filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
67,2024-02-02,RSP,Pohl,Objections to Kassab JNOV,"Pohl's Response in Opposition to Kassab's Motions for New Trial and for JNOV, systematically opposing all 22 grounds for new trial and all JNOV arguments. Argues: all grounds are recycled rejected arguments; witness tampering allegations identical to rejected mistrial motion and based on unsworn statements of self-professed perjurer/extortionist; multiple charge objections waived at charge conference; jury verdict supported by nearly two weeks of trial evidence; Kassab fails to cite trial record; incorporates 15 prior filings by reference.","Response filed February 2, 2024, opposing both the Motion for New Trial and Motion for JNOV filed January 19, 2024. Pohl incorporates by reference 15 prior filings spanning 2021-2023. Notes Kassab has not filed a proposed order as required by court procedures.",POST-1,N/A,Phase 5,2024-02-02_RSP_Pohl-Objections-to-Kassab-JNOV_FILED.pdf,Denial of Kassab's Motion for New Trial and Motion for JNOV in their entirety,"2/2/2024 4:44 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 84110431
By: Bonnie Lugo
Filed: 2/2/2024 4:44 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL et al. § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB et al. § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
POHL’S RESPONSE IN OPPOSITION TO THE MOTIONS FOR NEW TRIAL AND
FOR JUDGMENT NOT WITHSTANDING THE VERDsICT AND TO DISREGARD
JURY FINDINGS FILED BY THE KASSAsB DEFENDANTS
Plaintiffs Michael Pohl and Law Office of Michaerl A. Pohl (collectively “Pohl”) respond
in opposition to The Kassab Defendants’ Motion for New Trial (the “Motion for New Trial”) and
Motion for Judgment Not Withstanding the Verdlict and to Disregard Jury Findings (the “Motion
for JNOV”) filed by Defendants Lance ChMristopher Kassab and Lance Christopher Kassab, P.C.,
d/b/a The Kassab Law Firm (collectively “Kassab”).
I. INTRODUCTION
Kassab’s Motion for New Trial and Motion for JNOV repeat Kassab’s arguments that the
Court has previously considered and rejected. In these two motions, Kassab recycles arguments
rejected at summary judgment, 166(g) hearings, pre-trial hearings, directed verdict, and otherwise.
The Court’s judgcment and the jury verdict are supported by and consistent with ample evidence
presented at trial. But Kassab would have the Court throw out a jury verdict supported by nearly
two weeks’ worth of trial evidence. Because the issues that Kassab raises are without merit, the
Court should deny Kassab’s Motion for New Trial and Motion for JNOV.
II. STANDARDS
A. Motion for New Trial
“Jury trials are essential to our constitutionally provided method for resolving disputes,”
and “a jury’s decision is not to be tampered with lightly, regardless of whether it favors the plaintiff
or the defendant.” In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.Pl., 290 S.W.3d 204,
211 (Tex. 2009) (citing Tex. Const. art. I, § 15, art. V, § 10); see generally Hterbert v. Herbert, 754
S.W.2d 141, 144 (Tex. 1988) (“long-established precedents in this sstate demonstrate respect for
jury verdicts”). Thus, the “discretion Texas trial courts possess to overturn jury verdicts and grant
new trials,” though broad, “has its limits.” In re Columbia,e 290 S.W.3d at 210. “[T]he fact that
the right to jury trial is of such significance omas to be provided for in both the Federal and State
Constitutions counsels against courts setting aside jnury verdicts for less than specific, significant,
and proper reasons.” Id. at 210 n.3. A court’s rdiscretion in granting a new trial “should not, and
does not, permit a trial judge to substitute . . . her own views for that of the jury without a valid
basis.” Id. at 212. e
“[N]ew trials may be granfted to a party for sufficiency or weight of the evidence, when
damages are ‘manifestly’ tooy small or too large, and for ‘good cause.’” Id. at 210 (citing TEX. R.
CIV. P. 320, 326). Rul
e 320’s “good cause” standard “does not mean just any cause,” but rather a
“specific, significanat, and proper” cause. See id. at 210 n.3. As for challenges to the evidentiary
sufficiency of a fjury finding: A factual-sufficiency challenge can only prevail where a jury finding
“is so against the great weight and preponderance of the evidence that it is manifestly unjust,
shocks the conscience, or clearly demonstrates bias.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)
(citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).1 A legal-sufficiency challenge
1 With respect to an issue involving the clear and convincing evidence standard, a slightly different inquiry is
warranted. See Jang Won Cho v. Kun Sik Kim, 572 S.W.3d 783, 810 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
requires a party challenging a finding on which it did not bear the burden to “demonstrate that no
evidence supports the finding.” Four J’s Cmty. Living Ctr., Inc. v. Wagner, 630 S.W.3d 502, 513
(Tex. App.—Houston [1st Dist.] 2021, pet. denied) (emphasis added, citation omitted).
If the trial court grants a new trial, it cannot “simply parrot a pro forma tekmplate.”2 In re
Munsch, 614 S.W.3d 397, 400 (Tex. App.—Houston [14th Dist.] 2020, no pelt.). Instead, a new
trial order must “provide an understandable, reasonably specific explancation of the trial court’s
reasons for setting aside the jury’s verdict” that “derive[s] the artsiculated reason[s] from the
particular facts and circumstances of the case at hand.” Id. (citsations omitted). The trial court’s
“stated reason for granting a new trial must [also] be a legally valid reason.” Id.
B. Judgment Notwithstanding the Verdict
A court may render a judgment notwithstanding the verdict only if a directed verdict would
have been proper. See TEX. R. CIV. P. 301. “A
directed verdict is warranted when the evidence is
such that no other verdict can be rendered and the moving party is entitled, as a matter of law, to
judgment.” Zarate v. Rodriguez, 542e S.W.3d 26, 35 (Tex. App.--Houston [14th Dist.] 2017, pet.
denied) (citation omitted). Put anfother way, judgment notwithstanding the verdict “is proper when
the evidence is conclusive aynd one party is entitled to prevail as a matter of law, or when a legal
principle precludes recCovery.” Id. (citation omitted); see also Barrow-Shaver Res. Co. v. Carrizo
Oil & Gas, Inc., 5a90 S.W.3d 471, 480 (Tex. 2019) (“Judgment . . . against a jury verdict is
proper . . . only fwhen the law does not allow reasonable jurors to decide otherwise.”).
(“factual sufficiency of the evidence under a clear and convincing standard requires us to determine based on the
record whether the fact finder reasonably could form a firm conviction or belief that the allegations were proven.”).
2 Kassab has not yet filed a proposed order as required by the Court’s procedures. The Court cannot adopt a pro forma
proposed order to grant a new trial. There are minimum constitutional requirements articulated by the Texas Supreme
Court. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 748-49 (Tex. 2013) (“trial court must explain with
reasonable specificity why it . . . circumvented a critical constitutional right” and “granted a new trial”); In re United
Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding) (“trial court abuses its discretion if its new-
trial order provides no more than a pro forma template rather than the trial judge’s analysis”); see also In re Bent, 487
S.W.3d 170, 173 (Tex. 2016) (orig. proceeding); In re Columbia, 290 S.W.3d at 212–13.
III. POHL’S INCORPORATION OF PRIOR BRIEFING
Because Kassab’s arguments are largely recycled arguments previously rejected by this
Court and the 189th District Court, Pohl incorporates fully by reference his prior briefing—both
the arguments and the attached exhibits—on these issues. This includes the followking items:
• Pohl’s Motion for Summary Judgment on Defendants’ Counterclaims,l filed Dec. 7, 2021.
• Pohl’s Reply in Support of His Motion for Summary Judgtment on Defendants’
Counterclaims, filed Feb. 4, 2022.
• Pohl’s Objection to Kassab’s Motion to Designate Responsisble Third Parties, filed May
31, 2022. D
• Pohl’s Response in Opposition to the Traditional Moti s ons for Summary Judgment Filed
by the Kassab Defendants and the Nicholson Defendeants & Exhibits, filed Sept. 12, 2022.
• Plaintiffs’ Response in Opposition to the Kassarb Defendants’ Three New Motions to
Compel, filed Sept. 27, 2022.
• Pohl’s Motion to Exclude or Limit the Testnim  ony of Defendants’ Expert Witnesses, filed
Nov. 30, 2022 y
• Pohl’s Objection to Kassab’s Suppale r mental Motion to Designate Responsible Third
Parties, filed Nov. 30, 2022. M
• Pohl’s Rule 166(g) Motion on fBarratry Liability and Specific Affirmative Defenses
Asserted by the Kassab Defendants, filed Nov. 30, 2022.
• Pohl’s Response in Opposit c ion to the Amended Motions for Summary Judgment Filed by
the Kassab Defendants &f Exhibits, filed March 29, 2023.
• Pohl’s Letter responding to arguments raised in Kassab’s April 13, 2023 letter, filed April
18, 2023. p
• Pohl’s Rule 10C4(c) Motion Disputing the Admissibility of Lance Kassab’s Testimony as
an Expert Witnesses, filed Aug. 4, 2023.
• Pohl’s Letiter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion, filed Aug. 15,
2023. i
• Pohl’s Reply in Support of His Motion for Entry of Final Judgment, filed Sept. 18, 2023.
• Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment,
filed Sept. 22, 2023.
• Pohl’s Response to Kassab’s Emergency Motion for Mistrial & Exhibits, filed Dec. 21,
2023.
IV. DISCUSSION
Many of the issues presented in Kassab’s motions have been previously argued by Kassab
and rejected by the Court with a ruling in Pohl’s favor. The same result is proper here, and the
Court should deny Kassab’s Motion for New Trial and Motion for JNOV. Manyk issues Kassab
raises were waived or are boilerplate sufficiency objections without citationsl to the trial record.
But Kassab has not grappled with the evidence in the trial record—nor dcoes he attach the record
as support. It is apparent that Kassab gives little weight to the evidensce Pohl introduced at trial—
Kassab has taken positions throughout the lawsuit that require him to reject Pohl’s testimony and
evidence—but the verdict demonstrates the jury did accept Pohl’s evidence. Kassab has not
carried his burden to demonstrate error in the judgment or verdict, much less any error that would
warrant a new trial or setting aside the judgment.
A. Kassab’s alleged new evidence dida not warrant a mistrial, and it does not warrant
a new trial (Motion for New TriMal Issue #1).
The Court should reject Kassabo’s lead argument for a new trial—Kassab’s allegations of
witness tampering—because it prescents the same arguments and evidence that the Court recently
considered and found did not warrant a mistrial. Kassab presents no new material information,
evidence, or argument thapt warrants reconsideration. The Court correctly ruled that Kassab’s
arguments—which rely on untrue statements—did not justify setting aside the jury’s verdict.
Those same argumcents do not warrant setting aside the Court’s judgment based on that verdict.
Kassaob’s first argument for a new trial is that he claims there is newly discovered evidence
of witness tampering that warrants a new trial. See Motion for New Trial at 4–9. He contends that
“[a]lthough Walker and Ladner testified one way in the Mississippi litigation they brought against
Pohl, when they were deposed in this case they reversed course on seminal issues of barratry and
ownership of Pohl’s purported trade secrets.” Id. at 6. This is the same rejected argument Kassab
made for a mistrial. Compare id. at 4–9 & exhibits 1–4, with Kassab’s Emergency Motion for
Mistrial at 1–7 & exhibits 1–4, filed Dec. 13, 2023.
Pohl responded to Kassab’s Emergency Motion for Mistrial and explained how Kassab’s
arguments were misleading. See generally Pohl’s Response to Kassab’s Emergekncy Motion for
Mistrial, filed Dec. 21, 2023. Despite Pohl pointing out that it is demonstrablyl untrue that Walker
and Ladner changed their testimony on the issues Kassab complains abocut “in this case,” Kassab
continues to push this false narrative. See id. at 7–10 (explaining how sKassab withheld information
from the Court about Walker and Ladner giving testimony ins 2018 consistent with their 2022
depositions in this case); Motion for New Trial at 6–7 (demonstrating Kassab continues to wrongly
suggest that a change occurred with Walker and Ladner’s testimony “in this case”).
While Pohl relies on his prior arguments and evidence, the following summarizes why the
Court should reject Kassab’s argument. Fiarst, Kassab suggests that Pohl agreed to share a
judgment with Walker and Ladner in exchange for them sitting for depositions and changing
deposition testimony on two topics ine this case. But Kassab knows this is not true. Pohl did not
convince Walker or Ladner to sitf for depositions—Kassab, not Pohl, subpoenaed their testimony.
And Pohl did not need to inyfluence Walker or Ladner to “change” their testimony in this case.
Kassab took their depoCsitions in a different case in 2018—four years before their depositions in
this case. Kassab does not discuss, let alone grapple with, the fact that Walker gave testimony in
2018 on the twfof topics at issue that is consistent with his testimony in this case.
SeUcond, even if Walker changed his testimony on the relevant topics for this case—which
is not true—Kassab has not provided evidence to justify granting a new trial. Kassab’s argument
hinges on the truthfulness of vague, unsworn statements of Scott Walker, a self-professed perjurer
and an extortionist. Walker first unsuccessfully tried to extort Pohl for a share of the eventual
judgment in this case, but Pohl refused to be extorted. Walker then approached Kassab and asked
Kassab repeatedly to pay him to help Kassab avoid paying any judgment to Pohl. Kassab does not
mention this fact in his motion—nor did he disclose it to the Court when requesting a mistrial.
In any event, Kassab cannot show that he is entitled to a new trial based solkely on unsworn
statements of a self-professed perjurer who pitched a story as part of an offerl to sell Kassab his
testimony to help undermine any judgment in this case. Kassab failed tco establish facts that the
Court can rely on to grant a new trial and overturn the jury’s considersed verdict in this case.
B. The jury properly found that Pohl owned the trades secrets (Motion for New Trial
Issue #2 and Motion for JNOV Issue #1). s
After reviewing the evidence and testimony prersented at trial, the jury found that (1)
“[a]ttorney client fee contracts between Pohl and his clients” and (2) “[a]ny list of the identities
and contact information of Pohl’s actual, potentlial or rejected clients” constituted Pohl’s trade
secrets.3 The jury heard evidence supportinMg its finding that Pohl owned the relevant information,
that it had economic value to Pohl as ao compilation, that it was kept secret, and that Pohl took
reasonable steps to safeguard its seccrecy. There is no basis that can justify the Court setting aside
the jury’s findings on this issue after a legal or factual review.
As noted above, for a factual sufficiency challenge to prevail, the Court must find that the
jury finding “is so against the great weight and preponderance of the evidence that it is manifestly
unjust, shocks thec conscience, or clearly demonstrates bias.” In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). That standard is not met here, where the jury finding is based on the jury accepting the
testimony of witnesses, weighing the documentary evidence, and finding in Pohl’s favor. Nor has
Kassab shown as a matter of law that Pohl does not own the trade secrets as required to meet the
JNOV standard.
3 See Jury Verdict, Question 1(a)–(b), attached as Exhibit A.
Kassab continues to try and conflate the issues by suggesting that “Pohl cannot own a trade
secret in attorney-client contracts because they are owned by the client.” Motion for New Trial at
9; Motion for JNOV at 5–6. While a client may have a right to a copy of the particular attorney–
client contract the client is a party to, the lawyer also has an ownership right in eakch contract and
to the collection of his contracts.4 Unlike work product, which is generated onl behalf of a client,
an attorney does not act as the agent of a client when a fee contract is drafcted or before it is signed.
A client certainly does not own a collection of attorney–client cosntracts or a compilation of
information based on multiple attorney–client contracts. Pohl ansd other witnesses provided direct,
on-point testimony on this specific issue.
Kassab also ignores Pohl’s testimony about his ownership of the contracts, any lists, and
the information more generally. He instead focuses on an allegation that Pohl’s office manager
“testified that she did not consider the attornaey-client contracts trade secrets.” Motion for New
Trial at 10. But her opinion on what constitutes trade secrets is not relevant. Kassab fails to
mention that Pohl’s office manager aelso gave testimony showing that Pohl did own the contracts
and any list of information comfpiled from those contracts. The jury had ample evidence to
conclude Pohl owned the ryelevant trade secrets, including because Pohl’s name was on the
contracts, and Pohl hadC the right to any list made by those working for him that was compiled from
the information contained in those contracts.
The jurfyf also saw evidence that Pohl took reasonable steps to keep his client information
confidentUial and that the compilation of this information had value beyond simply the sum of its
components (what Kassab refers to as a “competitive advantage”). The jury heard testimony about
how client information was kept in a locked office above a bank with security. The jury heard
4 Cf. Texas Ethics Opinion No. 670 (March 2018) (discussing how an attorney can use copies of former client
documents as “forms” in a new firm provided he keeps confidential information confidential).
about how those who worked for Pohl understood that client information had to be kept secret.
The jury heard testimony about the value of knowing the identities of persons who may participate
in mass tort litigation. The jury also heard opinion testimony about how, by the very nature of the
work, persons working for lawyers understand they must safeguard the secrecy kof information,
especially client information. l
Kassab continues to contend that Pohl’s trade secrets were “gcenerally known to third
parties.” Motion for New Trial at 12. But there was a lack of evsidence showing this at trial.
Instead, the jury saw evidence that Kassab was willing to pay osver six figures to get access to the
attorney–client contracts (and lists of contact information based on those contracts). The jury was
free to reject Kassab’s unsupported assertion that Pohl’s client list—which would have included
contact information—was publicly available when Kassab failed to provide evidence
demonstrating this claim. Kassab’s actionas were inconsistent with his assertion that this
information was publicly available. 
The record at trial demonstratees that there is factually sufficient evidence to show that the
attorney–client contracts and listsf of identities and contact information of Pohl’s clients constituted
Pohl’s trade secrets. Kassaby’s conclusory assertions about what he thinks the evidence showed do
not carry his burden toC establish that he is entitled to judgment as a matter of law. The jury’s
finding that Pohl owned the relevant trade secrets is legally proper and supported by testimony and
documentary efvfidence. The jury’s finding in favor of Pohl on this issue—made after the jury
weighed Uthe evidence—should not be disturbed.
C. Kassab waived any objection to Question #2 (Motion for New Trial Issue #3).
For the first time, Kassab complains in his Motion for New Trial that the Court erred in
submitting Question #2 to the jury. This question was properly included because it was supported
by evidence introduced at trial, and Kassab was on notice of the nature of Pohl’s claims against
Kassab. But the Court does not need to reach those issues. Kassab failed to object to Question #2
at the charge conference and thus failed to preserve any objection to this jury question.
It is blackletter law that a party must articulate its objections to the Court before the Court
reads the jury charge to the jury to preserve any objection. See TEX. R. CIVk. P. 274 (“Any
complaint as to a question, definition, or instruction, on account of any defectl, omission, or fault
in pleading, is waived unless specifically included in the objections.”). c A party cannot raise an
objection to a jury question for the first time as part of a motion fors a new trial. See Mitchell v.
Bank of Am., N.A., 156 S.W.3d 622, 628 (Tex. App.—Dallas 2s004, pet. denied) (“Objections to
the court’s charge in a motion for a new trial are untimely and preserve nothing for review.”); see
also Zermeno v. Garcia, No. 14-17-00843-CV, 2019 WL 2063090, at *3 n.5 (Tex. App.—Houston
[14th Dist.] May 9, 2019, pet. denied).
In Kassab’s Motion for New Trial, hae contends that the Court erred in submitting Jury
Question #2. See Motion for New Trial at 12–14. However, Kassab did not object to this question
at the charge conference.5 Thus, Kasesab cannot raise objections to this jury question for the first
time in his Motion for New Trial.f
While Kassab waivedy any objections he may have had, Kassab is also wrong on the merits
of this issue. A signifCicant issue at trial was whether Kassab improperly obtained Pohl’s trade
secrets from Favre and Precision. Pohl put on evidence showing that Precision, as a company that
provided servicfefs to a lawyer, had a duty of secrecy and that Kassab should have known that Favre
and PreciUsion had a duty to keep Pohl’s trade secrets confidential. But despite knowing that before
obtaining the information, Kassab helped induce a breach of confidentiality by wrongfully
5 Jury Charge Conference Transcript at 6–7 (showing the Court asked if Kassab had any objections to Question #2,
and Kassab’s counsel stated: “Not to Number 2.”), attached as Exhibit B.
10
purchasing Pohl’s trade secrets. Thus, the evidence presented at trial was sufficient to support the
broad-form submission of Question #2 to the jury.
D. There is factually sufficient evidence for the jury’s finding that Kassab engaged in
misappropriation (Motion for New Trial Issue #4 and Motion for JNOV Issue #2).
The jury found that Kassab misappropriated Pohl’s trade secrets after seering and hearing
ample evidence that Kassab willfully and knowingly acquired those trade secrets from persons
Kassab knew were violating an obligation to keep the trade secrets conrfiidential. Kassab ignores
the evidence in favor of the jury’s findings and improperly tries toD engage in burden-shifting after
the fact. The Court should reject this previously disputed issuse.
Kassab’s main argument is that the jury’s findring of 0% liability for Precision on
misappropriation is inconsistent with a finding that he misappropriated Pohl’s trade secrets. See
Motion for New Trial at 14–16; Motion for JNOVl at 10–12. As a threshold matter, Kassab waived
his right to object based on any alleged inMconsistency in the jury’s verdict by not asserting any
objections before the Court dismissed tohe jury. See Bryan v. Papalia, 542 S.W.3d 676, 692–93
(Tex. App.—Houston [14th Dist.] 2c017, rev. granted, judgm’t vacated w.r.m.). But even if Kassab
had not waived the issue, Kassab’s theory fails because it was Kassab’s, not Pohl’s, burden to
introduce evidence showing Precision engaged in misappropriation.
There is nothing inconsistent about the jury finding that Precision did not misappropriate
the information acnd that Kassab did. The jury could have found that Precision obtained the
information lawfully because Precision obtained the information at the request of, while working
for, and while being paid by Pohl. The jury also could have based its misappropriation finding on
Kassab’s post-acquisition “use” or “disclosure” of the trade secrets. Regardless, Kassab is the
party that sought to designate Precision as a responsible third party. Kassab cites no authority for
the theory that his failure to persuade the jury that Precision engaged in misappropriation can be
11
used to undermine a jury finding on a separate issue where Pohl did carry the burden of proof. To
find otherwise would flip the incentives in the case. Kassab would have no incentive to introduce
any evidence to support a finding of liability against a party he designated as a responsible third
party. Instead, it would create a conflicting incentive for Pohl to introduce evideknce potentially
undermining his case to prove that some responsibility was born by someone lother than Kassab.
This makes no sense, and the Court should reject Kassab’s unsupported tcheory.
Kassab’s theory of factual insufficiency (and no evidence) relsies on ignoring the evidence
at trial. He contends that there is insufficient (or no) evidence she was aware the information had
been acquired by improper means or from someone who had acquired it improperly. See Motion
for New Trial at 16; Motion for JNOV at 11. But Kassab apparently forgets that this was a major
issue at trial. On their face, the documents that Kassab purchased were not the sort of documents
that can be properly purchased from a non-laawyer. Pohl introduced expert opinion testimony on
what a lawyer should know about the confidentiality of materials containing information about
another lawyer’s clients. Kassab proevided testimony on cross-examination on this issue that the
jury could have found to be nofn-credible or to support an inference that Kassab acted with
awareness of the proper ownyer of Pohl’s trade secrets when Kassab purchased them.
There was testaCmentary and documentary evidence before the jury supporting their finding
that Kassab had misappropriated Pohl’s trade secrets. Kassab’s argument that this finding was
supported by inf fsufficient or no evidence is contrary to the trial record. The Court should reject
Kassab’sU arguments for a new trial and to set aside the judgment.
E. Kassab did not sufficiently preserve his objection to Question #3 (Motion for New
Trial Issue #5).
Kassab failed to timely notify the Court of his objection to Question #3 contained in his
Motion for New Trial. Pohl opposed the inclusion of Question #3. The Court chose to include
12
this question because Kassab wanted to make arguments about barratry, and he insisted on
including a jury question about alleged wrongful conduct by Pohl. Kassab now objects, saying
this question is not properly tied to other parts of the charge. But he waived this issue by failing
to timely make this objection and alert the Court of this alleged issue. k
Kassab argues that Question #3 was improper “because it was not tied lto any other part of
the charge.” Motion for New Trial at 17. However, Kassab did not raisce this issue at the charge
conference.6 Instead, Kassab presented the Court with a broasder, non-relevant question
concerning barratry.7 The Court rightfully rejected Kassab’s srequest to use that question. But
more importantly, Kassab failed to object to Question #3 on the basis that it was not tied to another
part of the charge. His failure to object on this ground
waived the issue. See TEX. R. CIV. P. 274
(“Any complaint as to a question, definition, or instruction, on account of any defect, omission, or
fault in pleading, is waived unless specificallya included in the objections.”); see also Mitchell, 156
S.W.3d at 628. 
F. The Court correctly rejecteed Kassab’s proportionate responsibility question
(Motion for New Trial Issue #6).
Kassab claims the Court erred by not submitting Kassab’s proportionate responsibility
question without citing a single legal authority to support his argument. See Motion for New Trial
at 17–18. Kassab was obligated to tender a legally proper jury question to preserve any objection.
But Kassab’s reqcuested jury question is contrary to the terms of the proportionate responsibility
statute. Further, Kassab’s proposed question was improper because it included individuals as
potentially responsible parties despite Kassab’s failure to introduce relevant evidence of their fault
at trial to support their inclusion on the jury question.
6 Jury Charge Conference Transcript at 6–7, Ex. B.
7 See id.; see also Motion for New Trial Ex. 6 (containing Kassab’s proposed alternative to Question #3).
13
Unlike, for example, negligence—where a plaintiff can negligently contribute to his or her
injury—Pohl could not have misappropriated his trade secrets. Thus, Pohl could not have violated
an “applicable legal standard” that contributed to causing the harm for which recovery of damages
is sought.” See TEX. CIV. PRAC. & REM. CODE § 33.011(4). As a result, the Court pkroperly rejected
Kassab’s proportionate responsibility question, which included a line for Pohl. lKassab’s proposed
question was also improper because it included lines for Walker, Seymocur, and Ladner despite a
lack of evidence regarding their fault at trial. It also would have besen improperly duplicative to
include those individuals alongside Precision in the question. s 
Because Kassab had the burden to submit a legally proper alternative question on the issue
of proportionate responsibility, his failure to tender a legally proper question at the charge
conference waived this issue. It was not error for the Court to reject the improper question Kassab
presented to the Court at the charge conferencae.
G. The statute of limitations did not run against Kassab before his wrongful conduct
occurred (Motion for New Trial Issues #7–8 and Motion for JNOV Issue #3).
Kassab makes two types ofc arguments concerning limitations. First, he argues that the
Court erred by asking the jury about Kassab’s misappropriation of Pohl’s trade secrets rather than
some alleged misappropriation by another party. See Motion for New Trial at 18. Second, and
relatedly, he argues that Pohl’s claim for misappropriation of trade secrets accrued prior to Kassab
engaging in any cwrongful conduct. See id. at 21–22; Motion for JNOV at 13–15. The Court
should reject both of these arguments because Pohl’s claims against Kassab could not accrue prior
to Kassab engaging in the wrongful conduct that gave rise to Pohl’s claims.
Kassab relies on alleged conduct by third parties to argue that Pohl’s claims against Kassab
accrued before Kassab engaged in wrongful conduct that gave rise to Pohl’s claims. Such a reverse
discovery rule—operating to cause the limitations period to run before Pohl could have brought
14
suit—makes no sense. It is Kassab’s conduct that is relevant for determining when Pohl’s claims
accrued. Here, Pohl’s claims accrued no earlier than November 2016, when the evidence shows
that Kassab knowingly purchased and acquired possession of Pohl’s confidential information from
a third party that Kassab knew had worked for Pohl. k
While a Texas Uniform Trade Secrets Act (“TUTSA”) claim may not ble a continuing tort,
that does not mean that different people cannot commit separate acts ocf misappropriation. For
example, Kassab cites Agar Corp., Inc. v. Electro Circuits Int’l, LLC, s565 S.W.3d 12 (Tex. App.—
Houston [14th Dist.] 2016), aff’d in part, rev’d in part, 580 S.Ws.3d 136 (Tex. 2019), to argue that
Pohl’s claim against Kassab accrued before Kassab purchased Pohl’s trade secrets. But Kassab
misunderstands this case. In Agar, a third party allegedly sold Agar’s trade secrets on multiple
occasions. See Agar, 565 S.W.3d at 19–20. Invoking both the continuing tort doctrine and the
discovery rule, Agar argued that limitations foar its conspiracy claim did not begin to run until the
last sale of its trade secrets (the last overt act) by that third party occurred. See id. The court
rejected that argument for multiple reeasons, including that the misappropriation of Agar’s trade
secrets was not a continuing tortf that reset upon each subsequent sale of the trade secrets by the
third party. See id. at 21. y
Agar stands forC the proposition that, for a specific party, the limitations period starts to run
when that party first misappropriated the trade secret, not when it last used the misappropriated
trade secret. Sfefe Agar, 565 S.W.3d at 21. Pohl filed suit less than two years after Kassab first
misapproUpriated Pohl’s trade secrets. Agar does not support Kassab’s argument that a third party’s
alleged prior misappropriation can start the limitations period before a separate party engages in
any wrongful conduct. A third party’s conduct cannot cause accrual of a cause of action against
Kassab before Kassab engaged in the wrongful conduct. Agar’s holding is simply not relevant.
15
Because the relevant issue for limitations is Kassab’s misappropriation of Pohl’s trade
secrets, the Court properly asked the jury about misappropriation “by Kassab.”8 Further, Kassab’s
discussion of unproven alleged wrongful conduct by persons other than Kassab has no bearing on
when limitations began to run. Kassab has not established his affirmative defensek, and the Court
should reject Kassab’s recycled limitations arguments.9 l
H. The Court properly declined to submit Kassab’s jury questicons related to non-
applicable affirmative defenses (Motion for New Trial Issure #9 and Motion for
JNOV Issues ## 4–5). s
Kassab was not entitled to jury questions on his unlawful acts doctrine and privilege
defenses. The proportionate responsibility statute preempts the unlawful acts doctrine. Kassab’s
privilege defense has no support in Texas law, and he relies on out-of-state authority taken out of
context to support the idea that the defense exists in the first place. The Court properly declined
to submit these defenses to the jury, given the lack of support for such questions.
1. The unlawful acts doctrine is preempted and does not apply.
Kassab first argues that he waes entitled to a jury question to help him establish a defense
based on the unlawful acts doctrinfe. See Motion for New Trial at 22–23; Motion for JNOV at 15–
17. This issue has been exteyns  ively briefed and discussed with the Court.10 To the extent that the
unlawful acts doctrine could have any relevance to this case, it is preempted by Texas’s
proportionate respoansibility statute. In Dugger v. Arredondo, the Texas Supreme Court explicitly
found that “the cfommon law unlawful acts doctrine is no longer a viable defense.” See 408 S.W.3d
825, 831–32 (Tex. 2013). While its holding did not deal with TUTSA claims, its reasoning is
8 See Jury Verdict, Question 5, Ex. A.
9 See Pohl’s Letter responding to arguments raised in Kassab’s April 13, 2023 letter, filed April 18, 2023; Pohl’s
Response in Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and the
Nicholson Defendants & Exhibits at 14–19, filed Sept. 12, 2022.
10 See Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion at 5–6, filed Aug. 15, 2023; Pohl’s Rule
166(g) Motion at 8–10, filed Nov. 30, 2022; Pohl’s Response in Opposition to the Traditional Motions for Summary
Judgment Filed by the Kassab Defendants and the Nicholson Defendants & Exhibits at 19–27.
16
based on the applicability of the proportionate responsibility statute, and that reasoning applies
squarely to this case. Kassab cannot claim the benefit of the proportionate responsibility statute
while simultaneously seeking to apply the conflicting unlawful acts doctrine defense.11
But even if this defense were not preempted, it would not be applicable.k It would only
apply if Pohl needed to rely on a purported illegal act to establish his claims. Slee Carcamo-Lopez
v. Does 1 through 20, 865 F. Supp. 2d 736, 767 (W.D. Tex. 2011) (“But cwhen the illegal conduct
arises in a defense and not in the plaintiff’s case, the unlawful acts rsule will not bar a plaintiff’s
claims.”). Kassab contends that barratry provides the support fsor this defense. But Pohl did not
need to rely on establishing acts of barratry to prove his case. Thus, this defense has no application,
and the Court properly did not submit a question to the jury on this defense.
2. Kassab did not enjoy a privilege to engage in misappropriation of trade secrets.
Kassab’s second argument is that he had a privilege to disclose Pohl’s trade secrets and
enjoys immunity from Pohl’s claims as a result. See Motion for New Trial at 24–25; Motion for
JNOV at 17–19. Kassab cannot coenspire to misappropriate and acquire information for his
commercial benefit and then claimf that he was justified or privileged to do so because he believed
Pohl had improperly soliciteyd some clients. That is the privilege that Kassab is asking the Court
to be the first Court inC Texas to adopt—parties can be justified or privileged to engage in the
misappropriation ofa trade secrets if they believe it will help uncover the wrongdoing of others.
The Court has, afnd should continue to, reject this novel theory.
TUhere is a reason that Kassab relies on out-of-state case law to support his argument. No
Texas case law demonstrates that Kassab’s defense exists. Even the authority that Kassab does
discuss is distinguishable. For example, Kassab cites Alderson v. United States, 718 F. Supp. 2d
11 It is notable that Kassab primarily relies on caselaw that pre-dates Dugger, and he cites no caselaw grappling with
the implications of Dugger yet finding that the unlawful acts doctrine remains applicable.
17
1186, 1200 (C.D. Cal. 2010), for the statement that “[t]here simply cannot be any trade secret about
ongoing illegality.” See Motion for New Trial at 24; Motion for JNOV at 19. But as discussed in
prior briefing,12 the reasoning of Alderson has no application to this case. Alderson dealt with
whether the plaintiff had a protectable property interest in his knowledge of “infkormation about
ongoing illegal activities”—that is, how a Medicare fraud occurred that was lthe basis of a prior
False Claims Act action. See Alderson, 718 F. Supp. 2d at 1200. The fcacts of this case are not
analogous. Here, Pohl does not claim trade secret protection concersning how any alleged illegal
conduct was undertaken. Instead, Pohl contended, and the jurys found, that Pohl’s customer lists
and related information were entitled to trade secret protection.
Because Kassab’s supposed affirmative defenses were not legally viable, the Court did
commit error in refusing to submit them to the jury. But regardless, Kassab failed to introduce
evidence at trial sufficient to establish these deafenses. The Court should reject Kassab’s arguments
related to these defenses. 
I. A barratry finding would ehave had no legal effect, so the Court properly limited
opinion evidence on whether barratry occurred and it has no impact on causation
(Motion for New Trialf Issue #10 and Motion for JNOV Issue # 10).
As has been extensivyely argued throughout this lawsuit, an opinion on whether barratry
occurred has no bearinCg on Pohl’s right to recover on his claims. Contrary to Kassab’s repeated
protestations otherwaise, a finding that barratry occurred would not change the fact that Pohl had
an ownership infterest in his contracts and the information they contain. It would not make Pohl
any moreU or less responsible for attorneys’ fees in the barratry proceedings. Nor is it a defense to
any other aspect of Pohl’s claims. As a result, on relevance grounds alone, the Court was permitted
12 See Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion at 2, filed Aug. 15, 2023; Pohl’s
Response in Opposition to the Amended Motions for Summary Judgment Filed by the Kassab Defendants at 11–12,
filed March 29, 2023.
18
to limit opinion evidence on barratry at trial. Pohl’s prior briefing on file addresses this issue in
more detail.13
Kassab’s alternative argument is that barratry defeats proximate cause. Motion for JNOV
at 34–35. Kassab did not preserve this proximate cause issue by objecting durinkg trial or at the
charge conference. But even if Kassab had not waived this issue and prolximate cause is a
necessary part of Pohl’s claims, the jury heard evidence sufficient tco establish that Kassab
proximately caused Pohl’s injuries. Some of Pohl’s damages are dirsectly linked to Kassab. For
example, the reasonable royalty and development cost damagses are directly linked to Pohl no
longer having exclusive use and control over compilations of his client information. There is a
direct causal connection between that occurring and Kassab wrongfully acquiring Pohl’s trade
secrets from Favre, who was duty-bound to keep that information confidential.
Pohl’s damages based on attorneys’ faees in separate proceedings were also proximately
caused by Kassab’s conduct. The jury heard evidence about the lengths that Kassab went to when
soliciting large numbers of people eto find a small number of people who would allege Pohl
committed barratry. He tried unfsuccessfully to solicit such people through letters sent based on
public information, but he onyly successfully obtained clients after he purchased Pohl’s trade secrets
and used them to engagCe in a mass-solicitation effort.
Finally, Kassab argues that “Pohl’s former clients’ decision to bring the barratry
proceedings wfefre a superseding or new and intervening causes of Pohl’s damages.” Motion for
JNOV at U35. But the actions of those persons were foreseeable by Kassab, as their actions to bring
suit were his specific goal and they acted with Kassab’s assistance. As a result, they were not a
13 See Pohl’s Rule 104(c) Motion Disputing the Admissibility of Lance Kassab’s Testimony as an Expert Witnesses
at 4–9, filed Aug. 4, 2023; Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion, filed Aug. 15,
2023; Pohl’s Rule 166(g) Motion at 2–8, filed Nov. 30, 2022; Pohl’s Motion to Exclude or Limit the Testimony of
Defendants’ Expert Witnesses at 2–6, filed Nov. 30, 2022.
19
superseding or intervening cause. See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 452
(Tex. 2006) (stating that “the threshold, and often controlling, inquiry when distinguishing
between a concurring and a superseding cause remains ‘whether the intervening cause and its
probable consequences were such as could reasonably have been anticipated kby the original
wrongdoer.’” (citation omitted)). l
Pohl has never been found by any adjudicatory body to have ccommitted barratry. Yet
Kassab continues to state conclusively that Pohl’s supposed barratry iss responsible for every harm
Pohl suffered. That is not the case, and the Court properly impossed limits on Kassab’s attempts to
inject barratry as an issue at trial.
J. Kassab is not entitled to immunity for his tortious conduct that occurred before
the existence of an attorney–client relationship (Motion for New Trial Issues ##
11–12 and Motion for JNOV Issues ## 6–8).
Kassab argues that he is entitled to relief based on his defenses of attorney immunity,
immunity under the Texas Rules of Disciplinary Procedure, and the judicial proceedings privilege.
See Motion for New Trial at 27–29; Meotion for JNOV at 19–26. Kassab’s arguments are legally
incorrect, as demonstrated througfh f the ample briefing of these issues.14
1. Kassab’s theory oyf attorney immunity is contrary to Texas Supreme Court precedent.
Kassab complains that the jury instruction on attorney immunity used the phrase “while in
an attorney relationaship” and that the evidence showed that his use of Pohl’s trade secrets occurred
in the context off attorney–client relationships. See Motion for New Trial at 27–29; Motion for
JNOV at 23–26. Kassab argues that the Court erred by using language from the Texas Supreme
Court in the jury question. It makes no sense to object to this language when the Texas Supreme
14 See Pohl’s Rule 166(g) Motion at 12–14, filed Nov. 30, 2022; Pohl’s Response in Opposition to the Traditional
Motions for Summary Judgment Filed by the Kassab Defendants and the Nicholson Defendants & Exhibits at 27–31,
filed Sept. 12, 2022.
20
Court held that one of the two relevant inquiries for establishing attorney immunity is whether a
party demonstrates “the existence of an attorney–client relationship at the time.” Youngkin v.
Hines, 546 S.W.3d 675, 683 (Tex. 2018).
The jury rejected Kassab’s other argument—that the evidence shows his kacquisition and
use of Pohl’s trade secrets occurred in the context of attorney–client relationshlips.15 Kassab used
and disclosed Pohl’s trade secrets as part of a mass solicitation used to acttempt to sign up Pohl’s
former clients. An attorney–client relationship cannot pre-date contasct between the attorney and
a prospective client. Thus, there was no attorney–client relationsship at the time Kassab used and
disclosed Pohl’s trade secrets by soliciting people through a mass-mailing campaign.
2. Pohl’s claims accrued prior to Kassab participating in the grievance process, so Pohl’s
claims cannot be predicated on Kassab’s participation in that process.
Kassab argues that he is entitled to immulnity because he participated in filing grievances
against Pohl. See Motion for JNOV at 19–M20. But Rule 17.09 of the Texas Rules of Disciplinary
Procedure does not grant Kassab absoluote immunity for anything he does with some connection to
the grievance system. Instead, it cprovides that: “No lawsuit may be instituted against any
Complainant or witness predicated upon the filing of a Grievance or participation in the attorney
disciplinary and disability system.” TEX. RULES DISCIPLINARY P. R. 17.09. It does not provide
immunity simply because there is some connection between a case and the grievance process.
For Rule c17.09 to have any application, this lawsuit would need to have been “predicated
upon” Kassab’s involvement in the grievance process. But Pohl’s claim for misappropriation
accrued upon Kassab’s acquisition or use of Pohl’s client information, which occurred no later
than when Kassab used that client information to solicit Pohl’s clients. This undisputedly occurred
prior to any grievance being filed by Kassab. Because the claims asserted pre-date the filing or
15 See Jury Verdict, Question 6, Ex. A.
21
participation in any grievance by Kassab, this lawsuit cannot have been “predicated upon the filing
of a Grievance,” and Rule 17.09 does not apply. The Court should reject Kassab’s arguments.16
3. The judicial proceedings privilege has no application to the facts of this case.
The judicial proceedings privilege applies only to communications “in the kdue course of a
judicial proceeding,” and the privilege protects against a claim for libel or slanlder. Landry’s, Inc.
v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021). Given that tche basis of Pohl’s claim
is not a communication made in the due course of a judicial proceesding, and Pohl has not sued
Kassab for libel or slander, the judicial proceedings privilege does not apply.
Kassab argues that even though Pohl’s claims do not assert claims for libel or slander, the
judicial proceedings privilege should apply because Pohl’s claims arise out of communications.
But even to the extent that Pohl’s claims relate to communications, the gravamen of Pohl’s
complaint is not reputational harm or a theory equivalent to libel or slander. Pohl suffered actual
losses as the result of Kassab’s misappropriation of Pohl’s trade secrets that occurred prior to any
proceeding existing and prior to Kasesab having an attorney–client relationship with a client who
could even initiate a relevant judifcial proceeding.
The judicial proceedyings privilege is not a get-out-jail-free card. Kassab is not free to
engage in tortious condCuct with impunity simply because that wrongful conduct eventually led to
Kassab helping brinag numerous failed judicial proceedings against Pohl. The Court should not
extend the appflication of this privilege to not only a time before the initiation of a judicial
proceedinUg but a time before a relevant attorney–client relationship existed whereby a relevant
judicial proceeding could even be contemplated.
16 See also Pohl’s Rule 166(g) Motion at 12–14, filed Nov. 30, 2022.
22
K. The Court properly allowed Pohl to present evidence of his “actual losses”
suffered as a result of Kassab’s violations of TUTSA (Motion for New Trial Issue #
13 and Motion for JNOV Issue #9(A)).
Pohl suffered losses in the form of attorneys’ fees in multiple unsuccessful separate
proceedings that Pohl may recover as “actual losses” under TUTSA. Kassab akrgues that such
damages are barred and that Pohl should not have been permitted to put forwalrd evidence of his
damages. See Motion for New Trial at 29–34; Motion for JNOV at 27–c32. However, the plain
meaning of “actual damages,” which Pohl is statutorily authorizeds to recover, supports Pohl’s
recovery. Further, the tort-of-another doctrine permits Pohl to recover fees incurred in a separate
proceeding as damages in this case.
The Court should take note that Kassab continues to cite case law in a misleading fashion
despite being on notice that he had falsely characterized cases in his briefing with the Court. For
example, Kassab cites LaCore Enterprises, LLC v. Angles, No. 05-21-00798-CV, 2023 WL
2607562, at *9 (Tex. App.—Dallas Mar. 23, 2023, no pet.) to suggest that Texas courts have
rejected the idea that “attorneys’ feees in other cases [can] be recovered as actual damages in a
trade secret claim.” See Motion fofr New Trial at 31; Motion for JNOV at 28–29 (emphasis added).
But that case did not deal wiyth attorneys’ fees from “other cases,” it dealt with the uncontroversial
proposition that fees frCom the same proceeding are not damages. LaCore, 2023 WL 2607562, at
*9. Kassab was tolda that his use of this case was inaccurate, yet he continues to cite it to the Court
in a misleading fmanner.17
PoUhl’s damages are recoverable under two alternative theories. First, the fees from other
cases constitute “actual losses” under TUTSA. Contrary to Kassab’s suggestion that these
damages are rigidly limited to specific categories, a “‘flexible and imaginative’ approach is applied
17 See Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment at 10 n. 6, filed Sept. 22,
2023.
23
to the calculation of damages in misappropriation-of-trade-secrets cases.” Sw. Energy Prod. Co.
v. Berry-Helfand, 491 S.W.3d 699, 710 (Tex. 2016). Second, Pohl’s damages are also recoverable
under the tort of another doctrine. Kassab relies on non-binding caselaw to suggest this doctrine
does not apply. But he ignores precedent stating otherwise. See Dixon Fin. Skervices, Ltd. v.
Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st Dist.] 2010, pet. dlenied) (“Equitable
principles allow the recovery of attorney’s fees as actual damages whenc a party was required to
prosecute or defend a prior legal action as a consequence of a wrongfsul act of the defendant.”).
Kassab’s recycled arguments on damages have alreadys been made to the Court. Pohl’s
prior briefing addresses the arguments in more detail.18 The Court should reject Kassab’s
arguments on this issue, many of which rely on twisting or ignoring applicable case law that
Kassab is aware of through prior briefing in this case.
L. There is sufficient evidence to supaport the jury’s various calculations of damages
(Motion for New Trial Issues ##M 14–15 and Motion for JNOV Issue #9(B)).
Kassab argues that there was “oinsufficient evidence” and “no evidence” to support the
jury’s findings of market value ancd development cost damages and that the Court improperly
allowed Pohl to provide opinion testimony. See Motion for New Trial at 34–37; Motion for JNOV
at 32–34. Even assuming Kassab’s objections on these issues were preserved at trial, Kassab’s
arguments fall short. The record supports the jury’s damages findings, and Pohl’s limited opinion
testimony on damcages was proper.
1. The jury’s findings of market value damages or reasonable royalty damages are
Usupported by evidence.
The jury heard testimony and saw evidence that supported its award of reasonable royalty
or market value damages. Kassab contends that the only evidence before the jury of the so-called
18 See, e.g., Pohl’s Reply in Support of His Motion for Entry of Final Judgment at 9–12, filed Sept. 18, 2023; see also
Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment at 4–5, filed Sept. 22, 2023.
24
market value of Pohl’s trade secrets was evidence of the “purchase price” Kassab paid to obtain
them. See Motion for New Trial at 35; Motion for JNOV at 33. But that is not true.
Pohl provided competent opinion testimony as the owner of the relevant property on the
market value of his trade secrets. His opinion was informed by not only the cost tok Pohl to obtain
the relevant trade secrets, but also multiple attempts to purchase the property alnd an actual sale of
the property that was contemporaneous with the misappropriation of Pohlc’s trade secrets. See Red
Sea Gaming, Inc. v. Block Investments (Nevada) Co., 338 S.W.3d 5s62, 572–73 (Tex. App.—El
Paso 2010, pet. denied) (showing it is appropriate for a propesrty owner to consider unaccepted
offers to purchase the property, knowledge of the relevant market, and the price at which the sale
of property occurred).
Contrary to Kassab’s assertions, it was proper for Pohl to provide this opinion testimony
under the property owner rule. Binding preceadent confirms the property owner rule applies even
when dealing with intangible property. See Custom Transit, L.P. v. Flatrolled Steel, Inc., 375
S.W.3d 337, 352 (Tex. App.—Housteon [14th Dist.] 2012, pet. denied) (citations omitted). And
though it may be more difficult tof put a value on Pohl’s trade secrets, that is not a per se bar to his
opinion testimony. See Jabryi v. Alsayyed, 145 S.W.3d 660, 667 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (allowiCng a property owner to testify regarding the market value of business
goodwill, which is intangible property). Pohl was properly permitted to present evidence on this
issue, and the jfufry was free to weigh the bases for his opinions.
TUhe jury also saw documentary evidence relevant to the price a willing buyer would pay
for Pohl’s trade secrets. The Favre affidavit discussed multiple offers to buy Pohl’s trade secrets
and that the information could be sold multiple times. The jury also saw a document a federal
judge described as a contract to purchase Pohl’s trade secrets. That document not only had a lump
25
sum price, but it also provided for continuing payments under the contract. Finally, the jury also
heard testimony from Kassab personally that went to the value he placed on Pohl’s trade secrets at
the time he purchased the trade secrets.
2. The jury’s development cost damages are supported by evidence. k
Kassab suggests that no evidence exists to support the jury’s award ofl development cost
damages, but he ignores the multiple categories of evidence admitted at trcial. See Motion for New
Trial at 35–36; Motion for JNOV at 33–34. One such category is Kasssab’s testimony and related
evidence that Kassab proffered to suggest that he did not need to purchase Pohl’s trade secrets.
The jury was permitted to weigh this evidence, and the evidence is sufficient to support the jury’s
award of development cost damages.
Kassab testified and claimed that he did not need to purchase Pohl’s trade secrets because
he could independently gather contact information for Pohl’s clients. The jury heard and saw
evidence concerning the time Kassab’s office expended to compile contact information to send a
small number of initial advertisemenet letters in 2015. The jury also saw evidence of the hourly
rates for Lance and David Kassabf.
The jury was free toy look at this evidence and conclude that if Kassab had the names of
Pohl’s clients, but notC the contact information, $200,000 was the value of the avoided costs to
Kassab. He avoideda the need to manually research and compile contact information (the jury saw
evidence that thfis required sending the same letter to multiple alternative addresses) by instead
obtainingU accurate contact information from Pohl’s attorney–client contracts. Even if Kassab
preserved this objection on this issue, he failed to demonstrate that the jury’s finding is unsupported
by the trial record.
26
M. The jury properly found that Kassab engaged in a willful and malicious
misappropriation of Pohl’s trade secrets (Motion for New Trial Issue #16).
Contrary to Kassab’s assertion, the jury unanimously found that Kassab engaged in a
“willful and malicious” misappropriation by “clear and convincing evidence.”19 And the
testimony and documentary evidence shown to the jury at trial constituted “clearr and convincing
evidence of outrageous, malicious, or otherwise reprehensible conduct” by Kassab that supports a
finding of exemplary damages based on malice.20 See Horizon Health Croirp. v. Acadia Healthcare
Co., Inc., 520 S.W.3d 848, 867 (Tex. 2017). D
Kassab dismissively suggests that there are only two castegories of evidence relevant to this
issue. While there was ample evidence on these issues prresented at trial, one of the categories of
evidence that Kassab highlights demonstrates that the evidence supports the jury’s finding of
malice. Contrary to what Kassab may think, the levidence showing that Kassab filed “a grievance
against Pohl and cop[ied multiple] news ouMtlets and the District Attorney” is highly probative of
malice. See Motion for New Trial at 39o.
First, Kassab downplays thec scope of his conduct. While Kassab may have personally only
filed a single grievance against Pohl, he was involved in drumming up seven failed grievances
against Pohl. Even after Kassab was aware that the grievances Kassab assisted in bringing were
without merit, Kassab filed another grievance that reasserted previously rejected allegations of
wrongdoing againcst Pohl.
Not content with attacking Pohl through the grievance process and court system, Kassab
also sought to destroy Pohl and his reputation publicly and within the professional community of
Texas lawyers. After filing a meritless grievance based partially on conduct already found to not
19 See Jury Verdict, Question 17 (instructing jury that to respond “Yes,” jury’s “answer must be unanimous.”), Ex. A.
20 Here, for the relevant conduct, Mr. Kassab acted on behalf of his firm at all times. Thus, the evidence is equally
applicable to Mr. Kassab and his law firm.
27
constitute ethical violations, Kassab took the unprecedented step of publicizing the unreviewed
grievance to the Texas Attorney General, the Harris County District Attorney, the Houston
Chronicle, The Texas Lawyer, and a then-candidate for Texas State Bar President. The jury saw
this evidence and heard about the unprecedented nature of Kassab publicizing a gkrievance in this
manner. This is evidence the jury could view as clearly demonstrating lKassab wanted to
improperly inflict unnecessary pain, inconvenience, public shame, and mconetary cost on Pohl.
