers”1 and “Kassab solicited
1 Pohl Original Petition, p. 6
10
clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring cases against Pohl for alleged
barratry and other claims.”2 Thus, Pohl has judicially admitted that he has brought his suit against
Kassab because Kassab contacted Pohl’s clients and filed suit against Pohl on behalf of these
clients. k
COUNTERCLAIM FOR CIVIL BARRATRY
Within the lawsuits that Kassab has filed against Pohl on behalf oft his former clients and
potential clients, Pohl has judicially admitted that a claim for barratryt is not a legal malpractice
case. Pohl has also admitted that a claim for barratry is not a claim for “legal malpractice,” and
thus, the discovery rule does not apply to a barratry claim. Teherefore, based upon Pohl’s judicial
admissions, the assignment of a barratry claim is permituted under Texas law.
Thus, based upon express assignments onf interest given to Kassab, Kassab brings
counterclaims against Pohl and his law firm purrsuant to Texas Civil Practice and Remedies Code,
Section 16.069. Section 16.069 provides:
(a) If a counterclaim or cross claim arises out of the same transaction or occurrence
that is the basis of an acction, a party to the action may file the counterclaim or
cross claim even thougfh as a separate action it would be barred by limitations
on the date the partyO’s answer is required.
(b) The counterclaipm or cross claim must be filed not later than the 30th day after
the date on which the party’s answer is required.
Kassab has been assaiglned barratry claims on behalf of 242 claimants. These counterclaims
are timely becauise they were filed within 30 days of the date Kassab filed his original
answer.
2 Id. at p. 6-7
11
DESIGNATION OF RESPONSIBLE THIRD PARTIES
A responsible third party is someone who caused or contributed to cause a portion of the
Plaintiff’s alleged damages. Defendant/Counter-Plaintiffs, Kassab, designates George W. (Billy)
Shepherd, Scott Walker, Steve Seymour and Kirk Ladner as responsible third-parties as these
individuals are the sole or proximate cause of any damages alleged by Pohl. Billy Shepherd
(“Shepherd”) represented Pohl in the Federal Litigation filed against Pohtl by Walker, Seymour,
Ladner and Precision. Shepherd knew that Walker, Seymour and Latdner had sold Precision to
Favre and knew that Walker, Seymour and Ladner had legally transferred Precision’s assets and
property to Favre. Shepherd further knew that Favre and/ore his counsel had given documents to
third parties, including Kassab and others prior to negotiauting a settlement in the Federal Litigation.
The documents, assets and all other property that Pnrecision owned that were transferred to Favre
are the subject of Pohl’s lawsuit herein. r
Shepherd negotiated the settlement in the Federal Litigation between Walker, Seymour,
Ladner, Favre and Precision on the one hand and Pohl on the other hand. If Pohl now complains
in this lawsuit that he was entiftled to the return and/or destruction of said assets/property,
Shepherd, as Pohl’s attorney in the Federal Litigation wholly failed to protect Pohl by ensuring
that all subject property was gathered from all third parties and returned to Pohl or destroyed.
Shepherd’s amlalfeasance was either negligent or intentional. Since Shepherd knew that the
subject assets/prioperty were a point of contention in the Federal Litigation and knew that the
assets/property could be used by outside third parties to garner clients as Pohl alleges, Shepherd
may have intentionally failed to protect Pohl’s interest so that he could secure future lucrative
employment for himself and his law firm for years to come by continuing to represent Pohl in the
current state court litigation after the subject property was used to garner clients to sue Pohl as
Pohl alleges. Thus, Shepherd is the sole or proximate cause of Pohl’s alleged damages.
12
Walker, Seymour and Ladner sold Precision to Favre. Walker, Seymour and Ladner also
transferred the subject assets/property of Precision to Favre. Walker testified under oath that he,
Seymour and Ladner, through Precision, owned all the assets/property, including computers and
documents that were transferred to Favre. Walker also testified that he had thek legal right and
authority, through Precision, to sell and transfer all the subject assets/property tol Favre. Moreover,
Walker, Seymour and Ladner certified that they owned all of the subjectc property/assets and had
authority to transfer all of the subject property/assets to Favre. If Wsalker, Seymour and Ladner
did not have the legal right to transfer all the subject assets/property to Favre, then they are the
sole or proximate cause of Pohl’s alleged damages. Therefore, if Pohl has been damaged in any
way as he alleges, Shepherd, Walker, Seymour and Ladner are the sole proximate cause of his
damages.
PRAYERa FOR RELIEF
Wherefore, Defendants, Counter-Plaintiffs respectfully pray that Plaintiffs recover nothing
on their claims and that the Defendants, Counter-Plaintiffs recover on their claims against the
Plaintiffs and/or any Third-Party Dfefendants as follows:
i) actual and consequential damages;
ii) statutory doamages;
iii) pre- and post-judgment interest;
iv) attoirneys’ fees and costs; and
v) fall other relief to which the Defendants, Counter-Plaintiffs may be justly entitled.
13
Respectfully submitted,
THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
LANCE CHRISTOPHER KASSAB
Texas State Bar No. 0079407k0
lance@kassab.law r
DAVID ERIC KASSAB
Texas State Bar No. 24071351
david@kassab.law c
1214 Elgin Street r
Houston, Texas s77004
Telephone: 71D3.522.7400
Facsimile: 713.522.7410
ATTORNEYS FOR DEFENDANTS,
COUNTErR-PLAINTIFFS LANCE CHRISTOPHER
KASSAB AND THE KASSAB LAW FIRM
CERTIFICAaTE 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 thoe Texas Rules of Civil Procedure on this the 7th day of
November 2018. e
/ s / Lance Christopher Kassab
Lance Christopher Kassab
14"
11,2018-11-06,OA,Kassab,2nd Amended Answer,"Kassab's Second Amended Answer, Affirmative Defenses, Counterclaim, and Designation of Responsible Third Parties","Filed November 6, 2018 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. The day after the reply brief on the TCPA motion. This is the second amended responsive pleading, expanding the counterclaims from 150 to 235 assigned barratry claimants and adding a Designation of Responsible Third Parties (Billy Shepherd, Scott Walker, Steve Seymour, Kirk Ladner). Addressed to the Honorable Judge of said Court.",PLEAD-1,N/A,Phase 1,2018-11-06_OA_Kassab-2nd-Amended-Answer-CC_FILED.pdf,"Plaintiffs take nothing; Kassab recovers on counterclaims and against third-party defendants including actual and consequential damages, statutory damages, pre- and post-judgment interest, attorneys' fees and costs, and all other just relief","11/6/2018 2:08 PM
Chris Daniel - District Clerk Harris County
Envelope No. 28831260
By: ARIONNE MCNEAL
Filed: 11/6/2018 2:08 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIrAL DISTRICT
DEFENDANTS, LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER
KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S SECOND AMENDED
ANSWER, AFFIRMATIVE DEFENSES AND COUNtTERCLAIM,
AND DESIGNATION OF RESPONSIBLE THIRD PARTIES
TO THE HONORABLE JUDGE OF SAID COURT: s
COMES NOW, Defendants, Lance Christopher Kgassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm and files this theBir Second Amended Answer, Affirmative
Defenses, and Counterclaim, and Designation of Ryesponsible Third Parties, and would respectfully
show the Court as follows; a
RULfE 47 STATEMENT
The Kassab Defendants, in teheir capacity as Counter-Plaintiffs, seek monetary relief of
more than $1,000,000.00. f
y PARTIES
Plaintiff, Michael A. Pohl is an individual lawyer residing in Colorado.
Plaintiff, Laawl Offices of Michael A. Pohl is a law firm set up for the practice of law in
various states of ithe union, including Texas.
Defendant, Scott Favre is a nonresident individual residing in Mississippi.
Defendant, Scott M. Favre, PA, LLC is a nonresident limited liability company located in
Mississippi.
Defendant, Precision Marketing Group, LLC is a nonresident limited liability company
located in Mississippi.
Defendant, F. Douglas Montague III is a nonresident individual residing in Mississippi.
Defendant, Montague, Pittman & Varnado, PA is a nonresident professional association
located in Mississippi.
Defendant, Tina Nicholson is an individual residing in Texas. k
Defendant, Baker Nicholson, LLP, d/b/a Baker Nicholson Law Firm ils a limited liability
partnership located in Texas. c
Defendant, Counter-Plaintiff, Lance Christopher Kassab is an sindividual residing in Texas.
Defendant, Counter-Plaintiff, Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm
is a professional corporation located in Texas.
JURISDICTION ANDB VENUE
This matter is within the jurisdictional lnimits of this Court and Plaintiffs, Counter-
Defendants, Michael A. Pohl and Law Officers of Michael A. Pohl (“Pohl”) and Defendants,
Counter-Plaintiffs, Lance Christopher Kassab (“LCK”) and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law Firm (“Kassab, P.C.”) (collectively “Kassab”) are subject to the Court’s
jurisdiction. Venue is proper in thifs county because one or more of the defendants are residents of
this county and because a substantial part of the acts and/or omissions that form the basis of this
suit occurred in this county.
a l GENERAL DENIAL
Defendant, Counter-Plaintiff Kassab generally denies all allegations made by Plaintiffs,
Counter-Denfendants, Michael A. Pohl and Law Offices of Michael A. Pohl, and requests the Court
to require Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl to
carry their burden of proof regarding all allegations against Kassab.
AFFIRMATIVE DEFENSES
Defendant, Counter-Plaintiff Kassab pleads the following affirmative defenses:
1. Statute of limitations
2. Justification.
3. Estoppel.
4. Waiver. t
5. Ratification. t
6. Release. 
7. Unclean hands. e
8. Contribution. u
9. Failure to mitigate damages. n
10. Lack of standing. r
11. Accord and Satisfaction.
12. Assumption of the Risk. 
13. Illegality/Criminal Actfs.
14. First Amendment. 
15. Attorney Immunity.
16. In Pari Daellicto.
17. Res juidicata.
SPECIFIC DENIALS
Defendants, Counter-Plaintiffs specifically deny that all conditions precedent regarding
Plaintiffs claims of conversion and theft of trade secrets have been performed or occurred prior to
Plaintiffs filing suit against Kassab.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
LCK is a lawyer practicing law with Kassab, P.C., a law firm in Houston, Texas focusing
solely on plaintiffs’ legal malpractice. Kassab filed four lawsuits on behalf of over four hundred
clients against Pohl (the “Harris County Lawsuits”). The main allegations against Pohl is civil
barratry and conspiracy to commit barratry, a third-degree felony in Texas. Pohl conspired with
his wife, Donalda Pohl (“Dona”), his paralegal, Edgar Jaimes (“Jaimes”t), and three runners in
Mississippi to illegally solicit clients on behalf of Pohl. Dona owns at sham lending company in
Texas called Helping Hands Financing, LLC (“HH Texas”). Jaimes runs the day-to-day operations
of HH Texas. The three runners are Scott Walker (“Walkere”), Steve Seymour (“Seymour”) and
Kirk Ladner (“Ladner”). The three runners own and ouperate two other sham companies called
Helping Hands Group, LLC and Helping Hands Finnancial, LLC (collectively “HH Mississippi”).
The three runners also owned Precision Markerting Group, LLC (“Precision”) which they sold to
Scott Favre and/or his companies (collectively “Favre”).
With regard to the clients obtained in the BP Litigation, Walker, Seymour and Ladner hired
other runners to literally go up anfd down streets knocking on doors to solicit clients on behalf of
Pohl for lawsuits against British Petroleum. Precision paid these runners as much as $300-$400
for every client they obtained. Pohl then paid Precision as much as $1,500 for every client
Precision referred tao lPohl. Pohl also offered and agreed to pay Walker, Seymour and Ladner a
percentage of hisi legal fees once the cases settled. This percentage was disguised as an hourly rate
of $1,500.00 per hour.
With regard to auto accidents, Pohl set up a “Google Alerts” to be notified whenever there
was a horrific rollover crash. Pohl would then send his runners to hospitals, homes and funerals
to contact the families of the injured. The runners would use their sham companies, “Helping
Hands” to act as though they were genuinely there to help these victims. The runners would falsely
tell these victims that they were there to help the victims’ in their time of need in the form of
money for burial services, food, clothing, lodging, etc. In reality, the runners’ contacted these
families under false pretenses with the sole objective to take advantage of these victims and their
families while they were emotionally distraught and not thinking straight in ordker to lock them
into contracts which allowed the runners to select a lawyer for the victim. Tlhe victims and the
family members were encouraged to hire Pohl and told they could not gect the money unless they
agreed to hire Pohl. Pohl would pay the runners as much as $7,5s00 per client and Pohl also
promised the runners as much as 33% of Pohl’s legal fees on the back end when the case settled.
Additionally, HH Texas would pay HH Mississippi $2,500 for every client referred to HH Texas
to “loan” money to these victims and their family. Pohl used this procedure as an attempt to put
an additional layer between him and the actual runners.
Pohl also helped the runners form anaother sham entity, the GM Settlement Verification
Team (“GM Team”) after General Motors, Inc. issued a recall on cars due to faulty ignition
switches which effected the safe opereation of the airbag systems on vehicles. Thus, the GM Team
was designed to look official as iff it was part of General Motors. The conspiracy was to form an
official looking entity as if GyM was contacting people who had been harmed when airbags failed
to deploy in relation toC the ignition recall. In reality, this was just another sham company used to
trick clients into hiaring Pohl. Again, Pohl would pay Walker and Ladner, through their sham
entity, the GM Tfeam, a fee for every client it referred to Pohl, in addition to a percentage of fees
on the baUck end.
Pohl knew what he was doing was illegal barratry. Accordingly, he knowingly formed
entities that he perceived would insulate him from liability. In fact, Walker testified that although
he and Pohl called it “marketing services” or “marketing money” it was “clear to [him] it was
barratry.” In fact, Walker considered himself and his company “a pass-through for barratry
money.” All total, Walker, Ladner and Precision received over $5 million in “barratry pass-through
money” from Pohl and other lawyers to solicit potential clients with claims, both auto-accident
victims and those involved in the BP Deepwater Horizon litigation. k
One of the runners hired by Pohl and Walker to solicit illegally solicit cllients on behalf of
Pohl was Magdalena Santana (“Santana”). In her September 24, 2016 afcfidavit, Santana testified
that Pohl sent her on “dozens and dozens of car wreck cases all ovser the country.” Pohl would
email Santana the link of news coverage he obtained through Google Alerts depicting an accident
and asked her “to go to the victim or the victim’s family and try to get them to sign up with him.”
Santana swore under oath that Pohl agreed to pay her “$5,000 per case that [she] signed, plus a
percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even if the family
... rejected [her].” Santana was instructed by Paohl to “approach the victims and their families while
they were vulnerable, in the emergency room, their hospital rooms or at the funerals.” Pohl told
Santana that minorities “were especieally vulnerable since they tended not to know that the law
prohibited barratry.” Accordingf to Pohl, they “were easier to sign up.”
Pohl would give Sanytana “money to give to the victims or their families” but would give
the money to the client C“if they agreed to sign a Pohl representation contract.” Pohl advised Santana
that the money was aa “foot in the door” but instructed Santana not to mention anything about hiring
a lawyer “untilf after they agreed to take the money.” “If the client agreed to hire Pohl, then
[Santana]U was to have the client sign a ‘Helping Hands’ contract.” Pohl would then give Santana
the money to pay the client “from his own Helping Hands company.” When Santana questioned
this, Pohl 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.”
Pohl and/or his co-conspirators had Santana retract this affidavit through a December 19,
2017 affidavit. This purported retraction was likely the result of Pohl paying Santana to provide
testimony, which is something he has done in the past. In fact, Pohl’s own paralegal, Jaimes,
testified that on one occasion Pohl sent him to Florida with a suitcase filled with $k50,000 in cash
to give to Santana in exchange for her signing a statement for him. Jaimes tesltified that Santana
would only get the money if she signed the statement for Pohl. Jaimes testcified that Santana signed
the signed the statement and got the money. s
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,
criminal or unethical conduct. Santana testified that Pohl paid her $50,000 in cash to sign this
statement, which was delivered by Jaimes in three bags marked “trick or treat.” Very symbolic
given that Santana had been tricked by Pohla into soliciting clients for him and was now being
treated the money she claimed was due under their agreement just to stay quiet. Santana reiterated
in her deposition that if she didn’t sigen the gag agreement, she would not receive the money from
Pohl. Santana attempted to indicafte on the agreement that she was receiving $50,000 to keep quiet,
but Jaimes told her Pohl deymanded that she state she only received nominal consideration, like
$100. Santana did not wCrite the statement but “just signed it” because she felt she was being “forced
to sign” it while “unader duress.”
Notablyf, nowhere in Santana’s December 19th affidavit does she state the testimony in her
former afUfidavit is untrue, only that she does not “agree with” it and that the affidavit is not
“reliable.” Although Santana states in her December 19th affidavit 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.” 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. Santana reiterated to counsel for Pohl, Billy Shepherd, that she was there in her
deposition to tell the truth and would not be bullied by his questioning or his efforts to confuse
her. k
Regardless, Santana’s sworn deposition testimony confirmed most of tlhe facts set forth in
her initial affidavit and this deposition testimony has never been rectracted. There, Santana
confirmed that she was hired by Pohl to solicit auto accident cases, thse first one being an accident
where a woman and her unborn child lost their lives. 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. Santana visited the funeral of the
deceased and got the family to feel comfortable with her. Although the mother was grieving, Pohl
told Santana: “take no prisoners, this is a cut tharoat business, you get in there and you do whatever
it takes to get this client.” The solicitation was successful after Pohl gave Santana $2,000 to “give
to the client to convince her into signeing over with the firm.”
“Coach” Kenneth Talleyf (“Talley”) was another runner hired by Pohl and Walker who
solicited over 20 auto accideynt cases for Pohl. Talley has sworn under oath that he was first hired
in relation to BP claimCs to find “folks that lost money due to the oil spill” and “sign them up” and
“get a fee for it.” Taalley testified that he went to work “knocking on doors” looking for potential
claimants for Pofhl and his partner in the BP litigation. Talley solicited and signed up for Pohl and
his co-coUnspirators more than 800 BP claims. Talley was paid between $75 and $350 for each BP
client he signed up for Pohl and his partners.
Talley eventually switched to soliciting auto accident victims, “calling on folks that had
bad accidents.” Talley recalls that the first client he solicited was in “the hospital in intensive care.”
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.” Talley kept a list of all the auto accident cases he solicited so he
could keep track of the cases that he was due a fee on the back end after the case settled. Talley
also followed a checklist that instructed him to, among other things, bring flowekrs to the initial
hospital visit (but to spend no more than $50) and to offer the victims moneyl but to “make sure
the funding schedule” from HH Texas “is filled out properly before relecasing any cash.” Talley
would advise the victims that he had attorneys who could help them ssuch as Pohl. Talley was paid
a fee of $1,400 plus his expenses by Pohl, through Walker, for any auto accident case he solicited
and referred to Pohl. On some cases, Talley was to receive a portion of the fee paid to Helping
Hands out of Pohl’s attorney’s fees. Talley discussed with Pohl the “percentage of settlements”
he was to receive from the cases he solicited and referred, and Pohl told Talley that the money was
being placed in an “escrow account” for him. aWhen 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.” Ande, although his paycheck was from Walker’s company, “the
funding came by way of Edgar [Jfaimes].”
Talley testified that pyersonally soliciting clients for Pohl became so frequent that he began
carrying blank Pohl coCntracts to each solicitation. Talley testified that he never recommended any
lawyers other than Paohl. However, Talley never told the clients that he was getting paid to solicit
them. Talley wofuld present a Pohl contract to the potential client. If the client did not agree to hire
Pohl, the Uclients would not get the money. Talley testified that Jaimes and Dona (the operators of
HH Texas) would send him the money.
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. Talley testified that
during the attempted solicitation he was told by a “lawyer or policeman” that “it was against the
law what [he] was doing.” Talley mentioned this to Pohl and Pohl told him “you’ve just got to
leave...some people you can’t help.”
Walker was eventually indicted and sent to prison. Thereafter, Pohl and hisk lawyer partners
refused to pay Walker and the other runners the ill gained fees as Pohl had prolmised. Therefore,
Walker, Seymour, Ladner and Precision filed a lawsuit in Mississippi cFederal Court (“Federal
Litigation”) against Pohl and his law partners claiming they were sowed millions of dollars in
promised fees. 
The above facts were compiled during the Federal Litigation. Thereafter, more than four
hundred clients who were illegally solicited contacted the Kassab Law Firm and requested Kassab
to represent them in litigation against Pohl and his partners. Kassab filed lawsuits on behalf of
these clients in four different courts in Harrisa County. 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 Rule 8.03 of
the Texas Disciplinary Rules of Pfrofessional Conduct. Thus, Kassab filed grievances against Pohl
pursuant to Rule 8.03. Pohl’ys clients are also preparing and filing grievances against Pohl arising
out of his blatant barraCtry.
Because of athese actions in representing clients against Pohl and the grievances filed
against Pohl, Pofhl has filed a retaliatory lawsuit against the Kassab alleging conversion and theft
of trade sUecrets. Pohl alleges that Kassab and others stole his property and are using it to bring
lawsuits and grievances against Pohl. Specifically, Pohl alleges in his petition against Kassab that,
“Kassab is a lawyer who specializes in suing other lawyers”1 and “Kassab solicited
1 Pohl Original Petition, p. 6
10
clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring cases against Pohl for alleged
barratry and other claims.”2 Thus, Pohl has judicially admitted that he has brought his suit against
Kassab because Kassab contacted Pohl’s clients and filed suit against Pohl on behalf of these
clients. k
COUNTERCLAIM FOR CIVIL BARRATRY
Within the lawsuits that Kassab has filed against Pohl on behalf oft his former clients and
potential clients, Pohl has judicially admitted that a claim for barratryt is not a legal malpractice
case. Pohl has also admitted that a claim for barratry is not a claim for “legal malpractice,” and
thus, the discovery rule does not apply to a barratry claim. Teherefore, based upon Pohl’s judicial
admissions, the assignment of a barratry claim is permituted under Texas law.
Thus, based upon express assignments onf interest given to Kassab, Kassab brings
counterclaims against Pohl and his law firm purrsuant to Texas Civil Practice and Remedies Code,
Section 16.069. Section 16.069 provides:
(a) If a counterclaim or cross claim arises out of the same transaction or occurrence
that is the basis of an acction, a party to the action may file the counterclaim or
cross claim even thougfh as a separate action it would be barred by limitations
on the date the partyO’s answer is required.
(b) The counterclaipm or cross claim must be filed not later than the 30th day after
the date on which the party’s answer is required.
Kassab has been assaiglned barratry claims on behalf of 235 claimants. These counterclaims
are timely becauise they were filed within 30 days of the date Kassab filed his original
answer.
2 Id. at p. 6-7
11
DESIGNATION OF RESPONSIBLE THIRD PARTIES
A responsible third party is someone who caused or contributed to cause a portion of the
Plaintiff’s alleged damages. Defendant/Counter-Plaintiffs, Kassab designates George W. (Billy)
Shepherd, Scott Walker, Steve Seymour and Kirk Ladner as responsible third-parties as these
individuals are the sole or proximate cause of any damages alleged by Pohl. Billy Shepherd
(“Shepherd”) represented Pohl in the Federal Litigation filed against Pohtl by Walker, Seymour,
Ladner and Precision. Shepherd knew that Walker, Seymour and Latdner had sold Precision to
Favre and knew that Walker, Seymour and Ladner had legally transferred Precision’s assets and
property to Favre. The assets and property that were transferered to Favre are the subject of Pohl’s
lawsuit herein. u
Shepherd negotiated a settlement in the Fnederal Litigation between Walker, Seymour,
Ladner, Favre and Precision on the one hand anrd Pohl on the other hand. If Pohl now complains
in this lawsuit that he was entitled to the return and/or destruction of said assets/property,
Shepherd, as Pohl’s attorney in the Federal Litigation wholly failed to protect Pohl by ensuring
that all subject property was gathfered from all third parties and returned to Pohl or destroyed.
Shepherd’s malfeasance was either negligent or intentional. Since Shepherd knew that the subject
assets/property were a point of contention in the Federal Litigation and knew that the
assets/property coualdl be used by outside third parties to garner clients as Pohl alleges, Shepherd
may have intentiionally failed to protect Pohl’s interest so that he could secure future lucrative
employment for himself and his law firm for years to come by continuing to represent Pohl in the
current state court litigation after the subject property was used to garner clients to sue Pohl as
Pohl alleges. Thus, Shepherd is the sole or proximate cause of Pohl’s alleged damages.
Walker, Seymour and Ladner sold Precision to Favre. Walker, Seymour and Ladner also
transferred the subject assets/property to Favre. Walker testified under oath that he, Seymour and
12
Ladner, through Precision, owned all the assets/property, including computers and documents that
were transferred to Favre. Walker also testified that he had the legal right, through Precision, to
sell and transfer all the subject assets/property to Favre. Moreover, Walker, Seymour and Ladner
certified that they owned all of the subject property/assets and had authority to traknsfer all of the
subject property/assets to Favre. If Walker, Seymour and Ladner did not havle the legal right to
transfer all the subject assets/property to Favre, then they are the sole or pcroximate cause of Pohl’s
alleged damages. Therefore, if Pohl has been damaged in anyway as hse alleges, Shepherd, Walker,
Seymour and Ladner are the sole proximate cause of his damages.
PRAYER FOR RELIEF
Wherefore, Defendants, Counter-Plaintiffs respeuctfully pray that Plaintiffs recover nothing
on their claims and that the Defendants, Counter-nPlaintiffs recover on their claims against the
Plaintiffs and/or any Third-Party Defendants asr follows:
i) actual and consequential damages;
ii) statutory damages;
iii) pre- and post-judgment interest;
iv) attorneys’ fees aOnd costs; and
v) all other relief to which the Defendants, Counter-Plaintiffs may be justly entitled.
13
Respectfully submitted,
THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
LANCE CHRISTOPHER KASSAB
Texas State Bar No. 0079407k0
lance@kassab.law r
DAVID ERIC KASSAB
Texas State Bar No. 24071351
david@kassab.law c
1214 Elgin Street r
Houston, Texas s77004
Telephone: 71D3.522.7400
Facsimile: 713.522.7410
ATTORNEYS FOR DEFENDANTS,
COUNTErR-PLAINTIFFS LANCE CHRISTOPHER
KASSBAB AND THE KASSAB LAW FIRM
CERTIFICAaTE 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 thoe Texas Rules of Civil Procedure on this the 6th day of
November 2018. e
/ s / Lance Christopher Kassab
Lance Christopher Kassab
14"
10,2018-11-05,OBJ,Kassab,Objections to Pohl’s TCPA response evidence,Kassab's Objections to Plaintiffs' Response Evidence and Reply in Support of TCPA Motion to Dismiss,"Filed November 5, 2018 as a combined objection and reply brief in further support of Kassab's TCPA Motion to Dismiss. Responds to Pohl's November 1, 2018 opposition, challenging the admissibility of Pohl's evidence and arguing the commercial speech exception does not apply. Filed in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Addressed to the Honorable Judge Bill Burke.",TCPA-1,N/A,Phase 1,2018-11-05_OBJ_Kassab-Objections-to-Pohl-Response_FILED.pdf,Grant the TCPA Motion to Dismiss; strike Shepherd affidavit and all attached documents; strike Pohl's declaration paragraphs 3-9; order Plaintiffs take nothing; award reasonable and necessary attorney's fees and costs as required by the statute,"11/5/2018 8:03 AM
Chris Daniel - District Clerk Harris County
Envelope No. 28779207
By: Deandra Mosley
Filed: 11/5/2018 8:03 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
THE KASSAB DEFENDANTS’ OBJECTIONS TO PLAINTlIFFS’
RESPONSE AND REPLY IN SUPPORT OF MOTION TO DISMISS
TO THE HONORABLE JUDGE BILL BURKE: r
Defendants/Counter-Plaintiffs Lance Christopher Kassab Dand Lance Christopher Kassab,
P.C. d/b/a/ The Kassab Law Firm (“Kassab”) file this reply asnd objections in further support of
their Motion to Dismiss Pursuant to the Texas Citizens Parrticipation Act.
OBJECTIONS
A. Plaintiffs’ Exhibit A (Affidavait of Billy Shepherd)
Kassab objects to Plaintiffs’ Exhibit A, the alleged affidavit of Billy Shepherd
(“Shepherd”) and all exhibits attacheed thereto. Specifically, Shepherd’s affidavit fails as an
affidavit on its face because itf is not based upon “personal knowledge” or state that the
statements therein are “true yand correct”, thus perjury does not attach, and therefore, the alleged
affidavit is nothing moCre than a statement by Pohl’s “interested” counsel. An affidavit must be
based on the affianta’s personal knowledge and must state that the facts in it are true. Humphreys
v. Caldwell, 88
8f S.W.2d 469, 470 (Tex. 1994); see TEX. R. EVID. 602 (evidence must show the
witness hUas personal knowledge); Radio Station KSCS v. Jennings, 750, S.W.2d 760, 761-62
(Tex. 1988). An affidavit must contain direct and unequivocal statements that, if false, would be
grounds for perjury. Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex. 1975); Hall v. Stephenson,
919 S.W.2d 454, 466 (Tex. App.—Fort Worth 1996, writ denied).
Additionally, Shepherd’s statement appears to attempt to prove up business records, but
this attempt fails. To introduce a business record through a witness, a party must prove the
following: (1) the record is a memorandum, report, other compilation of data; (2) the witness is
the custodian or another qualified witness; (3) the record was made from informaktion transmitted
by a person with knowledge of the facts; (4) the record was made at or near thle time of the acts,
events, conditions, opinions, or diagnoses appearing on it; (5) the recordc was made as part of the
regular practice of that business activity; and (6) the record was kepst in the course of a regularly
conducted business activity. See TEX. R. EVID. 101 (h)(4),
803 (6)(A)-(6)(D); Freeman v.
American Motorists Ins., 53 S.W.3d 710, 715 (Tex. App.—Houston [1st Dist.] 2001 no pet.).
The alleged affidavit fails in all respects.
The alleged affidavit also fails to conform with Texas Rules of Evidence, 902 (10), and
therefore, fails to establish the exhibits as baus r iness records.1 Specifically, the alleged affidavit
fails to adequately show that Shepherd is the custodian of records or otherwise establish how he
knows what each particular documeent is other than he is a lawyer for Pohl. This does not
establish the requisite “knowledgfe.” See id. Therefore, the documents attached as exhibits are
nothing more than hearsay yupon hearsay. TEX. R. EVID. 902 (10). Moreover, Shepherd has
failed to provide the Crequisite notice of his filing. Id. For these reasons, the “affidavit” of
Shepherd and all doacuments attached must be struck from the record.
B. Pflaintiffs’ Exhibit B (Declaration of Michael A. Pohl).
KUassab objects to Plaintiffs’ Exhibit B, the sworn declaration of Michael A. Pohl,
Paragraphs 3, 4, 5, 6, 7, 8 and 9. The statements contained in this declaration are conclusory and
constitute no evidence at all. Conclusory affidavits do not raise fact issues and are incompetent
evidence as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996);
1 Response, at Exhibit A.
Stephens v. Precision Drilling Oilfield Servs. Corp., No. 01-11-00326-CV, 2013 Tex. App.
LEXIS 5700, 2013 WL 1928797, at *19 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.)
(mem. op.). “A conclusory statement is one that does not provide the underlying facts to support
the conclusion.” Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App. – Houskton [14th Dist.]
2000, pet. denied). Moreover, an affidavit is conclusory when it expresses “la factual inference
without stating the underlying facts on which the inference is based.” E.Ic. du Pont de Nemours &
Co. v. Shell Oil Co., 259 S.W.3d 800, 809 (Tex. App.—Houston [1sts Dist.] 2007, pet. denied).
Pohl’s declaration consists of nothing but conclusory statements. Kassab objects to
Paragraph 3, which states: “I was and am the rightful owner of the confidential, privileged and
trade secrete information that Kassab obtained from Scott Favre and Tina Nicholson on which
this suit is based.”2 This statement is conclusory because Pohl fails to describe what the
purported confidential information or trade seacrets are or explain how he is the rightful owner of
this information as opposed to Scott Favre or his entities who have claimed to be the owner of
the marketing lists provided to Kassaeb. Moreover, Pohl fails to explain how the information even
constitutes a trade secret. See Gafme Sys. v. Forbes Hutton Leasing, Inc., No. 02-09-00051-CV,
2011 Tex. App. LEXIS 4098y, at *76 (Tex. App. – Fort Worth, May 26, 2011, no pet.) (mem. op.)
(statement that the softCware “constitutes a trade secret” was conclusory and not proper evidence).
Kassab objeacts to Paragraph 4 which states, “I did not provide consent for Kassab to
exercise dominifon and control over the property, and his exercise of that dominion and control is
wrongfulU.”3 Pohl does not provide any factual support for this statement or explain why Kassab’s
exercise and control over lists he obtained rightfully from Favre or his counsel is wrongful. See
2 Response, Exhibit B, ¶ 3.
3 Response, Exhibit B, ¶ 4.
McCollum v. Bank of N.Y. Mellon Tr. Co., 481 S.W.3d 352, 362 (Tex. App.—El Paso 2015, no
pet.) (conclusory statements in affidavit that conduct is “allegedly wrongful” is insufficient to
raise fact issue that conduct alleged is in fact wrongful).
Kassab objects to Paragraph 5 which states, “I have incurred damagesk as a result of
Kassab’s conversion of my property, through at the very least, by thel exposure of the
confidential materials and information, which results in a loss of the cintrinsic value to me as
trade secrets and confidential materials.”4 Again, Pohl does not prosvide any factual support for
the conclusion that he had been damaged. Pohl does not state what the alleged trade secrets or
confidential materials are or explain how he is allegedly damaged by Kassab’s alleged
misappropriation of the material. See Celtic Props., L.C. v. Cleveland Reg'l Med. Ctr., L.P., No.
09-13-00464-CV, 2015 Tex. App. LEXIS 8051, 2015 WL 4600661, at *3 (Tex. App.—
Beaumont July 31, 2015, no pet.) (mem. op.)a (statement that property was “damaged” as a result
of defendant’s conduct was insufficient as a matter of law); Chapa v. Stonehaven Dev., Inc., No.
13-13-00030-CV, 2013 Tex. App. LeEXIS 10159, at *9 (Tex. App. – Corpus Christi, Aug. 15,
2013, no pet.) (mem. op.) (statefment “we lost the profits we would have made” is conclusory
because it provides no undeyrlying facts to support the conclusion); see also Fraud-Tech, Inc. v.
Choicepoint, Inc., No.C 02-05-150-CV, 2006 Tex. App. LEXIS 3181, 2006 WL 1030189, at *5
(Tex. App.—Fort Waorth Apr. 20, 2006, no pet.) (mem. op.) (finding affidavit testimony that
appellants weref damaged because of the alleged conversion conclusory when affiant did “not
supply faUcts underlying its conclusions”).
Kassab objects to Paragraph 6 which states “Before they were stolen, I took substantial
measures to maintain the materials and information that Kassab obtained from Scott Favre and
4 Response, Exhibit B, ¶ 5.
Tina Nicholson as confidential and protected them as valuable trade secrets. I strictly limited
access to them and by maintaining physical copies under lock and key.”5 These statements are
conclusory. Pohl does not describe what “substantial” measures he allegedly took to maintain
information obtained by Kassab, what the information obtained by Kassab even kis, or state how
the information obtained by Kassab is allegedly a “valuable trade secret.” Polhl makes no effort
to describe how he “strictly limited” access to his alleged confidential icnformation given that it
freely ended up in the hands of Favre, who claimed ownerships of the marketing material
provided to Kassab. 
Kassab objects to Paragraph 7 which states, “The stolen materials and information have
independent economic value from not being generally known to, and not readily being
ascertainable through proper means by, another person who can obtain economic value from the
disclosure or use of the information.”6 This staat r ement is conclusory as Pohl does not provide any
facts to support this statement. Pohl does not describe how any materials were purportedly
stolen, what the materials even are, ehow the materials are not known to the general public, or
how the materials allegedly provifde economic value to Pohl.
Kassab objects to pyaragraph 8 which states “Kassab’s misappropriation of my trade
secrets has caused meC damages in both the form of actual loss of the value of my confidential
materials and of unajust enrichment to Kassab as a result of his wrongful misappropriation.”7 This
statement is confclusory. Pohl provides no facts to explain how Kassab allegedly misappropriated
the tradeU secrets, how the information even constitutes a trade secret, or how the loss of the
5 Response, Exhibit B, ¶ 6.
6 Response, Exhibit B, ¶ 7.
7 Response, Exhibit B, ¶ 8.
information allegedly caused Pohl damages or unjustly enriched Kassab. See Plas-Tex, Inc. v.
Jones, NO. 03-99-00286-CV, 2000 Tex. App. LEXIS 3188, at *18 (Tex. App. – Austin, May 18,
2000, pet. denied) (mem. op.) (“conclusory statements regarding the value of intangible assets
such as unidentified trade secrets” was insufficient to support claim of damages)k. The purported
loss to Pohl of any alleged misappropriation of trade secrets is also speculativel.
Finally, Kassab objects to Paragraph 9 which states “In the sacme ways that Kassab’s
conversion and misappropriation of my confidential information injusred me, I was injured by the
conspiracy to commit those torts.”8 This is a conclusory statement within a conclusory statement.
Pohl does not describe the purported conversion or misappropriation and makes no effort to
provide any facts supporting the alleged conspiracy claims. This statement is insufficient as a
matter of law. See Methodist Hosp. v. Zurich Am. Ins. Co., 329 S.W.3d 510, 530 (Tex. App.—
Houston [14th Dist.] 2009, pet. denied) (caoncluding that affiant’s “bare assertion” that the
conduct of the opposing party was the “causal connection” of its damages was conclusory and
“substantively defective” and nothinge more than affiant’s subjective opinion).
f II
REPLY
A. Any documentation that Kassab obtained from Favre and/or his
counselC, Tina Nicholson come from Precision, not Pohl.
Pohl arguesa that Kassab converted and stole his files. However, the evidence is clear that
any documents fKassab obtained from Favre or Nicholson came into Favre’s possession when he
purchasedU Precision Marketing Group. Precision owned the documents, not Pohl. Even
assuming arguendo that the documents were somehow part of Pohl’s legal files, which Kassab
8 Response, Exhibit B, ¶ 9.
denies, Pohl still would not own the files because those files would belong to the client. Texas
Rule of Professional Conduct, 1.15 (d) specifically provides:
Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client’s interests, such as giving reasonable
notice to the client, allowing time for employment of other counsel, surrenkdering
papers and property to which the client is entitled and refunding anyr advance
payments of fee that has not been earned. The lawyer may retain paplers relating
to the client to the extent permitted by other law only if such retention will not
prejudice the client in the subject matter of the representation. c
TEX. DISCIPLINARY R. PROF’L. CONDUCT 1.15 (d) (emphasis added).s
The Rule cited above is clear and concise. Moreover, the courts enforcing this Rule are
clear and unambiguous. The Texas Supreme Court has stated, “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 Kenneth George-consolidated with- In Re Epic Holdings, Inc., 28 S.W.3d 511,
516 (Tex. 2000); see also Hebisen v. State, 6a15 r S.W.2d 866, 868 (Tex. Civ. App.—Houston [1st
Dist.] 1981, no writ). Moreover, everything in the entire file having to do with a clients’
representation, i.e. attorney notes, elegal memoranda, etc., etc., etc. belongs to the client.
Resolution Trust Corp. v. H--, Pf.C., 128 FRD 647, (N.D. Tex. 1989) (holding that the attorney
may retain a copy of the filey at the attorney’s expense, however, the original file belongs to the
client); Nolan v. FCoreman, 665 F.2d 738, reh’g denied, 671 F.2d 1380 (5th Cir.
1982). Furthermorea, the contents of a client’s file must be turned over to the client promptly
upon request. Hfebisen, 615 S.W.2d at 868. The failure to do so is willful and malicious, and
constituteUs dishonorable conduct. Smith v. State, 490 S.W.2d 902, 909 (Tex. Civ. App.—
Corpus Christi 1972, writ ref’d, n.r.e.). Retention of documents is only permitted to secure a
debt if and only if such retention will not prejudice the client in the subject matter of the
representation. Smith, 490 S.W.2d at 910; TEX. DISCIPLINARY R. PROF’L. CONDUCT 1.15 (d).
Therefore, Pohl lacks standing to sue Kassab for conversion or theft of trade secrets because Pohl
never owned any of the subject documents.
B. The commercial exception does not apply.
Pohl argues in his response that the TCPA does not apply to this case bekcause this case
falls under the statutory exemption for commercial speech found in sectioln 27.010(b). This
section states: c
[The TCPA] does not apply to a legal action brought againsst a person primarily
engaged in the business of selling or leasing goods or servDices, if the statement or
conduct arises out of the sale or lease of goods, services, or an insurance product,
insurance services, or a commercial transaction in whisch the intended audience is
an actual or potential buyer or customer.
TEX. CIV. PRAC. & REM. CODE § 27.010(b). “The par
ty asserting the exemption bears the burden
of proving its applicability.” See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex.
2018); Schimmel v. McGregor, 438 S.W.3d 8a47, 857 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied). 
Pohl contends that that his ceonversion and theft of trade secrets claims fall within this
exemption because (1) Kassab wfas primarily engaged in the business of selling legal services;
(2) the claims against Kassayb arose from Kassab’s conduct in allegedly purchasing Pohl’s list of
clients and former clCients for the purpose of soliciting those clients; (3) Kassab’s conduct
occurred in the coaurse of delivering his legal services; and (4) the intended audience of his
conduct was a pfotential buyer, the clients.9 This is not accurate.
InU determining whether some of Pohl’s claims fall within the commercial-speech
exemption, the Court must examine the evidence, which in this case consists of Pohl’s own
pleadings. See TEX. CIV. PRAC. & REM. CODE § 27.006. Pohl alleges that Favre and his counsel
9 Response, p. 11.
stole from him information about his clients and prospective clients and “secretly sold Pohl’s
stolen confidential information and property to Kassab” and that Kassab “knew that the
information and property that [he was] purchasing was stolen and not Favre’s and/or [his
counsel’s] to sell.”10 Pohl alleges that “Using the stolen confidential informatiokn and property
that he knowingly purchased, Kassab solicited those clients/prospective clientsl to act as plaintiffs
… to bring cases against Pohl for alleged barratry and other claims.”11 Pco t hl does not allege that
the agreement between Kassab and Favre effectuated a sale of legasl services or that any of the
conduct for which he sues Kassab arises out of the sale of services that Kassab is “primarily
engaged” in.
“The exemption expressly provides that the TCPA does not apply to a legal action
brought against a person primarily engaged in the business of selling or leasing goods or
services, but only if the statement or conducat arises out of the sale or lease of goods, services,
or an insurance product, insurance services, or a commercial transaction.” Castleman, 546
S.W.3d at 688 (emphasis added) (inteernal quotations omitted). The Texas Supreme Court opined
in Castleman that the exception fcan only apply when “(1) the defendant was primarily engaged
in the business of selling ory leasing goods, (2) the defendant made the statement or engaged in
the conduct on which Cthe claim is based in the defendant's capacity as a seller or lessor of those
goods or services, a(3) the statement or conduct at issue arose out of a commercial transaction
involving the kifnd of goods or services the defendant provides, and (4) the intended audience of
the statemUent or conduct were actual or potential customers of the defendant for the kind of
goods or services the defendant provides. Id. Pohl has failed to prove establish each of these
elements.
10 Plaintiffs’ Original Petition, ¶ 21.
11 Plaintiffs’ Original Petition, ¶ 22.
More specifically, even if the alleged conduct at issue (i.e., conduct amounting to
conversion or theft of trade secretes) “arose out of” Kassab’s alleged theft of trade secrets or
conversion of files, as Pohl alleges, Pohl has nevertheless failed to establish that this type of
conduct is a “commercial transaction involving” legal services or any other type kof services that
Kassab is primarily engaged in. See id. In other words, Pohl has not establlished that Kassab
“engaged in the conduct on which the claim is based in the defendant'cs capacity as a seller or
lessor of those goods or services.” Id. Stated another way, Kassab sis not primarily engaged in
purchasing marketing lists and client files, which is the business which Pohl alleges these claims
arise. Similarly, with respect to the fourth element of the commercial exception, Pohl has failed
to demonstrate that the intended audience of Kassab’s alleged conduct (i.e., the conversion and
theft of trade secrets) were actual or potential customers of Kassab for the kind of goods or
services that Kassab is “primarily engaged” ina. See id. Consequently, Pohl has therefore failed to
establish that his conversion and theft of trade secret claims fall within the commercial-speech
exemption. e
f III
CONCLUSION & PRAYER
For the reasons set forth herein and in the initial motion, Defendants/Counter-Plaintiffs
Lance Christopher Kassab and The Kassab Law Firm respectfully request the Court to grant this
Motion to Dismiscs 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 and award
reasonable and necessary attorney’s fees and costs as required by the statute.
10
Respectfully submitted,
THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
LANCE CHRISTOPHER KASSAB
Texas State Bar No. 0079407k0
lance@kassab.law r
DAVID ERIC KASSAB
Texas State Bar No. 24071351
david@kassab.law c
1214 Elgin Street r
Houston, Texas s77004
Telephone: 71D3.522.7400
Facsimile: 713.522.7410
ATTORNEYS FOR LANCE CHRISTOPHER
KASSAB rAND THE KASSAB LAW FIRM
CERTIFICAaTE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has
been forwarded to all parties pursuant too the Texas Rules of Civil Procedure on this the 5th day of
November, 2018. e
f / s / Lance Christopher Kassab
Lance Christopher Kassab
11"
9,2018-11-01,RSP,Pohl,Pohl’s response opposing TCPA MTD,Pohl's Response in Opposition to Kassab's TCPA Motion to Dismiss,"Filed November 1, 2018 in response to Kassab's October 24, 2018 TCPA Motion to Dismiss. Pohl opposes dismissal on three grounds: (1) the TCPA does not apply to his claims, (2) even if it did, the commercial speech exception bars application, and (3) Pohl has established a prima facie case. Includes alternative motion for continuance and discovery. Filed in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas.",TCPA-1,N/A,Phase 1,2018-11-01_RSP_Pohl-Response-to-Kassab-MTD-TCPA_FILED.pdf,"Deny the TCPA Motion to Dismiss in all respects; award Pohl costs and fees of $33,352; alternatively, grant continuance and permit discovery under §§ 27.004(c) and 27.006(b)","11/1/2018 7:18 PM
Chris Daniel - District Clerk Harris County
Envelope No. 28744115
By: Deandra Mosley
Filed: 11/1/2018 7:18 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL’S
RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
PURSUANT TO THE TEXAS CITlIZENS PARTICIPATION ACT
Plaintiffs Michael Pohl and Law OfMfices of Michael A. Pohl (collectively, “Pohl”) respond
in opposition to the Motion to Dismiss filed by Defendants Lance Christopher Kassab and Lance
Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively, “Kassab”). Kassab’s Motion
to Dismiss (the “Motion”) purports to find its basis in the Texas Citizens’ Participation Act, TEX.
CIV. PRAC. & REM. CODEo § 27.001 et. seq. (“TCPA”), but as set forth below the TCPA does not
apply to Pohl’s claims, and even if it did, the Motion would fail.
c I.
INTRODUCTION
