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