Kassab argues the “evidence is further insufficient because Poshl ‘adduced no evidence that
[Kassab] caused [Pohl] an injury independent of and qsualitatively different than the
misappropriation itself.’” Motion for New Trial at 40 (alterations in original) (citation omitted).
But the Texas Supreme Court said that “this type of malice might exist ‘where the employer
circulates false or malicious rumors about the employee before or after the discharge ... or actively
interferes with the employee's ability to find otaher employment.’” Safeshred, Inc. v. Martinez, 365
S.W.3d 655, 662 (Tex. 2012), as corrected (June 8, 2012) (cleaned up). That is analogous to the
situation here. Kassab sought to infliect reputational harm on Pohl outside the litigation process.
Other evidence showed tfhe jury that Kassab was willing to go to great lengths to target
Pohl. For example, undery the guise of a phony expert witness agreement, Kassab secretly
purchased Pohl’s clienCt files and trade secrets for his own benefit. He then lied saying it was not
a purchase agreement—including lying to the jury’s faces—despite a federal judge saying it was
a purchase agrefefment. The jury also saw that, in that agreement, Kassab was willing to indemnify
Favre agaUinst claims related to the disclosure of Pohl’s client information. This demonstrated
Kassab’s knowledge of the breach of client confidentiality and duty of confidentiality owed by
Favre when he acquired Pohl’s trade secrets.
28
The jury saw evidence of Kassab’s conduct towards Pohl beyond merely misappropriating
Pohl’s trade secrets. Kassab attacked Pohl and tried to destroy him professionally and personally.
The jury was empowered to consider this, and other evidence, and form a firm conviction that
Kassab acted with malice towards Pohl when he misappropriated Pohl’s trade secrkets.
N. The jury properly awarded exemplary damages against KassabC (lMotion for New
Trial Issue #17 and Motion for JNOV Issue #12). 
The jury unanimously awarded Pohl exemplary damages againr ist Kassab after receiving
considerable evidence regarding the blatant and offensive nature Dof Kassab’s wrongful conduct.
Kassab’s argument otherwise ignores the testimony at trial asnd impermissibly assumes that the
jury ignored the Court’s instructions to only award exemplrary damages if the jury were unanimous
in finding such damages proper.
Pohl previously responded to Kassab’s arglument that the jury was not unanimous with the
necessary findings to support an award of Mexemplary damages. See Pohl’s Reply in Support of
His Motion for Entry of Final Judgmeont at 2–8, filed Sept. 18, 2023; see also Pohl’s Reply to
Kassab’s Post-Hearing Letter on Pochl’s Motion for Entry of Judgment at 1–4, filed Sept. 22, 2023.
Pohl will not reiterate those recently briefed issues here and instead relies on his prior briefing.
Kassab’s factually sufficiency arguments also fall short. The jury’s award of exemplary
damages complies with the statutory requirement that exemplary damages not exceed twice the
amount of actualc damages. Here, the jury found that Pohl suffered over $2 million in actual
damages, so t o he jury’s award of $3 million in exemplary damages is proper.21
The remainder of Kassab’s factual argument relies on him making the conclusory assertion
that “the jury probably considered improper items of alleged damages in assessing exemplary
damages.” See Motion for New Trial at 41. But Kassab ignores evidence that went to multiple
21 See Jury Verdict, Question 7, Ex. A.
29
factors relevant to an award of punitive damages, and he ignores the potential scenario where the
jury simply disagreed with him on what the evidence at trial suggested. For example, Kassab does
not give any weight to the evidence at trial that showed Kassab’s malice. See supra Part IV(M).
The jury saw evidence that despite the various persons involved, Kassab bore perskonal culpability
for the wrongful conduct as the person orchestrating the conspiracy against Pohll. Kassab also lied
to the jury by misrepresenting the nature of his contract to purchase Pohl’cs trade secrets.
Finally, the jury saw other evidence relevant to establishing thast Kassab’s conduct offended
a public sense of justice and propriety. Kassab holds himself oust as someone who upholds ethical
rules and ensures lawyers act honestly. He proudly professes that he is aware of the ethical duties
of lawyers. The jury saw this evidence, and they also saw evidence of Kassab acting unethically
and deceitfully—he improperly accessed another lawyer’s confidential client information—in
orchestrating a scheme to misappropriate Pohal’s trade secrets and harass Pohl personally.
Kassab’s suggestion that none of the evidence supported the factors weighed in awarding
exemplary damages is belied by the etrial record. The jury was well within its rights to find that
the record supported an award off $3 million in exemplary damages against Kassab.
O. Pohl’s conspiracyy claim was not preempted (Motion for New Trial Issue #18 and
Motion for JNOV Issue #11).
The Court has previously ruled that Pohl’s conspiracy claim is not preempted. Kassab
argues that TUTScA conflicts with and preempts Pohl’s conspiracy claim. See Motion for New
Trial at 41–43; Motion for JNOV at 35–36. Kassab’s argument is inconsistent with his position
that proportionate responsibility applies to the TUTSA claim, and he does not address that
inconsistency. Kassab’s argument was rejected by the Court before, and the Court should reject it
again.
30
As discussed in Pohl’s prior briefing,22 after Texas adopted TUTSA, Texas trial courts
continued to submit TUTSA and conspiracy claims to the jury. This is because conspiracy, like
proportionate responsibility, does not provide a conflicting remedy that is preempted under
TUTSA. Pohl’s TUTSA claim provides the remedy—damages for misappropriatikng Pohl’s trade
secrets. Conspiracy makes the same remedy apply jointly and severallly among multiple
defendants. That is no more objectionable or inconsistent with TUTSAc than the proportionate
responsibility statute—which Kassab argues is applicable—that smodifies the remedy so a
defendant is responsible for a percentage of the harm. s 
Because there is no conflict between TUTSA and the joint and several liability imposed by
a finding of conspiracy, the Court properly submitted Pohl’s conspiracy claim to the jury. Kassab’s
arguments otherwise are inconsistent with his position on the applicability of proportionate
responsibility, and the Court should deny Kaassab’s request for a new trial or to set aside the
judgment on these grounds. 
P. The Court properly deniede Kassab’s request to designate non-relevant persons as
responsible third parties (Motion for New Trial Issue #19).
The Court properly denied Kassab’s request to designate five additional persons as
responsible third parties after Kassab failed to plead sufficient facts demonstrating their liability.
Despite being given the opportunity to re-plead and satisfy his pleading burden, Kassab chose not
to comply with thce legal standard to designate these persons as responsible third parties, and the
Court properly denied his request to designate additional responsible third parties as a result.
Kassab first attempted to designate the five people at issue as responsible third parties in
early 2022.23 Pohl objected because Kassab failed to plead sufficient facts showing the alleged
22 See Pohl’s Reply in Support of His Motion for Entry of Final Judgment at 13–15, filed Sept. 18, 2023; see also
Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment at 6, filed Sept. 22, 2023.
23 See generally Kassab’s Motion to Designate Responsible Third Parties, filed May 13, 2022.
31
responsible third parties were responsible for the harms underlying Pohl’s claims.24 The 189th
District Court agreed with Pohl’s objections and denied Kassab’s motion.25 Later that year, Kassab
filed two supplemental motions to designate responsible third parties. Pohl did not oppose
designating certain persons listed in Kassab’s second supplemental motion as reksponsible third
parties. However, in Kassab’s first supplemental motion, Kassab sought to dlesignate the same
five people as responsible third parties that were at issue in his first moticon and that Kassab now
complains about in his Motion for New Trial. s
Pohl filed a response in opposition to Kassab’s second attsempt to designate the five relevant
people as responsible third parties.26 Despite the 189th District Court finding that Kassab failed
to meet the pleading standard—which required Kassab to plead sufficient facts showing that the
alleged responsible third parties were responsible for the harms underlying Pohl’s claims—Kassab
pled the same facts. Kassab tried to disguisea this fact by reordering and lightly paraphrasing or
modifying the allegations.27 In such circumstances, it was not an abuse of this Court’s discretion
to deny Kassab’s Supplemental Motieon to Designate Responsible Third Parties.
The Court’s decision to dfeny Kassab’s motion was proper on other grounds as well. For
example, the limitations periyods on Pohl’s torts claims passed with respect to the persons at issue,
and Kassab failed to coCmply with his obligations “to timely disclose that the[se] person[s] may be
designated as a responsible third party under the Texas Rules of Civil Procedure.” See TEX. CIV.
PRAC. & REM. fCf ODE § 33.004(d). Because Kassab’s responses to Pohl’s requests for disclosure
24 See generally Pohl’s Objection to Kassab’s Motion to Designate Responsible Third Parties, filed May 31, 2022.
25 See Court Order, dated Oct. 31, 2022 (denying Kassab’s first motion to designate responsible third parties).
26 See generally Pohl’s Objection to Kassab’s Supplemental Motion to Designate Responsible Third Parties, filed Nov.
30, 2022.
27 See id. at 3–5 (discussing how Kassab failed to plead any new substantive factual allegations).
32
did not include the necessary information, this was an independent basis to not designate the
persons at issue as responsible third parties. See In re Dawson, 550 S.W.3d 625, 630 (Tex. 2018).
Q. The Court properly exercised its discretion to not abate this case (Motion for New
Trial Issue #20).
In the fall of 2022, Kassab filed his Motion to Abate. The 189th Districrt Court correctly
found that abatement of this case was not proper or necessary. Kassab then sought reconsideration
of that ruling from this Court, and the Court exercised its discretion anrdi denied Kassab’s request
to abate this case. Kassab’s arguments for why this lawsuit shoulDd have been abated pending the
resolution of another lawsuit were not squarely presenteds in his prior motion requesting
abatement.28 Even if Kassab’s arguments were not waiverd, the Court properly chose not to abate
this case before,29 and Kassab’s two current arguments do not demonstrate it was an abuse of this
Court’s discretion to deny his request for abatemelnt.
First, Kassab claims that “the outcomMe of Cheatham could alter the course of this litigation
because if it resulted in a judgment agaoinst Pohl for barratry, Pohl could not have argued that all
the barratry claims brought against hcim were frivolous.” Motion for New Trial at 45. But barratry
is not a defense to Pohl’s claims. In each of the other cases and grievances alleging barratry,
Kassab failed to obtain a finding of barratry against Pohl. But even if there were eventually a
liability finding against Pohl in Cheatham, it would not have changed Pohl’s right to recover on
his claims in this clawsuit.30
Second, Kassab argues that abatement was proper because Pohl’s damages in this case
involved Pohl’s attorneys’ fees from Cheatham, “[b]ut if Pohl had been found liable for barratry
28 Compare Motion for New Trial at 44–45, with Kassab’s Motion to Abate Trial Setting at 1–5, filed Sept. 6, 2022,
and Kassab’s Motion to Reconsider or Rule at 2, filed Feb. 23, 2023,
29 See Plaintiff’s Response to Kassab’s Motion to Abate Trial Setting, filed Sept. 15, 2022; see also Plaintiffs’
Response in Partial Opposition to Kassab’s Motion to Reconsider or Rule at 3, filed March 8, 2023.
30 See also Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion, filed Aug. 15, 2023; Pohl’s Rule
166(g) Motion at 2–8, filed Nov. 30, 2022.
33
in Cheatham, then he would have been required to pay attorney’s fees to the plaintiffs in that case.”
See id. This, again, has no materiality to the issues in this case. Kassab’s hypothetical world, in
which Pohl paid third parties for their attorneys’ fees in Cheatham, does not impact whether
Kassab is liable in this lawsuit for Pohl’s attorneys’ fees in Cheatham. Kassab isk conflating two
separate categories of attorneys’ fees. This does not provide a basis for abatelment and certainly
does not establish that the Court abused its discretion in denying Kassab’cs request for abatement.
R. Pohl did not waive the attorney–client privilege throughs offensive use, and he
presented proper evidence of his fees (Motion for New Trial Issues #21 & #23).
Kassab makes two types of arguments related to prsivilege and attorneys’ fees. First,
Kassab argues that the offensive use doctrine applies, anrd Pohl waived privilege with respect to
multiple categories of privileged information related to Billy Shepherd. Motion for New Trial 45–
47. Second, Kassab argues that Pohl’s evidence alt trial concerning attorneys’ fees was conclusory
and improperly redacted. Id. at 49–54. KaMssab’s arguments do not survive scrutiny.
As a threshold point, Kassab’s ocaselaw recognizes that “attorney invoices are routinely
redacted when offered into evidencce to protect attorney–client and work-product privileges.”
KBIDC Investments, LLC v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 WL 5988014, at *22 (Tex.
App.—Dallas Oct. 9, 2020, pet. denied). See Motion for New Trial at 53 (citing KBIDC). Despite
citing this case law, Kassab wrongly suggests that such redactions are per se inappropriate.
1. Kassacb did not establish the applicability of offensive use waiver.
Pohl doid not engage in offensive use that could waive the attorney client privilege because
he did not improperly use or take advantage of privileged materials to support his claims. The
Texas Supreme Court established a three-part test for offensive use waiver that required Kassab to
establish (1) Pohl sought affirmative relief that implicated privileged materials; (2) the withheld
privileged materials would be outcome determinative; and (3) disclosure of the privileged
34
materials is the only way to obtain the evidence. See Republic Ins. Co. v. Davis, 856 S.W.2d 158
(Tex. 1993); see also In re Microvast, Inc., No. 01-18-00049-CV, 2018 WL 4131068, at *5 (Tex.
App.—Houston [1st Dist.] Aug. 30, 2018, no pet.).
Kassab never established the three relevant factors to show offensive usek waiver. Thus,
the Court properly declined to compel the production of privileged materials.l It is worth noting
that Mr. Shepherd became a witness in this case at Kassab’s request. Kcassab subpoenaed Billy
Shepherd’s deposition and documents in this case and then designasted Mr. Shepherd as a trial
witness in November 2022. Mr. Shepherd complied with Kassabs’s subpoena—he produced nearly
a half million pages of documents and was deposed at Kassab’s request. Kassab was not happy
with the voluminous information he requested, so he filed a motion to compel.31
Kassab wanted the 189th District Court to overrule privilege objections, require the
production of additional documents, and requaire the production of unredacted invoices. But the
record was clear that Kassab sought to pierce privilege to obtain discovery about the mental
impressions of his opposing counsel ein a different lawsuit and engage in a fishing expedition in
the hopes that privileged communfications and documents would be relevant to his defenses. Pohl
responded and pointed out tyhat Kassab failed to carry his burden to establish the applicability of
the offensive use doctrCine.32 This Court agreed when it properly rejected Kassab’s prior request
to reconsider this ruling.
Kassabf aflso failed to demonstrate that the offensive use doctrine applied at trial. Redaction
of invoicUes is common, and Kassab could not articulate any specific examples of over-redaction
31 Kassab’s Motion to Compel Testimony & Documents Pursuant to the Offensive Use Doctrine, filed Sept. 20, 2022.
32 See Plaintiffs’ Response in Opposition to the Kassab Defendants’ Three New Motions to Compel, at 7–16, filed
Sept. 27, 2022.
35
to the Court that were inappropriate. See KBIDC Investments, 2020 WL 5988014, at *22. As a
result, the Court properly allowed Pohl to submit appropriately redacted invoices at trial.
2. Pohl’s evidence of attorneys’ fees was proper and factually sufficient.
Kassab argues that Pohl presented insufficient evidence of attorneys’ fees ikn this lawsuit at
trial because Pohl used redacted invoices, and Kassab contends that certain exlpert testimony was
conclusory. The issue of redacted invoices was discussed at trial, acnd the Court found the
redactions appropriate. Kassab’s other argument is his unsupportsed assertion that the expert
testimony supporting fees was conclusory. Neither argument has merit.
Kassab cherry-picked redacted entries from Pohl’s invoices, but he did not demonstrate
that any such redactions were material or improper. He also does not account for the fact that
Pohl’s attorneys’ fees expert applied a blanket discount to the fees reflected in the redacted
invoices. In addition to excluding certain invoice entries entirely, in reaching an opinion on the
amount of reasonable attorneys’ fees, Pohl’s expert applied a 10% discount to the total amount of
fees to account for any unnecessarye or unrecoverable entries on the fee invoices that were not
otherwise removed. To the extenft that some entries were arguably over-redacted, such an issue is
harmless when a substantialy blanket deduction is applied like it was here. For the same reason,
although the conversioCn and TUTSA claims were intertwined, any time entries that advanced only
the conversion claima were resolved by this blanket, catch-all deduction.
Finally, fKassab’s contention that Mr. Zavitsanos’s testimony was conclusory is without
evidentiaUry support. When Mr. Zavitsanos’s testimony was fresh in the Court’s recollection, the
Court found his testimony sufficient to submit the issue of attorneys’ fees to the jury. Kassab’s
argument to the contrary lacks any evidentiary support. Pohl contends that the record will show
that Mr. Zavitsanos’s testimony was not conclusory and that he provided “opinion testimony about
36
the services [he] reasonably believes will be necessary to defend the appeal and a reasonable hourly
rate for those services.” See Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020).
Additionally, the case law that Kassab cites is inapplicable to the circumstances of this
case. Kassab cites Desio v. Del Bosque, No. 05-21-00022-CV, 2022 WL 50002k5 (Tex. App.—
Dallas Feb. 18, 2022, no pet.) on the issue of conclusory evidence. Motion folr New Trial at 53.
But that case dealt with a fee affidavit where the attorney “did not specifyc the amount of time any
person spent on particular tasks and no billing records were submitteds.” Desio, 2022 WL 500025,
at *2. At trial, Pohl provided precisely this type of evidence to sthe jury. The Court should reject
Kassab’s unsupported objection to the sufficiency of the evidence on attorneys’ fees.
S. The 189th District Court properly dismissed Kassab’s counterclaim for civil
barratry (Motion for New Trial Issue #22).
Before this case was transferred to the lCourt, Kassab asserted counterclaims for civil
barratry against Pohl. Despite asserting coMunterclaims for barratry, Kassab tried to withhold the
identity of who assigned him barratry oclaims—and thus, he withheld information on who Pohl
allegedly committed barratry againsct. After seeking to compel production of this basic information
about Kassab’s counterclaims, Pohl learned that Kassab’s counterclaims were assigned claims
from Kassab’s clients, and those same claims were also asserted in a separate still-pending lawsuit.
Once Pohl learned that the counterclaims were the same claims asserted in another lawsuit,
he quickly discovcered that there was already a judgment in his favor on those claims at the trial
court level, although the claims were still part of an ongoing appeal. Despite his duties as a lawyer
in both this lawsuit and the other lawsuit involving the same barratry claims, Kassab did not notify
the courts involved of his duplicative assertion of the barratry claims in a separate lawsuit. After
uncovering Kassab’s inappropriate behavior with these counterclaims, Pohl moved for summary
37
judgment on multiple grounds, and the 189th District Court properly dismissed Kassab’s
counterclaims.33
First, it was undisputable that Kassab’s counterclaims were the very same claims as those
resolved by prior final judgments on the merits. Res judicata applies to such claimks, and the prior
judgments dismissing those barratry claims precluded Kassab from re-litigatinlg them through his
counterclaim in this lawsuit. Kassab’s argument otherwise relies on a ccase that “addressed the
issue of whether res judicata can bar a subsequent suit on a cause of acstion that was not recognized
until after judgment was rendered in the first suit.” Marino v. sState Farm Fire & Cas. Ins. Co.,
787 S.W.2d 948, 949 (Tex. 1990). That has no application to the facts of this case, where claims
existed and were directly ruled on in a prior proceeding.
Second, Kassab argues that limitations on the counterclaims were tolled by section 16.069
of the Civil Practice and Remedies Code. Tahis issue should not be reached because the claims
were barred by res judicata. But even if the Court reaches this issue, the counterclaims do not
meet the requirements of section 16.0e69 because they do not arise out of the same transaction or
occurrence as Pohl’s claims, andf Kassab did not give fair notice of the facts giving rise to the
counterclaims within the 30y-day period prescribed by section 16.069. Kassab did not give fair
notice of the claims inC part because he concealed the identity of who assigned him the claims to
avoid disclosing tha a t his claims had been asserted and ruled on against him in a separate lawsuit.34
Third, af fclaim for civil barratry is a punitive statutory claim that is not expressly assignable.
Kassab pUrocured the assigned claims from his then-current clients to evade the statute of
33 See Pohl’s Motion for Summary Judgment on Defendants’ Counterclaims, filed Dec. 7, 2021; see also Pohl’s Reply
in Support of His Motion for Summary Judgment on Defendants’ Counterclaims, filed Feb. 4, 2022.
34 This issue is discussed in more detail in the original briefing. See Pohl’s Motion for Summary Judgment on
Defendants’ Counterclaims at 11–12; see also Pohl’s Reply in Support of His Motion for Summary Judgment on
Defendants’ Counterclaims at 6–7.
38
limitations and in violation of ethical rules concerning attorney–client transactions. As authorized
by the Texas Supreme Court, the 189th District Court was empowered to refuse to recognize the
assignments, as “assignments may be invalidated on public policy grounds.” See Sw. Bell Tel. Co.
v. Mktg. on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010); see also PPG Indus., Inc. vk. JMB/Houston
Centers Partners Ltd. P’ship, 146 S.W.3d 79, 87 (Tex. 2004) (“[T]he assignabillity of most claims
does not mean all are assignable; exceptions may be required due to equicty and public policy.”).
Kassab’s counterclaims for barratry were barred for multiple sreasons. After reviewing the
evidence submitted by the parties, the 189th District Cousrt correctly dismissed Kassab’s
counterclaims. That ruling should not be disturbed now, after trial, and after a jury reached a
verdict.
V. CONyCLUSION
For the foregoing reasons and the reasons stated in Pohl’s prior briefing—which is
incorporated fully herein by reference—Plaintiffs Michael Pohl and Law Offices of Michael A.
Pohl respectfully request that the Ceourt deny Kassab’s Motion for New Trial and Motion for
JNOV. f
39
Dated: February 2, 2024 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 2nd day of February, 2024.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
40
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84110431
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to MNT JNOV t
Status as of 2/2/2024 4:54 PM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Andrew Johnson ajohnson@Bthompsoncoe.com 2/2/2024 4:44:54 PM SENT
Benjamin Ritz britz@thnompsoncoe.com 2/2/2024 4:44:54 PM SENT
Murray JFogler mfoglielr@foglerbrar.com 2/2/2024 4:44:54 PM SENT
Murray Fogler mfogler@fbfog.com 2/2/2024 4:44:54 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Dale Jefferson 10607900jefferson@mdjwlaw.com 2/2/2024 4:44:54 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 2/2/2024 4:44:54 PM SENT
Kevin Graham Cain 2O4012371 cain@mdjwlaw.com 2/2/2024 4:44:54 PM SENT
Todd Taylor y ttaylor@jandflaw.com 2/2/2024 4:44:54 PM SENT
Scott M.Favre o scott@favrepa.com 2/2/2024 4:44:54 PM SENT
Lawyer Wade lawyerwade@hotmail.com 2/2/2024 4:44:54 PM SENT
Chris C.Pappas cpappas@krcl.com 2/2/2024 4:44:54 PM SENT
Non-Party Witness Bfilily Shepherd bshepherd@spcounsel.com 2/2/2024 4:44:54 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 2/2/2024 4:44:54 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 2/2/2024 4:44:54 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 2/2/2024 4:44:54 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 2/2/2024 4:44:54 PM SENT
Andrea Mendez andrea@kassab.law 2/2/2024 4:44:54 PM SENT
Lance Kassab lance@kassab.law 2/2/2024 4:44:54 PM SENT
David Kassab david@kassab.law 2/2/2024 4:44:54 PM SENT
Nicholas Pierce nicholas@kassab.law 2/2/2024 4:44:54 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84110431
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to MNT JNOV t
Status as of 2/2/2024 4:54 PM CST i
Case Contacts D
Nicholas Pierce nicholas@kassab.law 2/2/2024 4:44:54 PM SENT
Lance Kassab eserve@kassab.law 2/2/2024 4:44:54 PM SENT
D Kassab david@kasBsab.law 2/2/2024 4:44:54 PM SENT
L Kassab lance@knassab.law 2/2/2024 4:44:54 PM SENT
Kelly Skelton recepitlion@kassab.law 2/2/2024 4:44:54 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/2/2024 4:44:54 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
David Kassab O david@kassab.law 2/2/2024 4:44:54 PM SENT
Harris Wells y hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Harris Wells o hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT"
68,2024-02-02,RSP,Pohl,Response to Mtn to Modify Judgment,"Pohl's Response to Kassab's Motion to Modify, Correct, or Reform Judgment, arguing all arguments are recycled and rejected, the jury properly awarded exemplary damages unanimously (Q17 answered per unanimity instructions, Q19 predicated on unanimous Q17, Kassab waived by not objecting before discharge), attorneys' fees from separate proceedings are recoverable actual losses under TUTSA's broad 'actual loss' definition and tort of another doctrine, damages are not duplicative (TUTSA expressly authorizes both actual loss and unjust enrichment), conspiracy is not preempted (it is a rule of joint liability, not an independent tort or conflicting remedy), and great-weight-and-preponderance arguments are meritless","Response filed February 2, 2024, opposing Kassab's Motion to Modify, Correct, or Reform Judgment. Filed simultaneously with Pohl's response to the JNOV and New Trial motions. Incorporates prior briefing by reference.",POST-2,N/A,Phase 5,2024-02-02_RSP_Pohl-Response-to-Kassab-Mtn-to-Modify-Judgment_FILED.pdf,"Denial of Kassab's Motion to Modify, Correct, or Reform Judgment, and any other relief to which Pohl is entitled","2/2/2024 4:20 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 84108335
By: Patricia Gonzalez
Filed: 2/2/2024 4:20 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
POHL’S RESPONSE TO KASSAB’S
MOTION TO MODIFY, CORRECT, OR REFsORM JUDGMENT
Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC (collectively “Pohl”)
respond in opposition to Defendants Lance Christopher Kassab’s and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm’s (collectively “Kassab”) motion to modify, correct, or reform
the judgment (“Motion to Modify”). a
I. Summary. 
The Motion to Modify primareily consists of recycled arguments that Kassab has previously
made and that the Court has prefviously rejected. On that ground alone, the motion should be
denied. y
Substantively, CKassab re-argues in shotgun fashion that all of the damages found by the
jury and awarded bay the Court are not recoverable for various erroneous reasons. As Pohl has
previously brieffed at length, however, both the actual damages and exemplary damages are
reasonablUe and fully supported by the verdict, the evidence, and the law. For these and other
reasons that we discuss next, the Motion to Modify should be denied.
II. The Jury Properly Awarded Exemplary Damages, and Pohl is Entitled to Recover
Them.
Kassab contends that the award of exemplary damages is unsupported and improper
because the jury allegedly did not unanimously answer “Yes” in response to Question 17. See
Motion to Modify, p. 4. But that is not true. On its face, the jury charge shorws that the jury
unanimously answered “Yes” to Question 17 after being instructed to only answer the question
“Yes” if the finding was unanimous. See Charge of the Court, p. 24. Irfi Kassab believed that the
certificate of unanimity was in conflict with the answers containDed in the jury verdict, he was
obligated to request that the jury be polled but did not do so. s In short, there is no conflict in the
answers, but even if there were, Kassab waived it. r
“The jury is presumed to have followed the court’s instructions.” Columbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 86l2 (Tex. 2009). When possible, a court “must”
“reasonably construe the [jury’s] findings inM a way that harmonizes them.” USAA Tex. Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 509 (Teox. 2018); Bender v. S. Pac. Transp. Co., 600 S.W.2d 257,
260 (Tex. 1980). Failure to reconccile answers in favor of the jury’s verdict when possible is
reversible error. Luna v. Southern Pacific Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987). Even
where the jury findings are ambiguous or unclear, the court must try to interpret the findings so as
to uphold the verdict.  Jackson v. U.S. Fid. & Guar. Co., 689 S.W.2d 408, 412 (Tex. 1985). When
a party contends cthat a jury’s award of exemplary damages is not supported by a unanimous jury
finding, it is reviewed as a “no evidence” point. Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.).
Here, it is clearly apparent that the jury made the required unanimous findings to support
the award of exemplary damages. First, the fact that the jury answered “Yes” in response to
Question 17 in-and-of-itself shows that its finding was unanimous because the Court instructed
the jury that it could only answer “Yes” to Question 17 if its answer was “unanimous.” See Charge
of the Court, p. 24. Second, the fact that the jury awarded exemplary damages in response to
Question 19 also shows that the jury answered Question 17 unanimously. Id. at p. 26. The Court
instructed the jury that it could only answer Question 19 if it “unanimously anskwered ‘Yes’ to
Question No. 17 or Question No. 18.” Id. The jury did not answer Question 1l8. Id. at p. 25. But
the jury answered Question 19 and found that an award of exemplary cdamages of $3,000,000
against Kassab was warranted. Id. at p. 26. Given the Court’s instrucstions, the jury could not have
answered Question 19 unless it unanimously answered “Yes” tos Question 17. See Bruce v. Oscar
Renda Contracting, 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet. filed) (“Because the jury
was instructed to only answer the gross negligence question, and the exemplary damages award
question if unanimity was reached, we must presume it did so by following the instructions.”).
Kassab’s argument requires the Couart to presume that the jury ignored the Court’s
instructions in response to multiple questions, which would be an improper and impermissible
presumption. Columbia Rio Grande eHealthcare, L.P., 284 S.W.3d at 862 (“The jury is presumed
to have followed the court’s instrufctions.”). Specifically, Kassab’s argument that the jury’s answer
to Question 17 was not unanyimous because the presiding juror appears to have inadvertently failed
to sign the certificate oCf unanimity for the question is belied by the jury’s affirmative answers to
Questions 17 and 19 in accordance with the Court’s instructions.
The Daflflas Court of Appeals confronted this issue in the “pet. denied” case of Stover v.
ADM MilUling Co., No. 05-17-00778-CV, 2018 WL 6818561 (Tex. App.—Dallas Dec. 28, 2018,
pet. denied). The court of appeals was urged to find that the jury’s award of exemplary damages
was not supported “because the findings on the threshold jury question nos. 5 and 6 were not
certified to be unanimous.” 2018 WL 6818561, at *12. But the court of appeals properly rejected
that argument and found that “the evidence is legally sufficient to support the jury’s award of
exemplary damages” because the jury later unanimously answered questions predicated on
unanimous answers to question nos. 5 and 6. See id. The court of appeals held:
[W]e address Holmes and Holmes Law's argument that the evidence wask legally
insufficient to support the jury's award of exemplary damages in jury qeuestion no.
17 because the findings on the threshold jury question nos. 5 and l6 were not
certified to be unanimous. In support of their argument, they point to the verdict
certificate where the jury stated, “Our verdict is not unanimous. Ecleven of us have
agreed to each and every answer and have signed the certificate rbelow.” However,
the record also contains an additional certificate signed by thse presiding juror that
states, ""I certify that the jury was unanimous in answering QDuestion No. 15, 16, 17,
and 18. All 12 of us agreed to each of the answers."" In sjury question nos. 5 and 6,
the jury found Holmes and Holmes Law liable for comsmon law fraud and statutory
fraud. The instructions for those jury questions did not require a unanimous
verdict. However, both jury question nos. 15 (clrear and convincing evidence of
fraud and statutory fraud) and 16 (malice) instructed the jury to answer those
questions “only if [] [they] [] unanimously answered 'Yes' to any part of
Question No. 5 [common law fraud] or if [they] unanimously answered 'Yes'
to any part of Question No. 6 [statutolry fraud] and Question No. 7 [actual
awareness].” Further, jury questioan no. 17 (exemplary damages) instructed
the jury that they should only aMnswer the question “if [they] unanimously
answered 'Yes' to Question 15 or Question No. 16.” The jury is presumed to
have followed the trial court's instructions. See, e.g., Columbia Rio Grande
Healthcare L.P. v. Hawley, 2e84 S.W.3d 851, 862 (Tex. 2009). We conclude the
evidence is legally sufficient to support the jury's award of exemplary damages
in jury question no. 17. Hfolmes and Holmes Law's issue 3.3(a) is decided against
them.
Id. (emphasis added).
Stover is directly on point and directly rejects the argument that Kassab makes now.
Kassab reclies on the “no pet.” case of Redwine v. Peckinpaugh, which is different for many
reasons. 535 S.W.3d 44, 50 (Tex. App.—Tyler 2017, no pet.). In Redwine, the jury had a single
cause of action for defamation before it. Redwine, 535 S.W.3d at 47. While it answered an
exemplary damages question that it was instructed to only answer if unanimous, its answer was
directly in conflict with its certification that the entire verdict was otherwise not unanimous. See
id. at 51–52. The court then polled the jury, something that Kassab did not request here, and
confirmed the lack of unanimity. See id.
As explained in Bruce v. Oscar Renda Contracting, because Redwine dealt with a single
cause of action giving rise to liability, the certification of non-unanimity was in ckonflict with an
award of exemplary damages. 657 S.W.3d 453, 464 (Tex. App.—El Paso 202l2, pet. filed). The
court in Bruce contrasted the facts in Redwine with a set of facts similcar to those in this case,
saying: “We conclude that the jury’s certification at issue here does nsot have the same conclusive
effect as it did in Redwine, given that this jury was permitted tos answer several questions by a 10
to 2 vote, unless otherwise instructed to only answer upon reaching unanimity.” Id. (emphasis
added). In other words, because not all of the verdict needed to be unanimous, a general certificate
of non-unanimity is not in conflict with an award of exemplary damages.
Furthermore, in this case, like in Staover, the jury unanimously answered a question
(Question 19) that was predicated on a unanimous answer to Question 17 after answering Question
17. Like in Stover, the jury here couled not have answered the latter question (Question 19) unless
it unanimously answered the earflier question at issue (Question 17). That was not the case in
Redwine. y
Again, the jury Cis presumed to have followed the Court’s instructions, and the Court “must”
“reasonably construe the [jury’s] findings in a way that harmonizes them.” USAA Tex. Lloyds Co.,
545 S.W.3d at f5f09. Given the jury’s responses to Questions 17 and 19, and the Court’s related
unanimityU instructions, the only reasonable construction of the jury’s findings is that the jury was
unanimous in answering “Yes” to Question 17. Because there is evidence that the jury
unanimously answered all exemplary damages questions, the Court “must” give effect to the jury’s
answers and enter a judgment awarding exemplary damages. See id.; Bender v. S. Pac. Transp.
Co., 600 S.W.2d at 260.
Finally, although no conflict in the jury’s answers exists, Kassab’s failure to raise this issue
before the jury was discharged waived the alleged conflict that Kassab claims nowk. Texas law is
settled that “to preserve error based on fatally conflicting jury answers, partlies must raise that
objection before the trial court discharges the jury.” USAA Texas Lloydcs, 545 S.W.3d 479, 518
(emphasis added) (discussing how Rule 295 requires that potential csonflicts in the verdict should
be resolved by the trial court giving instructions to the jury beforse the jury is dismissed). The party
relying on the alleged conflict to avoid the effect of answers awarding exemplary damages, Kassab
here, has the burden to timely object. Id. at 509 (citing Burbage v. Burbage, 447 S.W.3d 249, 256
(Tex. 2014)).
The rule is the same whether the comaplaint regarding the jury’s answers is that they are
incomplete or that they are in fatal conflict; the objection must be raised before the jury is
discharged in order to afford the triael court the opportunity to correct the error. Id. As further
stated by the Supreme Court of Tfexas in USAA Texas Lloyds:
[Texas Rule of Civyil Procedure] 295 provides the procedure for resolving
incomplete and nonresponsive jury verdicts as well as those containing conflicting
answers. Tex. RC. Civ. P. 295. Addressing incomplete verdicts, we have long held
that a judgment will not be reversed ""unless the party who would benefit from
answers to the issues objects to the incomplete verdict before the jury is
dischargecd, making it clear that he desires that the jury redeliberate on the issues
or that tfhfe trial court grant a mistrial."" Fleet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986);
see also Continental Cas. Co. v. Street, 379 S.W.2d 648, 650 (Tex. 1964) (holding
paUrty failed to preserve error because he ""did not object to the acceptance of the
jury verdict as incomplete, and thus by timely objection afford the trial court the
opportunity, before the jury was discharged, of correcting the error (if such it was)
of accepting the verdict with the issues unanswered""). We conclude that the same
error-preservation requirement applies when a party complains of a judgment
based on conflicting jury answers.
Id. at 519 (emphasis added).
Had Kassab timely raised the alleged conflict prior to the jury being discharged, Rule 295
would have resolved any confusion regarding how many jurors joined in answering Question 17.
That is exactly what happened in Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston
[14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.), where the Fourteenth Ckourt of Appeals
addressed the issue at length as follows: l
When the jury originally returned its verdict, the verdict form shocwed that the jury
had answered “yes” as to Question 1 for Papalia and “yes” as tro Question 2. The
trial court had instructed the jury that it could answer “yes” sto Question 2 only if
all jurors agreed on that answer and only if all jurors had agDreed to answer “yes” in
Question 1 as to Papalia. Despite this instruction, the sju  ry’s verdict certificate
originally showed that only ten jurors had agreed tso all of the jury’s answers
so only ten had agreed to answer Question 1 “yes” for Papalia and to answer
Question 2 “yes,” but, in light of the trial court’sr instructions in Question 2, the
jury’s affirmative answer to Question 2 indicated that the jury had answered
these two questions unanimously. 
After discussing this situation with coulnsel and polling the jury, the trial court
explained to the jury in open court and on the record that the verdict form contained
an ambiguity because the jury was iMnstructed to answer “yes” to Question 2 only if
all jurors agreed to that answer, but the jurors indicated in the verdict certificate
that only ten jurors agreed to thios answer. The trial court then directed the jury to
return to the jury room and clearify on the verdict certificate whether the answer to
Question 2 was unanimous . c. . . The jury later returned with an amended verdict
certificate indicating tfhat the answers to the first two questions were
unanimous and that ten jurors agreed to the answers to Questions 3 through 9 . . .
Papalia argued in thpe JNOV Motion that the trial court should disregard the answer
to Question 2 because only ten jurors agreed to that answer and signed the original
verdict certificate. Though it is true that only ten jurors signed the original verdict
certificate, aafter the jury returned to the jury room, the jury amended the verdict
certificatec to show that all jurors agreed to the answers to the first two questions. In
this contfext, the original verdict certificate does not provide a basis for disregarding
the juory’s answer to Question 2.
Bryan, 542 S.W.3d at 692–93 (emphasis added).
Kassab waived the right to complain about any alleged conflict in the jury’s answers, even
though there is no conflict, by not timely objecting before the jury was discharged. There is no
error in the Court’s judgment.
III. Pohl Is Entitled to Recover His Actual Losses and Damages Under TUTSA.
Kassab requests the Court to reform the judgment to exclude Pohl’s damages that are based
on attorneys’ fees incurred in connection with separate proceedings based on two grounds. First,
Kassab argues that attorneys’ fees are not recoverable under TUTSA. See Motionk to Modify, pp.
5–10. Second, Kassab argues that the attorneys’ fees incurred in connectilon with grievance
proceedings cannot be recovered. Id., pp. 10-11. Neither argument is cocrrect.
A. Pohl’s TUTSA Losses And Damages Are Recoverasble.
Despite having previously asserted the same rejected arguments on multiple prior
occasions, Kassab continues to claim that portions of Pohl’s edamages are not recoverable because
they are based on attorneys’ fees incurred in separate pr u oceedings.1 See Motion to Modify at 5–
11. Kassab was wrong before, and he remains wronng now. It is true that attorneys’ fees typically
do not constitute actual damages when incurrerd in the same lawsuit. But attorneys’ fees from
separate proceedings—incurred as the result of wrongful conduct of the defendant—do constitute
actual damages in a subsequent lawsueit and are recoverable. See, e.g., Akin Gump Strauss Hauer
& Feld, LLP v. National Developfment & Research Corp., 299 S.W.3d 106, 119-22 (Tex. 2009).
Kassab conflates these distinyct scenarios in arguing otherwise.
TUTSA authorizes the recovery of damages, including “actual loss caused by
misappropriation.” a TEX. CIV. PRAC. & REM. CODE § 134A.004(a). On its face, the plain meaning
of “actual loss” fis broad and encompasses consequential losses such as attorney’s fees in separate
proceedings. This broad definition of damages is not surprising because a “‘flexible and
imaginative’ approach is applied to the calculation of damages in misappropriation-of-trade-
1 See, e.g., Kassab’s Traditional Motion for Summary Judgment, pp. 76–80, filed August 29, 2022; Pohl’s Response
in Opposition to Kassab’s Traditional Motions for Summary Judgment, filed September 12, 2022; see also Court’s
October 31, 2022, order denying Kassab’s motion for summary judgment. Pohl incorporates his prior briefing on this
issue by reference.
secrets cases.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710 (Tex. 2016). To the
extent that the Court wishes to look at persuasive authority from other states, they too have
recognized that the definition of “actual loss” is broad and encompasses tort damages where a
“plaintiff must prove that its loss was caused by the defendant’s violation.” Skee World Wide
Prosthetic Supply, Inc. v. Mikulsky, 640 N.W.2d 764, 770 (Wis. 2002); Dunsmlore & Associates,
Ltd. v. D'Alessio, No. 409906, 2000 WL 124995, at *10 (Conn. Super. Cct. Jan. 6, 2000) (“Actual
loss in this context means the amount of money that the plaintifsf lost from the defendant's
misappropriation; it is measured by how much better off the plasintiff would have been but for the
defendant's misappropriation.”).
The weakness of Kassab’s position is showcased by his misleading citation to caselaw.
Kassab cites to Florida caselaw asserting that “‘actual loss’ means ‘loss of profits, lost customers
or lost market share.’” See Motion to Modifya, p. 5 (citations omitted). While Pohl disputes that
Florida limits actual loss damages to these three categories, if it did, it demonstrates why the Court
should ignore this non-controlling autehority. Moreover, Kassab does not dispute that Texas allows
recovery of damages outside of tfhose three categories of damages. See, e.g., Motion to Modify,
pp. 12-13 (not disputing thaty market value is recoverable as a measure of “actual loss”).
Kassab’s citatioCn to Texas caselaw fares no better. Here, even though the issue concerns
recovery of attorneys’ fees incurred in separate proceedings, Kassab cites multiple cases dealing
with recovery foff attorneys’ fees incurred in the same proceeding.2 See Motion to Modify, p. 7.
2 Lacore Enters., LLC v. Angles, 2023 WL 2607562, *9 (Tex. App.—Dallas Mar. 23, 2023, no pet.) (standing for the
non-controversial conclusion that fees from the same lawsuit are not recoverable as damages under the American
rule); O’Neal v. Dale, 2021 WL 210848, *10 (Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (standing for the
uncontroversial proposition that fees incurred in the present lawsuit do not typically constitute damages); Woodhaven
Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 839 (Tex. App.—Dallas 2014, no pet.) (“the only
damages stated by appellants consist of legal fees and expenses they incurred in defending against this lawsuit brought
by appellee and in prosecuting their counterclaims.”).
Furthermore, some of the cases do not concern recovery of attorneys’ fees at all,3 and one was
cited for a proposition that was subsequently overruled.4 The Court should not consider Kassab’s
misleading citations.
And even if the Court were not convinced that TUTSA alone authorized kthe recovery of
Pohl’s damages, Pohl’s damages are recoverable under equitable principlesl. See Dixon Fin.
Services, Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st cDist.] 2010, pet. denied)
(“Equitable principles allow the recovery of attorney’s fees as actuasl damages when a party was
required to prosecute or defend a prior legal action as a conssequence of a wrongful act of the
defendant.”).5
Kassab acknowledges the potential applicability of this equitable doctrine but claims that
Pohl cannot qualify because an equitable doctrine can only apply when the plaintiff is “wholly
innocent” of any wrongdoing. See Motion to Maodify, p. 9. Pohl disputes that the “wholly innocent
party” element is properly part of the tort of another doctrine. Indeed, Kassab himself cites
3 Tana Oil & Gas Corp. v. McoCall, 104 S.W.3d 80, 81 (Tex. 2003) (rejecting argument that parties could recover for
the value of their own timCe because the Court saw “no causal relationship between the tortious interference the
McCalls allege and the only damages they claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., 2006 WL
648834, *8 (Tex. App.—a lHouston [1st Dist.] Mar. 16, 2006, pet. denied) (finding that a company’s financial loss due
to employees spendingi time on depositions and discovery did not constitute damages in the same lawsuit).
4 See Motion to Mfodify, p. 7 (citing Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.]
2001, pet. denied) for the proposition that “attorney’s fees are recoverable only when an agreement between the parties
so provides.”). This is in direct conflict with multiple subsequent Supreme Court of Texas cases. See, e.g., Akin,
Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 120–21 (finding an award of attorneys’ fees could be proper
even absent an agreement between the parties).
5 Kassab continues to cite inapplicable caselaw throughout. For example, he cites Riner v. Neumann, 353 S.W.3d
312, 323 (Tex. App.—Dallas 2011, no pet.) as support for his contention that “[o]ther intermediate courts of appeals
have likewise refused to adopt the tort of another doctrine.” See Motion to Modify, p. 8 n.4. This is false. Riner does
not mention the tort of another doctrine. See generally Riner, 353 S.W.3d 312. Instead, the court in that case declined
to adopt an exception to the American rule prohibiting recovery of attorneys’ fees in the same case absent
authorization. See id. at 322.
10
multiple cases demonstrating that there is no wholly innocent party element to the doctrine.6 See
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 106; Naschke v. Gulf Coast Conference,
187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Brannan Paving GP, LLC
v. Pavement Markings, Inc., 446 S.W.3d 14 (Tex. App.—Corpus Christi 2013, petk. denied).
Regardless, however, Kassab is incorrect that the jury found that Plohl’s trade secret
damages were caused by Pohl’s conduct. In response to Question 4—whicch was the proportionate
responsibility question specifically tied to the misappropriation of tsrade secrets claim—the jury
assigned 0% of the responsibility to Pohl. See Ex. A at 10.7 sKassab ignores this question and
instead contends the jury’s answer to Question 3 shows that Pohl is not “wholly innocent.” See
Motion to Modify, p. 9. But Question 3 is not tied to the misappropriation of trade secrets. See
Ex. A at 9. In fact, the jury specifically asked if they should still answer Question 3 even if they
found that no trade secrets existed. With thea agreement of Kassab, the Court instructed the jury
that they should still respond to Question 3 even if they answered “No” to both parts of Question
1 regarding the existence and ownersehip of a trade secret.
The attorneys’ fees that fPohl incurred in separate proceedings as a result of Kassab’s
wrongful conduct are recovyerable as part of Pohl’s “actual loss” in this lawsuit. Kassab’s
arguments otherwise aCre not supported by controlling law. The Court correctly entered judgment
in favor of Pohl for the amount of his “actual loss” found by the jury.
B. fRule 17.09 of the Texas Rules of Disciplinary Procedure Does Not Apply.
AUs a threshold matter, this lawsuit is not predicated on Kassab filing a grievance or
participating in the grievance process. It is predicated on Kassab’s misappropriation of Pohl’s
6 Further, Kassab’s reliance on the idea of a wholly innocent party exception is not consistent with the history of the
doctrine. See James Michael Stanton, Recovering Attorney’s Fees in Equity Under Texas Law: Why Some Texas
Courts of Appeal Have It Wrong, 29 T. Marshall L. Rev. 243, 278 (2004).
7 This Exhibit A is attached to Pohl’s Response to Kassab’s Motion for New Trial and Motion for JNOV.
11
trade secrets. For that reason alone, Rule 17.09 of the Texas Rules of Disciplinary Procedure does
not apply, and the Court should reject Kassab’s argument otherwise. See Motion to Modify, pp.10-
11.
Regardless, this issue has been briefed extensively before, and Pohl wilkl not repeat the
same arguments now. Pohl incorporates his prior briefing by reference. l See, e.g., Pohl’s
November 30, 2022, Rule 166(g) Motion, pp. 12–14. Bottom line, thec Court properly rejected
Kassab’s arguments on the issue then, and it should reject them agains now.
IV. The Damages Awarded to Pohl Are Not Duplicative. s
Kassab requests the Court to modify the judgment to exclude allegedly duplicative
damages. But the damages are not duplicative. To the contrary, TUTSA expressly authorizes the
recovery of “both the actual loss caused by misappropriation and the unjust enrichment caused by
misappropriation that is not taken into accou
nt in computing actual loss.” TEX. CIV. PRAC. &
REM. CODE § 134A.004(a) (emphasis added). Kassab agrees that the market value damages found
by the jury are “actual loss” damagese. See Motion to Modify, p. 12. Kassab also agrees that the
jury found that he had been unjfustly enriched through his misconduct in the form of avoided
development costs. Id. Andy the jury was specifically instructed that it should “not award any sum
of money on any elemCent if you have otherwise, under some other element in this question,
awarded a sum of maoney for the same loss.” See Charge of the Court, p. 13. Once again, the
Court must prefsume that the jury followed its instructions. Columbia Rio Grande Healthcare,
L.P., 284U S.W.3d at 862.
Additionally, the awards are not duplicative because the jury could have found that the
market value damages compensated Pohl for the loss of value of his trade secrets going forward,
as that value was destroyed or lessened by Kassab’s unlawful use and disclosure of the trade
secrets. The jury also could have found that the market value damages were separate and distinct
12
from the improper benefit Kassab received by avoiding development costs (a) that he otherwise
would have incurred in the past, and (b) that the Texas Uniform Trade Secrets Act expressly
allowed the jury to consider in addition to actual loss. See TEX. CIV. PRAC. & REM. CODE §
134A.004(a) (“both the actual loss caused by misappropriation and the unjust enrickhment” may be
recovered). l
Finally on this point, the unjust enrichment award could not havce compensated Pohl for
the actual loss associated with the market value of Pohl’s trade secretss because unjust enrichment
is an equitable remedy that disgorges unjust gains instead of cosmpensating for loss. See Nguyen
v. Watts, 605 S.W.3d 761,789 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (“Recovery for
unjust enrichment arises from the equitable principle that a person receiving benefits, which were
unjust for him to retain, should make restitution.”) (citing Villarreal v. Grant Geophysical, Inc.,
136 S.W.3d 265, 270 (Tex. App.—San Antoniao 2004, pet. denied). Because the jury viewed unjust
enrichment as not being accounted for in its award of “actual loss” damages, and because this
would be reasonable given that an aweard based on unjust enrichment does not seek to redress loss,
the finding is not duplicative undfer TUTSA. Id.
V. Kassab’s Argumenty for Preemption Of Pohl’s “Conspiracy Claim” Is Inapposite
Because Texas Only Recognizes Conspiracy as a “Rule” of Joint and Several
Liability—NotC a Cause of Action.
Kassab arguaes that the Court should disregard the jury’s conspiracy finding and reform the
judgment to elimfinate Kassab’s joint and several liability because he contends that conspiracy is
“either prUeempted by TUTSA or subject to the [statutory] proportionate responsibility scheme.”
See Motion to Modify, p. 13. Yet Kassab cites no binding precedent holding that Pohl’s conspiracy
allegations are improper. The Court should reject Kassab’s arguments.
Based on unpublished federal cases, Kassab claims that “courts have concluded that
Chapter 33’s proportionate responsibility scheme applies to conspiracy claims, rather than joint
13
and several liability.” See id. at 14. But Kassab ignores contrary published Texas caselaw. The
Dallas Court of Appeals recently rejected “the premise that Chapter 33 superseded the rule that
civil conspiracy findings result in joint and several liability.” Guillory v. Dietrich, 598 S.W.3d
284, 296 (Tex. App.—Dallas 2020, pet. denied). Other Texas appellate courts hkave reached the
same conclusion. See, e.g., Stephens v. Three Finger Black Shale P’ship, 58l0 S.W.3d 687, 719
(Tex. App.—Eastland 2019, pet. denied) (“[w]e are of the opinion that jcoint and several liability
attaches to a civil conspiracy finding and is not affected by the sproportionate responsibility
statutes.”). s 
Furthermore, in addition to the fact that they do not control this Court, the authorities that
Kassab cites erroneously recognized civil conspiracy as a cause of action rather than a rule of
liability. Indeed, Kassab’s whole argument presupposes that preemption is warranted because
conspiracy is a cause of action to which Cahapter 33 applies. See Motion to Modify, p. 14.
However, the Supreme Court of Texas has clarified that conspiracy is not a cause of action; rather
it is simply a rule of joint liability. Agear Corp. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 142
(Tex. 2019) (“civil conspiracy is fa theory of vicarious liability and not an independent tort”). As
a result, even the reasoning yof the non-controlling authorities that Kassab relies on is misplaced.
Id. C
Notably, Kassab failed to cite any Texas caselaw holding that TUTSA preempts an
allegation of a fcfonspiracy to misappropriate trade secrets. The absence of any supporting Texas
caselaw iUs telling. See Motion to Modify, pp. 13–15. Under the facts of this case, there is simply
no basis for preemption. TUTSA provides that it “displaces conflicting tort, restitutionary, and
other law of this state providing civil remedies for misappropriation of a trade secret.” TEX. CIV.