Kassab paid $250,000 to obtain the stolen names, addresses, and in some instances actual
client files of Pohl’s former clients and potential clients so that Kassab could solicit those clients
to assert barratry claims. Kassab attempted to disguise the purchase as the engagement of a
putative “expert witness,” whom he agreed to indemnify in the event that Pohl asserted claims for
the theft. Now that Pohl has asserted the anticipated claims, Kassab asks the Court to hold that his
actions and communications in purchasing and using the stolen materials are protected by the
TCPA.
Despite having advocated directly inconsistent positions regarding the kTCPA in other
litigation with Pohl in front of this Court, Kassab brought a meritless Motionl.1 In an attempt to
contort the application of the TCPA and delay this lawsuit, Kassab assercts that the TCPA applies
to Pohl’s causes of action for conversion of confidential information asnd misappropriation of trade
secrets because of the purported motivation behind the assertions of those claims. The TCPA does
not apply because of a defendant’s mere assertion of the motivation for the filing of a claim;
instead, courts consider only whether the factual bases for a claim implicate the statutory
protections. Otherwise, every defendant could simply claim—as Kassab has done here without
evidence—that a particular case had been filead in retaliation for an action protected by the TCPA
and invoke the entire process. 
Instead, a court must examinee the claims that are asserted. Pohl’s claims in no way target
Kassab for the exercise of any rigfhts of free speech, petition, or association. Pohl brings claims to
hold Kassab responsible for yhis wrongful conversion of Pohl’s information and misappropriation
of trade secrets, togethCer with his participation in a conspiracy to commit both torts. The claims
on their face do not implicate the TCPA, and the inquiry should end there.
Perhapsf fbecause the factual bases of Pohl’s claims so clearly do not implicate the TCPA,
Kassab exUpends much time and effort attempting to reframe those claims as acts of retaliation for
Kassab’s actions after he committed the torts for which Pohl sues. More specifically, Kassab
1 See generally Plaintiffs’ Response to Defendants’ Anti-SLAPP Motions to Dismiss, Dezzie Brumfield d/b/a LAD
Enterprises, et al., v. Law Offices of Michael Pohl, et al., No. 2017-38294 (189th Dist. Ct., Harris County, Tex. Sept.
29, 2017) (filed by the Kassab firm), attached as Exhibit 1 to the affidavit of Billy Shepherd (“Shepherd Affidavit”),
which is attached as Exhibit A to this Response.
contends that Pohl brought tort claims against Kassab not because Kassab stole confidential and
trade secret information and materials but because of what Kassab did with those materials after
he stole them. Kassab has the burden of demonstrating the applicability of the TCPA by a
preponderance of the evidence. See LFMC Enterprises, LLC v. Baker, 546 S.W. 3dk 893, 897 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied). Kassab offers no evidence of alny kind to support
his contention that the lawsuit is retaliatory. Kassab’s failure to sustain hics burden of proof is fatal
to his Motion. s
Moreover, even if the TCPA jurisprudence permitted tshis type of exercise, and even if
Kassab had demonstrated by a preponderance of the evidence that the purported motivations for
Pohl’s suit implicated one of Kassab’s rights protected by the statute, Kassab’s claim under the
TCPA would nevertheless fail. If, as Kassab contends, Pohl sued Kassab because “Kassab legally
and ethically contacted Pohl’s former clients aor prospective clients and filed suit against Pohl on
behalf of these individuals,”2 then Pohl’s suit would be exempt from the TCPA by virtue of the
commercial exception to that statute. e TEX. CIV. PRAC. & REM. CODE § 27.010(b). Because Kassab
was at all times acting as a persofn primarily engaged in the business of selling his services as an
attorney, his contacts with Pyohl’s clients and former clients to solicit them to bring barratry suits
fall squarely within theC commercial exception to the statute. Kassab’s actions in filing a grievance
against Pohl also fall within the commercial exception and are not protected by the TCPA. It is
apparent on thef f face of the grievance itself—which Kassab attached to his Motion even though it
is designaUted by the State Bar as “strictly confidential3—that Kassab uses the State Bar grievance
mechanism as a part of his litigation strategy.4
2 Motion at 15.
3 See Grievance, attached as Exhibit 21 to the Motion, at 6 (“Disciplinary Proceedings are strictly confidential”).
4 See id. at 8, n. 1 (Kassab describes his history of filing grievances in connection with civil lawsuits).
Although it is clear that the TCPA does not apply to Pohl’s claims, Pohl fully sets forth his
prima facie case for each element of his causes of action. The pleadings and the affidavits Pohl
supplies can leave no question that he has satisfied the second prong of the TCPA analysis.
Kassab argues but fails to conclusively establish the affirmative defensesk that he asserts
entitle him to dismissal. Limitations has not run even as of today. The attorneyl immunity doctrine
does not apply to conduct undertaken outside the scope of representing ac client. And res judicata
does not apply in these circumstances to bar the claims. s
Finally, Pohl is entitled to his fees and costs in respondsing to Kassab’s Motion. Kassab
clearly knew upon filing the Motion that it would fail, given his experience on the opposite side
of the issue in this very Court.
II.
ARGaUMENT
A. KASSAB’S MOTION TO DISMISS SHOULD BE DENIED
The Texas Legislature enaceted the Texas Citizens Participation Act (“TCPA”) “to
encourage and safeguard the confstitutional rights of persons to petition, speak freely, associate
freely, and otherwise particiypate in government to the maximum extent permitted by law and, at
the same time, protect Cthe rights of a person to file meritorious lawsuits for demonstrable injury.”
TEX. CIV. PRAC. & REM. CODE § 27.002 (emphasis added). The TCPA is intended to identify and
dispose of lawsfufits that are “designed to chill First Amendment Rights, not to dismiss meritorious
lawsuits.”U In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015).
“Courts use a ‘two-step procedure to expedite the dismissal of claims brought to intimidate
or to silence a defendant’s exercise of these First Amendment rights.’” Wayne Dolcefino &
Dolcefino Communications, LLC v. Cypress Creek EMS, 540 S.W.3d 194, 198 (Tex. App.—
Houston [1st Dist.] 2017, no pet.) (quoting ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895,
898 (Tex. 2017)). The first step of the TCPA analysis requires that the movant establish by “a
preponderance of evidence that the suit he is seeking to dismiss ‘is based on, relates to, or is in
response to the [movant’s] exercise of: (1) the right of free speech; (2) the right tok petition; or (3)
the right of association.’” Id. (alterations in original) (quoting TEX. CIV. P CRAlC. & REM. CODE §
27.003). c
If the movant sustains its burden of demonstrating by a preponsderance of the evidence that
the claims fall within the ambit of the TCPA, and only then, thse court turns to the second step in
the process. That step shifts the burden to the non-movant to provide by clear and specific evidence
a prima facie case supporting the elements of its claim.
TEX. CIV. PRAC. & REM. CODE § 27.005(c).
In examining whether a plaintiff has sustained its burden of demonstrating a prima facie case, a
court is obligated to consider “the pleadings aand supporting and opposing affidavits stating the
facts on which the liability or defense is based.” Id. § 27.006(a). A prima facie case is established
when the pleadings and evidence suppely the “‘minimum quantum of evidence necessary to support
a rational inference that the allegfation of fact is true.’” In re Lipsky, 460 S.W.3d at 590 (quoting
In re E.I DuPont de Nemourys & Co., 136 S.W.3d 218, 223 (Tex. 2004)).
As set forth belCow, neither of the two prongs of the TCPA is satisfied here, and Kassab’s
Motion should be denied.
1. fPohl’s allegations on their face do not implicate the TCPA
PoUhl asserts three claims against Kassab in his Original Petition: (1) conversion, (2)
violations of the Texas Uniform Trade Secrets Act (“TUTSA”), and (3) civil conspiracy. Original
Petition at 9–11. To determine whether Kassab has met the preponderance of the evidence
standard, the Court should start with the petition to determine the basis of the legal action. Hersh
v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (the “basis of a legal action is not determined by the
defendant’s admissions or denials but by the plaintiff’s allegations”). Courts “do not blindly accept
attempts by the [defendants] to characterize [plaintiff’s] claims as implicating protected
expression.” Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2015k, pet. dism’d).
Instead, courts should “favor[] the conclusion that [the plaintiff’s] claims arel not predicated on
protected expression.” Id. Further, “any activities by the [defendantsc] that are not a factual
predicate for [the plaintiff’s] claims are simply not pertinent to the insquiry.” Id.
Although Kassab baldly asserts that Pohl’s claims were bsrought “in retaliation” for certain
of his actions and that Pohl has somehow admitted as much, the Court may not “blindly accept”
that characterization of Pohl’s allegations. Instead, the Court must keep in mind that there needs
to “be a connection between the claims in the lawsuit and the alleged protected conduct.” Wayne
Dolcefino, 540 S.W.3d at 201. The Court muast view the evidence “in the light most favorable to
the nonmovant.” Id. at 199. In sum, the Court’s inquiry should be (1) what the factual bases for
Pohl’s claims are, based on the pleadeings and evidence viewed in the light most favorable to him,
and (2) the extent to which these ffactual bases, as a matter of law, are protected expression within
the TCPA’s definition. Sloayt, 513 S.W.3d at 504.
As the pleadingCs make clear, Pohl sues Kassab for conversion because Kassab knowingly
purchased confiden a tial information and materials that were stolen from Pohl.5 Kassab’s liability
for this wrongffufl conduct is not based on facts related to the exercise of the rights of free speech,
petition, Uor association. Instead, his liability is based on his knowing and intentional acts of
conversion and theft of trade secrets.
5 See Original Petition at ¶¶ 4, 30, 31, 32, 33.
Similarly, Pohl’s TUTSA claim is based on the same underlying conduct as the conversion
claim, except it is limited to conduct related to the stolen trade secrets.6 For the same reasons as
above, the factual basis of liability for this claim does not trigger protections under the TCPA.
Pohl’s conspiracy claim involves Kassab’s and the other Defendants’ ovkert acts in their
plan to steal and misappropriate Pohl’s trade secrets and other proprietary informlation.7 Yet again,
nothing in the factual basis of liability for this claim is based on or targetsc Kassab for the exercise
of the rights of free speech, petition, or association. s
For all three of Pohl’s claims against Kassab, the thesory of liability is predicated on
wrongful acts, not protected speech or conduct. The lawsuit was brought to vindicate Pohl’s rights,
not in retaliation for any TCPA protected conduct. The pleadings and evidence which the Court
must use to determine if the TCPA applies makes this clear. The Texas Supreme Court has held
that the petition is the “best and all-sufficient eavidence of the nature of the action.” Hersh v. Tatum,
526 S.W.3d 462, 467 (Tex. 2017) (quoting Stockyards Nat. Bank v. Maples, 95 S.W.2d 1300, 1302
(Tex. Comm’n App. 1936)), and Pohel’s Original Petition establishes that the nature of the action
does not implicate the TCPA. f
2. Kassab has nyot sustained his burden of demonstrating the applicability of the
TCPA to Pohl’s Claims.
As the movant, Kassab has the burden to show by a preponderance of the evidence that
Pohl’s claims arec “based on, relate[] to, or [are] in response to [Kassab]’s exercise of” some
protected sp
eech or act. TEX. CIV. PRAC. & REM. CODE § 27.005(b). As set forth above, Pohl’s
claims on their face do not support Kassab’s invocation of the TCPA. Given that the claims do
not clearly fall within the statute, Kassab is required to show a “connection between the claims in
6 See id. ¶¶ 34–37.
7 See id. ¶ 38.
the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. And Kassab
must demonstrate that the protected conduct on which Kassab relies must be connected to the
“facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a).
In spite of the substantial volume of “evidence” he filed in support of his Mkotion, Kassab
has supplied no evidence—much less a preponderance of the evidence—that lPohl’s lawsuit was
asserted solely or even partly in retaliation for any act or communicatcion protected under the
TCPA. Instead, Kassab resorts to asserting (without support) thats he knows the reasons and
motivations for Pohl’s claims in this suit and that the suit wass motivated by Kassab’s protected
speech and actions.8 Courts have explicitly rejected this very tactic, holding that a defendant
cannot rely on a purported motivation for bringing a claim to support a motion to dismiss under
the TCPA. See Sloat, 513 S.W.3d at 504 (rejecting the defendant’s effort to “recast [the Plaintiff’s]
petition as complaining principally” of actioans of protest instead of the actions on which the
petition was based). 
Kassab’s mere allegation thate the suit is retaliatory is not enough to make it so. Perhaps
recognizing this problem, Kassabf asserts that “Pohl has judicially admitted that he has brought his
suit against Kassab solely beycause Kassab legally and ethically contacted Pohl’s former clients or
prospective clients anCd filed suit against Pohl on behalf of these individuals.”9 Kassab cites
language in Pohl’s Original Petition alleging that “Kassab solicited clients/ prospective clients [of
Pohl’s] to act afsf Plaintiffs. . . . to bring cases against Pohl for alleged barratry and other claims.”10
This quotUation from Pohl’s Original Petition does not constitute a judicial admission of anything,
much less an admission concerning the motivating force behind Pohl’s suit. Pohl’s recitation of
8 See, e.g., Motion at 1, 19, 21.
9 See id. at 15.
10 Id. (alterations in original).
true facts regarding Kassab’s actions—facts that Kassab has acknowledged—is not enough to
show a connection between the claims Pohl has alleged and Kassab’s protected conduct. See
Wayne Dolcefino, 540 S.W.3d at 201.
In various places in his Motion, Kassab cites to Pohl’s Original Petitionk purportedly in
support of his argument that Pohl’s motive was retaliatory, but those citatiolns do not support
Kassab’s conclusion. Instead, the portions of Pohl’s Original Petition Kascsab cites simply set forth
Kassab’s actions, without mentioning a “motive” for bringing suit. As fair reading of the petition
in the light most favorable to Pohl does not support Kassab’s chsaracterization of these additional
factual allegations. See Sloat, 513 S.W.3d at 507 (rejecting attempts to recharacterize every factual
allegation in a petition as providing the basis for a claim); see also LFMC Enterprises, LLC v.
Baker, 546 S.W.3d 893, 898 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (requiring that
the defendant demonstrate the specific connecation between the plaintiff’s claim and the protected
right). 
Kassab provides no support eat all to his theory that Pohl’s suit is tied to any grievance
Kassab may have filed. Pohl’s Ofriginal Petition does not even mention any grievance, much less
make a claim in any way relyating to a grievance. Kassab has no basis at all on which to contend
that the grievance is inC any way related to Pohl’s case.
Kassab’s wholesale failure to support by a preponderance of the evidence his position that
the TCPA applfifes is fatal to his Motion. The Court should deny the Motion on that basis alone.
3.U Even if the TCPA otherwise applies, the commercial exception precludes
dismissal here.
Kassab contorts Pohl’s claims in his effort to assert that they fall within the TCPA. To the
extent, if any, that Kassab succeeds in that effort, the recharacterized claims would fall directly
within the commercial exception to the TCPA. Although Kassab cannot show that any TCPA
protected speech or conduct is connected to Pohl’s claims—as required by the TCPA—even if a
connection could be shown, the speech and conduct would fall within the commercial speech
exception in the statute. The TCPA provides an exception to its general applicability:
This chapter does not apply to a legal action brought against a person pkrimarily
engaged in the business of selling or leasing goods or services, if the steatement or
conduct arises out of the sale or lease of goods, services, or an insuranlce product,
insurance services, or a commercial transaction in which the intended audience is
an actual or potential buyer or customer. c
TEX. CIV. PRAC. & REM. CODE § 27.010(b). The Texas Supreme Csourt has interpreted this as
requiring the following four-part test: s 
(1) the defendant was primarily engaged in the business of selling or leasing goods
[or services], (2) the defendant made the statemernt or engaged in the conduct on
which the claim is based in the defendant’s capacity as a seller or lessor of those
goods or services, (3) the statement or conduct at issue arose out of a commercial
transaction involving the kind of goods or services the defendant provides, and (4)
the intended audience of the statemenlt or conduct were actual or potential
customers of the defendant for the kinda of goods or services the defendant provides.
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018).
As set forth above, Kassab repeeatedly insists that Pohl’s claims were brought in retaliation
for Kassab’s stealing Pohl’s propferty and soliciting his former clients and prospective clients to
file barratry claims and grievyances. See, e.g., Motion at 2, 19–21, 25–26. Kassab’s solicitation of
Pohl’s clients and formCer clients falls squarely within the commercial exception to the TCPA. See
Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 191 (Tex. App.—El Paso 2014, no
pet.) (attorney fafdvertising falls within the commercial exception to the TCPA). Where a lawyer
is primarUily engaged in selling legal services to clients, and the speech arises from the sale of
services where the audience is an actual or potential client, the solicitation falls outside the TCPA’s
protections. See NCDR, L.L.C. v. Mauze v. Bagby, P.L.L.C., 745 F.3d 742 (5th Cir. 2014)
(applying Texas law).
10
It is beyond dispute that Kassab is primarily engaged in the business of selling legal
services. He purchased Pohl’s list of clients and former clients, together with the attorney fee
contracts for the purpose of soliciting those clients. In his capacity as a provider of legal services,
Kassab advertised and sought out Pohl’s potential and former clients. The akdvertising and
solicitation were part of a commercial transaction involving Kassab’s effolrt to provide legal
services. The advertising and solicitation was directed at potential custcomers of Kassab’s legal
services. Kassab’s solicitation of Pohl’s clients and former clientss is commercial speech and
outside the protections of the TCPA. In fact, Kassab has tasken this position himself in his
representation in another case.11
To the extent that the Court is convinced by Kassab’s effort to reframe Pohl’s Original
Petition as retaliation for Kassab’s actions in contacting and soliciting Pohl’s clients and former
clients, Kassab’s Motion nevertheless fails. Kaassab’s actions were entirely commercial in nature
and fall squarely within the commercial exception to the TCPA.
Kassab further contends thate Pohl’s suit is brought in retaliation for Kassab’s filing of
barratry suits and grievances agaifnst Pohl. As an initial matter, Kassab’s filings do not implicate
Kassab’s protected rights; thyey instead implicate the protected rights of Kassab’s clients, who are
not parties here. See CLFMC Enterprises, LLC v. Baker, 546 S.W.3d 893, 898 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied) (requiring that the rights being protected be the rights of the
party, and not af f third party to the action). Without an assertion of Kassab’s own protected rights,
the TCPAU is not implicated.
In addition, the commercial exception should extend to an attorney’s action in filing a
lawsuit on behalf of another. The attorney’s purpose in that instance is undeniably commercial—
11 See Brumfield Litigation Plaintiffs’ Response, Exhibit 1 to the Shepherd Affidavit, Exhibit A, at 22.
11
as Kassab’s clearly was in bringing the barratry actions. The statute creates an exception for
commercial activity that should apply to an attorney’s actions in pursuit of a client’s case. The
grievance against Pohl also falls within the commercial exception because Kassab’s use of the
State Bar grievance process is as a tactic to increase pressure on the lawyers that hke sues.12
At the end of his unsupported argument that the TCPA applies to Pohll’s claims, Kassab
discusses two cases. Motion at 19–21 (discussing Collins v. Collins, No.c 01-17-00817-CV, 2018
WL 1320841 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. filsed) (mem. op.) and Reeves v.
Harbor Am. Cent., Inc., 552 S.W.3d 389 (Tex. App.—Housston [14th Dist.] 2018, no pet.)).
Neither case is supportive of Kassab’s position. The court in Collins addressed whether the right
to petition required a nexus to a matter of public concern. Collins, 2018 WL 1320841 at *2. The
lawsuit itself in Collins was factually predicted on claim that a party filed a fraudulent affidavit in
a divorce proceeding. Id. a
The Reeves case is similarly unhelpful. The court in that case simply held that the trial
court was required to conduct a TCPAe analysis as required by the statute and could not summarily
conclude that “[t]he [TCPA] asf a matter of law does not allow a party to avoid contractual
obligations such as the onesy at issue here.” Reeves, 552 S.W.3d at 392. The court remanded the
case to the trial court tCo conduct a full TCPA analysis. Id. at 396. Pohl does not deny that this
Court should conduct a TCPA analysis; instead Pohl asserts that that the TCPA does not apply and
that Kassab hasf f failed to carry his burden under prong one of the TCPA.
12 See Grievance, attached as Exhibit 21 to the Motion, at 8, n. 1 (Kassab describes his history of filing grievances in
connection with civil lawsuits).
12
4. There is clear and specific evidence demonstrating a prima facie case.
Kassab’s failure to satisfy the first prong of a motion pursuant to the TCPA relieves Pohl
of any burden of demonstrating a prima facie case of his claims. Pohl nevertheless sets forth below
the clear and specific evidence in his pleading and the attached affidavits for eachk element of the
claims he has asserted against Kassab.13 l
Pohl asserts three causes of action against Kassab: (1) conversicon; (2) violations of the
Texas Uniform Trade Secrets Act, TEX. CIV. PRAC. & REM. CODE Cshap. 134A (“TUTSA”); and
(3) conspiracy to commit conversion and to violate TUTSA. Thes elements of the conversion claim,
as asserted in the Original Petition against Kassab, are that (a) Pohl owned and owns certain
property and information; (b) Kassab purchased that information knowing that it had been stolen
from Pohl; and (c) Kassab wrongfully exercised dominion and control over Pohl’s property in
contravention of Pohl’s rights. The elements aof a violation of TUTSA against Kassab are that (a)
Kassab purchased Pohl’s trade secrets knowing that they had been acquired by improper means;
and (b) and knowing that he did neot have Pohl’s express or implied consent. Finally, the
conspiracy claim alleges that Kfassab acted in combination with the other defendants and
committed overt acts towardy unlawful conversion and misappropriation.
In examining wChether a plaintiff has sustained its burden of demonstrating a prima facie
case, the Court is obligated to consider “the pleadings and supporting and opposing affidavits
stating the factfsf on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE §
27.006(a)U. Where a plaintiff provides enough detail in his pleading to “show the factual basis for
its claim,” such a pleading “is sufficient to resist a TCPA motion to dismiss.” In re Lipsky, 460
S.W.3d 579, 591 (Tex. 2015). A prima facie case is established when the pleadings and evidence
13 In support of this Response, Pohl has attached three sworn documents, the affidavit of Billy Shepherd, Exhibit A;
the declaration of Michael Pohl, Exhibit B; and the declaration of Jean C. Frizzell, Exhibit C.
13
supply the “‘minimum quantum of evidence necessary to support a rational inference that the
allegation of fact is true.’” Id. at 590 (quoting from In re E.I DuPont de Nemours & Co., 136
S.W.3d 218, 223 (Tex. 2004)).
Pohl’s pleading—the Original Petition—sets forth in abundant detaikl each of the
allegations against Kassab. Pohl alleges that he hired defendant Precision Marlketing Group, LLC
(“Precision”) to assist him in gathering and preserving evidence and liaicse with Pohl’s clients.14
Precision thereby gained access to Pohl’s confidential and proprietarsy information relating to his
client’s identity and contact information as well as his engagsement agreements, contacts with
clients and various of Pohl’s proprietary forms.15 Pohl alleges that Defendants Precision and Scott
Favre, with the assistance of Defendant Tina Nicholson, stole physical copies of certain
information, stole Pohl’s computers, and misappropriated electronic data to which they had access
through Precision’s work for Pohl, includinga actual attorney–client fee agreements protected by
the attorney–client privilege.16 Precision and Favre entered into a settlement agreement with Pohl
in which they agreed to return to Poehl or delete the confidential and proprietary information in
their possession, custody and conftrol.17
Precision and Favre hyad secretly entered into an agreement with Kassab and defendants F.
Douglas Montague III Cand Montague Pittman & Varnado, P.A. (collectively, “Montague”) to sell
Pohl’s stolen confid a ential information and property.18 Kassab and Montague paid Favre $250,000,
together with sfufbstantial bonuses knowing that they purchased stolen information and property.19
These spUecific, detailed allegations of each element of conversion, theft of trade secrets, and
14 Original Petition at ¶¶ 19, 20.
15 Id. ¶ 20.
16 Id. ¶ ¶ 20, 21.
17 Id. ¶ 3.
18 Id. ¶ 21.
19 Id.
14
conspiracy are by themselves sufficient to set forth a prima facie case meeting the requirements of
the TCPA. TEX. CIV. PRAC. & REM. CODE § 27.005(a); see also Hicks v. Group & Pension
Administrators, Inc., 473 S.W.3d 518, 526 (Tex. App.—Corpus Christi 2015, no pet.).
Although Pohl’s Original Petition establishes a prima facie case without thke necessity for
further inquiry, Pohl also submits affidavits containing substantial prima facie elvidence supporting
those claims. As an initial matter, Kassab has admitted certain factual acspects of Pohl’s claims.
Kassab states in his Declaration: s
Upon learning of the Mississippi Litigation, I and staff ats my office obtained a large
amount of information related to the Mississippi Litigastion from the federal court’s
online public access to court records system, PACER. I also met with Scott Favre
(“Favre”), who I understood became the owner of Prrecision Marketing Group, LLC
(“Precision Marketing”) through a purchase agreement he had with the prior
owners. Favre and his counsel, Tina Nicholson (“Nicholson”) provided me with
information from Precision Marketing’s files, including the names and addresses
of Pohl’s former clients or prospective clilents.
See Declaration of Lance Christopher KassMab, attached as Exhibit 1 to his Motion. Kassab freely
admits that he obtained from Favre and Favre’s counsel, Tina Nicholson, information that included
the names and addresses of Pohl’s former clients and prospective clients. Kassab has also
admitted, at least implicitly, that he paid Favre. In a pleading filed in Cause No. 2017-38294,
Debbie Brumfield d/b/a Lad Enterprises, et. Al. v. Jimmy Williamson, Jimmy Williamson, PC,
Williamson & Rusnak, Cyndi Rusnak, Cyndi Rusnak PLLC, and Law Offices of Michael Pohl, in
the 189th Judiciacl District Court of Harris County, Texas (the “Brumfield Litigation”), Kassab
stated,
Prior to the settlement, however, Favre was hired by the undersigned counsel [i.e.
Kassab] and a Mississippi law firm to provide consulting services regarding the
value of any underlying claim against BP.20
20 See Brumfield Litigation Plaintiffs’ Response, Exhibit 1 to the Shepherd Affidavit, Exhibit A, at 18.
15
On a separate occasion, Kassab described his arrangement with Favre differently, as “an agreement
with an expert witness.”21
Kassab does not deny that he (1) obtained from Favre and Precision the confidential
information and materials that are the subject of Pohl’s conversion and misappropkriation of trade
secrets claims, and (2) that he entered into an agreement with Favre pursuant tol which Kassab paid
Favre. Given these admissions, many aspects of Pohl’s prima facie ccase are uncontroverted.
Kassab has admitted that he acquired the “names and addresses sof Pohl’s former clients or
prospective clients,” which provides prima facie support for ksey elements of Pohl’s claims of
conversion and theft of trade secrets.
The attached affidavits provide prima facie evidence of the following facts. Scott Favre,
PA LLC, the Kassab Law Firm and Montague, Pittman and Varnado, P.A. entered into an
Agreement, dated November 10, 2016, eaxecuted by Lance Kassab (the “Favre–Kassab
Agreement”).22 The Favre–Kassab Agreement contains many relevant provisions, including:
• That Kassab and Montague weill pay Favre an hourly rate of $250, a large per-case fee,
and an “upfront advancef pay retainer to Favre forin [sic] the amount of $250,000 to be
credited against firsyt fees earned by Favre. This retainer is fully earned at the time of
payment and isC not refundable. Subsequent hourly fees are not to be credited against the
retainer.”23a
• That Kfassab and Montague “shall indemnify and hold harmless Favre for from [sic] any
aUnd all costs he incurs in defending claims relating to an/or arising from the disclosure of
any client information where such claims are asserted by . . . Michael Pohl. . . . Favre
21 See Kassab’s Letter, dated July 20, 2018, to Timothy J. Baldwin, attached as part of Exhibit 21 to Kassab’s Motion.
22 A copy of the Favre–Kassab Agreement is attached as Exhibit 3 to the Shepherd Affidavit, Exhibit A.
23 See Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit, Exhibit A, p. 1.
16
certifies that he is not aware of any contractual or legal provision that prohibits him from
making such disclosure to [Kassab and Montague]”24
• That the parties “agree that this Agreement is confidential and shall remain confidential
for all times.”25 k
On its face, the Favre–Kassab Agreement proves that Kassab agreed to payC Flavre an enormous
upfront payment of $250,000, together with substantial sums over timce. The amount of the
payment alone is prima facie evidence that Kassab knew that the confidential information and
material he was buying was not publicly known and that it belosnged to Pohl.
The Favre–Kassab Agreement also obligates Kassab to indemnify Favre from claims that
Pohl might bring—making clear that Kassab contemplated that Pohl might assert such claims at
the time he executed the agreement. What possible reason could there be for Kassab to agree to
indemnify if Favre owned the materials and inaformation that was the subject of the Favre–Kassab
Agreement? Why would indemnity be necessary if the information and materials were publicly
known? Again, these facts support Peohl’s prima facie case of misappropriation.
Similarly, the requiremefnt in the Favre–Kassab Agreement that the parties keep the
agreement confidential suggyests that the parties understood that disclosure of the existence of the
agreement and its termCs might raise substantial issues. If the materials and information were
publicly known and belonged to Favre, what was the necessity for confidentiality? Each of these
facts supports fPohl’s allegation that the materials and information were trade secrets and that
Kassab kUnew that the confidential information and material he purchased from Favre was stolen.
Favre’s testimony regarding the parties’ performance of the Favre–Kassab Agreement
provides additional support for Pohl’s contentions. In a hearing conducted on October 25, 2017
24 Id. p. 3.
25 Id.
17
in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., in the United
States District Court for the Southern District of Mississippi, Southern Division (“Walker v.
Williamson Litigation”),26 Favre confirmed that Kassab, Montague or their firms had in fact paid
the $250,000 to Scott M. Favre, P.A.27 Favre testified that he did not sell attokrney/client fee
contracts to Kassab and Montague but instead gave them away to Tina Nlicholson.28 Favre
acknowledged that an email, dated December 7, 2016 and sent from Mcontague to Kassab and
others, reflected that Favre had called to check that Kassab’s office shad been receiving Dropbox
deliveries of contracts over the last several days.29 Favre testifieds that between the time he received
the payment of $250,000 and April 2017, he had received no fees, provided no work and
exchanged no documents under the Favre–Kassab Agreement.30
Nicholson’s testimony contradicts Favre’s testimony in at least one enlightening way.31
Nicholson testified that Favre did not give hera the Pohl fee contracts; instead, she believes he gave
them to “one of her co-counsel in the Texas cases against Mr. Pohl.”32 Favre’s and Nicholson’s
testimony and the emails about whiech they testify further support Pohl’s prima facie case of
intentional misappropriation, confversion and conspiracy. The emails and testimony confirm that
Scott M. Favre, P.A. was iny fact paid $250,000, and that Kassab and Montague understood that
they were to receive DCropbox deliveries of contracts. The large amount of the payment to Scott
26 A copy of the relevant portions of the October 25, 2017 hearing transcript in the Walker v. Williamson Litigation
is attached hereto as Exhibit 2 to the Shepherd Affidavit.
27 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 63.
28 Id. at 92–93.
29 Id. at 95; see also email dated December 7, 2016, attached as Exhibit 4 to the Shepherd Affidavit. To the extent, if
any, that Kassab suggests that this email may be hearsay and therefore inadmissible, Pohl responds that the email is
not offered for the truth of the matter asserted. It is instead offered to demonstrate Kassab’s knowledge of the volume
and nature of the materials Favre transmitted.
30 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 121–27.
31 See Deposition of Tina Nicholson, dated November 27, 2017, attached as exhibit 5 to the Shepherd Affidavit at
65:11–66:10.
32 Id. at 66:7–9.
18
M. Favre, P.A., in advance of the delivery of contracts to the Dropbox and the absence of any
further work by Scott M. Favre, P.A., supports a strong inference that the payment was in fact in
exchange for the contracts and not for any future services. Favre’s testimony that he had given the
attorney/client fee contracts to Nicholson and Nicholson’s disavowal of that testkimony strongly
suggests that each witness hopes to distance him or herself from the ultimate ltransfer to Kassab.
This contradiction supports Pohl’s allegation that all parties to the Favre–Kcassab Agreement knew
that the files and information being transferred had been converted ors misappropriated.
Finally, Kassab’s efforts to explain the purpose of thse Favre–Kassab Agreement also
support Pohl’s prima facie case that Kassab knew that the material and information he received
from Favre was stolen. As described above, Kassab explained the Favre–Kassab Agreement to
this Court as reflecting Favre being hired “to provide consulting services.”33 More recently,
Kassab described the agreement as constitutinga “an agreement with an expert witness.”34 Kassab’s
inability to stick to an explanation of the agreement suggests that he does not have a legitimate
one. The notion that the Favre–Kasseab Agreement constitutes the retention of an expert witness
defies all logic. At the time Kassfab purportedly hired Favre, who is not a lawyer, as an “expert,”
Kassab did not have a singlye client, much less a case. Without known clients, Favre could not
possibly have ethicallyC been engaged as an expert because he could not have determined the
presence of potential conflicts. And even though Kassab had no clients and Favre is not a lawyer,
Kassab paid Ffafvre $250,000 up front with the promise of additional future payments. The
evidence Udemonstrates that the stolen materials and information were available for sale.35 In fact,
Favre and his counsel Nicholson had expressly threatened to sell the materials to “Texas barratry
33 See Response to Motion in Brumfield, Exhibit 1 to the Shepherd Affidavit, Exhibit A at 18.
34 See Letter in support of Grievance, attached as part of Exhibit 21 to the Motion.
35 See Five Letters discussing potential sale of information, attached as Exhibit 6 to the Affidavit of Billy Shepherd.
19
lawyers” before they actually did so.36 The more plausible explanation of these facts is that the
Favre–Kassab Agreement reflects Favre’s sale and Kassab’s knowing purchase of Pohl’s stolen
files.
As lawyers, Kassab and Montague knew that the materials they purckhased included
confidential information protected by the attorney–client privilege, includinlg actual attorney–
client fee agreements.37 Scott Favre has confirmed under oath that he macintained the materials as
confidential and protected them as valuable trade secrets.38 s
In sum, Pohl’s prima facie evidence in the form osf both pleadings and affidavits
demonstrates each element of each of Pohl’s causes of action as set forth below:
CONVERSION
• The information and materials Kassab obtained was personal property subject to
conversion.39 a
• Pohl owned the information and materials Kassab obtained.40
• Kassab wrongfully ex e ercised dominion and control over the property.41
• Pohl has incurreOd f actual damages caused by Kassab’s conversion by at a minimum
his loss of the intrinsic value of the materials.42
36 Id.
37 Id. ¶ 20.
38 See Affidavit of Scott Favre, filed in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et
al., in the United States District Court for the Southern District of Mississippi, Southern Division, and attached as
Exhibit 7 to the Affidavit of Billy Shepherd.
39 Original Petition at ¶¶ 20, 21, 27; Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit; Email, Exhibit 4
to the Shepherd Affidavit.
40 Original Petition ¶¶ 20, 21, 27, 33; Affidavit of Michael Pohl.
41 Original Petition ¶¶ 20, 21, 27; Affidavit of Michael Pohl.
42 Original Petition ¶ 33; Favre Kassab Agreement, Exhibit 3 to Shepherd Affidavit (demonstrating that Kassab placed
a value on the materials of at least $250,000; Affidavit of Michael Pohl.
20
MISAPPROPRIATION OF TRADE SECRETS
• Pohl owned trade secrets.43
• Pohl maintained that information as a secret, taking substantial measures to
maintain its confidentiality.44 k
• The information has independent economic value from not beCin l g generally known
to, and not readily being ascertainable through proper mceans by, another person
who can obtain economic value from the disclosure or use of the information.45
• Kassab obtained the trade secrets with knowlesdge that they had been acquired
through improper means—i.e., by theft.46 g
• The misappropriation damages Pohl iBn the form of both actual loss and unjust
enrichment.47 y
• Kassab’s misappropriation was a willful and malicious.48
CONSPIRACY f
• Kassab was a membcer of a combination of two or more persons.49
• The agreed objeOct of the combination was to accomplish the unlawful purposes of
conversion pand misappropriation of trade secrets.50
• Kassab and the other conspirators committed tortious overt acts to further the object
of thie conspiracy.51
43 Original Petition ¶¶ 20, 21, 34; Affidavit of Michael Pohl.
44 Original Petition ¶ 34; Affidavit of Michael Pohl.
45 Original Petition ¶ 34; Affidavit of Michael Pohl.
46 Original Petition ¶¶ 35, 36; Affidavit of Michael Pohl.
47 Affidavit of Michael Pohl.
48 Original Petition ¶ 37; Affidavit of Michael Pohl.
49 Original Petition ¶¶ 27, 35.
50 Original Petition ¶ 38.
51 Original Petition ¶¶ 27, 32, 36, 38.
21
• Pohl suffered injury as a result.52
Pohl denies that Kassab has demonstrated by a preponderance of the evidence that Pohl
has asserted a legal action based on related to or in response to Kassab’s exercise of his right to
free speech, petition, or association. To the extent that the Court disagrees, Pohkl has provided
clear and specific evidence to support his petition, and the Court should denyC Klassab’s Motion.
B. ALTERNATIVE MOTION FOR CONTINUANCE ANcD DISCOVERY
Kassab filed his Motion on October 24 and set it for hearing twelve days later. While Pohl
denies that Kassab has met the threshold necessary for requirinsg him to provide the Court with a
prima facie case, and Pohl contends that he has set forth such a case, to the extent that the Court
disagrees and believes that additional evidence is necessary, Pohl seeks a continuance of the
hearing and an order permitting discovery. The TCPA permits the Court to allow discovery on
the Motion, and if discovery is granted, a contianuance of up to 120 days from service of the Motion.
TEX. CIV. PRAC. & REM. CODE §§ 27
.004(c) (permitting 120-day continuance), 27.006(b)
(permitting discovery). In the event ethat the Court is inclined to grant the Motion, there is good
cause for a continuance and discofvery because both oral and written discovery would be relevant
to obtaining additional cylear and specific evidence of Pohl’s claims for conversion,
misappropriation of trCade secrets, and conspiracy. Given that the contested issues primarily
involve Kassab’s state of mind, discovery relating to that issue would be necessary in the form of
both documentfary evidence relating to Precision’s sale of materials to Kassab and deposition
testimonyU relating to that sale.53
Specifically, the discovery that Pohl would seek includes (1) document discovery from
Kassab relating to his purchase of the materials and information, and in particular drafts of the
52 Original Petition ¶ 38; Affidavit of Michael Pohl.
53 Original Petition ¶¶ 27, 38.
22
Favre–Kassab Agreement and correspondence regarding the same; (2) an initial limited deposition
of Lance Kassab regarding his purchase of materials and information from Favre.
This request for continuance is sworn by the attached Declaration of Jean Frizzell and is
sought not for purposes of delay alone but so that justice can be done. k
C. KASSAB CANNOT CONCLUSIVELY ESTABLISH HIS DEFCElNSES
Kassab may argue that, even though Pohl can establish a prima faccie case, he is still entitled
to dismissal because he has established by a preponderance of the evisdence each essential element
of certain affirmative defenses, including limitations, attorney ismmunity, and res judicata. None
of these defenses is available, and Kassab has not established any of them—let alone by a
preponderance of the evidence.
1. The Statute of Limitations has Not Run.
Kassab purchased the stolen materaial from Favre by virtue of the Favre–Kassab
Agreement, which was executed on November 10, 2016, much less than two years prior to the
filing of this suit. All of Pohl’s claimes against Kassab are based on that purchase, and no claim
has a limitations period of less tfhan two years. See TEX. CIV. PRAC. & REM. CODE § 16.003(a)
(two-year limitation period fyor conversion); TEX. CIV. PRAC. & REM. CODE § 16.010(a) (three-year
limitation period for TCUTSA violations); Mayes v. Stewart, 316 S.W.3d 715, 719 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). Discussions about other older potential wrongful conduct
Kassab may hafvfe engaged in related to Pohl does not alter the limitations analysis for the specific
claims PoUhl brought in this case. See Motion at 26–28. It is clear that limitations does not bar
Pohl’s claims.
23
2. The Attorney Immunity Doctrine does Not Apply.
Kassab claims that as an attorney, he is immune from liability for converting the property
of others and misappropriating trade secrets. Here again, Kassab relies on a mischaracterization
of Pohl’s claims to invoke the attorney immunity doctrine. That doctrine protectsk attorneys from
civil liability for certain actions taken while representing a client in litigation. Clanty Hanger, LLP
v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). Pohl’s suit asserts claims cfor actions taken before
Kassab had a single client, much less a client in litigation. Because tshere is no way for Kassab to
show that his wrongful actions were within “the scope of clsient representation,” the attorney
immunity doctrine on its face does not apply to Pohl’s claims. Id. at 482.
3. Res Judicata Does Not Apply.
Kassab makes a contorted argument to contend that Pohl’s claims are barred by res
judicata. Kassab was not a party to the Settlemaent Agreement to which he refers, and had he been,
Pohl would include him in his breach of contract claim. There is no basis on which to contend that
Pohl’s claims against Kassab are “thee same as” the claims settled in the other case, nor that Kassab
is a party or privy to a party in thfat case. Res judicata is not an available defense.
D. REQUEST FOR AyTTORNEYS’ FEES AND COSTS
The TCPA expCressly contemplates an award of costs for the filing of a motion that is
frivolous or brought solely for the purpose of delay. TEX. CIV. PRAC. & REM. CODE § 27.009(b).
The history anfdf circumstances surrounding Kassab’s Motion conclusively establish that it is
frivolousU and Kassab brought it solely for the purpose of delay.
As the Court is aware, Kassab was involved in bringing the Brumfield Litigation against
Pohl and others alleging barratry and other causes of action. The defendants moved for dismissal
24
pursuant to the TCPA, and the Court denied those motions by order signed November 6, 2017.54
At the time defendants filed those motions, they had a good faith basis on which to believe that
the motions were well taken and should be granted, but the Court disagreed and defendants lost
their motions. The Anti-SLAPP motions in the Brumfield Litigation are highlky relevant here
because of the positions Kassab took in response to those motions and the Colurt’s resolution of
those motions. Kassab clearly knew and understood when he filed the incstant Motion that he did
not have a basis for his filing and that the Court would undoubtedly dseny his Motion.
In response to the Motion to Dismiss in Brumfield, Kassasb asserted a number of arguments
including arguing at length that the commercial speech exemption applied to prevent application
of the TCPA to his claims.55 In arguing that the commercial speech exemption applied, Kassab
argued vigorously that a lawyer’s solicitation of clients constitutes commercial speech not within
the protection of the TCPA. In making this aargument, Kassab cited multiple Texas state court
cases, Fifth Circuit cases, and cases from out of state.56 Kassab contended that “when the
communication concerning provisioen of legal services is made for the primary purpose of
attracting clients . . . the communifcation is not a matter of public concern.”57 On that basis, Kassab
argued that the commercialy exception applied to exempt his claims from coverage under the
TCPA.58 Having succCessfully asserted these arguments in Brumfield, Kassab can hardly suggest
that he was unaware of their merit.
Neverthf feless, in this case, Kassab contends that Pohl brought suit against him in retaliation
for KassaUb’s solicitation of Pohl’s former clients. Kassab argues that Pohl brought his suit against
54 A copy of the Order is attached as Exhibit 8 to the Shepherd Affidavit.
55 Brumfield Response, Exhibit 1 to Shepherd Affidavit, at 33–37.
56 Id.
57 Id. at 22.
58 Id.
25
Kassab “because Kassab legally and ethically contacted Pohl’s former clients.”59 Kassab contends
that his solicitation of those clients is protected by the TCPA, and he does not even mention the
commercial exception set forth in section 27.010 of the statute. Given that Kassab definitively
is aware of the commercial exception and its direct applicability to the claims Pohl bkrings, Kassab’s
failure even to mention the exception reveals his bad faith. His Motion is not juslt frivolous, Kassab
was demonstrably aware that it was frivolous. There can have been noc legitimate purpose for
bringing the Motion apart from creating unnecessary delay. s
The Court is empowered in these circumstances to awasrd Pohl his costs and reasonable
attorney’s fees in responding to the Motion. As set forth fully in the attached Declaration of Jean
Frizzell, those reasonable and necessary fees total $33,352. That total includes the necessary time
of lawyers in reviewing Kassab’s Motion, reviewing the TCPA, and researching and drafting a
response to the Motion. a
Kassab requests costs, attorneys’ fees and sanctions against Pohl and his law firm,
Reynolds Frizzell. Kassab is not entietled to any of the relief he requests because his Motion fails.
Furthermore, Kassab’s recitatiofn of the alleged basis for his request for sanction contains
substantial mischaracterizatiyons of the record of this case and the other cases to which he refers.
Kassab get a single facCt right: that he previously sought but was denied sanctions in an unrelated
case involving Reynolds Frizzell LLP. Kassab’s effort to relitigate that here is an entirely
inappropriate ufsfe of the TCPA and should not be countenanced.
59 Motion at 15.
26
CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the Motion be in all respects denied and that they be awarded costs and
fees in the amount of $33,352. k
Dated: November 1, 2018 Respectfully submitted, l
REYNOLDS FRIZZELL LLP c
By: /s/ Jean C. Frizzsell
Jean C. FrizzeDll
State Bar Nso. 07484650
1100 Louisiana Sst., Suite 3500
Houston, Texas 77002
Tel. 713.485r.7200
Fax 713.485.7250
jfrizzell@reynoldsfrizzell.com
Attolrneys for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIoFICATE OF SERVICE
I hereby certify that a true acnd correct copy of this document was served on all counsel of
record pursuant to the Texas Rulefs of Civil Procedure on this 1st day of November, 2018.
/s/ Jean C. Frizzell
C Jean C. Frizzell
27"
5,2018-10-24,DEPO,Kassab,Pohl deposition filed by Kassab (TCPA exhibit),"Excerpts from the Oral Videotaped Deposition of Michael A. Pohl taken May 15, 2018 in Cheatham v. Pohl (Cause No. 2017-41110), filed as Exhibit 23 in connection with Kassab's TCPA motion in Pohl v. Kassab","Deposition taken in a related case (Cheatham v. Pohl, Cause No. 2017-41110, 55th Judicial District, Harris County) on May 15, 2018, subsequently filed as an exhibit (Exhibit 23) in the Pohl v. Kassab TCPA proceedings. The deposition was taken by Lance Kassab as counsel for the Cheatham plaintiffs, with Pohl represented by Billy Shepherd. Only pages 85-93 and 318-319 are included in this exhibit.",TCPA-1,N/A,Phase 1,2018-10-24_DEPO_Pohl-Deposition_FILED.pdf,,"E
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H
I
BIT
23
iA