PRAC. & REM. CODE § 134A.007(a) (emphasis added). Conspiracy does not provide a conflicting
14
remedy in this case.8 It merely provides that damages are joint and several. For this reason, Texas
trial courts have continued to submit both TUTSA and conspiracy claims to the jury. See, e.g.,
Whitlock v. CSI Risk Mgmt., LLC, No. 05-19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—
Dallas Apr. 30, 2021, pet. denied), reh’g denied (June 7, 2021) (holding that the conkspiracy finding
was supported by the underlying tort of misappropriation of trade secrets). l
Pohl’s TUTSA claim provides the remedy—damages for the micsappropriation of Pohl’s
trade secrets. Application of the law of conspiracy simply makes thsat remedy apply jointly and
severally. That is no more objectionable or inconsistent withs TUTSA than application of the
proportionate responsibility statute, which Kassab acknowledges applies. The Court should reject
Kassab’s selective and erroneous invocation of TUTSA preemption.
VI. Pohl Is Entitled to Recover Attorneys’ Fees, and Kassab Is Not Entitled to a Take
Nothing Judgment. l
Kassab argues in the form of an Momnibus point that, because virtually all actual and
exemplary damages awarded by the juory are purportedly improper, Kassab is entitled to a take
nothing judgment because (a) thce applicable settlement credit exceeds Pohl’s recoverable
damages, and therefore (b) Pohl is not a “prevailing party” entitled to recover attorney’s fees under
TUTSA. See Motion to Modify, p. 15. But as we previously explained, Pohl is entitled to recover
both his actual loss and damages for Kassab’s unjust enrichment. See TEX. CIV. PRAC. & REM.
CODE § 134A.004c(a) (“both the actual loss caused by misappropriation and the unjust enrichment”
may be recovered). Likewise, as we also previously explained, Pohl is entitled to recover the
attorney’s fees that he incurred in separate proceedings due to Kassab’s unlawful conduct as part
8 As an aside, Kassab’s TUTSA expert, Joseph Cleveland, appears to assume that allegations of conspiracy can exist
alongside a TUTSA claim, as he makes no mention of preemption in discussing them in conjunction with each other.
Cf. Joseph F. Cleveland, Jr., J. Heath Coffman, Kevin C. Smith, A Practitioner's Guide to the Texas Uniform Trade
Secrets Act, Tex. J. Bus. L. 1, 16 (2019) (discussing how pleading conspiracy in connection with a TUTSA claim “will
virtually guarantee that the TCPA applies”).
15
of Pohl’s actual loss. Because Pohl is entitled to recover these damages, Kassab’s argument that
exemplary damages must be reduced to reflect Kassab’s desired pruning of actual damages is
meritless.
Pohl’s recoverable actual damages, exclusive of attorney’s fees incurred kin this case and
exemplary damages, total more than $1,400,000.00. They greatly exceed the aplplicable settlement
credit of $765,000.00. Pohl is the “prevailing party” and is entitled toc recover attorney’s fees
incurred in this case under TUTSA, as well as all other damages fousnd by the jury and awarded
by the Court. See TEX. CIV. PRAC. & REM. CODE § 134A.005. s 
VII. Kassab’s Great-Weight-and-Preponderance of the Evidence Arguments are
Meritless. r
Lastly, Kassab makes a four-sentence effort to argue that the verdict is against the great
weight and preponderance of the evidence, yet Kalssab fails to discuss any specific evidence. Even
had Kassab adequately briefed this point, aMnd he did not, it should be rejected.
Great-weight-and-preponderancoe arguments come with a heavy burden. See e.g. Harding
v. Lewis, 133 S.W.3d 693, 698 (Texc. App.—Corpus Christi 2003, no pet.) (party asserting great-
weigh-and-preponderance point carries a heavy burden to show that the evidence supporting the
finding is so weak as to be clearly wrong and manifestly unjust). This is because it is the jury’s
exclusive province to determine the weight to be given to testimony and to resolve any conflicts
in the evidence. cHome Ins. Co. v. Garcia, 74 S.W.3d 52 (Tex. App.—El Paso 2002, no pet.) (a
court should not substitute its evaluation of the evidence for the jury’s unless, based on the
evidence supporting the jury’s answer, the verdict is manifestly unjust).
Here, the jury heard and considered testimonial evidence (both fact and expert) and
documentary evidence supporting the actual damages that Pohl sustained as a result of Kassab’s
16
misconduct, which the jury was entitled to accept or reject. The jury chose to accept this evidence
and, therefore, the verdict and judgment should stand. Id.
As to exemplary damages specifically, the evidence of Kassab’s willful and malicious
misconduct was overwhelming, which perhaps is why Kassab chose not to address kit in the Motion
to Modify. Under the guise of a phony expert witness agreement, Kassab secretlly purchased Pohl’s
client files and trade secrets for his own benefit. Thereafter, Kassab used cthe fruits of the unlawful
purchase to file multiple unsuccessful grievances and lawsuits againsst Pohl for Kassab’s personal
financial gain. And in what can only be described as a maliscious effort to destroy Pohl both
personally and professionally, Kassab publicized one of his grievances against Pohl (which was
ultimately dismissed like all of the others) to the Texas Attorney General, the Harris County
District Attorney, the Houston Chronicle, The Texas Lawyer, and a then-candidate for president
of the State Bar of Texas. Yet Kassab refused ato acknowledge any error or wrongdoing at all, even
denying that he had purchased Pohl’s files after a federal judge found in a written order that he
had. Instead, Kassab purported to jusetify his unlawful conduct by accusing Pohl of wrongdoing—
an accusation that the jury squarefly rejected.
The jury saw througyh Kassab’s unaccountable subterfuge and rejected Kassab’s false
theory of “vigilante” juCstice. Based on substantial and compelling evidence, the jury appropriately
awarded exemplary damages to send a message to Kassab and others like him that such malicious,
willful, and unflafwful conduct will not be tolerated.
TUhe jury’s findings as to both Pohl’s actual damages and exemplary damages are amply
supported by the evidence. Kassab’s great-weight-and-preponderance arguments are meritless.
VIII. Conclusion.
Pohl requests the Court to deny Kassab’s Motion to Modify. Pohl requests any other,
further, or alternative relief to which he is entitled.
17
Dated: February 2, 2024 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650
1100 Louisiana St., Suite 3500 r
Houston, Texas 77002
Tel. 713.485.7200
Fax 713.485.7250 t
jfrizzell@reynoldsfrizzell.ciom
Attorney for Plaintiffs iMichael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copyy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Prorciedure on this 2nd day of February, 2024.
f /s/ Jean C. Frizzell
 Jean C. Frizzell
18
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84108335
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to Kassab's Motion to Motdify
Judgment i
Status as of 2/2/2024 4:37 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 2/2/2024 4:20:58 PM SENT
Benjamin Ritz britz@thompsoncoe.com 2/2/2024 4:20:58 PM SENT
Murray JFogler mfaogler@foglerbrar.com 2/2/2024 4:20:58 PM SENT
Murray Fogler mfogler@fbfog.com 2/2/2024 4:20:58 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Dale Jefferson 10607c900 jefferson@mdjwlaw.com 2/2/2024 4:20:58 PM SENT
Raul Herman Suazo 240f03021 suazo@mdjwlaw.com 2/2/2024 4:20:58 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 2/2/2024 4:20:58 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/2/2024 4:20:58 PM SENT
Scott M.Favre C scott@favrepa.com 2/2/2024 4:20:58 PM SENT
Lawyer Wade a lawyerwade@hotmail.com 2/2/2024 4:20:58 PM SENT
Chris C.Pappas cpappas@krcl.com 2/2/2024 4:20:58 PM SENT
Non-Party Witnesso Billy Shepherd bshepherd@spcounsel.com 2/2/2024 4:20:58 PM SENT
Non-Party DoUna Pohl DonaLyann@yahoo.com 2/2/2024 4:20:58 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 2/2/2024 4:20:58 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 2/2/2024 4:20:58 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 2/2/2024 4:20:58 PM SENT
Andrea Mendez andrea@kassab.law 2/2/2024 4:20:58 PM SENT
Lance Kassab lance@kassab.law 2/2/2024 4:20:58 PM SENT
David Kassab david@kassab.law 2/2/2024 4:20:58 PM SENT
Nicholas Pierce nicholas@kassab.law 2/2/2024 4:20:58 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84108335
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to Kassab's Motion to Motdify
Judgment i
Status as of 2/2/2024 4:37 PM CST s
Case Contacts 
Nicholas Pierce nicholas@kassagb.law 2/2/2024 4:20:58 PM SENT
Lance Kassab eserve@kassab.law 2/2/2024 4:20:58 PM SENT
D Kassab david@kassab.law 2/2/2024 4:20:58 PM SENT
L Kassab lance@kassab.law 2/2/2024 4:20:58 PM SENT
Kelly Skelton recaeption@kassab.law 2/2/2024 4:20:58 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/2/2024 4:20:58 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Misty Davis c mdavis@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Harris Wells f hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
David Kassab  david@kassab.law 2/2/2024 4:20:58 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT"
63,2023-10-23,LTR,Pohl,Request for ruling on final judgment,"Pohl's Request for a Ruling on Motion for Entry of Final Judgment, urging Court to expedite consideration of the pending motion and raising concerns about Kassab's continued harassment through Mississippi bar complaints filed using case materials","Request for ruling filed October 23, 2023, more than one month after the September 19, 2023 hearing on entry of judgment. The Motion for Entry of Final Judgment was filed promptly after the August 31, 2023 jury verdict and has been ripe for over a month without a ruling.",JDGMT-1,N/A,Phase 5,2023-10-23_LTR_Pohl-Request-for-Ruling-on-Final-Judgment_FILED.pdf,"That the Court expedite consideration and grant Pohl's Motion for Entry of Final Judgment, entering final judgment in Pohl's favor in the form attached to the Motion","10/23/2023 5:36 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 80886597
By: Patricia Gonzalez
Filed: 10/23/2023 5:36 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
POHL’S REQUEST FOR A RULING ON
POHL’S MOTION FOR ENTRY OF FINAsL JUDGMENT
Pohl requests that the Court expedite its consideration of Pohl’s Motion for Entry of Final
Judgment (the “Motion”). The Motion has been ripe for a ruling for over a month, and while Pohl
waits for entry of judgment on the jury verdict in his favor, it appears that Kassab is using materials
from this lawsuit to continue to harass Pohl—adespite the jury’s verdict being inconsistent with
Kassab’s barratry and unauthorized practice of law theories in this case. The Court should
promptly enter a final judgment to gieve finality to the trial proceedings in this case.
f I. BACKGROUND
Kassab has unsucceyssfully accused Pohl of engaging in barratry and the unauthorized
practice of law for the lCast six years. According to Kassab, Pohl allegedly obtained clients through
barratry and the unaauthorized practice of law in Mississippi, and thus, Pohl did not have rightful,
legal, or equitabfle title in any trade secret concerning Pohl’s clients. However, on August 31,
2023, theU jury rendered a verdict in Pohl’s favor, and found that, despite Kassab’s allegations of
barratry and the unauthorized practice of law, Pohl owned the trade secrets concerning his clients.
After the jury rendered their verdict, Pohl promptly filed the Motion requesting entry of
judgment and set the Motion for a hearing on September 19, 2023. As the briefing and arguments
at that hearing showed, Pohl is entitled to entry of a final judgment in his favor that gives effect to
the jury’s findings of liability and damages.
Since trial, Pohl has learned new information that suggests that Kassab is using materials
from this case to continue to harass Pohl through the filing of bar complaints. Tkhrough a letter
dated October 18, 2023, Pohl was informed that a Mississippi bar complaint wals filed against him
based on materials from this case like expert reports, deposition excerpcts, and other documents
produced in this case—many of which contained Kassab’s Bates labesls.
While it is clear that someone sent the Mississippi bar comsmittee materials from this case—
the materials were attached to the bar complaint—the bar complaint does not identify who sent the
materials. However, the relevant materials attached to the bar complaint did not all come from
public filings, as they do not have exhibit stamps or other relevant markings. Given this, the
reasonable inference is that Kassab, or someaone with Kassab’s assistance, sent materials to the
Mississippi bar to continue to harass Pohl based on unproven conduct that allegedly occurred more
than 10 years ago. e
f II. DISCUSSION
Pohl respectfully reqyuests that the Court enter judgment in his favor in accordance with the
jury’s verdict. As laidC out in the Motion and in Pohl’s reply briefing, the findings in the jury’s
verdict entitle Pohla to a judgment in the form attached to the Motion. Pohl is eager to receive a
final judgment tfhat will move this dispute closer to a complete resolution. Despite losing this case,
Kassab aUppears to wish to continue to harass and retaliate against Pohl based on unproven
allegations. The lack of a final judgment against Kassab only emboldens him on this front. Thus,
Pohl requests that the Court grant his Motion and enter final judgment in his favor based on the
proposed final judgment attached to the Motion.
III. CONCLUSION
Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl respectfully ask the Court to
grant Pohl’s Motion and enter final judgment in Pohl’s favor.
Dated: October 23, 2023. Respectfully submitted, l
REYNOLDS FRIZZELL LLP c
By: /s/ Jean C. Frizzelsl
Jean C. FrizzellD
State Bar No. 07484650
1100 Louissiana St., Suite 3500
Houston, Texas 77002
Tel. 71r3.485.7200
Fax 713.485.7250
jfrizzell@reynoldsfrizzell.com
Attorney for Plaintiffs Michael Pohl
anrd Law Office of Michael A. Pohl, PLLC
CEReTIFICATE OF SERVICE
I hereby certify that a true fand correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 23rd day of October 2023.
/s/ Jean C. Frizzell
Jean C. Frizzell
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Monica Orand on behalf of Jean Frizzell
Bar No. 7484650
morand@reynoldsfrizzell.com r
Envelope ID: 80886597
Filing Code Description: Request
Filing Description: Pohl's Request for a Ruling on Pohl's Motiotn for Entry
of Final Judgment i
Status as of 10/24/2023 7:29 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 10/23/2023 5:36:30 PM SENT
Benjamin Ritz britz@thompsoncoe.com 10/23/2023 5:36:30 PM SENT
Murray JFogler mfaogler@foglerbrar.com 10/23/2023 5:36:30 PM SENT
Murray Fogler mfogler@fbfog.com 10/23/2023 5:36:30 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Todd Taylor c ttaylor@jandflaw.com 10/23/2023 5:36:30 PM SENT
Dale Jefferson 106f07900 jefferson@mdjwlaw.com 10/23/2023 5:36:30 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 10/23/2023 5:36:30 PM SENT
Todd Taylor ttaylor@jandflaw.com 10/23/2023 5:36:30 PM SENT
Scott M.Favre C scott@favrepa.com 10/23/2023 5:36:30 PM SENT
Lawyer Wade a lawyerwade@hotmail.com 10/23/2023 5:36:30 PM SENT
Chris C.Pappas cpappas@krcl.com 10/23/2023 5:36:30 PM SENT
Non-Party Witnesso Billy Shepherd bshepherd@spcounsel.com 10/23/2023 5:36:30 PM SENT
Non-Party DoUna Pohl DonaLyann@yahoo.com 10/23/2023 5:36:30 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 10/23/2023 5:36:30 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 10/23/2023 5:36:30 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 10/23/2023 5:36:30 PM SENT
Andrea Mendez andrea@kassab.law 10/23/2023 5:36:30 PM SENT
Lance Kassab lance@kassab.law 10/23/2023 5:36:30 PM SENT
David Kassab david@kassab.law 10/23/2023 5:36:30 PM SENT
Nicholas Pierce nicholas@kassab.law 10/23/2023 5:36:30 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Monica Orand on behalf of Jean Frizzell
Bar No. 7484650
morand@reynoldsfrizzell.com r
Envelope ID: 80886597
Filing Code Description: Request
Filing Description: Pohl's Request for a Ruling on Pohl's Motiotn for Entry
of Final Judgment i
Status as of 10/24/2023 7:29 AM CST s
Case Contacts 
Lance Kassab eserve@kassab.glaw 10/23/2023 5:36:30 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 10/23/2023 5:36:30 PM SENT
L Kassab lance@kassab.law 10/23/2023 5:36:30 PM SENT
Kelly Skelton reception@kassab.law 10/23/2023 5:36:30 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 10/23/2023 5:36:30 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Harris Wells c hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
D Kassab f david@kassab.law 10/23/2023 5:36:30 PM SENT
Harris Wells  hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT"
62,2023-09-22,LTR,Pohl,Response to Kassab letter,"Pohl's letter to Judge Christine Weems replying to Kassab's September 20, 2023 post-hearing letter brief, addressing exemplary damages burden of proof, recoverability of attorneys' fees, conspiracy preemption, and Precision's exoneration","Sur-reply letter brief filed September 22, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Addressed to Judge Christine Weems. Filed two days after Kassab's post-hearing letter brief (September 20) and three days after the September 19 hearing on entry of judgment. Pohl notes his Reply was filed one business day after Kassab's Response. Signed by Harris Y. Wells and Jean C. Frizzell of Reynolds Frizzell LLP.",JDGMT-1,N/A,Phase 5,2023-09-22_LTR_Pohl-Response-to-Kassab-Letter-re-Final-Judgment_FILED.pdf,"That the Court grant Pohl's Motion, enter judgment in the form attached as Exhibit B to the Motion, and overrule Kassab's objections to entry of judgment","9/22/2023 9:53 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79868932
By: Bonnie Lugo
Filed: 9/22/2023 9:53 PM
September 22, 2023
Via Electronic Filing
Judge Christine Weems r
Harris County Civil Courthouse l
201 Caroline, 14th Floor
Houston, Texas 77002 c t
RE: Michael A. Pohl et al. v. Lance Christopher Kassab et al.; Casutse No. 2018-58419; In the 281st
Judicial District Court of Harris County, Texas. D i
Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment (the “Motion”)
Dear Judge Weems: e
In Kassab’s September 20, 2023 letter (the “Leutter”), Kassab suggests that the timing of
Pohl’s Reply brief entitles Kassab to further briefing. Pohl filed his Reply one business day after
Kassab filed his Response. Because Kassab misstates both the law and facts in the Letter, Pohl
files this reply letter. l
DMISCUSSION
A. The Jury Verdict shows thoe Jury unanimously awarded exemplary damages.
Kassab makes two argumencts on the recovery of exemplary damages: he claims (1) it was
Pohl’s burden to ensure the Jury fsigned a certificate of unanimity for Question 17, and (2) that
various cases Pohl cited are “distinguishable for important reasons.” Letter at 1–2. Each argument
fails. First, as the Supreme Cyourt of Texas held in USAA Tex. Lloyds Co. v. Menchaca, “the party
who must rely on theo conflicting answer to avoid the effect of answers that establish
liability . . . bore the burden to object.” 545 S.W.3d 479, 519 (Tex. 2018) (emphasis added).
That is Kassab here. lSecond, any so-called distinguishing facts either are not distinguishing or are
immaterial becaucsei the reasoning of those cases, applied to the facts of this case, shows Pohl is
entitled to an awfard of exemplary damages.
1. It was Kassab’s burden to object because he seeks to set aside the Jury’s answers.
Pohl obtained the necessary findings to support an award of exemplary damages against
Kassab through the Jury’s answers to Questions 2, 17, and 19.1 Kassab asks the Court to ignore
the Jury’s findings because he contends the certificate of unanimity is incomplete and lacks a
signature for Question 17. See Letter at 2. Binding precedent from the Texas Supreme Court
1 See Jury Verdict at 7–8, 24, & 26, attached as Ex. A to the Motion.
September 22, 2023
Page 2
shows Kassab had the burden to object before the Jury was dismissed to avoid the effect of the
Jury’s answers to Questions 2, 17, and 19. Kassab’s failure to object waived this issue.
In USAA Tex. Lloyds Co. v. Menchaca, the Texas Supreme Court discussed how Texas
Rule of Civil Procedure 295 “provides the procedure for resolving incomplete and nonresponsive
jury verdicts as well as those containing conflicting answers.” 545 S.W.3d at r519. The Court
stated that a party must object before the jury is dismissed and clarified that “thle party who must
rely on the conflicting answer to avoid the effect of answers that establish liability . . . bore
the burden to object.” Id. (emphasis added). In this case, it does notc matter whether Kassab
frames the issue as a problem of incompleteness or conflict within thet Jury Verdict. The rule is
the same; Rule 295 and Menchaca govern the question of whose buriden it was to object. Because
the Texas Supreme Court clarified these rules in 2018, post-Menchaca caselaw is instructive.
A recent case cites Menchaca on the precise issue ebefore this Court—which party has
the burden to object when the jury does not sign a certificate of unanimity for an exemplary
damages question. See Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 463 (Tex. App.—El
Paso 2022, pet. filed). In Bruce, the court cited Menchaca and found that the defendant—the party
who opposed giving effect to the jury’s answers finding exemplary damages—had the burden to
object to the lack of a certificate of unanimity “bielfore the jury was discharged.” Id. The same is
true here. As a matter of law, the Jury’s answers to Questions 2, 17, and 19 are sufficient to award
exemplary damages.2 See id; see also Menchaca, 545 S.W.3d at 519. Kassab had the burden to
object before the Jury was discharged too avoid the effect of those answers based on any contention
that the Jury Verdict is incomplete ore has a conflict.
2. Kassab’s discussion off caselaw demonstrates that exemplary damages are proper.
Kassab does not address the caselaw demonstrating the Court “must,” when possible,
“reasonably construe the [jpury’s] findings in a way that harmonizes them.” Menchaca, 545 S.W.3d
at 509; see Bender v. SC. Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980). The only way to
harmonize the Jury Verdict is to give effect to the Jury’s affirmative finding of exemplary damages.
Because Kassab has no response to this, he claims that three other cases cited by Pohl are
“distinguishable ifor important reasons” and one case that Kassab cites, which was decided before
Menchaca, iso the “most analogous.” See Letter at 1–2. Kassab’s claims are not accurate.
Kassab’s attempt to distinguish Stover v. ADM Milling Co., No. 05-17-00778-CV, 2018
WL 6818561 (Tex. App.—Dallas Dec. 28, 2018, pet. denied) is so ineffective it is worth
highlighting. In Stover, the jury had to unanimously answer three sets of questions to support an
award of exemplary damages: (a) “jury question nos. 5 and 6,” which found liability for fraud and
statutory fraud; (b) jury question nos. 15 and 16, which found clear and convincing evidence and
2 See Jury Verdict at 7–8, 24, & 26, attached as Ex. A to the Motion.
September 22, 2023
Page 3
malice; and (c) jury question no. 17, which found the amount of exemplary damages. See Stover,
2018 WL 6818561, at *12. The court upheld the jury’s award of exemplary damages even
though the jury did not sign a certificate of unanimity for jury questions nos. 5 and 6. Id.
Kassab contends Stover is distinguishable because the Jury, in this case, did not sign a
certificate of unanimity for Question 17 (clear and convincing evidence of malicer), and the jury in
Stover certified that its answers were unanimous in response to the equivalent qluestions—question
nos. 15 and 16 (on clear and convincing evidence and malice). See Letter at 1. But this
“distinguishing” fact is a distinction without a difference and is not helpfucl for Kassab. In Stover,
the jury needed to unanimously answer three sets of questions—sets “at,” “b,” and “c”—to support
an award of exemplary damages. But the jury did not sign a certificaite of unanimity for questions
5 and 6 (question set “a”). Id. The court nevertheless found that exemplary damages were proper
because the jury certified it was unanimous on questions 15 ands 16, and those questions “instructed
the jury to answer those questions” only if the jury was unanimous for at least one of the questions
in question set “a.” Id. This result—that not all predicrate answers to a finding of exemplary
damages require a certificate of unanimity—is fatal toB Kassab’s argument.
Here, the question is whether the jury’s answers to three questions—Questions 2, 17, and
19—were unanimous. Like Stover, the Jury ceri ltified it was unanimous for two out of the three
relevant questions.3 Also similar to Stover, th a e Jury signed a certificate of unanimity for Question
19, which was predicated on the Jury unanimously answering the question the Jury did not
separately certify unanimity for—Quesotio f n 17.4 It does not matter that there is no certificate of
unanimity for Question 17 (malice) reather than Question 2 (liability). The point is that, if a jury
answers an exemplary damages question predicated on a unanimous answer to a prior exemplary
damages question (whether the fprior question be a threshold liability question or a malice
question), then, absent other evidence, the prior question is considered to have been unanimously
answered even absent a unpanimity certificate. The reasoning of Stover illustrates that the Jury’s
findings are sufficient because the “jury is presumed to have followed the trial court’s instructions”
to answer “Yes” to Question 17 only if it was unanimous. See Stover, 2018 WL 6818561, at *12.
Kassab’s catitempt to distinguish two other cases Pohl cited does little to help his position.
Kassab argues thfat Bruce v. Oscar Renda Contracting, 657 S.W.3d 453 (Tex. App.—El Paso 2022,
pet. filed) is distinguishable because “there was no Additional Certificate in which the jury was
instructedU to certify whether certain jury questions were unanimous.” Letter at 1. That is
misleading at best. There was a certificate of unanimity, but it could not be used because the
questions were misnumbered. See Bruce, 657 S.W.3d at 457. Regardless, the fact that exemplary
damages were awarded despite there not being a certificate of unanimity supports Pohl’s position
here. Bruce demonstrates that a signed certificate of unanimity is not necessary for an award
3 See Jury Verdict at 32–33, attached as Ex. A to the Motion.
4 See id. at 26, 32–33.
September 22, 2023
Page 4
of exemplary damages. The Jury’s answers in this case, which were conditioned on unanimity,
are also sufficient to support the award of exemplary damages. Thus, it was not Pohl’s burden to
object to any purported lack of signature on the certificate of unanimity. As the party seeking to
avoid the Jury’s findings, it was Kassab’s burden to object. See Menchaca, 545 S.W.3d at 519.
Kassab’s discussion of Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex.r App.—Houston
[14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.) also misses the point. lPohl cited this case
because it illustrates what Kassab should have done if he believed that the Jury was not unanimous
concerning Question 17. In Bryan, the jury failed to sign a certificate ofc unanimity for questions
1 and 2, which needed to be unanimous for an award of exemplary datmages. See 542 S.W.3d at
692. However, the jury was instructed to answer “yes” to question i2 only if it was unanimous to
both questions 1 and 2. See id. Contrary to Kassab’s suggestion otherwise, the Bryan trial
court briefing showed the defendant—the party opposing asn award of exemplary damages—
requested the jury be polled to ensure it was unanimous.5 Here, Kassab should have done the
same thing. As the party desiring to avoid the effect orf answers that establish liability, under
Menchaca, Kassab needed to object or request a pollinBg of the jury in order to dispute that the Jury
followed the Court’s instructions to only answer “Ynes” to Question 17 if the Jury was unanimous.
Kassab claims the “case most analogousi l to the present case is the “no petition” case of
Redwine v. Peckinpaugh, 535 S.W.3d 44 (Tex. App.—Tyler 2017, no pet.).” Letter at 2. In his
Reply, Pohl explains how Redwine is different for multiple reasons. However, if Kassab’s “most
analogous” case is Redwine, no on-poinot cases support Kassab’s position. Setting aside the fact
that the Tyler Court of Appeals opinieon in Redwine predates the Texas Supreme Court’s opinion
in Menchaca, Redwine is facially not on point because the court polled the jury in Redwine and
confirmed the jury was not unafnimous. Redwine, 535 S.W.3d at 47. Kassab chose not to poll
the jury here. Because of the Court’s instructions, the Jury’s answers to Questions 17 and 19 are
evidence that the Jury was punanimous. Menchaca, 545 S.W.3d at 519; Bruce, 657 S.W.3d at 463.
B. Pohl’s attorneys’ fees from prior litigation are recoverable as damages.
First, under the plain text of TUTSA, Pohl is entitled to recover “actual loss caused by
misappropriationi.” Tex. Civ. Prac. & Rem. Code § 134A.004(a). The jury found that Pohl’s
“actual loss”o included damages measured by the attorneys’ fees in other cases that Kassab’s
misappropriation caused Pohl to incur. This “actual loss” is recoverable.
Second, and regardless of the plain language of TUTSA, Kassab’s argument on the tort-
of-another doctrine is worth briefly addressing. As a threshold issue, published precedent allows
the Court to apply this doctrine. See Dixon Fin. Services, Ltd. v. Chang, 325 S.W.3d 668, 678
(Tex. App.—Houston [1st Dist.] 2010, pet. denied). Kassab does not argue Pohl fails to satisfy
5 See Richard BRYAN et al, Plaintiffs, v. AMERICAN GENERAL LIFE INSURANCE, CO., et al, Defendants., 2015
WL 4184907 (Tex. Dist.) (stating the jury was polled “at the request” of the defendant’s counsel).
September 22, 2023
Page 5
the elements listed in Dixon,6 and instead, Kassab contends the doctrine does not apply because
Pohl “does not have clean hands.” See Letter at 3. This argument fails for at least two reasons.
First, there is no clean hands requirement. Second, the Jury did not find Pohl had unclean hands.
1. There is no clean hands requirement for applying the “tort of another theory.”
Kassab is wrong that the “tort of another theory” includes a clean hands requirement. See
Letter at 3. While the Texas Supreme Court has not yet resolved the split among the courts of
appeals on the applicability of this doctrine, its discussion of the tort-of-anotther doctrine indicates
that it does not have a clean hands requirement. See Akin, Gump, Straruss, Hauer & Feld, L.L.P.
v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009). Precedent, like Dixon, and cases
from other courts that have applied this doctrine, also do not include any requirement that a party
must have clean hands or be “wholly innocent” to recover fees sas damages. See, e.g., Dixon, 325
S.W.3d at 678; Massey v. Columbus State Bank, 35 S.W.3de 697, 701 (Tex. App.—Houston [1st
Dist.] 2000, pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex. App.—Texarkana 2000,
pet. denied); Standard Fire Ins. Co. v. Stephenson, 963 S.W.2d 81, 90 (Tex. App.—Beaumont
1997, no pet.); Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 251 (5th Cir. 2014).
Because there is no clean hands or whollly innocent party requirement for the tort-of-
another doctrine, the Court should ignore thisa argument by Kassab.
2. There is no Jury finding that Pohl has unclean hands.
The Jury did not find that Poehl had unclean hands. Thus, nothing would change even if
the Court agreed with Kassab that thce equitable nature of the doctrine makes the defense of unclean
hands relevant. See Letter at 3. fRegardless of whether the Jury found wrongful conduct by Pohl
in connection with his trade secrets claim—which Pohl disputes it did—the unclean hands defense
would still not apply because there is no finding that any wrongful conduct of Pohl injured Kassab.
To establish anC unclean hands defense, Kassab “must show an injury to himself arising
from the conduct.” Slee Wood v. Wiggins, 650 S.W.3d 533, 556 (Tex. App.—Houston [1st Dist.]
2021, pet. denied).i “‘The clean hands maxim should not be applied when the defendants have not
been seriously fhiarmed and the wrong complained of can be corrected without applying the
doctrine.’” Id. (citation omitted). In Question 3, the Jury found unspecified “wrongful conduct”
by Pohl cUontributed to an unspecified “injury.”7 Nothing connects that conduct to Kassab, much
less any injury to Kassab. Absolutely nothing demonstrates that Kassab was injured by any
“wrongful conduct” by Pohl. Thus, the defense of unclean hands does not and cannot apply.
6 See Dixon, 325 S.W.3d at 678 (“Equitable principles allow the recovery of attorney’s fees as actual damages when
a party was required to prosecute or defend a prior legal action as a consequence of a wrongful act of the defendant.”).
7 See Jury Verdict at 9, attached as Ex. A to the Motion.
September 22, 2023
Page 6
C. Conspiracy is not preempted.
Kassab contends that proportionate responsibility applies to TUTSA claims, yet he then
argues that conspiracy is preempted and cannot apply. Despite having the opportunity, Kassab
does not explain why conspiracy is preempted, yet proportionate responsibility still survives. See
generally Letter. His failure to do so is telling. r
Rather than address Pohl’s argument, Kassab falsely claims that “Pohl asserts that no Texas
case law supports the proposition that conspiracy is preempted by TUTSA.”t See Letter at 4. That
is not what Pohl said. Pohl’s Reply stated “Kassab also has no Texasr caselaw finding there can
no longer be a conspiracy to misappropriate trade secrets to support his TUTSA preemption
argument.” Kassab’s letter all but confirms that what Pohl said is true by failing to cite any
such case. The Court should apply Texas law that permits joints and several liability when there is
a conspiracy to misappropriate trade secrets. See, e.g., Whitleock v. CSI Risk Mgmt., LLC, No. 05-
19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—Dallas Apr. 30, 2021, pet. denied), reh’g
denied (June 7, 2021) (finding conspiracy was supported by a misappropriation of trade secrets).
D. Kassab’s liability is not predicatend on the Jury finding that Precision
misappropriated Pohl’s trade secretls.
Kassab contends that Pohl cannot “lMegally recover against Kassab after the jury concluded
that Precision, and those associated with Precision, did not misappropriate anything.” Letter at 4.
Kassab’s theory is he cannot engage in misappropriation if the person who gave him the trade
secrets did not also engage in misappropriation. This argument fails for multiple reasons,
including that the “factual” premisei of the argument is simply false.
First, Kassab’s argument is premised on his claim that Precision “provided Pohl’s alleged
information to Kassab.” Letter at 4. But the Jury never found that Kassab received Pohl’s trade
secrets from Precision. Ionstead, the evidence at trial demonstrated that Favre (not Precision) sold
Pohl’s trade secrets to Kassab. The Jury did find that Favre misappropriated Pohl’s trade secrets.8
The fact that Kassaba obtained the trade secrets from Favre is fatal to Kassab’s argument. Further,
the fact that the jucry found that Favre misappropriated Pohl’s trade secrets underscores the falsity
of Kassab’s rfepresentation to the Court that “those associated with Precision did not
misapproprniate anything.” Letter at 4.
Second, Kassab’s argument also requires the Court to believe that the Jury not finding
misappropriation by Precision necessarily means that “Precision either owed no duty to Pohl or it
breached no duty to Pohl when it provided Pohl’s alleged information to Kassab.” Letter at 4.
This is not true. The Jury could have answered “No” misappropriation for Precision for other
reasons. Pohl had no reason to present the Jury with evidence of Precision improperly disclosing
8 See Jury Verdict at 7–8.
September 22, 2023
Page 7
or using Pohl’s trade secrets because such evidence was not relevant to Pohl’s case. Kassab, not
Pohl, designated Precision as a responsible third party and requested that Precision be listed in the
Jury Charge. It was incumbent on Kassab to put forward evidence on this issue. Further, if it were
relevant, Kassab should have presented evidence and requested an affirmative Jury finding to
establish that Precision did not breach any duty to Pohl when it allegedly disclosedk or used Pohl’s
trade secrets. While Pohl disputes that this finding would have defeated Pohl’s terade secrets claim,
it does not matter if it would have, because Kassab did not secure such a findCing.9
CONCLUSION c
Pohl respectfully requests that the Court grant Pohl’s Motion, enter judgment in the form
attached as Exhibit B to the Motion, and overrule Kassab’s objections to entry of judgment.
Sincerely, s
REYNOLDS FrRIZZELL LLP
By: Harris Y. Wells
yJean C. Frizzell
iState Bar No. 07484650
Harris Y. Wells
State Bar No. 24106563
o1100 Louisiana St., Suite 3500
e Houston, Texas 77002
Tel. 713.485.7200
O Fax 713.485.7250
 jfrizzell@reynoldsfrizzell.com
p hwells@reynoldsfrizzell.com
On behalf of Plaintiffs Michael Pohl and
a Law Office of Michael A. Pohl
9 See generally id.
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Harris Wells
Bar No. 24106563
sblue@reynoldsfrizzell.com r
Envelope ID: 79868932
Filing Code Description: No Fee Documents
Filing Description: Pohl's Letter in Response to Kassab's Postt-Hearing
Letter i
Status as of 9/25/2023 8:44 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Kevin Dubose 6150500 kdubose@aadjtlaw.com 9/22/2023 9:53:52 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/22/2023 9:53:52 PM SENT
Lance Kassab lance@kassab.law 9/22/2023 9:53:52 PM SENT
David Kassab cdavid@kassab.law 9/22/2023 9:53:52 PM SENT
Nicholas Pierce fnicholas@kassab.law 9/22/2023 9:53:52 PM SENT
Lance Kassab  eserve@kassab.law 9/22/2023 9:53:52 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Harris Wells a hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Andrea Mendez andrea@kassab.law 9/22/2023 9:53:52 PM SENT
Murray JFogler o mfogler@foglerbrar.com 9/22/2023 9:53:52 PM SENT
Murray FoglerU mfogler@fbfog.com 9/22/2023 9:53:52 PM SENT
D Kassab david@kassab.law 9/22/2023 9:53:52 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/22/2023 9:53:52 PM SENT
L Kassab lance@kassab.law 9/22/2023 9:53:52 PM SENT
Kelly Skelton reception@kassab.law 9/22/2023 9:53:52 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/22/2023 9:53:52 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT"
60,2023-09-18,RPL,Pohl,Reply ISO Mtn for Final Judgment,"Pohl's Reply in Support of Motion for Entry of Final Judgment, responding to Kassab's five objections to the proposed judgment regarding exemplary damages unanimity, attorneys' fees recoverability, overlapping damages, conspiracy preemption, and Precision's exoneration","Reply brief filed September 18, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Filed three days after Kassab's September 15, 2023 objections to Pohl's September 5, 2023 Motion for Entry of Final Judgment. Addresses each of Kassab's five objections and argues the court must enter judgment consistent with the jury verdict.",JDGMT-1,N/A,Phase 5,2023-09-18_RPL_Pohl-Reply-ISO-Mtn-for-Final-Judgment_FILED.pdf,That the Court overrule Kassab's objections and enter the Final Judgment in the form attached to the Motion as Exhibit B,"9/18/2023 8:21 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79681130
By: Bonnie Lugo
Filed: 9/18/2023 8:21 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r281ST JUDICIAL DISTRICT
POHL’S REPLY IN SUPPORT OF HIS MOTION FOR ENTRY OF FINAL JUDGMENT
On September 5, 2023, Plaintiffs Michaell Pohl and Law Offices of Michael A. Pohl PLLC
(collectively, “Pohl”) filed their motion foMr entry of a Final Judgment and to adjudge costs (the
“Motion”). On September 15, 2023, Lance Christopher Kassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm’s (collectively, “Kassab”) filed Objections to Pohl’s Proposed
Final Judgment (the “Response”). Kassab fails to demonstrate in the Response that the Court
would commit error in any way by entering final judgment in the form requested by Pohl.
 OVERVIEW
Kassab liscts five general objections to entry of judgment. None of the objections withstand
scrutiny.
• Kassab objects to the inclusion of exemplary damages in the judgment because he
contends the Jury’s answer of “Yes” to Question 17 was not unanimous. But
Kassab is factually incorrect because, on its face, the Jury Verdict shows that the
Jury unanimously answered “Yes” to Question 17. The Court instructed the Jury
to only answer “Yes,” in response to Question 17 if it was unanimous, and the Jury
is presumed to have followed those instructions. Moreover, the Court instructed
the Jury to answer Question 19 “only if you unanimously answered “Yes” to
Question no. 17,” and the Jury answered Question 19. k
• Kassab objects to the inclusion of attorneys’ fees from a prCiorl lawsuit as part of
Pohl’s damages. But Pohl’s damages are recoverable, becacuse attorneys’ fees from
a prior, different lawsuit—not the current lawsuit—can properly constitute actual
loss, which are recoverable damages under TUTSsA.
• TUTSA expressly authorizes the recovery ofg both actual loss and unjust enrichment
damages together. The Jury was instruBcted to not award duplicative damages and
awarded both damages. Thus, Pohyl is entitled to recover both amounts.
• Conspiracy is a means of imaposing joint and several liability. It is not an
independent claim givingf rise to a remedy that could conflict with TUTSA.
Conspiracy is not preempted by TUTSA or the proportionate responsibility statute,
and Kassab was unfable to cite any binding precedent stating otherwise.
• The jury’s finding that Precision did not misappropriate trade secrets is consistent
with itsC finding that Kassab—who acquired those trade secrets from Favre, not
Precision—did misappropriate Pohl’s trade secrets.
f DISCUSSION
I. TUhe Jury properly awarded Pohl exemplary damages.
Kassab contends that an award of exemplary damages is unsupported and improper
because the Jury did not unanimously answer “Yes” in response to Question 17. See Response at
3. This is not true. On its face, the Jury Charge shows that the Jury unanimously answered “Yes”
to Question 17 after being instructed to only answer “Yes” if the finding was unanimous. If Kassab
believed that the certificate of unanimity was in conflict with the findings contained in the Jury
Verdict, it was his duty to request a polling of the Jury. While no actual conflict exists, Kassab’s
failure to raise this issue waived any conflict that might exist. k
“The jury is presumed to have followed the court’s instructions.” Collumbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009). When cpossible, a court “must”
“reasonably construe the [jury’s] findings in a way that harmonizes thsem.” USAA Tex. Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 509 (Tex. 2018); Bender v. S. Psac. Transp. Co., 600 S.W.2d 257,
260 (Tex. 1980). Failure to reconcile answers in favor of the jury’s verdict when possible is
reversible error. Luna v. Southern Pacific Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987). Even
where the jury findings are ambiguous or unclear, the court must try to interpret the findings so as
to uphold the verdict. Jackson v. U.S. Fid. & Gauar. Co., 689 S.W.2d 408, 412 (Tex. 1985). When
a party contends that a jury’s award of exemplary damages is not supported by a unanimous jury
finding, it is reviewed as a “no evidenece” point. Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.). f
There is clear evidenyce that the Jury made the required unanimous findings supporting an
award of exemplary daCmages. First, the fact that the Jury answered “Yes” in response to Question
17 shows that its finding was unanimous. The Jury was instructed that it could only answer “Yes”
to Question 17f iff its answer was “unanimous.”1
SeUcond, the fact that the Jury awarded exemplary damages in response to Question 19 also
shows that its answer to Question 17 was unanimous. The Court instructed the Jury that it could
only answer Question 19 if the Jury “unanimously answered ‘Yes’ to Question No. 17 or Question
1 Jury Charge at 24, attached as Ex. A to the Motion.
No. 18.”2 The Jury did not answer Question 18.3 But the Jury answered Question 19 and found
that an award of exemplary damages of $3,000,000 against Kassab was proper.4 Given the Court’s
instructions, the Jury only could have answered this question if it unanimously answered “Yes” to
Question 17. k
The Court’s instructions to the Jury show that its answer in response tlo Question 17 was
unanimous. See Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 4c64 (Tex. App.—El Paso
2022, pet. filed) (“Because the jury was instructed to only answer thse gross negligence question,
and the exemplary damages award question if unanimity was resached, we must presume it did so
by following the instructions.”). In contrast, Kassab’s argument requires the Court to presume that
the Jury ignored the Court’s instructions in response to multiple questions, which would be an
improper and impermissible presumption. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at
862 (“The jury is presumed to have followed athe court’s instructions.”). Kassab contends that the
Jury’s answer to Question 17 was not unanimous because the Presiding Juror appears to have
inadvertently failed to sign the certificeate of unanimity with respect to Question 17. See Response
at 3–4. This contention is not sufpported by the Jury’s affirmative findings based on the Court’s
instructions as reflected in thye Jury Verdict.
The Dallas CouCrt of Appeals confronted a similar situation in Stover v. ADM Milling Co.,
No. 05-17-00778-CV, 2018 WL 6818561 (Tex. App.—Dallas Dec. 28, 2018, pet. denied). The
court was askefdf to find that the jury’s award of exemplary damages was not supported “because
the findinUgs on the threshold jury question nos. 5 and 6 were not certified to be unanimous.” 2018
WL 6818561, at *12. But the court rejected this argument and found that “the evidence is legally
2 Id. at 26.
3 Id. at 25.
4 Id. at 26.
sufficient to support the jury's award of exemplary damages” because the jury later unanimously
answered questions predicated on unanimous answers to question nos. 5 and 6. See id. The court
held:
[W]e address Holmes and Holmes Law's argument that the evidence wask legally
insufficient to support the jury's award of exemplary damages in jury qeuestion no.
17 because the findings on the threshold jury question nos. 5 and l6 were not
certified to be unanimous. In support of their argument, they point to the verdict
certificate where the jury stated, ‘Our verdict is not unanimous. Ecleven of us have
agreed to each and every answer and have signed the certificate rbelow.’ However,
the record also contains an additional certificate signed by thse presiding juror that
states, ""I certify that the jury was unanimous in answering QDuestion No. 15, 16, 17,
and 18. All 12 of us agreed to each of the answers."" In sjury question nos. 5 and 6,
the jury found Holmes and Holmes Law liable for comsmon law fraud and statutory
fraud. The instructions for those jury questions did not require a unanimous
verdict. However, both jury question nos. 15 (clrear and convincing evidence of
fraud and statutory fraud) and 16 (malice) instructed the jury to answer those
questions ‘only if [] [they] [] unanimously answered 'Yes' to any part of Question
No. 5 [common law fraud] or if [they] unanimously answered 'Yes' to any part of
Question No. 6 [statutory fraud] and Quelstion No. 7 [actual awareness].’ Further,
jury question no. 17 (exemplary damaages) instructed the jury that they should only
answer the question ‘if [they] unaMnimously answered 'Yes' to Question 15 or
Question No. 16.’ The jury is presumed to have followed the trial court's
instructions. See, e.g., Columbia Rio Grande Healthcare L.P. v. Hawley, 284
S.W.3d 851, 862 (Tex. 2009)e. We conclude the evidence is legally sufficient to
support the jury's award of exemplary damages in jury question no. 17. Holmes
and Holmes Law's issue 3f.3(a) is decided against them.
Id. y
Stover is directCly on point with the facts of this case and directly refutes the argument
asserted by Kassab.a
In contrafst, the case Kassab relies on—Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—TyUler 2017, no pet.)—is different for many reasons. In Redwine, the jury had a single cause
of action for defamation before it. Redwine, 535 S.W.3d at 47. While it answered an exemplary
damages question that it was instructed to only answer if unanimous, its answer was directly in
conflict with its certification that the entire verdict was otherwise not unanimous. See id. at 51–
52. The court then polled the jury and confirmed the lack of unanimity. See id.
As explained in Bruce v. Oscar Renda Contracting, because Redwine dealt with a single
cause of action giving rise to liability, the certification of non-unanimity was in conflict with an
award of exemplary damages. 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet. filed). The
court in Bruce contrasted the facts in Redwine with a set a facts similar to those in thkis case, saying:
“We conclude that the jury’s certification at issue here does not have the samle conclusive effect
as it did in Redwine, given that this jury was permitted to answer severacl questions by a 10 to 2
vote, unless otherwise instructed to only answer upon reaching unansimity.” Id. In other words,
because not all of the verdict needed to unanimous, a general cerstificate of non-unanimity is not in
conflict with an award of exemplary damages.
Furthermore, in this case, like in Stover, the jury unanimously answered a question
(Question 19) that was predicated on a unanimous answer to Question 17 after answering Question
17. Like in Stover, the Jury here could not haave answered the latter question (Question 19) unless
it unanimously answered the earlier question at issue (Question 17). That was not the case in
Redwine. e
The Jury is presumed to have ffollowed the Court’s instructions, and the Court must “reasonably
construe the [jury’s] findingsy in a way that harmonizes them.” USAA Tex. Lloyds Co., 545 S.W.3d
at 509. Given the JurCy’s responses to Questions 17 and 19, and the Court’s related unanimity
instructions, the only reasonable construction of the Jury’s findings is that the Jury was unanimous
in answering “Yf fes” to Question 17. Because there is evidence indicating that the Jury unanimously
found exeUmplary damages against Kassab, the Court “must” give effect to the Jury’s findings and
enter a judgment awarding exemplary damages against Kassab. See id.; Bender v. S. Pac. Transp.
Co., 600 S.W.2d at 260.
Finally, and as we previously stated, while no actual conflict in the Jury’s answers exists,
Kassab’s failure to raise this issue before the Jury was discharged waived the alleged conflict that
Kassab now claims to exist. Texas law is well settled that “to preserve error based on fatally
conflicting jury answers, parties must raise that objection before the trial court dischkarges the jury.”
USAA Texas Lloyds, 545 S.W.3d 479, 518 (discussing how Rule 295 requlires that potential
conflicts in the verdict should be resolved by the trial court giving instrucctions to the jury before
the jury is dismissed). The rule is the same whether the complaint resgarding the jury’s answers is
that they are incomplete or that they are in fatal conflict; the obsjection must be raised before the
jury is discharged in order to afford the trial court the opportunity to correct the error. As further
stated by the Supreme Court in USAA Texas Lloyds:
[Texas Rule of Civil Procedure] 295 provides the procedure for resolving
incomplete and nonresponsive jury verdiclts as well as those containing conflicting
answers. Tex. R. Civ. P. 295. Addresasing incomplete verdicts, we have long held
that a judgment will not be reversMed ""unless the party who would benefit from
answers to the issues objects to the incomplete verdict before the jury is discharged,
making it clear that he desires that the jury redeliberate on the issues or that the trial
court grant a mistrial."" Fleeet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986); see also
Continental Cas. Co. v. Street, 379 S.W.2d 648, 650 (Tex. 1964) (holding party
failed to preserve error bfecause he ""did not object to the acceptance of the jury
verdict as incomplete, and thus by timely objection afford the trial court the
opportunity, before thye jury was discharged, of correcting the error (if such it was)
of accepting the verdict with the issues unanswered""). We conclude that the same
error-preservatiCon requirement applies when a party complains of a judgment based
on conflicting jury answers.
Id. at 519. c
Had Kassab timely raised the asserted conflict prior to the jury being discharged, Rule 295
would have resolved any confusion regarding how many jurors joined in answering the Question
17. That is exactly what happened in Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—
Houston [14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.), where the Fourteenth Court of
Appeals addressed the issue at length as follows:
When the jury originally returned its verdict, the verdict form showed that the jury
had answered “yes” as to Question 1 for Papalia and “yes” as to Question 2. The
trial court had instructed the jury that it could answer “yes” to Question 2 only if
all jurors agreed on that answer and only if all jurors had agreed to answer “yes” in
Question 1 as to Papalia. Despite this instruction, the jury’s verdict certificate
originally showed that only ten jurors had agreed to all of the jury’s answers so only
ten had agreed to answer Question 1 “yes” for Papalia and to answer Qukestion 2
“yes,” but, in light of the trial court’s instructions in Question 2, ethe jury’s
affirmative answer to Question 2 indicated that the jury had answeredl these two
questions unanimously.
After discussing this situation with counsel and polling the jur iry, the trial court
explained to the jury in open court and on the record that the vesrdict form contained
an ambiguity because the jury was instructed to answer “yeDs” to Question 2 only if
all jurors agreed to that answer, but the jurors indicated in the verdict certificate
that only ten jurors agreed to this answer. The trial cosurt then directed the jury to
return to the jury room and clarify on the verdict certificate whether the answer to
Question 2 was unanimous . . . . The jury later rerturned with an amended verdict
certificate indicating that the answers to the first two questions were unanimous
and that ten jurors agreed to the answers to Questions 3 through 9 . . .
Papalia argued in the JNOV Motion that the trial court should disregard the answer
to Question 2 because only ten jurors agrreed to that answer and signed the original
verdict certificate. Though it is trueM that only ten jurors signed the original verdict
certificate, after the jury returned to the jury room, the jury amended the verdict
certificate to show that all jurorso agreed to the answers to the first two questions. In
this context, the original verdiect certificate does not provide a basis for disregarding
the jury’s answer to Questiocn 2.
Bryan, 542 S.W.3d at 692–93.
The Court “must” reconcile the jury’s answers to support its award of exemplary damages
against Kassab. Here, the only way to reconcile the Jury Verdict is to give effect to the Jury’s
answers to Questicons 17 and 19. But even assuming arguendo that reconciliation were not possible
because of ano assertedly “fatal” conflict, Kassab waived the complaint by not raising it before the
jury was discharged. Id. As the party relying on the asserted conflict to avoid the effect of the
answers awarding exemplary damages, Kassab bore the burden to timely object and failed to do
so. Id. (citing Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014)). Because Kassab did not
make any such timely objection, he waived the right to complain regarding the alleged conflict.
II. Pohl is entitled to recover his actual losses as damages under TUTSA.
Kassab objects to Pohl’s damages that are based on attorneys’ fees from underlying
proceedings based on two grounds. First, Kassab says attorneys’ fees are not recoverable under
TUTSA. See Response at 5–10. Second, Kassab argues that the attorneys’ kfees cannot be
recovered in connection with the grievance procedures. See id. at 10. Neither lof these arguments
is correct. c
A. Pohl’s TUTSA damages are recoverable. s
Despite having previously asserted the same rejected arguments5 on multiple prior
occasions, Kassab continues to claim that portions of Pohl’s edamages are not recoverable because
they are based on attorneys’ fees incurred in separate proceedings. See Response at 5–10. Kassab
was wrong before, and he remains wrong now. Int is true that attorneys’ fees typically do not
constitute actual damages when incurred in the rsame lawsuit. But attorneys’ fees from a separate
lawsuit—incurred as the result of wrongful conduct of the defendant—can constitute actual
damages in a separate, subsequent laewsuit. See, e.g., Akin Gump Strauss Hauer & Feld, LLP v.
National Development & Researchf Corp., 299 S.W.3d 106, 119-22 (Tex. 2009). Kassab conflates
these distinct scenarios in aryguing otherwise.
TUTSA authorizes the recovery of damages, including “actual loss caused by
misappropriation.” a Tex. Civ. Prac. & Rem. Code § 134A.004(a). On its face, the plain meaning
of “actual loss” fis broad and encompasses consequential losses. This broad definition of damages
is not surprising, because a “‘flexible and imaginative’ approach is applied to the calculation of
damages in misappropriation-of-trade-secrets cases.” Sw. Energy Prod. Co. v. Berry-Helfand, 491
5 See Kassab’s Traditional Motion for Summary Judgment, at 76–80 filed Aug. 29, 2022; Pohl’s Response in
Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and the Nicholson
Defendants, filed Sept. 12, 2022; see also Court Order, entered Oct. 31, 2022 (denying Kassab’s request for summary
judgment). Pohl incorporates his prior briefing on this issue by reference.
S.W.3d 699, 710 (Tex. 2016). To the extent that the Court wishes to look at persuasive authority
from other states, they too have recognized that the definition of “actual loss” is broad and
encompasses tort damages where a “plaintiff must prove that its loss was caused by the defendant’s
violation.” See World Wide Prosthetic Supply, Inc. v. Mikulsky, 640 N.W.2d 764, 7k70 (Wis. 2002);
see also Dunsmore & Associates, Ltd. v. D'Alessio, No. 409906, 2000 WL 124l995, at *10 (Conn.
Super. Ct. Jan. 6, 2000) (“Actual loss in this context means the amount ofc money that the plaintiff
lost from the defendant's misappropriation; it is measured by how smuch better off the plaintiff
would have been but for the defendant's misappropriation.”). s 
The weakness of Kassab’s position is showcased by his misleading use of caselaw. Kassab
cites to out of state caselaw asserting that “‘actual loss’ means ‘loss of profits, lost customers or
lost market share.’” See Response at 5 (citations omitted). While Pohl disputes that Florida limits
actual loss damages to these three categories, iaf it did, it demonstrates why the Court should ignore
this out-of-state authority. Kassab does not dispute that Texas allows recovery of damages outside
those three categories of damages. Seee, e.g., Response at 10–11 (not disputing that market value
is recoverable as a measure of “acftual loss”).
Kassab’s citations toy Texas caselaw fares little better. This case concerns recovery of
attorneys’ fees incurredC in separate proceedings. But Kassab cites to multiple cases dealing with
recovery of attorne a ys’ fees incurred in the same proceeding. See Response at 7.6 Some of the
6 Lacore Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 WL 2607562, at *9 (Tex. App.—Dallas Mar. 23, 2023,
no pet.) (standing for the non-controversial conclusion that fees from the same lawsuit are not recoverable as damages
under the American rule); O’Neal v. Dale, No. 02-20-00173-CV, 2021 WL 210848, at *10 (Tex. App.—Fort Worth
Jan. 21, 2021, no pet.) (standing for the uncontroversial proposition that fees incurred in the present lawsuit do not
typically constitute damages); Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 839 (Tex.
App.—Dallas 2014, no pet.) (“the only damages stated by appellants consist of legal fees and expenses they incurred
in defending against this lawsuit brought by appellee and in prosecuting their counterclaims.”).
10
cases did not concern recovery of attorneys’ fees at all.7 One is cited for a proposition that was
subsequently overruled.8 The Court should ignore Kassab’s misleading citations to caselaw that
do not govern the issue before the Court.
And even if the Court were not convinced that TUTSA alone authorized kthe recovery of
Pohl’s damages, Pohl’s damages are recoverable under equitable principlesl. See Dixon Fin.
Services, Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st cDist.] 2010, pet. denied)
(“Equitable principles allow the recovery of attorney’s fees as actuasl damages when a party was
required to prosecute or defend a prior legal action as a conssequence of a wrongful act of the
defendant.”).9
Kassab acknowledges the potential applicability of this doctrine, but he claims that Pohl
cannot qualify because “Pohl is not a wholly innocent party.” See Response at 9. Pohl disputes
that the “wholly innocent party” notion is paroperly part of the tort of another doctrine.10 But
7 Tana Oil & Gas Corp. v. McCall, 104 S.W c .3d 80, 81 (Tex. 2003) (rejecting argument that parties could recover for
the value of their own time because thfe Court saw “no causal relationship between the tortious interference the
McCalls allege and the only damageOs they claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-
00807-CV, 2006 WL 648834, at *8 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (finding that a
company’s financial loss due to employees spending time on depositions and discovery did not constitute damages in
the same lawsuit). o
8 See Response at 7 (citingC Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied) for the proposition that “attorney’s fees are recoverable only when an agreement between the parties so
provides.”). This is in adilrect conflict with multiple subsequent Texas Supreme Court cases. See, e.g., Akin, Gump,
Strauss, Hauer & Feldi, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 120–21 (Tex. 2009) (finding an
award of attorneys’ fees could be proper even absent an agreement between the parties).
9 Kassab continuefs to cite inapplicable caselaw throughout. For example, he cites to Riner v. Neumann, 353 S.W.3d
312, 323 (Tex. App.—Dallas 2011, no pet.) as support for his contention that “[o]ther intermediate courts of appeals
have likewise refused to adopt the tort of another doctrine.” See Response at 8 n.5. This is false. Riner does not
mention the tort of another doctrine. See generally Riner, 353 S.W.3d 312. Instead, the court in that case declined to
adopt an exception to the American rule prohibiting recovery of attorneys’ fees in the same case absent authorization.
See id. at 322.
10 Kassab cites multiple cases demonstrating that there is no wholly innocent party element to the tort of another
theory. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009);
Naschke v. Gulf Coast Conference, 187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Brannan
Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d 14 (Tex. App.—Corpus Christi 2013, pet. denied). Kassab’s
reliance on the idea of a wholly innocent party exception is not consistent with the history of this theory. See James
Michael Stanton, Recovering Attorney’s Fees in Equity Under Texas Law: Why Some Texas Courts of Appeal Have
It Wrong, 29 T. Marshall L. Rev. 243, 278 (2004).
11
regardless, Kassab is incorrect that the Jury found that Pohl’s trade secrets damages were caused
by Pohl’s conduct. In response to Question 4—which was the proportionate responsibility
question specifically tied to the trade secrets claim—the Jury assigned Pohl 0% of the fault. See
Ex. A to the Motion at 10. Kassab ignores this question and instead contends the kJury’s response
to Question 3 shows that Pohl is not “wholly innocent.” See Response at 9. Blut this question is
not tied to the misappropriation of trade secrets. See Ex. A to the Motiocn at 9. In fact, the Jury
specifically asked if they should still answer Question 3 even if theys found that no trade secrets
existed. With the agreement of counsel for Kassab, the Court insstructed the Jury that they should
still respond to Question 3 even if they answered “No” to both parts of Question 1.
The attorneys’ fees Pohl incurred in underlying proceedings as the result of Kassab’s
wrongful conduct are recoverable as Pohl’s actual losses in this lawsuit. Kassab’s arguments
otherwise are not supported by binding caselaaw and rely in large part on the misleading use of
caselaw. The Court should reject Kassab’s arguments and enter judgment in favor of Pohl for the
full amount of actual loss damages foeund by the Jury.
B. Rule 17.09 of the fTexas Rules of Disciplinary Procedure is not applicable.
As a threshold mattyer, this lawsuit is not predicted on Kassab filing a grievance or
participating in the grCievance process. Thus, Rule 17.09 of the Texas Rules of Disciplinary
Procedure does not aapply, and the Court should reject Kassab’s argument otherwise. See Response
at 10. This issufe has been briefed extensively before, and Pohl will not repeat the same arguments
further. PUohl incorporates this prior briefing by reference. See, e.g., Pohl’s Rule 166(g) Motion,
at 12–14, filed Nov. 30, 2022 (including the briefing discussed therein). Bottom line, the Court
rejected Kassab’s position on this issue before and should reject it again now.
12
III. Pohl’s requested damages are not improperly overlapping.
Pohl’s requested damages are not overlapping. TUTSA explicitly authorizes the recovery
of both actual damages, and unjust enrichment “that is not taken into account in computing actual
loss.” Tex. Civ. Prac. & Rem. Code § 134A.004. Kassab agrees that the marketk value damages
found by the Jury are “actual loss” damages. Response at 11. He also agrees lthat the Jury found
unjust enrichment damages in the form of avoided development costs. Idc. The only question is if
those damages are overlapping. s
Here, the Jury was specifically told that it should “not award any sum of money on any
element if you have otherwise, under some other element in this question, awarded a sum of money
for the same loss.” See Ex. A to the Motion at 13. Once again, the Court must presume that the
Jury followed its instructions. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 862. The
damages are not overlapping because the Jury could have found that the market value damages
compensated Pohl for the loss of value of his trade secrets going forward, as this value was
destroyed by their improper use and edisclosure by Kassab. The Jury also could have found that
this was separate from the loss fassociated with Kassab’s unjust enrichment based on avoided
development costs that wouyld otherwise have been incurred in the past. Because the Jury could
have viewed this unjuCst enrichment as not being accounted for in its award of “actual loss”
damages, it is not dauplicative under TUTSA.
IV. Texas cfontinues to recognize that conspirators are jointly and severally liable.
Kassab argues that the Court should ignore the Jury’s conspiracy finding because he
contends that conspiracy is “either preempted by TUTSA or subject to the [statutory] proportionate
responsibility scheme.” See Response at 11. Kassab cites no binding precedent holding that Pohl’s
conspiracy claim is improper, and the Court should reject Kassab’s arguments.
13
Based on unpublished federal cases, Kassab claims “courts have concluded that Chapter
33’s proportionate responsibility scheme applies to conspiracy claims, rather than joint and several
liability.” See id. at 12. But Kassab ignores contrary published Texas caselaw. The Dallas Court
of Appeals stated that it rejected “the premise that Chapter 33 superseded thek rule that civil
conspiracy findings result in joint and several liability.” Guillory v. Dietrichl, 598 S.W.3d 284,
296 (Tex. App.—Dallas 2020, pet. denied). Other Texas appellate courtcs have come to the same
conclusion. See, e.g., Stephens v. Three Finger Black Shale P’ship,s 580 S.W.3d 687, 719 (Tex.
App.—Eastland 2019, pet. denied) (We are of the opinion that sjoint and several liability attaches
to a civil conspiracy finding and is not affected by the proportionate responsibility statutes.”).
Kassab also has no Texas caselaw finding there can no longer be a conspiracy to
misappropriate trade secrets to support his TUTSA preemption argument. See Response at 11–13.
The absence of this caselaw is telling. Undaer the facts of this case, there is no reason to find
preemption. TUTSA provides that it “displaces conflicting tort, restitutionary, and other law of
this state providing civil remedies fore misappropriation of a trade secret.” Tex. Civ. Prac. & Rem.
Code § 134A.007(a) (emphasis afdded). Conspiracy does not provide a conflicting remedy in this
case.11 It merely provides thyat damages are joint and several.
Conspiracy, likCe proportionate responsibility, does not provide a conflicting remedy that is
preempted under TUTSA. Texas trial courts have continued to submit TUTSA and conspiracy
claims to the jufrfy.12 Pohl’s TUTSA claim provides the remedy—damages for the misappropriation
11 As an aside, Kassab’s TUTSA expert, Joseph Cleveland, appears to assume that allegations of conspiracy can exist
alongside a TUTSA claim, as he makes no mention of preemption in discussing them in conjunction with each other.
Cf. Joseph F. Cleveland, Jr., J. Heath Coffman, Kevin C. Smith, A Practitioner's Guide to the Texas Uniform Trade
Secrets Act, Tex. J. Bus. L. 1, 16 (2019) (discussing how pleading conspiracy in connection with a TUTSA claim “will
virtually guarantee that the TCPA applies”).
12 See, e.g., Whitlock v. CSI Risk Mgmt., LLC, No. 05-19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—Dallas
Apr. 30, 2021, pet. denied), reh'g denied (June 7, 2021) (holding that the conspiracy finding was supported by the
underlying tort of misappropriation of trade secrets).
14
of Pohl’s trade secrets. Applying proportionate responsibility would modify that remedy so a
defendant is responsible for a percentage of the harm. Kassab does not dispute that TUTSA
permits this modification of the remedy.13 Similarly, applying conspiracy simply makes the same
remedy apply jointly and severally among multiple defendants. That is no more okbjectionable or
inconsistent with TUTSA than the proportionate responsibility statute. The Clourt should reject
Kassab’s selective and incorrect invocation of TUTSA preemption. c
V. The Jury’s misappropriation findings are consistent with seach other.
As a threshold matter, Kassab waived his right to object on the basis of any alleged
inconsistency in the Jury Verdict by not asserting any objections prior to the dismissal of the Jury.
See Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston [14th Dist.] 2017, rev.
granted, judgm’t vacated w.r.m.); Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 463 (Tex.
App.—El Paso 2022, pet. filed).
But even looking past Kassab’s waiver of this issue, his argument—that “the jury’s finding
of no wrongdoing by Precision destreoys the misappropriation claim against Kassab”—does not
make sense on its face. See Resfponse at 13. Kassab’s argument is that “because [he] acquired
Pohl’s alleged trade secretsy from Precision, and the jury found that Precision acquired the
information lawfully, tChen Kassab could not have misappropriated trade secrets from Pohl.” Id. at
2. But this argumenat is factually incorrect and fails for multiple reasons.
First, Kafssab is wrong. The Jury had ample evidence before it to conclude that Kassab
obtained UPohl’s trade secrets from Favre—by purchasing them through the November 2016
agreement—not from Precision. And the Jury did find that Favre bore some responsibility for the
13 Kassab requested that the Court include Question 4 in the Jury Charge so that the Jury could allocate responsibility
for the TUTSA claim based on the proportionate responsibility statute.
15
misappropriation. See Jury Verdict, at 10, attached as Ex. A to the Motion. This is fatal to
Kassab’s objection.
Second, there is nothing inconsistent about the Jury finding that Precision did not
misappropriate the information and Kassab did. The Jury could have found that Prekcision obtained
the information lawfully because Precision obtained the information at thel request of, while
working for, and while being paid by Pohl. The Jury also could have bacsed its misappropriation
finding on Kassab’s post-acquisition “use” or “disclosure” of the trasde secrets, even if it did find
that Kassab obtained the trade secrets directly from Precision. s 
Because Kassab waived this argument, and because it based on a factually unsupported
version of how Kassab obtained Pohl’s trade secrets, the Court should overrule Kassab’s objection
based on a supposed inconsistency in the Jury’s misappropriation findings.
CONaCLUSION
WHEREFORE, premises considered, Pohl requests that the Court overrule Kassab’s
objections asserted in the Response aend instead enter the Final Judgment in the form attached to
the Motion as Exhibit B, and forf such other and further relief at law or in equity, to which Pohl
may be entitled. y
16
Dated: September 18, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3e500
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsrfrizzell.com
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Proceldure on this 18th day of September 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
17
Automated Certificate of eService
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The filer served this document via email generated by the efiling system
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certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 79681130
Filing Code Description: No Fee Documents
Filing Description: Pohl's Reply ISO Motion for Entry of Final Jtudgment
Status as of 9/19/2023 8:22 AM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
Andrew Johnson ajohnson@Bthompsoncoe.com 9/18/2023 8:21:13 PM SENT
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Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
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Raul Herman Suazo 2O4003021 suazo@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Scott M.Favre y scott@favrepa.com 9/18/2023 8:21:13 PM SENT
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Chris C.Pappas cpappas@krcl.com 9/18/2023 8:21:13 PM SENT
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Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/18/2023 8:21:13 PM SENT
Andrea Mendez andrea@kassab.law 9/18/2023 8:21:13 PM SENT
Lance Kassab lance@kassab.law 9/18/2023 8:21:13 PM SENT
David Kassab david@kassab.law 9/18/2023 8:21:13 PM SENT
Nicholas Pierce nicholas@kassab.law 9/18/2023 8:21:13 PM SENT
Lance Kassab eserve@kassab.law 9/18/2023 8:21:13 PM SENT
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Suni Blue on behalf of Jean Frizzell
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sblue@reynoldsfrizzell.com r
Envelope ID: 79681130
Filing Code Description: No Fee Documents
Filing Description: Pohl's Reply ISO Motion for Entry of Final Jtudgment
Status as of 9/19/2023 8:22 AM CST i
Case Contacts D
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/18/2023 8:21:13 PM SENT
L Kassab lance@kasBsab.law 9/18/2023 8:21:13 PM SENT
Kelly Skelton receptionn@kassab.law 9/18/2023 8:21:13 PM SENT
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D Kassab david@kassab.law 9/18/2023 8:21:13 PM SENT
Harris Wells O hwells@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT"
55,2023-03-29,RSP,Pohl,Response to Amended MSJ,Plaintiffs' Response in Opposition to the Amended Motions for Summary Judgment Filed by the Kassab Defendants,"Filed March 29, 2023 in the 281st Judicial District Court (Judge Weems) by Jean C. Frizzell of Reynolds Frizzell LLP. Responds to Kassab's Amended MSJ (filing #50). Pohl argues the Amended Motion is a disguised motion to reconsider that reiterates the same arguments and evidence denied by the 189th District Court on October 31, 2022. Pohl objects to oral hearing under 281st Court Procedure I(I).",MSJ-4,N/A,Phase 4,2023-03-29_RSP_Pohl-Response-to-Kassab-Amended-MSJ_FILED.pdf,Deny Kassab's Amended Motions for Traditional and No-Evidence Summary Judgment,"3/29/2023 5:09 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 74146534
By: Julia Adkins
Filed: 3/29/2023 5:09 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE AMENDED MOTIONS FOR
SUMMARY JUDGMENT FILED BY THE KASsSAB DEFENDANTS
Plaintiffs Michael Pohl and Law Office of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the Amended Motions for Traditional and No-Evidence Summary Judgment (the
“Amended Motion”) filed by Defendants Lance Christopher Kassab and Lance Christopher
Kassab, P.C., d/b/a The Kassab Law Firm (coallectively “Kassab”).
I. INTRODUCTION
The Court should not entertaien motions to reconsider filed under another name, especially
when such a motion fails to makef any statement about why reconsideration is warranted. Despite
its name, the Amended Motiyon does not specify what prior motions it purports to amend. But, in
substance, it seeks recoCnsideration of Kassab’s previous motions for summary judgment that the
189th District Courat denied. Kassab does not explain why those prior rulings were wrong, nor
does he attemptf to explain whether the facts, arguments, or law have changed from the previously
denied mUotions. Kassab has not demonstrated that the Court should reconsider or revisit those
rulings, or that any prior ruling was erroneous. Thus, the Court should deny the Amended Motion.
Pohl also objects to the hearing on Kassab’s Amended Motion. The vast majority of the
Amended Motion is directly copied and pasted from Kassab’s prior motions for traditional and no-
evidence summary judgment that were denied by the 189th District Court. Kassab seeks the same
relief and uses the same arguments as contained in his denied motions. Thus, the Amended Motion
is a motion to “reconsider” with a different title. Under this Court’s procedures, “[a]ll motions to
reconsider are heard by submission only.” Procedure I(I) of the 281st Judicial District Court.
Kassab has not requested reconsideration of the prior summary judgment mkotions—instead
he purports to seek a new ruling on already decided issues. See generally Amelnded Motion. This
failure to request reconsideration alone warrants the Court denying the cAmended Motion. But
even if the Court were to reconsider the prior denials of the summary sjudgment motions, the result
would be no different. The 189th District Court reached the corsrect result, and Kassab’s failure to
explain otherwise is telling. As discussed below, Pohl’s prior briefing on these issues is
dispositive, and Kassab’s limited presentation of new information in the Amended Motion does
not justify a different result.
II. BaACKGROUND
On August 29, 2022, Kassab filed motions for traditional and no-evidence summary
judgment (“Kassab’s Original MSJs”e). Kassab’s No-Evidence MSJ sought judgment on Pohl’s
affirmative claims.1 Kassab’s Trfa f ditional MSJ also sought judgment on Pohl’s claims, as well as
on Kassab’s affirmative defyenses.2 On September 12, 2022, Pohl filed responses to Kassab’s
Original MSJs that demConstrated that summary judgment in Kassab’s favor was not proper.3
Pohl’s Respaonse to Kassab’s No-Evidence MSJ—which attached over 30 exhibits of
relevant evidenfce—demonstrated that there was sufficient evidence to support each element of
Pohl’s afUfirmative claims.4 Pohl’s Response to Kassab’s Traditional MSJ laid out how Kassab
1 See Kassab’s No-Evidence Motion for Summary Judgment, filed Aug. 29, 2022 (“Kassab’s No-Evidence MSJ”).
2 See Kassab’s Traditional Motion for Summary Judgment, filed Aug. 29, 2022 (“Kassab’s Traditional MSJ”).
3 See Pohl’s Response in Opposition to the No Evidence Motions for Summary Judgment Filed by the Kassab
Defendants and the Nicholson Defendants, filed Sept. 12, 2022 (“Pohl’s Response to Kassab’s No-Evidence MSJ”);
Pohl’s Response in Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholson Defendants, filed Sept. 12, 2022 (“Pohl’s Response to Kassab’s Traditional MSJ”).
4 See generally Pohl’s Response to Kassab’s No-Evidence MSJ (including the evidence cited therein).
failed to carry his summary judgment burden—Kassab did not show that there were no disputed
material facts, nor did he demonstrate a right to judgment as a matter of law.5 After an oral hearing,
the 189th District Court denied Kassab’s Original MSJs on October 31, 2022.6
On January 4, 2023, Kassab filed his Motion to Reconsider Traditional ankd No-Evidence
Motions for Summary Judgment, in which he asked Judge Craft to reconsidler prior rulings on
Kassab’s Original MSJs.7 Kassab filed this motion and set it for hearingc with the 189th District
Court, despite the fact that this lawsuit had been transferred to this Csourt. In this motion, Kassab
reiterated the same arguments and evidence contained in Kassabs’s Original MSJs—however, that
motion did explicitly request reconsideration of the denial of Kassab’s Original MSJs.8
Without explanation, on February 24, 2023, Kassab filed the Amended Motion. It does
not state what motion(s) it amends. See generally Amended Motion. Like Kassab’s Motion to
Reconsider, that he filed the prior month, Kassaab’s Amended Motion contains the same arguments
and evidence contained in Kassab’s Original MSJs.9 However, Kassab removed references to
reconsideration of Kassab’s Originale MSJs. See id. On its face, the Amended Motion does not
purport to be based on new evidenfce, changes in the law, or new arguments that were not presented
in Kassab’s Original MSJys. See id. However, Kassab’s omission of any discussion of
reconsideration does Cnot change the substance of the Amended Motion. At best, it is an
amendment to Kassab’s prior request for reconsideration of the denial of Kassab’s Original MSJs.
5 See generally Pohl’s Response to Kassab’s Traditional MSJ (including the evidence cited therein).
6 See Court Order, entered Oct. 31, 2022.
7 See Kassab’s Motion to Reconsider Traditional and No-Evidence Motions for Summary Judgment, at 3 (“Kassab
files this Motion to Reconsider to correct the erroneous ruling of the prior judge relating to the Kassab’s Traditional
and No-Evidence Motions for Summary Judgment.”).
8 Compare Kassab’s Motion to Reconsider Traditional and No-Evidence Motions for Summary Judgment, with
Kassab’s No-Evidence MSJ, and Kassab’s Traditional MSJ.
9 Compare Amended Motion, with Kassab’s No-Evidence MSJ, and Kassab’s Traditional MSJ.
III. POHL’S OBJECTION TO KASSAB’S AMENDED MOTION
Pohl objects to Kassab setting the Amended Motion for an oral hearing, as it is almost
identical to and seeks the same relief as Kassab’s Original MSJs that were denied by the 189th
District Court. Thus, the Amended Motion is a motion to “reconsider.” Undker this Court’s
procedures, “[a]ll motions to reconsider are heard by submission only.” Procedlure I(I) of the 281st
Judicial District Court. c
IV. POHL’S INCORPORATION OF PRIOR BRsIEFING
Pohl incorporates fully by reference his prior summary judgment briefing—both the
arguments and the attached evidence—into this response teo Kassab’s Amended Motion. This
includes the following briefing and exhibits:
• Pohl’s Response in Opposition to the No-E n vidence Motions for Summary Judgment Filed
by the Kassab Defendants and the Nichoilson Defendants & Exhibits (filed Sept. 12, 2022).
• Pohl’s Response in Opposition to the Traditional Motions for Summary Judgment Filed
by the Kassab Defendants and the Nicholson Defendants & Exhibits (filed Sept. 12, 2022).
fV. DISCUSSION
All of the issues presented in Kassab’s Amended Motion—whether traditional or no-
evidence arguments for soummary judgment—have been previously ruled on in Pohl’s favor. The
same result is proper lhere, and the Court should deny the Amended Motion.
Kassab’si no-evidence summary judgment arguments fail because Pohl has previously
provided sunfficient evidence of every element of his claims in Pohl’s Response to Kassab’s No-
Evidence MSJ. Because this addressed every element of Pohl’s claims, a subsequent no-evidence
motion makes no sense—the same showing of evidence defeats such a challenge. At best,
subsequent developments might give rise to disputed issues of material fact, but such issues
preclude summary judgment in their own right.
Kassab’s traditional summary judgment arguments fare no better. Pohl’s Response to
Kassab’s Traditional MSJ raised issues of disputed material facts or exposed flaws in Kassab’s
legal arguments that precluded summary judgment in Kassab’s favor. Kassab asserts the same
flawed arguments in his Amended Motion. Once there are disputed issues of mkaterial fact that
prevent summary judgment on an issue, additional evidence on that disputed flactual issue makes
no difference in a summary judgment analysis. The five new exhibits (cout of 65 exhibits total)
attached to Kassab’s Amended Motion, at best, provide additional stestimony on disputed facts.
The Court should reject Kassab’s attempt to seek reconsiderastion under a different name and
should deny Kassab’s Amended Motion.
A. Kassab is not entitled to no-evidence summary judgment.
The 189th District Court made the right decision when it denied Kassab’s No-Evidence
MSJ. The Court should deny Kassab’s Amended Motion outright because, as was shown through
his prior briefing, Pohl has come forward with sufficient evidence to support each element of his
claims.10 Nothing has changed sincee Kassab’s No-Evidence MSJ was denied, and nothing in
Kassab’s Amended Motion suggef f sts that a different result is proper here.11
In Pohl’s prior briefying, Pohl put forward evidence sufficient to, at a minimum, raise a
genuine issue of materCial fact on each element of his three claims. See generally Pohl’s Response
in Opposition to thea No-Evidence Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholsfon Defendants (including the evidence attached and incorporated therein). By the
10 As stated above, Pohl incorporates fully by reference his prior briefing and evidence on the no-evidence summary
judgment issue. See generally Pohl’s Response to Kassab’s No-Evidence MSJ (including the evidence cited therein).
11 The wording of Kassab’s no-evidence challenge to Pohl’s claims is almost entirely copied, word-for-word, from
Kassab’s No-Evidence MSJ. Compare Amended Motion, at 88–94, with Kassab’s No-Evidence MSJ. The sole
addition is a paragraph in which Kassab argues that “Pohl has no evidence that he is wholly innocent in the illegal
obtainment of any client for which his claims are based.” See Amended Motion, at 93. This is not part of any element
of Pohl’s claims, and Kassab does not explain otherwise. Kassab cites no authority to explain the relevance of this
assertion, nor does he establish that Pohl has the burden of proof with respect to this issue. See generally id. Thus,
this argument cannot be a proper basis for no-evidence summary judgment.
nature of a no-evidence summary judgment, once a party has presented sufficient evidence to
defeat such a motion, further no-evidence challenges on the same elements of a claim are futile.
Because Kassab previously raised a no-evidence challenge to each element of Pohl’s
claims, and Pohl provided sufficient evidence to support each element of his kclaims, the no-
evidence challenge to Pohl’s claims in Kassab’s Amended Motion necessarilly fails.12 For this
reason, and for the reasons stated in Pohl’s prior briefing incorporated hcerein, Pohl requests that
the Court deny Kassab’s Amended Motion. s
B. Kassab is not entitled to traditional summary judgmsent.
Kassab makes no effort to explain to the Court how the 189th District Court erred when it
previously denied Kassab’s Traditional MSJ. Nothing material has changed since Kassab’s
Traditional MSJ was denied, and the Amended Motion reiterates the same rejected arguments and
evidence. The Court should deny Kassab’s Amended Motion because, as Pohl demonstrated in
his prior briefing, Kassab’s arguments and evidence do not entitle Kassab to judgment as a matter
of law. Thus, Pohl requests that the Ceourt deny Kassab’s Amended Motion.
1. Pohl’s prior briefing dfefeats Kassab’s Amended Motion.
The 189th District Cyourt was right on the law and the facts when it denied Kassab’s
Traditional MSJ. The Court should deny Kassab’s Amended Motion because, excluding the
handful of exceptiaons discussed below, Kassab relies on the same arguments, exhibits, and
authority contaifned in Kassab’s No-Evidence MSJ to seek the same relief a second time. Nothing
has changed since this relief was first denied, and neither should the Court’s ruling on these issues.
As stated above, Pohl incorporates fully by reference his prior briefing and evidence on the
traditional summary judgment issues.13 Because the portions of the Amended Motion addressing
12 See Court Order, entered Oct. 31, 2022 (denying Kassab’s No-Evidence MSJ).
13 See generally Pohl’s Response to Kassab’s Traditional MSJ (including the evidence cited therein).
traditional summary judgment are largely identical to Kassab’s prior motion, further briefing on
this issue would be unnecessarily duplicative. Compare Amended Motion, at 2–88, with Kassab’s
Traditional MSJ. For the reasons stated in Pohl’s Response to Kassab’s Traditional MSJ the Court
should deny Kassab’s Amended Motion. k
2. Kassab’s citations to limited new materials does not justify recon
silderation or suggest
that summary judgment is proper.
While the issues, arguments, and the vast majority of the wordinrgi and exhibits are directly
copied from Kassab’s Original MSJs, Kassab does cite five new exDhibits and two new cases in the
Amended Motion. However, even if this new material were reslevant and applicable—which Pohl
disputes—it makes no difference, because disputed issuers of material fact or flaws in Kassab’s
legal arguments prevent summary judgment.
Kassab cites the limited new material in clonnection with three arguments in the Amended
Motion: (1) Pohl’s trade secret claim fails aMs a matter of law due to a failure to sufficiently protect
the trade secrets; (2) Pohl’s trade secreto claim fails as a matter of law because Pohl does not own
the trade secrets and property at issuce in his claims; and (3) that Pohl cannot recover on his claims
because Kassab’s affirmative defense of illegality or the unlawful acts doctrine is conclusively
established as a matter of law. None of these arguments support granting summary judgment.
i. Pohl reasonably protected his trade secret information, including information
concaerning clients.
Kassab fargues that Pohl’s claim for theft of trade secrets fails because Kassab has
established as a matter of law that “Pohl did not take any measures, let alone reasonable measures,
to keep his alleged information or client lists secret.” See Amended Motion, at 59–62 (citing Exs.
61–64 to the Amended Motion). Kassab’s evidence does not establish this fact. Even if
Kassab’s presentation of the testimony were accurate—and it is not—it would at most raise issues
of disputed material facts that preclude the Court from granting Kassab’s Amended Motion. Pohl’s
prior briefing presented controverting evidence on this precise issue that precludes summary
judgment.14
Pohl testified in his deposition regarding the reasonable steps he took to protect the client
information, confidential information, and trade secrets that are the subject mattekr of this suit.15
This alone is sufficient to raise a fact issue for the jury to decide regarding whelther the steps Pohl
took were reasonable under the circumstances to protect Pohl’s trade secrects. However, additional
evidence supports Pohl’s position that he protected the confidentisality of his trade secrets—
including the testimony of the same individuals that Kassab relises on to argue otherwise.
Kassab cites the testimony of Scott Walker, Kirk Ladner, and Steve Seymour to suggest
that Pohl failed to sufficiently protect information related to clients. See Amended Motion, at 61
(citing Exs. 62-64 to the Amended Motions). But Kassab’s citations to their testimony lacks
context. Those same three individuals testifiaed that Pohl limited access to his trade secrets, and
that Pohl ensured that those who had access to that information understood the confidential
character of that information.16 Thise testimony is also sufficient to raise a fact question on this
issue and prevent summary judgmfent.
Kassab also omits relyevant testimony from Mary Arnold—a former employee of Pohl’s—
to suggest that she didC not protect the confidentiality of Pohl’s trade secret information. See
Amended Motion, at 59–60. But Kassab fails to note that, in the same deposition he cites, Mrs.
Arnold testifiefdf about how she understood that Pohl owned the relevant information and that it
was not tUo be shared or discussed around third parties.17 The omitted portions of Mrs. Arnold’s
14 See Pohl’s Response to Kassab’s Traditional MSJ, at 25–26 (including the evidence cited therein).
15 See Pohl Deposition, at 15:21-16:18, attached as Ex. U to Pohl’s Response to Kassab’s Traditional MSJ.
16 See Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7; Deposition of Kirk Ladner, at 355:18–358:10,
372:7–374:24, 377:4–23; Deposition of Steve Seymour, at 96:16-24, 223:1-20, attached as Exs. D, V, & W,
respectively, to Pohl’s Response to Kassab’s Traditional MSJ. See also Pohl Declaration ¶¶ 14-15, attached as Ex. A
to Pohl’s Response to Kassab’s Traditional MSJ.
17 See Deposition of Mary Arnold, at 83:14–24, 159:24–160:21, attached as Exhibit A.
testimony help demonstrate that there are disputed issues of material fact that prevents summary
judgment on this issue.
Kassab cannot show that he is entitled to judgment as a matter of law on Pohl’s trade secret
claim by selectively citing testimony that is contradicted, often by the same witnkess in the same
deposition. Even if Kassab’s evidence were relevant to showing that Pohl’s inlformation was not
reasonably protected—and it is not at all clear that the factors discussed bcy Kassab are relevant or
dispositive of this inquiry—there is ample controverting evidence abosut the measures took by Pohl
to protect the confidentiality of his trade secret information. Thesse disputed issues of material fact
prevent summary judgment on this issue.
ii. Kassab has not conclusively refuted, as a matter of law, Pohl’s ownership of the
relevant trade secrets and confidential information.
Kassab also argues that Pohl’s claims for ltheft of trade secrets and conversion fail because
Kassab can conclusively establish that “PohMl does not own the purported trade secrets or property
that he alleges had been converted.” Seoe Amended Motion, at 64. Kassab cites four new exhibits
in support of this argument. See id.c at 65 (citing Exs. 62–65 to the Amended Motion). However,
this issue was already addressed, and there are disputed issues of material fact that prevent
summary judgment. Kassab’s “new” evidence does not demonstrate that he can carry his burden
to establish this issue as a matter of law.
Kassab clcaims that “Walker, Ladner and Seymour all testified that all of their marketing
assets, including client contact information and lists were created by them and their marketing
companies and belonged to them.” See id. This statement is misleading at best. To the extent that
the cited testimony even concerns Pohl’s trade secrets and confidential information at issue in this
case—a fact Kassab fails to establish, despite it being his burden to do so—those same individuals
gave conflicting testimony stating the relevant documents and information were Pohl’s, belonged
to Pohl, and were kept confidential at his request.18 Such testimony—which Pohl cited in his prior
briefing—at a minimum raises a fact issue that precludes summary judgment on this issue.19
iii. Kassab not only fails to conclusively prove his affirmative defense of “unlawful
acts,” but the defense fails as a matter of law under binding precedent.
The final issue is Kassab’s argument that he conclusively established hris unlawful acts
doctrine affirmative defense, which he contends precludes any recovery by Pohl. See Amended
Motion, at 66. For this argument, Kassab cites four of the five new exhriibits. Id at 69 (citing Exs.
61–64 to the Amended Motion). Kassab also cites two new, out-Dof-state federal court decisions
that he claims support the application of his affirmative defensse. See id at 72–73. But even with
this new material, Kassab fails to carry his burden to estarblish his affirmative defense as a matter
of law. Rather, binding precedent demonstrates that his defense fails as a matter of law.
While Pohl disputes whether Kassab’s alrguments about barratry and the unlawful acts
doctrine have any relevance to this lawsuit aMt all, to the extent that the unlawful acts doctrine could
have any relevance to this case, it is preeompted by Texas’s proportionate responsibility statute. In
Dugger v. Arredondo, the Texas Sucpreme Court explicitly found that “the common law unlawful
acts doctrine is no longer a viable defense.” See 408 S.W.3d 825, 831–32 (Tex. 2013). This issue
was briefed previously, and Pohl directs the Court’s attention to that prior briefing, which Pohl
incorporates fully by reference.20 At the outset, the fact that this defense has been preempted
justifies denying cKassab’s Amended Motion on this issue.
Even if his defense were not preempted and Kassab’s evidence did suggest that Pohl
engaged in improper solicitation—two things Kassab has not demonstrated—Kassab would still
18 See Deposition of Scott Walker, at 283:17-284:22, 316-319; 321:5-324:7, 327-329; Deposition of Kirk Ladner, at
119:21-120:15, 340:10-342:17, 350:11-351:21, 355:18–358:10, 372:7–374:24, 377:4–23; Deposition of Steve
Seymour, at 96:16-24, 223:1-20, attached as Exs. D, V, & W, respectively, to Pohl’s Response to Kassab’s Traditional
MSJ.
19 See Pohl’s Response to Kassab’s Traditional MSJ, at 27; Pohl’s Response to Kassab’s No-Evidence MSJ, at 9–10.
20 See Pohl’s Response to Kassab’s Traditional MSJ, at 19–23.
10
not be entitled to judgment as a matter of law on this defense. First, as discussed throughout the
prior briefing, there is controverting evidence on this issue that raises disputed issues of material
fact.21 Furthermore, even if Kassab were able to show that some illegal act occurred, Pohl does
not need to rely on any purported illegal act to establish his claims in this lawsuit.k22 Kassab does
not even attempt to establish otherwise. See Amended Motion, at 69. Thus, thel application of this
defense is not triggered in the first place. See Carcamo-Lopez v. Does 1 tchrough 20, 865 F. Supp.
2d 736, 767 (W.D. Tex. 2011) (“But when the illegal conduct arisess in a defense and not in the
plaintiff’s case, the unlawful acts rule will not bar a plaintiff’s cslaims.”).
The two new cases Kassab cites are not binding and have no application to the facts of this
case. The first new case Kassab cites is Alderson v. United States, 718 F. Supp. 2d 1186, 1200
(C.D. Cal. 2010). See Amended Motion, at 72. Quoting dicta, Kassab argues that: “A person
cannot ‘receive trade secret protection for infaormation about ongoing illegal activities.’” See id.
(quoting Alderson, 718 F. Supp. 2d at 1200). But the reasoning of Alderson has no application to
this case. Alderson dealt with a plainetiff who, in a prior case, filed a False Claims Act action on
behalf of the federal government fconcerning Medicare fraud uncovered by the plaintiff. Alderson,
718 F. Supp. 2d at 1188. Ayt issue was whether the proceeds obtained by the plaintiff from the
prior False Claims ActC action were “correctly characterized as ordinary income” or capital gains
for purposes of taxation. See id. at 1201. It was in this context that the court considered whether
the plaintiff hafdf a protectable property interest in his knowledge of “information about ongoing
illegal acUtivities”—that is, how the Medicare fraud occurred that was the basis of the prior False
Claims Act action. See id. at 1200. The facts of this case are not analogous. Here, Pohl does not
21 See id. at 4–12, 23–27 (including the evidence cited therein).
22 See Pohl’s Response to Kassab’s No-Evidence MSJ, at 4–17 (discussing each element of Pohl’s claims without
requiring reference to or reliance on any illegal acts).
11
claim trade secret protection concerning how any illegal conduct was undertaken. Instead, Pohl
contends his customer lists and related information are entitled to trade secret protection.23
The second new case Kassab cites is Merckle GmbH v. Johnson & Johnson, 961 F. Supp.
721, 733 (D.N.J. 1997). See Amended Motion, at 72. Kassab cites to this case clakiming that there
is a privilege to disclose trade secrets “in connection with the disclosure of linformation that is
relevant to public health or safety, or to the commission of a crime or tocrt, or to other matters of
substantial public concern.” See Amended Motion, at 72 (citing Mserckle GmbH v. Johnson &
Johnson, 961 F. Supp. 721, 733 (D.N.J. 1997) & Restatement (Tshird) of Unfair Competition § 40,
cmt. c). However, there is a reason that Kassab cites this non-precedential opinion. No Texas case
has adopted this statement from the Restatement. Even if Texas were to adopt this privilege,
Kassab’s conclusory discussion does not carry his burden to establish this defense.
Kassab’s unlawful acts doctrine defensae fails as a matter of law under the binding precedent
of Dugger v. Arredondo. But even if this remained a proper defense, Kassab’s evidence does not
conclusively establish this defense eas a matter of law. The facts put forth by Kassab are
controverted by other evidence, afnd even if Kassab’s purported facts could be established, Kassab
has not conclusively shown tyhat they would trigger application of the unlawful acts doctrine, given
that Pohl’s claims do nCot require reference to or reliance on any purported unlawful act.
VI. CONCLUSION
For the fforegoing reasons, and for the reasons stated in Pohl’s prior briefing—which is
incorporaUted fully herein by reference—Plaintiffs Michael Pohl and Law Offices of Michael A.
Pohl respectfully request that the Court deny Kassab’s Amended Motion.
23 See Pohl’s Response to Kassab’s No-Evidence MSJ, at 9–10 (discussing how “the materials at issue included Pohl’s
client lists, client files, and thousands of contracts between Pohl and his clients”).
12
Dated: March 29, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 29th day of March, 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
13
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 74146534
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response to Kassab Defendantst Amended
Motions for Summary Judgment i
Status as of 3/30/2023 8:24 AM CST s
Case Contacts 
Name BarNumber Email TimgestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/29/2023 5:09:20 PM SENT
Harris Wells hwells@reynoldsfrizzell.com3/29/2023 5:09:20 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/29/2023 5:09:20 PM SENT
Scott M.Favre scott@favrepa.coma 3/29/2023 5:09:20 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/29/2023 5:09:20 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/29/2023 5:09:20 PM SENT
Misty Davis mdavis@creynoldsfrizzell.com 3/29/2023 5:09:20 PM SENT
Lance Kassab eservef@kassab.law 3/29/2023 5:09:20 PM SENT
Lance Kassab lance@kassab.law 3/29/2023 5:09:20 PM SENT
David Kassab david@kassab.law 3/29/2023 5:09:20 PM SENT
Nicholas Pierce Cnicholas@kassab.law 3/29/2023 5:09:20 PM SENT
Andrea Mendez a andrea@kassab.law 3/29/2023 5:09:20 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT
Murray Fogler o mfogler@fbfog.com 3/29/2023 5:09:20 PM SENT
D Kassab U david@kassab.law 3/29/2023 5:09:20 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT
L Kassab lance@kassab.law 3/29/2023 5:09:20 PM SENT
Kelly Skelton reception@kassab.law 3/29/2023 5:09:20 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT"
53,2023-03-14,RSP,Pohl,Response to Mtn to Rule,Plaintiffs' Response in Opposition to Kassab's Motion to Rule on Plaintiffs' Objections to Kassab's Deposition on Written Questions of Scott Favre,"Filed March 14, 2023 in the 281st Judicial District Court by Pohl's counsel Jean C. Frizzell of Reynolds Frizzell LLP. Pohl opposes Kassab's motion seeking to overrule Pohl's objections to Kassab's deposition on written questions (DWQ) of Scott Favre. This is Kassab's second motion — the first version argued leading questions were 'cross examination' but was revised to remove that argument as directly contrary to the Texas Rules of Civil Procedure.",MSJ-2R,N/A,Phase 4,2023-03-14_RSP_Pohl-Response-to-Kassab-Mtn-to-Rule_FILED.pdf,Deny Kassab's Motion to Rule and sustain Pohl's objections to the questions contained in Kassab's DWQ,"3/14/2023 9:54 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73666907
By: Bonnie Lugo
Filed: 3/14/2023 9:54 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO KASSAB’S MOTION TO RULE
Plaintiffs Michael Pohl and Law Office of Michael As. Pohl PLLC (collectively “Pohl”)
respond in opposition to Defendants Lance Christopher rKassab and Lance Christopher Kassab
P.C.’s (collectively, “Kassab”) Motion to Rule on Plaintiffs’ Objections to the Kassab Defendants’
Notice to Take Deposition on Written Questions lof Scott Favre (the “Motion”).1
I. MBACKGROUND
The parties have been unable to osecure an oral deposition of Scott Favre (“Favre”), and the
parties have been told his capabilityc to appear is limited by his ongoing cancer treatment. Favre
is a former co-defendant, and Pohl alleged Favre conspired with Kassab to misappropriate Pohl’s
trade secrets and propertyp, including by selling that information to Kassab.2 Although Kassab
admits that he made a six-figure, up-front payment to Favre, he contends the payment was made
to hire Favre as anc e i xpert to assist Kassab with bringing barratry claims against Pohl.3 Pohl alleges
the payment woas made in exchange for misappropriating Pohl’s confidential information.4
1 This is the second motion Kassab filed regarding Pohl’s objections. Kassab initially tried to argue that his leading
questions were proper because they constituted “cross examination.” But Kassab filed a subsequent motion that
removed that argument, as it was directly contrary to the wording of the Texas Rules of Civil Procedure. Compare
Kassab Defendants’ Motion to Rule on Plaintiffs’ Objections to the Kassab Defendants’ Notice to Take Deposition
on Written Questions of Scott Favre, filed Feb. 28, 2023, with Motion (filed March 2, 2023).
2 See Pohl’s First Amended Petition ¶¶ 21–23.
3 See Deposition of Lance Kassab at 82:21–83:16, 98:15–99:8, 103:5–9, attached as Exhibit A.
4 See Pohl’s First Amended Petition ¶¶ 22–23.
After it became clear that Favre would not sit for an oral deposition, Pohl served a notice
for a deposition on written questions (“Pohl’s DWQ”) on February 3, 2023, to ensure the parties
secured Favre’s testimony before trial. See Pohl’s DWQ, attached as Exhibit 1 to the Motion.
Instead of serving questions in response, Kassab served a notice for a new deposkition on written
questions (“Kassab’s DWQ”), on February 17, 2023.5 See Kassab’s DWQ, atltached as Exhibit 2
to the Motion. Kassab did not limit himself to “direct questions” of Favrec—as provided for under
the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 200.3(a). Insstead, Kassab asked leading
questions of Favre. Kassab also asked questions with typos sthat affected the meaning of the
questions and numerous questions that were misleading, vague, or were otherwise improper. Pohl
properly asserted objections to these questions.
II. DISyCUSSION
The Court should sustain Pohl’s objections and deny the Motion because Kassab is not
entitled to ask leading questions to a co-conspirator on direct examination, and Pohl’s form
objections to Kassab’s questions aree warranted on their face given the wording of Kassab’s
questions. Kassab’s Motion is jusft over two pages in length, and it fails to specify which of Pohl’s
objections Kassab takes issuye with. The Motion should be summarily denied.
A. Pohl’s objectCions to Kassab’s leading questions should be sustained because
Kassab has not shown that Favre is a hostile witness.
The Courct should sustain Pohl’s objections to Kassab’s leading questions because the
Texas Rules oof Evidence generally prohibit the use of leading question on direct examination, and
Kassab has not shown that any exception to that rule applies. Kassab now argues that Favre—
5 Kassab initially filed a version of Kassab’s DWQ for service on February 17, 2023, but it appears that a subsequent
filing was accepted on February 20, 2023. The precise date is not material, as Kassab’s DWQ purports on its face to
be a new deposition on written questions, rather than a response to Pohl’s DWQ. Additionally, while it is not directly
at issue, to Pohl’s knowledge, Kassab did not secure Favre’s consent to a second deposition on written questions—
which is necessary given that Favre was not subpoenaed.
who Kassab was aligned with for four years and who was a co-defendant with and a co-conspirator
of Kassab—is a hostile witness to Kassab. See Motion at 1–2. But Kassab’s allegations do not
demonstrate that Favre is a hostile witness. Thus, Kassab’s leading questions are improper.
The default rule is that “[l]eading questions should not be used on direct exakmination. TEX.
R. EVID. 611(c). However, a court may allow leading questions “when a
plarty calls a hostile
witness, an adverse party, or a witness identified with an adverse partyc.” Id. “The decision to
permit a leading question lies within the sound discretion of the triasl court.” Mega Child Care,
Inc. v. Tex. Dep’t of Protective & Regulatory Services, 29 S.W.3sd 303, 308 (Tex. App.—Houston
[14th Dist.] 2000, no pet.).
There is no dispute that Kassab asked leading questions, nor does Kassab contend that any
of Pohl’s “leading” objections were directed at non-leading questions. See Motion at 1–2. Instead,
Kassab claims that his leading questions werae proper because the questions were directed at “a
hostile witness. See id. at 2. But throughout the history of this case, Favre has been aligned with
Kassab and hostile to Pohl. Kassab celaims that he hired Favre as an expert witness to assist him
on numerous potential disputes.6 f Favre is a former co-defendant of Kassab in this lawsuit.7 And
Pohl alleges that Favre is a yco-conspirator along with Kassab in relation to the misappropriation
of Pohl’s trade secrets.C8 To rebut this status quo, Kassab offers little more than conjecture.
Kassab makes three claims to support his claim that Favre should be viewed as a hostile
witness: (1) “Pflfaintiffs came to an agreement with Favre to nonsuit him and his companies”; (2)
Favre’s laUwyer “threatened to sue Kassab”; and (3) Favre’s lawyer “has refused to cooperate with
6 See Deposition of Lance Kassab at 82:21–83:16, attached as Exhibit A.
7 See generally Pohl’s First Amended Petition.
8 See id. ¶ 43.
the Kassab’s Court Reporter to set a time for Favre to answer Kassab’s deposition on written
questions.” See Motion at 2. None of these arguments has merit.
1. A plaintiff settling with or non-suiting a party does not make that party “hostile” to
remaining defendants.
Kassab’s primary justification for treating Favre as “hostile” is that Krassab submitted
questions to Favre after Pohl “came to an agreement with Favre to nonsuit him and his companies.”
See Motion at 2. Other than citing to Rule of Evidence 611(c), whicrhi provides for the hostile
witness exception, Kassab cites no authority showing that non-suitiDng a defendant makes that party
“hostile” to remaining defendants. s
As Pohl’s counsel has stated during hearings in thirs lawsuit, Pohl was incentivized to settle
or non-suit multiple defendants as part of an unsuccessful strategy to prevent trial from being
delayed.9 Given that the parties have been told plreviously that Favre had been so ill that he could
not sit for a full remote Zoom deposition,10M Pohl has no confidence that Favre could participate as
a party in a two-week trial. Given thosoe circumstances, Pohl’s non-suit of Favre does not justify
Kassab treating Favre as a hostile wcitness.
2. A personal dispute between Favre’s lawyer and Kassab does not show Favre is
“hostile” to Kassyab.
Kassab’s second justification for treating Favre as “hostile” is that an overheated and tense
email exchange oaccurred between lawyers after a deposition was canceled due to the
hospitalization off the witness. Kassab described this dispute as follows:
Favre has become a hostile witness because his lawyer, David Wade has threatened
to sue Kassab simply because Kassab asked him and Plaintiff’s counsel to pay for
the deposition that they both cancelled after Wade promised the Court he would
present Favre on a day certain and then cancelled.
9 See Dec. 1, 2022 Hearing Transcript, at 22:12–23:11, attached as Exhibit B.
10 Even when Favre did purport to be available, his lawyer could not commit that he could complete a deposition in a
single sitting. See id. at 13:11–14:13.
Motion at 2 (citing Exhibit 4 to the Motion). Kassab presents this issue without appropriate context
and in a misleading fashion.