Michael Pohl
5/15/2018
CAUSE NO. 2017-41110

MARK KENTRELL CHEATHAM, ) IN THE DISTRICT COURT
SR., AND LUELLA MILLER, )
INDIVIDUALLY AND AS )
WRONGFUL DEATH ) N=
BENEFICIARIES OF LADONNA ) oe
CHEATHAM, DESTINY CHEATHAM) )
AND MARKUS CHEATHAM, )
DECEASED ) , &

) Ss
vs. ) HARRIS counry,, TEXAS

) ©)
MICHAEL A. POHL, DONALDA ) &
POHL, LAW OFFICE OF ) @
MICHAEL POHL, PLLC, ROBERT) @
AMMONS AND THE AMMONS LAW ) Le)
FIRM, LLP ) STR gMDICIAL DISTRICT

ORAL VIDEOTAPED pebosrz0n OF
MICHAEL BS OHL
May Be 2018
©)

ORAL VIDEOTAPED BRPOSTTION OF MICHAEL A. POHL,
produced as a witedee at the instance of the
Plaintiff and ox sworn, was taken in the
above-styled and numbered cause on May 15, 2018, from
9:26 a.m. to 5:05 p-m., before Laurie Carlisle,
Certified ‘Shorthand Reporter in and for the State of

SS
Texas, Feported by computerized machine shorthand, at
the 6éfices of Shepherd Prewett, 770 South Post Oak
Lane, Suite 420, Houston, Texas, pursuant to the
Texas Rules of Civil Procedure and the provisions
stated on the record or attached hereto.
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1 malicious act by an unethical lawyer, and I don't
2 think anything should be -- further should be
3 submitted by you.
4 Q. Okay. And you think I'm an unethical ee
a
5 lawyer? G
6 A. Yes. You stole my files. You robed me.
7 You tried to destroy my practice. So I believe
8 you should submit any more materials, popVicularty
9 false affidavits that have been retracted by the
10 witnesses who made them and othe erifiably false
11 accusations. And you've soticiead my clients like
12 Mr. Cheatham, and you've told hin lies to get him to
13 sue me. LV
14 Q. Okay. And you State on the record under
15 oath, subject to pesiey, that I stole your files,
16 | right? O
17 A. You and your co-counsel and your team of
18 thieves. ou
19 OR. L. KASSAB: Objection, nonresponsive.
20 Q. ‘< that a yes to my question?
21 os MR. SHEPHERD: Form.
22 A. That's what I said it was.
23 Q. I just need a yes or no, sir. Is thata
24 yes?
25 MR. SHEPHERD: Form.
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1 A. Read it back.
2 Q. I just want to make a clear record so that
3 I have a clear record, sir. So you stated under oath
4 that I stole your files, correct? AS
XA
5 A. Read back the answer that I gave, and f'11
6 see if I made a mistake. &
7 Q. Sir, I'm asking if that was vou testinony
8 You don't remember whether or not it was”
9 MR. SHEPHERD: Form. &
10 A. If the question is “ge steal my files
11 and rob my office, the answer ist at you and your
12 co-counsel and your crew obi ay office, stole my
13 clients' names, contacted. ily clients and told them
14 lies to initiate suits éRinst me.
15 Q. Okay. How, did I steal your files, sir?
16 Did I break into house?
17 A. You broke into my law office.
18 Q. I did personally?
19 A. You and your crew.
20 Q. Sind when did I do that?
21 ae I don't know the exact date, but I believe
22 it was in 2014 when you robbed me.
23 Q. I robbed you in 2014?
24 A. Yes, sir.
25 Q. And where did I rob you at?
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1 A. Mississippi.

2 Q. And what location did I rob you at?

3 A. Our Gulfport, Mississippi office at the

4 time. I do not remember the street address where I

5 had my office. )

6 Q. So I broke into your office and etoile your

7 stuff in 2014 at your Gulfport, Wissiecipet office,

8 right? &

9 A. You and your crew. &
10 Q. Well, let's just talk seat me right now.
11 A. No, I can't talk aborts Poo without your
12 co-counsel and your crew peciins you're one and the
13 same. LV
14 Q. Well, I want @ talk about me, sir.
15 A. You ask ta siatione, I'll give you the
16 truthful answers. ()
17 Q. That's\ what I just said. So you're telling
18 all the folks in this room that I stole -- that I
19 broke into.(your office and I stole your files,
20 correct {And you're stating that under oath, right?
21 a I'm saying that you, your co-counsel and
22 your crew robbed me, hacked my computers, stole my
23 client names and then solicited my clients with
24 material omissions to get them to sue me which, as a
25 consequence, caused them to suffer damages in their

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1 own case and not get the money they were entitled to.

2 MR. L. KASSAB: Objection, nonresponsive.

3 Q. The question was that you're telling all

4 the folks in this room that I broke into your office

5 and stole your files, correct? )

6 A. I believe that was the question you asked

7 previously, to which I answered. S&

8 Q. Is that a yes?

9 MR. SHEPHERD: Form. &
10 A. I believe that was the quastion you asked
11 previously, to which I gave rowel full and complete
12 answer. SS
13 Q. Sir, I need to gat a clear record on this
14 so there's no gray area (later when -- okay, that's
15 | why I'm asking. SF
16 A. Sure. chive no problem answering.
17 Q. I just heed to know -- I just want to make
18 sure that I daderstand what you're saying. You're
19 telling everybody in this room that I personally
20 broke iS your Gulfport office in Mississippi
21 someting in 2014 and stole your files, right?
22 A. I didn't say you as a person. I said you
23 and your crew, and I made that clear in each answer.
24 And your co-counsel, by the way.
25 Q. So I'm asking about me. Is it your

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1 testimony that I personally broke into your office?
2 A. I wasn't there, and I didn't see who
3 actually broke in and I didn't see who hacked my
4 computer. So I'm not a witness to it. I just know
5 the event occurred. ©
6 Q. Okay. Did you file a police report?
SS
7 A. No. °@
8 Q. Did you file a grievance witty the State Bar
. @
9/ against me? @
©
10 A. I have not yet done woo
11 Q. Have you contacted the a's office?
12 A. I did speak to a District Attorney.
©)
13 Q. Which one? LV
14 A. It happened tebe a retired District
15 Attorney in Oklaho (and I spoke to him about the
16 | feasibility of riiyy charges.
17 Q. Okay. My question is a little different.
18 Have you talked to the Harris County District
19 Attorney regarding the fact that you claim I stole
AS)
20 your files?
©
21 AS I claim that you and your co-counsel and
22 your crew robbed my office, hacked my computers,
23 solicited my clients and, to be clear, and I have not
24 talked to the Harris County District Attorney.
25 MR. L. KASSAB: Objection, nonresponsive
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1 to everything other than ""I have not talked to the
2 Harris County District Attorney.""
3 Q. Have you talked to the Attorney General's
4 office in Texas regarding your allegation and &
5 testimony, sworn testimony today that I have stole
6 your files, broke into your office in cultpoxe,
7 Mississippi in 2014 and stole your files2©
8 MR. AKERS: Objection, rome”
9 MR. SHEPHERD: Form. &
10 Q. And everything else roped I did.
11 MR. SHEPHERD: roms”
12 MR. COLLMER: objdction, form.
13 Q. Have you done nat?
14 A. I have not tarda to the Attorney General
15 about the fact that yon, your co-counsel and your
16 crew robbed me, née my computers, solicited my
17 clients to turn them against me, and done various
18 things associated with the theft of my client files.
19 OR. L. KASSAB: Objection, nonresponsive
20 other eneer 1 have not talked to the Attorney
21 Genexd.
22 Q. Okay. So this happened approximately four
23 years ago, correct?
24 A. I don't know the date it happened because
25 nobody told me we're about to go into your office and
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1 steal your files.
2 Q. Well, did you go into your office and find
3 out that your office had been ransacked?
4 A. No, I did not because we closed the office,
5 and it was in connection with the closing of the)
6 office that the thefts occurred. And they ait didn't
7 occur at once. Some of them continued into as late
8 as probably 2016, maybe '15. I don't a) because
9 they did not communicate to me that sey were robbing
10 me. ©
11 MR. L. KASSAB: Obj Vion, nonresponsive.
12 Q. And who is the cxoi Ghat you're talking
13 about? Give me specific nines, please.
14 A. Well, it would Be you, it would be Tina
15} Nicholson. It wong. Doug Montague. It would be
16|} June Allison. It (would be Kirk Ladner and Scott
17 Walker. At least that group of thieves.
18 Q. oKdy I got me, Tina Nicholson, June
19 Allison, scott Walker, Doug Montague and who else?
20 Is that ie?
21 ac I believe I mentioned Kirk Ladner and Scott
22 Walker.
23 Q. I got Scott Walker.
24 A. Oh, I'm sorry. Scott Favre, who paid --
25 who paid Scott Walker and Kirk Ladner, from what I
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1 found in some of their private documents that I got,
2 $85,000 to rob my office and then possibly some more
3 money to actually hack my computers and sell to you
4 or your co-counsel my passwords so you could rob
5 of my electronic information as well. )
6 Q. So this happened approximately rout years
7 ago, and it's your testimony that you cia ot contact
8 the police department to file a report an
9 Mississippi, correct? Cn
10 MR. SHEPHERD: Form. ©
11 A. It happened esmnaneiing Sout four years ago
12 and continuing onward, and ye correct, I did not
13 contact the Mississippi police.
14 Q. Right. And y&SYhaven't filed a police
15 report anywhere, rigge
16 A. I have filed a police report.
17 Q. Why not?
18 A. I don't know. I haven't thought about it.
19 I prayed about it and hoped that, you know, a just
20 result Goi ensue. But I did not go to the police.
21 oe You just decided you'd take matters in your
22 own hands?
23 MR. SHEPHERD: Form.
24 A. I have not taken matters in my own hands.
25 I wanted to spend time to reflect on it before taking
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1 action because I didn't want to do anything that was

2 precipitous.

3 Q. And why haven't you gone to the State Bar

4 to report my theft activities? NS

a

5 A. I simply haven't. ©

6 Q. And why haven't you talked to the Mazris

7 County DA's office about the fact that Lina thief,

8 as you state?

9 A. Well, these events didn't secur in Texas,
10 so they would have nothing to do it anyway. So
11 why would I go talk to them? K
12 Q. Why didn't you go an to the DA -- the
13 County DA's office in Gulgport to report my thievery?
14 A. I would have, Gat I was preoccupied because
15 the criminals involyed in this were extorting money .
16 from me and they wanting millions of dollars for
17 the return of my stolen goods and I was so upset and
18 so preoccupiéd,- that I neglected to do that.

19 Q. ‘And what evidence do you have -- please
20 tell the Judge, jury, State Bar, DA's office and
21 overstody else out there that you have regarding your
22 testimony under oath today that somebody sold me your
23 passwords so that I could hack into your computers?
24 MR. SHEPHERD: Form.
25 A. I haven't marshaled all the evidence and,

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1 CAUSE NO. 2017-41110
2 MARK KENTRELL CHEATHAM, ) IN THE DISTRICT COURT
SR., AND LUELLA MILLER, )
3 INDIVIDUALLY AND AS )
WRONGFUL DEATH ) N=
4 BENEFICIARIES OF LADONNA ) oe
CHEATHAM, DESTINY CHEATHAM) )
5 AND MARKUS CHEATHAM, )
DECEASED ) ey
é ) S
7/ vs. ) HARRIS COUNTY) TEXAS
)
8 MICHAEL A. POHL, DONALDA ) &
POHL, LAW OFFICE OF ) @
9 MICHAEL POHL, PLLC, ROBERT) Ke)
AMMONS AND the AMMONS LAW ) es
10 FIRM, LLP ) S57H JUDICIAL DISTRICT
11 6
S
12 REPORTER ' 6sr IF ICATE
ORAL VIDEOTAPED DEPOSTSTON OF MICHAEL A. POHL
13 May 15, 2018
14 @
»>O
15 I, Laurie capers Certified Shorthand Reporter
16 in and for the ss e of Texas, hereby certify:
17 That the witness, MICHAEL A. POHL, was duly
18 sworn and that the transcript of the deposition is a
na)
19 true record of the testimony given by the witness;
20 That the deposition transcript was duly
21 submitted on —t—“‘C‘éECO «CME ~WiittNl@SSSS OF tO thee
22 attorney for the witness for examination, signature,
23 and return to me by .
24 That pursuant to information given to the
25 deposition officer at the time said testimony was
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1 taken, the following includes all parties of record
2 and the amount of time used by each party at the time
3 of the deposition:
4 Mr. Lance Kassab (5h59m) NS
Attorney for Plaintiff NZ)
5 Mr. Billy Shepherd (0hOm) ©
Attorney for Defendant Michael Poh}.
6 Mr. Brock Akers (0h0m) cS
Attorney for Defendants Robert Aginons and
7 The Ammons Law Firm NS
Mr. Mark Collmer (h0m) ©)
8 Attorney for Defendant Donalda’ Pohl
9 I further certify that I am neither counsel for,
10 related to, nor employed by any of the parties in the
11 action in which this pare taken, and
12 further that I am not financial y or otherwise
©)
13 interested in the outcome this action.
14 Further certification requirements pursuant to
15} Rule 203 of the - an of Civil Procedure will be
16 | complied with aftér) ey have occurred.
17 Certified to by me on this day of
18 lau , 2018.
19 , ~S
OS
20 &S
21 & Laurie Carlisle, CSR
S Texas CSR 2205
22 Firm No. CRF 10402
Expiration: 12/31/19
23 Omni Litigation
832 Tulane Street
24 Houston, Texas 77007
25
Omni Litigation
713-864-4443"
6,2018-10-24,EX,Kassab,Exhibit: bar grievance pleadings against Pohl,"State Bar of Texas Grievance filed by Lance Christopher Kassab against Michael Pohl (File No. 201801825), including grievance form, detailed Exhibit 'A' statement of facts and violations, and two supplemental letters to the Office of Chief Disciplinary Counsel dated July 3 and July 20, 2018","Bar grievance filed by Kassab against Pohl with the Office of Chief Disciplinary Counsel of the State Bar of Texas, pursuant to Rule 8.03(a) of the Texas Disciplinary Rules of Professional Conduct. Filed on behalf of approximately 10,000 alleged victims. Companion grievance No. 201801826 filed against Cyndi Rusnak. Subsequently filed as Exhibit 21 in the Pohl v. Kassab TCPA proceedings.",TCPA-1,N/A,Phase 1,2018-10-24_EX_Grievance-Pleadings-Against-Pohl_FILED.pdf,Disciplinary action against Michael Pohl by the State Bar of Texas for violations of the Texas Disciplinary Rules of Professional Conduct and Texas Penal Code barratry and commercial bribery statutes,"EXHIBIT 21 .
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OFFICE OF THE CHIEF DISCIPLINARY COUNSEL
STATE BAR OF TEXAS
GRIEVANCE FORM
I. GENERAL INFORMATION
Before you fill out this paperwork, there may be a faster way to resolve the isgue-you are
currently having with an attorney.
@
If you are considering filing a grievance against a Texas attorney for any ofthe following
reasons: 5 G
S
~ You believe your attorney is neglecting your case. XZ)
~ Your attorney does not return phone calls or keep you informed <a the status of your case.
~ You have fired your attorney but are having problems getting you ile back from the attorney.
You may want to consider contacting the Client-Attorne Aséistance Program (CAAP) at
1-800-932-1900. &
CAAP was established by the State Bar of Texas to help people resolve these kinds of issues
with attorneys quickly, without the filing of a formal-griévance. CAAP can resolve many
problems without a grievance being filed by prov information, by suggesting various self-
help options for dealing with the situation, or byeon cting the attorney either by telephone or
letter. >
I have Ihave not X __ wc Client-Attorney Assistance Program.
II. INFORMATION ABOUT YOu -- Praase KEEP CURRENT
wS
COMPLAINANT # 1: &
1. Name and address: ©)
Lance Christophe Kassab, pursuant to Rule 8.03 (a) of the Texas Disciplinary Rules of
rrofessional Co ct and on behalf of approximately 10,000 victims surrounding the
Gulf Coast. &
Re,
Lance topher Kassab
THE AB LAW FIRM
1 abama
ton, Texas 77004
2. Employer and address:
The Kassab Law Firm
1420 Alabama
Houston, TX 77004

3. Telephone number: Residence: | Work: 713-522-7400
4. Drivers License # NA Date of Birth: NA
5. Name, address, and telephone number of person who can always reach you. Ne
EN
Lance Christopher Kassab NZ)
THE KASSAB LAW FIRM ©
1420 Alabama, Houston, Texas 77004 Re
Telephone: 713-522-7400 “GO
Facsimile: 713-522-7410 XG
6 @
6. Do you understand and write in the English language? Yes ©)
. ®
If no, what is your primary language? GP
Who helped you prepare this form? ©
Lance Christopher Kassab
THE KASSAB LAW FIRM &
1420 Alabama S\
Houston, Texas 77004 es
Telephone: 713-522-7400 ~\
Will they be available to translate future @S}respondence during this process? N/A
7. Are you a Judge? No 5 S
If yes, please provide Court, oes City, State: N/A
ILL. INFORMATION anour ATtonvey
Note: Grievances are Hot accepted against law firms. You must specifically name the attorney
against whom you omplaining. A separate grievance form must be completed for each
attorney against you are complaining.
wS
1. Attorney nae and address:
©)
Michael Pohl
2254 Stratton Forest Heights
Colorado Springs, CO 80906
2. Telephone number: Work: (713) 652-0100 Home: Unknown Other: Unknown
3. Have you or a member of your family filed a grievance about this attorney previously?

Yes__ No_X_If “yes”, please state its approximate date and outcome.
4. Please check one of the following:
This attorney was hired to represent me.
This attorney was appointed to represent me.
_X__ This attorney was hired to represent someone else. NS
Please give the date the attorney was hired or appointed and what the tomes hired or
appointed to do: O)
See Exhibit “A” attached hereto. eS
5. What was your fee arrangement with the attorney? S
See Exhibit “A” attached hereto. &
If you signed a contract and have a copy, please atach,
See Exhibit “A” attached hereto,
If you have copies of checks and/or receipts, please attach
IN
N/A es
6. If you did not hire the attorney, what 1h camnection with the attorney? Explain briefly:
©
See Exhibit “A” attached hereto,
2>O
7. Are you currently represented byan attorney?
See Exhibit “A” sche,
If yes, please provide sain about your current attorney:
Lance Christopher Kassab
THE Kass AW FIRM
1420 a, Houston, Texas 77004
Telep : 713-522-7400
Facsimile: 713-522-7410
8. Do yo. Bam the attorney has an impairment such as depression or a substance use disorder?
If yes, please provide specifics (your personal observations of the attorney such as slurred
speech, odor of alcohol, ingestion of alcohol or drugs in your presence etc., including the date
you observed this, the time of day, and location).

No
9. Did the attorney ever make any statements or admissions to you or in your presence that
would indicate that the attorney may be experiencing an impairment such as depression or a
substance use disorder? If so, please provide details.
x we
@
IV. INFORMATION ABOUT YOUR GRIEVANCE ©
1. Where did the activity you are complaining about occur? ©
Harris County, Texas. However, activity also occurred in thrighout the Gulf Coast
including Texas, Louisiana, Mississippi, Alabama and F lotida, See Exhibit “A” attached
hereto. &
Z)
2. If your grievance is about a lawsuit, answer the following, @knovm:
a. Name of court:
See Exhibit “A” attached hereto for oe
b. Title of the suit: WS
©
See Exhibit “A” attached hereto rte explanation.
c. Case number and date suit was me ©
See Exhibit “A” attached Heres for further explanation.
d. If you are not a party to this () what is your connection with it?
See Exhibit “A” wie hereto for further explanation.
If you have copies of gourt documents, please attach.
2
See Exhibit “A” attached hereto and all documents attached thereto.
©
3. Explain if detail why you think this attomey has done something improper or has failed to do
somethi hich should have been done. Attach additional sheets of paper if necessary.
If you have copies of letters or other documents you believe are relevant to your grievance,
please attach. Do not send originals.
See Exhibit “A” attached hereto and all documents attached thereto.