This issue concerns a prior attempt by the parties to take an oral deposition of Favre on
December 7, 2022. Prior to that deposition, Kassab was aware that there might bek issues with the
deposition occurring as scheduled. He knew that Favre was fighting the flu andl had chemotherapy
scheduled for two days prior to the deposition.11 Counsel for Kassab cemailed Favre’s lawyer
(David Wade) the day before to inquire about whether the depositiosn would go forward.12 The
next morning, before the deposition, David Wade notified Kasssab that “Favre has been in the
hospital since last night. His deposition will not move forward this morning. I will update you with
his next availability when I receive that information. Thank you for your patience.”13
Despite being told that the deposition could not go forward due to Favre’s hospitalization,
the very next day, Kassab demanded that Davaid Wade and Pohl’s counsel pay an invoice for the
deposition that was cancelled. See Exhibit 4 to the Motion, at 2. David Wade’s response to
Kassab’s request shows his obvious efrustration.14 While Pohl does not endorse David Wade’s
response to Kassab, all that this exfchange reflects is tension between counsel to parties to a lawsuit.
It does not demonstrate that yFavre—who did not send the email—is a hostile witness to Kassab.
3. An after-theC-fact logistical issue between Favre’s lawyer and a court reporter does not
demonstrate that Favre is “hostile” to Kassab.
Kassab’s cfinal justification for why the Court should treat Favre as “hostile” is because
David Wade allegedly “refused to cooperate with the Kassab’s Court Reporter to set a time for
Favre to answer Kassab’s deposition on written questions.” See Motion at 2 (citing Exhibit 6 to
11 See Dec. 1, 2022 Hearing Transcript, at 13:7–21, attached as Exhibit B.
12 See Dec. 6, 2022 email from Murray Fogler, attached as Exhibit C.
13 See Dec. 7, 2022 email from David Wade, attached as Exhibit D.
14 It is worth noting that Kassab’s description of this email is inaccurate. Contrary to what Kassab says, David Wade
did not threaten to sue Kassab. See Motion at 2. Rather, David Wade made the facially non-serious statement that if
“you ask me that again, i will ask my client to sue . . . .” See Exhibit 4 to the Motion, at 1.
the Motion). But nothing about the email chain Kassab cites demonstrates that Favre is a hostile
witness to Kassab. Kassab provides no authority to show that a lawyer’s failure to respond to two
scheduling emails can make that lawyer’s client hostile to a party in a lawsuit.
To support his conclusion that Favre is a hostile witness due to Mr. Wkade’s supposed
failure to cooperate in scheduling, Kassab cites a single email chain. See Mlotion at 2 (citing
Exhibit 6 to the Motion). But this exhibit shows very little. First, it shocws that Mr. Wade spoke
to the court reporter hired by Kassab on February 24, 2023. See Esxhibit 6 to the Motion, at 2.
Subsequently, it appears that Mr. Wade did not respond to two scsheduling emails sent by that court
report—emails sent on consecutive days, February 28, and March 1, 2023. See id. at 1–2.
However, Mr. Wade’s failure to respond to those two emails is not indicative of much, if
anything at all. The first email was sent at 9:47 AM on February 28, 2023, and the second email
was sent the next day, March 1, 202,3 at 10:1a2 AM. Id. That same day, on March 1, 2023—just
over 30 hours after the first email was sent—Kassab first filed the Motion complaining about Mr.
Wade’s failure to respond.15 Whilee Pohl does not know if or when Mr. Wade responded, all
Kassab’s Motion indicates is thaft Kassab filed the Motion on March 1st complaining that Mr.
Wade had not responded to yan email sent the prior day, on February 28th. Such events have no
bearing on whether a wCitness is hostile to a party.
Not only does Kassab provide no authority indicating that a scheduling issue by a lawyer
can result in thfaft lawyer’s client being found to be hostile to another party, but Kassab does not
explain hUow such a finding could retroactively justify objectionable questions. Kassab served his
leading questions on Favre no later than February 20, 2023. See Kassab’s DWQ, attached as
15 See Exhibit E (showing that Kassab first attempted to file the Motion at 3:57 PM on March 1, 2023). Kassab’s
filing was rejected, and the Motion was refiled the next day, on March 2, 2023. See Motion at 5 (showing the
“Automated Certificate of eService”). The Certificate of Service on the Motion still states that it was served on “March
1, 2023,” reflecting the date that Kassab first attempted to file the Motion. See id. at 4.
Exhibit 2 to the Motion. Kassab does not address how Mr. Wade’s purported failure to respond to
emails sent well over a week after Kassab’s DWQ was served could justify Kassab’s previously
served leading questions.
Even assuming Kassab’s accounting of events could be established wkith evidence, a
lawyer’s failure to promptly respond to a scheduling email, which was sent alfter questions were
served on that lawyer’s client, does not render that client hostile to any pcarty. Because Kassab’s
post-hoc attempt to justify his leading questions fails, the Court shousld sustain Pohl’s objections
to Kassab’s leading questions. s 
B. Pohl’s objections to the form of Kassab’s questions should be sustained.
Many of Kassab’s questions to Favre are objectionable on their face. In the Motion, Kassab
even concedes that some of his questions were defective, as they contain “typos or misspellings of
words.” See Motion at 1–2. But Kassab did not choose to fix those admitted issues by submitting
amended questions as part of his “redirect questions.” Instead, Kassab makes the heated
accusation that “Pohl filed frivolous e. . . objections to several of the questions propounded.” See
id. Despite accusing Pohl of assferting “frivolous” objections, Kassab did not bother to identify
which questions or objectionys are at issue. See id.
Kassab’s failurCe to identify the questions or objections at issue indicates the weakness of
his position. He doaes not cite to a single example of the supposedly “frivolous” objections Kassab
claims were assferted by Pohl. See id. Additionally, contrary to Kassab’s suggestion (see Motion
at 2–3), eUvidence is not needed to sustain objections to the form of questions. See In re Union
Pac. Res. Co., 22 S.W.3d 338, 341 (Tex. 1999) (discussing how “evidence may not always be
necessary to support” objections). The Court should sustain Pohl’s objections because they are
asserted in response to facially objectionable questions.
Pohl objected to portions of 100 out of the 145 questions contained in Kassab’s DWQ. See
Pohl’s Objections to Kassab’s DWQ, attached as Exhibit 3 to the Motion. Kassab appears to be
concerned about “objections to several of the questions,” but Kassab does not specify which
objections or questions are at issue. See Motion at 1–2. Pohl will not waste thke Court’s time
addressing each objection to the 100 potential questions that could be at issule. Each of Pohl’s
form objections state a basis for the objection that is supported on the facec of the objection and the
request to which it is addressed. See generally Pohl’s Objections to sKassab’s DWQ, attached as
Exhibit 3 to the Motion. However, to illustrate the appropriatenesss of his objections, Pohl provides
the brief discussion of some examples below.
Kassab’s Question #3 states: “How state how many businesses have you managed in any
compacity and the names of those businesses during your entire business carrier?” See id. at 2
(errors in original). Given the typos, Pohl oabjected to the question and pointed out the various
issues, including that, “Pohl objects to the form of this question, as it contains typos and is
confusing, and it is thus vague and amebiguous.” See id. Pohl specifically pointed out that the first
word of the question, “how” appfears to be a typo. See id. It makes no sense to say “how state
how,” in the context of a quyestion. Pohl also pointed out that the spellings of “compacity” and
“carrier” appear to be iCncorrect, at least in the context of this question. See id. On the face of the
question, Pohl’s objections are proper and supported, and the Court should sustain such objections.
Anothefrf example is Kassab’s Question #15, which states: “Is PMG a marketing company?”
See id. atU 4. Pohl objected to this question on the following bases: “Pohl objects to the form of
this question, as it is vague. Pohl also objects to the form of this question because it is not limited
in time or scope.” See id. The question is vague, because it is not clear what Kassab meant by the
phrase “marketing company.” And the question is not limited in time or scope, because Kassab
did not ask about whether PMG was a “marketing company” during a specific period or otherwise
limit the scope of this question. PMG (Precision) engaged in different activities, at different times,
under different ownership. Kassab’s failure to specify a time period is objectionable.
Finally, in Question #18, Kassab asked: “Did PMG compile marketing lkists?” Id. at 5.
Pohl objected to this question on multiple grounds, including that it was vague, lnot limited in time,
and called for speculation. See id. Given that Favre purchased PMG acfter it is alleged to have
engaged in so-called “marketing” activities, there is no basis for Favres to have personal knowledge
of PMG “compil[ing] marketing lists.” See id. Thus, Kasssab’s question seeks for Favre to
speculate in response. The question is vague and ambiguous, because the meaning of the phrase
“marketing list,” is unclear, especially given the disputes about the use of this term in this lawsuit.
And the question is not limited in time, because Kassab did not ask about whether PMG compiled
“marketing lists” during a specified relevant taime period.
Pohl’s objections to these three questions are exemplars that show that Pohl made
reasonable objections to facially objeectionable questions asserted by Kassab. A simple review of
each question and the objection fitself is sufficient to support such objections. Because Pohl’s
objections are proper on theiyr face, Pohl requests that the Court sustain those objections and deny
Kassab’s Motion. C
III. CONCLUSION
For the fforegoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfuUlly request that Kassab’s Motion be denied and that the Court sustain Pohl’s objections
to the questions contained in Kassab’s DWQ.
Dated: March 14, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 14th day of March, 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
10
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73666907
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response in Opposition to Kassatb's Motion to
Rule i
Status as of 3/15/2023 8:41 AM CST s
Case Contacts 
Name BarNumber Email gTimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 3/14/2023 9:54:18 PM SENT
Benjamin Ritz britz@thompsoncoe.com 3/14/2023 9:54:18 PM SENT
Murray JFogler mfogler@foglerbarar.com 3/14/2023 9:54:18 PM SENT
Murray Fogler mfogler@fbfog.com 3/14/2023 9:54:18 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Raul Herman Suazo 24003021 suazoc@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Kevin Graham Cain 24012371 cafin@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/14/2023 9:54:18 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Scott M.Favre C scott@favrepa.com 3/14/2023 9:54:18 PM SENT
Lawyer Wade a lawyerwade@hotmail.com 3/14/2023 9:54:18 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/14/2023 9:54:18 PM SENT
Misty Davis o mdavis@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Lance KassabU eserve@kassab.law 3/14/2023 9:54:18 PM SENT
Andrea Mendez andrea@kassab.law 3/14/2023 9:54:18 PM SENT
Lance Kassab lance@kassab.law 3/14/2023 9:54:18 PM SENT
David Kassab david@kassab.law 3/14/2023 9:54:18 PM SENT
Nicholas Pierce nicholas@kassab.law 3/14/2023 9:54:18 PM SENT
D Kassab david@kassab.law 3/14/2023 9:54:18 PM SENT
L Kassab lance@kassab.law 3/14/2023 9:54:18 PM SENT
Kelly Skelton reception@kassab.law 3/14/2023 9:54:18 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73666907
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response in Opposition to Kassatb's Motion to
Rule i
Status as of 3/15/2023 8:41 AM CST s
Case Contacts 
Murray J. Fogler 7207300 mfogler@foglerbrar.com g3/14/2023 9:54:18 PM SENT"
52,2023-03-08,RSP,Pohl,Response to Mtn to Reconsider/Rule,Plaintiffs' Response in Partial Opposition to Kassab's Motion to Reconsider or Rule,"Filed March 8, 2023 in the 281st Judicial District Court (Judge Weems) by Pohl's counsel Jean C. Frizzell of Reynolds Frizzell LLP. Response to Kassab's Motion to Reconsider or Rule (filing #49), which sought reconsideration of three prior orders by Judge Dollinger. Pohl partially opposes — agreeing the court should rule on the pending RTP motion but opposing reconsideration of the abatement and discovery compulsion rulings.",MSJ-2R,N/A,Phase 4,2023-03-08_RSP_Pohl-Response-to-Kassab-Mtn-to-Reconsider-or-Rule_FILED.pdf,Deny Kassab's Motion in part; deny Kassab's Supplemental RTP Motion on the merits; decline to reconsider prior rulings on Kassab's Motion to Abate and Motion to Compel,"3/8/2023 7:39 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73486867
By: Lewis John-Miller
Filed: 3/8/2023 7:39 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN PARTIAL OPPOSITION TO KASSAB’S MOTION TO
RECONSIDER OR RULE s
Defendants Lance Christopher Kassab and Lance Christopher Kassab P.C. d/b/a/ The
Kassab Law Firm (collectively, “Kassab”) filed the Motion to Reconsider or Rule (the “Motion”),
and in it states he filed it in order to file a petition for writ of mandamus if the Motion is denied.
Pohl partially opposes the relief Kassab requests in his Motion. Pohl does not oppose the Court
ruling on Kassab’s pending motion to designate responsible third parties—although Pohl contends
that motion should be denied when thee Court addresses it on the merits. However, Pohl does not
agree that the Court should reconfsider or revisit the other two rulings mentioned in the Motion,
and Kassab has not shown hyow any prior ruling was erroneous.
C I. DISCUSSION
Kassab asksa the Court to rule on one pending motion and to reconsider rulings on two other
motions. Kassafb is not entitled to relief on the merits with respect to any of those three motions.
First, the Court should rule on Kassab’s Supplemental Motion to Designate Responsible Third
Parties (“Kassab’s Supplemental RTP Motion”), but it should deny the relief Kassab requests.
Kassab’s Supplemental RTP Motion does not fix the pleading defect that caused Judge Dollinger
to deny Kassab’s first motion to designate responsible third parties. Second, Kassab provides no
basis for why the Court should reconsider the denial of Kassab’s Motion to Abate Trial Setting
(“Kassab’s Motion to Abate”), and the Court should not allow Kassab to delay trial. Third, the
Court should not reconsider the denial of Kassab’s Motion to Compel Testimony and Documents
Pursuant to the Offensive Use Doctrine (“Kassab’s Motion to Compel”). Kassab’s arguments on
the offensive-use doctrine fail on the merits. k
A. The Court should deny Kassab’s Supplemental RTP Motion. C l
Pohl agrees that the Court should rule on Kassab’s Supplemental cRTP Motion. However,
the Court should deny that motion on the merits. To designate a ressponsible third party, Kassab
must plead sufficient facts showing that alleged responsible third parties were responsible for the
harms underlying Pohl’s claims. Kassab failed to do that in his first motion, and his supplemental
motion—which asserts the same prior factual allegations in a new order—does not fix this defect.
Kassab’s failure to plead new factual allegations gives the Court a straightforward way to
resolve Kassab’s Supplemental RTP Motion. Deny it. While this case was pending before the
189th District Court, Judge Dollinger denied Kassab’s first motion to designate responsible third
parties because Kassab failed to pleaed sufficient facts showing that the alleged responsible third
parties were responsible for the hafr f ms underlying Pohl’s claims.1 Judge Dollinger’s ruling reached
the proper result, and with nyo new factual allegations, the same result is appropriate here.
As laid out in PCohl’s Objection, Kassab’s Supplemental RTP Motion did not address the
failings of the origianal motion—instead, it simply copies and paraphrases, in a new order, prior
factual allegatiofns that Judge Dollinger found to be deficient. See generally Pohl’s Objection to
Kassab’sU Supplemental Motion to Designate Responsible Third Parties, filed Nov. 30, 2022.
Because Kassab chose to assert the same facts, which were previously found to be insufficient
under the pleading standard, the Court should deny Kassab’s Supplemental RTP Motion.
1 See Court Order, dated Oct. 31, 2022 (denying Kassab’s first motion to designate responsible third parties); see also
generally Pohl’s Objection to Kassab’s Motion to Designate Responsible Third Parties, filed May 31, 2022.
B. Kassab’s Motion to Abate was properly denied.
In the fall of 2022, Kassab filed his Motion to Abate. Judge Dollinger correctly found that
abatement of this case was not proper or necessary. Nothing has changed since that ruling
occurred, and the Court should decline to revisit the denial of Kassab’s Motion to kAbate.
Kassab does not explain why he believes that Judge Dollinger’s decisioln to deny Kassab’s
Motion to Abate was wrong. See generally Motion. Instead, Kassab sucggests that abatement is
justified because he contends that “the outcome of Cheatham could sresult in a judgment against
Pohl for barratry, which will definitively establish Kassab’s defenses to Pohl’s claims.” See id. at
2. That is not true, and Pohl’s Response to the Kassab Defendants’ Motion to Abate Trial Setting,
filed Sept. 15, 2022 (“Pohl’s Response to Kassab’s Motion to Abate”), clearly explains why
abatement is not appropriate.
Even if barratry were relevant in this matter—and it is not—the results in a separate lawsuit
in which Pohl, but not Kassab, is a party cannot establish Kassab’s defenses in this lawsuit.
Kassab’s Motion to Abate argues abeatement is proper for two reasons: (1) Pohl is still incurring
damages; and (2) the outcome off a separate lawsuit—the Cheatham case—will impact Kassab’s
illegality (unlawful acts doyctrine) defense. See generally Kassab’s Motion to Abate. These
arguments did not withCstand scrutiny.
First, the faact that this case might involve future damages does not justify abatement.
Future damagesf are not an uncommon occurrence, and to recover such damages, Pohl must satisfy
the ordinUary standard of showing to the jury that he will sustain those damages with reasonable
probability. Second, Kassab’s unlawful acts defense has been preempted and does not apply—a
fact which is laid out in Pohl’s Response to Kassab’s Motion to Abate. Because nothing has
changed since the Motion to Abate was correctly ruled on in the first instance, the Court should
deny Kassab’s request to reconsider that ruling.
C. Kassab has not shown that Pohl waived the attorney–client privilege, and thus
Kassab’s Motion to Compel was properly denied.
Kassab provides no explanation for why the Court should reconsider Judge Dollinger’s
denial of Kassab’s Motion to Compel. Kassab improperly sought to pierce the attorney–client
privilege, but he failed to show how the legal elements of the offensive-use dorctrine were met.
Kassab’s Motion does nothing to explain why Kassab’s position was right on the merits, and the
Court should deny the Motion without revisiting this decision. r i
In his Motion to Compel, Kassab improperly sought to oDbtain attorney–client privileged
materials between Pohl and Billy Shepherd (Pohl’s current attosrney in the Cheatham matter). See
generally Motion to Compel. Kassab is particularly inrterested in obtaining these privileged
materials because Kassab is counsel to the plaintiffs who are suing Pohl in the Cheatham matter.
Thus, in this lawsuit, Kassab sought to obtain prlivileged materials from a third party who is his
opposing counsel in the Cheatham matter. M
Given that Kassab’s Motion too Compel was filed in conjunction with multiple other
discovery motions, Pohl filed a joinct response that addressed it as well as other discovery motions
filed by Kassab. See Plaintiffs’ Response in Opposition to the Kassab Defendants’ Three New
Motions to Compel, at 7–16, filed Sept. 27, 2022. For the reasons stated in that response, the Court
should deny Kassab’s request to reconsider the denial of Kassab’s Motion to Compel. Not only
has Kassab failedc to establish offensive-use waiver, but independently, it was a reasonable exercise
of Judge Dol o linger’s discretion to deny Kassab’s attempt to obtain this privileged information.2
Therefore, the Court should decline to reconsider this ruling and should deny the Motion.
2 Kassab never showed that he diligently pursued the discovery sought in the Motion to Compel prior to the close of
discovery. Given this, and that Kassab sought privileged materials from Pohl’s counsel (who is opposing counsel to
Kassab in another lawsuit), Judge Dollinger was entitled to exercise his discretion to limit the scope of discovery and
deny Kassab access to privileged materials. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (“scope of
discovery is within the trial court’s discretion”); In re State Farm Lloyds, 520 S.W.3d 595, 599 (Tex. 2017) (“discovery
rules imbue trial courts with the authority to limit discovery based on the needs and circumstances of the case”).
II. CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the Court deny Kassab’s Motion, in part; deny Kassab’s Supplemental
RTP Motion; and decline to reconsider prior rulings on Kassab’s Motion to Abatke and Kassab’s
Motion to Compel. l
Dated: March 8, 2023 Respectfully submitted, c
REYNOLDS FRIZZELL LsLP
By: /s/ Jean C. Frizzell
Jean C. Fsrizzell
State Bar No. 07484650
1100 Louisiarna St., Suite 3500
Houston, Texas 77002
Tel. 713.485.7200
Fax 713.485.7250
jfrizlzell@reynoldsfrizzell.com
MAttorney for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CEcRTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texasy Rules of Civil Procedure on this 8th day of March, 2023.
/s/ Jean C. Frizzell
a Jean C. Frizzell
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73486867
Status as of 3/9/2023 8:36 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/s8/2023 7:39:40 PM SENT
Andrew Johnson ajohnson@thompsoncoe.comg3/8/2023 7:39:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com u3/8/2023 7:39:40 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT
Murray Fogler mfogler@fbfog.comy 3/8/2023 7:39:40 PM SENT
Dale Jefferson 10607900 jefferson@mdjwalaw.com 3/8/2023 7:39:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 3/8/2023 7:39:40 PM SENT
Kevin Graham Cain 24012371 cain@mdojwlaw.com 3/8/2023 7:39:40 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/8/2023 7:39:40 PM SENT
Todd Taylor ttayflor@jandflaw.com 3/8/2023 7:39:40 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 3/8/2023 7:39:40 PM SENT
Lance Kassab peserve@kassab.law 3/8/2023 7:39:40 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 3/8/2023 7:39:40 PM SENT
Scott M.Favre a l scott@favrepa.com 3/8/2023 7:39:40 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/8/2023 7:39:40 PM SENT
Andrea Mendez o andrea@kassab.law 3/8/2023 7:39:40 PM SENT
Lance KassabU lance@kassab.law 3/8/2023 7:39:40 PM SENT
David Kassab david@kassab.law 3/8/2023 7:39:40 PM SENT
Nicholas Pierce nicholas@kassab.law 3/8/2023 7:39:40 PM SENT
D Kassab david@kassab.law 3/8/2023 7:39:40 PM SENT
L Kassab lance@kassab.law 3/8/2023 7:39:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT
Kelly Skelton reception@kassab.law 3/8/2023 7:39:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT"
46,2022-11-30,MSJ,Pohl,Partial MSJ on Barratry Liability,Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants,"Pre-trial motion filed November 30, 2022 by Pohl, five days before the December 5, 2022 trial setting. Seeks legal rulings under Tex. R. Civ. P. 166a(g) to narrow trial issues by: (1) finding barratry is not legally relevant to this lawsuit, and (2) striking 10+ of Kassab's affirmative defenses as barred as a matter of law.",MSJ-3,N/A,Phase 3,2022-11-30_MSJ_Pohl-Partial-MSJ-Barratry-Liability_FILED.pdf,"Find that: (1) establishing whether barratry occurred is not legally relevant to this lawsuit; (2) Kassab's affirmative defenses of unlawful acts, illegality, criminal acts, in pari delicto, justification, immunity under Rule 17.09, unclean hands, release, accord and satisfaction, estoppel, subject to a valid contract, assumption of the risk, and contribution are barred as a matter of law","11/30/2022 8:20 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 70589892
By: Deandra Mosley
Filed: 11/30/2022 8:20 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ r
LANCE CHRISTOPHER § l
KASSAB, et. al §
§ c
Defendants. § 189TH JUDrICIAL DISTRICT
PLAINTIFFS’ RULE 166(g) MOTION ON BARRATRY LIDABILITY AND SPECIFIC
AFFIRMATIVE DEFENSES ASSERTED BY THE KASSAB DEFENDANTS
Under Texas Rule of Civil Procedure 166(g), Plaintiffs Michael Pohl and Law Office of
Michael A. Pohl PLLC (collectively “Pohl”) file this Motion on the issues of the relevance of
barratry liability and the legal viability of specific affirmative defenses asserted by the Kassab
defendants (the “Motion”). Pohl requests tahat the Court find Defendants Lance Christopher
Kassab and Lance Christopher Kassab P.C.’s (collectively, “Kassab”) theories regarding
establishing barratry and certain otheer legal defenses fail as a matter of law.
f I. STANDARD
Under Texas Rule ofy Civil Procedure 166(g), this Court can decide legal issues at pretrial
“to assist in the disposition of the case without undue expense or burden to the parties . . . .” See
Tex. R. Civ. P. 166a(g). Allowing this trial to subsume the question of whether Pohl committed
barratry, in connfection with clients whose information Kassab later misappropriated, would greatly
extend the length of trial, and it would needlessly complicate the issues presented to the jury. A
legal determination by this Court that whether barratry did in fact occur is immaterial to Pohl’s
claims—whether as a matter of denial or as a defense—would assist in disposing of this case with
less undue burden and expense. Furthermore, determining whether certain defenses fail as a matter
of law is a set of legal questions the Court can decide to appropriately focus the trial in this case.
II. DISCUSSION
To prevent “undue expense” and additional “burden to the parties,” and to ensure that trial
does not proceed for longer than is necessary, this Court should find that establishing whether
barratry occurred is not legally relevant to the material issues in this case and that ten of Kassab’s
affirmative defenses are not legally viable and have no bearing at trial. l
A. The alleged existence of barratrous conduct by Pohl is not ac dtenial of or defense to
Pohl’s claims, and Kassab’s desire to present evidence on irti is not material.
Barratry does not constitute a defense to claims for theft oDf tirade secrets,1 conversion,2 or
conspiracy.3 Even if Kassab could show that all of Pohl’s fosrmer and prospective clients were
obtained through barratry—and he cannot—it would not prevent, nor is it material to, Pohl’s ability
to establish the elements of his claims. 4 Because the alleged existence of barratry does not impact
Pohl’s ability to establish his claims, nor does it constitute a defense to Pohl’s claims if established,
the Court should find that as a matter of lawM, establishing barratry is not legally relevant at trial.
Kassab’s position is that, as oa lawyer, he was entitled or otherwise justified in
misappropriating and converting ncot only another lawyer’s proprietary information, but also
confidential and privileged information about another lawyer’s clients simply because Kassab
hoped to find evidence of bparratry claims to pursue against Pohl. Kassab likewise suggests that it
was appropriate to solicit and entice the employees or contractors of another lawyer to violate their
1 A trade secrets cfl f aim under the Texas Uniform Trade Secrets Act (“TUTSA”) involves the following elements: (1)
a plaintiff owned trade secrets; (2) a defendant misappropriated the trade secrets; and (3) that the misappropriation
caused the plaintiff damages. See Tex. Civ. Prac. & Rem. Code §§ 134A.002 & 134A.004.
2 A conversion claim can include the following elements: “(1) the plaintiff owned, had legal possession of, or was
entitled to possession of the property; (2) the defendant assumed and exercised dominion and control over the property
in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the plaintiff’s rights; and [applicable
in some cases] (3) the defendant refused the plaintiff’s demand for return of the property.” Akin v. Santa Clara Land
Co., Ltd., 34 S.W.3d 334, 344 (Tex. App.—San Antonio 2000, pet. denied); see also Hunt v. Baldwin, 68 S.W.3d 117,
131 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
3 The elements of conspiracy are familiar: (1) a combination of at least two persons; (2) the persons seek to accomplish
an object or course of action; (3) there is a meeting of the minds on the object or course of action; (4) one or more
unlawful, overt acts are taken in furtherance of the conspiracy; and (5) damages occur.
4 Pohl asserts claims for conversion, TUTSA violations, and conspiracy. Plaintiff’s First Amended Petition ¶¶ 35–43.
obligations by disclosing confidential information, simply because Kassab believed it could help
support a claim against Pohl. However, the law does not authorize tortious conduct because a
person may believe that conduct could help them uncover some other allegedly wrongful acts.
As will be discussed further in the motions in limine and before the Coukrt, the topic of
barratry is relevant to this case in certain, limited respects. The fact that Kassabl wanted to and did
pursue barratry claims against Pohl necessarily will be a part of this casec. But evidence trying to
prove the merits of such claims for barratry should not be presented sto the jury. However, since
the start of this lawsuit, Kassab has attempted to inject the broader question of whether barratry
did in fact occur into this lawsuit—Kassab even surreptitiously asserted claims pending in other
lawsuits as counterclaims in this lawsuit. But there is a reason that Kassab uses bombastic
language and allegations rather than clear and plain language to articulate the relevance of
barratry—Kassab is intent on using this issuea to paint Pohl in a negative light in front of the jury.
Still, any presentation of evidence directed at establishing whether Pohl violated rules against
barratry is not material to the issues ine this case, because establishing barratry does not (1) prevent
Pohl from establishing the elemenfts of his claims; and (2) is not a defense to Pohl’s claims.
1. Establishing barryatry does not deny the factual bases of Pohl’s claims or prevent Pohl
from establishing the elements of his claims.
On their face, the elements necessary to establish a TUTSA claim, a conversion claim, and
the existence of ac conspiracy have nothing to do with barratry. Kassab conflates the idea that a
client contract procured through barratry is voidable (in an action brought by the client who is a
party to the contract) with the distinct issue of ownership of trade secret information. Establishing
that barratry occurred does not entail revoking an attorney’s ownership of compilations of
information about clients the attorney has represented. Nor does a contract’s voidability impact
the ownership of information reflected in the contract. Thus, whether Pohl committed barratry is
not a relevant matter that could deny Pohl the ability to establish the elements of his claims.
Kassab incorrectly appears to believe that barratry may implicate Pohl’s ownership of the
trade secrets. There is no legal basis for this position. Because establishing that bakrratry occurred
will not operate to deny Pohl the ability to establish his claims, it is not a relelvant issue that the
jury needs to consider or receive evidence on. c
i. The alleged barratry does not impact Pohl’s ownershisp of the trade secrets.
To prevail on his TUTSA claim, Pohl must be an owner of trade secrets. The statute
provides that owner “means, with respect to a trade secret, the person or entity in whom or in which
rightful, legal, or equitable title to, or the right to enforce rights in, the trade secret is reposed.”
See Tex. Civ. Prac. & Rem. Code § 134A.002(3 n -a).5 To the extent that Kassab argues that
establishing that Pohl committed barratry impracts Pohl’s ability to be the owner of any trade
secrets, that argument fails as a matter of law. Kassab has conflated the enforceability of a client
contract against a client allegedly eobtained through barratry with whether Pohl owns the
information regarding with whomf Pohl has contracted—information reflected on copies of Pohl’s
own client contracts. y
Pohl has legal or equitable title to the information that comprises his client list, as well as
the collection of coapies of attorney-client fee agreements, and the other files misappropriated by
Kassab regardlefss of how clients listed in those files were obtained. Based on his prior arguments,
Kassab appears to believe that Pohl cannot prevail on his claims without showing that every client
5 To the extent that Kassab suggests that the phrase “equitable title” imports some form of equitable analysis to whether
Pohl owns the trade secrets, there is no legal support for this position. The reference to “equitable title,” especially in
connection with the reference to “legal title,” simply incorporates the idea of beneficial ownership into the statutory
definition. Equitable title is a “title that indicates a beneficial interest in property and that gives the holder the right to
acquire formal legal title.” See Title: Equitable Title, Black’s Law Dictionary (11th ed. 2019).
behind each client contract was procured without barratry. That is not the case, and Kassab cannot
demonstrate that the existence of barratry is legally material to this lawsuit.
To understand why establishing barratry is not material, it may be useful to contemplate
what the impact would be if one assumed that Kassab can show that Pohl had obktained some, or
even all, of his clients and potential clients through barratry. Even if a client hlas a valid claim for
barratry, there is no legal support for the idea that simply because barractry occurred, the former
lawyer loses (1) ownership of the collection of information constitutisng the lawyer’s client list; or
(2) ownership of the attorney’s copy of the client contract. Rather, the statutory scheme suggests
the precise opposite. A client contract is not rendered void even if it is established that barratry
occurred. It is merely voidable if the client brings an action to have the contract declared void.
See Tex. Gov’t Code § 82.0651(a). There is no dispute that none of Pohl’s client contracts have
been declared void. This would not change eaven if Kassab established that barratry occurred in
this lawsuit, because only the client can have a contract declared void. See id.
But the lack of relevance exteends a step further. Even in a hypothetical world where some
of Pohl’s clients had their client cfontracts declared void, that would not mean that Pohl’s client list
and copies of client contractsy no longer belong to him. It would simply mean that a client contract
that was declared voidC is not enforceable against the client. There is no support for the idea once
a contract has been daeclared void, an attorney is divested of ownership of the information regarding
with whom he hfas contracted. Nor would an attorney be divested of ownership of all copies of the
void clienUt contract in his possession. Nor would the fact that a contract was declared void impact
an attorney’s ownership of a compilation of information about clients that included the information
about one client whose contract was declared void. There simply is no support for the idea that a
finding of barratry, even if it voids a client contract, results in relief, finding, or a circumstance
where an attorney must then purge his or her records of all references to that client and their
information.
Kassab’s arguments around barratry rely on obfuscating the issues that are actually before
the Court. Kassab has conflated the voidability of a contract—which can preveknt that contract
from being enforced—with ownership of trade secrets that include the compilaltion of information
contained in those contracts. Regardless of whether barratry occurred, Pohcl owned the information
about with whom he has done business, whether that information toosk the form of client contracts
or client lists. While Kassab may dispute if Pohl owned those trade secrets, whether barratry
occurred will not impact that determination.
2. Establishing barratry is not a standalone defense to Pohl’s claims.
While Kassab’s various other pled defenses are discussed below, it is important to note that
despite Kassab’s framing of this case, establishirng barratry is not an affirmative defense to Pohl’s
claims. There are no “outlaws” under Texas law. Kassab’s unsubstantiated belief that Pohl
engaged in barratry does not give Kaessab the right to ignore Pohl’s legal rights (and to treat Pohl
as outside the law’s protections) bfy misappropriating and converting Pohl’s property.
“An affirmative defeynse is defined as ‘a denial of the plaintiff’s right to judgment even if
the plaintiff establishes every allegation in its pleadings.’ An affirmative defense allows the
defendant to introdauce evidence to establish an independent reason why the plaintiff should not
prevail; it does fnot rebut the factual proposition of the plaintiff’s pleading.” Hassell Constr. Co.,
Inc. v. Stature Commercial Co., Inc., 162 S.W.3d 664, 667 (Tex. App.—Houston [14th Dist.] 2005,
no pet.) (citations omitted).
Despite prior insinuations from Kassab, establishing barratry is not a standalone defense to
Pohl’s claims, nor has Kassab pled it as a standalone defense. See generally Kassab’s Eighth
Amended Answer, Affirmative Defenses and Counterclaim (“Kassab’s Eighth Answer”). Even if
Kassab could prove that Pohl committed barratry, that is not an independent basis for denying Pohl
recovery on his claims in this lawsuit. Kassab’s desire to focus on allegations of barratry is part
of his strategy to distract and prejudice the jury against Pohl through Kassab’s repetitive,
inaccurate, and inflammatory claims that Pohl is a criminal or has violated felony crkiminal statutes.
Kassab’s attempts to use his allegations of barratry as a defense are novell and without legal
support. Kassab cannot cite to any Texas cases involving a claim for thceft of trade secrets or a
claim for conversion where barratry was found to be an affirmatisve defense to those claims.
Instead, what Kassab has pointed to are cases where courts have stated that they will not enforce
a contract that is void for illegality. The defenses of illegality and unlawful acts are discussed
more thoroughly below. See infra Part II(B)(1). But the Court should not be confused by Kassab’s
attempt to cite inapplicable caselaw in this context. Pohl is not seeking to enforce any client
contract, nor is he seeking to recover the procaeeds generated under any of those client contracts.
Because it does not constitute a defense and has not been explicitly pled as a defense, the Court
should find that establishing barratry eis not a standalone defense to Pohl’s claims.
3. Kassab should not be fpermitted to prejudice the jury through unconnected allegations
of prior bad acts that Kassab has no standing to assert.
The rules against barratry can only be enforced by specific parties against a lawyer through
specific and limited avenues. The Texas State Bar can enforce disciplinary rules involving barratry
through disciplincary proceedings brought against a lawyer. The State of Texas can enforce
criminal statutes prohibiting barratry by bringing criminal charges against a lawyer. And finally,
Texas allows clients who were solicited through barratry to sue under a civil statute. Kassab has
no standing under any of these three avenues to allege and prove that Pohl committed barratry.
If the Court permits Kassab to introduce evidence to try and establish that barratry
occurred, it would be allowing Kassab to enforce the disciplinary rules, criminal statutes, or the
civil liability statute even though Kassab would have no ability to do so in any other proceeding.
This would be improper and distract from the issues that the jury must decide in this case.
To the extent that evidence concerning, relating to, or mentioning barratry is permitted, it
should be limited, and be accompanied by a limiting instruction, to evidence thatk can be directly
linked to the plaintiffs who seek civil liability against Pohl (which are all reprelsented by Kassab).
These are the only clients for which allegations of barratry have any placusible bearing. But this
should be very carefully limited to prevent the use of the evidence as simproper character evidence
or to suggest that Pohl procured all of his clients through barratry.
B. Ten of Kassab’s so-called affirmative defenses fail as a matter of law.
In his eighth amended answer, Kassab asserted numerous affirmative defenses. As a matter
of law, ten of those defenses do not exist or do not apply in this case. To streamline the issues
presented at trial, the Court should find that the rten defenses discussed below are not legally viable
and will not be considered at trial. 
1. Kassab’s Unlawful Acts Deoctrine defense—whether called illegality, criminal acts, or
“in pari delicto”—is preccluded under clear Texas Supreme Court Precedent.
Kassab’s current pleading asserts a defense of “Illegality/Criminal Acts,” but his prior
answer described it as thep “Illegality/Criminal Acts/Unlawful Acts Rule” defense. Compare
Kassab’s Eighth Answer, at 4, with Kassab’s Seventh Answer, at 4. Separately, Kassab also asserts
a defense of “in pcairi delicto.” See Kassab’s Eighth Answer, at 4. Regardless of the title Kassab
uses to descroibe it, the unlawful acts doctrine has been supplanted under Texas law. As for
illegality and in pari delicto, they apply when a plaintiff seeks to enforce an illegal contract.
Because none of Pohl’s claims involve a request to enforce any contract—let alone one that is
allegedly illegal—the defenses of in pari delicto and illegality have no application to this case.
First, to the extent that the unlawful acts doctrine could have any relevance, it is preempted
by Texas’s proportionate responsibility statute. In Dugger v. Arredondo, the Texas Supreme Court
considered “whether the common law unlawful acts doctrine is available as an affirmative defense
under the proportionate responsibility framework.” 408 S.W.3d 825, 831–32 (Tekx. 2013). The
Court found that “it is not,” and that “[t]he plain language of section 33.003 cllearly indicates that
the common law unlawful acts doctrine is no longer a viable defense.” Idc. at 832.
Pohl laid out the preemption problem in his response to Kasssab’s affirmative motion for
traditional summary judgment.6 Kassab likely changed his description of this defense due to that
prior briefing and Pohl pointing out that Kassab acknowledged this defense was preempted in prior
briefing.7 However, Kassab describing the defense differently does not make a difference. While
this defense would fail on the merits, that question is not reached, as the defense is preempted. A
defense does not become un-preempted becauase a party calls it a different name.
Second, there are other related defenses that go by the name of “illegality,” or sometimes
“in pari delicto.” Kassab’s assertionse of these defenses also fail as a matter of law. Those defenses
apply to a party seeking to enforfce an illegal contract. Because it is undisputed that Pohl is not
attempting to enforce any coyntract, let alone an illegal contract, these defenses do not apply.
Illegality or theC in pari delicto defense apply when a party comes into court seeking to have
the court enforce ana illegal agreement. See Jefferson Cnty. v. Jefferson Cnty. Constables Ass’n,
546 S.W.3d 661f, 666 (Tex. 2018) (discussing illegality defense); Geis v. Colina Del Rio, LP, 362
S.W.3d 1U00, 106 (Tex. App.—San Antonio 2011, pet. denied) (“The defense of in pari delicto
requires Texas Courts, as a general rule, to decline to enforce illegal contracts when the contracting
6 Pohl incorporates that briefing and its evidence as it pertains to the issue of the Unlawful Acts Doctrine. See
Plaintiffs’ Response In Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholson Defendants, at 19–27, filed Sept. 12, 2022.
7 See Plaintiffs’ Response to the Kassab Defendants’ Motion to Abate Trial Setting, at 6–7, filed Sept. 15, 2022.
parties are equally blameworthy.”). These defenses are related to the unlawful acts doctrine. See
Dugger, 408 S.W.3d at 829 (unlawful acts “doctrine originated with the principle of in pari delicto
or ‘unclean hands’ in the contract context, but was extended to tort causes of action”).
Pohl has not asserted any contract claim against Kassab, nor do any ofk his tort claims
involve enforcing the terms of any allegedly illegal contract. See generallly Pohl’s Amended
Petition. Even if the enforceability of Pohl’s client fee agreements were rcelevant, that condition is
satisfied here. The Texas legislature provided that agreements prsocured through barratry are
voidable, not void, and that a client may obtain a finding that voids the agreement.8 It is undisputed
that not a single one of Pohl’s client fee agreements have been declared void.
Because the unlawful acts doctrine has been preempted it cannot apply, regardless of what
name Kassab uses to describe it. And because there is no contract the Court could decline to
enforce, the defenses of illegality and in pari daelicto do not apply as a matter of law. Alternatively,
even if such defenses could apply, they would not be triggered absent the statutory finding that a
contract was void, which has not ocecurred and cannot occur in this lawsuit. For these and the
reasons discussed above, the Coufrt should find that these defenses do not apply as matter of law.
2. The defense of “jyustification” is not available as a matter of law.
Kassab also asserts the defense of “justification.” Kassab’s Eighth Answer, at 3. Kassab
presumably contendas that he was “justified” in stealing Pohl’s client lists and other trade secrets
because he beliefves Pohl committed barratry. The problem with this theory is that “justification”
is not a defense to Pohl’s claims. Even if it were, Kassab could not arguably be “justified” in
stealing Pohl’s trade secrets because Kassab does not allege that Pohl’s barratry involved Kassab.
8 See Tex. Gov’t Code § 82.0651(a) (stating that “client may bring an action to void a contract for legal services that
was procured as a result of conduct” often described as barratry).
10
Justification is an affirmative defense to a claim of tortious interference with contract. See
Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996) (describing defense); Knox v.
Taylor, 992 S.W. 2d 40, 59 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (justification is an
affirmative defense to tortious interference). “Justification” is not a recognized dekfense to theft of
trade secrets, conversion, or conspiracy. The defense is an assertion that the deflendant was legally
justified in interfering with the plaintiff’s contract through either a contracctual or legal right. See
Tex. Beef Cattle, 921 S.W.2d at 210. It is not a generally available dsefense to all torts.9 Even for
claims where the justification is available as a defense, if a party’s acts “are tortious in themselves,
then the issue of privilege or justification never arises.” See Prudential Ins. Co. of Am. v. Fin.
Review Servs., Inc., 29 S.W.3d 74, 81 (Tex. 2000).
Even if Texas recognized “justification” as a defense to claims of theft of trade secrets,10
conversion, or conspiracy, Kassab has not anad could not allege a basis on which to assert such a
defense. First, Pohl’s allegations are that Kassab’s actions were tortious in themselves, and thus,
justification does not apply. See Prudeential, 29 S.W.3d at 81. Second, Kassab cannot legitimately
contend that Pohl took any actionf against them or that involved them before they committed the
torts that form the basis of Pyohl’s claim. The notion that Kassab was “justified” in committing
torts to obtain confidenCtial trade secrets so he could pursue claims of barratry, on behalf of third
9 There is one case, previously cited by Kassab, that states justification is an affirmative defense in the antitrust context.
See Money Mastefrs, Inc. v. TRW, Inc., No. 05-98-02017-CV, 2003 WL 152770, at *5 (Tex. App.—Dallas Jan. 23,
2003, pet. denied). However, this case further supports the conclusion that justification is not a generally applicable
defense that can be asserted against any tort claim. In finding that “[j]ustification is an affirmative defense to both an
antitrust claim and a claim for tortious interference,” the court cited to a specific statute that provides that a party is
justified in engaging in activities that may otherwise violate antitrust law if those activities are required under certain
statutory or regulatory authority. See id. (citing Tex. Bus. & Com. Code § 15.05(g)). Pohl does not dispute that the
Texas legislature could create a statutory justification defense to additional claims. However, the legislature has not
extended the applicability of the defense of justification to any of the claims asserted by Pohl in this case.
10 Kassab has also argued that “Texas courts have considered the defense in relation to theft of trade secrets” in his
prior briefing and cited to one case. See Lamont v. Vaquillas Energy Lopeno Ltd., LLP, 421 S.W.3d 198 (Tex. App.—
San Antonio 2013, pet. denied). While that case involved a claim for theft of trade secrets, the defense of justification
was not applied to that claim, rather, the court applied it to a tortious interference claim and stated that “[l]egal
justification or privilege ‘is an affirmative defense to tortious interference with contract.’” See id. at 218.
11
parties, fails as a matter of law and as a matter of logic. To the extent that Kassab argues that he
was justified in engaging in this tortious conduct on behalf of clients that did not exist at the time
he committed the relevant tortious activity, there is no support to his interpretation of this defense.
To streamline the issues presented at trial, the Court should find that this defense fkails legally.
3. The so-called defense of “Immunity under Rule 17.09 of thel Texas Rules of
Disciplinary Procedure” does not apply as a matter of law.
Kassab asserts that “Immunity under Rule 17.09 of the Texrais Rules of Disciplinary
Procedure” protects him from liability for his actions in this lawsuiDt. See Kassab’s Eighth Answer,
at 4. However, Kassab misunderstands Rule 17.09. It providess immunity to certain officials, such
as members of the Texas Commission for Lawyer Discipline. It also limits a plaintiff’s ability to
file a lawsuit predicated on a person’s involvement in the grievance process when that person is
the complainant or a witness. However, because Pohl’s claims, and thus the lawsuit, are not
predicated on Kassab’s involvement in the Mgrievance process, Rule 17.09 does not apply.
Rule 17.09 provides that: “Noo lawsuit may be instituted against any Complainant or
witness predicated upon the filing ocf a Grievance or participation in the attorney disciplinary and
disability system.” TEX. RULES DISCIPLINARY P. R. 17.09. It does not provide immunity simply
because there is some connection between a case and the grievance process. The immunity that is
provided under the rule is limited to certain officials connected to the State Bar, and such officials
“are immune fromc suit for any conduct in the course of their official duties.” Id. For a lawsuit to
be “predicate o d upon” something, that something must be what the lawsuit is based or founded on.11
Kassab’s involvement in the grievance process does not give rise to Pohl’s claims. Pohl’s
claims against Kassab are based on his misappropriation and conversion of Pohl’s property—
11 Predicate, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/predicate (accessed
Nov. 28, 2022) (listing “FOUND, BASE” as a definition of “predicated”).
12
including his improper purchase and/or acquisition of Pohl’s client list, which included actual
attorney-client fee agreements. See generally Amended Petition. These claims accrued upon
Kassab’s acquisition of the client information or use of the client information to solicit those
clients. Thus, Pohl’s claims accrued prior to any grievance being filed by Kassakb. Because the
claims asserted pre-date the filing or participation in any grievance by Kassab, lthis lawsuit cannot
have been “predicated upon the filing of a Grievance,” and Rule 17.09 doces not apply.
Based on Kassab’s prior briefing on this subject, he appears tos believe (or wish through his
selective quotations) that Rule 17.09 provides absolute immunity to him for anything he can
connect to the grievance process—even though he is not a State Bar official. But that is not what
the rule provides. A simple hypothetical shows how this lawsuit is not predicated on Kassab’s
participation in the grievance process. If Kassab had never filed or participated in the grievance
process, would Pohl’s claims in this lawsuit satill exist? Given that Pohl’s claims accrued prior to
Kassab’s participation in the grievance process (starting in 2028), the answer is clearly yes. The
fact that Kassab has taken the positioen on multiple occasions that Pohl’s claims accrued prior to
2018 and are barred by limitationfs shows that the fact that the basis or predicate of Pohl’s claims
predates the grievances is noyt something that can be disputed.12
Pohl anticipateCs that Kassab may argue that a small portion of Pohl’s damages are
connected to the griaevance process, and that this triggers application of Rule 17.09. However, the
fact that there isf some connection that can be drawn between a grievance and a lawsuit does not
implicateU Rule 17.09. There must be a showing that the lawsuit is predicated upon the grievance,
not merely connected to it, especially when the claims accrued prior to the filing of any grievance.
Participating in the grievance process is not a get-out-of-jail-free card for prior wrongful conduct.
12 See, e.g., Kassab’s Traditional Motion for Summary Judgment, at 2, 44–57, filed Aug. 29, 2022 (arguing that Kassab
had conclusively established that Pohl’s claims against Kassab accrued years prior to the filing of this lawsuit).
13
A party’s participation in the grievance process is protected. But a person who commits a tort and
then subsequently files a grievance is not somehow absolved for what they did prior to their
involvement in the grievance process.
Because this lawsuit is not predicated on Kassab’s participation in the grikevance process,
the Court should find that Rule 17.09 does not apply as a matter of law. l
4. Unclean hands is not a defense to legal claims. c
Kassab asserts “unclean hands” as an affirmative defense. Ssee Kassab’s Eighth Answer,
at 3. Here again, Kassab presumably hopes to inject his claims of barratry to muddy the issues in
the trial of this case. But unclean hands is not available as a defense to the claims asserted here,
nor is it applicable to the type of relief currently sought by Pohl.
Texas law provides that unclean hands is an affirmative defense that may bar a party with
unclean hands from obtaining equitable relief. r See Wood v. Wiggins, 650 S.W.3d 533, 556 (Tex.
App.—Houston [1st Dist.] 2021, pet. denied). However, there is both a nexus requirement, and a
requirement that the party invoking tehe defense “must show an injury to himself arising from the
conduct.” Id. “‘The clean hands mfaxim should not be applied when the defendants have not been
seriously harmed and the wryong complained of can be corrected without applying the doctrine.’”
Id. (citation omitted).
Kassab’s usae and dissemination of Pohl’s trade secrets is a bell that cannot be unrung.
Thus, while Pohfl previously pled injunctive relief in his petition, to streamline issues for trial, Pohl
will no longer seek this relief. Because Pohl does not seek any equitable relief, and the defense is
not available to Pohl’s tort claims, the Court should preclude consideration of the “unclean hands”
defense at trial as a matter of law.
To the extent that Kassab can show that the defense still has legal application for some
other reason, the Court can still narrow the issues for trial by finding that Kassab cannot use
14
allegations of barratry, improper solicitation, or other supposed conduct relating to Pohl’s former
and prospective clients to prove up this defense. There is no plausible theory by which that conduct
caused Kassab an injury, rather than an alleged injury to Pohl’s former clients. See Wiggins, 650
S.W.3d at 556 (party asserting defense “must show an injury to himself arising fromk the conduct.”).
Because the defense of unclean hands does not apply to Pohl’s claims orl the relief he seeks,
the Court should find that as a matter of law, the defense has no applicaction or relevance to the
trial in this matter. In the alternative, the Court should find that, as as matter of law, any theory of
unclean hands based on Kassab’s allegations that Pohl committed barratry or other misconduct
relating to Pohl’s former and prospective clients is not relevant, as it did not harm Kassab.
5. The defenses of release, accord and satisfaction, estoppel, and “subject to a valid
contract” are not available as a matter of law.
Kassab’s current answer also purports to assert defenses of “release,” “accord and
satisfaction,” “estoppel,” and “subject to a Mvalid contract.” See Kassab’s Eighth Answer, at 3–4.
However, in his prior summary judgmoent briefing, Kassab acknowledged that “contract-related
affirmative defenses of release, accocrd and satisfaction, estoppel do not apply to Kassab.”13 Pohl
agrees, and thus, this Court should find that because Pohl has not pled a contract claim against
Kassab, the defenses of release, accord and satisfaction, and estoppel do not apply in this case as
a matter of law. See Plaintiff’s First Amended Petition ¶¶ 35–43 (not asserting any claims
sounding in contrcact against Kassab).
As for Kassab’ assertion of the defense of “subject to a valid contract,” this defense appears
to be a rewording of the express contract defense. That defense has no application here as a matter
of law. The express contract defense applies to prevent a plaintiff from recovering in quantum
13 See The Kassab Defendants’ Response to Plaintiffs’ Motion for Partial Traditional and No-Evidence Summary
Judgment, at 16, filed Sept. 12, 2022.
15
meruit when a plaintiff seeks “to recover the reasonable value of services rendered or materials
supplied” but “there is an express contract that covers those services or materials.” See Pepi Corp.
v. Galliford, 254 S.W.3d 457, 462 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Pohl has
not pled or argued claims that would support such a defense, nor has Kassab madek any allegations
that could plausibly support this defense. l
Because these affirmative defenses relate to claims made in conctract, and Pohl has not
alleged any contract claims against Kassab, the Court should find sthat the defenses of release,
accord and satisfaction, estoppel, and “subject to a valid contract” do not apply as a matter of law.
6. Affirmative defenses of assumption of the risk and contributory negligence are no
longer independent defenses apart from proporrtionate responsibility.
Kassab asserts “assumption of the risk” and “contribution”14 as affirmative defenses. See
Kassab’s Eighth Answer, at 3–4. Neither of these defenses are proper defenses to the claims in
this case. The Texas Supreme Court has dMeclared that “the common law affirmative defenses of
assumption of the risk and contributory onegligence no longer exist under Texas law,” rather, their
“underlying concepts remain relevacnt under Texas’s proportionate-responsibility statute.” Austin
v. Kroger Tex., L.P., 465 S.W.3d 193, 209–10 (Tex. 2015) (footnote and citation omitted). To
narrow the issues at trial, the Court should find that these defenses are not legally viable.
PRAYER
For the recaisons set forth herein, Pohl asks the Court to find that establishing whether
barratry occuorred is not legally relevant to this lawsuit and that Kassab’s affirmative defenses of
unlawful acts; illegality; criminal acts; in pari delicto; justification; immunity under Rule 17.09;
unclean hands; release; accord and satisfaction; estoppel; subject to a valid contract; assumption
of the risk; and contribution are barred as a matter of law.
14 It is unclear what defense Kassab’s reference to “Contribution” could refer to other than contributory negligence.
16
Dated: November 30, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 r
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
17
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 70589892
Status as of 12/1/2022 8:34 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 11/30/2022 8:20:45 PM SENT
Zandra EFoley zfoley@thompsogncoe.com 11/30/2022 8:20:45 PM SENT
Andrew Johnson ajohnson@thoumpsoncoe.com 11/30/2022 8:20:45 PM SENT
Benjamin Ritz britz@thompsoncoe.com 11/30/2022 8:20:45 PM SENT
Murray JFogler mfogleyr@foglerbrar.com 11/30/2022 8:20:45 PM SENT
Murray Fogler mfaogler@fbfog.com 11/30/2022 8:20:45 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Raul Herman Suazo 24003021osuazo@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Misty Davis f mdavis@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 11/30/2022 8:20:45 PM SENT
Lance Kassab p eserve@kassab.law 11/30/2022 8:20:45 PM SENT
Jean C.Frizzell C jfrizzell@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Harris Wells a l hwells@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Scott M.Favre scott@favrepa.com 11/30/2022 8:20:45 PM SENT
Lawyer Wade o lawyerwade@hotmail.com 11/30/2022 8:20:45 PM SENT
Andrea MendeUz andrea@kassab.law 11/30/2022 8:20:45 PM SENT
Lance Kassab lance@kassab.law 11/30/2022 8:20:45 PM SENT
David Kassab david@kassab.law 11/30/2022 8:20:45 PM SENT
Nicholas Pierce nicholas@kassab.law 11/30/2022 8:20:45 PM SENT
D Kassab david@kassab.law 11/30/2022 8:20:45 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 8:20:45 PM SENT
L Kassab lance@kassab.law 11/30/2022 8:20:45 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 8:20:45 PM SENT"
47,2022-11-30,OBJ,Pohl,Objection to Kassab supp. RTP,Pohl's Objection to Kassab's Supplemental Motion to Designate Responsible Third Parties,"Filed November 30, 2022 in response to Kassab's Supplemental RTP Motion filed November 15, 2022. Judge Dollinger denied Kassab's original RTP Motion on October 31, 2022 (finding Pohl's objection was 'well taken') and gave Kassab 14 days to replead. Kassab filed 15 days later (one day late). Pohl argues the supplemental motion contains no new factual allegations. Pohl does not object to designation of Favre and Precision as RTPs.",RTP-1,N/A,Phase 3,2022-11-30_OBJ_Pohl-Objection-to-Kassab-Supp-RTP_FILED.pdf,"Deny Kassab's Supplemental RTP Motion without leave for Kassab to attempt to replead, as Kassab failed to plead sufficient facts after already being granted leave to replead","11/30/2022 4:26 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 70583280
By: Ashley Lopez
Filed: 11/30/2022 4:26 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 189TH JUDrICIAL DISTRICT
POHL’S OBJECTION TO KASSAB’S SUPPLEMENTAL MOTION TO DESIGNATE
RESPONSIBLE THIRD PARTsIES
Plaintiffs Michael Pohl and Law Office of Michael A. Pohl PLLC (collectively “Pohl”) file
this Objection to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law Firm’s Supplemental Motion to Designate Responsible Third Parties1 (the
“Supplemental RTP Motion”) and would showa the Court as follows:
Kassab’s Supplemental RTP Motion does not address the failings of the original RTP
Motion. The Court denied Kassab’se first RTP Motion2 because Kassab failed to plead sufficient
facts showing that the alleged resfponsible third parties were responsible for the harms underlying
Pohl’s claims. Kassab was ygiven a chance to replead with sufficient new facts to demonstrate
liability. However, thCe Supplemental RTP Motion contains the same factual allegations copied
and pasted from the briefing before the Court when it denied the RTP Motion. Kassab tried to
disguise this bfyf reordering and lightly paraphrasing or modifying the allegations. But Kassab
1 This Objection is primarily directed at Kassab’s Supplemental RTP Motion, filed Nov. 15, 2022. Kassab also filed
a Second Supplemental Motion to Designate Responsible Third Parties, filed Nov. 22, 2022 (“Second Supplemental
RTP Motion”). Pohl does not object to the designation of Scott Favre and Precision Marketing Group, LLC as
responsible third parties. However, Pohl objects to the Second Supplemental RTP Motion, on the same grounds as
set forth in this briefing, to the extent that it seeks the same relief sought in the Supplemental RTP Motion or seeks to
designate anyone as a responsible third party other than Scott Favre and Precision Marketing Group, LLC.
2 See Kassab’s Motion to Designate Responsible Third Parties, filed May 13, 2022 (the “RTP Motion”); see also Court
Order, dated Oct. 31, 2022 (denying the RTP Motion).
provided no new factual allegations since the Court ruled on the RTP Motion, and thus, the Court
should deny the Supplemental RTP Motion for the same reasons it denied the RTP Motion.
I. BACKGROUND
Kassab seeks the same relief in the Supplemental RTP Motion as he soukght in the RTP
Motion—he seeks to designate eight allegedly responsible third parties—Billly Shepherd, Scott
Walker (“Walker”), Steve Seymour (“Seymour”) Kirk Ladner (“Ladncer”), Dona Pohl, Edgar
Jaimes, Ken Talley, and Magdalena Santana (collectively, the “Allesged RTPs”). See generally
RTP Motion; Supplemental RTP Motion. 
After Kassab filed the RTP Motion, on May 31, 2022, Pohl timely filed his Objection to
Kassab’s Motion to Designate Responsible Third Parties (“Pohl’s Original RTP Objection”). It
clearly laid out how the allegations in Kassab’s original RTP Motion were deficient, and how none
of the Alleged RTPs “caused or contributed to causing” the harms underlying Pohl’s claims. See
generally Pohl’s Original RTP Objection (quoting TEX. CIV. PRAC. & REM. CODE § 33.011(6)).
The Court was required to designate tehe Alleged RTPs as responsible third parties unless the Court
found that Pohl’s Original RTP Ofbjection demonstrated that Kassab had failed to “plead sufficient
facts concerning the alleged yresponsibility of the person to satisfy the pleading requirement of the
Texas Rules of Civil PCrocedure.” See TEX. CIV. PRAC. & REM. CODE § 33.004(g)(1).
Kassab waiated until September 2022, to request a ruling on this issue. See generally
Kassab’s Motiofn to Rule on Plaintiffs’ Objection to Designation of Responsible Third Parties
(“MotionU to Rule”), filed Sept. 22, 2022. After Kassab’s Motion to Rule was filed, the Court held
an oral hearing, and the Court found that Pohl’s Original RTP Objection was “well taken,” and
denied Kassab’s RTP Motion. See Court Order, dated Oct. 31, 2022. Kassab was given leave to
“replead and seek the relief sought in the” RTP Motion “within 14 days of this ORDER.” Id.
Despite the Court’s deadline, Kassab took 15 days to file the Supplemental RTP Motion,3
and he then requested a continuance in part on the basis that responsible third parties had not been
designated. But even though he took 15 days, rending the request untimely, Kassab chose to
make no new material factual allegations when repleading. All of the factual akllegations in the
Supplemental Motion were contained in the RTP Motion and the Motion to Rulle. Thus, there are
no new factual allegations before the Court that the Court did not have in cfront of it when it denied
Kassab’s RTP Motion last month. s
II. COMPARISON OF THE ORIGINAL (ALREADY DENIEDs) RTP MOTION TO KASSAB’S
SUPPLEMENTAL RTP MO s TION
To assist the Court in understanding how Kassarb failed to plead new facts to justify
designating the Alleged RTPs as responsible third parties—and instead just copied and rearranged
prior allegations—Pohl provides the following dliscussion of how Kassab’s Supplemental RTP
Motion differs (or does not differ) from tMhe RTP Motion. The original RTP Motion and the
Supplemental RTP Motion are collectivoely referred to as the “Motions.”
The Motions are word-for-wcord identical for their first six and a half pages—excluding
references to the respective titles of the Motions. Compare RTP Motion, 1–7, with Supplemental
RTP Motion, 1–7. The “Facts” sections of both Motions are 100% identical to each other. See id.
The first set of real differences between the Motions are the opening three paragraphs of
the Supplementalc RTP Motion’s “Argument” section. These paragraphs discuss legal standards
and how the Court permitted Kassab to replead after the Court denied the RTP Motion. See
Supplemental RTP Motion ¶¶ 15–17. There are no new relevant factual allegations concerning
any Alleged RTP in these paragraphs. See id. Although these three paragraphs are not contained
3 The day before Kassab filed the Supplemental RTP Motion, Kassab filed an eighth amended answer containing the
same copied and pasted allegations found in his prior briefing. But Kassab did not replead and “seek the relief” he
sought in the RTP Motion until he filed the Supplemental RTP Motion after the Court-ordered deadline.
in the RTP Motion, they were copied almost word-for-word from Kassab’s Motion to Rule.
Compare id., with Motion to Rule, at 2–3.4
The only real addition of factual allegations comes with paragraph 18, which is not directly
copied and pasted from the prior RTP Motion. Compare Supplemental RTP Moktion ¶ 18, with
RTP Motion. This paragraph focuses exclusively on three Alleged RTPs—Wallker, Seymour, and
Ladner—it does not address the lack of allegations against other Alleged RcTPs. See Supplemental
RTP Motion ¶ 18. Furthermore, it is copied nearly word-for-word frosm Kassab’s brief asking the
Court to rule on the RTP Motion. Compare id., with Motion to sRule, at 3–4.5
The remaining seven paragraphs (paragraphs 19–25) of the Supplemental RTP Motion are
either directly copied from the RTP Motion, or they are lightly modified or paraphrased versions
of what was previously pled in the RTP Motion:
• Compare Supplemental RTP Maotion ¶ 19, with RTP Motion ¶ 19 (showing same
factual allegations were copMied and/or paraphrased).
• Compare Supplemental RoTfP Motion ¶ 20, with RTP Motion ¶ 17 (same).
• Compare Supplementeal RTP Motion ¶ 21, with RTP Motion ¶¶ 16–17 (same).
• Compare Supplemfeintal RTP Motion ¶ 22, with RTP Motion ¶ 18 (showing same
factual allegatioOns were copied and pasted with a few words deleted).
• Compare Supyplemental RTP Motion ¶ 23, with RTP Motion ¶ 20 (showing same
factual allegations were copied and/or paraphrased).
• Compare Supplemental RTP Motion ¶ 24, with RTP Motion ¶ 20 (showing same
factuaall allegations were copied and pasted with minor alterations or omissions).
• Co c mpare Supplemental RTP Motion ¶ 25, with RTP Motion ¶ 20 (showing same
ffactual allegations were copied and pasted with minor alterations).
4 Almost every word of these three paragraphs of the Supplemental RTP Motion was directly copied from the Kassab’s
Motion to Rule, other than a sentence noting that the Court denied the RTP Motion and granted leave to replead. See
Supplemental RTP Motion ¶ 16. This statement is not material.
5 The last clause of paragraph 18 adds: “as had Walker, Ladner and Seymour not stolen Pohl’s alleged trade secrets as
he alleges, they could not have sold the alleged trade secrets to Favre and thus, Favre could not have given the alleged
trade secrets to Kassab.” See Supplemental RTP Motion ¶ 18. However, this is not a new factual allegation, as it
simply lightly synthesizes other prior factual allegations. See generally RTP Motion.
There is one exception regarding those seven paragraphs. Paragraph 25 of the Supplemental RTP
Motion appears to be a combination of two different paragraphs—one from the RTP Motion, and
one from the Motion to Rule. Compare Supplemental RTP Motion ¶ 25 (containing new legal
arguments and citations), with RTP Motion ¶ 20, and Motion to Rule, at 4–5. Thkus, there are no
new substantive factual additions in the Supplemental RTP Motion. All thle facts alleged are
contained in the briefing that was before the Court when it ruled on the RcTP Motion.
III. DISCUSSION s
Resolution of Kassab’s Supplemental RTP Motion is easy. Despite the factual allegations
contained in the RTP Motion and the Motion to Rule, on October 31, 2022, this Court ruled that
Kassab had failed “plead sufficient facts concerning the alleged responsibility of the person to
satisfy the pleading requirement of the Texas Rules of Civil Procedure.” See Tex. Civ. Prac. &
Rem. Code § 33.004(g)(1). Nothing has chaanged since the Court made this ruling.
Because this Court already found that Pohl’s Original RTP Objection demonstrated that
Kassab’s allegations were deficient uender the rules, it should also be sufficient as an objection to
the substantively identical Supplefmental RTP Motion. Pohl therefore incorporates by reference,
in its entirety, Pohl’s Originayl RTP Objection. The Court should reject Kassab’s “butterfly effect”
theory of proportionateC responsibility and deny Kassab’s Supplemental RTP Motion for the same
reason it denied Kaassab’s prior RTP Motion—because Kassab fails to allege facts showing how
the alleged respfonsible third parties are responsible for the harms underlying Pohl’s tort claims.
U IV. CONCLUSION
For the foregoing reasons, and for the reasons stated in Pohl’s Original RTP Objection,
Pohl objects to Kassab’s Supplemental RTP Motion and request that the Court deny the
Supplemental RTP Motion without leave for Kassab to attempt to replead, as Kassab failed to
plead sufficient facts after being granted leave to replead.
Dated: November 30, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 70583280
Status as of 12/1/2022 8:15 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 11/30/2022 4:26:40 PM SENT
Zandra EFoley zfoley@thompsogncoe.com 11/30/2022 4:26:40 PM SENT
Andrew Johnson ajohnson@thoumpsoncoe.com 11/30/2022 4:26:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com 11/30/2022 4:26:40 PM SENT
Murray JFogler mfogleyr@foglerbrar.com 11/30/2022 4:26:40 PM SENT
Murray Fogler mfaogler@fbfog.com 11/30/2022 4:26:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 11/30/2022 4:26:40 PM SENT
Dale Jefferson 10607900ojefferson@mdjwlaw.com 11/30/2022 4:26:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 11/30/2022 4:26:40 PM SENT
Jason M.Ciofalo f jason@ciofalolaw.com 11/30/2022 4:26:40 PM SENT
Chris C.Pappas cpappas@krcl.com 11/30/2022 4:26:40 PM SENT
Todd Taylor p ttaylor@jandflaw.com 11/30/2022 4:26:40 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 11/30/2022 4:26:40 PM SENT
Non-Party Witness Billy Sahlepherd bshepherd@spcounsel.com 11/30/2022 4:26:40 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 11/30/2022 4:26:40 PM SENT
Todd Taylor o ttaylor@jandflaw.com 11/30/2022 4:26:40 PM SENT
Scott M.FavreU scott@favrepa.com 11/30/2022 4:26:40 PM SENT
Lawyer Wade lawyerwade@hotmail.com 11/30/2022 4:26:40 PM SENT
Andrea Mendez andrea@kassab.law 11/30/2022 4:26:40 PM SENT
Lance Kassab lance@kassab.law 11/30/2022 4:26:40 PM SENT
David Kassab david@kassab.law 11/30/2022 4:26:40 PM SENT
Nicholas Pierce nicholas@kassab.law 11/30/2022 4:26:40 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/30/2022 4:26:40 PM SENT
D Kassab david@kassab.law 11/30/2022 4:26:40 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 70583280
Status as of 12/1/2022 8:15 AM CST
Case Contacts r i
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 4:26:40 PM SENT
L Kassab lance@kassab.law s 11/30/2022 4:26:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 11/30/2022 4:26:40 PM SENT
Lance Kassab eserve@kassuab.law 11/30/2022 4:26:40 PM SENT"
41,2022-09-21,NTC,Pohl,Filing evidence and request for leave,Pohl Plaintiffs' Notice of Filing of Evidence in Support of Claims of Privilege and Request for Leave,"Notice filed September 21, 2022 pursuant to Tex. R. Civ. P. 193.4, filing Pohl's declaration to support privilege claims in response to Kassab Defendants' Fifth Set of Written Discovery Requests and their related Motion to Compel. Filed before Judge Scot Dollinger, 189th Judicial District, Harris County, Texas.",MSJ-3,N/A,Phase 3,2022-09-21_NTC_Pohl-Filing-Evidence-and-Request-for-Leave_FILED.pdf,"Leave to file the declaration of Michael A. Pohl in support of privilege claims less than seven days in advance of the September 23, 2022 hearing on Kassab's Motion to Compel","9/21/2022 9:03 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68499533
By: Ashley Lopez
Filed: 9/21/2022 9:03 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
THE POHL PLAINTIFFS’ NOTICE OF FILING OF EVIDENCE IN SUPPORT OF
CLAIMS OF PRIVILEGE AND REQUEST FOR LEAVE
TO THE HONORABLE JUDGE SCOT “DOaLLI” DOLLINGER:
Pursuant to Texas Rule of Civil Procedure 193.4, Plaintiffs Michael A. Pohl and Law
Office of Michael A. Pohl, PLLC fieles and serves the attached declaration of Michael A. Pohl
which will be used to support thfe claims of privilege made by Pohl in response to the Kassab
Defendants’ Fifth Set of Wriytten Discovery Requests.
This declaratioCn is being filed as a result of the Kassab Defendants’ Motion to Compel
Removal of Pohl’sa Objections and Properly Respond to Discovery, filed Sept. 19, 2022 (the
“Motion”)—whfich was set for hearing on Sept. 23, 2022. Given that the Motion was both filed
and set for hearing less than seven days in advance of the hearing date, Pohl requests leave for the
filing of this declaration less than seven days in advance of the hearing under Texas Rule of Civil
Procedure 193.4(a). The Kassab Defendants and the Montague Defendants do not oppose this
request for leave.
Dated: September 21, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 C l
Tel. 713.485.7200 
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office ofs Michael A. Pohl, PLLC
CERTIFICATE OF CONFERENCE
I hereby certify that on September 21, 2022, a lawyer from my office asked counsel for
defendants if they opposed Plaintiffs’ request for lleave to file a declaration less than seven days in
advance of the hearing. Counsel for the Maontague Defendants and counsel for the Kassab
Defendants responded before the filing of tMhis document, and they indicated that those parties are
not opposed to Pohl’s request for leave. Counsel for Pohl did not receive a response from the
Favre Defendants or the Nicholson Defeondants prior to filing.
f /s/ Jean C. Frizzell
Jean C. Frizzell
C CERTIFICATE OF SERVICE
I hereby ceratify that a true and correct copy of this document was served on all counsel of
record pursuant toc the Texas Rules of Civil Procedure on this 21st day of September, 2022.
U /s/ Jean C. Frizzell
Jean C. Frizzell
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68499533 r
Status as of 9/22/2022 9:05 AM CST
Case Contacts
Name BarNumber Email TimsestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/21/2022 9:03:12 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r9/21/2022 9:03:12 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/21/2022 9:03:12 PM SENT
Andrew J. Sarne asarne@krcl.com  9/21/2022 9:03:12 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/21/2022 9:03:12 PM SENT
Kathryn Laflin KLaflin@KRCL.com l 9/21/2022 9:03:12 PM SENT
Murray JFogler mfogler@foglerbrar.coam 9/21/2022 9:03:12 PM SENT
Murray Fogler mfogler@fbfog.comM 9/21/2022 9:03:12 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/21/2022 9:03:12 PM SENT
Larry Newsom lnewsom@krcl.com 9/21/2022 9:03:12 PM SENT
Jason M.Ciofalo jason@ciofaelolaw.com 9/21/2022 9:03:12 PM SENT
Chris C.Pappas cpappas@krcl.com 9/21/2022 9:03:12 PM SENT
Todd Taylor ttaylor@fjandflaw.com 9/21/2022 9:03:12 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/21/2022 9:03:12 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/21/2022 9:03:12 PM SENT
Lawyer Wade olawyerwade@hotmail.com 9/21/2022 9:03:12 PM SENT
Scott M.Favre Cscott@favrepa.com 9/21/2022 9:03:12 PM SENT
Andrea Mendez  andrea@kassab.law 9/21/2022 9:03:12 PM SENT
Lance Kassab lance@kassab.law 9/21/2022 9:03:12 PM SENT
David Kassab david@kassab.law 9/21/2022 9:03:12 PM SENT
Nicholas Pierce f nicholas@kassab.law 9/21/2022 9:03:12 PM SENT
Dale Jefferson n10607900 jefferson@mdjwlaw.com 9/21/2022 9:03:12 PM SENT
Raul Herman SuazoU24003021 suazo@mdjwlaw.com 9/21/2022 9:03:12 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/21/2022 9:03:12 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/21/2022 9:03:12 PM SENT
L Kassab lance@kassab.law 9/21/2022 9:03:12 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/21/2022 9:03:12 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/21/2022 9:03:12 PM ERROR
Misty Davis mdavis@reynoldsfrizzell.com 9/21/2022 9:03:12 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/21/2022 9:03:12 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/21/2022 9:03:12 PM SENT
D Kassab david@kassab.law 9/21/2022 9:03:12 PM SENT"
39,2022-09-18,NTC,Pohl,Withdrawal of partial MSJ on aff. def.,Pohl Plaintiffs' Notice of Drawing Down from Hearing Plaintiffs' Motion for Partial Summary Judgment on Defendants' Affirmative Defenses that Seek to Relitigate Failed Barratry Claims and No-Evidence Motion on the Remaining Affirmative Defenses,"Notice submitted September 18, 2022 (filed by clerk September 19, 2022) withdrawing Pohl's own motion for partial summary judgment on affirmative defenses from the September 19, 2022 hearing before Judge Scot 'Dolli' Dollinger, while defendants' MSJs remained pending for the same hearing date. Filed by Jean C. Frizzell of Reynolds Frizzell LLP.",MSJ-3,N/A,Phase 3,2022-09-18_NTC_Pohl-Withdrawal-of-Partial-MSJ-on-Aff-Def_FILED.pdf,"Request that Plaintiffs' Motion for Partial Summary Judgment on Defendants' Affirmative Defenses be drawn down from the September 19, 2022 hearing","9/18/2022 5:42 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68364897
By: Deandra Mosley
Filed: 9/19/2022 12:00 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
THE POHL PLAINTIFFS’ NOTICE OF DRAWING DOWN FROM HEARING
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON
DEFENDANTS’ AFFIRMATIVE DEFElNSES THAT SEEK TO RELITIGATE
FAILED BARRATRY CLAIMS AGaAINST PLAINTIFFS AND NO-EVIDENCE
MOTION ON THE REMAMINING AFFIRMATIVE DEFENSES
TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGER:
Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC file this notice to
draw down Plaintiffs’ Motion for Partial Summary Judgment on Defendants’ Affirmative
Defenses that Seek to Relitigate Failed Barratry Claims Against Plaintiffs and No-Evidence
Motion on the Remaining Affirmative Defenses, filed on August 29, 2022. This motion is
currently set for hcearing on September 19, 2022, and Plaintiffs request that it be drawn down from
that hearing so that the motion is not heard at that time.
Dated: September 18, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 C l
Tel. 713.485.7200 
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office ofs Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct coply of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Praocedure on this 18th day of September, 2022.
o /s/ Jean C. Frizzell
e Jean C. Frizzell
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68364897 r
Status as of 9/19/2022 8:35 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/18/2022 5:42:37 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/18/2022 5:42:37 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/18/2022 5:42:37 PM SENT
Andrew J. Sarne asarne@krcl.com 9/18/2022 5:42:37 PM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/18/2022 5:42:37 PM SENT
Kathryn Laflin KLaflin@KRCL.com 9/18/2022 5:42:37 PM SENT
Murray JFogler mfogler@foglerbrrar.com 9/18/2022 5:42:37 PM SENT
Murray Fogler mfogler@fbfog.com 9/18/2022 5:42:37 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2022 5:42:37 PM SENT
Larry Newsom lnewsom@fkrcl.com 9/18/2022 5:42:37 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/18/2022 5:42:37 PM SENT
Chris C.Pappas cpappas@krcl.com 9/18/2022 5:42:37 PM SENT
Todd Taylor titaylor@jandflaw.com 9/18/2022 5:42:37 PM SENT
Harris Wells fhwells@reynoldsfrizzell.com 9/18/2022 5:42:37 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/18/2022 5:42:37 PM SENT
Lawyer Wade y lawyerwade@hotmail.com 9/18/2022 5:42:37 PM SENT
Scott M.Favre scott@favrepa.com 9/18/2022 5:42:37 PM SENT
Andrea Mendez C andrea@kassab.law 9/18/2022 5:42:37 PM SENT
Lance Kassab  lance@kassab.law 9/18/2022 5:42:37 PM SENT
David Kassab a david@kassab.law 9/18/2022 5:42:37 PM SENT
Nicholas Pierce c nicholas@kassab.law 9/18/2022 5:42:37 PM SENT
Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/18/2022 5:42:37 PM SENT
Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/18/2022 5:42:37 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/18/2022 5:42:37 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/18/2022 5:42:37 PM SENT
L Kassab lance@kassab.law 9/18/2022 5:42:37 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/18/2022 5:42:37 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/18/2022 5:42:37 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/18/2022 5:42:37 PM SENT
Deidre Hicks GWS_GROUP@spcounsel.com 9/18/2022 5:42:37 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/18/2022 5:42:37 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/18/2022 5:42:37 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/18/2022 5:42:37 PM SENT
D Kassab david@kassab.law 9/18/2022 5:42:37 PM SENT"
38,2022-09-15,RSP,Pohl,Pohl’s response to MTA,"Plaintiffs' Response to the Kassab Defendants' Motion to Abate Trial Setting — opposes abatement of four-year-old case on eve of preferential trial setting, arguing future damages do not justify abatement and unlawful acts defense has been preempted","Response filed September 15, 2022 by Jean C. Frizzell of Reynolds Frizzell LLP opposing Kassab's motion to abate the trial setting in a four-year-old case with a preferential trial setting. Incorporates by reference Pohl's September 12, 2022 responses to defendants' summary judgment motions.",MTA-1,N/A,Phase 3,2022-09-15_RSP_Pohl-Response-to-Kassab-MTA-Trial_FILED.pdf,Deny Kassab's Motion to Abate Trial Setting and allow the case to proceed to trial during its current preferential trial setting,"9/15/2022 5:08 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68313271
By: Deandra Mosley
Filed: 9/15/2022 5:08 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE § IN THE DISTRICT COURT OF
OF MICHAEL A. POHL, PLLC, §
Plaintiffs, §
v. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § 189TH JUDICIAL DISTRICT
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, § r
P.C. d/b/a THE KASSAB LAW FIRM; TINA §
NICHOLSON and BAKER NICHOLSON, LLP §
d/b/a BAKER NICHOLSON LAW FIRM; and § s
DOUGLAS MONTAGUE III and MONTAGUE §
PITTMAN & VARNADO, P.A., § g
Defendants. § r HARRIS COUNTY, TEXAS
PLAINTIFFS’ RESPONSE TO THE KASSAB DEFENDANTS’
MOTION TO ABATEy TRIAL SETTING
Plaintiffs Michael Pohl and Law Officaes of Michael A. Pohl (collectively, “Pohl”) file this
this response to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.’s
(collectively, “Kassab”) Motion to Abeate Trial Setting (the “Motion to Abate”). Pohl requests that
the Court deny Kassab’s Motion fto Abate and allow this four-year-old case to be tried during its
current preferential trial settiyng—a trial setting that Kassab appears to be trying to avoid.
Kassab argues Cthat this case should be abated for two reasons: (1) Pohl is still incurring
damages; and (2) the outcome of a separate lawsuit—the Cheatham case—will impact Kassab’s
illegality (unlafwfful acts doctrine) defense. Neither argument has merit. First, the existence of
future daUmages does not justify abatement. For Pohl to recover future damages, he must satisfy
the ordinary standard of showing to the jury that he will sustain those damages with reasonable
probability. Second, Kassab’s unlawful acts defense has been preempted and does not apply—a
defense Kassab acknowledged in another case is “no longer good law.”
I. BACKGROUND1
Kassab’s campaign of lawsuits and bar grievances against Pohl can only be described as a
failure. Kassab facilitated the filing of seven separate grievances with the Texas State Bar and
four lawsuits—all based on Kassab’s theory that Pohl engaged in alleged barrkatrous conduct.
Every grievance failed, often with a finding that Pohl’s alleged conduct ldid not constitute
professional misconduct or a violation of the Texas Disciplinary Rules ocf Professional Conduct.
Two of the lawsuits resulted in a final judgment on the merits in favosr of Pohl. In a third lawsuit,
Pohl settled the lawsuit—not for the “substantial sum of money” alleged by Kassab—but instead
for an amount less than the cost of defense. It is the fourth case, the Cheatham case, that Kassab’s
Motion to Abate is concerned with.
It is worth noting that although the Cheatham case is pending, the allegations asserted in
that case are without merit. Like Kassab’s recycled barratry allegations in this lawsuit, many of
the allegations of supposed barratry by Pohl in Cheatham were the subject of a grievance that
Kassab helped file. The Office of ethe Chief Disciplinary Counsel for the State Bar of Texas
dismissed the grievance after it hafd “examined the Grievance and determined that the information
alleged does not demonstrayte Professional Misconduct or a Disability.”2 Kassab appealed the
dismissal of the CheathCam grievance, and The Board of Disciplinary Appeals (which is appointed
by the Texas Supreame Court) determined “that the conduct you described in the grievance does
not violate the Tfexas Disciplinary Rules of Professional Conduct.”3
WUhen the Office of the Chief Disciplinary Counsel found that allegations involved in the
Cheatham case did not “demonstrate Professional Misconduct,” the Cheatham case was on appeal
1 To avoid duplicative recitations of the factual background of this case, to the extent necessary, Pohl refers the Court
to the factual background included in his September 12, 2022 responses to Defendants’ summary judgment motions.
2 See Feb. 24, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, attached as Exhibit 1.
3 See May 14, 2020 Letter from The Board of Disciplinary Appeals, attached as Exhibit 2.
following a final judgment in favor of Pohl.4 Recently, the court of appeals reversed the trial court,
not because it found that barratry occurred, but because it believed the trial court erred in granting
summary judgment on the basis of limitations and whether the barratry statute was impermissibly
applied extraterritorially. See Cheatham, 2022 WL 3720139, at *9–10. Pohl is coknfident that this
case—which involves “[t]wo sets of wrongful-death claimants” out of the “l10,000 or more of
Pohl’s clients/prospective clients” whose information defendants cmisappropriated—will
ultimately be resolved in Pohl’s favor. Id. at *1; Pohl’s First Amendesd Petition ¶ 21. Regardless,
the outcome of the Cheatham case is not relevant to Pohl’s claimss or entitlement to damages. The
relevance of that case is that the fees and expenses Pohl incurs in defending it are a component of
Pohl’s actual damages in this lawsuit.
II. DISyCUSSION
Kassab presents two justifications for why abatement is necessary. First, he suggests that
the fact that Pohl may continue to suffer damages in connection with defending the Cheatham case
means the Court should wait to resolvee Pohl’s claims. Second, Kassab argues that the Cheatham
case is relevant to his “illegality”f defense. Neither argument has merit. Future damages are an
entirely normal occurrence thyat does not justify abatement of a case. Kassab’s affirmative defenses
are either preempted orC have little relevance. Regardless, they do not justify Kassab’s request for
abatement on the evae of trial.
A. The fpotential existence of future damages does not support abatement.
As the Court is surely familiar with, cases frequently arise and are tried despite the fact that
a party may not have suffered the full extent of the damages they will likely incur. In fact, Texas
4 See Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *4 (Tex. App.—Houston [1st Dist.] Aug. 30,
2022, no pet. h.) (noting the trial court entered a “final and appealable” order in Pohl’s favor); see also Notices of
Appeal filed on Jan. 15 & 17, 2022 in Cause No. 2017-41110, Mark K Cheatham, Sr., et al, v. Michael A. Pohl, et al.,
in the 55th Judicial District Court of Harris County, Texas, attached as Exhibit 3.
law often requires an injured party to bring their claims even when “all resulting damages have
not yet occurred.” See Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 834 (Tex. 2018)
(citation omitted) (discussing accrual of claims in the context of a statute of limitations). If the
fact that a party will continue to suffer damages required abating a case, there wokuld not be trials
in cases involving damages for lost profits, damages for loss of earning capaclity, or damages for
future medical expenses. Those cases go to trial, and the result should bec no different here.
The concept of future, and thus necessarily uncertain, damagess is not novel. In fact, there
is a standard for how a jury can analyze these types of damagess. See, e.g., GTE Mobilnet of S.
Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 617 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied) (discussing how a jury has discretion to award future damages that a party “in reasonable
probability will sustain in the future”). Given the existence of this standard, the fact that a case
involves future damages that are uncertain is naot sufficient to show that abatement is proper.
Kassab’s primary case to support his theory that Pohl’s future damages justify an abatement
is In re Tex. Collegiate Baseball Leageue, Ltd., 367 S.W.3d 462 (Tex. App.—Fort Worth 2012, no
pet.). See Motion to Abate, at f3–4 (citing Collegiate Baseball League). However, the facts
underlying that case are entiyrely dissimilar to those of this case, and the fact that abatement was
proper in that case doeCs not provide any useful guidance in this case.
Collegiate Baseball League involved a lawyer who was sued by two clients over an alleged
settlement agrefefment. 367 S.W.3d 462, 464 (Tex. App.—Fort Worth 2012, no pet.). The lawyer
asserted Ua counterclaim for recovery of his legal fees, and his clients subsequently asserted
malpractice claims against him based on three separate lawsuits that were still pending. Id. The
issue before the appellate court was over whether abatement or severance of the malpractice claims
was proper, and whether the attorneys’ fees claim should also be subject to any abatement or
severance. Id. at 465.
To understand the court’s decision in Collegiate Baseball League, it is important to know
that the parties did not dispute that the malpractice claims were premature. k Id. The claim
for fees brought by the lawyer involved fees he charged in connection withl the three pending
cases—the same three cases that were at issue in the clients’ malpractice cclaims against the lawyer.
Id. at 465–66. Given this, the court found that “[s]everance or sepsarate trials are therefore not
appropriate because the fee claim and the malpractice claims insvolve the same facts and issues.”
Id. at 467. The court also found abatement was appropriate, because severing the fees claim could
cause certain parties “to simultaneously take inconsistent litigation positions.” Id. at 467. It is in
this context that the court notes that “the malpractice allegations and damage theories will remain
fluid until the [other] litigations conclude.” Ida.
The issues present in the Collegiate Baseball League case are not analogous to those before
the Court. The Court is not faced wieth a situation where severance or abatement is required, and
it then must decide the scope of thfe severance or abatement. Nor does the Cheatham case and this
lawsuit involve the same facyts and issues. The shared issue is the far more common occurrence
that the full extent of PCohl’s damages has not been incurred at this time. The Court should deny
Kassab’s Motion to Abate, as the existence of future damages does not justify abatement.
B. Kasfsfab’s defense has been preempted and does not entitle him to abatement.
KUassab’s argues that under his “illegality” (unlawful acts doctrine) defense, “[i]f the
Cheatham plaintiffs establish these barratry claims against Pohl, then Pohl cannot be permitted to
recover any damages arising from his unlawful conduct.” Motion to Abate at 4.5 This is not
5 Kassab also mentions his “unclean hands” defense once, without any explanation. Motion to Abate at 2. He simply
states that the outcome of the Cheatham case will establish his “unclean hands” defense and as a result, “Pohl would
correct for multiple reasons.6 First, Kassab’s defense is not valid, as it was preempted years ago
by Texas’s proportionate responsibility statute. Second, even if the unlawful acts doctrine were
available as a defense, Kassab has not shown, or even alleged, how Pohl’s damages or injury in
this lawsuit were proximately caused by Pohl’s alleged unlawful conduct. Regkardless of any
unproven barratrous conduct, Pohl is entitled to recover damages that resultedl from defendants’
conversion and misappropriation of Pohl’s confidential information and fciles.
First, Kassab failed to disclose on-point authority from the Tsexas Supreme Court stating
that Kassab’s defense has been statutorily preempted. The sole scase Kassab cites for his unlawful
acts or illegality defense is Andrew Shebay & Co., P.L.L.C. v. Bishop, 429 S.W.3d 644 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied). Kassab’s “illegality” defense is also known as the
“unlawful acts doctrine.”7 However, after the court’s ruling in Bishop, the Texas Supreme Court
ruled that “[t]he plain language of section 33.a003 clearly indicates that the common law unlawful
acts doctrine is no longer a viable defense.” Dugger, 408 S.W.3d at 832.
Kassab—and lead counsel fore the Kassab law firm, David Kassab—should be aware that
Kassab’s asserted defense is no flonger viable, as demonstrated by the following argument they
made in a different case: y
be entitled to no damiages from Kassab.” Id. While the lack of explanation or argument from Kassab makes it
unnecessary to address this issue more fully, it is worth pointing out that “unclean hands” is a defense to equitable
relief that applies fwhen a party engaged in wrongful conduct that harmed the person raising the unclean hands defense.
See In re Nolle, 265 S.W.3d 487, 494 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Damages are not equitable
relief, and Kassab has not alleged that Pohl’s alleged conduct in the Cheatham case has harmed him. Thus, Kassab’s
“unclean hands” defense is not applicable and cannot support abatement of this case.
6 Kassab also does not explain how the outcome, as opposed to the facts, of the Cheatham case will impact this case.
It is not clear how any outcome in that case, which involves different parties, could have a preclusive effect in this
lawsuit. Furthermore, Kassab does not explain what further factual development will occur in the Cheatham case that
is necessary or impactful to the issues in this case.
7 Compare Dugger v. Arredondo, 408 S.W.3d 825, 829 (Tex. 2013) (stating that “this Court recognized the common
law unlawful acts doctrine as barring a plaintiff from recovering damages if it could be shown that, at the time of
injury, the plaintiff was engaged in an illegal act that contributed to the injury”), with Bishop, 429 S.W.3d at 648–49
(describing the defense, cited by Kassab, as providing that if “at the time of the plaintiff’s injury, the plaintiff was
engaged in an illegal act, and that act contributed to the injury, he may not recover”).
[T]he Texas Supreme Court has reiterated that “the comparative responsibility
scheme under Chapter 33 of the Texas Civil Practice and Remedies Code abrogated
the unlawful acts doctrine.” Boerjan v. Rodriguez, 2014 Tex. LEXIS 531 at *7
(Tex. 2014)(citing Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013)). Thus, the
illegal acts doctrine may not be used as a ground to support summary judgment
even if it is recast as a public policy argument. Id. (“Applying Dugger to this case,
the unlawful acts doctrine cannot provide the basis for summary judgmentk.”).8
Kassab was correct then. The unlawful acts doctrine is no longer a valid defenlse.
Second, even if Kassab’s use of the unlawful acts doctrine werec not preempted, Kassab
would still have to show that Pohl’s alleged barratry was “a prosximate cause of the injury
complained of in order to bar [Pohl’s] recovery.” See Arredondo v. Dugger, 347 S.W.3d 757,
761–62 (Tex. App.—Dallas 2011), aff’d on other grounds, 408 S.W.3d 825 (Tex. 2013). Even if
Pohl had committed barratry, it did not proximately cause Pohl’s injuries giving rise to his claims
here—defendants’ conversion and misappropriation of Pohl’s confidential and proprietary
information. Kassab’s unsupported assertions that the outcome of the Cheatham case matters or
impacts Pohl’s claims in this case should be rejected, and the Court should deny the Motion to
Abate. e
fIII. CONCLUSION
Plaintiffs Michael Poyhl and Law Offices of Michael A. Pohl respectfully request that the
Court deny Kassab’s Motion to Abate for the reasons set forth herein. Regardless of whether Pohl
is likely to incur fuarther damages in connection with the Cheatham case, and regardless of the
outcome of thatf case, Pohl is entitled to a trial on the merits of his claims. Abatement is neither
required nor appropriate in these circumstances.
8 See Plaintiffs’ Objections and Response to Defendants’ Supplemental Motion for Summary Judgment, dated Sept.
15, 2014, in Cause No. 2011-75990, William Beatty, et al, v. Jimmy Van Knighton, II, et al., in the 133rd Judicial
District Court of Harris County, Texas (a copy of this briefing is attached as Exhibit 4).
Dated: September 15, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct coply of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 15th day of September, 2022.
o /s/ Jean C. Frizzell
e Jean C. Frizzell
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68313271 r
Status as of 9/16/2022 8:04 AM CST
Case Contacts
Name BarNumber Email TimsestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r9/15/2022 5:08:42 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/15/2022 5:08:42 PM SENT
Andrew J. Sarne asarne@krcl.com  9/15/2022 5:08:42 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/15/2022 5:08:42 PM SENT
Kathryn Laflin KLaflin@KRCL.com l 9/15/2022 5:08:42 PM SENT
Murray JFogler mfogler@foglerbrar.coam 9/15/2022 5:08:42 PM SENT
Murray Fogler mfogler@fbfog.comM 9/15/2022 5:08:42 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/15/2022 5:08:42 PM SENT
Todd Taylor ttaylor@jandeflaw.com 9/15/2022 5:08:42 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Harris Wells hwells@freynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/15/2022 5:08:42 PM SENT
Lawyer Wade lawyerwade@hotmail.com 9/15/2022 5:08:42 PM SENT
Scott M.Favre oscott@favrepa.com 9/15/2022 5:08:42 PM SENT
Andrea Mendez Candrea@kassab.law 9/15/2022 5:08:42 PM SENT
Lance Kassab  lance@kassab.law 9/15/2022 5:08:42 PM SENT
David Kassab david@kassab.law 9/15/2022 5:08:42 PM SENT
Nicholas Pierce nicholas@kassab.law 9/15/2022 5:08:42 PM SENT
Dale Jefferson 10f607900 jefferson@mdjwlaw.com 9/15/2022 5:08:42 PM SENT
Raul Herman Suazo n24003021 suazo@mdjwlaw.com 9/15/2022 5:08:42 PM SENT
Kevin Graham CainU24012371 cain@mdjwlaw.com 9/15/2022 5:08:42 PM SENT
D Kassab david@kassab.law 9/15/2022 5:08:42 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/15/2022 5:08:42 PM SENT
L Kassab lance@kassab.law 9/15/2022 5:08:42 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/15/2022 5:08:42 PM SENT"
35,2022-09-12,RSP,Pohl,Pohl’s response to Kassab no-evid MSJ,"Plaintiffs' Response in Opposition to No-Evidence Motions for Summary Judgment Filed by Kassab and Nicholson Defendants — Pohl presents extensive evidence supporting all three claims (conspiracy, conversion, TUTSA) and rebuts defendants' challenges to ownership, protection, misappropriation, and damages elements","Response to no-evidence MSJs filed by Kassab and Nicholson defendants on August 29, 2022, in the third phase of litigation. Filed September 12, 2022 at 11:26 PM. Pohl incorporates by reference the discussion and evidence from his companion Response in Opposition to the Traditional Motions filed the same day. Filed by Jean C. Frizzell of Reynolds Frizzell LLP. Addressed to the 189th Judicial District Court of Harris County.",MSJ-2,N/A,Phase 3,2022-09-12_RSP_Pohl-Response-to-Kassab-No-Evid-MSJ_FILED.pdf,Deny the no-evidence motions for summary judgment filed by Kassab and Nicholson and allow all issues to be tried by a jury,"9/12/2022 11:26 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68182775
By: Deandra Mosley
Filed: 9/12/2022 11:26 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE
NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
FILED BY THE KASSAB DEFENDANTSl AND THE NICHOLSON DEFENDANTS
Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the No Evidence Motions for Summary Judgment filed by Defendants Lance
Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively
“Kassab”) and Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm
(collectively, “Nicholson”).
Given the overlapping issues in the multiple summary judgment motions before the Court,
Pohl also incorpcorates by reference the discussion and evidence included in his Response in
Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and
the Nicholson Defendants that is filed on the same day as this Response.
I. FACTUAL BACKGROUND
Pohl represented various persons and entities in claims arising from motor vehicle
accidents and the British Petroleum Deepwater Horizon oil spill.1 Pohl engaged Precision
Marketing Group, LLC (“Precision”) to provide public relations services, to gathker and preserve
evidence, and to screen and liaise with Pohl’s clients and prospective clients.2 l While working for
Pohl, Precision necessarily gained access to Pohl’s confidential and propcrietary information and
property, including trade secret materials.3 Scott Favre, individuaslly and/or through Scott M.
Favre PA, LLC (collectively “Favre”) is the managing member osf Precision.4 Favre took physical
copies of Pohl’s information, and possession of Pohl’s stolen computers and misappropriated
electronic data.5
In November 2016, Defendants Douglas Montague III, his law firm Montague Pittman &
Varnado, P.A. (collectively, “Montague”), Naicholson and Kassab arranged to purchase Pohl’s
stolen confidential information and property from Favre for $250,000, plus bonuses,6 taking
possession of at least some of the infoermation and property in December 2016.7 Kassab, Nicholson
and Montague highly valued Pofhl’s stolen and misappropriated confidential information and
property because, after purchyasing it, they intended to and did use it to contact and solicit Pohl’s
clients and prospectivCe clients.8 Defendants’ actions constitute conversion, violations of the
uniform trade secrets act (“TUTSA”), and conspiracy.
1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”), ¶ 2, attached as Exhibit A.
2 Id. ¶ 9.
3 Id.
4 Id. ¶ 24.
5 Id. ¶¶ 24–25.
6 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A).
7 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A).
8 Kassab has admitted using Pohl’s client files (while erroneously claiming that they belonged to Precision Marketing)
to contact Pohl’s clients and former clients to solicit them to file claims against Pohl. See Declaration of Lance
Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018, attached as Exhibit
Favre’s participation in the conspiracy to misappropriate and steal Pohl’s confidential
information and client communications violated the terms of a settlement agreement. That
confidential settlement agreement, executed in late April or early May 2017 (the “Settlement
Agreement”), resolved a lawsuit in federal court in Mississippi, styled No. 1:14-ckv-381-KS-JCG,
Scott Walker, et al. v. Jimmy Williamson, et al., In The United States Distrlict Court For The
Southern District of Mississippi, Southern Division (the “Federal Court Ccase”).9
Defendants’ efforts to monetize Pohl’s trade secrets through sassertions of barratry claims
has been nearly a complete failure. Defendants brought barratsry claims on behalf of more than
400 plaintiffs,10 and the claims of all but four plaintiffs have been finally resolved in Pohl’s favor.11
As to those four remaining plaintiffs, the viability of their claims remains in dispute.12 Kassab
asserted multiple grievances with the Texas State Bar,13 all of which have been rejected, many
with the finding that “the Board has determinaed that the conduct you described in the grievance
does not violate the Texas Disciplinary Rules of Professional Conduct.”14 Notwithstanding this
lack of success, Defendants continuee to make allegations regarding Pohl and seek to relitigate
irrelevant questions regarding Pohfl’s alleged conduct. The Court should reject Defendants’ efforts
to justify their theft of Pohl’sy trade secrets by reasserting their failed claims of barratry.
9 Pohl Declaration ¶ 26i, Ex. A.
10 See Petitions in four cases, attached as Exhs. 28-30; 32 to the Nicholson’s Traditional Motion for Summary
Judgment, attachefd as Exhibit C.
11 See Cause No. 2017–38294, Dezzie Brumfield d/b/a LAD Enterprises, et al v. Michael A. Pohl, et al, in the 189th
Judicial District Court of Harris County, Texas; No. 459,062-401, Alice Marie Gandy, et al v. Michael A. Pohl, et al.,
in the Probate Court No. 2 of Harris County, Texas; Cause No. 2017–37567, Mae Berry et al v. Michael A. Pohl, et
al, in the 113th Judicial District Court of Harris County, Texas; (showing the Brumfield, Gandy, and Berry cases are
final); see also Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *1 (Tex. App.—Houston [1st Dist.]
Aug. 30, 2022, no pet. h.) (showing that claims of four plaintiffs remain live). Pohl requests that the Court take judicial
notice of these publicly available facts.
12 Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *15 (Tex. App.—Houston [1st Dist.] Aug. 30,
2022, no pet. h.) (noting that “As to the barratry claim, we have concluded only that a fact issue continues to exist.
We take no position on the validity of the barratry claim against any of these parties.”).
13 See State Bar and Board of Disciplinary Appeals letters dismissing claims, attached as Exhibit D.
14 Id.
At core, Defendants’ challenges to the evidentiary basis for Pohl’s claims turn on two
fallacies that they have argued from the start. First, Defendants insist that Pohl did not own the
materials—including his own client agreements and client files—that they misappropriated. This
is clearly wrong and has been rejected by numerous courts in different jurisdictkions. See, e.g.,
Fred Siegel Co., L.P.A. v. Arter & Hadden, 1999-Ohio-260, 85 Ohio St. 3d 17l1, 182, 707 N.E.2d
853, 862 (discussing how law firm’s client list could constitute a trade seccret); Reeves v. Hanlon,
95 P.3d 513, 522 (Cal. 2004) (dealing with client data that constituteds trade secrets). Even giving
the argument that Pohl had no ownership interest in his client lsists, client agreements, and client
files the benefit of the doubt, at most the argument raises a disputed fact issue that cannot be
determined on a motion for summary judgment. Second, Defendants erroneously believe that
Pohl’s claims provide them an opportunity to reassert barratry claims that have failed in every
other forum. Those claims have no place herea and should be rejected.
II. ARGUMENT
Pohl has overwhelming prooef of each of the elements of his claims—far more than enough
to respond to Defendants’ no-evidfence challenges, as fully set forth below.
A. Pohl has ample evidyence of each element of conspiracy.
Pohl can readCily prove that Defendants, in combination with each other, sought to
accomplish the goals of conversion of Pohl’s property and misappropriation of Pohl’s trade secrets,
that they reachfefd a meeting of the minds, engaged in one or more unlawful overt acts, and that he
suffered dUamages as a result.
1. Pohl can prove that Defendants (a combination of two or more persons) acted in
combination to accomplish their goals of conversion and misappropriation,
reaching a meeting of the minds.
The evidentiary record of Defendants’ conspiracy is replete with emails establishing their
agreement to combine to acquire Pohl’s property and to use it for their own gaink in violation of
Pohl’s rights. Starting no later than September 2016, Kassab, Nicholson and lMontague engaged
in discussions with Scott Favre relating to a possible deal to bring barratcry claims against Pohl.15
The discussions between Montague and Kassab resulted in what Kasssab agreed could probably be
called a joint venture between the two of them.16 The purpose osf Montague’s joint venture was to
bring barratry claims against Pohl, a Texas lawyer, in Texas courts under the Texas barratry
statute.17
Kassab, Nicholson, and Montague also entered into a co-counsel agreement, the purpose
of which was to bring barratry claims in Texasa against Pohl.18 Kassab testified that this co-counsel
agreement was made in writing, but it has not yet been produced.19 However, Kassab has produced
contracts that he signed with Pohl’s feormer clients that show the co-counsel relationship between
Nicholson, Kassab, and Montagufe.20
Montague admits thyat he actually sent the information and materials that form the basis of
Pohl’s claims against thCem to Kassab in Texas.21 Montague states in his affidavit that he ‘informed
Kassab about this matter and sent him the PMG [Precision] documents owned by Favre that I
15 See Kassab Deposition at 27:4-13; 28:22-25, attached as Exhibit E; Montague Deposition at 72:4-15, attached as
Exhibit F; September 9, 2016 email from Montague, attached as Exhibit G (originally Ex. 2 to the Kassab Deposition);
see also Montague Deposition at 71:18-72:15 (stating that the email in Kassab Deposition Exhibit 2 “appears to be
something that I sent,” and not disputing its authenticity), Exhibit F.