In a nutshell, Michael Pohl, Cyndi Rusnak and Jimmy Williamson (deceased) entered a
joint venture and conspiracy to commit barratry by violating the Texas Penal Code, Section
38.12, Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct and various other
rules of professional conduct. This was Accomplished by paying, giving and/or offering
to pay or give money to numerous runners not licensed to practice law for soliciting
prospective clients and/or referring clients or prospective clients to the Nor pecuniary
gain. Please see Exhibit “A” and all other documents attached ert for further
explanation and documentary proof. ©
Include the names, addresses, and telephone number of all persons who Know something
about your grievance. SS
6 @
Lance Christopher Kassab ©)
THE KASSAB LAW FIRM ©
1420 Alabama ®
Houston, Texas 77004 ®
713-522-7400 Ke)
The documents attached to Exhibit “A” list ménypersons with knowledge of relevant
facts. However, I will provide a ENS list during your investigation.
Also, please be advised that a copy of your griginice will be forwarded to the attorney
named in your grievance. VW
V. ATTORNEY-CLIENT PRIVILEGE Warver
I hereby expressly waive any attorneylient privilege as to the attorney to the extent it is, the
subject of this grievance, and aut such attorney to reveal any information in the
professional relationship to the e of Chief Disciplinary Counsel of the State Bar of Texas
regarding same.
I understand that DisilnyProcetings are strictly confidential.
Signature: 5 © Date:
e©)
TO ENSURE PROMPT ATTENTION, THE GRIEVANCE SHOULD BE MAILED TO:
©
The Office 6f Chief Disciplinary Counsel
P.O. Bow 13466
Austin, Texas 78761

STATEMENT OF THE GRIEVANCE

Attorney, Michael Pohl violated Texas Disciplinary Rules of Professional Conduct, 1.04
(f), (1) & (2), & (g); 1.15 (a)(1) & (d); 5.04 (a); 7.01(a); 7.03 (b) & (d); 7.06 (a) & (b); 8.04
(a)(1)(2)(3)(4)(9) & (12), & (b). Specifically, Michael Pohl conspired with CyniiRusnak and
Jimmy Williamson to improperly solicit approximately ten thousand prospec} ents and refer
these prospective clients to their joint venture solely for pecuniary sins This was accomplished
by hiring and paying runners to organize crews which would illegall sGanetbicaly and improperly
“knock on doors” and otherwise canvas the entire Gulf Coast KS) obtain and refer potential
clients who had potential claims against British Petroleum sist defendants arising out of the
Deep-Water Horizon Explosion. Se

Additionally, Michael Pohl on the one hand and Rusnak and Williamson on the other hand
were lawyers practicing law in two distinct wt en law firms, entered into a joint venture to
pay the runners for their illegal tan ad aed to split fees in complete degredation of Rule

1.04 by intentionally failing to oe. (Hient consents in writing outlining the terms of their
attorney’s fee split prior to the tim ofthe association between Michael Pohl on the one hand and
Rusnak and Williamson on theotiler hand.

Furthermore, both a and Rusnak offered, promised and agreed to pay non-lawyers (the
Runners) a portion of the atomey' fees generated from the representation arising from the illegal
gathering of potent lents

| ani a —

This uct, violating the Texas Disciplinary Rules of Professional Conduct and other
rules of ta) Sbsolutely occurred and is painstakingly outlined in detail in Exhibit “A” along with
sworn statements from the Runners themselves, all attached thereto. The conduct outlined in this
grievance is the very conduct that the State Bar and the Texas Legislature has attempted to curb
through recent legislation. Although it appears that there is an unwritten rule at the State Bar to

take no action against lawyers when a civil case has been filed against lawyers arising out of the

same conduct,! this conduct and these violations should not be condoned by the State Bar, any

other agency or anyone else. Action must be taken, otherwise the erosion of the nobility in the

practice of law will continue to occur, the perception that lawyers are above the awl continue

to grow and lawyers will be emboldened by the fact that the State Bar will a6 nothing in light of

clear violations of its Rules. ©

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'T have Ss law exclusively in the field of legal malpractice for more than 20 years and in every civil malpractice
case I have been involved with there have been the conduct alleged also violated the Texas Disciplinary Rules of
Professional Conduct. However, I have filed and/or helped file (on behalf of clients) only a small number of
grievances (compared to civil cases), only to have them summarily dismissed. In each one of these grievances, there
were clear violations of the Rules of Professional Conduct, yet the State Bar dismissed the vast majority of them.
When I finally inquired as to why the State Bar would summarily dismiss cases with clear violations, I was told that
there was an unwritten rule to dismiss cases when there was a civil case filed arising out of the same conduct. Out of
all the grievances I have been involved with, only a handful have not been summarily dismissed by the State Bar.

EXHIBIT “A”
I
Facts
After the tragic Deepwater Horizon oil tig explosion occurred in the Gulf of Mexico on
April 20, 2010 (the “Oil Spill”), the National Pollution Fund Center (“NPFC”) ofthe United States
Coast Guard issued a letter of designation to BP Exploration and Paton Inc. (“BP”)
designating it as a responsible party under the Oil Pollution Act COPa"") and advising BP to
advertise for and receive claims as a result of the Oil Spill. BP scepied this designation in writing
and established the Gulf Coast Claims Facility (“GCCF”) for the purpose of administering,
processing and settling claims by individuals and busing had been impacted by the Oil
Spill. Ss
Seizing upon the opportunity to line his pockets Michael Pohl (“Pohl”) orchestrated a
conspiracy and barratry scheme with J omy Yann (Williamson) (now deceased) and Cyndi
Rusnak (Rusnak) to hire and pay runners tO organize crews which would illegally, unethically and
improperly “knock on doors” and otherwise canvas the Gulf Coast area to obtain and refer potential
clients who had potential clei British Petroleum and other defendants arising out of the
Deep-Water Horizon Explosion,
Williamson engkeol in a joint venture and/or partnership with Rusnak of Cindi Rusnak,
PLLC, practicing ne inde the trade name “Williamson & Rusnak” to illegally solicit and
represent clients the BP Deepwater Horizon litigation.! Williamson and Rusnak also engaged
another Texas lawyer, Michael A. Pohl (“Pohl”) of the Law Office of Michael Pohl, PLLC to aid
in what would ultimately be unethical and illegal barratry violations relating to thousands of
i aba 1 — Deposition of Jimmy Williamson, 23:14-23; Exhibit 2 ~ Walker Memorandum Opinion (Doc. No.
»p.5.
1

potential clients.” Pohl, Williamson and Rusnak agreed that they would split the profits from any
fruits of the barratry joint venture with 40% of any attorney’s fees derived from the BP litigation
going to Pohl and 60% going to Williamson and Rusnak.3 Williamson and Rusnak agreed to split
their 60% of the fees according to the amount of resources each put into the cases
Beginning approximately in April of 2012, Pohl, in furtherance ote joint venture,
arranged a meeting with Scott Walker (“Walker”), a consultant who was-well connected with
several companies in Pascagoula, Mississippi.> Pohl indicated hath Williamson wanted to
hire Walker to use his contacts to obtain potential BP clients.° Witiamson met with Walker and
Pohl and confirmed the barratry venture, telling Walker thatBP had structured the settlement to
include the whole state of Mississippi and thus there ws Peaty thousands of businesses and
individuals who could be targeted for solicitation slits Pohl and Williamson wanted to hire
another person with government contacts to view Walker who could solicit governmental
entities as part of the barratry conspiry® Walker introduced Pohl and Williamson to Steve
Seymour (“Seymour”) of Diamond Consulting who, at the time, was a public official in Hancock
County, Mississippi.? Pohl ns en advised Seymour that they “were trying to get clients
&
2 Exhibit 1 — Deposition oc Fly Williamson, 58:6-25, 59:1-11,
3 Exhibit 3 — Affidavit 8 Son Walker, ¥ 2.
4 Exhibit 1 -Deveion of Jimmy Williamson, p. 32:6-20.
5 Exhibit 3 <i of Scott Walker, 2.
6 Exhibit 3 — Affidavit of Scott Walker, ff 4, 5.
7 Exhibit 3 — Affidavit of Scott Walker, { 4.
* Exhibit 3 — Affidavit of Scott Walker, 5.
° Exhibit 3 — Affidavit of Scott Walker, { 5; Exhibit 4 — Affidavit of Steve Seymour, § 2.
2

with BP oil spill claims in Mississippi” and convinced him that Williamson was the “absolute best
lawyer in the field for handling BP oil spill claims.””!°
To aid in the barratry conspiracy, Williamson and Pohl provided Walker and Seymour with
“Advertisements” promoting the legal services of Williamson, Rusnak and Pohl & Lawyers).!!
Williamson instructed Walker and Seymour to use the advertisements in thei Stes pitches to
potential clients in an effort to sell them on hiring the Lawyers. ! Willian and Pohl instructed
Walker and Seymour to call all of their friends and sequntances toby to get them to hire the
Lawyers on their BP claims, and to make cold calls on people ond sins they didn’t know.?
Williamson told Walker and Seymour that he also had a po@se point presentation to be used to
“seal the deal” on potential clients that were hesitant.!4 wie con provided Walker and Seymour
with Williamson & Rusnak’s attorney-client sonatas used for signing up potential clients. !5
Williamson instructed Walker and Seymour to ib ta clients sign the blank contracts and
to email the signed contracts to Wiliams
The parties agreed that Williamson was to decide which groups of claimants should be
targeted; direct the joint venture marketing efforts; provide marketing materials to use in
soliciting potential clients; od with and market himself, his firm, and his partner Rusnak,
Q
©
10 Exhibit 4 — a Seymour, ] 3.
1 Exhibit 3- arate Walker, {| 6; Exhibit 4 — Affidavit of Steve Seymour, §f 6, 7; Exhibit 5 —
Williamson and P on P Advertisements.
12 Exhibit 3 <li of Scott Walker, J 6; Petition Exhibit 4 — Affidavit of Steve Seymour, J 7.
13 Exhibit 3 — Affidavit of Scott Walker, {J 6, 7; Exhibit 4 — Affidavit of Steve Seymour, { 7.
4 Exhibit 3 — Affidavit of Scott Walker, {{] 6, 7; Exhibit 4 — Affidavit of Steve Seymour, ] 7.
'S Exhibit 3 — Affidavit of Scott Walker, {J 6, 7; Exhibit 4 — Affidavit of Steve Seymour, q 7.
'© Exhibit 3 — Affidavit of Scott Walker, f] 6, 7; Exhibit 4 — Affidavit of Steve Seymour, 7.
3

to claimants with larger claims.'’ Williamson stated that he would “handle the overhead
expenses” including “intake” and “staffing.”'® The parties agreed that Pohl would handle
Walker’s and Seymour’s compensation.!? Rusnak’s contribution to the barratry conspiracy was to
assist with the intake of the claims, review the claims, reject any unsuitable claims, ane to generally
handle the processing of the claims throughout the BP Settlement Claim rose his included
supervising a large staff.”° In addition, Rusnak directed the barratry conspipacy, instructing Walker
to “go after the claims that would produce the highest legal fees” and ibacted Walker to “market
NS

to clients in certain geographic locations.”””!

In early May 2012, Walker introduced Pohl and Williamson to Dane Maxwell
(“Maxwell”).”” Maxwell provided lawyers with svesidged services via his company called
CMV Investigations (“CMV”).”> Pohl and Winsor erste Maxwell and CMV to obtain
potential BP clients.24 Maxwell assembled a en of contract workers to make cold calls on

O,
potential clients on behalf of the Lawyen 2 he Lawyers agreed to pay Maxwell a flat fee of
$1,000 for each BP client that he or his team working for CMV obtained for the Lawyers, plus
&
©
7 ima nana toageli. 116; Exhibit 4 — Affidavit of Steve Seymour, 10.
'8 Exhibit 3 — Affidavit oF Se Was {| 6; Exhibit 4 — Affidavit of Steve Seymour, 10.
19 Exhibit 3 — AfidavifScou Walker, {| 6; Exhibit 4 ~ Affidavit of Steve Seymour, q 10.
20 Exhibit 6 — May 20 16 Affidavit of Scott Walker, 99 5, 6, 7.
21 Exhibit 6 <M 3, 2016 Affidavit of Scott Walker, q 5.
*? Exhibit 7 — Deposition of Michael Pohl, pp. 51-52.
*3 Exhibit 7 — Deposition of Michael Pohl, pp. 51-52, 70.
*4 Exhibit 8 - Maxwell Amended Verified Complaint.
* Exhibit 8 — Maxwell Amended Verified Complaint, § 18.
4

expenses.*° The Lawyers paid Maxwell and CMV as much as $2.47 million for the illegal
barratry.?7
On or about May 25, 2012, the Lawyers, Walker and Seymour reduced their agreement to
commit barratry in writing.”® The agreement included another runner, Terry Robingen of Robinson
Holdings, LLC (“Robinson”).”° Per the agreement, Pohl, on behalf of the fin Ger agreed to
pay Walker, Seymour and Robinson (and/or their respective companies) 30% of the 40% interest
in attorney’s fees he was to receive from his agreement with Wilaio in the BP litigation.*°
Walker, Seymour and Robinson (collectively the “Solicitation Group"") all non-lawyers, agreed to
split the 30% attorney’s fees as follows: 12% to Walker (Maxwell & Walker Consulting Group,
LLC); 12% to Seymour (Diamond Consulting); and cosb Pinon (Robinson Holdings, LLC).
This written agreement was, of course, completely sock and illegal. See TEx. DISCIPLINARY
RULES PROF'L CONDUCT R. 5.04(a)(“A lawyer sw firm shall not share or promise to share legal
fees with a non-lawyer”). Over the next month, Walks Seymour and Robinson “hit the ground
running” and “distributed information abou Williamson to hundreds of Mississippians.”?!
Williamson, on behalf of the conspiracy later recruited another individual, Kirk Ladner
(“Ladner”) to join the tat dou” Ladner had been in the seafood industry his entire life.23
f
26 Exhibit 9 — Deposition af Soot Walker, p. 200.
27 Exhibit 9 — Deposition oF Seo Walker, p. 73-74.
28 Exhibit 3 — Aft Scott Walker, at Exhibits 1 & 2 (Operating Agreements).
29 Exhibit 3 <n of Scott Walker, at Exhibits 1 & 2 (Operating Agreements).
3° Exhibit 3 — Affidavit of Scott Walker, at Exhibits 1 &2 (Operating Agreements).
*! Exhibit 4 — Affidavit of Steve Seymour, ¥ 13.
° Exhibit 4 — Affidavit of Steve Seymour, 4 15; Exhibit 10 — Affidavit of Kirk Ladner, {ff 8-9.
33 Exhibit 10 — Affidavit of Kirk Ladner, ff 8-9.
5

Williamson and Pohl convinced Ladner to join their barratry organization, telling him that he,
along with Seymour and Walker, would all be “multi-millionaires.”*4 Thus, on July 15,2012, Pohl,
on behalf of the joint venture, signed a new unethical and illegal partnership agreement with
Ladner, Walker and Seymour.*’ In this new agreement, Ladner, Walker and Seymour agreed to
accept a 22.5 % interest in the attorney’s fees Pohl was to obtain from BF representation
agreement between Williamson and Pohl.*° One of the reasons for this pew agreement was that
Williamson wanted to end the relationship with Robinson.27 , &

The Lawyers paid roughly $5 million in “barratry pass ou money” to Walker, Ladner
and Seymour to solicit and accumulate potential clients.** Althotgh the money was labeled on the
books as “marketing money” for “marketing services,” wie candidly admitted that it is “clear
to [him] it was barratry.”3? Walker, Ladner and see wed this money to solicit BP clients on
behalf of the Lawyers’ joint venture.”° RS

The barratry money distributed oar, Walker, Seymour and CMV would be used to
pay case runners who worked below then in what can only be described as a barratry pyramid
scheme. While CMV would rece $1,000 per potential client, the mid-level runners would
receive $100-$250 of this sit per potential client. The mid-level runners would also recruit

runners to work below ogre pay the low-level runners $20-$30 per potential client while
34 Exhibit 4 — sn teve Seymour, {ff 16-19; Exhibit 10 ~ Affidavit of Kirk Ladner, $f 10-16.
35 Exhibit 4 — aside of Steve Seymour, at Exhibit 2 Operating Agreement.
36 Exhibit 4 Ala of Steve Seymour, at Exhibit 2 Operating Agreement.
37 Exhibit 3 — Affidavit of Scott Walker, ¥ 14.
38 Exhibit 9 — Deposition of Scott Walker, pp. 73-76.
* Exhibit 9 — Deposition of Scott Walker, p. 149.
40 Exhibit 9 — Deposition of Scott Walker, p. 200.
6

working under their umbrella. Thus, while the lowest level runners would receive a mere $20 from
the Williamson-Pohl-Rusnak conspiracy, the mid-level runners would receive $100-$250 per
potential client and CMV would receive the remainder of the $1,000.
One of the low level runners was Jacqueline Taylor (“Taylor”) PR State Line,
eS
Mississippi.*' Taylor was recruited to solicit clients for the lawyers through EMV by another
runner, Karen Boykin (“Boykin”).*” Taylor owned a beauty salon and wag Sontacted in person by
S
Boykin who was targeting small business owners on behalf of the Layiyers.® Boykin told Taylor
NS
that she had a claim against BP and convinced her to hire the Lane to file the claim.“ Taylor
agreed and completed the blank Williamson & Rusnak contract fiat Boykin had brought with her.
Boykin then told Taylor about all the money she was vst to solicit clients and gave her the
business card of another lady working for CMV, Mons Chaney:**
a
pune Se es
Monica Chaney - g
Cell: 228-219-988 ~\
fama e ee KR
CVi/ Cell: 601-470-2331 ©
mr BP Claims Conguitat
, ones mneranseh
Fax, 228-87 2-i
rota rie |)
D'bervite, MS '
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aN
3
4! Exhibit 11 — Sw tatement of Jaqueline Taylor, p. 5.
2 Exhibit 1 1 Sgn Statement of Jaqueline Taylor, pp. 5-6.
“3 Exhibit 11 — Swom Statement of Jaqueline Taylor, pp. 6-7.
“ Exhibit 11 — Sworn Statement of Jaqueline Taylor, pp. 7-8.
** Exhibit 11 — Sworn Statement of Jaqueline Taylor, pp. 7-8.
“© Exhibit 11 — Sworn Statement of Jaqueline Taylor, p. 6, and at Taylor Exhibit 1.
7

Taylor called Chaney who hired her to solicit clients.47 Chaney told Taylor that Williamson and
Pohl employed CMV to solicit clients.*® Taylor was given blank Williamson & Rusnak and Pohl
contracts”? and was trained on how to obtain potential clients on behalf of the Lawyers and what
to say.©” Taylor was trained to target business owners and then, when those claimsyan out, farmers
and land owners.*’ Taylor was provided a map and told to focus on pri Taylor was
paid $20-$30 per potential client®? while Chaney was paid $100-$1 50 foreach potential client
brought in by Taylor.*4 Taylor would send the clients information Bane each week and was
paid through a cash card from Wal-Mart. Taylor was ribet fo any expenses associated
with the solicitation. All total, Taylor was paid to solicit overine hundred potential clients.5”
Another runner under the Lawyer’ barratry schenéive Magdalena Santana (“Santana”).°8
Santana was approached by Seymour in July of sores recruited by Williamson and Pohl for a
“marketing position” which required her to “9 Brat clients and sign them up for legal
w
EN
©
“7 Exhibit 11 — Sworn Statement of Jaqucling Payor, pp. 9-10.
“8 Exhibit 11 — Sworn Statement of agen Taylor, pp. 11-13.
Exhibit 11 — Sworn Statement of Zagieline Taylor, pp. 9-10.
°° Exhibit 11 — Sworn Statement of Jaqueline Taylor, pp. 17-19.
5! Exhibit 11 — Sworn Sateen Jaqueline Taylor, p. 20.
* Exhibit 11 — Sworn Satnen of Jaqueline Taylor, p. 31-32.
3 Exhibit 11 — Swit Sitemen of Jaqueline Taylor, p. 13.
* Exhibit 1 1 Sein Statement of Jaqueline Taylor, p. 23, 50.
°° Exhibit 11 — Sworn Statement of Jaqueline Taylor, p. 13-14.
°° Exhibit 11 — Sworn Statement of Jaqueline Taylor, p. 26-27.
*7 Exhibit 11 — Sworn Statement of Jaqueline Taylor, p. 16.
°8 Exhibit 12 — Santana Affidavit.
8

representation.”°° Santana testified that the job required her to “make cold calls on business owners
and managers trying to get them to sign blank legal representation contracts with Pohl and
Williamson.”® Santana “would be paid $250 for each claim [she] signed up.”*! Santana was
instructed by Pohl to target “businesses in the high-paying settlement zones” une “beachfront
properties, hotels, taxi companies, commercial fisherman, nightlubs, a other tourism
businesses.” Williamson likewise instructed Santana to “go business to,bpsiness, door to door”
GS
asking people “if they had losses from the oil spill.” Separate from Pati, Williamson instructed
Santana to “target businesses in high paying zones and in tourign Zones since they were getting
higher payouts.” Santana was provided a map showing he high-paying settlement zones.®
Santana was told to target churches because they were “sy as they “didn’t have to provide tax
9966
returns. <
ON
Like other runners, Santana was provided a binder with blank Williams-Pohl-Rusnak
O,
contracts and advertisements (similar to hese above) with Williamson’s name on them to
distribute to potential clients, Santana Was also emailed blank Williamson-Pohl contracts.
&
— 8
*° Exhibit 12 — Santana Affidavit, ] x
6° Exhibit 12 — Santana Affidavit 4
6! Exhibit 12 — Santana asian 14.
© Exhibit 12 — Santana Afidavit, 5.
wS
© Exhibit 12 — Sa sans Afi 13.
“ Exhibit 12 Sania Affidavit, ] 13.
6 Exhibit 12 — Santana Affidavit, ] 6, see also Santana Exhibit B.
° Exhibit 12 — Santana Affidavit, q{5.
*’ Exhibit 12 — Santana Affidavit, {] 6, see also Santana Exhibit A.
68 Exhibit 12 — Santana Affidavit, J 8, see also Santana Exhibit C. .
9

Santana was told that if she had trouble soliciting a “big fish” client, Williamson and Pohl would
visit them personally.® Santana solicited seventy-seven (77) claims her first week on the job.”
Santana was paid bonuses personally by Williamson for obtaining the “big fish” clients. 7!
Williamson told Santana that they “were all going to make lots of money.”” Santana testified how
cS
“Williamson and Pohl both knew that [she] was cold-calling businesses to sep BK claims.” “Both
Williamson and Pohl gave [her] specific instructions to knock on doors to-drum up clients for
SS
them.””4 5 ss
NS
All total, Santana obtained approximately 1,500 cases for Wiliamson, Rusnak and Pohl.”
None of them were friends, family or colleagues.” After sein would solicit the clients, Pohl
would meet Santana at restaurants to sign the contracts ao illegally and unethically obtained.””
Santana was not paid by Pohl and Williamson pas but through a company called Precision
Marketing Group, LLC (“Precision”).’8 This xe a company formed by Walker, Ladner and
O,
Seymour to serve as the “center of operons for the solicitation.”” The lease, furnishings and
©
@
GS
© Exhibit 12 — Santana Affidavit, 7. &
” Exhibit 12 — Santana Affidavit, J EN
” Exhibit 12 — Santana Affidavit 92.
? Exhibit 12 — Santana asia q 13.
73 Exhibit 12 — Santana Advi 138.
SS
4 Exhibit 12 — Sa ans Affidavit, 7 38.
® Exhibit 12 Sanians Affidavit, 38.
7 Exhibit 12 — Santana Affidavit, J 38.
” Exhibit 12 — Santana Affidavit, J 22.
” Exhibit 12 — Santana Affidavit, | 23.
” Exhibit 3 — Affidavit of Scott Walker, § 32.
10

staff of this company was paid for by the Lawyers.®° When Santana asked Pohl why she was not
paid by him directly, Pohl stated “that it was illegal for him to pay [her] directly, and that’s why
the money had to go through some company.”®! Santana and Taylor were just two of the many
runners. Eventually the Lawyers’ joint venture had illegally solicited appeeemately 9,800
potential or actual BP clients.®2 oy
On October 18, 2014, Walker, Ladner, Seymour and their related entities, including
Precision, filed suit against Pohl and Williamson, alleging they “inal ogther in a joint venture
or partnership in order to represent Mississippi clients in their lis against [BP] in connection
with the 2010 Deepwater Horizon oil spill” and “contracted vith [them] to provide public relations
services for this joint venture.”®? The runners alleged nde lawyers breached their agreement,
engaged in bad faith, breached their duties of soog and fair dealing and became unjustly
enriched after they refused to pay them fees fc whiting the clients on the lawyers’ behalf.°4
Rusnak was eventually added to this last under the claim that she too was part of the joint
venture or partnership.®* Walker, Seymour and Ladner later assigned their right in the action to
Precision®® and Precision was purchased by an individual named Scott F avre (“Favre”).87
©
ry
80 Exhibit 3 — Affidavit of Scout alker, J 32.
8! Exhibit 12 — Santana doit, 23.
® Exhibit 1 — Depoftion of Jimmy Williamson, 186:6-22.
83 Exhibit 2 we Memorandum Opinion (Doc. No. 475), p. 2; Exhibit 13 — Walker First Amended Complaint.
84 See Exhibit 13 — Walker First Amended Complaint.
* Exhibit 2 ~ Walker Memorandum Opinion (Doc. No. 475), p. 2.
*° Exhibit 2— Walker Memorandum Opinion (Doc. No. 475), p. 2.
*” Exhibit 14 — Affidavit of Scott Farve.
11

The Lawyers attempted to dismiss that litigation, arguing that they were not partners or in
a joint venture with one another or the runners and that the agreements between them and the
runners were illegal and unenforceable.** The federal court rejected these contentions, finding
prima facia evidence that Pohl, Williamson and Rusnak to be in a partnership or j cugt venture with
each other and also concluding that the agreements to solicit clients would ae a violation of
Texas law and the Texas disciplinary rules, which did not apply to Walker, Seymour and Ladner.®?
Having failed to obtain summary dismissal, the Lawyers settled the pation with Precision and

NS

Favre, hoping to forever conceal their barratry conspiracy.”

In addition to illegally soliciting unsuspecting people for the BP oil spill, Pohl also illegally
solicited victims of rollover accidents. Specifically, rent er Santana, her brother Jay Santana,
Ladner, Seymour and Walker to solicit families whenever were killed or severely injured in
rollover accidents. Incredibly, and with cin dls Pohl helped set up companies like “The
Helping Hands Group”! and the “GM stoma Verification Team”** in order to make people
believe these companies and their employees (the Runners) were there to actually help rollover
accident victims. &

Pohl would direct be Runes to specific accidents as soon as they happened and
typically pay these Ranmes 2.5% of his attorney’s fees from each case they signed up on his
88 Exhibit 2— Wa emorandum Opinion (Doc. No. 475); Exhibit 15 — Williamson Memorandum (Doc. No.

178); Exhibit 1 hl Memorandum (Doc. No. 175).
89 Exhibit 2SWulker Memorandum Opinion (Doc. No. 475); Exhibit 17 — Walker Order on Pohl and Williamson
Motions to Dismiss (Doc. No. 252); Exhibit 18 — Walker Order on Rusnak Motion to Dismiss (Doc. No. 273).
* Exhibit 19 — Walker Judgment (Doc. No. 499).
°! Exhibits 25, 28 and 29.
2 Exhibit 40.
12

behalf.”? As an example, on September 29, 2012, Michael Pohl sent Walker an article about a
death in a rollover accident that occurred two days earlier.°* Walker immediately sent the article
to his Runners about two hours later stating, “See below article. We need to try and sign the family
of the deceased mentioned in the article. If you think you can make this happen, cajlme and I will
cN
send you a contract from Michael. We need to move fast on this.” That sine aflemoon, Pohl
forwarded a contract to Walker who forwarded it to the field Runners.** Asan extra incentive to
SS
motivate the Runners, Walker told Jay Santana to go to Pohl’s wobte to see “the cases that
NS
Michael has won.”®” The list of rollover cases on the website shows that Pohl has settled or
obtained judgments on rollover cases in excess of 43 ming gie
Another example is a rollover case in Towa Ko where eleven people were injured
on April 14, 2013. By April 19, 2013, MagdalenaSantana had been sent to Kansas and signed
‘ 100 : AS) . cc . .
up the entire group. By April 29, 2013 “ee ael Pohl signed a “Retention of Services
O,
Agreement” with Ladner, Walker and Seow agreeing to pay them a fee of $1,500 an hour, not
to exceed 22.5% of Pohl’s attorney’s fe. On the same day, Ladner, Walker and Seymour signed
an “Operating Agreement with Mafiatene Santana and Florian Santana agreeing to pay them 25%
3 Exhibits 20, 41 & 42. SS
4 Exhibit 20. ©
5 Td. Note, Pohl was on the email.
eO)
6 Exhibit 21. Po os $ copied on this email as well.
97 Exhibit 2205S""
8 Id.
°° Exhibit 41.
100 7g,
101 Td.
13

each from the 22.5% of Pohl’s attorney’s fees.'°? The Operating Agreement does not provide for
an hourly rate, it simply states that, “The parties hereto agree that the fees paid under this Operating
Agreement shall not exceed twenty-two and one-half percent (22.5%) of LOMAP’s 40% interest
in the representation agreement of the above mentioned victims.”!™ x
Another example involved a rollover in Muskogee, Oklahoma on 2, 2014 where

Cynthia Shannon was ejected from the vehicle and killed.! Within sins of the accident,
Helping Hands visited the mourning family and convinced the fay to sign an agreement
allowing for them to “hire independent experts or attorneys” as otping Hands deems necessary
and charge the family up to 40% of any recovery the storey sbi for them.'° By June 20,

2014, Michael Pohl signs the “Retention of Services Agreement with Walker and Ladner of the

“Claim Verification Team (an affiliate of The oe cae Group, LLC)” wherein Pohl agrees

to pay the “Claims Verification Team” up to 28% of his attorney’s fees for soliciting and referring
the case to Pohl.!% &

Michael Pohl’s barratry scheme Was choreographed to a science. The Runners were told
precisely what to do when a rllov€é necured, such as “go to the wreck as early as you can to find
blown tires,” “take pictures” in personal items (cell phone, iPods, eye wear, anything
personal) to take to teh al when you meet the families.”'®’ They were instructed to “meet

&
a
102 Td. &
108 Id,
104 Exhibit \
105 Td,
106 Tq.
107 Exhibit 23 (emphasis added).

14

with the family of the deceased and have them sign the contract” and to “[g]et all the other
members that were in the case to sign additional contracts because they will receive funds also
from the settlement.”’”* The Runners were also instructed “to inquire if the deceased’s family may
need help from HELPING HANDS for the burial.”! le

Helping Hands is an organization run by none other than Donalda rn ish Pohl’s
spouse. The Runners were instructed to offer funds from Helping Hands ¥f they would sign a
contract with Helping Hands. The contract with Helping Hands oid Helping Hands to hire
attorneys for the family’s rollover case and earn a percentage of any settlement recovery. Of
course, the attorney chosen by Helping Hands was always Michael Pohl.

One example of this relates to Mark Cheatham Tragically, on February 15, 2014,
Mark Cheatham’s ex-wife, LaDonna, whom Mark kad reunited with and Mark’s three children
(one biological) were involved in a rollover oii"" Mark’s biological son, Markus was the only
one to survive. One of Pohl’s Runners, Keine Talley (Talley) arrived in Louisiana on February
18, 2014 to solicit Mark and his grieving family just three days after he lost the majority of his
family.!’° On February 19, 2014, alley stopped at My Rouses to pick up flowers on his way to
Mark’s home.!!! Talley’s vis uninvited and unsolicited by Mark. However, after gaining
Mark’s confidence vile a was dealing with the tragic loss of LaDonna and his two daughters,
and dealing with his, son’s serious injuries, Talley convinced Mark to sign an agreement with

SO
iS
&
eS ee
108 Td.
109 7d (emphasis in original)
HO Exhibit 24
11 Iq.
15

Helping Hands,'""” sign a limited power of attorney! and sign the crashed vehicle over to Talley
for $2,000.00.'* Remarkably, the $2,000.00 for the purchase of the vehicle came from Helping
Hands which charged Mark 18% per annum for the very funds Talley paid to Mark for the
vehicle.'!° Talley also had Mark sign an “Attorney Acknowledgment” form for Helping Hands.!!6
cS
The form provides that, “{i]n the event of a dispute, my attorney shall be epi to his fee and
expenses.”''7 And that if Mark wanted to change his attorney, the “Funding Agent [Helping
SS
Hands] may declare the subject debt due and payable.”!!® Of course attorney being referred
to was Michael Pohl, Donalda Pohl’s (owner of Helping Hands) sand This is known because
the attorney signature line on the form is signed with the igQear for Michael A. Pohl.!!? This
barratry conspiracy between husband and wife is und by the fact that Helping Hands has
a form that protects the attorney’s interests. In furtherance of the conspiracy is the Helping Hands
“Funding Agreement.”!?° This agreement rv tt the “Funding Agent agrees that it will be
O,
repaid only if as and when Chimant’s over is funded.” And that, IF THERE IS NO
@
RECOVERY, CLAIMANT HAS NO.OBLIGATION TO REPAY THIS DEBT.!2! However,
&
112 Exhibit 25, <\
113 Exhibit 26. S
114 Exhibit 27. ©
&
115 Exhibit 28. >
wS
N6 Exhibit 29. ES
©
118 7g. ,
119 Td.
120 Exhibit 30.
'21 Td. (emphasis in original).
16

in small-unemboldened script, the document states, “If I decide to drop my case and my Attorney
[Michael Pohl] believes my case is meritorious and economically justifiable, then I must repay the
indebtedness hereby created.”'”? Thus, the document obligates the client (Mark Cheatham in this
instance) to pay Helping Hands up to 40% of any recovery regarding the accident pursuant to the
Helping Hands agreement attached hereto as Exhibit 25.!3 In fact, the sing agreement
marked as Exhibit 25 also allows Helping Hands to hire experts and attorneys’ as Helping Hands
deems necessary.'** Michael Pohl signed an attorney/client cont ith Mark on February 21,
2014, just six (6) days after the tragic accident and two days afer Talley showed up at Mark’s
home uninvited.’?> Notably, Tally brought a notary from Kini On-Site-Notary with him.!*6
The Runners of course were not to be left wit bing their percentage of fees
recovered from these lucrative rollover cases. Mid Pohl signed a “Retention of Services
Agreement” (Retention Agreement) with san Wa and Kirk Ladner of Precision Marking
Group (Precision) with regard to Mark Chatham's case.'?” In the Retention Agreement, Pohl
agreed to pay Precision $1,500 an hous. up to 30% of Pohl’s 40% contingency fee.'""8 However,
Pohl and Precision both knew tha the fee for soliciting and referring cases would not be based
upon an hourly rate, but her apr of attorney’s fees recovered. This is so, because the
Retention Agreement sae tt “any and all such fees shall be apportioned by and between the
—
122 Td. 5 &
123 Exhibit 25, @
©
124 Tq Sy
125 Exhibit 32.
126 Td.
27 Exhibit 31.
128 7.
17

parties hereto as follows: Ladner (15%) and Walker (15%).”!?° If the parties to the agreement
actually thought Precision’s fee was based upon an hourly rate the split between Ladner and
Walker would be 50/50 and not listed a 15% for each. Kenneth Talley was to be rewarded as well.
He was to receive $10,000.00 for every one-million recovered for Cheatham and his family.!*°
This is not based upon any hourly rate. oe
Underscoring the fact that Precision was to be paid a percentage of the attorney’s fees
recovered as opposed to an actual hourly rate is the numerous cherie when Pohl paid Ladner
and Walker for there solicitation and referral of rollover cases. Unie the Cheatham case, most
agreements for referring cases to Pohl outlined a fee to Precisigir of 22.5% instead of 30%.'3! On
November 28, 2014, Pohl sent an email to Walker won “Diaz/Curran” case stating the
case settled for $875,000.00.!32 Pohl disclosed the@mount of settlement so that Walker could
manufacture his hours to fit 22.5% of Pohl’s £2 om can clearly see the calculation of legal
fees from the $875,000 to be $306,250. Then that number was multiplied by 22.5% to come up
with $68,906.25 and then divided by $1,500 per hour to come up the number of hours (45.93
hours).!°> Of course, Walker rounds up to an even 46 hours.'*° If Pohl actually believed that he
was paying Precision by be oi he would not have disclosed the amount of the recovery; he
&
Id. | ~S
130 Exhibit 33. NS
©
131 Exhibit 34, &
132 Exhibit rs
133 Tq.
134 Tq.
135 Tq.
136 Td.
18

would have simply requested a detailed account of the hours spent by Precision. If Precision’s
time actually surpassed 22.5% of the attorney’s fee, Pohl could have simply reduced the amount
to no more than 22.5%.

The same thing was done with the “Sanchez” case. On J anuary 1, 2015, Pall sent an email
to Walker informing him that the Sanchez case had settled for $680,000.37 Poi ats “In order
to compute the ceiling on your hourly fees and expenses, the attorney feesnet of local counsel
charges was $250,129.90.”!38 Pohl provides this figure without knowin that Precision’s hours
would even reach the 22.5% threshold. This is because everyone knew that the real fee to Precision
was 22.5% of Pohl’s net attorney’s fee. Of course, 22.5% of 250,129.90 is 56,279.90.!5° After
deducting the $5,000 owed to Pohl for personal loans, wine divides the remainder to calculate
Precision’s hours instead of providing a setaledenccty billing. '*° In fact, the “Operating
Agreement” Pohl signed with Precision, viv the Sanchez case, does not mention an
hourly “rate,” it simply states that, “The pais here agree that the fees paid under this Operating
Agreement shall not exceed twenty-two and one-half percent (22.5%) of LOMAP’S [Law Offices
of Michael A. Pohl] representatioi agreement with victims in cases where Precision Marketing
Group, LLC is retained.” Th Agreement clearly contemplates that Ladner, Walker and
Seymour, of Precision wax receive 7.5% for a total of 22.5%.'"" The “Operating Agreement”
137 Exhibit 36. ©
138 1a, Sy
139 Tq.