16 See Kassab Deposition at 36:18-22, Ex. E.
17 See Montague Affidavit ¶ 7, Ex. H; Kassab Deposition at 53:13-15, Ex. E.
18 See Ex. F, Montague Deposition at 46:6-16; 49:1-15; Ex. I, Nicholson Deposition at 111:11-112:22.
19 See Ex. E, Kassab Deposition at 86:14-87:10.
20 See Ex. L.
21 See Montague Affidavit ¶ 7, Ex. H; Montague Deposition at 50:14-24, 53:19-54:6, Ex. F.
received.”22 Montague himself defines the “PMG [Precision] documents” in this context as
including “attorney-client contracts, communications, and lists of clients.”23 Nicholson herself
had an active role in attempting to ensure that the team received all of the client contracts.24
Montague took the lead in obtaining Pohl’s documents, including engagemkent agreements
between Pohl and his clients, which Montague helped facilitate the transfelr of to Kassab in
Texas:25 c
It is clear that Kassab and Montafgue were not satisfied with receiving Pohl’s engagement
agreements. They wanted to obtainc the names and the contact information for Pohl’s clients or
potential clients so that they coOuld solicit them to bring barratry claims against Mr. Pohl:26
22 Montague Affidavit ¶ 7, Ex. H (emphasis added).
23 Id. ¶ 6.
24 See Ex. M, Email dated November 22, 2016 from Nicholson to Kassab.
25 See Exhibit N, Dec. 7, 2016 email from Montague (originally used as Exhibit 11 to the Nicholson Deposition); see
also Exhibit O, Nov. 14, 2016 email from Montague (originally used as Exhibit 9 to the Nicholson Deposition)
(showing Montague instructed Favre to send documents to Kassab, a Texas lawyer); Exhibit F, Montague Deposition
at 89:1-10 (stating he recognized Nicholson Exhibit 9 and saying it was “what it appears to be, a request for [wiring]
instructions from Scott Favre.”); Exhibit E, Kassab Deposition at 138:5-9 (acknowledging that Nicholson Exhibit 11
appears to be an email from Montague to Kassab and other defendants and not disputing its authenticity).
26 See Exhibit P, Dec. 8, 2016 email from Montague (originally used as Exhibit 12 to the Nicholson Deposition); see
also Exhibit I, Nicholson Deposition at 162:5-164:15 (acknowledging that the email chain shown in Nicholson Exhibit
12 “was CC’ed to me” and not disputing its authenticity).
Kassab, Nicholson, and Montague were all active participants itn obtaining and processing
additional information to solicit Pohl’s clients or potential clients to bring additional claims in
Texas courts:27 e
When Montague realizeod that additional information was needed, Montague reached out to
Nicholson to obtain that additional converted and stolen information.28 Kassab was at all times
critical to the conspiracy, as he and his firm were the experts on claims of barratry in Texas.
27 See Exhibit Q, Dec. 8, 2016 email from Montague (originally used as Exhibit 13 to the Nicholson Deposition); see
also Exhibit F, Montague Deposition at 103:5-14 (acknowledging the email chain shown in Nicholson Exhibit 13
showed an email that appeared to be sent by Montague and not disputing its authenticity).
28 See Exhibit R, Feb. 15, 2017 email from Montague (originally used as Exhibit 14 to the Nicholson Deposition); see
also Exhibit F, Montague Deposition at 116:1-8 (acknowledging the email chain shown in Nicholson Exhibit 14 and
not disputing its authenticity).
Montague recognized Kassab’s experience and knowledge of civil barratry claims,29 and, as
Kassab points out on his website, a civil claim for barratry is “unique to Texas.”30
2. Pohl can prove that Defendants engaged in one or more overt unlawful acts in
furtherance of their conspiracy.
Defendants engaged in overt acts constituting both conversion and miseappropriation, and
Pohl’s evidence of each of those acts is set forth in the sections addressing them below.
3. Pohl can prove that he suffered damages as a result. r
Pohl has testified, as has his expert witnesses, about the eDxtensive damages arising from
the underlying torts—Defendants’ theft of trade secrets and csonversion.31 Those damages arose
directly from the actions of Defendants in converting anrd misappropriating Pohl’s trade secrets
and then attempting to monetize those secrets by contacting Pohl’s clients and former clients and
fomenting litigation against him. Pohl was alsol damaged by the loss of his property, and he is
entitled to recover the market value ofM the converted and misappropriated property and
information. There are multiple sources of evidence regarding the value of some or all of the
converted or misappropriated infor c mation.32 As these damages are derivative of the damages
suffered for the underlying torts, the evidence cited here supports damages in relation to those
torts, and Pohl incorporates his discussion and evidence in relation to those claims here. See infra
Parts II(B)(4) & II(C)(3).
29 See Exhibit G, Ex. 2 to the Kassab Deposition; Exhibit H, Montague Affidavit ¶ 7; Exhibit F, Montague Deposition
at 44:14-19.
30 See Barratry and Solicitation, Kassab Law Firm, https://texaslegalmalpractice.com/legal-malpractice/barratry-and-
solicitation/ (last visited Aug 7, 2022); see also Exhibit F, Montague Deposition at 49:9-18 (confirming that Montague
is not aware of any state, other than Texas, in which a civil claim for barratry exists).
31 See Report of John Zavitsanos on Fees, attached as Exhibit S; Pohl Declaration ¶¶ 27-28, Ex. A.
32 See Deposition of Scott Walker, at 328:10-16 (testifying about how he had heard Pohl’s client list was worth $6
million), attached as Exhibit V; Deposition of Kirk Ladner, at 314:10–315:18, 343:7-344:17 (recalling that he was
told that the boxes containing Pohl’s information were worth $6 million), attached as Exhibit W; Pohl Declaration ¶
28, Ex. A; see also 2016.11.10 Agreement Between Kassab, Montague, and Favre, attached as Exhibit EE; Montague
Deposition, at 79:11-82:21, Exhibit F (indicating that Kassab and Montague paid $250,000, plus agreed to pay
additional incentives, for access to Pohl’s information).
B. Pohl has ample evidence of each element of conversion
Conversion is the “unauthorized and wrongful assumption and exercise of dominion and
control over the personal property of another, to the exclusion of or inconsistent with the owner's
rights.” Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971). The elekments are: “(1)
the plaintiff owned, had legal possession of, or was entitled to possession of thle property; (2) the
defendant assumed and exercised dominion and control over the propcerty in an unlawful and
unauthorized manner, to the exclusion of and inconsistent with the splaintiff's rights; and (3) the
defendant refused the plaintiff’s demand for return of the propserty.” Akin v. Santa Clara Land
Co., Ltd., 34 S.W.3d 334, 344 (Tex.App.—San Antonio 2000, pet. denied); see also Hunt v.
Baldwin, 68 S.W.3d 117, 131 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
1. Pohl’s evidence that he owned, had legal possession of, or was entitled to
possession of the property is more thaln sufficient.
Pohl testified that he owns his compMuters, property, attorney-client contracts, forms created
for his practice, data, photographs, client files, attorney work product and financial information
that was stolen from his office.33 It c is not disputed that the materials at issue included Pohl’s client
lists, client files, and thousands of contracts between Pohl and his clients.34 In addition to Pohl’s
own testimony, the persons to whom Defendants now trace their purported ownership have
testified that the client contracts and/or client lists belong to Pohl.35 In fact, Pohl’s client lists were
valuable to Defencdants because they belonged to Pohl, and Defendants believed they had value as
a means for convincing Pohl’s clients and former clients to bring barratry claims against Pohl.36
33 See Deposition of Michael A. Pohl, at 5:22-7:23, attached as Exhibit T.
34 See Deposition of Scott M. Favre, at 119:2-13, Exhibit U; Deposition of Lance Kassab, at 59:5-60:15, Exhibit E;
Affidavit of Douglas Montague III ¶¶ 6, 7, Exhibit H.
35 See Deposition of Scott Walker, at 283:17-21, 316:5-319:14, 327:14-329:23, attached as Exhibit V; Deposition of
Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17, 350:1–351:21, 356:23–358:10, attached as Exhibit
W; Deposition of Steve Seymour, at 193:13-195:9, attached as Exhibit X.
36 See, e.g., Affidavit of Douglas Montague III ¶¶ 6-8, Ex. H.
The argument that Pohl did not own his own client list ignores completely the undisputed
fact that the list was a list of Pohl’s clients. Defendants’ insistence that Pohl did not own these
materials is simply an argument; their factual challenges to Pohl’s ownership are irrelevant and
should not be considered in disposing of the no-evidence motions for summary kjudgment. See
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003) (no-evidencel motion requires a
court to disregard all contrary evidence and inferences).37 But even cif it were relevant, the
immense amount of testimony declaring that Pohl does own his clienst list and contracts provides
far more than a scintilla of evidence in support of Pohl’s ownersship.38
2. Pohl’s evidence that Defendants assumed and exercised dominion and control over
the property in an unlawful and unauthorizedr manner, to the exclusion of and
inconsistent with Pohl’s rights is more than sufficient.
There is no dispute that Defendants obtained Pohl’s attorney-client contracts,
communications and client lists, nor is there aany dispute that they did so without obtaining Pohl’s
permission.39 Defendants expected to and did use that material and information to file suits and
grievances against Pohl.40 There is,e in fact, no evidence that Defendant’s actions were lawful,
authorized or consistent with Pohfl’s rights or frankly the right of Pohl’s clients.
3. Pohl’s evidence tyhat Defendants refused his demand for return of the property, if
necessary, is more than sufficient.
As a legal matter, Pohl contends that there was no requirement for Pohl to lodge a formal
demand for the creturn of his property, as Defendants wrongfully obtained possession of the
37 Furthermore, defendants’ argument ignores that a claim for conversion requires that a plaintiff have a right to
possession, not necessarily ownership, of the alleged converted property. See French v. Moore, 169 S.W.3d 1, 13
(Tex. App.—Houston [1st Dist.] 2004, no pet.). Even if defendants were correct that Pohl did not have legal title to
some of the converted information, the evidence Pohl cites to demonstrate his ownership would at the very least raise
a fact question about his superior right of possession against all third parties, such as against defendants.
38 See supra notes 33 & 35.
39 See Deposition of Tina Nicholson, at 70:7-15, attached as Exhibit I; Kassab Deposition, at 60:25-62:6, Exhibit E;
Pohl Declaration filed in response to TCPA Motion ¶ 8, Exhibit Y.
40 Kassab Deposition, at 70:4-20, Exhibit E.
10
converted property and their actions were a clear repudiation of Pohl’s rights to his property.41 As
a factual matter, Pohl and his counsel did repeatedly demand the return of Pohl’s property.42 To
the extent that there is any doubt that defendants wrongfully obtained possession of the materials,
this issue is a fact question.43 However, given that the individuals who tookk the materials
acknowledge that they believed it belonged to Pohl44 and did not have permislsion to take it, that
should remove any doubt. Additionally, there is enough evidence that Decfendants’ actions were a
repudiation of Pohl’s rights, as they used his converted materials to ssolicit clients to sue him and
disregarded his instructions to Precision to maintain the confidesntiality of the materials.45
Even if demand and refusal were necessary elements of Pohl’s claim, there is ample
evidence that Pohl sought the return of his files and other property from Precision, Nicholson, and
Kassab as well as from other defendants. Pohl’s counsel from another lawsuit made multiple
demands to Nicholson (then acting as the lawyaer for both Favre and Precision) for the return of his
property.46 Both Nicholson and Kassab testified in their depositions that they had entered a joint
venture to pursue barratry claims agaienst Pohl, and it is not disputed that, together with Montague,
they acted together.47 It is likewfise not disputed that Pohl struggled to obtain the return of his
41 See Guillory v. Dietrich, 598 S.W.3d 284, 294 (Tex. App.—Dallas 2020, pet. denied) (“demand and refusal are not
required if the defendanat wlrongfully acquired possession”); French v. Moore, 169 S.W.3d 1, 13 (Tex. App.—Houston
[1st Dist.] 2004, no peit.) (“A plaintiff is required to demand return of the property if the defendant legally obtained
possession.”); El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 625 (Tex. App.—Houston [1st Dist.]
2003, pet. denied)f (stating that a demand for return of the property is not required if the “possessor’s acts manifest a
clear repudiation of the plaintiff’s rights”).
42 See Collection of Letters from Billy Shepherd, attached as Exhibit Z; see also Exhibit 12 to the Nicholson Motion.
43 See supra notes 39-40.
44 See Deposition of Scott Walker, at 283:17-21, 316:5-319:14, 327:14-329:23, attached as Exhibit V; Deposition of
Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17, 350:1–351:21, 356:23–358:10, attached as Exhibit
W; Deposition of Steve Seymour, at 193:13-195:9, attached as Exhibit X.
45 See Ex. B, Declaration of Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed
October 24, 2018; Ex. E, Kassab Deposition 130:3-21 (admitting that Kassab attached Pohl’s fee agreements with
Pohl’s clients that he obtained from Precision to solicitation letters that Kassab sent to Pohl’s clients).
46 See Collection of Letters from Billy Shepherd, attached as Exhibit Z.
47 Nicholson Deposition, at 109:5-15, Ex, I; Kassab Deposition, at 37:2-7, Exhibit E; Exhibit AA (originally used as
Exhibit 8 to Kassab Deposition).
11
property, including by seeking sanctions from a federal court for failure to return everything to
him.48 Nicholson admits in her traditional motion for summary judgment that: “As part of the
settlement, the Parties entered into a confidential Settlement Agreement, and in the agreement Pohl
requested the return of the same trade secrets alleged here.” See Nicholson’s Amenkded Traditional
Motion for Summary Judgment, at 21, filed August 29, 2022. The evidence of dlemand and refusal
to return Pohl’s property is clear. c
4. Pohl’s evidence of damages resulting from the conversiosn of his property is more
than sufficient. D
Nicholson challenges Pohl’s evidence of damages asrising from the conversion of his
property. In so doing, she ignores established Texas law trhat provides:
An owner is competent to testify regarding the value of converted property and, in
the absence of controverting evidence, such testimony will sustain a verdict.
Wiese v. Pro Am Services, Inc., 317 S.W.3d 857, 862 (Tex. App.—Houston [14th Dist.] 2010, no
pet.) (citing Burns v. Rochon, 190 S.W.3d 263, 270–71 (Tex. App.—Houston [1st Dist.] 2006, no
pet.); see also Burlington N. R.R. ve. Gen. Projection Sys., No. 05–97–00425–CV, 2000 WL
1100874, at *8 (Tex. App.—Dalflas Aug. 8, 2000, pet. denied) (op. on reh’g) (not designated for
publication) (concluding tesytimony by plaintiff’s CFO concerning converted property’s rental
value was legally and Cfactually sufficient to support an award for loss of use damages). Pohl is
entirely competent ato testify regarding the value of the converted property.49
In additifon, there are multiple additional sources of evidence of the value of the converted
materialsU, including the amount Favre paid to acquire Precision Marketing and files in its
possession,50 Favre’s affidavit testimony regarding the value of the materials,51 and Defendants’
48 See Transcript of hearing on October 25, 2017, attached as Exhibit BB; Pohl Declaration ¶ 26, Ex. A.
49 Pohl Declaration ¶ 27, Ex. A.
50 The amount was $1.5 million; see Exhibit CC; see also Exhibit 10 to the Nicholson Motion.
51 See Favre Affidavit, Ex. DD.
12
payment of $250,000 plus bonuses for access to the materials.52 Finally, there is evidence that
Pohl suffered actual damages in the form of attorneys’ fees and expenses that he incurred
defending litigation that arose due to Defendants’ conversion of his property.53
C. Pohl has ample evidence of each element of TUTSA. k
Pohl has evidence to support each of the elements of his TUTSA claiml, as he can prove:
(1) that he owned trade secrets; (2) that Defendants knowingly acquired thcem by improper means,
and (3) that the misappropriation caused Pohl damages. See TEX. sCIV. PRAC. & REM. CODE §
134A.002. Texas law provides that a trade secret s 
may consist of any formula, pattern, device or compilation of information which is
used in one’s business, and which gives him an oprportunity to obtain an advantage
over competitors who do not know or use it. It may be a formula for a chemical
compound, a process of manufacturing, treating or preserving materials, a pattern
for a machine or other device, or a list of customers.
Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 463 (Tex. App.—Austin 2004,
pet. denied). 
Mr. Pohl has sworn that he eowns the materials and that the materials at issue have
independent economic value fromf not being generally known to or ascertainable through proper
means by another person wyho can obtain economic value from them.54 He has sworn that he
protected the trade secrCet information by strictly limiting access and maintaining them under lock
and key and by ensauring that those who had access to the information understood its confidential
nature.55 This fwas confirmed by the Precision witnesses.56 He has sworn that he has suffered
52 See 2016.11.10 Agreement Between Kassab, Montague, and Favre, attached as Exhibit EE; Montague Deposition,
at 79:11-82:21, Ex. F.
53 Pohl Declaration ¶ 28, Ex. A.
54 Pohl Declaration ¶ 27, Ex. A.
55 Id. ¶¶ 14-15.
56 See, e.g., Deposition of Michael A. Pohl, attached as Exhibit T, at 5:22-7:23; Deposition of Scott M. Favre at 119:2-
13, Exhibit U; Deposition of Lance Kassab at 59:5-60:15, Exhibit E; Deposition of Scott Walker, at 283:17-21, 316:5-
319:14, 327:14-329:23, Exhibit V; Deposition of Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17,
350:1–351:21, 356:23–358:10, Exhibit W; Deposition of Steve Seymour, at 193:13-195:9, Exhibit X.
13
injury as a result of Defendants’ misappropriation of those trade secrets.57 This evidence is
sufficient to overcome the challenges of the no-evidence motions. As set forth in greater detail
below, Pohl has substantial evidence of each element of his claims under TUTSA.
1. Pohl’s evidence that he owned the trade secrets is sufficient. k
TUTSA provides a statutory definition of the term “owner.” l
“Owner” means, with respect to a trade secret, the person or enticty in whom or in which
rightful, legal, or equitable title to, or the right to enforce rigrhts in, the trade secret is
reposed. s
TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a). Once agasin, Defendants challenge Pohl’s
evidence demonstrating his ownership of the materials, claiming both that he did not own it and
that his acquisition of the trade secrets was wrongful. Pohl’s evidence of ownership, as fully set
forth above is substantial;58 it is Defendants’ position that Pohl did not own the materials that is
unsupported by any evidence. Defendants’ caontention that Pohl has no legal or equitable title to
his attorney-client agreements, his confidential client lists, and his attorney work product because
he obtained those materials by impropeer means is just another reiteration of their failed arguments
regarding barratry. Defendants’ cfontention that Pohl obtained the client lists through illegal action
has been fought and lost, andy their efforts to reurge every failed argument should be rejected.
2. Pohl’s evideCnce that he protected the trade secrets is sufficient.
Mr. Pohl has sworn that he strictly limited access to the trade secrets, and he ensured that
those who had fafccess to that information fully understood as part of their professional obligations
the confiUdential character of that information. Defendants apparently believe that because they
57 Pohl Declaration ¶ 28, Ex. A.
58 See, e.g., Deposition of Michael A. Pohl, attached as Exhibit T, at 5:22-7:23; Deposition of Scott M. Favre at 119:2-
13, Exhibit U; Deposition of Lance Kassab at 59:5-60:15, Exhibit E; Deposition of Scott Walker, at 283:17-21, 316:5-
319:14, 327:14-329:23, Exhibit V; Deposition of Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17,
350:1–351:21, 356:23–358:10, Exhibit W; Deposition of Steve Seymour, at 193:13-195:9, Exhibit X.
14
were able to unlawfully obtain the information, Pohl cannot demonstrate that he protected that
information. If that argument succeeded, then in every claim of misappropriation, the
misappropriation itself would prove a failure to protect the information.
Defendants suggest that Pohl failed to protect the information at issue becaukse Pohl did not
include a specific confidentiality provision in his contract with Precision. Bult whether Pohl did
or did not take one of many potential steps to protect trade secrets does ncot support a no-evidence
motion for summary judgment. Pohl has more than a scintilla osf evidence of the statutory
requirement—that he take “reasonable measures under tshe circumstances” to preserve
confidentiality. Pohl testified that “numerous times throughout the relationship,” he emphasized
to Precision and its employees the importance of confidentiality.59 The testimony of individuals
associated with Precision shows that not only were they aware of the confidential nature of the
information, but they took reasonable steps ato protect the confidentiality of that information.60
These steps include (and are corroborated by Precision representatives):
• Pohl informed Preciseion and all of the staff of the confidential and privileged
nature of the inforfmation and instructed them to treat them accordingly.61
• Pohl maintai y ned his office at the top of Hancock Bank – “the most secure location
on the cCoast.”62
• The building had 24 hour/round the clock security.63
59 Deposition of Michael Pohl at 23:5-21, Exhibit T.
60 Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7, Exhibit V; Deposition of Kirk Ladner, at 355:18–
358:10, 372:7–374:24, 377:4–23, 501:3–502:18, Exhibit W; Deposition of Steve Seymour, at 96:16-24, 223:1-20,
Exhibit X.
61 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
62 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
63 See Deposition of Scott Walker, at 283:17-284:22, Exhibit W.
15
• The elevators were coded such that one could only get to one’s own floors.64
• There were security cameras at every floor.65
• The documents and computers were kept under “lock and seal.”66
• The engagement agreements were clearly labeled to identify the k m as contracts
between lawyers and clients.67 C l
Defendants’ focus on the absence of a written confidentiality provision is a distraction from the
evidence (which defeats a no evidence summary judgment) of Pohl’s efforts to protect
confidentiality. s
2. Pohl’s evidence that Defendants knowingly mgisappropriated the trade secrets is
sufficient. r
The statutory definition of “misappropriation” includes “acquisition” of a trade secret by
improper means and “use” of a trade secret by a iperson if the person knows or has reason to know
that the person’s knowledge of the trade secret was derived from or through a person who used
improper means to acquire the trade sec
ret. TEX. CIV. PRAC. & REM. CODE § 134A.002(3). Kassab
and Nicholson misappropriated Poihl’s trade secrets by participating in a scheme to acquire stolen
trade secrets and they then “used” Pohl’s trade secrets by contacting Pohl’s clients to solicit their
participation in barratry souits.
Through theirl training and experience as lawyers, Kassab and Nicholson knew or should
have known that it was improper to obtain an attorneys’ client contracts and list from a third party
without thant lawyer’s or the client’s authorization.68 Furthermore, the agreement that Kassab
(Nicholson’s co-counsel) signed to obtain Pohl’s trade secrets contains an indemnity provision for
64 See Deposition of Scott Walker, at 322:9-23, Exhibit V.
65 Id.
66 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V.
67 Pohl Declaration ¶ 15, Ex. A.
68 See Pohl Deposition at 115:5-116:1, Exhibit T.
16
Favre in which Kassab agreed to indemnify and hold harmless Favre in defending claims relating
to and/or arising from the disclosure of client information where such claims are asserted by Pohl
and certain others.69 Nicholson also was responsible for sending threatening letters to get Walker
and others to turn over Pohl’s information to Nicholson, Precision, and Favre.70 k
In addition, certain Defendants’ “uses” of the trade secrets occurred aftelr May 1, 2017, the
date of the Settlement Agreement that Nicholson discusses in her traditiocnal motion for summary
judgment.71 There can be no doubt that by the time Kassab and Nicholsson used Pohl’s trade secrets
to contact and solicit Pohl’s clients and former clients, they knsew that the materials belonged to
Pohl and their use violated his rights of ownership.
3. Pohl’s evidence that he incurred actual damages is sufficient.
Pohl has testified relating to his extensive damages arising from Defendants’ theft of trade
secrets.72 Those damages arose directly from athe actions of Defendants in misappropriating Pohl’s
trade secrets and attempting to monetize those secrets by contacting Pohl’s clients and former
clients and fomenting litigation againest him. Additionally, Pohl has provided evidence of damages
in the form of the market value fof his trade secrets that constitute unjust enrichment/reasonable
royalty damages for Defendaynts’ theft of those trade secrets.73
69 2016.11.10 Agreement Between Kassab, Montague, and Favre, Ex. EE.
70 See Letters from Nicholson (originally used as Exhibits 70 and 71 in the Walker Deposition), attached as Exhibit
FF; Deposition of Scott Walker, at 391, 394:11-395:9 (discussing Exhibits 70 and 71 and showing that they were
produced by Nicholson’s attorney in the deposition), Ex. V.
71 See Petitions in four cases, attached as Exhs. 28-30; 32 to the Nicholson’s Traditional Motion for Summary
Judgment, each filed after May 1, 2017, Exhibit C. These filings were in direct violation of the Settlement Agreement,
which requires that parties and their affiliates (defined to include their attorneys) will not file or cause to be filed any
complaint, claim or legal action against Pohl and others.
71 Cf. Nicholson’s Amended Traditional Motion for Summary Judgment, at 21, filed August 29, 2022
72 See Pohl Declaration ¶¶ 27-28, Ex. A.
73 See id. ¶ 27.
17
III.
CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the No Evidence Motions for Summary Judgment filedk by Kassab and
Nicholson be in all respects denied and that the issues raised in Plaintiffs’ Peltition be tried by a
jury. c
Dated: September 12, 2022 Respectfully submitted,s
REYNOLDS FRIZZEsLL LLP
By: /s/ Jean C. Frizzell
Jean rC. Frizzell
State Bar No. 07484650
1100 Louisiana St., Suite 3500
Houston, Texas 77002
Tel.l 713.485.7200
Faax 713.485.7250
Mjfrizzell@reynoldsfrizzell.com
oAttorney for Plaintiffs Michael Pohl
e and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the TCexas Rules of Civil Procedure on this the 12th day of September, 2022.
c /s/ Jean C. Frizzell
f Jean C. Frizzell
18
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68182775 r
Status as of 9/13/2022 8:05 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 11:26:05 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 11:26:05 PM SENT
Andrew J. Sarne asarne@krcl.com 9/12/2022 11:26:05 PM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 11:26:05 PM SENT
Kathryn Laflin KLaflin@KRCL.com 9/12/2022 11:26:05 PM SENT
Murray JFogler mfogler@foglerbrrar.com 9/12/2022 11:26:05 PM SENT
Murray Fogler mfogler@fbfog.com 9/12/2022 11:26:05 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Larry Newsom lnewsom@fkrcl.com 9/12/2022 11:26:05 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 11:26:05 PM SENT
Chris C.Pappas cpappas@krcl.com 9/12/2022 11:26:05 PM SENT
Todd Taylor titaylor@jandflaw.com 9/12/2022 11:26:05 PM SENT
Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/12/2022 11:26:05 PM SENT
Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 11:26:05 PM SENT
Scott M.Favre scott@favrepa.com 9/12/2022 11:26:05 PM SENT
Andrea Mendez C andrea@kassab.law 9/12/2022 11:26:05 PM SENT
Lance Kassab  lance@kassab.law 9/12/2022 11:26:05 PM SENT
David Kassab a david@kassab.law 9/12/2022 11:26:05 PM SENT
Nicholas Pierce c nicholas@kassab.law 9/12/2022 11:26:05 PM SENT
Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 11:26:05 PM SENT
Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 11:26:05 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 11:26:05 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:26:05 PM SENT
L Kassab lance@kassab.law 9/12/2022 11:26:05 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:26:05 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 11:26:05 PM SENT
Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 11:26:05 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 11:26:05 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 11:26:05 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/12/2022 11:26:05 PM ERROR
D Kassab david@kassab.law 9/12/2022 11:26:05 PM SENT"
36,2022-09-12,RSP,Pohl,Pohl’s response to Kassab trad MSJ,"Plaintiffs' Response in Opposition to Traditional Motions for Summary Judgment Filed by Kassab and Nicholson Defendants — comprehensive 38-page response opposing limitations, unlawful acts doctrine, attorney immunity, judicial proceedings privilege, release, TUTSA protection, ownership, and damages defenses","Response to traditional MSJs filed by Kassab (Aug. 29, 2022) and Nicholson (Amended, Aug. 29, 2022), four years into litigation. Filed September 12, 2022 at 11:55 PM. Incorporates arguments and evidence from companion no-evidence MSJ response filed same day. Filed by Jean C. Frizzell of Reynolds Frizzell LLP. Notes Court previously denied Kassab's first MSJ (limitations, res judicata, attorney immunity) on August 3, 2021.",MSJ-2,N/A,Phase 3,2022-09-12_RSP_Pohl-Response-to-Kassab-Trad-MSJ_FILED.pdf,Deny the traditional motions for summary judgment filed by Kassab and Nicholson in all respects,"9/12/2022 11:55 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68182991
By: Deandra Mosley
Filed: 9/12/2022 11:55 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE
TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
FILED BY THE KASSAB DEFENDANTSl AND THE NICHOLSON DEFENDANTS
Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the Traditional Motion for Summary Judgment filed by Defendants Lance
Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively
“Kassab”) and the Amended Traditional Motion for Summary Judgment filed by Tina Nicholson
and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm (collectively, “Nicholson,” and
together with Kassab, the “Moving Defendants”).
c I. INTRODUCTION
On June 8, 2021, Kassab moved for traditional summary judgment on the grounds of
limitations, res judicata, and attorney immunity. By order dated August 3, 2021, the Court denied
Kassab’s motion. Although nothing has changed relative to the facts relating to the defenses of
limitations and attorney immunity, Kassab reargues those issues to the Court. Nicholson likewise
asserts limitations and immunity defenses. For the same reasons the Court rejected those defenses
in Kassab’s original motions, the Court should reject those defenses again here.
The Moving Defendants’ assertion of an “illegal acts” defense fails as both a matter of fact
and a matter of law. Both Nicholson and Kassab expend countless breathless pakges and submit
dozens of exhibits in an effort to prove what they have been unable to demolnstrate in multiple
prior lawsuits and in Texas State Bar Grievances. The claim that Pohl engcaged in acts that violated
the Texas Rules governing lawyers has been examined and rejected bsy the State Bar of Texas, and
the enormous evidentiary record does not alter that determinatiosn. Instead, it merely exposes once
again the Moving Defendants’ overall strategy of muddying the record with extraneous allegations
against Pohl, in spite of the Court’s dismissal of all the counterclaims previously asserted against
him.
The “illegal acts” defense does noat apply because (1) it is preempted by Texas’s
proportionate responsibility statute; (2) Pohl’s actions have been adjudicated and were not
“admittedly” criminal or unlawful; aned (3) even if a fact issue remained regarding the legality of
Pohl’s acts, any wrongful act is fnot sufficiently tied to and is not a proximate cause of Pohl’s
claims here to give rise to a dyefense.
Nicholson contCends that any torts they committed against Pohl were released as a result of
the a confidential settlement agreement, executed in late April and early May 2017 (the
“Settlement Agf freement”), that resolved a lawsuit in federal court in Mississippi, styled No. 1:14-
cv-381-KUS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., In The United States District
Court For The Southern District of Mississippi, Southern Division (the “Federal Court Case”), in
which Tina Nicholson represented Precision, then owned by Favre. Given that Nicholson has
flagrantly and repeatedly violated obligations arising from that Settlement Agreement, including
by fomenting litigation against Pohl and by failing to return all originals and all copies of materials
stolen from Pohl, it is surprising that Nicholson would invoke that agreement here. In any event,
the release on which Nicholson relies does not extend to the acts committed here.
The Moving Defendants also contend that various forms of immunity proktect them from
this suit, but their arguments fail as a matter of law. The attorney immunityl doctrine does not
protect lawyers from claims of conversion and theft of trade secrets comcmitted when they were
not representing any client. Similarly, the “judicial proceedings privislege” does not apply to those
torts in that context. s 
The final two defenses that the Moving Defendants assert in their traditional motions for
summary judgment are Pohl’s alleged failure to protect his trade secrets by requiring a
confidentiality agreement, and an argument that the damages Pohl seeks are not available as
recompense for misappropriation of trade secarets and conversion. Both defenses fail as a matter
of law and as a matter of fact. 
I. FeACTUAL BACKGROUND1
Pohl represented variousf persons and entities in claims arising from motor vehicle
accidents and the British Peytroleum Deepwater Horizon oil spill (“BP Matter”).2 Pohl engaged
Precision Marketing GCroup, LLC (“Precision”) to provide public relations services, to gather and
preserve evidence, a and to screen and liaise with Pohl’s clients and prospective clients.3 While
working for Pfofhl, Precision naturally gained access to Pohl’s confidential and proprietary
informatiUon and property, including trade secret materials.4 Scott Favre, individually and/or
1 Pohl incorporates by reference both the arguments and evidence contained in his Response to the No-Evidence
Motions for Summary Judgment that is filed on the same day as this Response.
2 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 2, attached as Exhibit A.
3 Id. ¶ 9.
4 Id.
through Scott M. Favre PA, LLC (collectively “Favre”) is the managing member of Precision.5
Favre took physical copies of Pohl’s information, and took possession of Pohl’s stolen computers
and misappropriated electronic data.6
In November 2016, facilitated by Nicholson, Kassab and Douglas Mokntague III and
Montague, Pittman & Varanado, P.A. purchased Pohl’s stolen confidentiall information and
property from Favre for a whopping $250,000, plus bonuses,7 taking poscsession of at least some
of the information and property in December 2016.8 The Moving Defsendants highly valued Pohl’s
stolen and misappropriated confidential information and propertys because, after purchasing it, they
intended to and did contact and solicit Pohl’s clients and prospective clients.9 These actions
constitute conversion, violations of the uniform trade secrets act (“TUTSA”), and conspiracy. Pohl
timely brought this lawsuit alleging those torts on August 28, 2018.10
The Barraatry Allegations
Although any attempt to relitigate the failed barratry allegations should not be permitted
(and will be the subject of appropriaete motions in limine and evidentiary objections), and Pohl
hesitates to give the allegations unfnecessary attention, Pohl will address those claims briefly below
out of an abundance of cautiyon and to not leave the inaccurate, and often purposefully misleading,
allegations unrebuttedC. While the problems and misstatements contained in Kassab’s and
5 Id. ¶ 24.
6 Id. ¶¶ 24–25.
7 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A).
8 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A).
9 The defendants have admitted using Pohl’s client files (while erroneously claiming that they belonged to Precision
Marketing) to contact Pohl’s clients and former clients to solicit them to file claims against Pohl. See Declaration of
Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018, Exhibit B;
Kassab Deposition 130:3-21 (admitting that Kassab attached Pohl’s fee agreements with Pohl’s clients that he obtained
from Precision to solicitation letters that Kassab sent to Pohl’s clients), Exhibit C.
10 See generally Pohl’s Original Petition, filed August 28, 2018.
Nicholson’s motions could result in an 80-page response, Pohl will address a few key issues and
rely upon his declaration to further rebut the allegations.
Precision, before the sale to the Favre parties, was owned and run by Kirk Ladner, Steve
Seymour, and Scott Walker.11 At the time that Pohl retained Precision, Preckision made the
following representations to Pohl: l
• That Precision had considerable experience in working wcith many law firms and
could provide marketing and public relations services, gather and preserve
evidence and act as a liaison with Pohl’s
clientss;12
• That Precision operated under the guidancge of experienced Mississippi attorneys
to ensure the propriety of their marketBing activities;13
• That Precision would organize anyd host festivals, town hall meetings and other
gatherings to appropriately edaucate the public as part of their marketing efforts;14
• That Precision would traifn  and supervise the Precision staff so as to ensure optimal
results and complian e ce with the rules governing their marketing activities.15
Mr. Pohl and Mr. WilOliafmson relied on these representations in moving forward with
Precision’s principals and entered into services agreements that provided for an hourly rate for
services that was cappCed at a percentage of Pohl’s fees.16 Precision worked out of an office
11 Pohl Declaration ¶¶ 5-8, 24, Exhibit A.
12 Pohl Declaration ¶¶ 5, 9, 25.
13 Pohl Declaration ¶¶ 10, 20.
The evidence still supports this representation. As Walker testified less than two weeks ago: “We ran [the
contracts between Precision and Pohl] past multiple law firms and they all approved those.” Deposition of Scott
Walker, at 209:25-211:9, attached as Exhibit D.
14 Pohl Declaration ¶ 21.
15 Pohl Declaration ¶ 21.
16 Pohl Declaration ¶ 18; see also Exhibit 2 to the Kassab Motion (attaching a later example of such an agreement).
supplied by Pohl and Precision’s owners and staff were Pohl’s agents facilitating the rendition of
Pohl’s and Williamson’s legal service.17
Precision did not live up to expectations. Precision committed the following misconduct:
• Referred certain clients to other lawyers when they were supposed kto be providing
services full time to Pohl and Williamson; C l
• Fabricated expenses to overcharge Pohl for fraudulent expcense reimbursements;
• Systematically overcharged Pohl in violation of the services agreements;
• Failed to keep time records as both required sby the services agreements and
repeatedly requested by Pohl. g
• Brought suit in Mississippi Federal CBourt claiming Precision was underpaid for
their marketing and public relatioyns services. Precision initially (and correctly)
argued that they were paid by a hourly fee.18 When their lack of supporting time
records became a problemf and when Nicholson became involved in the litigation,
their position changed to that they were guaranteed a percentage of the fee.19 As
will be addressOed below, it was Nicholson who raised the issue of barratry,
provided the Precision witnesses scripts to follow to assert barratry allegation,
and threatened witnesses unless they delivered the scripted testimony concocted
by hier.
• o fPrecision then stole Pohl’s client files, information and computers so that they
could sell them ostensibly as part of a sale of Precision to Favre with Favre then
17 Pohl Declaration ¶ 14 (discussing how Precision’s principals acted as the functional equivalent of employees).
18 See Original Complaint in MS Lawsuit, at 5-6, attached as Exhibit 4 to the Nicholson Motion (discussing how
Precision was entitled to “hourly fees”).
19 See Amended Complaint in MS Lawsuit filed March 17, 2016, at 12-13, attached as Exhibit E (including different
allegations that Precision was entitled to a percentage of fees, not an “hourly rate”).
acting as managing member of Precision to move forward with a concerted
scheme to bring barratry claims against Pohl, Williamson and a third lawyer Rob
Ammons.
After the sale of Precision to Favre, Nicholson represented Favre, Precisiokn and the three
individuals (Ladner, Seymour and Walker) and actively suborned perjury. It lis against this back
drop that Kassab and Nicholson have selectively pulled testimony capparently scripted by
Nicholson and designed to further Precision’s claims in the Mississisppi suit and provide support
for the barratry lawsuit scheme—now largely recanted—to suppsort their assertion of barratry.
The Multiple Grievances
As a starting point, it is important to note that all of the allegedly illegal acts argued by
Kassab and Nicholson were the subject of a grievance brought by Kassab against Pohl individually,
as well as multiple grievances brought by Kasasab as counsel for former clients of Pohl that Kassab
had solicited after purchasing Pohl’s files. Kassab, in a manner very similar to the course chosen
by Kassab and Nicholson for their Meotion for Summary Judgment, submitted over 60 pages of
argument for his individual grievfance and over 2,300 pages of exhibits. However, once Pohl had
an opportunity to respond ywith the actual facts and by pointing out the misstatements and
fabrications in Kassab’Cs submissions, Pohl was cleared of any wrongdoing:
The Kassab a Grievance: State Bar of Texas: Summarily Dismissed.20
The Chf f eatham Grievance:
U• State Bar of Texas: “This office has examined the Grievance and determined that
the information alleged does not demonstrate Professional Misconduct or a
Disability.21
20 See Nov. 15, 2019 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. F, at 12.
21 See Feb. 24, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. G, at 11.
• The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, the Board has determined that the
conduct you described in the grievance does not violate the Texas Disciplinary
Rules of Professional Conduct.”22 k
The Bikumbu Grievance: C l
• State Bar of Texas: dismissed on limitations grounds:23 c
• The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, thse Board has determined that the
conduct you described in the grievance doges not violate the Texas Disciplinary
Rules of Professional Conduct.”24 B
The Speck Grievance: y
• State Bar of Texas: dismissed oan limitations grounds:25
• The Board of Disciplinafry Appeals: “After reviewing your grievance as you
originally filed it and no other information, the Board has determined that the
conduct you deOscribed in the grievance does not violate the Texas Disciplinary
Rules of Professional Conduct.”26
The Berry Grievance:
• Statie Bar of Texas: dismissed on limitations grounds:27
• o f The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, the Board has determined that the
22 See May 14, 2020 Letter from The Board of Disciplinary Appeals, Ex. H, at 5.
23 See Jan. 14, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. I, at 10.
24 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. J, at 4.
25 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. K, at 8.
26 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. L, at 1.
27 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. M, at 7.
conduct you described in the grievance does not violate the Texas Disciplinary
Rules of Professional Conduct.”28
The Miller Grievance:
• State Bar of Texas: “This office has examined the Grievance and kdetermined that
the information alleged does not demonstrate ProfessionCall Misconduct or a
Disability.”29 c
• The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, thse Board has determined that the
conduct you described in the grievance doges not violate the Texas Disciplinary
Rules of Professional Conduct.”30 B
Undeterred, Kassab and Nicholson rely yheavily for their allegations of barratry upon
portions of testimony from Scott Walker takaen from his 2016 deposition in the Mississippi suit
when: a) he was trying to obtain funds from Pohl and Williamson; b) he was represented by
Nicholson; and c) he was directed by Nicholson on what he should and should not say including
the instruction to pepper his testimfony with barratry allegations.31
Q. (Kassab) Now, I hear what you said. You said that Tina Nicholson prepared
you for the deposoition. Is that what I heard?
A. (Walker) Yes
Q. And idid Ms. Nicholson tell you to lie?
A. She just told us things, buzz words to say. I had never heard the word
“barratry” before, “cold calling.” Those were the things Ms. Nicholson wanted us
to say throughout the deposition as much as we could.”
Q. Do you recall my question?
28 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. N, at 2.
29 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. O, at 9.
30 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. P, at 3.
31 See Deposition of Scott Walker, at 198:19-199:19, 203:15-204:23, Exhibit D.
A. What was it?
Q. I asked you if Ms. Nicholson instructed you or told you to lie in the deposition.
A. Yes.
Q. Okay. And is it your testimony today that you, in fact, perjured yourself in the
deposition by lying?
A. No. r
Q. Well, did you lie in the deposition? C
A. I listened and did what my attorney said to do.32 t
This is a stunning admission given that Walker is an ex-felon.t He went on to testify that
he did not knowingly intend to lie but relied upon the advice of Nicholson to give the testimony
he gave.33 e
Kassab and Nicholson also rely heavily on a uSeptember 24, 2016 affidavit and some
testimony by Magdelena Santana. While Kassab annd Nicholson do mention that she swore out an
additional affidavit, they do not describe it accur irately. Nor do they mention Ms. Santana’s letter
sent to Judge Starett in Mississippi (among other recipients) and the taped conversation that
occurred solely between Ms. Santana and Kassab.
Ms. Santana’s letter statedf ais follows:34
32 See Deposition of Scott Walker, at 203:15-204:23 (emphasis added), Exhibit D.
33 See Deposition of Scott Walker at 205:1-14, Exhibit D; see also Deposition Instructions to Walker, attached as
Exhibit Q (used as Walker Ex. 69 in the deposition); Deposition of Scott Walker at 347:20-350:7, Exhibit D
(authenticating Walker Ex. 69).
34 See October 3, 2017 letter from Magdalena Santana copying Judge Starett, attached as Exhibit R.
10
The private call between Kassab and Santana, secretly recorded by Kassab on August 15th,
2017 confirms her letter to Judge Starret and reflects the pressure brought to bear by Nicholson
and Favre against Ms. Santana:
…I’m still going through emotional distress. Recently I just finished that
subpoena, going to be a year in November, with the whole scenario that they
promised cthat I would – the firm, Tina Nicholson and Scott [Favre], they signed the
documefnft that said that if I testified – actually they were calling my mom’s house,
calling me, saying that if I didn’t come and testify, that I was going to be in
trUouble, that they were going to go send – subpoena my brother. I don’t know. It’s
been super-stressful. It’s been super stressful. They’ve been calling and telling me
all kinds of stuff. And I agreed to go and testify just to avoid any type of problems
to come to my family, to my mother’s house and my brother’s house in the fact –
and due to the fact that they were going to pay me what was owed, they got settled
money and then they just kicked me to the curb.35
35 See Audio Transcription dated August 15, 2017, at pp. 6-7, attached as Exhibit S.
11
And although Kassab sought to coax Santana into supporting the claim that Pohl and
Williamson were involved in an alleged barratry scheme, Santana rejected that contention as well:
MR. KASSAB: My understanding is Williamson Pohl set up the scheme. I thought
that’s what you told me.
MS. SANTANA: The marketing firm is the one that hired me. I didn’t eeven go out
and meet Pohl and Williamson during the course of that whole thing…l.36
Kassab and Nicholson also assert that Pohl paid Santana $50,00c0 and imply that it was
payment to retract her September 14, 2016 affidavit and to sign her Dsecember 19, 2017 affidavit.
This is not only false but is clearly designed to mislead the Cousrt.
The actual facts surrounding the disturbing story of Ms. Santana are as follows. Ms.
Santana wrote/signed the relevant agreements, correspondence and affidavits on the following
dates:
May 21, 2014: Santana/Walker eat al./Pohl release and non-disparagement
agreement a/k/a “sworn statement” M(Santana is paid $50,000 as consideration).
September 24, 2016: Santana’s “ffirst affidavit” (prepared by Tina Nicholson)
October 3, 2017: Santana’s eletter to Favre/Nicholson/Judge Starrett (stating she
was coerced into signing thec “first affidavit”)
December 19, 2017: SOantana’s “second affidavit” (retracting the “first affidavit”).
The Moving Defendants’ reliance on testimony from a retracted affidavit demonstrates that their
Motions are not to be tCaken seriously.
II. ARGUMENT
A. The Efvidence Cited by the Moving Defendants Is Not Competent Summary
Jundgment Evidence and Pohl Objects to Consideration of It.
As a threshold matter, the Moving Defendants rely on numerous inadmissible deposition
transcripts taken in other lawsuits, many of which involve persons who are not parties to this
lawsuit. Additionally, the exhibits attached to Kassab’s Motion are not properly authenticated as
36 Id. at 3-4.
12
evidence, as the attached declaration incorrectly claims that everything attached to Kassab’s
Motion are business records of Kassab’s firm. The lack of seriousness with which the Moving
Defendants approach summary judgment evidence is not surprising, given that the motions also
rely on controverted evidence, which cannot support a traditional motion for summkary judgment.
The Moving Parties cite to numerous deposition transcripts from plrior lawsuits that
constitute inadmissible hearsay that the Court should disregard. The Tcexas Rules of Evidence
provide an exclusion from the hearsay rule for testimony from a desposition “taken in the same
proceeding.” TEX. R. EVID. 801(3). However, deposition testims ony from a different proceeding
is inadmissible unless it falls within an exclusion to the hearsay rule. See Taylor v. Baylor Scott
& White Med. Ctr.-Frisco, No. 05-20-00352-CV, 2022 WL 405896, at *3 (Tex. App.—Dallas
Feb. 10, 2022, no pet.) (“Because the record establishes that Dr. Carmody’s deposition testimony
is not from the same proceeding, and the deposaition did not fall within any exclusion to the hearsay
rule, the trial court did not abuse its discretion in excluding this evidence.”).
Kassab cites to eight differenet inadmissible deposition transcripts from prior lawsuits.37
These are not tangential to Kassfab’s Motion, as he cites to these inadmissible depositions well
over a hundred times. See gyenerally Kassab’s Motion. Nicholson’s Motion fares a little better.
She cites to four diffeCrent inadmissible deposition transcripts from prior lawsuits38 well over a
dozen times. See generally Nicholson’s Motion. Furthermore, Kassab incorporated Nicholson’s
briefing and evfifdence. See Kassab’s Motion, at 2. Pohl objects to these exhibits, and the Court
should exUclude all of this inadmissible evidence and deny the Motions as insufficient on this
ground alone.
37 See Kassab Ex. 3-A; Kassab Ex. 3-B; Kassab Ex. 4; Kassab Ex. 7; Kassab Ex. 8; Kassab Ex. 15; Kassab Ex. 25;
Kassab Ex. 39.
38 See Nicholson Ex. 18; Nicholson Ex. 19; Nicholson Ex. 25; Nicholson Ex. 26.
13
Pohl also objects on the grounds that Kassab’s Motion improperly attempts to authenticate
evidence as business records without proper support. Despite attaching 60 exhibits, which include
items like contracts to which Kassab is not a party39 and correspondence between third parties,40
Kassab attempts to authenticate all of the exhibits by stating: k
Attached to the Motion are true and correct copies of documents whichl were either
exchanged in discovery in the Barratry Litigation, including document production
and depositions, or used in the Barratry Litigation, like declacrations from my
clients. These documents are considered business records of the Frirm and have been
kept in the regular course of business. The records attached tos the Motion are exact
duplicates.41 D
First, this does not satisfy the requirements of a business recsords affidavit. See TEX. R. EVID.
902(10). Furthermore, much of the evidence cannot satisfry the requirements of a business record,
as there is no way for David Kassab to be familiar with the creation of items that were produced
in discovery by other parties and whether “the relcord was made at or near the time by—or from
information transmitted by—someone withM knowledge.” See TEX. R. EVID. 803(6)(A).
Because they are not properly aouthenticated as evidence, the Court should not consider
Kassab Exhibits 2-5, 7-8, 10-15, 17c, 20-21, 23-28, 30-34, 36-38, 40, & 51.
B. Pohl’s Claims are Not Barred by Limitations.
Pohl’s claims against the Moving Defendants accrued no earlier than November 2016
because they arise from the November 2016 purchase—and subsequent use—of information and
property stolen frcom Pohl. As no claim has a limitations period of less than two years, and Pohl
brought this lawsuit in August 2018, Pohl’s claims are not barred.
39See, e.g., Kassab Exhibits 26 & 31.
40 See, e.g., Kassab Exhibit 38.
41 See Declaration of David Kassab ¶ 5, attached as Exhibit 1 to the Kassab Motion.
14
1. The summary judgment standard for the affirmative defense of limitations.
Defendants seeking summary judgment on limitations bear the burden of proof and must
conclusively prove when each of the alleged causes of action accrued. See Regency Field Services,
LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818 (Tex. 2021) (“a defkendant seeking
summary judgment based on limitations must conclusively establish that thel limitations period
expired before the claimant filed suit”). “Generally, a claim accruecs when the defendant’s
wrongful conduct causes the claimant to suffer a legal injury, which gsives the claimant the right to
seek a judicial remedy.” Id. Texas courts apply specific tests to determine the accrual of certain
claims, including the three claims at issue here.
A claim for conversion generally accrues at the time of the defendant’s “unlawful taking”
of the plaintiff’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st
Dist.] 2006, no pet.). When property is alleged to have been converted and then transferred to
another party, “each possession is a new conversion.” Pemex Exploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WLe 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (citation omitted)
(applying Texas law). There is a ftwo-year limitations period for conversion. See TEX. CIV. PRAC.
& REM. CODE § 16.003(a). y
“A cause of acCtion for trade-secret misappropriation accrues when the trade secret is
actually used. Use aof the trade secret means commercial use by which the offending party seeks
to profit from thfe use of the secret.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699,
721–22 (UTex. 2016) (cleaned up). There is a three-year limitations period for TUTSA violations.
See TEX. CIV. PRAC. & REM. CODE § 16.010(a). The civil conspiracy claim is derivative of the
underlying torts, and it accrues “as to each alleged underlying tort when that tort occurs.” Agar
Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 145 (Tex. 2019).
15
2. Pohl’s claims accrued within two years of the initiation of this suit.
Pohl brought suit on August 28, 2018.42 Because Pohl’s conversion claim accrued after
August 28, 2016 and Pohl’s TUTSA claim accrued after August 28, 2015, the affirmative defense
of limitations fails. k
Pohl’s conversion claim arises from Defendants’ purchase and slubsequent use of
information and property that they knew had been stolen from Pohl. Seec Amended Complaint ¶¶
36–38.43 The evidence shows that Defendants made this purchasse through a contract dated
November 10, 2016.44 The Defendants took possession of at least some of Pohl’s information and
property no earlier than that date and mostly beginning in De e cember 2016.45
Pohl’s conversion claim accrued when the Defendants obtained Pohl’s property. See Burns
v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Contrary to the
Defendants’ arguments, a prior claim for conversion against other individuals or entities is entirely
irrelevant, as “each possession is a new conversion.” Pemex Exploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WLe 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (emphasis added)
(applying Texas law). Defendafnts’ liability did not accrue when other people and entities
committed wrongs against Pyohl; that liability accrues when Defendants themselves committed the
tortious acts. BecauseC the contract to purchase the property is dated in November 2016,46 and
Kassab was still acaquiring possession of the stolen property in December 2016,47 Pohl’s claim
against Kassab ffor conversion accrued, no earlier than November 2016—well within the two-year
period. U
42 See generally Pohl’s Original Petition, filed August 28, 2018.
43 See also November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
44 Id.
45 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
46 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
47 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
16
Pohl’s TUTSA claim is based on Defendants’ knowing purchase and subsequent use of
stolen trade secrets. See Amended Complaint ¶¶ 39–42. Pohl’s TUTSA claim accrued upon the
Defendants’ use of Pohl’s stolen trade secrets. See Sw. Energy Prod. Co. v. Berry-Helfand, 491
S.W.3d 699, 721–22 (Tex. 2016). For Defendants to obtain summary judgmentk on limitations,
they must conclusively show that Pohl’s TUTSA claim against accrued prior tlo August 28, 2015.