140 Td.
141 Exhibit 34,
142 Td.
19

between Precision and the Runners who actually signed up the Sanchez case shows that Precision
is to receive 50% percent of the 22.5% and Florian Santana and Magdalena Santana were to each
receive 25% of the 22.5%.'*? These documents prove, without doubt, that Pohl agreed share his
fees with non-lawyers for soliciting and referring rollover cases. Ne

In October of 2014, Pohl was caught attempting to steal a rollover asm a lawyer in
Mississippi. On October 15, 2014, Richard Shenkan of the Shenkan Law Fitm sent a letter to Pohl
stating, “On September 16, 2014, your salesman, Kirk Ladner, came wide home of Michael Lucas
under the disguise of a member of the GM Settlement Verification Fea, LLC, offering to ‘inform’
the resident about a potential legal claim.”!44 Mr. Shenkan alsy states, “Remarkably, Mr. Ladner
explained that he typically earns $25,000 for every ce for you [Pohl] which involves
a catastrophic injury potentially involving the GM rte defect claims.”!*5 Attached hereto is
the contract between Pohl and Michael Lucas wi was the subject of Mr. Shenkan’s letter.!*

Pohl’s remarkable unconsciousness undscore by the creation of the “GM Settlement
Verification Team” as referred to in Ms, Shenkan’s letter.47 As stated by Mr. Shenkan, Pohl’s
runner acted as if he was part oO Genera Motors and was simply contacting people to “inform”

ee
&
©
143 Exhibit BS
144 Exhibit 38.
145 Tq.
146 Exhibit 39.
47 Td.
20

them about potential legal claims.'** Another example of this pertains to the Hart family."" This
tactic was used by Pohl and his Runners on numerous occasions. !%°
The history of what is known as “barratry” in Texas is long. Although it has recently
become the subject of civil statutes, barratry has been considered a crime in Texgs since 1876.
EN
Reynolds v. State, 2017 Tex. App. LEXIS 11059, *1-2.; Katherine A. Laroe, gosilent Much Ado
About Barratry: State Regulation of Attorneys’ Targeted Direct-Mail Solicitation, 25 St. Mary's L.J.
S
1514, 1519-20 n.28 (1994)(also tracing historical basis of offense throigh pre-colonial times). As
NS
far back as 1917, Texas outlawed a distinct form of barratry oF third party (a ""runner"") to
solicit clients on behalf of a lawyer. Jd. at 1524 n.30; Remote 17 Tex. App. LEXIS 11059, *1-
2. In a different form, that prohibition exists today ope PENAL CODE ANN. § 38.12(d)(West
2016) which criminalizes a lawyer knowingly — a third party to improperly solicit on the
lawyer's behalf employment from a victim witha iyo days of an accident. Under the text
O,
of the statute, a lawyer commits an fens hen he or she:
(d)(2) with the intent to obtai “Gro fessional employment for the person or for
another, provides or knowi iy permit to be provided to an individual who has not
sought the person's employment, legal representation, advice, or care a written
communication or a solicitation, including a solicitation in person or by telephone,
that: \
(A) concerns an Goivtor personal injury or wrongful death or otherwise relates
to an accident of disaster involving the person to whom the communication or
solicitation isprovided or a relative of that person and that was provided before
the 31st day-atter the date on which the accident or disaster occurred.
gS
<
M48 Td.
149 Exhibit 40.
‘50 There are numerous documents supporting this fact that have not been attached hereto, but are available upon
request.
21

Stated otherwise: (1) a lawyer, (2) cannot with intent to obtain professional employment,
(3) provide or knowingly permit to be provided to someone who hasn't sought the lawyer's services,
(4) a written communication or a solicitation (in person or by phone), (5) in the first thirty days
following some accident or disaster. Jd. ve

“The ordinary meaning of barratry is vexatious incitement to tigation especially by
soliciting potential legal clients.” Neese v. Lyon, 479 S.W.3d 368, 376 (Te -App—Dallas 2015,
no pet.) (citations omitted). In an effort to curtail this crime, the Least, in 1989, enacted §
82.065 of the Texas Government Code, which allowed clients to seid contingent fee contract “if
it is procured as a result of conduct violating the laws of this ie or the Disciplinary Rules of the
State Bar of Texas regarding barratry by attorneys or ti ys Neese, 479 S.W.3d at 376-
77. The 1989 version of section 82.065 provided: &

A contingent fee contract for legal servi SY vant by the client if it is procured

as a result of conduct violating the 1 f this state or the Disciplinary Rules of

the State Bar of Texas regarding rd attorneys or other persons.

See id.; Acts 1989, 71st Leg., ch. 866, givett Sept. 1, 1989 (amended 2011).

In 2011, the Legislature pésed Senate Bill 1716 which amended § 82.065 and enacted
section 82.0651 to create eo “liability arising from conduct constituting barratry and
provid[ing] a civil peng? Se JUDICIARY & CIVIL JURISPRUDENCE COMMITTEE REPORT, 8.B.
1716, Acts 2011, 82nd Leg., ch. 94 (S.B. 1716), § 3(a), eff. Sept. 1, 2011 (“S.B. 1716 Analysis”)
(emphasis added Nees 479 §.W.3d at 377. The purpose of S.B. 1716 was to create a civil
cforement pa statutes and disciplinary rules prohibiting barratry, the “vexatious incitement
to litigation, especially by soliciting potential legal clients.” See S.B. 1716 Analysis.'>* The bill
'S! Exhibit 44 — A true and correct copy of S.B. 1716 Analysis.

192 Td.
22

itself specifically stated that it was intended to provide “liability arising from conduct constituting
barratry; providing a civil penalty.” See S.B. 1716, Acts 2011, 82nd Leg., ch. 94 (S.B. 1716), §
3(a), eff. Sept. 1, 2011 (“S.B. 1716”), #53
The legislative intent and “purpose” of S.B. 1716 was set forth in ne Gepon of the
Judiciary & Civil Jurisprudence Committee to “add a civil enforcement opfon to “help curtail”
the practice of barratry: 5 &
&s
Barratry is commonly known as vexatious incitement to litigation, typically by
soliciting potential legal clients. Many refer to the pract®oy a “case running.”
Under Section 38.12, Penal Code, “barratry” is genery. efined as the illegal
solicitation of professional employment. The Texas; isciplinary Rules of
Professional Conduct of the State Bar of Texas prohibit\these solicitations as well.
Adding a civil enforcement option would help cua is practice.
S.B. 1716 adds a cause of action for a client Wo has been unlawfully solicited to
void the contract and recover any actual d s and any fees and expenses paid.
The bill allows a potential client to rec civil penalty of $10,000 from any
person who committed barratry but not succeed in getting the potential
client to sign a contract. Actual d. Ss and attorney's fees are also recoverable
by a potential client. we
See S.B. 1716 Analysis (emphasis added): House Bill 1890, the companion and preceding bill
2 O
to 8.B. 1716, also provided that ‘the purpose of the legislation was to create “[c]ivil action for
conduct constituting barratry “ee HOUSE RESEARCH ORGANIZATION BILL ANALYSIS OF HB
1890, April 20, 2011 coe 890 Analysis”) (emphasis added).'°° Under the enacted statute,
“(victims of barratry w ho did not enter a contract could recover $1 0,000 penalty, actual damages,
NS
and attorney’s fees” See id. (emphasis added).!%
<
‘93 Exhibit 45 — A true and correct copy of S.B. 1716
154 See Exhibit 44 — A true and correct copy of S.B. 1716 Analysis.
‘SS Exhibit 46 — A true and correct copy of H.B. 1890 Analysis.
156 See Id.
23

Texas Government Code section 82.0651, the enacted section to create the civil
enforcement, is specifically titled “Civil Liability for Prohibited Barratry.” See TEx. Gov’T CODE
§ 82.0651(c) and (€) (eff. Sept. 1, 2011 to Aug. 31, 2013) (emphasis added).!57 Section 82.0651
enacted in 2011 provided:

BS

(c) A person who was solicited by conduct violating the laws of tips or the

Texas Disciplinary Rules of Professional Conduct of the State Bay of Texas

regarding barratry by attorneys or other persons, but who did Cipenter into a

contract as a result of that conduct, may file a civil action againet y person who

committed barratry. A

NS
(d) A person who prevails in an action under Subsection (sal recover from each
person who engaged in barratry: G
@

(1) a penalty in the amount of $10,000; Ke)

(2) actual damages caused by the prohibited obriduct; and

(3) reasonable and necessary attorney’s fees

&s

See id. (emphasis added). To promote its Purpose to deter barratry and to create a civil liability, §
82.065 1(e) expressly provided that the section was to “liberally construed.” Id. at § 82.0651(e)
(emphasis added). 5 S

In 2013, the Legisatan( pie House Bill 1711, which the bill described as “relating to
barratry,” to amend sections 82.068 and 82.0651. See Acts 2013, 83rd Leg., ch. 315, H.B. 1711,

©
§ 2, eff. Sept. 1, 2013, CHB, 1711”).'°8 The reason for the amendment was stated in the
“background and pitpose” of H.B. 1711:
SS

Recent eisatin established civil liability for prohibited barratry and provided

for ility of a client to void any contract for legal services that was procured

t such prohibited conduct. Concern has been raised over reports that some

attorneys have found a loophole in the law to avoid one of the civil penalties for

barratry by releasing their client after a case is “run” and a contract for legal
‘57 Exhibit 47 — A true and correct copy of TEX. Gov’T CODE § 82.065 (eff. Sept. 1, 2011 to Aug. 31, 2013).
188 Exhibit 48 — A true and correct copy of H.B. 1711.

24

services is signed. Interested parties note that the $10,000 penalty currently
assessed applies only when a person is illegally solicited but no legal services
contract is signed as a result of that conduct and that there is no such penalty if a
legal services contract is signed as a result of that illegal solicitation. In an effort
to close this loophole and hold attorneys who commit barratry accountable for
their actions, C.S.H.B. 1711 authorizes a client who enters into a legal services
contract to recover certain damages and amounts from a person who cempmits
barratry. KN
a @
See HOUSE RESEARCH ORGANIZATION BILL ANALYSIS OF HB 171 1, Acts 2013, 83rd Leg., ch. 315,
H.B. 1711, § 2, eff. Sept. 1, 2013 (“H.B. 1711 Analysis).!° HB. 114 also amended Section
eZ)
82.0651 from “conduct violating the laws of this state or the Disciplinary Rules of the State Bar
of Texas” to “conduct violating Section 38.12(a) or (b), Penab’Cdde, or Rule 7.03 of the Texas
@
Disciplinary Rules of Professional Conduct of the State Bar6ey exas.” See H.B. 1711; TEX. Gov’T
Cope § 82.0651 (eff. Sept. 1, 2013).!
H.B. 1711 was codified into Section S065) and became effective Sept. 1, 2013. The
Ss
Statute is again titled “Civil Liability for Paiva Barratry” the relevant portion of which
provides: S
(c) A person who was solicited by conduct violating Section 38.12(a) or (b), Penal
Code, or Rule 7.03 of thé Texas Disciplinary Rules of Professional Conduct of
the State Bar of Texas, tegarding barratry by attorneys or other persons, but who
did not enter into a coiract as a result of that conduct, may file a civil action
against any person why ommitted barratry.
©
(d) A person whbphevails in an action under Subsection (c) shall recover from each
person who engaged in barratry:
NS
(Dhapenalty in the amount of $10,000;
Xe actual damages caused by the prohibited conduct; and.
(3) reasonable and necessary attorney’s fees.
'®? Exhibit 49 — A true and correct copy of H.B. 1711 Analysis.
'©0 Exhibit 50 — A true and correct copy of TEX. Gov’T CODE § 82.0651 (eff. Sept. 1, 2013).
25

See id. (emphasis added). Even as amended, § 85.0651 was to be “liberally construed” to
promote its underlying purpose of deterring barratry. Jd. at § 82.0651 (e). This section has not been
repealed or amended since 2013. See Id.

Unfortunately, however, as shown herein, Michael Pohl believes he is abaye the clear and
unequivocal laws of Texas which are outlined in the Texas Penal Code and beta Disciplinary
Rules of Professional Conduct. This is a textbook case for the violations ofthese laws and rules,
and the evidence is overwhelming. , Ss

i)
II
VIOLATIONS &

The evidence cited to above and attached hereto ceil shows that Michal A. Pohl violated
Texas Disciplinary Rules of Professional Conduct, Ss (1) & (2), & (g), 1.15 (a)(1), 5.04 (a)
& (d)(1), 7.03 (b) & (d), 7.05 (a) & (c), 7.06 @eo, 8.04 (a)(1)(2)(3)(9) & (12), & (b). Pohl
and his wife, Donalda also violated the Tea en Code, Sections 38.12(a)(4), 38.12(b)(1), (2)
& (3) which are third-degree felonies in Texas and considered “serious crimes” pursuant to the
Texas Disciplinary Rules of Professional Conduct, 8.04(b). Pohl also violated Section 32.43(b) of
the Texas Penal Code. Moreové ti evidence attached outlines an egregious conspiracy between
Michael Pohl and his wife Donald Pohl to take advantage of grieving individuals in despicable
fashion. ou

N
A. TEXAS Discs INARY RULES OF PROFESSIONAL CONDUCT VIOLATIONS:
1. Rule L040, (1) & (2), & (g) provides:
a division or agreement for division of a fee between lawyers who are not in the
same firm may be made only if:
(1) the division is:
(i) in proportion to the professional services performed by each lawyer; or
26

(ii) made between lawyers who assume joint responsibility for the

representation; and
(2) The client consents in writing to the terms of the arrangement prior to the time of the
association or referral proposed, including

(i) The identity of all lawyers or law firms who will particips in the fee-
sharing arrangement; and

@

(ii) | Whether fees will be divided based on the proportio Sfservices performed
or by lawyers agreeing to assume joint responsibility fo the representation;
and SS

(iii) | The share of the fee that each lawyer. or firm will receive, or if the
division is based on the proportion of services performed, the basis on which
the division is based on the proportion ab services performed, the basis on
which the division will be made; . . .

(g) Every agreement that allows a lawyer or to associate other counsel in the
representation of a person, or to refett e person to other counsel for such
representation, and that results in suclran association with or referral to a different
law firm or a lawyer in such a diffeeeat firm, shall be confirmed by an arrangement
conforming to paragraph (f). Consent by a client or a prospective client without
knowledge of the informatio ified in subparagraph (f)(2) does not constitute
a confirmation within the g of this rule. No attorney shall collect or seek to
collect fees or expenses connection with any such agreement that is not
confirmed in that way, io t for:

(1) the reasonable value ofteal services provided to that person; and

(2) the reasonable and recdssary expenses actually incurred on behalf of that person.
TEX. DISCIPLINARY R. Prom’ Conpuct 1.04(f), (1) & (2), & (g).

©

As shown, Pohl Williamson and Rusnak agreed to share fees arising out of their joint

representation of cen in the BP litigation. The contracts attached hereto as Exhibit 43 are
SS

completely devoid of the language mandated by Rule 1.04, and therefore, prove that Pohl,
Williamson and Rusnak knowing failed to comply with Rule 1.04(f), (1) & (2), & (g).'®!

2. Rule 1.15 (a)(1) provides:

(a) A lawyer shall decline to represent a client or, where representation has commenced,

shall withdraw, except as stated in paragraph (c), from the representation of a client, if:
161 Exhibit 43,
27

(1) the representation will result in violation of Rule 3.08, other applicable rules of
professional conduct or other law; .. .
TEX. DISCIPLINARY R. PROF’L CONDUCT 1.15(a) (1).

The Lawyers rejected many of the potential clients illegally obtained eae was
convicted of a felony and sent to prison in Mississippi in an attempt to estan themselves from
him. However, Pohl, Williamson and Rusnak kept many of the ill-gotten clients, failing to
withdraw as mandated by and in violation of Rule 1.15. 5 &

Rule 5.04 (a) provides:

(a) A lawyer or law firm shall not share or promise tire legal fees with a nonlawyer, .
TEX. DISCIPLINARY R. PROF’L CONDUCT 5.04(a). ss

As shown above, Pohl agreed to share fees we share fees regarding his rollover cases
with Walker, Ladner, Seymour, Santana, Talley and numerous others, all of which are non-
lawyers.'© Also shown above, Pohl, Witians and Rusnak shared fees with these individuals
regarding their BP litigation! o

3. Rule 7.03 (b) & (d) i es:

(b) A lawyer shall not pay, give, or offer to pay or give anything of value to a person not
licensed to pace la for soliciting prospective clients for, or referring clients or
prospective om o, any lawyer or firm, . . .

(d) A focal not enter into an agreement for, charge for, or collect a fee for
profess} employment obtained in violation of Rule 7.03(a), (b), or (c).

TEX. Dwscrunyey R. PROF’L CONDUCT 7.03(b) & (4).
Sy
1© See Exhibits 32, 33, 34, 35, 36, 37, 38,41 & 42.
163 See Exhibits 3, 4, 6, 8 & 9.
28

Clearly, the evidence provided herein demonstrates that Pohl violated this Rule by paying,
giving and offering to pay money to Ladner, Walker, Seymour, Santana, Talley and others.! The
agreements attached hereto also prove that Pohl entered into agreements for, charged for and
collected a fee for professional employment obtained in violation of Rule 7.03 PEL!

4. Rule 7.06 (a) & (b) provides: oy

(a) A lawyer shall not accept or continue employment in a matter When that employment
was procured by conduct prohibited by any of Rules 7.01 gh 7.05, 8.04(a))2), or
8.04(a)(9), engaged in by that lawyer personally or by, other person whom the
lawyer ordered, encouraged, or knowingly permitted tocenzage in such conduct.

(b) A lawyer shall not accept or continue employment in matter when the lawyer knows
or reasonably should know that employment w ocured by conduct prohibited by
any of Rules 7.01 through 7.05, 8.04(a)(2), or SS a)(9), engaged in by any person or
entity that is a shareholder, partner, or me ex , an associate in, or of counsel to that
lawyer’s firm; or by any other person wh y of the foregoing persons or entities
ordered, encouraged, or knowingly pee to engage in such conduct.

IN

TEX. DISCIPLINARY R. PROF’L CONDUCT 7 06(3) & (b).

The evidence above makes it sonal clear that Pohl, Williamson and Rusnak illegally
obtained clients through runners. Only.fter Walker was convicted of a felony and sent to prison

2 O
did these Lawyers attempt to “ee themselves from the runners and some of the ill-obtained
cases. However, Pohl, walgqson and Rusnak kept many of these clients in violation of Rule
7.06(a) & (b). In fact, Po conned to use the same runners with regard to the rollover accident
cases he was receiving nd then failed to withdraw in violation of the Rule.!®
NS
&
<
164 See Exhibits 3, 4, 6, 8, 9, 32, 33, 34, 35, 36, 37, 38, 41 & 42
165 dd.
166 Td.
29

5. Rule 8.04 (a)(1)(2)(3)(9) & (12), & (b) provides:
(a) A lawyer shall not:

(1) Violate these rules, knowingly assist or induce another to do so, or do so through
the acts of another, whether or not such violation occurred in the course of a client-
lawyer relationship;

FS

(2) Commit a serious crime, or commit any other criminal act that fefec adversely
on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(3) Engage in conduct involving dishonesty, fraud, deceit orinisrepresentation, ..

(9) engage in conduct that constitutes barratry as defined by the law of this state; . . .

(12) violate any other laws of this state relating to théprofessional conduct of lawyers
and to the practice of law. GP

(b) As used in subsection (a)(2) of this Rule, “seri @erime” means barratry; any felony
involving moral turpitude, any misdem involving theft, embezzlement, or
fraudulent misappropriation of money or o property, or any attempt, conspiracy, or
solicitation of another to commit any <i crimes.

TEX. DISCIPLINARY R. PROF’L CONDUCT 7.066940, ),(3),(9) & (12), & (b).
O,
The overwhelming evidence provided erin, proves that Pohl, Williamson and Rusnak
violated each of these Rules. o
B. TEXAS PENAL CODE ViouAtio NS
1. Section 38.1204)
As shown above, Poht violated Section 38.12(a)(4) of the Texas Penal Code. This section
is violated if a ""ean intent to obtain an economic benefit...pays or gives or offers to pay
oS
or give a persggefebney or anything of value to solicit employment.” TEX. PENAL CODE §
38.12(a)(4). As demonstrated herein, Pohl paid runners, Ladner, Walker, Seymour, Santana, Talley
and others Wlions of dollars to solicit and gather clients for Pohl and his cohorts, not only for the
30

BP litigation, but also with regard to rollover cases.!§7 Pohl did so with the intent to obtain the
economic benefit of attorney’s fees. Thus, Pohl violated Section 38. 12(a)(4).
2. Sections 38.12(b)(1), (2) & (3):
Pohl violated Section 38.12(b)(1), (2) & (3) as well. These sections are viglated when one
(1) knowingly finances the commission of an offense under Subsection (a) oF Sesion 38.12, (2)
invests funds the person knows or believes are intended to further the commission of an offense
under Subsection (a) of Section 38.12 or (3) is a professional who kneel accepts employment
within the scope of the person’s license, registration, or crifation that results from the
solicitation of employment in violation of Subsection (a) of Seétion 38.12. TEX. PENAL CODE §
38.12(b). Clearly, the evidence provided herein sonst Pohl violated this section of the
Texas Penal Code as well.!® KR
3. Section 32.43(b): RS
Pohl further violated Section 22.43 th Texas Penal Code (commercial bribery). Section
32.43(b) of the Texas Penal Code prohibits fiduciary — such as a lawyer — from “intentionally or
knowingly” soliciting, accepting “or agrecing to accept any benefit from another person on
agreement or understanding bart benefit will influence the conduct of the fiduciary in relation
to the affairs of his bea TEX. PENAL CODE § 32.43(b). Pohl intentionally or knowingly
solicited, accepted, or agreed to accept a benefit from the Runners (the ability to represent Plaintiffs
in the rollover sete cases and to obtain the subsequent attorney’s fees therefrom) on the
serene’ oF ndestanding that the benefit received would influence the conduct of Pohl in
relation to the representation of clients in that Pohl breached duties to his clients as outlined above
by engaging in the deceptive barratry scheme.
167 See Exhibits 3, 4, 6, 8, 9, 32, 33, 34, 35, 36, 37, 38, 41 & 42.
168 Tq.
31

it
CONCLUSION

Although many believe the contrary, no lawyer is above the law. And, although many look
the other way when it comes to case running, the violations outlined in this grievance cannot be
ignored. To do so, would make a mockery of the profession we call the pate fie It would
also serve as a shining example that Texas lawyers are incapable of slyegulaton and that the
State of Texas is incapable of preventing our lawyers from not only ting advantage of those in
need of legal services in Texas, but in other states as these Lawyef have.

The conduct outlined above is some of the most egregious conduct I have seen in more
than twenty-years of practicing legal malpractice. If en of these Lawyers is condoned,
the State Bar and the Texas Supreme Court should fepeal all of the Disciplinary Rules of
Professional Conduct and issue an opinion ning all Texas lawyers that this type of conduct
is the standard for how lawyers may obtain a ie cases in Texas. Additionally, the statutes
regarding barratry will have no meaning and thus, the legislature should simply abolish those
statutes as well. 5 &

&
=) Respectfully submitted,
S&
&S a
, > Lance Christopher Kassab
iS
S$
32

Ih
LAW FIRM
July 3, 2018
ae
VIA ELECTRONIC MAIL (timothy.baldwin@texasbar. com) oy
Timothy J. Baldwin Be
Administrative Attorney “GO
The Office of Chief Disciplinary Counsel XG
4801 Woodway Drive, Suite 315-W °@
Houston, TX 7705661 ©)
: ®
Re: File No. 201801826: Grievance Concerning di Rusnak
File No. 201801825: Grievance Concerning ichael Pohl
Dear Mr. Baldwin:

Sent with this letter is a copy of the Re ito Ms. Rusnak’s response to the grievance.
Attached to the Reply as Exhibit “A” is a copy of M gdalena Santana’s deposition with all of the
exhibits.’ The deposition is more than 350 ges long and confirms everything in Ms. Santana’s
first affidavit. Of course, Rusnak and Poh-wil undoubted claim that Ms. Santana was coached
to say everything she said in her depositién, Owever, Common sense dictates that that would be
an impossibility due to the length, breadth and detail within of the deposition.

i)

Attached to this letter are bits “A,” “B,” “C,” “D,” “EB,” “EF” & “G”. Exhibit “A” is a
copy of a transcribed conversati etween Lance Kassab and Magdalena Santana wherein she
confirms that she was hired by—Precision Marketing to run cases for Pohl and Williamson2
Santana also confirms that Walker, Kirk Ladner and Steve Seymour were hired by Pohl
and Williamson.’ Jd. Eve himself has testified in an affidavit that Walker, Ladner and
Seymore were his représefitatives.4 The affidavit is attached hereto as Exhibit “B.” In his
affidavit, Pohl states, Ch addition to performing permissible public relations services for me,
Walker, Seymour, Ladner, and Robinson (and/or their companies) were my representatives for
purposes of perforthing client liaison services, client screening services, and evidence gathering
services in co on with BP oil spill claims and/or motor vehicle accident claims.” All this
corroborates x Santana has said in her first affidavit which Rusnak and Pohl now argue the
Bar should fe} consider.

1 Exhibit “A”
* Rusnak has been determined to be Williamson’s partner and a partner in the joint venture to obtain BP cases. See
Order from the Mississippi Federal Court attached to grievance.
3 Exhibit “A,” pp. 2, 4
* Exhibit “B,” par. 7
1214 Elgin Street | Houston | Texas | 77004 | p. 713.522.7400 f. 713.522.7410 | www.TexasLegalMalpractice.com

Timothy J. Baldwin
July 3, 2018
Page 2 of 3

Attached as Exhibit “C,” is the affidavit of Andrew Paul Mozingo who is an expert in
computer forensics. Mr. Mozingo pulled the text messages from Scott Walker’s cell phone. The
text messages between Walker and Pohl and Walker and Pohl’s paralegal, Edgar Jaimes also
corroborates Santana’s testimony from her first affidavit and deposition and shows how these
folks would visit hospitals, funerals and homes to sign up clients.

Exhibit “D” attached hereto is a spreadsheet showing the prentgs nP and his
joint ventures, Williamson and Rusnak paid to non-lawyers. As the Spreads indicates, these
runners were always paid their contract percentages of either 30% of the f or 22.5% of the
fees.° “GS

&

Exhibits “E”* and “F”” are documents which show that Pohl, Gniacted clients within days
of tragic accidents which claimed the lives of loved ones. These @optacts are clear violations of
the Texas Penal Code, Section 38.12(d)(2)(A). This section-de nes one act of barratry as
follows: oP

(d) A person commits an offense if the persone)

(1) Is an attorney, .. .

(2) With the intent to obtain Sonal employment for the person or for
another, provides or knowi permist to be provided to an individual who
has not sought the perso ployment, leg! representation, advice, or care a
written communication, 0 a solicitation, including a solicitation in person or
by telephone, that: ©
(A) Concerns Gon for personal injury or wrongful death or otherwise

relates to Ge rocident or disaster involving the person to whom the
communication or solicitation is provided or a relative of that person and
that vad provided before the 31% day after the date on which the accident
or ion occurred;

Clearly, Poh Violated the penal code in this manner® and thus, violated Texas
Disciplinary Rule of Pofesional Conduct, Rule 8.04 and then violated Rule 7.06 by continuing
employment. Po cepted employment of these two clients and continued employment with
these two clien ark Cheatham, Sr. and Lacy Reese). Moreover, Pohl violated Rule 1.03 by
failing to eee this material information to these two clients.
> Exhibit “D”
® Exhibit “E” (Email regarding contacting Lacy Reese within days of losing her husband in a rollover accident)

7 Exhibit “F” (Declaration of Mark Cheatham, Sr. wherein he states that he was contacted within a couple of days of
the tragic accident that claimed the lives of his loved ones, by people who he later found out were sent there by
Michael Pohl)

8 See Exhibits “E” & “F.” See also Pohl deposition (Exhibit “G,” pp. 80-83; 271-273 and 275). Thus, Pohl
contacted Mark Cheatham, Sr. and Lacy Reese within days from the tragic accidents that took the lives of their
loved ones in violation of the Texas Penal Code.

Timothy J. Baldwin
July 3, 2018
Page 3 of 3

Exhibit “G” is the deposition of Michael Pohl that was recently taken with all exhibits.
The deposition is telling in that he conveniently could not recall numerous pertinent fact, refused
to answer certain questions, and was generally combative throughout the deposition. Mr. Pohl
also accused Kassab of personally breaking into his office in Gulfport Mississippi and stole his
files and computers.” Here, Mr. Pohl admits that he was running a law office Mississippi”
Mr. Pohl also admits that he has an office in Tennessee.!! However, he i t licensed to
practice law in Tennessee. Mr. Pohl is also not licensed to practice law i Mississippi 2 By
operating a law firm in Tennessee and Mississippi without a license to practic law in those
states appears to violate Rules 5.05 and 7.01. XG)

&

Additionally, during Mr. Pohl’s deposition he came over to where my client, my nephew,
David Kassab and my client were talking and told my client that pe ever wanted to settle his
case to give him a call without his lawyers present.!? This appe S to be a violation of Texas
Rules of Professional Conduct, Rule 4.02. G

@

- Santana’s affidavit and the corroborating testimony-of Michael Pohl’s paralegal, Edgar
Jaimes, prove that Pohl paid Santana $50,000.00 in c rt her agreement not to testify against
him.'* This is not only a criminal act, it is a violationof Rules 3.04 and 8.04.

RY
es Sincerely,
S THE KASSAB LAW FIRM
© o FZ
ES “
O Lance Christopher Kassab

Cec: Billy Shepherd (bs So spcounsel.com)

Steve Bailey (sbailey(@spcounsel.com)

Gregg Weinberg gweinberg(@rmwbhlaw.com)

John Zavitsae ey (jzavitsanos(@azalaw.com)

Patrick “we ough (pyarborough@azalaw.com)

©

LCK/sg Sy
9 Exhibit “G,” pp. 87-93.
10 Td.
1] Exhibit “G,” pp. 44-46 (Pohl likely did have his Tennessee website approved by any state bar as well.)
12 Exhibit “G,” pp. 17-18.
13 Exhibit “G,” pp. 226-229,
'4 Edgar Jaimes’ deposition transcript will be forwarded next week after it has been transcribed.
15 See Chapter 36 of the Texas Penal Code.

LAW FIRM
July 20, 2018
ewe
ViA ELECTRONIC MAIL (timothy.baldwin@texasbar.com) oy
Timothy J. Baldwin 5 &
Administrative Attorney eS
The Office of Chief Disciplinary Counsel °F
4801 Woodway Drive, Suite 315-W &
Houston, TX 7705661
®

Re: File No. 201801825: Grievance Concerning Michael Pohl
Dear Mr. Baldwin: ©

[am in receipt of Michael Pohl’s Reply sted ly 17, 2018. Again, rather than address
the actual merits of the alleged rule violating Pod and his counsel throw more disparaging
remarks against me. In fact, essentially all 22 pages of the reply act out against me personally
rather than addressing the merits. So

)

Of course, there are too MG iicutons remarks to address in a short time, nonetheless,
there are several that should bé mentioned. First of all, they criticize me for asking for additional
time to address all of te disparaging remarks against me personally in addition to
supplementing the gribwanc and then they also criticize me for not addressing the disparaging
remarks. As you inay remember, on July 2, 2018, I requested an additional 30 days to respond,

wS
however, shesy thereafter you told me that I could not be granted 30 days. Therefore, I
attempted tp cobble together additional documents that I thought would be pertinent for your
review in a short amount of time. With not much time to respond, I thought the documents
pertaining to the grievance were more important than addressing Pohl’s personal attacks.
Obviously, Pohl and his counsel disagree.
1214 Elgin Street | Houston | Texas | 77004 |p. 713.522.7400 f. 713.522.7410 | www.TexasLegalMalpractice.com

Timothy J. Baldwin
July 20, 2018
Page 2 of 17
Additionally, Pohl and his lawyers state that I have “blatantly” mischaracterized Pohl’s
50,000.00 payment to Magdalena Santana (“Santana”). Unbelievably, Pohl and his lawyers state
that the $50,000.00 cash payment was for what they attempt to describe as ajo release”
that “included a standard non-disparagement clause. . . .”! Notably, nownefe.in the “agreement”
are the words, “non-disparagement.” What is also notable is that Senin crossed out the words
“in order to clear my conscience and set the record straight.” She also crossed out the words,
“These charges [(referring to the previous claims and ategsion she made against Pohl and
others concerning barratry)] were made by me when Sra in dire need of money and not
thinking clearly.”? The only inference that can be nade Santana crossing out these statements
was that she was thinking with a clear mind win se made the allegations against Pohl and
others, that she wanted to set the record seat and that she was not in dire need of money.

Not only are my characterizations of the $50,000.00 cash payment accurate, Pohl and his
lawyers are hypocrites in that they blatantly” mischaracterize my agreement with an expert
witness. Pohl and his lawyers éapanery lie to you by stating over and over and over again that
I “knowingly purchased cident records stolen from Pohl and improperly solicited Pohl’s
clients based on that itGopiation.” Any examination of the agreement that these lawyers cite to
as their proof i assertion contradicts this statement. These lawyers cannot cite to or
provide any poo! of their claim. Yet, they contort the truth to disparage me in a feeble ad
hominem aitempt to direct the focus away from Pohl. This is truly shameful.

1 Pohl’s Reply, p. 14.
? Exhibit 16 to Pohl’s Reply.
3 Pohl’s Reply, p. 1.

Timothy J. Baldwin
July 20, 2018
Page 3 of 17
In any event, in order to make their statement that I have “blatantly” mischaracterized the
$50,000.00 cash payment to Santana, these lawyers state, “Rather, the agreement sought to
prevent Santana from further ‘publishing’ or relating to third parties her allegations of wrongful
eS
conduct.” Actually, the agreement that Santana was forced to sign before Reon get paid
states: ES
nS)
FOR THE SUM OF $100 AND OTHER CONSIDERATIO $50,000.00 IN
CASH] RECEIVED I AGREE TO TODAY AND FROM EFORTH NOT
TO PUBLISH IN WRITING OR BY ELECTRONIC ANY CHARGES
OF WRONGDOING, CRIMNAL CONDUCT, ILLEGAL CONDUCT OR
UNETHICAL CONDUCT AND SHALL NOT RELATE SUCH CHARGES TO
ANYONE VERBALLY .* S
Agreeing “not publish in writing or by cect mail any charges of wrongdoing,
criminal conduct, illegal conduct or unethical uct” against Pohl, and agreeing “not to
INN
relate such charges [regarding Pohl] to anyovie verbally” is an agreement not to testify against
Pohl. Who are these guys kidding? What does this mean? Yet, incredibly, these same
lawyers argue to you that a retainer agreement with an expert witness means I “knowingly
purchased confidential records sdien from Pohl and improperly solicited Pohl’s clients based on
that information.” Their ey remarkable.
Another cul tendency to skew the truth may be found on page four of Pohl’s
Reply. There, they Eapsesent to you and this forum that: .
of
NS
It is also(uncontroverted that Walker and his partners in the alleged “barratry
conspiracy,” Steve Seymour (Seymour”) and Kirk Ladner (“Ladner”), held
the es out as having expertise in marketing/public relations services,
repre nted to Pohl that they operated under the guidance of experienced
issippi attorneys to ensure the propriety of their marketing activities, and
did, in fact, obtain review and approval of their marketing activities from
several Mississippi lawyers.°
* Exhibit 16 to Pohl’s Reply (emphasis added).
> Page 4 of Pohl’s Reply (emphasis added).

Timothy J. Baldwin
July 20, 2018
Page 4 of 17
First, these lawyers cite you to page 194-195 of Mr. Walker’s deposition as support for
this representation. They make this representation to you as though Mr. Walker testified that he,
Ladner and Seymour “operated under the guidance of experienced Mississippi. ‘attorneys to
‘ . . . age . NS
ensure the propriety of their marketing activities, and did, in fact, obtain review and approval of
their marketing activities from several Mississippi lawyers.” Yet, Mr. Walker says nothing of
the sort. In fact, Mr. Walker states the complete opposite. He sate
They—when you say approved by many attorneys, that~Qhat’s the contracts, the
May 25"" and July 15"" contracts that have been wri by -- that were written
by Pohl and looked at by five or six attorneys. T, are the contracts. Now,
the inner workings of $5 million of barratry mate that came through, that’s
not attorneys approving that. I mean, this — ) re approving the little generic
one-page contracts that I know now today, not’on June 17"" of ’13 but today, I
know were written just to protect Mr. Pohl abd Mr Williamson.°
| WS
In fact, Mr. Walker continues to state under oath"" We were training the field workers of Jimmy
Williamson and Michael Pohl to go agen solicit contracts.”’ Of course, Pohl and his
lawyers fail to direct you to this portion, of the testimony. These lawyers must believe that you
eO)
will simply take their word fae is written in the Reply and not care to read the actual
testimony. Additionally, they would rather criticize and disparage me for bringing this conduct to
the State Bar’s tention ae the State Bar the truth.
Pohl and his Nawyers go on to state that I concealed from Pohl and this forum my
of
NS
possession of atelephone recording of Ms. Santana that “contradicts the factual premise” of the
grievance. These lawyers then cherry pick a portion of the transcript they believe contradicts the
factual wee of the grievance (which it does not). Again, of course, these lawyers fail to cite
the portion of the transcript that fully supports the “premise of the grievance.” Moreover, they
6 Exhibit 3 to Pohl’s Reply, (excerpt of Walker’s depo, p. 195, In. 16 through p. 196, In. 3) (emphasis added).
7 Exhibit 3 to Pohl’s Reply, (excerpt of Walker’s depo, p. 196, Ins. 23-26) (emphasis added).

Timothy J. Baldwin
July 20, 2018
Page 5 of 17
fail to cite to you another transcribed recording of Ms. Santana that further supports the “premise
of the grievance.”
Regarding the statements made in the first Santana transcript that these layers conceal
EN
from you, the conversation is this: oy
Ms. Santana: Is there any way that I can sue them at all? &
S
Mr. Kassab: Sue Pohl and those guys? ES
°@
Ms. Santana: Pohl and the guys that actually started the Scheme. Scott Walker, Steve
Seymore, Kirk Latner (sic). &
Mr. Kassab: And Williamson and all those guys? &
S
Ms. Santana: Yes®
ah
Mr. Kassab: Yeah, my understandin from talking to you and to other people, was
that Pohl and Willia are the ones who came up with it and they just
hired Walker and thes olks.
Ms. Santana: The marketing?
SE)
Mr. Kassab: Yeah, the marketing company.
Ms. Santana: Chain ef mma I guess.
Mr. Kassab: Yost and hired people like you to go out and actually do it. But the
iat eting company, my understanding is the marking (sic) guys, were
hired by Pohl and Williamson to do all this. They didn’t know how to do
Ort. I mean, it wasn’t their idea. Isn’t that your understanding?
ge
Ms. Santana Yeah.
©
Mi Kassab: But isn’t that your understanding?
Ms. Santana: it makes sense now. I guess it went through a chain of command.’
® Exhibit 13 to Pohl’s Reply, p. 2-3.
° Exhibit 13 to Pohl’s Reply, pp. 4-5.

Timothy J. Baldwin
July 20, 2018
Page 6 of 17
There was no “coax” of Santana. She made these statements of her own free will. In
fact, as can be seen in the transcript, the question is asked, “Isn’t that your understanding?”
Santana was free to say “no” but she didn’t. Santana confirmed that it was through a chain of
command with Pohl and Williamson at the top. Of course, Pohl himself confined this point
when he finally admitted in his own affidavit that Walker, Ladner Sr were his
representatives.'° In his affidavit, Pohl stated under oath that, “Sk addition to performing
permissible public relations services for me, Walker, Seymour, {adner, and Robinson (and/or
their companies) were my representatives for purposes of verfoming client liaison services,
client screening services, and evidence gathering services connection with BP oil spill claims
and/or motor vehicle accident claims.” This admicton confirms what Santana stated in the
transcript. Interestingly, although Pohl sie tt hired to Walker, Seymour, Ladner and
Robinson to perform “permissible” public ton services for him, Pohl fails to state that he
hired these folks to perform “permissible"" “client liaison services, client screening services, and
evidence gathering services in conneetion with BP oil spill claims and/or motor vehicle accident
claims.” Most likely because knew that the services these folks were providing was not
“permissible.” ©)
Additionally, Pht and his lawyer’s statement that I “concealed” this transcript from the
OCDC is preposten@: The transcript supports the grievance, thus, there would be no reason to
conceal it. re a so many documents that support the grievance and only so much time to
prepare a Btievance, It is surprising that Pohl and his lawyers do not cite some of the thousands
of other documents that did not make it into the grievance and state that I “concealed” those as
well in their attempt to shine the focus away from Pohl.
'° Exhibit “B,” par. 7 attached to July 3, 2018 letter to Mr. Baldwin.

Timothy J. Baldwin
July 20, 2018
Page 7 of 17
The second conversation with Santana also supports the “premise of the grievance.”
Since Pohl and his lawyers failed to provide you a copy of this conversation, I guess they
“concealed” it from you as well. It makes sense that they would intentional} conceal this
because it is not only devastating to their position, it shows that one of the awe zo her to sign
the second affidavit"" that Pohl and his lawyers attempt to use as evidence that the first affidavit
SS
is false. In the transcript, Santana infers that I should pay her for het help and pay her for the
; SS
documents she is in possession of. Of course, I decline. Noneties it is obvious from the full
conversation t that she was paid by one of the lawyers to sign the second affidavit. Pohl and his
lawyers know this, yet have done nothing to bring this tote tight Rather, they have suppressed
this information and even concealed this conversation om you even though they had a copy of
the recording when they filed their Reply on sly 7,201 8.1?

In any event, I have transcribed the seording and it is attached hereto as Exhibit “1.” In
the conversation, Santana states that there aire numerous lawyers in Texas that have approached
her to do what she was doing ee She states, “I can name ten lawyers right now that do
the same thing in Texas. The thing.”'* Ms. Santana also states, “Michael Pohl was not the
only attorney that spproacied me."" Santana also states that after researching that I handle
malpractice claims agdinst lawyers and what that means in the law industry, she said to herself,

IN
o
I Exhibit 1, per
2 A copy Sao oduced to them on July 9, 2018.
'3 Exhibit 1, pp. 7-8
4 Id. p.7.
15 Td.

Timothy J. Baldwin
July 20, 2018
Page 8 of 17
“oh, my God, these guys then should be punished. .. ””!* She goes on to state that, “After [Pohl]
taught me the ropes, then I would run into other attorneys doing his dirty work. I — other
attorneys approached me, you know.”!” She stated that “They’ve even got diplomates involved,
embassy. Consulate lawyers and diplomats. It’s a big scheme.”!® Santana sii and states,
“Yeah. Well, this is a nationwide scheme, and they’re all over the place. Chey're in New York,
they’re in Washington, they’re in Florida. They’re in Texas. Oktaidm, They’re in Mexico
over the border, the Paisano brothers, those brothers, these other snore. It’s unreal.””!9
To further support the “premise of the grievance fei Pohl, and to assist you in
combing through this evidence, I will cite to you speciforton of the testimony and evidence
already provided. If it is not something previously prove it is being provided in the email or a
by way of a link referenced therein. If I have invertenty omitted any of the items that I cite,
please let me know and I will provide it. LV
Walker testified that although he and Pohl called it “marketing services” or “marketing
money” it was “clear to [him] it, was barratry? In fact, Walker considered himself and his
iS
company “a pass-through fot barratry money.””! All total, Walker, Ladner and Precision
Marketing received over $5 lion in “barratry pass-through money” from Pohl and other
lawyers to solicit acciept victims and potential clients with claims, both auto-accident victims
©
16 Td, p. 6. &S
7 Td, pp. 18.0
18 Id. p. SS
19 Id, p. 10.
© Deposition of Scott Walker, p. 149.
""1 Deposition of Scott Walker, p. 197:6-7.

Timothy J. Baldwin
July 20, 2018
Page 9 of 17
and those involved in the BP Deepwater Horizon litigation.” They would use this money to pay
contract workers to solicit clients.”> They would locate and instruct contract workers on how to
accomplish the solicitation. They trained “40 or 50 people” on how to “go gen solicit
contracts,” oy
One of these workers was Magdalena Santana (“Santana”). In her September 24, 2016
; Ss
affidavit, Santana testified that Pohl sent her on dozens and dozens ofe r wreck cases all over
the country.”* Pohl would email Santana the link of news covedSp depicting the accident and
ask her “to go to the victim or the victim’s family and try Ke them to sign up with him.”27
Pohl offered to give Santana “$5,000 per case that [a Sane plus a percentage of his
attorney’s fees.”** Santana was advised by Pohl to be peste even if the family ... rejected
[her].”’° Santana was instructed by Pohl to “apse the victims and their families while they
were vulnerable, in the emergency room the hospital rooms or at the funerals.”2° Pohl told
Santana that minorities “were especially vilnerable since they tended not to know that the law
prohibited barratry.”>! Aco Fo they “were easier to sign up.”22
©
*2 Deposition of Scott Walker, reas 74:1-25; 75-1-15,
3 Deposition of Scott vate
4 Deposition of Scott vale p. 77-78.
25 Deposition of Set Water p. 196-197,
26 Santana atid 17.
cal Santana Aiigavi 417.
*8 Santana Affidavit, J 18.
?° Santana Affidavit, { 19.
%° Santana Affidavit, 7 19.
*! Santana Affidavit, {| 19 (emphasis added).

Timothy J. Baldwin

July 20, 2018

Page 10 of 17

Pohl would give Santana “money to give to the victims or their families” but “only if they

agreed to sign a Pohl representation contract.”33 Pohl advised Santana that the money was a “foot
in the door” but instructed Santana not to mention that she was there on behalf or erver “until
after they agreed to take the money.”*4 “If the client agreed to hire Pohl, the [Stang was to
have the client sign a ‘Helping Hands’ contract.”°5 Pohl would then give Santana the money to
pay the client “from his own Helping Hands company.” When Saplina questioned this, Pohl
told Santana that it “was illegal for him to pay [her] directly for ce) and that’s why the money
had to go through some company.”37 &

Defendants may take the position that Santa rate this affidavit through a
December 19, 2017 affidavit produced in this case. Thi purported retraction is likely the result
of Pohl paying Santana to provide testimony, wich is something he has done in the past.3? In
fact, Pohl’s own paralegal, Edgar Jaimes Caimes, testified that on one occasion Pohl sent him
to Florida with a suit case filled with $50,000 cash to give to Santana in exchange for her signing
an affidavit for him.*° Jaimes ian Santana would only get the money if she signed the

©

2 Santana Affidavit, 19. S

33 Santana Affidavit, J 17. ©

34 Santana Affidavit, so

5 Santana Aerial 24

36 Santana ‘ee 424.

*7 Santana Affidavit, § 23.

*8 December 19, 2017 Santana Affidavit.

39 Exhibit 2 - Deposition of Edgar Jaimes, pp. 371-373.
* Exhibit 2 - Deposition of Edgar Jaimes, pp. 371-373,

Timothy J. Baldwin

July 20, 2018

Page 11 of 17

statement for Pohl.*’ Jaimes testified that Santana signed the signed the statement and got the
money.”

Santana went into more detail about this in her deposition. Santana teste at that the
statement was an agreement for her to keep quiet and not charge Pohl with ny srongdoing or
criminal or unethical conduct.*? Santana testified that Pohl paid her $50,000 cash to sign this
statement, which was delivered by Jaimes in three bags marked “tick reat."" Very symbolic
given that Santana had been tricked by Pohl into soliciting aliens him and was now being
treated the money she claimed was due just to stay quite. Sen iterated that if she didn’t sign
the gag agreement, she wouldn’t get the money from Pohl Santana attempted to indicate on the
agreement that she was receiving $50,000 to keep quik Jaimes told her Pohl demanded that
she state she only received nominal consideain, like $100.%° Santana did not write the
statement but “just signed it’4” because ob ta she was “forced to sign” it*® while “under
duress.””? Santana’s December 19, 2017 affidavit produced by Pohl in this case is likely the

result of similar duress and pacino

©

“| Exhibit 2 — Deposition of Eager Jaitnes, pp. 373-374.
“ Exhibit 2 — Deposition of Bdgar Jaimes, pp. 373-374,
4 Exhibit 3 — Sentane XSi, Vol. I, p. 153.

“4 Exhibit 3 — seis Deposition, Vol. I, p. 122-127.

4° Exhibit 3 ~ Sento Deposition, Vol. I, p. 131.

7 echt Sdcotan Deposition, Vol. II, p. 346.
47 Exhibit 3 — Santana Deposition, Vol. I, p. 153.
“8 Exhibit 3 — Santana Deposition, Vol. I, p. 155.
“? Exhibit 4 — Santana Deposition, Vol. II, p. 309.

Timothy J. Baldwin
July 20, 2018
Page 12 of 17
Notably, nowhere in Santana’s December 19"" affidavit does she state the testimony in
her former affidavit is untrue, only that she does not “agree with” it and that the affidavit is not
“reliable.”°? Although Santana states in her December 19"" affidavit that her priox affidavit was
drafted by a lawyer, Santana testified in her deposition that the Stone 2 affidavit was
created voluntarily with her own “testimony.”>' Santana testified that, unbike- with Pohl, she was
not paid and had never been promised any money to provide the testing in the September 24
affidavit.** Santana reiterated to counsel for Pohl, Billy sheph& that she was there in her
deposition to tell the truth and would not be bullied by his aeftioing or his efforts to confuse
her. ©
Regardless, Santana confirmed most of the fa set forth in her initial affidavit in her
deposition™ and this deposition testimony was na etracted. There, Santana confirmed that she
was hired by Pohl to solicit auto accident the first one being an accident where a woman
and her unborn child lost their lives.° Senfana was instructed by Walker, who was instructed by
Pohl, to go to personally visit thec mother of the deceased and sign her up to sue the tire
manufacturer — if she suits fo would pay her $5,000.°’ Santana visited the funeral of the
s\
a
°° December 19, 2017 Sant ffidavit,
> Exhibit 4 — Santana 2G Ston, Vol. II, p. 270-271.
52 Exhibit 4 — Sane Deposition Vol. II, p. 276-278.
3 Exhibit 3 — Sontans Deposition, Vol. I, p. 176.
4 Exhibit SQ vane Deposition, Vol. I; Exhibit 4 — Santana Deposition, Vol. II.
55 See December 19, 2017 Santana Affidavit.
°° Exhibit 3 — Santana Deposition, Vol, I, p. 37.
°” Exhibit 3 — Santana Deposition, Vol, I, p. 37-38.

Timothy J. Baldwin
July 20, 2018
Page 13 of 17
deceased and got the family to feel comfortable with her.°® At first the mother was grieving, but
Pohl told Santana: “take no prisoners, this is a cut throat business, you get in there and you do
whatever it takes to get this client.”°° The solicitation was successful after Pohl gave Santana
$2,000 for her to “give to the client to convince her into signing over with he
After that, Santana attempted to solicit about “forty to fifty” auto accident cases for Pohl
from Texas to Florida.®' About fifteen to eighteen cases were sul signed up. Pohl would
send Santana a web link with information about the accident and dre the potential client may
be found and she would hit the ground running.® Santana sid clients for Pohl in “hospitals,
funeral homes, you name it.” Pohl instructed Santana tng minorities because they are
“unrecognized to the law” and “they don’t know he In an effort to circumvent the law,
Santana was instructed to have the client call Polis that it would look like the client made the
initial contact with the lawyer. Santana wold oer the clients money to sign with Pohl but had
explicit instructions from Pohl: “If they don't sign they don't get no money.”®” In short, “no
ee
*8 Exhibit 3 — Santana Deposition, @) p. 37-38.
°° Exhibit 3 — Santana a.) I, p. 39.
% Exhibit 3 — Santana Dep4eitidn, Vol. I, p. 40.
5! Exhibit 3 — Santana So, Vol. I, p. 43.
6 Exhibit 3 — Sane Depstn Vol. I, p. 46-47
© Exhibit 3 — Sine Deposition, Vol. I, p. 54.
84 er ee Deposition, Vol. I, p. 52.
°° Exhibit 3 — Santana Deposition, Vol. I, p. 52.
°° Exhibit 3 — Santana Deposition, Vol. I, p. 60.
§7 Exhibit 3 — Santana Deposition, Vol. I, p, 42.

Timothy J. Baldwin
July 20, 2018
Page 14 of 17
signature, no money.”® Santana testified in her deposition that was paid $2,500 for every client
she signed up and was “promised a percentage in the back end” by Pohl and Walker.© Pohl told
Santana that the money would have to go through Walker’s company Precisiqn, Marketing
because it “was illegal for him to give [her] the money directly.””° oe
Another of Pohl’s solicitors was Kenneth Talley (“Talley”), who Solicited over 20 auto
accident cases for Pohl.’ Talley testified that he was first hired by! Walker in relation to BP
claims to find “folks that lost money due to the oil spill” and «si hem up” and “get a fee for
it.””? Talley went to work “knocking on doors” looking for Sn claimants for Pohl and his
partner, Jimmy Williamson (“Williamson”).” Talley sélcted and signed up for Pohl and
Williamson more than 800 BP claims.” Talley wa between $75 and $350 for each BP
client he signed up.” ~
Talley eventually switched to soliciting aut accident victims and “calling on folks that
had bad accidents” with the first being @ Victim that was in “the hospital in intensive care.”
Talley carried with him up to get pay the accident victims to “help them with problems”
©
68 Exhibit 3 — Santana Deposit, Vol I, p. 66.
© Exhibit 3 — Santana Depbsition, Vol. I, p. 47.
7 Exhibit 3 — Santana Depion Vol. I, p. 72.
7 Exhibit 5 — Dep of Kenneth Talley, p. 87.
” Exhibit 5 — Depebition of Kenneth Talley, p. 10.
73 Exhibit SS Merosition of Kenneth Talley, p. 10-11.
™ Exhibit 5 — Deposition of Kenneth Talley, p. 11.
® Exhibit 5 — Deposition of Kenneth Talley, p. 19.
7 Exhibit 5 ~ Deposition of Kenneth Talley, p. 37.

Timothy J. Baldwin
July 20, 2018
Page 15 of 17
once they “were signed up.””’ Talley kept a list of all the auto accident cases he solicited.78
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 butte “make sure
the funding schedule” from Helping Hands Financing — Donalda Pohl’s cose managed by
Pohl’s paralegal Jaimes — “is filled out properly before releasing any cash” Talley would
S
advise the victims that he had attorneys who could help them, and that ne of those attorneys was
NS
Pohl.*° Talley was paid a fee of $1,400 plus his expenses by Poh{thtough Walker, for any auto
accident case he solicited.*! On some cases, including the Chesifiam case, Talley was to receive a
portion of the fee paid to Helping Hands Group out of Poh atomey’ fees.* Talley discussed
with Pohl the “percentage of settlements” he was to ser from the cases he solicited and Pohl
told Talley that the money was being placed iin “escrow account” for him.®? When asked
whether Pohl knew he was getting paid to “ntact vehicle accident victims,” Talley responded,
“the money was coming from Edgar [laintes] who worked for him.”** Although his paycheck
was from Walker’s company, “tates came by way of Edgar [Jaimes].”®
77 Exhibit 5 — Deposition of Kenifedt alley, p. 38.
Or
78 Exhibit 5 — Deposition ofKehneth Talley, p. 43-44; Exhibit 6— Talley Exhibit 165.
7 ~~
9 Exhibit 7 — Talley Exhibit 168.
8 Exhibit 5 — Destin of Kenneth Talley, p. 47.
8! Exhibit 5 — Deposition of Kenneth Talley, p. 47-48.
82 Exhibit 3 Serosition of Kenneth Talley, p. 97-98; 102.
* Exhibit 5 — Deposition of Kenneth Talley, p. 99.
%4 Exhibit 5 — Deposition of Kenneth Talley, p. 100.
* Exhibit 5 — Deposition of Kenneth Talley, p. 100.

Timothy J. Baldwin

July 20, 2018

Page 16 of 17

Personally soliciting clients for Pohl became so frequent that Talley began carrying with

him blank Pohl contracts to each solicitation.® Talley would refer the potential clients to
“attorneys out of Houston that were the best at handling these types of soared would
offer to give the potential clients “money up front.”®” Talley would only rcopinii Pohl and no
other lawyer.** Talley would have no “reason not to mention Mr. Pohl’s fame.” Talley would
not tell the clients that he was getting paid to solicit them.” Talley weil present a Pohl contract
to the potential client.”' If the client did not sign up, the clients wid ot get the money.” Talley
testified that Edgar and Donalda would send him the money 3?

Both Talley and Pohl knew that what they were ding a illegal. In one instance, Talley
was “run out of town” while soliciting clients for Poh Talley testified during the attempted
solicitation he was told by a “lawyer or police that “it was against the law what [he] was
doing.”** Talley mentioned this to Pohl and Pod tol him “‘you’ve just got to leave...some people
you can’t help.” S

Exhibit 5 — Deposition of Kenneth Tate, p. 49.

87 Exhibit 5 — Deposition of Kennet ‘oy p. 54.

88 Exhibit 5 — Deposition of coh p. 59.

% Exhibit 5 — Deposition ofKehneth Talley, p. 108.
5° Exhibit 5 — Deposit Kenneth Talley, p. 58; 109.
5! Exhibit 5 — Destin of Kenneth Talley, p. 89.

92 Exhibit 5 — Deposition of Kenneth Talley, p. 58-59.
3 Exhibit 3S position of Kenneth Talley, p. 86.

* Exhibit 5 — Deposition of Kenneth Talley, p. 84.

°5 Exhibit 5 — Deposition of Kenneth Talley, p. 84.
*6 Exhibit 5 — Deposition of Kenneth Talley, p. 85.

Timothy J. Baldwin
July 20, 2018
Page 17 of 17
Mr. Baldwin, this is just a fraction of the evidence that I have mounted against Pohl and
his conspirators through my efforts to bring my clients justice. I continue to gather evidence as
my cases proceed, but I believe the information that has been submitted already. provides more
eS
than just cause to discipline Pohl and keep him from engaging in these peedtory barratry
practices. We are supposed to be a self-regulating profession. I am taking fixe out of my practice
eS
and my life with my family to inform the State Bar of the unethical coe that I have witnessed
WS
as I have an obligation to do under the disciplinary rules. I do this Sveh though I get ridiculed and
Z)
threatened by opposing counsel. I do this because I am hopefuf that the State Bar will protect the
public from lawyers like Pohl. ©
sheet
<a KASSAB LAW FIRM
&
© r
© oo
@ Lance Christopher Kassab
&
Cc: Billy Shepherd (shedaspcounselcom
Steve Bailey “ee spcounsel.com)
aN
O
LCK/dek &
&

a
1) <assab
LAW FIRM
October 19, 2018
vs
VIA ELECTRONIC MAU. (timothy.baldwin ‘@texasbar.com) oy
Timothy J. Baldwin . &
Administrative Attorney ~S
The Office of Chief Disciplinary Counsel 5 eS
4801 Woodway Drive, Suite 315-W &
Houston, TX 7705661 a
Re: File No. 201801826: Grievance Concernin: di Rusnak
File No. 201801825: Grievance Concerni ichael Pohl
Dear Mr. Baldwin:

J am in receipt of your letters dated October 15, 2018, notifying me that the complaints I
filed against Cyndi Rusnak and Michael Pohl een placed on a Summary Disposition Panel
docket. My understanding of what this is that the Chief Disciplinary Counsel has
recommended that the grievances be summatily dismissed.

I have informed you and the Seis Bar that I have a plethora of documents and swom
testimony from witnesses and even the actual Tunners who were hired and paid by these lawyers
to conduct their illegal and im Oper solicitation of clients and invited you to peruse this
evidence as part of your investi mn because it was too much to simply put in the complaint.
However, I have never been acted by anyone to come view this evidence, Therefore, no
effort to review evidence and/or conduct a meaningful investigation has occurred. Obviously,

there truly are good reasongy, our State Bar gets a D minus compared to other State Bars.
©

I have brought these grievances as I am required to do pursuant to Rule 8.03. However,
instead of a thorough vestigation, I have been subjected to insults, criticisms, lies and outright
slander as to my°’edrduct and integrity in attempting to uphold the rule of law, the rules of

professional duct and the barratry statutes created by the Texas Legislature. It appears to me
that the oppo side only needs to state that I have filed these grievances to “gain an advantage
in litigation?and the State Bar then summarily dismisses the grievances. Lawyers like me, who
handle | alpractice cases, are the ones that see the violations of the rules, yet when we file
grievances-we are immediately accused of attempting to gain an advantage in litigation. I can
assure you there is never an advantage to filing a grievance while civil litigation is pending. In
fact, in my experience, it is a detriment. A while back a lawyer from the State Bar actually
admitted to me that there is an unwritten rule at the State Bar to summarily dismiss bar violations
when civil litigation is pending. Apparently, this is the case here as well.

1214 Elgin Street | Houston | Texas | 77004 | p. 713.522.7400 £7 13.522.7410 | www.TexasLegalMalpractice.com

Timothy J. Baldwin
October 19, 2018
Page 2 of 2
The State Bar should abolish Rule 8.03 if it has no meaning. Why follow Rule 8.03 or
have the Rule if the State Bar is set on summarily dismissing grievances filed under that Rule
without any investigation? Why file ethics complaints at all if there is pending civil litigation if
litigation nullifies ethics rules in the eyes of the State Bar? Why bring blatant S violations to
the State Bar’s attention if the State Bar refuses to even look at the evid Why have the
State Bar “enforce” disciplinary rules when it refuses to any more than wea district attorney’s
office can do already, as with theft of client property? AG)
SS
You can go ahead and file a grievance against me and sanctips me right now because I
will no longer follow Rule 8.03. [ will no longer waste my tig pid effort trying to help the
State Bar keep unscrupulous lawyers in check by filing ethics plaints when I see corrupt
behavior. Instead, I will work harder on exposing lawyers t public at large so, hopefully,
Texans will not be harmed by unscrupulous lawyers since tate Bar refuses to do the job it
has been given. And, I will work harder on exposing the Texas State Bar’s failings until the day”
the State Bar actually tries to protect Texans. Apparently, this is the only way lawyers can
actually self-regulate to help the public at large.
sh
s Sincerely,
< THE KASSAB LAW FirM
© PP
& ~~ Lance Christopher Kassab
S
Cc: — Randy Sorrels ©
aN
3
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LeK/amS"
8,2018-10-24,OA,Kassab,1st Amended Answer with Counterclaims,"Kassab's First Amended Answer, Affirmative Defenses, and Counterclaim for Civil Barratry, filed October 24, 2018 simultaneously with TCPA Motion to Dismiss","Filed October 24, 2018 simultaneously with the TCPA Motion to Dismiss. This amends Kassab's original answer (Filing #2) by adding res judicata as a 17th affirmative defense. Maintains general denial, 17 affirmative defenses, specific denials regarding conditions precedent, and counterclaims for civil barratry on behalf of 150 assigned claimants.","PLEAD-1, CC-1",N/A,Phase 1,2018-10-24_OA_Kassab-1st-Amended-Answer-CC_FILED.pdf,"Plaintiffs take nothing on their claims; Kassab recovers on counterclaims including actual and consequential damages, statutory damages, pre- and post-judgment interest, attorneys' fees and costs, and all other just relief","10/24/2018 2:33 PM
Chris Daniel - District Clerk Harris County
Envelope No. 28526297
By: ARIONNE MCNEAL
Filed: 10/24/2018 2:33 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIrAL DISTRICT
DEFENDANTS, LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER
KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S FIRST AMENDED
ANSWER, AFFIRMATIVE DEFENSES AND COUNtTERCLAIM
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendants, Lance Christopher Kassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm and files this their First Armended Answer, Affirmative Defenses,
and Counterclaim, and would respectfully show the Court as follows;
RULE 47 SiT l ATEMENT
The Kassab Defendants, in their caMpacity as Counter-Plaintiffs, seek monetary relief of
more than $1,000,000.00. o
PARTIES
Plaintiff, Michael A. PoOhl is an individual lawyer residing in Colorado.
Plaintiff, Law Offipces of Michael A. Pohl is a law firm set up for the practice of law in
various states of the union, including Texas.
Defendant, iScott Favre is a nonresident individual residing in Mississippi.
Defenodant, Scott M. Favre, PA, LLC is a nonresident limited liability company located in
Mississippi.
Defendant, Precision Marketing Group, LLC is a nonresident limited liability company
located in Mississippi.
Defendant, F. Douglas Montague III is a nonresident individual residing in Mississippi.
Defendant, Montague, Pittman & Varnado, PA is a nonresident professional association
located in Mississippi.
Defendant, Tina Nicholson is an individual residing in Texas.
Defendant, Baker Nicholson, LLP, d/b/a Baker Nicholson Law Firm is a klimited liability
partnership located in Texas. l
Defendant, Counter-Plaintiff, Lance Christopher Kassab is an indicvidual residing in Texas.
Defendant, Counter-Plaintiff, Lance Christopher Kassab, P.C.s d/b/a The Kassab Law Firm
is a professional corporation located in Texas. 
JURISDICTION AND VENUE
This matter is within the jurisdictional limitsu of this Court and Plaintiffs, Counter-
Defendants, Michael A. Pohl and Law Offices onf Michael A. Pohl (“Pohl”) and Defendants,
Counter-Plaintiffs, Lance Christopher Kassab (“rLCK”) and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law Firm (“Kassab, P.C.”) (collectively “Kassab”) are subject to the Court’s
jurisdiction. Venue is proper in this county because one or more of the defendants are residents of
this county and because a substanftial part of the acts and/or omissions that form the basis of this
suit occurred in this county. 
GENERAL DENIAL
Defendant, Clounter-Plaintiff Kassab generally denies all allegations made by Plaintiffs,
Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl, and requests the Court
to require Pnlaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl to
carry their burden of proof regarding all allegations against Kassab.
AFFIRMATIVE DEFENSES
Defendant, Counter-Plaintiff Kassab pleads the following affirmative defenses:
1. Statute of limitations
2. Justification.
3. Estoppel.
4. Waiver. t
5. Ratification. t
6. Release. 
7. Unclean hands. e
8. Contribution. u
9. Failure to mitigate damages. n
10. Lack of standing. r
11. Accord and Satisfaction.
12. Assumption of the Risk. 
13. Illegality/Criminal Actfs.
14. First Amendment. 
15. Attorney Immunity.
16. In Pari Daellicto.
17. Res juidicata.
SPECIFIC DENIALS
Defendants, Counter-Plaintiffs specifically deny that all conditions precedent regarding
Plaintiffs claims of conversion and theft of trade secrets have been performed or occurred prior to
Plaintiffs filing suit against Kassab.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
LCK is a lawyer practicing law with Kassab, P.C., a law firm in Houston, Texas focusing
solely on plaintiffs’ legal malpractice. Kassab filed four lawsuits on behalf of over four hundred
clients against Pohl (the “Harris County Lawsuits”). The main allegations against Pohl is civil
barratry and conspiracy to commit barratry, a third-degree felony in Texas. Pohl conspired with
his wife, Donalda Pohl (“Dona”), his paralegal, Edgar Jaimes (“Jaimes”t), and three runners in
Mississippi to illegally solicit clients on behalf of Pohl. Dona owns at sham lending company in
Texas called Helping Hands Financing, LLC (“HH Texas”). Jaimes runs the day-to-day operations
of HH Texas. The three runners are Scott Walker (“Walkere”), Steve Seymour (“Seymour”) and
Kirk Ladner (“Ladner”). The three runners own and ouperate two other sham companies called
Helping Hands Group, LLC and Helping Hands Finnancial, LLC (collectively “HH Mississippi”).
The three runners also owned Precision Markerting Group, LLC (“Precision”) which they sold to
Scott Favre and/or his companies (collectively “Favre”).
With regard to the clients obtained in the BP Litigation, Walker, Seymour and Ladner hired
other runners to literally go up anfd down streets knocking on doors to solicit clients on behalf of
Pohl for lawsuits against British Petroleum. Precision paid these runners as much as $300-$400
for every client they obtained. Pohl then paid Precision as much as $1,500 for every client
Precision referred tao lPohl. Pohl also offered and agreed to pay Walker, Seymour and Ladner a
percentage of hisi legal fees once the cases settled. This percentage was disguised as an hourly rate
of $1,500.00 per hour.
With regard to auto accidents, Pohl set up a “Google Alerts” to be notified whenever there
was a horrific rollover crash. Pohl would then send his runners to hospitals, homes and funerals
to contact the families of the injured. The runners would use their sham companies, “Helping
Hands” to act as though they were genuinely there to help these victims. The runners would falsely
tell these victims that they were there to help the victims’ in their time of need in the form of
money for burial services, food, clothing, lodging, etc. In reality, the runners’ contacted these
families under false pretenses with the sole objective to take advantage of these victims and their
families while they were emotionally distraught and not thinking straight in ordker to lock them
into contracts which allowed the runners to select a lawyer for the victim. Tlhe victims and the
family members were encouraged to hire Pohl and told they could not gect the money unless they
agreed to hire Pohl. Pohl would pay the runners as much as $7,5s00 per client and Pohl also
promised the runners as much as 33% of Pohl’s legal fees on the back end when the case settled.
Additionally, HH Texas would pay HH Mississippi $2,500 for every client referred to HH Texas
to “loan” money to these victims and their family. Pohl used this procedure as an attempt to put
an additional layer between him and the actual runners.
Pohl also helped the runners form anaother sham entity, the GM Settlement Verification
Team (“GM Team”) after General Motors, Inc. issued a recall on cars due to faulty ignition
switches which effected the safe opereation of the airbag systems on vehicles. Thus, the GM Team
was designed to look official as iff it was part of General Motors. The conspiracy was to form an
official looking entity as if GyM was contacting people who had been harmed when airbags failed
to deploy in relation toC the ignition recall. In reality, this was just another sham company used to
trick clients into hiaring Pohl. Again, Pohl would pay Walker and Ladner, through their sham
entity, the GM Tfeam, a fee for every client it referred to Pohl, in addition to a percentage of fees
on the baUck end.
Pohl knew what he was doing was illegal barratry. Accordingly, he knowingly formed
entities that he perceived would insulate him from liability. In fact, Walker testified that although
he and Pohl called it “marketing services” or “marketing money” it was “clear to [him] it was
barratry.” In fact, Walker considered himself and his company “a pass-through for barratry
money.” All total, Walker, Ladner and Precision received over $5 million in “barratry pass-through
money” from Pohl and other lawyers to solicit potential clients with claims, both auto-accident
victims and those involved in the BP Deepwater Horizon litigation. k
One of the runners hired by Pohl and Walker to solicit illegally solicit cllients on behalf of
Pohl was Magdalena Santana (“Santana”). In her September 24, 2016 afcfidavit, Santana testified
that Pohl sent her on “dozens and dozens of car wreck cases all ovser the country.” Pohl would
email Santana the link of news coverage he obtained through Google Alerts depicting an accident
and asked her “to go to the victim or the victim’s family and try to get them to sign up with him.”
Santana swore under oath that Pohl agreed to pay her “$5,000 per case that [she] signed, plus a
percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even if the family
... rejected [her].” Santana was instructed by Paohl to “approach the victims and their families while
they were vulnerable, in the emergency room, their hospital rooms or at the funerals.” Pohl told
Santana that minorities “were especieally vulnerable since they tended not to know that the law
prohibited barratry.” Accordingf to Pohl, they “were easier to sign up.”
Pohl would give Sanytana “money to give to the victims or their families” but would give
the money to the client C“if they agreed to sign a Pohl representation contract.” Pohl advised Santana
that the money was aa “foot in the door” but instructed Santana not to mention anything about hiring
a lawyer “untilf after they agreed to take the money.” “If the client agreed to hire Pohl, then
[Santana]U was to have the client sign a ‘Helping Hands’ contract.” Pohl would then give Santana
the money to pay the client “from his own Helping Hands company.” When Santana questioned
this, Pohl 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.”
Pohl and/or his co-conspirators had Santana retract this affidavit through a December 19,
2017 affidavit. This purported retraction was likely the result of Pohl paying Santana to provide
testimony, which is something he has done in the past. In fact, Pohl’s own paralegal, Jaimes,
testified that on one occasion Pohl sent him to Florida with a suitcase filled with $k50,000 in cash
to give to Santana in exchange for her signing a statement for him. Jaimes tesltified that Santana
would only get the money if she signed the statement for Pohl. Jaimes testcified that Santana signed
the signed the statement and got the money. s
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,
criminal or unethical conduct. Santana testified that Pohl paid her $50,000 in cash to sign this
statement, which was delivered by Jaimes in three bags marked “trick or treat.” Very symbolic
given that Santana had been tricked by Pohla into soliciting clients for him and was now being
treated the money she claimed was due under their agreement just to stay quite. Santana reiterated
in her deposition that if she didn’t sigen the gag agreement, she would not receive the money from
Pohl. Santana attempted to indicafte on the agreement that she was receiving $50,000 to keep quiet,
but Jaimes told her Pohl deymanded that she state she only received nominal consideration, like
$100. Santana did not wCrite the statement but “just signed it” because she felt she was being “forced
to sign” it while “unader duress.”
Notablyf, nowhere in Santana’s December 19th affidavit does she state the testimony in her
former afUfidavit is untrue, only that she does not “agree with” it and that the affidavit is not
“reliable.” Although Santana states in her December 19th affidavit 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.” 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. Santana reiterated to counsel for Pohl, Billy Shepherd, that she was there in her
deposition to tell the truth and would not be bullied by his questioning or his efforts to confuse
her. k
Regardless, Santana’s sworn deposition testimony confirmed most of tlhe facts set forth in
her initial affidavit and this deposition testimony has never been rectracted. There, Santana
confirmed that she was hired by Pohl to solicit auto accident cases, thse first one being an accident
where a woman and her unborn child lost their lives. 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. Santana visited the funeral of the
deceased and got the family to feel comfortable with her. Although the mother was grieving, Pohl
told Santana: “take no prisoners, this is a cut tharoat business, you get in there and you do whatever
it takes to get this client.” The solicitation was successful after Pohl gave Santana $2,000 to “give
to the client to convince her into signeing over with the firm.”
“Coach” Kenneth Talleyf (“Talley”) was another runner hired by Pohl and Walker who
solicited over 20 auto accideynt cases for Pohl. Talley has sworn under oath that he was first hired
in relation to BP claimCs to find “folks that lost money due to the oil spill” and “sign them up” and
“get a fee for it.” Taalley testified that he went to work “knocking on doors” looking for potential
claimants for Pofhl and his partner in the BP litigation. Talley solicited and signed up for Pohl and
his co-coUnspirators more than 800 BP claims. Talley was paid between $75 and $350 for each BP
client he signed up for Pohl and his partners.
Talley eventually switched to soliciting auto accident victims, “calling on folks that had
bad accidents.” Talley recalls that the first client he solicited was in “the hospital in intensive care.”
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.” Talley kept a list of all the auto accident cases he solicited so he
could keep track of the cases that he was due a fee on the back end after the case settled. Talley
also followed a checklist that instructed him to, among other things, bring flowekrs to the initial
hospital visit (but to spend no more than $50) and to offer the victims moneyl but to “make sure
the funding schedule” from HH Texas “is filled out properly before relecasing any cash.” Talley
would advise the victims that he had attorneys who could help them ssuch as Pohl. Talley was paid
a fee of $1,400 plus his expenses by Pohl, through Walker, for any auto accident case he solicited
and referred to Pohl. On some cases, Talley was to receive a portion of the fee paid to Helping
Hands out of Pohl’s attorney’s fees. Talley discussed with Pohl the “percentage of settlements”
he was to receive from the cases he solicited and referred, and Pohl told Talley that the money was
being placed in an “escrow account” for him. aWhen 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.” Ande, although his paycheck was from Walker’s company, “the
funding came by way of Edgar [Jfaimes].”
Talley testified that pyersonally soliciting clients for Pohl became so frequent that he began
carrying blank Pohl coCntracts to each solicitation. Talley testified that he never recommended any
lawyers other than Paohl. However, Talley never told the clients that he was getting paid to solicit
them. Talley wofuld present a Pohl contract to the potential client. If the client did not agree to hire
Pohl, the Uclients would not get the money. Talley testified that Jaimes and Dona (the operators of
HH Texas) would send him the money.
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. Talley testified that
during the attempted solicitation he was told by a “lawyer or policeman” that “it was against the
law what [he] was doing.” Talley mentioned this to Pohl and Pohl told him “you’ve just got to
leave...some people you can’t help.”
Walker was eventually indicted and sent to prison. Thereafter, Pohl and hisk lawyer partners
refused to pay Walker and the other runners the ill gained fees as Pohl had prolmised. Therefore,
Walker, Seymour, Ladner and Precision filed a lawsuit in Mississippi cFederal Court (“Federal
Litigation”) against Pohl and his law partners claiming they were sowed millions of dollars in
promised fees. 
The above facts were compiled during the Federal Litigation. Thereafter, more than four
hundred clients who were illegally solicited contacted the Kassab Law Firm and requested Kassab
to represent them in litigation against Pohl and his partners. Kassab filed lawsuits on behalf of
these clients in four different courts in Harrisa County. 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 Rule 8.03 of
the Texas Disciplinary Rules of Pfrofessional Conduct. Thus, Kassab filed grievances against Pohl
pursuant to Rule 8.03. Pohl’ys clients are also preparing and filing grievances against Pohl arising
out of his blatant barraCtry.
Because of athese actions in representing clients against Pohl and the grievances filed
against Pohl, Pofhl has filed a retaliatory lawsuit against the Kassab alleging conversion and theft
of trade sUecrets. Pohl alleges that Kassab and others stole his property and are using it to bring
lawsuits and grievances against Pohl. Specifically, Pohl alleges in his petition against Kassab that,
“Kassab is a lawyer who specializes in suing other lawyers”1 and “Kassab solicited
1 Pohl Original Petition, p. 6
10
clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring cases against Pohl for alleged
barratry and other claims.”2 Thus, Pohl has judicially admitted that he has brought his suit against
Kassab because Kassab contacted Pohl’s clients and filed suit against Pohl on behalf of these
clients. k
COUNTERCLAIM FOR CIVIL BARRATRY
Within the lawsuits that Kassab has filed against Pohl on behalf oft his former clients and
potential clients, Pohl has judicially admitted that a claim for barratryt is not a legal malpractice
case. Pohl has also admitted that a claim for barratry is not a claim for “legal malpractice,” and
thus, the discovery rule does not apply to a barratry claim. Teherefore, based upon Pohl’s judicial
admissions, the assignment of a barratry claim is permituted under Texas law.
Therefore, based upon express assignmentns of interest given to Kassab, Kassab brings
counterclaims against Pohl and his law firm purrsuant to Texas Civil Practice and Remedies Code,
Section 16.069. Section 16.069 provides:
(a) If a counterclaim or cross claim arises out of the same transaction or occurrence
that is the basis of an acction, a party to the action may file the counterclaim or
cross claim even thougfh as a separate action it would be barred by limitations
on the date the partyO’s answer is required.
(b) The counterclaipm or cross claim must be filed not later than the 30th day after
the date on which the party’s answer is required.
Kassab has been asasilgned 150 barratry claims as of this date. These counterclaims are
being filed conteimporaneously with the Kassab’s answer and are therefore timely. The
remaining barratry counterclaims will be filed by November 7, 2018, within thirty (30)
days from the date Kassab’s answer is filed.
2 Id. at p. 6-7
11
PRAYER FOR RELIEF
Wherefore, Defendants, Counter-Plaintiffs respectfully pray that Plaintiffs recover nothing
on their claims and that the Defendants, Counter-Plaintiffs recover on their claims against the
Plaintiffs as follows:
i) actual and consequential damages;
ii) statutory damages; 
iii) pre- and post-judgment interest; r
iv) attorneys’ fees and costs; and i
v) all other relief to which the Defendants, Counters-Plaintiffs may be justly entitled.
Respecutfully submitted,
THnE KASSAB LAW FIRM
r i/ s / Lance Christopher Kassab
LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
f lance@kassab.law
 DAVID ERIC KASSAB
c Texas State Bar No. 24071351
f i david@kassab.law
O 1214 Elgin Street
 Houston, Texas 77004
p Telephone: 713.522.7400
o Facsimile: 713.522.7410
a l ATTORNEYS FOR DEFENDANTS,
i COUNTER-PLAINTIFFS LANCE CHRISTOPHER
f i KASSAB AND THE KASSAB LAW FIRM
12
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 24th day of
October 2018.
/ s / Lance Christopher Kasesab
Lance Christopher KassCabl
13"
3,2018-10-15,AFF,Pohl,Pohl’s affidavit in support of claims,"Affidavit of Michael Pohl filed as Exhibit 24, sworn June 19, 2018 in Montgomery County, Texas, in response to Kassab's State Bar grievance (File No. 201801825), providing Pohl's version of facts regarding his relationship with PR Consultants and denying barratry allegations","Sworn affidavit prepared by Pohl in the State Bar of Texas grievance proceeding (No. 201801825, Kassab as Complainant, Pohl as Respondent), later filed in the Pohl v. Kassab litigation as Exhibit 24 in connection with TCPA proceedings. Sworn June 19, 2018.",TCPA-1,N/A,Phase 1,2018-10-15_AFF_Pohl-Affidavit_FILED.pdf,,"EXHIBIT 24
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NO. 201801825
LANCE CHRISTOPHER KASSAB, § STATE BAR OF TEXAS
Complainant. §
§
MIKE A. POHL, §
Respondent. § GRIEVANCE : COMPLAINT
NS
AFFIDAVIT OF MICHAEL POHL G
Rey
THE STATE OF TEXAS § ~S
COUNTY OF MONTGOMERY § ; &
BEFORE ME, the undersigned authority, on this day personally appeared
)
Michael Pohl, who upon being duly sworn, deposes says:
SN
1. My name is Michael Pohl. I am eighteen years old and am fully
capable of making this affidavit. I have pergonal knowledge of the facts addressed
SN
herein except as otherwise specifically eo and they are true and correct.
2. Iam a lawyer. My law Geta was at all times material to the allegations
herein called the Law Office, ‘Gf Michael A. Pohl (sometimes referred to as
eS
“LOMAP”). &
3. I was introduced to Scott Walker (“Walker”) and Robbie Maxwell, the
© |
principals of Maxwell W alker Consulting Group, LLC (“Maxwell-Walker”), as well
as Terry Robinsoi, and Steve Seymour (“Seymour”) in April 2012. I was introduced
SS
to Kirk Lady Laine’ approximately six to eight weeks later. These parties all
held theiasdlves out to me as professional, experienced marketing consultants who
had prior experience providing marketing and client-relations services on behalf of
lawyers and law firms generally and in connection with claims asserted against
British Petroleum arising from the Deepwater Horizon oil spill (“BP claims”) in

particular. Robinson’s father-in-law, who Pohl was informed by Walker, Robinson
and Seymour was a prominent local attorney who advised their group, met with
Pohl on one occasion to discuss the services to be provided.

4. I initially contracted with Maxwell-Walker for it to prove exclusive

©

public-relations and client-liaison services in connection with existing and potential
BP claims by signing what was represented by Walker tobe Maxwell-Walker’s
customary services agreement. I was informed that Magiwell-Walker had retained
Mississippi attorneys to advise it and confirm that its agreement with me as well as
the public relations and marketing services it was aiticipated to provide under the
agreement were in compliance with Missiasipp law

5. Thereafter, Walker, Seymour Ladner (and/or their respective
companies) and I entered into additichal torme for specifically identified services,
including a Public Relations Conlin Agreement and subsequent agreements
made subject to the terms of the Public Relations Consulting Agreement.

6. Ladner andlor is companies) joined Walker and Seymour (and/or
their companies) on duly 15 2012, when Terry Robinson withdrew. The remaining
group of Walker, Seymour and Ladner are sometimes hereinafter referred to as the
Public Relatofé Consultants or “PR Consultants.”

7. Yves informed by the PR Consultants that their independent attorney
or attorneys had reviewed and approved each of the contracts I signed with them. In
fact, the PR Consultants and/or their independent attorneys prepared or redrafted
several subsequent “Retention of Services Agreement[s]” and “Operating

Agreement(s]” such as those attached to the Complaint! filed herein. I maintained
frequent communication with the PR Consultants and often travelled to Mississippi
to meet with them at the satellite law office I had leased there, which was used by
the PR Consultants and staff in connection with the PR Consultants’ services under
©

their agreement with Pohl as the operations expanded. Th PR Consultants
designated Walker as their business manager, spokesperscin and administrator.
More specifically, Walker was assigned to lead their communications with third
parties and handle all financial matters for theitGonsulting/public relations
business. Walker was also in charge of the hiring-énd day-to-day supervision of the
staff, although Ladner undertook all or most ofthe staff training in connection with
the services rendered by the PR Consultaits in connection with the BP claims. The
PR Consultants were solely responsible for hiring, paying, tax withholding and
supervising all employees and contactor hired by them for purposes of providing
services under their agreements with me, and retained sole and exclusive control of
such employees and contain

8. The PR. Consultants represented that, in addition to their public
relations services, they were competent to handle client liaison services and claims
management ith respect to clients who retained me and Jimmy Williamson to
investigate“ and potentially prosecute their BP claims. This included initial
interviews and document aggregation to determine whether the clients/potential
clients even met the minimum requirements for filing a claim with the Court
Supervised Settlement Program administrator. The PR Consultants undertook to
' See Complaint, Exs. 32, 34.

provide those services in connection with the BP claims through their jointly owned
company, Precision Marketing Group, LLC (“Precision”), which succeeded Maxwell-
Walker in January 2013.

9. With respect to those services, the PR Consultants represented to me

4

that they would be, and were, providing their marketing and client-relations
services in connection with the BP litigation exclusively. #0ime and that they
understood that their work and communications with clint potential clients and
me related to matters of pending and anticipated litigation, was confidential and
was not to be disclosed to third parties without iy express consent. I relied upon
those assurances in retaining and continuing 0 ia the PR Consultants’ services.

10. I have reviewed the Afidagiis of Scott Walker, Steve Seymour and
Kirk Ladner attached to the grievance bomplaint (the “Complaint”) filed against me
by Lance Kassab (“Kassab”), oa as the May 25, 2012 Public Relations
Consulting Agreement and ‘the May 25, 2012 Operating Agreement between
LOMAP, Maxwell & Walker Diamond Consulting and Robinson Holdings, LLC
(hereinafter, jointly, te May 25, 2012 Contract”); and the July 15, 2012 Operating
Agreement between LOMAP, Ladner, Walker and Steve Seymour (“Seymour”)
(hereinafter, tJ 15, 2012 Contract”), attached to the Complaint as Exhibits
3-1, 3-2 and 2 respectively, and sometimes collectively referred to as the parties
“agreement.”

11. The agreement was, as expressed in the writings, that I would pay the
PR Consultants a retainer as well as hourly fees and expenses so long as “such

hourly fees, retainer and expenses shall not exceed twenty-one percent (21%) of
LOMAP’s forty percent (40%) interest in the British Petroleum representation
agreement between Jimmy Williamson, P.C. and LOMAP.”

12. The assertions in the Complaint? that the agreement with the PR

©

Consultants was a “barratry agreement” and that I agreed to pay the PR
Consultants any percentage of the attorney's fees I was toneceive is not true. I
made no such agreement on May 9, 2012, May 25, 2012, July 15, 2012 or at any
other time. The agreement between the parties provided, as expressed in the
writings, that I would pay a specified retainer as wel as hourly fees and expenses so
long as “such hourly fees, retainer and expenses shall not exceed twenty-one percent
(21%) of LOMAP’s forty percent (40) interest in the British Petroleum
representation agreement between sieny Williamson, P.C. and LOMAP.”

13. Accordingly, the sertion in the Complaint? that I ever agreed to pay
any percentage of my attorndy’'s fees to the PR Consultants are not true. The May
25, 2012 and July 15, aon Contracts accurately reflect the agreement orally
discussed and understood by all of the parties before their execution. The agreement
required that the oer Consultants “shall keep accurate daily time records of all
efforts expendédon behalf of LOMAP.” The %-of-attorney’s-fees clause was simply
to impose @ “cap on amounts that may be due under the other terms of the
agreement, not an independent promise to pay any percentage of the attorney’s fees
earned by LOMAP on the subject claims. This was orally discussed and understood
2 See Complaint, p. 5.

3 See Complaint, p. 6.

by the parties before the May 25, 2012 and July 15, 2012 Contracts were executed. I
never agreed to simply pay a percentage of attorney’s fees to the PR Consultants
and the May 25, 2012 and July 15, 2012 Contracts were intended to be enforced as
written. NS
©
14. Pursuant to their contractual obligations, on more tha one occasion I
NN

reminded the PR Consultants to keep accurate daily time redords of their services
rendered in connection with the BP cases as they had agreed (as reflected in the
May 25, 2012 Contract and the July 15, 2012 Contr After PR Consultants
submitted invoices that I believed were unreasonable, I requested that the PR
Consultants provide me with their daily time records Instead, the PR Consultants
filed suit against me in the United States District Court for the Southern District of
Mississippi (the “Federal Court Lawsuit), in which I counterclaimed against the PR
Consultants for numerous instant fraud and misrepresentation that are further
addressed below. Notably, in fhe claims the PR Consultants asserted against me in
the Federal Court Law the alleged that the agreement with me required them
to be paid on an howlirrat basis and specifically denied that they were ever
promised or otherwise entitled to any percentage of my attorney's fees. Exhibit 1-A.

15. 1 other instances pertaining to non-BP accident claims (sometimes
referred bo “rollover cases”), the PR Consultants also demanded a specific hourly
rate. The specific rate eventually charged by the PR Consultants was, in my
opinion, unreasonably high but I nevertheless agreed to it in return for the PR
Consultants’ agreement that the maximum amount I might owe them would be

capped pursuant to the specified percentage-of-attorney’s-fees language used in the
agreement. In this manner, I would limit my maximum contractual liability to the
PR Consultants notwithstanding that they wanted to charge what I considered to be
an unreasonable specified hourly rate. For example, I would have never agreed to
| | ew
an hourly rate of $1,500, which I considered to be excessive( without the PR
Consultants’ agreement that the maximum amount I mien Ge them would be
capped pursuant to the percentage-of-attomney’s-fees"" language that the PR
Consultants had agreed to in writing. &

16. Further with respect to the terme agreoment and services to be
provided under the May 25, 2012 Contract and the July 15, 2012 Contract, I was
informed by the PR Consultants that they. wanted to confer with their attorneys
before finalizing and executing the Gereement documentation. We specifically
discussed that the inclusion of the Seed maximum-price provisions was essential
to me in agreeing to either a fbaeonabl rate” formula or a specified contract rate.
The PR Consultants saben confirmed to me that they had conferred with
their Mississippi storeys, who had advised that the terms of the agreement and
anticipated serviggs thereunder were lawful, and executed the agreement
accordingly ro

17. Neverthees, the services rendered by the PR Consultants under the
May 25, 2012 Contract and the July 15, 2012 Contract were substandard in many
respects. Among other things, the PR Consultants improperly vetted potential
claims for supporting, or disqualifying, information, improperly or inadequately

trained employees and contract staff retained by the PR Consultants to perform
services rendered under the PR Consultants’ contracts with me, and improperly or
inadequately supervised employees and contract staff retained by the PR
5
Consultants to perform services rendered under the PR Consultants’ coniracts with
me. The PR Consultants, who were primarily supposed to be whtng information
booths at various public events (such as boat shows, local festivals, etc.) and
answering follow-up telephone calls from interested perso had specifically touted
to me their familiarity with Mississippi rules regafing the marketing of legal
services on behalf of lawyers and law firms as elt as their access to counsel in
neighboring jurisdictions to advise with regard to any activities there. That is,
before I entered into any contracts witb PR Consultants, it was specifically
discussed, and the PR Consultant * asctically agreed, that they were to comply
with all applicable rules in that regaid and to supervise all hired staff accordingly.
18. However, based @n later admissions made by the PR Consultants in
connection with the Federal Cour Lawsuit, it appears that that may not have been
done in some instano§ although I relied upon the PR Consultants’ representations
and was unaware that they were acting in violation of their agreement with me. I
have since leS4, primarily through discovery in the Federal Court Lawsuit, that
the PR Coitants also misrepresented to me and my staff information relating to
claimants and potential claimants, disclosed confidential and _ proprietary
information to third parties without authorization, and otherwise acted in a
dishonest and disloyal manner toward me from the outset of our agreement,

including entering into undisclosed arrangements to provide the same or similar
services to my direct competitors, referring claimants and potential claimants to my
direct competitors and evefi proposing the “sale” of all of my accumulated work
product to third parties — all while being paid by me for what was represented to me
to be their exclusive services and while I was being billed by the PR Consultants for
(and paying) business expenses and overhead. &
19. It now appears that, from the outset of theif tolationship with me, the
PR Consultants also immediately began violating thelr contracts with me by failing
to keep accurate daily time records of efforts expended on my behalf as well as
making materially false representations to regarding the nature of services
performed and the nature of expenses ince, representations which I relied upon
to my detriment by paying PR Constant amounts that were not owed and to
which they were not entitled. This included the PR Consultants’ sending me
falsified and inflated invoices‘and expense information. It was also later discovered
that the PR Consultants had eytematialy overcharged me on all amounts I paid
them under the publczlation agreement. As a result, I asserted claims against
the PR Consultants in the Federal Court Lawsuit based on their multiple material
breaches of thir express and implied agreements, and their otherwise fraudulent
and bad ti onan towards me.
20. Moreover, the whole notion of alleged “barratry fees” was only
concocted by the PR Consultants after they had been caught stealing from me. The
term “barratry fees” was never used or mentioned by the PR Consultants at any

time prior to the institution of my counterclaims against them in the Federal Court
Lawsuit, and there is not a single contemporaneous record of any mention of alleged
barratry fees or payments. Indeed, Complainant Kassab’s co-counsel, Tina
Nicholson, as well as her former client Scott Favre (“Favre”), have both stated that
the PR Consultants even admitted to them that they had been & Castine from me.
Exhibit 1-B. The PR Consultants never disclosed to me that they were taking a
“skim” from all funds invoiced to me as actual expenses‘@nd concealed the theft by
misrepresenting to me the actual cost of the goodarand services for which they
sought reimbursement. In reality, the PR Consultants were simply inflating the
purported expense charges and keeping the exose above their actual cost.

21. In reliance on PR Consultants representations that the costs charged
to me were real and legitimate, ato funds into accounts owned or
controlled by the PR Consultants,"" These accounts were in the name of Maxwell-
Walker and Precision and wie eontrolled by the PR Consultants.

22. Thus, from the inept of my relationship with PR Consultants, they
consistently overstate the amount of all of the actual costs they charged me
for, and then misappropriated, converted and/or stole the inflated amounts for their

NS
own use and benetit

24. The fraudulent nature of the PR Consultants’ activities was further
established by the fact that bogus invoices produced in connection with the Federal
Court lawsuit actually bear stamped “PAID” dates that are days or weeks before the _

invoices were even prepared, according to the other information contained thereon.
Exhibit 1-C.

24. The PR Consultants also misappropriated, converted and/or stole
money from me by misrepresentation by charging me as much as Thousand
Dollars ($1,000.00) per week for what they described je rien expense
itemizations that were actually sent to me as “miscellaneous marketing” expenses

| a
supposedly incurred under the terms of the contracts. Although I requested back-up
receipts substantiating these purported expenses, (none were ever provided. I
subsequently discovered that the “miscellaneous  harketing” expenses were not real
expenses at all; the PR Consultants wore. simply keeping the “miscellaneous
marketing” money for themselves or otha using it for purposes that I had not
authorized or agreed to. &

25. The PR Consultants taade multiple affirmative representations in
communications to me and mi office staff regarding these fictitious expense charges
from approximately March 201 through September 2013 until I confronted Walker
and Walker cdmitted’ that the communications in which PR Consultants had
characterized certain charges as “miscellaneous marketing” expenses were not
truthful andar he had simply been keeping the money and/or using it for
purposes that were not authorized under the contracts. When I demanded that the
PR Consultants return the fraudulently induced payments, Walker told me that
they longer had the funds.

26. As part of the business of Maxwell-Walker, and later Precision
Marketing Group (now owned by Favre), the PR Consultants hired an unknown
number of employees and subcontractors in connection with the services rendered
in connection with the BP claims. The PR Consultants paid the individals it hired,

©

trained and supervised and to whom it issued IRS Form 1098s. None of those
persons were employed by me. The PR Consultants represeiited to me that such
persons would be and were properly trained and supervised regarding necessary
and permissible marketing activities and restrichioné ¢ Gséxeon. But notwithstanding
those representations, they have since disclosed in connection with the Federal
Court Lawsuit that such training either ad not occur or was incompletely and/or
negligently performed and the employees and contractors were not properly
supervised by the PR Consultants, These deficiencies apparently continued
notwithstanding my repeated ci to the PR Consultants to carefully train
and supervise the employees and staff working on the BP matters. I relied on
assurances from the PR Consltnt regarding their supposed training and
supervision in continuing t utilize the PR Consultants’ services. However, I later
came to learn that the PR Consultants were knowingly working against my
interests purstiant to agreements they had entered into with other attorneys who I
was in sre vompetition with.

27. Through discovery in the Federal Court Lawsuit, I learned that the PR
Consultants diverted actual and potential BP claimants who had signed contracts
with me to other persons and entities for the purpose of prosecuting their claims

and thereby misappropriated the services I had contracted and paid for as well as
my client contracts and existing and/or expected contractual relationships
(including actual executed client contracts as well as my contract forms and related
work product). According to the documents produced by the PR Consultants,
©
hundreds of claimants whose claims were investigated and docuimented by the PR
Consultants — while I was paying them for full-time sorvives and all of their
overhead ~ were surreptitiously referred by the PR Consultant to other attorneys
pursuant to agreements the PR Consultants had entered into with them that had
also not been disclosed to me. The documents prodiced by the PR Consultants in
discovery reflect that, on some occasions, PR Consultants even sought to utilize the
fact the I was paying overhead and expenies in an attempt to procure agreements
for themselves with third parties té\ whom they intended to wrongfully divert
existing and potential clients ia rated compensation rates based on the PR
Consultants’ supposed assursption of responsibility for all overhead and expenses
when, in fact, most of hon on were intended by the PR Consultants to be, and
were being, entirely, bore by me. In other words, the PR Consultants were
marketing their one services to other attorneys in return for a higher compensation
rate based onthe fact that the other attorneys would not have to pay for expenses
or overhead teens those expenses were being charged by the PR Consultants to
me).
28. During the course of discovery in the Federal Court Case, it was also
revealed that the PR Consultants undertook to convert, misappropriate for

themselves and/or market to third parties claimant files and other information and
materials that belong to me. Those items include original client contingency fee
contracts between my clients and me (and to which PR Consultants are not parties),
documentation of contact and personal information, claim information and
supporting materials. These files were at one time maintained in approximately
seventeen clear plastic file containers. Ladner admitted abseainding with those files
from my satellite law office and, without my consent, them at his residence
until they were later delivered, also without my content, to Scott Favre. The PR
Consultants and Tina Nicholson also refused to rebum and converted to their own
use four computers that I purchased for ny ofc and which the PR Consultants’
used while there performing services auider the May 25, 2012 and July 15, 2012
Contracts. Those computers held software and stored data that I had paid for,
specialized legal forms (that hag eS, prepared in compliance with various state
law after consultation with Tocal counsel in those jurisdictions), marketing
information and other trade sere, my proprietary administrative client forms,
various ue agreement forms prepared in accordance with the laws of various states,
internal emails agther work product relating to the BP claims and other matters
the PR Consufiants rendered services in connection with under the May 25, 2012
Contract aid the July 15, 2012 Contract.
29. This theft and unlawful disclosure was made even more egregious by
the fact that, from the outset of their contractual relationship with me, the PR
Consultants expressed their understanding of the confidential nature of the

information based on their prior experience in providing litigation-related services
to attorneys, a field in which PR Consultants held themselves out to me as
experienced professionals. Nevertheless, without my consent, and although they
were without legal title to the contracts, documents, computers, passwords or data
stored thereon, PR Consultants purported to sell the contacts documents,
computer, passwords and/or stored data to Scott Favre (even'aiter I had informed
Favre that the materials had been stolen from me by mre PR Consultants), who it
appears eventually sold those items and the information therein to Complainant
Kassab. ©

30. In the Spring of 2013, British Petroleum sued the administrator of the
Court Supervised Settlement Program & lnpropeny administering the global
settlement and, as a result, activity inconntto with the BP claims was halted. To
the best of my recollection, after Apri 2013, Jimmy Williamson and I did not agree
to represent any additional BE claimants who had requested our services as a result
of the public relations ond markting services performed by the PR Consultants.

31. After the publi relations and claims administration services in
connection with the BP claims had wound down, the PR Consultants offered their
assistance in déonection with other legal matters I was handling. I have for many
years proud claims arising from automobile and tire design and manufacturing
defects and agreed to retain the PR Consultants’ services in connection with various
faulty-ignition and “rollover cases.” However, I never instructed the PR Consultants
to improperly solicit any persons and specifically deny that I engaged in any

conspiracy with the PR Consultants or anyone else for the purpose of committing
barratry. In February 2014, I made the decision to close my satellite law office in
Mississippi.

32. Because of my years of experience in the field of désign and

©
manufacturing defect litigation, I have developed attorney contadés in many states
who refer cases to me from time to time. In addition, I nae tomerous business
| Cae

contacts in Texas, Oklahoma and elsewhere related tepy ranching and horse
breeding business who have from time to time reconunénded my services to their
family members and acquaintances. It was tar not unusual for me to be
contacted by a claimant from outside the State of Texas even though that is where I
had maintained my practice for many years)

33. With respect to the family of Cynthia Shannon (referred to on page 14
of the Complaint), to the best of e knowledge, I believe I was contacted by an
acquaintance or family meme of the decedent and may have requested Walker
and/or Ladner to assist {connection with securing the vehicle, tires and other
evidence related to tec Beident and may also have referred the family to Helping
Hand Financing, ERC (which I have no ownership interest in) for the purpose of
arranging nonifecourse loan against any potential recovery on the wrongful death
claim. Howeres I did not refer anyone to Helping hand Group, LLC, which was a
Mississippi business entity apparently formed by Walker and/or Ladner without my
knowledge or assistance. I did not instruct or advise Walker, Ladner or The Helping
Hands Group, LLC to improperly solicit the family of Cynthia Shannon, nor did I

otherwise enter into any conspiracy with Walker, Ladner, The Helping Hands
Group, LLC or anyone else to commit barratry in connection with any claims
arising from Cynthia Shannon’s death.

34. I would add that it is also possible that the PR Consultants or other

©

persons may have contacted the family of Cynthia Shannon, or tthe Semily of Emily
Zubalik (mentioned in connection with the letter from Richard Shenken on page 20
of the Complaint),4 using my name without my knowledge consent. In particular,
two individuals who I had no contact with and never$ éuthorized to use my name or
my firm name actually set up and operated a website using my name and my firm
name. Those individuals were later sscovered to be Julia Porter and Monica
Chaney, who it appears (from the statomnt of Jacqueline Taylor attached to the
Complaint) may have been associated With the PR Consultants or their associates.

35. In fact, I had to ote Porter and Chaney several times and
eventually sent them a ceaseland desist letter demanding that they stop using my
name or my firm’s name in comecton with any website or otherwise. Exhibit 1-D. I
later learned that, eboeh Porter and/or Chaney, certain individuals may have
actually signed fog parcements or other claims-related documentation bearing my
name and, agtin, demanded that Porter and Chaney inform any such persons that
the use oy name was unauthorized. Exhibit 1-E.
4] have no specific recollection of ever instructing Ladner or anyone else to contact Michael Lucas or any member
of Emily Zubalik’s family. The Power of Attorney (attached as Exhibit 39 to the Complaint) appears to be a form |
have used but is not signed by me and, upon receipt of Mr. Shenken’s letter (attached as Exhibit 38 to the
Complaint), I immediately disclaimed any interest in claims arising from the subject accident. See Exhibit 1-G.

36. On still another occasion, my firm was contacted by an individual
named Christopher Forrest inquiring as to the status of his case. When we informed
Mr. Forrest that we had no record of having represented him, he stated that he had
been promised at least $30,000 if he signed certain documentation and forwarded to

4

me a document indicating that someone had presented him with a fee agreement
Ni
bearing my name in May of 2017, more than three years’ after I had stopped
accepting BP claims and more than two years after the BP claims administrator
had closed the application process. Exhibit 1-F. After reviewing the document he
had forwarded, we inquired of Mr. Forrest who had povided it to him, but he stated
that he did not want to get anyone in troubies refused to identify the individual
that had given it to him. ~

37. I further deny the attogaddon that I divided a fee between myself and a
lawyer or lawyers who are not in ym without the client’s consent (as alleged on
pages 26-27 of the Complaisit)- Fist the Complaint does not even identify any
client whose fee was supose improperly divided. Second, the fee-agreement
submitted by the Complainant in support of this allegation (Exhibit 43 to the
Complaint) does pobappear to have been prepared or signed by me. Third, even if I
had prepared’ signed Exhibit 483 or a substantively similar fee agreement, it
would noe constiate the “division” of a fee without the client’s consent because
Jimmy Williamson and I were both identified on the fee agreement and therefore
would both have been knowingly retained by the client/potential client.

38. In this regard, Mr. Williamson and I did agree generally to share fees
earned on our joint BP clients on a 60/40 percentage basis consistent with Texas
law.5 Accordingly, we envisioned that the services and value contributed by each
would approximate a 60 percent contribution by Williamson and a 40 percent

©

contribution by me. However, consistent with Texas law, when the circumstances
occasionally varied from our estimate, or otherwise in fairness required a different
proportion, the fee, if any, would be divided accordingly. [a yome instances, I did not
receive any fee at all on a BP claim notwithstanding tat both Williamson and I had
been retained by the client and I had contributed to the investigation and/or
prosecution of the claim. I have no way of knowing what the circumstances were
with respect to the client who supposedly retained me pursuant to the fee
agreement attached as Exhibit ado the Complaint because all identifying
information has been redacted ty hl Complains. However, I deny that I violated
Texas Disciplinary Rule of Prffessional Conduct 1.04 with respect to that individual
or any other client or potenti client. In connection with the BP claims and other
matters made the basis 0 the Complaint, the fees and expense reimbursement I
received reflected the actual value of my legal services and the actual expenses I
had incurred

29. In this regard, I am familiar with the Texas Disciplinary Rules of
Professional Conduct (the “Rules”) and have made it my practice to comply with
them at all times.

5 See e.g. Exhibit 10 (J. Williamson depo., pp. 58-59).

40. Ideny that I violated Rules 1.04(((1), 1.04(H(2) or 1.04(g) in connection
with any fees earned in connection with the BP claims and other matters made the
basis of the Complaint.

41. I further deny that I violated Rules 1.15(a)(1) or 115 @ in connection
with my withdrawal from or other termination of any reresention in connection
with the BP claims and other matters made the basis of the Céinplaint

42. I further deny that I violated Rule 5.04(a) by sharing attorney’s fees
with a non-lawyer in connection with the BP claims’ and other matters made the
basis of the Complaint. ©

43. I further deny that I violated Ral 7.01(a) with respect to my firm
name or letterhead in connection with the BP claims and other matters made the

&
basis of the Complaint. &

44, I further deny that I violated Rules 7.03(b) or 7.03(d) by paying any
non-lawyer to solicit or refer dhionts to me, except for reasonable public relations
and marketing services reper in accordance with the Rules, in connection with
the BP claims and ot ater made the basis of the Complaint.

45. I further deny that I violated Rules 7.06(a) or 7.06(b) by continuing
employment &Siolation of the Rules in connection with the BP claims and other

matters nde the basis of the Complaint.

46. I further deny that I violated Rules 8.04(a)(1), 8.04(a)(2), 8.04(a)(3),
8.04(a)(4), 8.04(a)(9), 8.04(a)(12) or 8.04(b) by committing any crime or illegal act,
engaging in conduct involving fraud, deceit or misrepresentation, engaging in

obstruction of justice, engaging in barratry or violating any other law relating to
lawyers or the practice of law.

47. Ihave attempted in good faith to address all of the material allegations
set forth in Mr. Kassab’s grievance complaint; however, to the extent. ani material

NS
allegation is not specifically addressed above it is denied. ae
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4,2018-10-15,OA,Montague,Montague’s answer subject to special appearance,"Defendants F. Douglas Montague III and Montague Pittman & Varnado, P.A.'s Original Answer Subject to Their Special Appearance, including general denial, 12 affirmative defenses, and request for disclosure","Montague Defendants' initial responsive pleading filed October 15, 2018, subject to their previously filed Special Appearance challenging personal jurisdiction. This answer preserves their jurisdictional objection while also responding to the merits of Pohl's Original Petition.",PLEAD-1,N/A,Phase 1,2018-10-15_OA_Montague-Answer-Subject-to-Appearance_FILED.pdf,"Grant of special appearance dismissing Montague Defendants for lack of personal jurisdiction; alternatively, denial of all relief against Montague Defendants with a take-nothing judgment; costs of court; and all other relief to which they may be justly entitled","10/15/2018 10:49 AM
Chris Daniel - District Clerk Harris County
Envelope No. 28273574
By: ARIONNE MCNEAL
Filed: 10/15/2018 10:49 AM
NO. 2018-58419
MICHAEL POHL, ET AL § IN THE DISTRICT COURT OF
Plaintiffs, §
v. §
§ HARRIS COUNTY, TEXAS
LANCE KASSAB, ET AL § r
§ C l
Defendants. § 189TH JUDICIAL DISTRICT
DEFENDANTS F. DOUGLAS MONTAGUE IItI AND
MONTAGUE PITTMAN & VARNADO, P.A.’S ORDIGiINAL ANSWER
SUBJECT TO THEIR SPECIAL APPEARANCE
Subject to the their previously filed Special Appearance, Defendants F. Douglas
Montague III and Montague Pittman & Varnado, P.AB. (“Defendants”) file this Original Answer
to Plaintiff’s Original Petition and respectfully show the following:
aI.
GENERAL DENIAL
1.1. Pursuant to Rule 92, Defendants denies the material allegations made in the
Plaintiffs’ Original Petition and aniy petition that may be filed hereinafter by way of amendment
or supplement, and demand strict proof thereof by a preponderance of the evidence at trial.
o II.
AFFIRMATIVE AND ADDITIONAL DEFENSES
Defendancts further assert the following additional and affirmative defenses in the
alternative subject to their special appearance:
2.1. In the alternative, Plaintiffs’ claims are barred by a lack of standing. Specifically,
Plaintiff did not have an attorney-client relationship with the Defendants nor were these
Defendants a party or an attorney for a party to the underlying Pohl litigation with Favre and
Precision. Therefore, these Defendants owe no duty to Plaintiffs. Moreover, the referral of cases
to specialists are the type of professional services that routinely and commonly fall within the
services that an attorney would provide and that the Defendants do provide, which would thereby
provide immunity to these Defendants from liability. Consequently, there is no basis to assert a
claim of liability whether by way of conversion, theft of trade secrets, conspiracky or otherwise
against attorneys who are simply discharging traditional legal tasks. l
2.2. In the alternative, Plaintiffs’ claims for conspiracy and reclated torts are barred in
whole or in part for failure to state a claim on which relief can be sgranted. Under Texas law,
“[i]f the defendant’s liability for the alleged underlying tort is fosreclosed as a matter of law, there
is no claim for conspiracy.” Frankoff v. Norman, 448 S.W.3d 75, 87 (Tex.App.—Houston [14th
Dist.] 2014, no pet.). In this instance, Plaintiffs’ only link to the Montague Defendants for each
pled tort hinges on the bald assertion that the Montague Defendants “knew it (confidential
information) had been stolen.” In fact, Plaintaiffs have no basis to allege this as to the Montague
Defendants. And, the Montague Defendants were not parties to the Pohl settlement agreement
let alone the underlying case. Becauese the referral of a possible case is not an unlawful act, there
is no basis to assert the tort claimfs against these Defendants.
2.3. In the alternaytive, Plaintiffs’ claims are barred in whole or in part by the doctrine
of comparative responsCibility and/or contributory negligence. In particular, Plaintiffs’ are barred
by their own actions and decisions, which were not reasonable under all of the circumstances
involved and cfhfarted the course for this dispute. Defendants assert their rights under Chapter 33
of the TeUxas Civil Practice and Remedies Code, including the reduction of liability based on the
comparative responsibility of Plaintiffs or other Defendants in the instant case, any subsequent
settling Defendant and/or any responsible third parties.
2.4. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of excuse, legal
justification, and good faith.
2.5. Plaintiffs’ claims are barred, in whole or in part, because it has suffered no legally
cognizable damages and/or Plaintiff failed to mitigate damages. k
2.6. The Plaintiffs’ claims are barred, in whole or in part, by the flailure to satisfy all
necessary conditions precedent. c
2.7. The Plaintiffs’ claims are barred, in whole or in part, bsy the defense of estoppel.
2.8. The Plaintiffs’ claims are barred, in whole or in psart, by the defense of waiver.
2.9. The Plaintiffs’ claims are barred, in whole or in part, by the defense of unclean
hands.
2.10 The Plaintiffs’ claims are barred, in whole or in part, by the defense of illegality.
2.11 The Plaintiffs’ claims are barread, in whole or in part, by the defense of the statute
of limitations. 
2.12. Defendants assert theier rights under Chapter 41 of the Texas Civil Practice and
Remedies Code including the limfitations on exemplary damages.
y III.
REQUEST FOR DISCLOSURE
Subject to thleir special appearance, pursuant to Rule 194 of the Texas Rules of Civil
Procedure, Plainitiffs are requested to disclose, within thirty (30) days of service of this request,
the informantion or material described in Rule 194.2. Defendants specifically request Plaintiffs
produce all responsive documents and information at the undersigned law office within thirty
(30) days of service of this request.
WHEREFORE, PREMISES CONSIDERED, the Defendants respectfully pray that this
Court grant their special appearance or, alternatively, if denied, deny all relief sought against
these Defendants and render a take nothing judgment against Plaintiffs as well as awarding the
Defendants their costs and all such other relief to which they may be justly entitlekd.
Respectfully submitted, l
MARTIN, DISIERE, JEFFERSOcN & WISDOM, L.L.P.
/s/ Dale Jefferson i
Dale Jefferson 
Texas State Bar Nso. 10607900
jefferson@mdjwlaw.com
Raul H. Suazor
Texas StatBe Bar No. 24003021
suazo@nmdjwlaw.com
Kevin G. Cain
Texras State Bar No. 24012371
Mcain@mdjwlaw.com
808 Travis Street, 20th Floor
Houston, Texas 77002
(713) 632-1700 Telephone
f i (713) 222-0101 Facsimile
y ATTORNEYS FOR DEFENDANTS F. DOUGLAS
MONTAGUE III AND MONTAGUE PITTMAN &
C VARNADO, P.A.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was served
upon all counsel of record in accordance with the Texas Rules of Civil Procedure, on the 15th
day of October, 2018 as follows:
Jean C. Frizzell r
Reynolds Frizzell LLP C l
1100 Louisiana St., Suite 3500 
Houston, Texas 77002
Via Electronic Filing and Email: jfrizzell@reynoldsfrizzell.comt
/s/ Dale Jeffersson
Dale Jeffersong"
2,2018-10-08,OA,Kassab,Kassab’s initial answer with counterclaims,"Kassab Defendants' Original Answer, Affirmative Defenses, and Counterclaim for Civil Barratry, including general denial, 16 affirmative defenses, specific denials, and counterclaims based on assigned barratry claims","Kassab's initial responsive pleading to Pohl's Original Petition, filed October 8, 2018, approximately six weeks after suit was commenced. Includes both defensive pleading (general denial, 16 affirmative defenses, specific denials) and offensive counterclaims for civil barratry based on assigned claims from Pohl's former clients.","PLEAD-1, CC-1",N/A,Phase 1,2018-10-08_OA_Kassab-Answer-and-CC_FILED.pdf,That Plaintiffs recover nothing on their claims; actual and consequential damages on counterclaims; statutory damages; pre- and post-judgment interest; attorneys' fees and costs; and all other relief to which Defendants/Counter-Plaintiffs may be justly entitled,"10/8/2018 1:34 PM
Chris Daniel - District Clerk Harris County
Envelope No. 28104847
By: Brianna Denmon
Filed: 10/8/2018 1:34 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIrAL DISTRICT
DEFENDANTS, LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER
KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S ANSWER, AFFIRMATIVE
DEFENSES AND COUNTERCLAIM t
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendants, Lance Christopher Kassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm and files this their Origirnal Answer, Affirmative Defenses, and
Counterclaim, and would respectfully show the Court as follows;
RULE 47 SiT l ATEMENT
The Kassab Defendants, in their caMpacity as Counter-Plaintiffs, seek monetary relief of
more than $1,000,000.00. o
PARTIES
Plaintiff, Michael A. PoOhl is an individual lawyer residing in Colorado.
Plaintiff, Law Offipces of Michael A. Pohl is a law firm set up for the practice of law in
various states of the union, including Texas.
Defendant, iScott Favre is a nonresident individual residing in Mississippi.
Defenodant, Scott M. Favre, PA, LLC is a nonresident limited liability company located in
Mississippi.
Defendant, Precision Marketing Group, LLC is a nonresident limited liability company
located in Mississippi.
Defendant, F. Douglas Montague III is a nonresident individual residing in Mississippi.
Defendant, Montague, Pittman & Varnado, PA is a nonresident professional association
located in Mississippi.
Defendant, Tina Nicholson is an individual residing in Texas.
Defendant, Baker Nicholson, LLP, d/b/a Baker Nicholson Law Firm is a klimited liability
partnership located in Texas. l
Defendant, Counter-Plaintiff, Lance Christopher Kassab is an indicvidual residing in Texas.
Defendant, Counter-Plaintiff, Lance Christopher Kassab, P.C.s d/b/a The Kassab Law Firm
is a professional corporation located in Texas. 
JURISDICTION AND VENUE
This matter is within the jurisdictional limitsu of this Court and Plaintiffs, Counter-
Defendants, Michael A. Pohl and Law Offices onf Michael A. Pohl (“Pohl”) and Defendants,
Counter-Plaintiffs, Lance Christopher Kassab (“rLCK”) and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law Firm (“Kassab, P.C.”) (collectively “Kassab”) are subject to the Court’s
jurisdiction. Venue is proper in this county because one or more of the defendants are residents of
this county and because a substanftial part of the acts and/or omissions that form the basis of this
suit occurred in this county. 
GENERAL DENIAL
Defendant, Clounter-Plaintiff Kassab generally denies all allegations made by Plaintiffs,
Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl, and requests the Court
to require Pnlaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl to
carry their burden of proof regarding all allegations against Kassab.
AFFIRMATIVE DEFENSES
Defendant, Counter-Plaintiff Kassab pleads the following affirmative defenses:
1. Statute of limitations
2. Justification.
3. Estoppel.
4. Waiver. t
5. Ratification. t
6. Release. 
7. Unclean hands. e
8. Contribution. u
9. Failure to mitigate damages. n
10. Lack of standing. r
11. Accord and Satisfaction.
12. Assumption of the Risk. 
13. Illegality/Criminal Actfs.
14. First Amendment. 
15. Attorney Immunity.
16. In Pari Daellicto.
i SPECIFIC DENIALS
Defnendants, Counter-Plaintiffs specifically deny that all conditions precedent regarding
Plaintiffs claims of conversion and theft of trade secrets have been performed or occurred prior to
Plaintiffs filing suit against Kassab.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
LCK is a lawyer practicing law with Kassab, P.C., a law firm in Houston, Texas focusing
solely on plaintiffs’ legal malpractice. Kassab filed four lawsuits on behalf of over four hundred
clients against Pohl (the “Harris County Lawsuits”). The main allegations against Pohl is civil
barratry and conspiracy to commit barratry, a third-degree felony in Texas. Pohl conspired with
his wife, Donalda Pohl (“Dona”), his paralegal, Edgar Jaimes (“Jaimes”t), and three runners in
Mississippi to illegally solicit clients on behalf of Pohl. Dona owns at sham lending company in
Texas called Helping Hands Financing, LLC (“HH Texas”). Jaimes runs the day-to-day operations
of HH Texas. The three runners are Scott Walker (“Walkere”), Steve Seymour (“Seymour”) and
Kirk Ladner (“Ladner”). The three runners own and ouperate two other sham companies called
Helping Hands Group, LLC and Helping Hands Finnancial, LLC (collectively “HH Mississippi”).
The three runners also owned Precision Markerting Group, LLC (“Precision”) which they sold to
Scott Favre and/or his companies (collectively “Favre”).
With regard to the clients obtained in the BP Litigation, Walker, Seymour and Ladner hired
other runners to literally go up anfd down streets knocking on doors to solicit clients on behalf of
Pohl for lawsuits against British Petroleum. Precision paid these runners as much as $300-$400
for every client they obtained. Pohl then paid Precision as much as $1,500 for every client
Precision referred tao lPohl. Pohl also offered and agreed to pay Walker, Seymour and Ladner a
percentage of hisi legal fees once the cases settled. This percentage was disguised as an hourly rate
of $1,500.00 per hour.
With regard to auto accidents, Pohl set up a “Google Alerts” to be notified whenever there
was a horrific rollover crash. Pohl would then send his runners to hospitals, homes and funerals
to contact the families of the injured. The runners would use their sham companies, “Helping
Hands” to act as though they were genuinely there to help these victims. The runners would falsely
tell these victims that they were there to help the victims’ in their time of need in the form of
money for burial services, food, clothing, lodging, etc. In reality, the runners’ contacted these
families under false pretenses with the sole objective to take advantage of these victims and their
families while they were emotionally distraught and not thinking straight in ordker to lock them
into contracts which allowed the runners to select a lawyer for the victim. Tlhe victims and the
family members were encouraged to hire Pohl and told they could not gect the money unless they
agreed to hire Pohl. Pohl would pay the runners as much as $7,5s00 per client and Pohl also
promised the runners as much as 33% of Pohl’s legal fees on the back end when the case settled.
Additionally, HH Texas would pay HH Mississippi $2,500 for every client referred to HH Texas
to “loan” money to these victims and their family. Pohl used this procedure as an attempt to put
an additional layer between him and the actual runners.
Pohl also helped the runners form anaother sham entity, the GM Settlement Verification
Team (“GM Team”) after General Motors, Inc. issued a recall on cars due to faulty ignition
switches which effected the safe opereation of the airbag systems on vehicles. Thus, the GM Team
was designed to look official as iff it was part of General Motors. The conspiracy was to form an
official looking entity as if GyM was contacting people who had been harmed when airbags failed
to deploy in relation toC the ignition recall. In reality, this was just another sham company used to
trick clients into hiaring Pohl. Again, Pohl would pay Walker and Ladner, through their sham
entity, the GM Tfeam, a fee for every client it referred to Pohl, in addition to a percentage of fees
on the baUck end.
Pohl knew what he was doing was illegal barratry. Accordingly, he knowingly formed
entities that he perceived would insulate him from liability. In fact, Walker testified that although
he and Pohl called it “marketing services” or “marketing money” it was “clear to [him] it was
barratry.” In fact, Walker considered himself and his company “a pass-through for barratry
money.” All total, Walker, Ladner and Precision received over $5 million in “barratry pass-through
money” from Pohl and other lawyers to solicit potential clients with claims, both auto-accident
victims and those involved in the BP Deepwater Horizon litigation. k
One of the runners hired by Pohl and Walker to solicit illegally solicit cllients on behalf of
Pohl was Magdalena Santana (“Santana”). In her September 24, 2016 afcfidavit, Santana testified
that Pohl sent her on “dozens and dozens of car wreck cases all ovser the country.” Pohl would
email Santana the link of news coverage he obtained through Google Alerts depicting an accident
and asked her “to go to the victim or the victim’s family and try to get them to sign up with him.”
Santana swore under oath that Pohl agreed to pay her “$5,000 per case that [she] signed, plus a
percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even if the family
... rejected [her].” Santana was instructed by Paohl to “approach the victims and their families while
they were vulnerable, in the emergency room, their hospital rooms or at the funerals.” Pohl told
Santana that minorities “were especieally vulnerable since they tended not to know that the law
prohibited barratry.” Accordingf to Pohl, they “were easier to sign up.”
Pohl would give Sanytana “money to give to the victims or their families” but would give
the money to the client C“if they agreed to sign a Pohl representation contract.” Pohl advised Santana
that the money was aa “foot in the door” but instructed Santana not to mention anything about hiring
a lawyer “untilf after they agreed to take the money.” “If the client agreed to hire Pohl, then
[Santana]U was to have the client sign a ‘Helping Hands’ contract.” Pohl would then give Santana
the money to pay the client “from his own Helping Hands company.” When Santana questioned
this, Pohl 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.”
Pohl and/or his co-conspirators had Santana retract this affidavit through a December 19,
2017 affidavit. This purported retraction was likely the result of Pohl paying Santana to provide
testimony, which is something he has done in the past. In fact, Pohl’s own paralegal, Jaimes,
testified that on one occasion Pohl sent him to Florida with a suitcase filled with $k50,000 in cash
to give to Santana in exchange for her signing a statement for him. Jaimes tesltified that Santana
would only get the money if she signed the statement for Pohl. Jaimes testcified that Santana signed
the signed the statement and got the money. s
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,
criminal or unethical conduct. Santana testified that Pohl paid her $50,000 in cash to sign this
statement, which was delivered by Jaimes in three bags marked “trick or treat.” Very symbolic
given that Santana had been tricked by Pohla into soliciting clients for him and was now being
treated the money she claimed was due under their agreement just to stay quite. Santana reiterated
in her deposition that if she didn’t sigen the gag agreement, she would not receive the money from
Pohl. Santana attempted to indicafte on the agreement that she was receiving $50,000 to keep quiet,
but Jaimes told her Pohl deymanded that she state she only received nominal consideration, like
$100. Santana did not wCrite the statement but “just signed it” because she felt she was being “forced
to sign” it while “unader duress.”
Notablyf, nowhere in Santana’s December 19th affidavit does she state the testimony in her
former afUfidavit is untrue, only that she does not “agree with” it and that the affidavit is not
“reliable.” Although Santana states in her December 19th affidavit 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.” 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. Santana reiterated to counsel for Pohl, Billy Shepherd, that she was there in her
deposition to tell the truth and would not be bullied by his questioning or his efforts to confuse
her. k
Regardless, Santana’s sworn deposition testimony confirmed most of tlhe facts set forth in
her initial affidavit and this deposition testimony has never been rectracted. There, Santana
confirmed that she was hired by Pohl to solicit auto accident cases, thse first one being an accident
where a woman and her unborn child lost their lives. 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. Santana visited the funeral of the
deceased and got the family to feel comfortable with her. Although the mother was grieving, Pohl
told Santana: “take no prisoners, this is a cut tharoat business, you get in there and you do whatever
it takes to get this client.” The solicitation was successful after Pohl gave Santana $2,000 to “give
to the client to convince her into signeing over with the firm.”
“Coach” Kenneth Talleyf (“Talley”) was another runner hired by Pohl and Walker who
solicited over 20 auto accideynt cases for Pohl. Talley has sworn under oath that he was first hired
in relation to BP claimCs to find “folks that lost money due to the oil spill” and “sign them up” and
“get a fee for it.” Taalley testified that he went to work “knocking on doors” looking for potential
claimants for Pofhl and his partner in the BP litigation. Talley solicited and signed up for Pohl and
his co-coUnspirators more than 800 BP claims. Talley was paid between $75 and $350 for each BP
client he signed up for Pohl and his partners.
Talley eventually switched to soliciting auto accident victims, “calling on folks that had
bad accidents.” Talley recalls that the first client he solicited was in “the hospital in intensive care.”
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.” Talley kept a list of all the auto accident cases he solicited so he
could keep track of the cases that he was due a fee on the back end after the case settled. Talley
also followed a checklist that instructed him to, among other things, bring flowekrs to the initial
hospital visit (but to spend no more than $50) and to offer the victims moneyl but to “make sure
the funding schedule” from HH Texas “is filled out properly before relecasing any cash.” Talley
would advise the victims that he had attorneys who could help them ssuch as Pohl. Talley was paid
a fee of $1,400 plus his expenses by Pohl, through Walker, for any auto accident case he solicited
and referred to Pohl. On some cases, Talley was to receive a portion of the fee paid to Helping
Hands out of Pohl’s attorney’s fees. Talley discussed with Pohl the “percentage of settlements”
he was to receive from the cases he solicited and referred, and Pohl told Talley that the money was
being placed in an “escrow account” for him. aWhen 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.” Ande, although his paycheck was from Walker’s company, “the
funding came by way of Edgar [Jfaimes].”
Talley testified that pyersonally soliciting clients for Pohl became so frequent that he began
carrying blank Pohl coCntracts to each solicitation. Talley testified that he never recommended any
lawyers other than Paohl. However, Talley never told the clients that he was getting paid to solicit
them. Talley wofuld present a Pohl contract to the potential client. If the client did not agree to hire
Pohl, the Uclients would not get the money. Talley testified that Jaimes and Dona (the operators of
HH Texas) would send him the money.
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. Talley testified that
during the attempted solicitation he was told by a “lawyer or policeman” that “it was against the
law what [he] was doing.” Talley mentioned this to Pohl and Pohl told him “you’ve just got to
leave...some people you can’t help.”
Walker was eventually indicted and sent to prison. Thereafter, Pohl and hisk lawyer partners
refused to pay Walker and the other runners the ill gained fees as Pohl had prolmised. Therefore,
Walker, Seymour, Ladner and Precision filed a lawsuit in Mississippi cFederal Court (“Federal
Litigation”) against Pohl and his law partners claiming they were sowed millions of dollars in
promised fees. 
The above facts were compiled during the Federal Litigation. Thereafter, more than four
hundred clients who were illegally solicited contacted the Kassab Law Firm and requested Kassab
to represent them in litigation against Pohl and his partners. Kassab filed lawsuits on behalf of
these clients in four different courts in Harrisa County. 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 Rule 8.03 of
the Texas Disciplinary Rules of Pfrofessional Conduct. Thus, Kassab filed grievances against Pohl
pursuant to Rule 8.03. Pohl’ys clients are also preparing and filing grievances against Pohl arising
out of his blatant barraCtry.
Because of athese actions in representing clients against Pohl and the grievances filed
against Pohl, Pofhl has filed a retaliatory lawsuit against the Kassab alleging conversion and theft
of trade sUecrets. Pohl alleges that Kassab and others stole his property and are using it to bring
lawsuits and grievances against Pohl. Specifically, Pohl alleges in his petition against Kassab that,
“Kassab is a lawyer who specializes in suing other lawyers”1 and “Kassab solicited
1 Pohl Original Petition, p. 6
10
clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring cases against Pohl for alleged
barratry and other claims.”2 Thus, Pohl has judicially admitted that he has brought his suit against
Kassab because Kassab contacted Pohl’s clients and filed suit against Pohl on behalf of these
clients. k
COUNTERCLAIM FOR CIVIL BARRATRY
Within the lawsuits that Kassab has filed against Pohl on behalf oft his former clients and
potential clients, Pohl has judicially admitted that a claim for barratryt is not a legal malpractice
case. Pohl has also admitted that a claim for barratry is not a claim for “legal malpractice,” and
thus, the discovery rule does not apply to a barratry claim. Teherefore, based upon Pohl’s judicial
admissions, the assignment of a barratry claim is permituted under Texas law.
Therefore, based upon express assignmentns of interest given to Kassab, Kassab brings
counterclaims against Pohl and his law firm purrsuant to Texas Civil Practice and Remedies Code,
Section 16.069. Section 16.069 provides:
(a) If a counterclaim or cross claim arises out of the same transaction or occurrence
that is the basis of an acction, a party to the action may file the counterclaim or
cross claim even thougfh as a separate action it would be barred by limitations
on the date the partyO’s answer is required.
(b) The counterclaipm or cross claim must be filed not later than the 30th day after
the date on which the party’s answer is required.
Kassab has been asasilgned 150 barratry claims as of this date. These counterclaims are
being filed conteimporaneously with the Kassab’s answer and are therefore timely. The
remaining barratry counterclaims will be filed by November 7, 2018, within thirty (30)
days from the date Kassab’s answer is filed.
2 Id. at p. 6-7
11
PRAYER FOR RELIEF
Wherefore, Defendants, Counter-Plaintiffs respectfully pray that Plaintiffs recover nothing
on their claims and that the Defendants, Counter-Plaintiffs recover on their claims against the
Plaintiffs as follows:
i) actual and consequential damages;
ii) statutory damages; 
iii) pre- and post-judgment interest; r
iv) attorneys’ fees and costs; and i
v) all other relief to which the Defendants, Counters-Plaintiffs may be justly entitled.
Respecutfully submitted,
THnE KASSAB LAW FIRM
r i/ s / Lance Christopher Kassab
LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
f lance@kassab.law
 DAVID ERIC KASSAB
c Texas State Bar No. 24071351
f i david@kassab.law
O 1214 Elgin Street
 Houston, Texas 77004
p Telephone: 713.522.7400
o Facsimile: 713.522.7410
a l ATTORNEYS FOR DEFENDANTS,
i COUNTER-PLAINTIFFS LANCE CHRISTOPHER
f i KASSAB AND THE KASSAB LAW FIRM
12
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 8th day of
October 2018.
/ s / Lance Christopher Kasesab
Lance Christopher KassCabl
13"
1,2018-08-28,OP,Pohl,"Original Petition — breach of settlement, conversion, TUTSA, conspiracy","Plaintiffs' Original Petition asserting breach of settlement agreement, conversion, TUTSA trade secret misappropriation, and civil conspiracy against multiple defendants","Initial filing commencing the lawsuit. Pohl and his law firm sue Favre, Precision, Kassab, Nicholson, and Montague for conduct arising from alleged theft and misuse of confidential client information and trade secrets. Filed August 28, 2018, assigned to the 189th District Court of Harris County, Texas, Cause No. 2018-58419.",PLEAD-1,N/A,Phase 1,2018-08-28_OP_Pohl-Original-Petition_FILED.pdf,Judgment in Pohl's favor against all Defendants on all counts; actual damages within jurisdictional limits; injunctive relief under TUTSA § 134A.003; exemplary damages under §§ 41.001 et seq. and 134A.004(b); attorney's fees under §§ 38.001 et seq. and 134A.005; pre-judgment and post-judgment interest; trial by jury; and all other legal and equitable relief to which Pohl may be entitled,"8/28/2018 5:05 PM
Chris Daniel - District Clerk Harris County
Envelope No. 27116535
- . By: Walter Eldrid
2018-58419 / Court: 189 ried ate at
Cause No.
MICHAEL POHL, et al § IN THE DISTRICT COURT OF
§
Plaintiff, § HARRIS COUNTY, TEXAS
§
§ NG
LANCE KASSAB, et al § ©
Defendants. § JUDICIAE DISTRICT
a,
PLAINTIFFS MICHAEL POHL’S AND LAW OFFICE OF MICHAEL A. POHL,
PLLC’S ORIGINAL PETITION
©
SUMMARY”
Y
1. Plaintiffs Michael Pohl and Law Ome of Michael A. Pohl, PLLC (sometimes
8
collectively “Pohl”) sue Defendants Scott Favre and cott M. Favre PA, LLC (collectively “Favre”);
Precision Marketing Group, LLC crisis Lance Christopher Kassab and Lance Christopher
©
Kassab, P.C. D/B/A The Kassab ae (collectively “Kassab”); Tina Nicholson and Baker
Nicholson, LLP D/B/A Baker Nso Law Firm (collectively “Nicholson”); and F. Douglas
Montague III and Montague ear & Varnado, P.A. (collectively “Montague’”). Favre, Precision,
Kassab, Nicholson, and Montague are collectively called “Defendants.”
2. Defendait engaged in a scheme pursuant to which they illegally obtained,
2~O
maintained, and asd trade secrets and other confidential information and property belonging to
Pohl. Favre'sand Precision’s actions are in breach of a settlement agreement to which Pohl, Favre,
and Precision are parties, and all Defendants’ actions constitute the torts of conversion and
violations of the uniform trade secrets act, as well as conspiracy.

3. More specifically, Favre and Precision executed a settlement agreement with Pohl
pursuant to which they agreed to return to Pohl certain information in their and their counsel’s
possession, custody, or control; to permanently delete such electronically-stored information; and
not to cause any claim to be made or filed against Pohl. Favre and Precision also warranted that
they had not caused any suit or action to be filed against Pohl. At the time, Ene and Precision
had possession, custody, or control of all such information that they had previously provided to

S
Kassab and/or Montague because Favre’s and Precision’s agent and atoiney, Nicholson, was (and
Sint
currently is) Kassab’s and Montague’s co-counsel in the matters ag8 t Pohl. Pohl fully complied
with his obligations under the agreement. Favre and Pei greased their obligations under
the agreement.

4. Defendants knowingly and illegally<obtained and/or maintained confidential
information and property that belongs to Pom exercised dominion and control over the
O,
information and property in a manner incon with Pohl’s rights of ownership—each of which

constitutes actionable conversion. @

5. The actions of a Defendants relative to the confidential information and
property that they obtained, Ryaimtained, and used constitute misappropriation and violate the
Texas Uniform Trade Spefet ‘hot Tex. Civ. Prac. & Rem Code, § 134A.001, et seg. (““TUTSA”).

6. Defendants entered into a combination with the object of unlawfully

wes
misappropriating Poh’ trade secrets and, in so doing, they engaged in one or more unlawful overt
acts, inching stealing Pohl’s confidential information/property and using the
-2-

information/property for their own gain. Pohl has suffered damages as a proximate result of
Defendants’ conduct.

7. Pohl brings this action to recover damages and other relief for Defendants’ breach of
contract, conversion, violations of TUTSA, and conspiracy. Pohl seeks monetary reli ef in an amount

eS
over $1,000,000.00. All conditions precedent to Pohl maintaining this action gee peeovering from
Defendants have been performed or have occurred. &
&
DEFENDANTS eS
Or

8. Scott Favre is a nonresident individual who is a hheegs public adjuster in Texas and
who engages in business in Texas. He does not maintain a a place of business in Texas or a
designated agent for service of process in Texas. Me By be served with citation and this
petition: (a) at his office address at 7044 Stennis nee Kiln, Mississippi 39556; or (b) through
the Texas Secretary of State under Tex. Civ. Prac Rem Code § 17.044(a) (1) and (b).

O,

9. Scott M. Favre PA, LLC sf vonresiden limited liability company that engages in

business in Texas. It does not maintain ayezular place of business in Texas or a designated agent for
2 O
service of process in Texas. scoaR ere PA, may be served with citation and this petition: (a) by
serving Scott Favre, the personae charge of Scott M. Favre PA, LLC’s business, at the address of the
business, 7044 Stennis shor SSroad Kiln, Mississippi 39556; or (b) through the Texas Secretary of
State under Tex. Ciy. Prac. & Rem. Code § 17.044(a)(1) or (b).
NS
10. Precision is anonresident limited liability company that engages in business in Texas.
©
It does not eegihain a regular place of business in Texas or a designated agent for service of process
in Texas. Precision may be served with citation and this petition: (a) by serving Scott Favre, the
person in charge of Precision’s business, at 7044 Stennis Airport Road, Kiln, Mississippi 39556; or
(b) through the Texas Secretary of State under Tex. Civ. Prac. & Rem. Code § 17.044(a)(1) or (b).
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11. | Lance Christopher Kassab 1s an individual and resident of Texas. He may be served
with citation and this petition: (a) at 1214 Elgin Street, Houston, Texas 77004; or (b) at 5314
Navarro Street, Houston, Texas 77056.

12. Lance Christopher Kassab, P.C. D/B/A The Kassab law Firm is a Texas professional
corporation. It may be served with citation and this petition by serving its ga agent, Lance
Christopher Kassab: (a) at 1214 Elgin Street, Houston, Texas 77004; or (b) ass 14 Navarro Street,
Houston, Texas 77056. 5 Ss

NS

13. Tina Nicholson is an individual and a resident of Tex Tina Nicholson may be
served with citation and this petition: (a) at 4306 Yoakum Blvdz Suite 400, Houston, Texas 77006;
or (b) at 1607 Dove Ridge Drive, Katy, Texas 77493. ©

14. Baker Nicholson, LLP D/B/A Baker wes Law Firm is a Texas limited liability
partnership. It may be served with citation and wd paton (a) by serving its partner, Allison Baker,
at 4306 Yoakum Blvd., Suite 400, Hous, Tvs 77006; or (b) by serving its partner, Tina
Nicholson, at 4306 Yoakum Blvd., Suite 400, Houston, Texas 77006.

15. F. Douglas Mons a nonresident individual who engages in business in Texas.
He does not maintain a regular place of business in Texas or a designated agent for service of process
in Texas. Mr. Monae yb served with citation and this petition: (a) at his office address at 525
Main Street, Hattiesburg, Mississippi 39401; or (b) through the Texas Secretary of State under Tex.

NS
Civ. Prac. & Ret Code § 17.044(a)(1) or (b).

16 << Moa Pittman & Varnado, P.A. is a non-resident professional association that
engages in business in Texas. It does not maintain a regular place of business in Texas or a designated
agent for service of process in Texas. Montague Pittman & Varnado, P.A. may be served with citation
and this petition: (a) by serving F. Douglas Montague III, its registered agent for services of process

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and the person in charge of its business, at 525 Main Street, Hattiesburg, Mississippi 39401; or (b)
through the Texas Secretary of State under Tex. Civ. Prac. & Rem. Code § 17.044(a) (1) or (b).
JURISDICTION/VENUE

17. The damages that Pohl seeks in this case are within the Junsdictional ‘mits of this
Court. The Court has jurisdiction over Defendants because they have the on minimum
contacts with Texas, which include engaging in business in Texas, committing torts in Texas and, as
to some of them, residing in Texas. Further, Favre and Precision conlinted with Pohl, a Texas

NS
resident at the time, for Pohl to perform the contract at issue in we in part in Texas. This case
arises out of business done in Texas by Defendants. GP

18. Venue is proper in Harris County under ress? Prac. & Rem. Code §§ 15.002 and
15.062. ’

BACKGRO SOND

19. Pohl is a lawyer who reseed various persons and entities in claims arising from
motor vehicle accidents and the British Petroleum Deepwater Horizon oil spill. Scott Favre,
individually and/or through Scott nd Pare PA, LLC, is the managing member of Precision, a public
relations and marketing firm. Nein is a lawyer who represented Favre and Precision, including
for purposes of the lent agresnen mentioned above. At the time the agreement was entered
into and still today, Nieholson was also Kassab’s and Montague’s co-counsel in connection with

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claims that theyre prosecuting against Pohl.

20. Pol engaged Precision for a period of time to provide public relations services, to
gather and preserve evidence, and to screen and liaise with Pohl’s clients/prospective clients. While
working for Pohl, 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

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clients, as well as their detailed contact information. The information and property also included
actual attorney-client fee agreements with clients/prospective clients, other confidential
communications between the clients/prospective clients and Pohl, specialized legal forms that had
been prepared in compliance with various state laws after consultation with local <qunsel in those
jurisdictions, Pohl’s proprietary administrative client forms, eset prepared in
accordance with the laws of various states, internal emails, propriety marketing ¢nformation and other
trade secrets, and other work product relating claims of Pohl’s clients and prospective clients. Favre
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and Nicholson also gained access to the information. a

21. Favre and Precision, with Nicholson or with Nighdlson’s active and knowing and
intentional assistance, illegally misappropriated Pohl’s woibeey and confidential information and
property, which included information about and/or sxinsicaons with as many as 10,000 or more
of Pohl’s clients/prospective clients. Favre and rch with Nicholson or with Nicholson’s active
and knowing and intentional assistance, ase physical copies of certain of the information, stole
Pohl’s computers, and misappropriated electronic data to which they had access through Precision’s
work for Pohl. Favre, with Nichison or with Nicholson’s active and knowing and intentional
assistance, then secretly iB stolen confidential information and property to Kassab and
Montague, striking a eh arin Kassab and Montague paid Favre $250,000.00 in cash together
with substantial bonuses Kassab and Montague knew that the information and property that they

_ @O: |
were purchasing was stolen and not Favre’s and/or Nicholson’s to sell.

22 Kast is alawyer who specializes in suing other lawyers and who, upon information and
belief, has worked with Montague in this connection in the past. Kassab saw the value of Pohl’s
stolen and misappropriated confidential information and property because it provided him the ability
to contact and solicit Pohl’s clients/prospective clients. Using the stolen confidential information and

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property that he knowingly purchased, Kassab solicited those clients/prospective clients to act as
plaintiffs and, joined by Nicholson and Montague, to bring cases against Pohl for alleged barratry and
other claims.

23. The actions of Favre and Precision, in addition to being tortious and in viglation of Texas
law, were in direct violation and breach of the settlement agreement, which salhindn contract.
More specifically, a dispute arose resulting in a lawsuit in federal court in Mississippi, styled No.
1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al. ee United States District
Court For The Southern District of Mississippi, Southern Division That lawsuit was resolved
pursuant to a Confidential Settlement Agreement, executed ny late April/early May 2017 (the
“Settlement Agreement’). Nicholson represented raya? Precision in connection with the
Settlement Agreement, including its execution, sige same time serving as co-counsel with
Kassab and Montague for the claims now being so against Pohl.

24. The Settlement Agreement as cute by Favre, as managing member of Precision
and on behalf of Scott M. Favre PA, Ligand by Pohl. The Settlement Agreement expressly provides
that Favre and Precision will return 6 Poh all originals and all copies of documents in their and their
counsel’s possession, custody, er Sn that concern and/or identify all past or current clients and/or
prospective clients of Poland that Favre and Precision will delete all such electronically-stored
information. At the ine Nicholson was not only Favre’s and Precision’s agent and counsel in
connection with ite Settlement Agreement; she was also Kassab’s and Montague’s co-counsel in
coecon hh claims now being made against Pohl in various cases. At the time, therefore,
Favre and Precision (and their counsel, Nicholson) had possession, custody, or control of all such
documents and information that they had previously provided to Kassab or Montague. All of those
documents and all of that information were subject to the Settlement Agreement.

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25. Favre and Precision, with Nicholson’s active and knowing and intentional assistance,
violated the express terms of the Settlement Agreement by failing to return all of the documents and
information as required by the agreement and by failing to permanently delete all of the electronically-
stored information as required by the agreement. This includes documents and information that they
had previously sold or otherwise provided to Kassab or Montague. oe

26. The Settlement Agreement also provided that Favre and Precisigi would not cause any
claim, complaint, or legal action to be filed or made against Pohl. Five and Precision further
warranted and represented that they had not caused any suit or sion oe filed against Pohl. Favre
and Precision breached these provisions of the Settlement Agreantent by, inter alia, causing claims,
complaints, and legal actions to be filed and/or row in Pohl. The very existence of the
cases that Kassab, Montague, and/or Nicholson wegeuing against Pohl is a breach of the
Settlement Agreement. iS

27. In addition, all Defendants cower Pohl’s confidential information/property by
knowingly and unlawfully assuming, “and exercising dominion and control over that
information/property in a way thas nconsistent with Pohl’s ownership. Each of the Defendants,
individually and in cba each other, misappropriated Pohl’s trade secrets in violation of
the TUTSA by nl obtaining and using Pohl’s confidential and trade secret
information/property ipluding using that information/property to file cases against Pohl.

28. Paraaphs 1 through 7 and 17 through 27 are incorporated into all following paragraphs
of this ri

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CAUSES OF ACTION
Count One: Breach of Contract (Against Favre And Precision)

29. Favre and Precision are bound by the terms of the Settlement Agreement. Pohl timely
and fully performed the Settlement Agreement. Favre and Precision breached the Settlement
Agreement. Their breaches include causing claims to be made against Pohl; custom and
legal actions to be filed against Pohl; Favre’s assisting Kassab and his co-gounsel, Montague and
Nicholson, in pursuing claims, complaints, and actions against Pohl; not ern to Pohl the required
information, including information that had previously been provided‘ Kassab or Montague; and
not permanently deleting the required electronically-stored inf@tyation, including information that
had previously been provided to Kassab. Favre’s and Pes breaches resulted in damages to
Pohl. <

Count Two: Cones ein A Defendants)

30. In stealing Pohl’s a confidential information, Favre, Precision, and
Nicholson have wrongfully assumed and exercised dominion and control over Pohl’s property in
contravention of Pohl’s rights as otis that property.

31. In knowingly purchasing the stolen information, Kassab and Montague have
wrongfully exercised sei and control over Pohl’s property in contravention of Pohl’s nghts as
owner of that property, ©

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32. In Knowingly maintaining and using the stolen information, all Defendants have
vrngtly eerie dominion and control over Pohl’s property in contravention of Pohl’s nghts as
owner of that property.

33, Pohl owned and owns the information/property, and Favre and Precision (with
Nicholson or with Nicholson’s active and knowing and intentional assistance) stole the

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information/property and sold it to Kassab and Montague. Kassab and Montague knowingly
purchased the stolen information/property. Pohl has been damaged thereby.
Count Three: Violation of TUTSA (Against All Defendants)

34, Pohl maintained information regarding his clients/prospective clients oa contact
information and related data, as well as other information concerning his (rte of law, as
confidential trade secret information. Pohl took substantial measures to main the confidentiality
of that information. That information has independent economic alu om not being generally
known to, and not readily being ascertainable through proper means by another person who can
obtain economic value from the disclosure or use of the fomation

35, Favre, Precision, and Nicholson vaya maliciously misappropriated Pohl’s
trade secrets by acquiring them through improper RO specifically, by theft. See Tex. Civ. Prac.
& Rem. Code § 134A.002(2), (3)(A). ~S

Ci

36. Favre, Precision, and Nihon wily and maliciously misappropriated Pohl’s
trade secrets by disclosing them to Kassab and Montague (who purchased the trade secret information
knowing that it had been stolen) van i express or complied consent of Pohl. See Tex. Civ. Prac.
& Rem. Code § 134A.002(3)(B),

37. All Detnts willfully and maliciously misappropriated Pohl’s trade secrets by
using them without, the expres or implied consent of Pohl. See Tex. Civ. Prac. & Rem. Code §
1344. 0028 ,B)

©
Sy Count Four: Civil Conspiracy (Against All Defendants)

38. Acting in combination with the agreed object of misappropriating Pohl’s trade secrets

and converting Pohl’s property, each of the Defendants committed overt acts toward the unlawful
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misappropriation of Pohl’s trade secrets, which were unlawful and which proximately caused
damages to Pohl.
DAMAGES
39, Pohl seeks actual damages within the jurisdictional limits of this Coury
AO. Pohl seeks injunctive relief pursuant to Tex. Civ. Prac. & Rem. goes 134A.003.
4l. Pohl seeks exemplary damages pursuant to Tex. Civ. Prac. & Rem. Code §§ 41.001,
S
et seg, and 134A.004(b). 5 ss
eh
42. Pohl seeks attorney’s fees pursuant to Tex. Civ. Prag, $ em. Code §§ 38.001, e¢ seq,
and 134A.005 &
43. Pohl seeks pre-judgment and ros udameitces
TRIAL BY Y
44. Pohl requests trial by jury and supe the appropriate jury fee.
©,
CONCLUSION
45, Pohl requests that judgprent be entered in Pohl’s favor and against Defendants on
nS)
the counts and as requested “oe for such other and further or alternative relief (legal and
equitable) to which Pohl may be cntitled.
Dated: August 28, 218. Respectfully submitted,
OS Reynolds Frizzell LLP
©
&S By: _/s/ Jean C. Frizzell
© Jean C. Frizzell
GW State Bar No. 07484650
S 1100 Louisiana St., Suite 3500
Houston, Texas 77002
Tel. 713.485.7200
Fax 713.485.7250
jfrizzell@reynoldsfrizzell.com
Attorneys for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
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