See TEX. CIV. PRAC. & REM. CODE § 16.010(a) (providing a three-year limcitations period). Pohl’s
claims accrued no earlier than November 10, 2016, as that is the date osf the contract through which
Defendants purchased Pohl’s trade secrets.48 Given that Defensdants had not collected all of the
materials by December 7, 2015,49 their use of Pohl’s trade secrets—and the accrual of Pohl’s
TUTSA claim—occurred after November 10, 2016.
3. The arguments and evidence about the actions of others are irrelevant to the Moving
Defendants’ limitations defense. l
Kassab and Nicholson focus on wrMongful conduct by others—conduct that does not give
rise to Pohl’s claims in this lawsuit—too argue that limitations bars Pohl’s claims. See Nicholson
Defendants’ Motion at 36-40; Kascsab Defendants’ Motion at 45-51. However, in determining
when claims accrued against a defendant, it is that defendant’s alleged wrongful conduct that is
relevant, not the conduct of others. Defendants’ participation in the sale and purchase of Pohl’s
information, through a contract dated in November 2016, and their subsequent use of that
information is thec conduct that gives rise to Pohl’s claims. See Amended Petition ¶¶ 21–23, 26–
29, 33.50 D o efendants’ arguments suggest a sort of reverse discovery rule—i.e., they hope to
convince the Court that because Pohl allegedly knew that others may have stolen and otherwise
48 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
49 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
50 See November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance Christopher
Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018, attached as Exhibit B.
17
mistreated certain of his trade secrets and other property belonging to him, his causes of action for
separate torts by these Defendants accrued before any Defendants had even committed the torts
for which Pohl seeks to recover. The discovery rule does not operate to shorten the statutory
limitations period to cause a claim to accrue before the defendant commits a tort. k
Even if the wrongful conduct of others (that did not give rise to Polhl’s claims) were
somehow relevant to a limitations defense—and it is not—the Movincg Defendants have not
factually established that Pohl “knew or in the exercise of reasonable dsiligence should have known
of the wrongful act and resulting injury” more than three years psrior to this lawsuit for his TUTSA
claim and more than two years prior for the conversion claim. See Regency Field Services, LLC
v. Swift Energy Operating, LLC, 622 S.W.3d 807, 817 (Tex. 2021).
Nicholson argues that Pohl knew or should have known that Precision stole the trade
secrets in 2014 or that Favre claimed ownaership of the trade secret documents and Pohl’s
computers by no later than May 2015. She does not explain, however, how that knowledge can
possibly trigger limitations on sepaerate torts committed by Nicholson. She cites case law
indicating that trade secrets claimfs are not continuing offences and that “the wrong occurs at the
time of the improper acquisiytion.” Nicholson Defendants’ Motion at 42. Pohl agrees—the wrong
occurred no earlier thaCn the time of the improper acquisition of the trade secrets, no earlier than
November or December 2016. How could Pohl have known about that in May 2015 when it had
not even happef fned yet?
SiUmilarly, Kassab argues that “at least of May 2015, Pohl knew that Walker and Ladner
had transferred the alleged trade secrets to Favre.” Such knowledge, even if established, does not
address a claim of conversion or theft of trade secrets committed by Kassab. Kassab also purports
to negate the application of the discovery rule through Pohl’s testimony. The evidence Kassab
18
cites suggests only that Pohl may have had knowledge of some wrongful conduct by some
individual or individuals that occurred in 2014.51 It does not address when Pohl knew of Kassab’s
own wrongful conduct.52 Again, the discovery rule does not cause limitations to commence before
the defendant has even committed the wrongful act for which the plaintiff sues. k
As much as they struggle to establish their limitations defense as a maltter of law, Kassab
and Nicholson have at most raised a question of fact regarding the acccrual date of the asserted
causes of action. Indeed, the evidence is undisputed that as to Kassabs and Nicholson, the dates of
their torts are well within the statutory limitations period. Thse Court should deny the Moving
Defendants’ Motions to the extent that they are based on limitations.
C. The Unlawful Acts Doctrine53 is not legally available or factually established.
The Moving Defendants expend pages and pages and submit volumes of exhibits—
including exhibits that are not competent evidaence—attempting to establish their contention that
Pohl committed various violations of the Texas Rules. See Nicholson Defendants’ Motion at 3-
25; Kassab Defendants’ Motion at 3-3e2. Apparently disappointed in their inability to successfully
present this collection of materifals in their failed efforts to obtain a judgment against Pohl—
through separate failed lawsuyits—they are attempting to salvage some value out of it by submitting
to the Court in this caseC. This “evidence” has no place here. It is irrelevant, it establishes nothing
as a matter of law, and it is simply an attempt to distract from the Moving Defendants’ patently
51 See Exhibit 58 to Kassab’s Motion (discussing Pohl’s knowledge and contentions made in May 2018).
52 See generally id.
What Pohl’s prior testimony shows is that he was contending that, at that time, he believed Kassab had
conspired with individuals who had previously wronged Pohl. As a co-conspirator, Kassab would thus be responsible
for their acts. A past belief about conspirator liability does not change the fact that Kassab’s wrongful conduct took
place within the limitations period.
53 The Moving Defendants variously characterize this defense as the “illegal acts rule,” the “unlawful acts doctrine,”
“in pari delicto” and “equity.” This section of Pohl’s response covers each of those defenses, as they are treated as
interchangeable by the Moving Defendants.
19
tortious acts. Furthermore, to the extent that the doctrine could have applied, it is preempted by
Texas’s proportionate responsibility statute.
1. The Unlawful Acts Doctrine is preempted.
To the extent that the unlawful acts doctrine could have any relevance tok this case, it is
preempted by Texas’s proportionate responsibility statute. In Dugger v. Arrledondo, the Texas
Supreme Court explicitly considered “whether the common law unlawful cacts doctrine is available
as an affirmative defense under the proportionate responsibility framsework.” 408 S.W.3d 825,
831–32 (Tex. 2013). The Court found that ""it is not,” and thast “[t]he plain language of section
33.003 clearly indicates that the common law unlawful acts doctrine is no longer a viable defense.”
Id. at 832.
The claims alleged against the Moving Defendants, conversion, theft of trade secrets, and
conspiracy, are torts that are subject to the praoportionate liability statute. See TEX. CIV. PRAC. &
REM. CODE § 33.002. Kassab clearly thinks this statute applies as well, as he filed a flawed motion
to designate responsible third partiees under this statute. See generally Kassab’s Motion to
Designate Responsible Third Parfties, filed May 13, 2022. While Kassab is incorrect that people
other than defendants in this ylawsuit are responsible for the damages Pohl seeks, he cannot dispute
that the unlawful acts dCoctrine is not a valid defense in this lawsuit.
2. Even if not preempted, the Unlawful Acts Doctrine does not apply in this case.
Under Tf fexas law, the concepts of “unlawful acts,” “illegal acts rule,” or “in pari delicto”
provide tUhat “no action may be predicated upon an admittedly unlawful act of the party asserting
it.” Denson v. Dallas Cnty. Credit Union, 262 S.W.3d 846, 855 (Tex. App.—Dallas 2008, no pet.)
(emphasis added). Courts have interpreted this defense to mean that if the illegal act is inextricably
intertwined with the claim and the alleged damages would not have occurred but for the illegal act,
20
the plaintiff is not entitled to recover as a matter of law.” See Sharpe v. Turley, 191 S.W.3d 362,
366 (Tex. App.—Dallas 2006, pet. denied).
An examination of the caselaw—including the caselaw cited by the Moving Defendants—
shows that courts apply the doctrine when “at the time of the plaintiff’s injury, tkhe plaintiff was
engaged in an illegal act, and that act contributed to the injury.” Andrew Sheblay & Co., P.L.L.C.
v. Bishop, 429 S.W.3d 644, 648–49 (Tex. App.—Houston [1st Dist.] 20c13, pet. denied); Kassab
Defendants’ Motion at 62 (citing Bishop). It is not enough to plausibsly connect a claim to illegal
conduct, courts look at whether the plaintiff’s claim is prediscated on and must be proven in
connection with an illegal act. See Carcamo-Lopez v. Does 1 through 20, 865 F. Supp. 2d 736,
767 (W.D. Tex. 2011) (“But when the illegal conduct arises in a defense and not in the plaintiff’s
case, the unlawful acts rule will not bar a plaintiff’s claims.”).
As an initial matter, there is no “admitatedly unlawful act” that would allow the application
of the doctrine. See Macias v. Moreno, 30 S.W.3d 25, 29 (Tex. App.—El Paso El Paso 2000, pet.
denied). In addition, any alleged unlaewful act was not inextricably intertwined with Pohl’s causes
of action. To determine whether tfhe illegal act is “inextricably intertwined” courts look to whether
“whether the person seekingy to enforce [his claim] requires any aid from the illegal transaction to
establish his case.” SeCe Marathon Oil Co. v. Hadley, 107 S.W.2d 883, 885 (Tex. Civ. App. 1935)
(quotation omitted).
No recof fvery can be had if it is necessary for the plaintiff to prove, as part of his
cause of action, his own illegal contract or other illegal transaction. But the plaintiff
mUay recover if he can show a complete cause of action without being obliged to
prove his own illegal act, although such act may incidentally appear, and may be
explanatory even of other facts in the case, it being sufficient if his cause of action
is not essentially founded upon something which is illegal.
Id. See also Macias, 30 S.W.3d at 29 (“However, if a party can show a complete cause of action
without being obliged to prove their own illegal act, although the illegal act may appear
21
incidentally and may be important in explanation of other facts in the case, they may recover.”).
Pohl can certainly demonstrate the elements of each of his claims without being required to prove
any illegal act.54 Nothing about Pohl’s claims requires him to show that his client contracts are
enforceable or are free from any alleged barratrous activity. He owns his own kclient contracts
regardless of how he procured them. l
Another impediment to the application of the unlawful acts thec Texas Supreme Court
clarified long ago that the illegal act must have been a proximate casuse of the plaintiff’s injury.
Pyeatt v. Anderson, 269 S.W. 429, 430 (Tex. Comm’n App. 1s925); Arredondo v. Dugger, 347
S.W.3d 757, 761–62 (Tex. App.—Dallas 2011), aff’d 408 S.W.3d 825 (Tex. 2013); Petta v. Rivera,
985 S.W.2d 199, 204 (Tex. App.—Corpus Christi–Edinburg 1998), rev’d on other grounds sub
nom. Texas Dep’t of Public Safety v. Petta, 44 S.W.3d 575 (Tex. 2001). Even crediting the Moving
Defendants’ arguments, any illegal act by Paohl is not the proximate cause of Pohl’s injuries.
Instead, the cause of his injuries were the tortious acts of the Moving Defendants.
The illegal acts doctrine is noet applicable to Pohl’s claims as a matter of law. Whether
Pohl committed any of the acts thef Moving Defendants allege (and he did not) is in no way relevant
to Pohl’s claims against themy. It is nothing more than a side-show. And, as set forth below, the
Moving Defendants haCve wholly failed to establish their defense as a matter of fact.
3. Kassab’s use of caselaw on the unlawful acts doctrine is misleading.
Kassabf fcontends that “Texas courts have applied the Unlawful Acts Rule to preclude
claims arUising from barratry.” Kassab’s Motion, at 64 (emphasis removed). They cite to Truyen
Luong v. McAllister, No. 01-17-00198-CV, 2018 WL 3651103 (Tex. App.—Houston [1st Dist.]
54 As addressed more fully below, the Moving Defendants’ strident contentions that Pohl obtained the client lists and
other property and materials through “illegal acts” are false, as evidenced by the failure of both the grievance procedure
and their barratry suits.
22
Aug. 2, 2018, pet. denied). Id. But Kassab’s discussion of McAllister has no bearing on this
lawsuit. McAllister dealt with a non-lawyer suing to recover compensation under an agreement
where all parties admitted the compensation was a percentage of a lawyer’s fees. McAllister, 2018
WL 3651103, at *2. The court held that “the contract was void due to illegality.” k Id. at *4. Pohl
is not attempting to enforce any client agreement or agreement with anyone whlo worked for him.
The fact that a court refused to enforce a contract that was admittedly illecgal is not surprising, and
it provides no guidance in this case. s
4. The Moving Defendants have not and cannot establissh that Pohl committed illegal acts.
The Moving Defendants allege that their torts are excused because Pohl allegedly violated
the Texas Rules governing lawyers in four ways: (1) practicing law in other jurisdictions without
a license; (2) sharing an office with non-lawyers; (3) illegally soliciting clients; and (4) failing to
protect confidential client information. Saee Nicholson Defendants’ Motion at 1; Kassab
Defendants’ Motion at 2. Although the Moving Defendants go to some length in their effort to
establish these allegations as a mattere of law, they have wholly failed to do so. At most, they have
raised a fact issue regarding wholfly irrelevant allegations.
Before addressing tyhe individual allegations relating to Pohl’s actions, it deserves
repeating: these allegCed actions were brought to the attention of the relevant authorities
through grievance a s filed with the State Bar of Texas, which dismissed the grievances.55 For
those grievancfefs that were appealed to the Board of Disciplinary Appeals, that Board rendered
findings tUhat “the Board has determined that the conduct you described in the grievance does
not violate the Texas Disciplinary Rules of Professional and affirms the dismissal.” The
contention that Pohl violated the Texas Rules governing lawyers has been determined, and the
55 See Grievance dismissal letters, attached as Exhibit T.
23
claim has failed. This Court should decline to rehear these allegations, as they have been resolved.
Furthermore, as set forth below, they are false.
a. Pohl did not engage in unauthorized practice of law.
The State Bar of Texas appropriately dismissed claims against Pohl krelating to the
unauthorized practice of law because Pohl at all times attempted to conform tlo the requirements
relating to practicing in states in which he was not licensed.56 Moreovcer, the process for filing
claims relating to the BP Matter did not even require that a licensesd attorney participate in the
filing.57
The materials that the Moving Defendants have submitted do not conclusively establish
that Pohl engaged in the unauthorized practice of law. Instead, to the extent that the question can
even be considered by this Court, given that the State Bar of Texas has finally resolved the issue,
there is substantial controverting evidence. Aaccordingly, the allegation does not provide a basis
on which to enter summary judgment in the Moving Defendants’ favor.
b. Pohl shared office space weith contractors and secretaries who worked for him full time.
The Moving Defendants afttack Pohl for sharing office space with non-lawyers. Here again,
the State Bar of Texas propeyrly dismissed the claim because Pohl employed everyone with whom
he shared an office, Cor they were a functional equivalent of an employee or a lawyer’s
representative.58 a
The maf fterials that the Moving Defendants have submitted do not support much less
conclusivUely establish that Pohl wrongfully shared office space with non-lawyers. Instead, to the
extent that the question can even be considered by this Court given that the State Bar of Texas has
56 Pohl Declaration, ¶ 17.
57 Id. ¶ 29.
58 Id. ¶ 14.
24
finally resolved the issue, there is substantial controverting evidence. Accordingly, the allegation
does not provide a basis on which to enter summary judgment in the Moving Defendants’ favor.
c. Pohl legally solicited his clients.
Pohl instructed all of those working for him as subcontractors never to illegkally solicit any
potential client.59 Pohl himself never intentionally directly or illegally solilcited any client or
clients.60 Pohl at all times attempted to adhere to the rules of the Statec Bar of Texas and other
relevant states regarding the solicitation of clients.61 s
The materials that the Moving Defendants have submitsted do not conclusively establish
that Pohl illegally solicited clients. Instead, to the extent that the question can even be considered
by this Court given that the State Bar of Texas has finally resolved the issue, there is substantial
controverting evidence. Accordingly, the allegation does not provide a basis on which to enter
summary judgment in the Moving Defendantsa’ favor.
d. Pohl reasonably protected client information.
Pohl testified in his depositioen regarding the reasonable steps he took to protect the client
information, confidential informaftion, and trade secrets that are the subject matter of this suit.62
At all times, Pohl strictly limyited access to the trade secrets, and he ensured that those who had
access to that informatiCon fully understood as part of their professional obligations the confidential
character of that a information.63 Pohl also testified that “numerous times throughout the
relationship,” hfef emphasized to Precision and its employees the importance of confidentiality.64
59 Id. ¶ 30.
60 Id. ¶
61 Id. ¶
62 Pohl Deposition, at 15:21-16:18, attached as Exhibit U.
63 Pohl Declaration ¶¶ 14-15, Exhibit A; see also Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7, Exhibit
D; Deposition of Kirk Ladner, at 355:18–358:10, 372:7–374:24, 377:4–23, 501:3–502:18, Exhibit V; Deposition of
Steve Seymour, at 96:16-24, 223:1-20, Exhibit W.
64 Deposition of Michael Pohl, at 23:5-21, Ex. U.
25
The materials that the Moving Defendants have submitted do not conclusively establish
that Pohl failed to protect client information. Instead, to the extent that the question can even be
considered by this Court given that the State Bar of Texas has finally resolved the issue, there is
substantial controverting evidence. Accordingly, the allegation does not provide ak basis on which
to enter summary judgment in the Moving Defendants’ favor. l
e. Pohl legally obtained the materials at issue. c
The Moving Defendants also assert that Pohl cannot recover fosr their violations of TUTSA
because the materials at issue did not legally belong to him. Tshis allegation depends entirely on
the Moving Defendants’ failed arguments relating to the unauthorized practice of law and illegal
solicitation of clients. For the same reasons that those arguments fail, this challenge to Pohl’s
ownership of the materials at issue fails and does not provide a basis on which to enter summary
judgment in the Moving Defendants’ favor. a
Additionally, the Moving Defendants seem to suggest that Pohl cannot own his client
contracts if they are illegal. Howeveer, TEX. GOV’T CODE § 82.0651(a) indicates that an attorney-
client contract is voidable, not vfoid. There is no evidence that any of Pohl’s contracts were
declared void, as provided foyr in the barratry statute. TEX. GOV’T CODE § 82.0651(a). Thus, even
if the Moving DefendaCnts were correct factually on the barratry issue—and they are not—Pohl’s
contracts were still effective and worthy of protection. The Moving Defendants failed to establish
as a matter of lfafw that Pohl does not own the materials at issue.
InU any event, Pohl does not have to demonstrate how he acquired his engagement
agreements with his clients or his client files to pursue his claims. The agreements are clear on
their face. While Kassab claims to have relied upon the non-lawyers Walker and Ladner, and
Favre relied on Nicholson for the idea that Precision somehow owned Pohl’s files, the evidence
26
(and an ounce of common sense) does not support it. Walker repeatedly admitted that he knew
the attorney-client contracts, the computers containing Pohl’s files and any list of clients belonged
to Pohl.65 Mr. Ladner indicated that he believed those materials belonged to Pohl, questioned
Favre about it and was told to consult Nicholson. Nicholson told him that Pohl’ks contracts and
files did not belong to Pohl.66 However, in reality, Ladner had to concede thalt the contracts and
case files were all “Pohl’s stuff.”67 c
D. None of the Asserted Immunity Doctrines Apply. s
The Moving Defendants hope to cloak their tortious actsions in one variety or another of
immunity, variously asserting attorney immunity, judicial proceeding privilege, and immunity for
filing a grievance. None of these doctrines supplies the shield that the Moving Defendants hope
to hide behind.
Pohl sued the Moving Defendants for coanverting his property and misappropriating his trade
secrets. They argue that they are entitled to immunity because after they engaged in this wrongful
acquisition of property and informateion, they sought to profit from their torts by suing Pohl for
barratry and other claims. Texas fdoes not recognize any form of immunity for the tortious actions
of lawyers taken outside they attorney-client relationship and outside of the judicial process. As
hard as the Moving DCefendants may try to characterize their actions as being part of “judicial
proceedings” or as being part of their work as attorneys, that effort fails.
1. The aftftorney immunity doctrine does not apply.
TUhe common-law attorney-immunity defense applies to lawyerly work in “all adversarial
contexts in which an attorney has a duty to zealously and loyally represent a client” but only when
65 Deposition of Scott Walker, at 316-319; 327-329, Ex. D.
66 Deposition of Kirk Ladner, at 119:21-120:15, 127:5-25, 340:10-342:17, Exhibit V.
67 Id. at 350:11-351:21, 356:11-359:12.
27
the claim against the attorney is based on “the kind of conduct” attorneys undertake while
discharging their professional duties to a client. Taylor v. Tolbert, 644 S.W.3d 637, 646 (Tex.
2022). Where, as here, an attorney engages in conduct that is not “lawyerly work” or is “entirely
foreign to the duties of a lawyer” or falls outside the scope of client representatiokn, the attorney-
immunity defense is inapplicable. Id.; see also Haynes & Boone, LLP v. NFTDl, LLC, 631 S.W.3d
65, 67 (Tex. 2021); Landry’s, Inc. v. Animal Legal Defense Fund, 63c1 S.W.3d 40, 47 (Tex.
2021); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 201s5).
Attorney immunity does not protect conduct s 
simply because attorneys often engage in that activity or because an attorney
performed the activity on a client’s behalf. Ratherr, the conduct must involve the
uniquely lawyerly capacity and the attorney’s skills as an attorney. For example, a
lawyer who makes publicity statements to the press and on social media on a client’s
behalf does not partake of the office, professional training, skill, and authority of an
attorney because anyone—including presls agents, spokespersons, or someone with
no particular training or authority at aall—can publicize a client’s allegations to the
media. Immunity attaches only if theM attorney is discharging “lawyerly” duties to his
or her client. 
Tolbert, 644 S.W.3d at 646 (footnotees omitted) (cleaned up).
The Texas Supreme Courft has held that two inquiries are relevant to an attorney-immunity
defense: “the type of conduyct at issue and the existence of an attorney–client relationship at the
time.” Youngkin v. HCines, 546 S.W.3d 675, 683 (Tex. 2018). The claims against the Moving
Defendants do not fall within the attorney-immunity doctrine because the conduct at issue does
not qualify as “f fthe kind of conduct in which an attorney engages when discharging his duties to
his clientU.” Canty Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). The Moving
Defendants have not and cannot establish the existence of an attorney–client relationship at the
time of their wrongful conduct.
28
The Moving Defendants’ knowing purchase of stolen property before representation of a
client is neither within the scope of the client representation nor is it an activity undertaken in a
“uniquely lawyerly capacity.” See Landry’s, 631 S.W.3d at 47. The use of the information by the
Moving Defendants to solicit and advertise to obtain clients is not within the kscope of client
representation, because this conduct necessarily precedes the “meeting of thel minds” between a
potential client and attorney necessary to form an attorney–client relationcship. See Tanox, Inc. v.
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55s (Tex. App.—Houston [14th
Dist.] 2003, pet. denied). s 
The Moving Defendants attempt to address this issue by arguing the non-relevant point
that attorney immunity can apply prior to any litigation. While the doctrine can in certain
circumstances apply prior to litigation, that fact is not relevant here. Pohl asserts claims for
conduct, not just before litigation, but before thae Moving Defendants had a single client with whom
they could have the requisite attorney–client relationship. Tanox, Inc. v. Akin, Gump, Strauss,
Hauer & Feld, L.L.P., 105 S.W.3d e244, 254–55 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied) (noting that attorney–clifent relationship cannot be formed prior to a “meeting of the
minds”). y
In sum, the MoCving Defendants cannot show that their wrongful actions were “within the
scope of client representation” and were “not foreign to the duties of a lawyer.” Youngkin, 546
S.W.3d at 682f. f Immunity arises only if a lawyer can establish as a matter of law that when he
engaged Uin his alleged wrongful acts, he was acting not only within the scope of client
representation, but that there was something “particular to ‘the office, professional training, skill,
and authority of an attorney’ about” his alleged wrongful conduct. See Landry’s, 631 S.W.3d at
47.
29
Because the Moving Defendants did not and cannot provide evidence of the existence of
an attorney–client relationship at the time of their wrongful actions and evidence that those actions
were within the scope of their representation, their request for summary judgment on the attorney-
immunity doctrine must be denied. The fact that their wrongful conduct of pukrchasing stolen
information was not the type of conduct undertaken in a “uniquely lawyerly caplacity” only further
supports this conclusion. c
2. The judicial proceedings privilege does not apply. s
The judicial proceedings privilege applies only to commsunications “in the due course of a
judicial proceeding” and the privilege protects against a claim for libel or slander. Landry’s, 631
S.W.3d at 46. Given that the basis of Pohl’s claim is not a communication made in the due course
of a judicial proceeding and given that Pohl has not sued for libel or slander, the judicial
proceedings privilege does not apply as a matater of law.
Kassab argues that even though Pohl’s claims do not assert claims for libel or slander, the
judicial proceedings privilege shoueld apply because Pohl’s claims arise somehow out of
communications. Pohl’s claims dfo not however, arise out of communications. They arise out of
theft. Misappropriation of ytrade secrets is not a form of communication, nor is conversion.
Kassab’s arguments faCil.
3. The judicial proceedings privilege does not apply. Section 17.09 of the Texas
Disciplicnary Rules does not apply
Although Kassab contends baldly that “it is undisputed that Pohl’s allegations of
wrongdoing are predicated on Kassab’s filing of grievances against Pohl,” Kassab Defendants’
Motion at 35, that is untrue. Instead, Pohl’s suit is predicated on the Defendants’ conversion of
his property and misappropriation of his trade secrets. The fact that Kassab subsequently used
those trade secrets and that property to file grievances does not trigger the protections of TEX. R.
30
DISC. P. 17.09. In short, that section does not apply to the claims asserted here, as they are based
on conversion and theft.
E. Pohl’s Claims Have Not Been Released
Nicholson erroneously contends that the Settlement Agreement that she repkeatedly ignored
and flagrantly breached released her from the claims that Pohl now asserts. Thlis argument fails.
As an initial matter, Nicholson has provided the Court with no adcmissible evidence of the
terms of the Settlement Agreement on which they rely. Althougsh the Amended Motion for
Traditional Summary Judgment purports to quote the termss of the confidential agreement,
Nicholson has not attached or verified the agreement itself. Without the Settlement Agreement as
evidence, the Court cannot enter summary judgment on the argument that it contains release
language that would effectively release the claims asserted here.
In addition, contrary to Nicholson’s ianterpretation of the language of the releases in the
Settlement Agreement, that language does not provide a release for future torts not yet committed
by the released parties at the time of tehe Settlement Agreement.
More importantly, howefver, the Settlement Agreement requires specific actions (in
addition to the return of docyuments) that Nicholson quite plainly violated. That is, Paragraph 27
of the Settlement AgreCement provides that “Claimants and Affiliates of Claimants promise and
agree not to make or cause to be made any claim, not to file or cause to be filed any complaint
(administrativef for otherwise), and not to file or cause to be filed any legal action against any of the
Lawyer RUeleasees [which includes Pohl].” Nicholson’s blatant violation of this provision
invalidates any contention that the Settlement Agreement Releases her from the claims Pohl asserts
here.
31
F. Pohl’s TUTSA Claim is not “Conclusively Negated”
Nicholson contends that Pohl’s TUTSA claim is “conclusively negated” because of the
absence of a confidentiality provision in Pohl’s agreement with Precision. This is not a
requirement of TUTSA, which simply requires “reasonable measures under the cirkcumstances” to
preserve confidentiality. This also ignores the “circumstance” of the special natlure of the attorney-
client relationship and the ability and often need for a lawyer to share mcaterials with employees,
consultants, and vendors who qualify as “lawyer representatives” usnder Rule 503 of the Texas
Rules of Evidence. s 
Moreover, Pohl has sworn that he took steps to protect and limit access to the trade secrets,
and he ensured that those who had access to that information fully understood as part of their
professional obligations the confidential character of that information.68
These steps include (and are corroboraated by Precision representatives):
• Pohl informed Precision and all of the staff of the confidential and privileged
nature of the informateion and instructed them to treat them accordingly.69
• Pohl maintained hfis office at the top of Hancock Bank – “the most secure location
on the coast. y ”70
• The buCilding had 24 hour/round the clock security.71
• The elevators were coded such that one could only get to one’s own floors.72
• fThere were security cameras at every floor.73
68 Pohl Declaration ¶¶ 14-15, Exhibit A.
69 Id.; Deposition of Scott Walker, at 283:17-284:22, Exhibit D; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
70 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
71 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D.
72 See Deposition of Scott Walker, at 322:9-23, Exhibit D.
73 Id.
32
• The documents and computers were kept under “lock and seal.”74
• The engagement agreements were clearly labeled to identify them as contracts
between lawyers and clients.75
While Nicholson claims that the lists at issue here have been previously usekd as exhibits in
various depositions and hearings, she ignore the facts surrounding the limiteCd plroduction.
First, Pohl and Williamson were both lawyers who owed duties tco their clients and had a
proprietary interest in their own files. All of the defendants were “lawyer representatives” and had
a continuing responsibility to protect the confidential informatsion of both Pohl and Williamson
and the underlying clients. g
Second, all of the parties to the Mississippi laBwsuit already had the either possession (by
virtue of stealing Pohl’s files) or a proprietary iynterest in and in some cases possession of the
documents (Pohl and Williamson). Any limaited production simply went from one party who
already had the information to another party who had the information and did not expand
disclosure of privileged and confidential information beyond those that already had it.
Unsurprisingly, Defendanfts have offered no authority to support the assertion that merely
producing information from one party with continuing duties to protect it to another party who
already has the informaCtion and a continuing duty to protect it somehow waives confidentiality.
Equally important, and surprisingly absent from Kassab’s and Nicholson’s motion, are two
separate ordersf f issued in the Mississippi suit. On October 14th, 2016, Magistrate Judge John C.
Gargiulo Udenied Precision’s Motion for Protective Order where they sought to prevent discovery
of any of the “marketing lists” in their possession. In denying the motion, Judge Garguilo orders
the production of information but with very strict confidentiality protections, limiting who can
74 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D.
75 Pohl Declaration ¶ 15, Ex. A.
33
even have access to the client-based information.76 This was followed up by a letter from Pohl’s
counsel Mr. Bailey.77
On March 22, 2017, Judge Garguilo issued a protective order that was sought by all parties
and approved as to form by all counsel. In that order, the Court defined “Confidentikal Information”
as including the names, addresses and telephone numbers of the Pohl and/orl Williamson along
with amount of gross recovery and fees received and placed strict protectiocns on that information.78
While the Order indicated that it did not apply to previously produceds documents or to Exhibit 70
(which had been previously publicly filed and merely contasined information about totals of
categories of clients and did not identify individual clients), it specifically held that it did apply to
the underlying data to Exhibit 70 (the individual client information) and to any supplements of
Exhibit 70 and to the underlying data to the supplements.79 Accordingly, to the extent even needed
given the continuing duties of the parties and athe fact that all parties already had the information,
the Court reinforced the confidentiality of all the underlying client data by specifically holding it
fell within the scope of the Confidenteiality Order.
Finally, even ignoring allf of the above, Defendants have no summary judgment evidence
that the client lists and client ycontact information is the same or even overlaps. Instead, they simply
erroneously assert that Cclient lists were submitted without the protection of a protective order. Far
from conclusively establishing anything at all, Nicholson has at most raised a potential fact issue
relative to somfef of the materials that are the subject of the suit.
76 See October 14, 2016 Order from Mississippi Court, attached as Exhibit X.
77 See October 27, 2016 email and letter from Counsel to Pohl, attached as Exhibit Y.
78 See Exhibit 21 to the Nicholson Motion, at 1-2.
79 Exhibit 70 is attached hereto as Exhibit Z.
34
G. Pohl’s ownership has not been disproven.
Kassab’s allegations regarding the ownership of Pohl’s trade secrets and information are
self-defeating. Kassab states:
The claimant must also demonstrate that it is “the person or entity in whokm or in
which rightful, legal, or equitable title to, or the right to enforce rights ine, the trade
secret is reposed.” TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a)l. Similarly,
“[a] plaintiff who has not shown title or some other right to possession of the
property allegedly converted may not maintain a suit in convercsion.” Catania v.
Garage de Le Paix, Inc., 542 S.W.2d 239, 242 (Tex. Civ. App.—rTyler 1976, writ
ref'd n.r.e.). s
Kassab Motion at 58. However, Kassab’s entire theory regarding why these requirements are not
met is because he alleges that Pohl’s trade secrets and other information constitute part of the client
file, which they contend belongs to the client, and must be turned over to the client upon the client’s
demand. See Kassab’s Motion, at 58-59. But even if that were the entire story, that would not
mean that Pohl did not have a right to possession of the client file up until his clients demanded he
turn over the contents of their client file to them. There is no evidence of any such demand that
would limit Pohl’s possessory rights.e However, as laid out in more detail in Pohl’s Response to
the No-Evidence Motions for Sumfmary Judgment, there is evidence demonstrating that Pohl is the
rightful owner of misappropyriated and converted files and information.80
H. Pohl’s AllegeCd Damages are Recoverable
In their finaal effort to prevent Pohl’s claims from being presented to a jury, the Moving
Defendants relyf on inapplicable case law to argue that Pohl is not entitled to recover for the injuries
that theyU inflicted. Relying on standard case law relating to the availability of attorney’s fees
arising during the pursuit of the case at issue, the Moving Defendants argue that Pohl cannot claim
80 Pohl incorporates by reference both the arguments and evidence on the ownership of the information contained in
his Response to the No-Evidence Motions for Summary Judgment that is filed on the same day as this Response.
35
as damages the harm he suffered in being forced to defend himself from the Moving Defendants’
failed barratry actions.
As the Moving Defendants point out, a plaintiff in a TUTSA action is entitled to “the value of
the plaintiff’s lost profits, the defendant’s actual profits from the use of the seckret, the value a
reasonably prudent investor would have paid for the trade secret, the developmentl costs the defendant
avoided by the misappropriation, and a reasonable royalty.” Sw. Energy Prodt. Co. v. Berry-Helfand,
491 S.W.3d 699, 710–11 (Tex. 2016). In this case, the fees and expensses incurred by Pohl to defend
against the scurrilous actions brought by the Moving Defendants fall squarely within the category of
actual loss damages that are expressly recoverable under the eterms of TUTSA explicitly authorizes
recovery of. TEX. CIV. PRAC. & REM. CODE § 134A.004(au) (providing that TUTSA damages include
“the actual loss caused by misappropriation”).81 
Furthermore, the only case the Moving Defiendants cite relating to the availability of attorneys’
fees from a prior case as damages has been directly questioned on that point by the Texas Supreme
Court. See Martin-Simon v. Womack, 68 S.W.3d 793 ,797-98 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied), declined to extend by Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development
and Research Corp., 299 S.W.3d 106, 120 (Tex. 2009). The Moving Defendants’ citation of the case
for the broad proposition that attorneys’ fees in a prior case are not available as damages misstates the
governing precedent. Furthermore, subsequent caselaw has confirmed that attorneys’ fees from prior
litigation may be rceciovered as actual damages in a subsequent suit in certain circumstances. See Dixon
Fin. Services,o Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
Finally, Defendants fail to even address the other damages sought by Pohl. One component of
damages is the value a reasonably prudent investor would have paid for the trade secret. Here, the
evidence demonstrates that Defendants believed Pohl’s protected information was worth $6 million.
81 Pohl also seeks other types of damages in relation to his TUTSA claim.
36
Both Mr. Walker and Mr. Ladner testified hearing Favre and Nicholson discuss on multiple occasions
that Pohl’s files, and specifically the identity of Pohl’s clients, were worth $6mm.82 Pohl as owner of
the assets confirms this value.83 Mr. Favre confirmed that Pohl’s information had independent value
and was one of Precisions “most valuable asset” such that the value of the entire company would be
substantially reduced if they were disclosed.84
III. CONCLUSION t
For the foregoing reasons, Plaintiffs Michael Pohl and Law Otffices of Michael A. Pohl
respectfully request that the Kassab Defendants’ Motion for Traditional Summary Judgment and
the Nicholson Defendants’ Amended Motion for Traditional eSummary Judgment be in all respects
denied. u
82 See Deposition of Scott Walker, at 328:10-16 (testifying about how he had heard Pohl’s client list was worth $6
million), attached as Exhibit D; Deposition of Kirk Ladner, at 314:10–315:18, 343:7-344:17 (recalling that he was
told that the boxes containing Pohl’s information were worth $6 million), attached as Exhibit V.
83 Pohl Declaration ¶ 27, Ex. A.
84 See Exhibit 50 to the Kassab Motion.
37
Dated: September 12, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 12th day of September, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
38
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68182991 r
Status as of 9/13/2022 8:05 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 11:55:09 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 11:55:09 PM SENT
Andrew J. Sarne asarne@krcl.com 9/12/2022 11:55:09 PM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 11:55:09 PM SENT
Kathryn Laflin KLaflin@KRCL.com 9/12/2022 11:55:09 PM SENT
Murray JFogler mfogler@foglerbrrar.com 9/12/2022 11:55:09 PM SENT
Murray Fogler mfogler@fbfog.com 9/12/2022 11:55:09 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Larry Newsom lnewsom@fkrcl.com 9/12/2022 11:55:09 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 11:55:09 PM SENT
Chris C.Pappas cpappas@krcl.com 9/12/2022 11:55:09 PM SENT
Todd Taylor titaylor@jandflaw.com 9/12/2022 11:55:09 PM SENT
Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/12/2022 11:55:09 PM SENT
Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 11:55:09 PM SENT
Scott M.Favre scott@favrepa.com 9/12/2022 11:55:09 PM SENT
Andrea Mendez C andrea@kassab.law 9/12/2022 11:55:09 PM SENT
Lance Kassab  lance@kassab.law 9/12/2022 11:55:09 PM SENT
David Kassab a david@kassab.law 9/12/2022 11:55:09 PM SENT
Nicholas Pierce c nicholas@kassab.law 9/12/2022 11:55:09 PM SENT
Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 11:55:09 PM SENT
Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 11:55:09 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 11:55:09 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:55:09 PM SENT
L Kassab lance@kassab.law 9/12/2022 11:55:09 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:55:09 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 11:55:09 PM SENT
Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 11:55:09 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 11:55:09 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 11:55:09 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/12/2022 11:55:09 PM ERROR
D Kassab david@kassab.law 9/12/2022 11:55:09 PM SENT"
28,2022-05-31,OBJ,Pohl,Pohl’s objection to RTP designation,"Pohl's Objection to Kassab's Motion to Designate Responsible Third Parties, arguing the designated persons did not cause or contribute to the harms underlying Pohl's tort claims and that Kassab failed to satisfy pleading requirements","Phase 3 response to Kassab's RTP motion. Pohl objects on grounds that the designated persons are not responsible for the specific harms underlying Pohl's conversion and TUTSA claims, distinguishing between harm to Pohl and general connection to events. Also argues Kassab failed to timely disclose RTP identities in discovery. Filed by Reynolds Frizzell LLP.",RTP-1,N/A,Phase 3,2022-05-31_OBJ_Pohl-Objection-to-Kassab-RTP-Designation_FILED.pdf,Deny Kassab's Motion to Designate Responsible Third Parties with leave for Kassab to attempt to replead,"5/31/2022 5:00 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 64998436
By: cassie combs
Filed: 5/31/2022 5:00 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ r
SCOTT FAVRE and SCOTT M. FAVRE PA, § l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, § D
LLP d/b/a BAKER NICHOLSON LAW § 
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
POHL’S OBJECTION TO KASSAB’S MOTION TO DESIGNATE RESPONSIBLE
THIRD PARTIES
Plaintiffs Michael Pohl and Law Officae of Michael A. Pohl (collectively “Pohl”) file this
Objection to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm’s Motion to Desiegnate Responsible Third Parties (the “Motion”) and would
show the Court as follows: f
y I. INTRODUCTION
The Court shouCld deny Kassab’s Motion because he fails to allege facts showing how the
alleged responsiblea third parties are responsible for the harms underlying Pohl’s tort claims.
Kassab seeks tfo designate eight different allegedly responsible third parties—Billy Shepherd
(“ShepheUrd”), Scott Walker (“Walker”), Steve Seymour (“Seymour”) Kirk Ladner (“Ladner”),
Dona Pohl (“Dona”), Edgar Jaimes (“Jaimes”), Ken Talley (“Talley”), and Magdalena Santana
(“Santana”) (collectively, the “Alleged RTPs”). None of the Alleged RTPs “caused or contributed
to causing” the harms underlying Pohl’s claims. TEX. CIV. PRAC. & REM. CODE § 33.011(6).
Reading Kassab’s Motion, one might be forgiven for thinking that a responsible third party
is any person who bears some (or any) connection with events related to a lawsuit and whose
actions could allegedly have impacted the amount of damages suffered by a claimant. See
generally Motion. But Texas has not adopted a “butterfly effect” theory okf proportionate
responsibility. Texas’s proportionate responsibility statute requires sufficielnt allegations of a
party’s responsibility for the harm underlying a plaintiff’s cause of acction before designation
as a responsible third party is proper. s
The statute applies only to tort claims and requires that potential responsibility be
determined as to each cause of action asserted. See TEX. CIV. PRAC. & REM. CODE §§ 33.002,
33.003. The tort claims relevant to this analysis are Pohl’s claims for (1) conversion and (2)
violations of the Texas Uniform Trade Secrets Act (“TUTSA”).
In his Motion, Kassab fails to sufficieantly plead the Alleged RTPs “caused or contributed
to causing . . . the harm for which recovery of damages is sought.” See TEX. CIV. PRAC. & REM.
CODE § 33.011(6). The Alleged RTPes did not cause or contribute to the harm underlying Pohl’s
conversion claim—Defendants’ f“unlawful taking” of Pohl’s property. Nor did they cause or
contribute to Defendants’ “yuse” of Pohl’s trade secrets, which is the harm underlying Pohl’s
TUTSA claim. SimpCly put, Kassab’s allegations about the Alleged RTPs’ conduct do not
sufficiently plead thaat the Alleged RTPs meet the statutory definition of a responsible third party.
f II. LEGAL STANDARD
AU party seeking to designate responsible third parties must timely file “a motion for leave
to designate” that pleads sufficient facts concerning those parties’ responsibility as responsible
third parties. See TEX. CIV. PRAC. & REM. CODE § 33.004(a) & (g). A party can object to the
motion on the basis that the movant did satisfy their pleading obligations. Id. § 33.004(g).
To withstand an objection, the movant must satisfy the notice pleading standard with its
allegations regarding the responsibility of potential responsible third parties. In re Cordish Co.,
617 S.W.3d 909, 913 (Tex. App.—Houston [14th Dist.] 2021, orig. proceeding). This requires the
movant to provide notice of the alleged duty breached and sufficient allegations kof causation, so
that the parties to the lawsuit “can ascertain from [the allegations] the nature land basic issues of
the controversy regarding causation, and what type of evidence might be rcelevant.” See id. at 915.
The statute defines a responsible third party, as a person whso “caused or contributed to
causing in any way the harm for which recovery of damages is sought, whether by negligent act
or omission, by any defective or unreasonably dangerous product, by other conduct or activity that
violates an applicable legal standard, or by any comb
ination of these.” TEX. CIV. PRAC. & REM.
CODE § 33.011(6). Importantly, responsibility for “harm” in this context is not the same as
responsibility for “damages.” See In re Smitah, 366 S.W.3d 282, 286 (Tex. App.—Dallas 2012,
orig. proceeding); City Nat’l Bank of Sulphur Springs v. Smith, No. 06-15-00013-CV, 2016 WL
2586607, at *7 (Tex. App.—Texarkeana May 4, 2016, pet. denied) (discussing how “harm” is
synonymous with “injury” and hafs a meaning distinct from “damages”).
A potential responsibyle third party must allegedly be responsible for the harm underlying
the pled cause of actionC, not merely be plausibly connected with the damages associated with that
harm. See City Nata’l Bank of Sulphur Springs, 2016 WL 2586607, at *7–9 (“to be a responsible
third party, onef must contribute to the harm for which damages are sought, not to the damages
themselvUes”); DLA Piper LLP (US) v. Linegar, 539 S.W.3d 512, 517 (Tex. App.—Eastland 2017,
pet. denied).
III. FACTUAL BACKGROUND ON POHL’S CLAIMS
In Pohl’s First Amended Petition, the live pleading, he asserts four different causes of
action: (1) A breach of contract claim; (2) conversion; (3) violations of TUTSA; and (4)
conspiracy. See Plaintiffs Michael Pohl and Law Office of Michael A. Pohlk, PLLC’s First
Amended Petition (the “Petition”) ¶¶ 35–43, filed Nov. 30, 2018. l
Pohl’s first claim, for breach of contract, is not subject to the procportionate responsibility
statute. See TEX. CIV. PRAC. & REM. CODE § 33.002 (“This chapters applies to: (1) any cause of
action based on tort . . . .”). The harm underlying Pohl’s conspiracy claim is entirely derivative of
the conversion and TUTSA claims, and thus there is no need to analyze it independently from
those claims. Thus, the only claims relevant to the responsible third party analysis are Pohl’s
claims for (1) conversion and (2) violations of TUTSA. See TEX. CIV. PRAC. & REM. CODE §
33.003 (stating trier of fact shall determine reasponsibility “as to each cause of action asserted”).
A. The harm or injury for Pohl’s conversion claim is the “unlawful taking” of his property.
Pohl’s conversion claim ceneters around his allegations that “Kassab and Montague
knowingly purchased [Pohl’s] stolfen information/property.” Petition ¶ 38. The “injury” or “harm”
that gives rise to a claim fyor conversion is a defendant’s “unlawful taking” of the plaintiff’s
property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). Each wrongfaul possession is a separate conversion. See Pemex Exploracion y Produccion
v. BASF Corp., fCIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (applying
Texas law).
The conversions that Pohl complains about involve the Defendants in this lawsuit, not any
of the Alleged RTPs. See Petition ¶¶ 36–38. Thus, the alleged harms or injuries for which Pohl
seeks recovery for in relation to his conversion claim are the “unlawful takings” by Defendants in
this lawsuit.
B. The harm or injury for Pohl’s TUTSA claim is the wrongful “use” of his property.
Pohl’s TUTSA claim is based on the improper acquisition and sale of Pohl’s trade secrets,
particularly in relation to the sale and subsequent use of them by Kassab and Montague. See
Petition ¶¶ 39–42. The harm or injury giving rise to a trade-secret misappropriation claim, like
Pohl’s TUTSA claim, is the unauthorized use of the trade secrets. See Sw. Elnergy Prod. Co. v.
Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016). c t
There are multiple harms or injuries for which Pohl seekss recovery of damages in
connection with his TUTSA claim. One such harm is when Pohl’s trade secrets were used by
Favre, Precision, and Nicholson in their sale of the trade secrets to Kassab and Montague. See
Petition ¶ 41; Berry-Helfand, 491 S.W.3d at 722 (discussing how “[u]se of the trade secret means
commercial use by which the offending party seeks to profit from the use of the secret.” (citation
omitted)). Another harm is Kassab and Montrague’s use of Pohl’s stolen trade secrets to bring
unfounded lawsuits against him. See Petition ¶¶ 26–29; Motion ¶ 12 (confirming Kassab used the
alleged stolen materials to solicit clieents to bring claims against Pohl).
fIV. DISCUSSION
Kassab does not bothyer to identify which Alleged RTP is responsible for which of Pohl’s
claims, nor does he identify the harms underlying Pohl’s claims that the Alleged RTPs are
supposed to have caaused or contributed to. See generally Motion. Kassab’s conclusory and vague
allegations do nfot meet the fair notice standard because Pohl cannot ascertain the nature and basic
issues of the potential controversies with the Alleged RTPs. Kassab has not sufficiently pled that
the Alleged RTPs violated legal duties in a way that proximately caused Pohl’s harms. Finally,
Kassab failed to timely provide notice of the identity of potential responsible third parties in his
discovery responses.
A. Shepherd is not a responsible third party.
Kassab’s allegations against Pohl’s attorney, Billy Shepherd, are especially tortured.
Kassab apparently contends that in the scope of Shepherd’s representation of Pohl in a separate
lawsuit, Shepherd failed to protect Pohl from Kassab’s intentionally tortious conduct. This theory
is as ridiculous as it sounds. Such a tenuous connection to the harm on its face ldoes not satisfy the
definition of a responsible third party. Kassab has not sufficiently pled cthtat Shepherd possessed
any legal duty that he violated, nor has he adequately alleged that Shespherd’s conduct proximately
caused Pohl’s harms. 
Kassab’s factual allegations concerning Shepherd are limited to three paragraphs. See
Motion ¶¶ 16–18. The only allegations relevant to establishing a duty are that Shepherd was
“Pohl’s attorney in the Mississippi Litigation,” and he negotiated a settlement with certain person
connected to that litigation. Id. ¶ 17. But Kassrab’s allegations only suggest that Shepherd owed
a duty in relation to “the Mississippi Litigation,” and nothing pled supports a duty on Shepherd’s
part to go out and prevent tortious acetivities “from all third parties” who may have gained access
to Pohl’s information. Id. Nor cafn Kassab allege in good faith that Shepherd was retained to do
so. Without adequate alleygations that Shepherd violated an applicable duty, he cannot be
designated as a respons
ible third party. See TEX. CIV. PRAC. & REM. CODE § 33.011(6).
Even if Kasasab’s conclusory allegations were sufficient at this stage to allege a legal duty,
he has not sufficfiently alleged that any breach of that duty proximately caused the harms suffered
by Pohl. Even if Kassab’s allegations were true, Shepherd’s conduct in relation to negotiating the
settlement in the Mississippi Litigation wase not a substantial and foreseeable factor in bringing
about the harms for which Pohl seeks recovery in connection with his conversion and TUTSA
claims. In fact, Kassab’s allegations actively undermine proximate cause, as Shepherd’s alleged
failure to go out and prevent the intentionally tortious conduct of third parties at most suggests
Shepherd “furnish[ed] a condition that made the injury possible.” Ambrosio v. Carter’s Shooting
Ctr., Inc., 20 S.W.3d 262, 266 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Alleging in
a conclusory manner that Shepherd could have stopped unspecified parties from engaging in
tortious conduct outside the litigation in which he represented Pohl does not sufkficiently allege
causation. l
Ultimately, there are not sufficient allegations that Shepherd vicolated a legal duty that
existed in a way that proximately caused Defendants’ “unlawful taksing” of (for the conversion
claim) or use of (for the TUTSA claim) Pohl’s confidential and trade secret information. See
generally Motion. Without sufficient allegations that Shepherd “caused or contributed to causing”
these harms, he cannot be designated as a responsibl
e third party. See TEX. CIV. PRAC. & REM.
CODE § 33.011(6).
B. The remaining Alleged RTPs do naot meet the definition of responsible third parties.
Kassab’s theory of why the other Alleged RTPs—Walker, Seymour, Ladner, Dona, Jaimes,
Talley and Santana—are responsiblee third parties is similarly lacking. Kassab fails to make any
factual allegations connecting onef Alleged RTP with the claims in this lawsuit, and for others,
Kassab makes the conclusoyry allegation that they independently “placed Pohl’s alleged trade
secrets and documents in the public domain,” not that they caused or contributed to Defendants’
unlawful taking or ause of those materials. See Motion ¶ 20. These allegations are not sufficient
to designate thefse persons as responsible third parties.
One of the most egregious examples of Kassab’s failure to satisfy the pleading requirement
is in relation to Dona. Kassab makes no particularized allegations concerning Dona at all. See
generally Motion. There is no explanation of who she is, what conduct she engaged in, why she
possessed a legal duty that she violated, or how she proximately caused or contributed to Pohl’s
harms. See id. Kassab’s single conclusory allegation that Dona, listed with six other Alleged
RTPs, “routinely placed Pohl’s alleged trade secrets and documents in the public domain,
circulating Precision’s marketing lists and other documents allegedly belonging to Pohl to
numerous third parties rather than safeguard these documents and lists,” is not sufficient to satisfy
the fair notice pleading standard. Id. ¶ 20. Even if that conclusory allegation wkere true, it does
not even suggest that Dona caused or contributed to the harms at issue in this lawlsuit—Defendants’
unlawful taking and/or use of Pohl’s materials. c
Kassab provides slightly more information in connection withs his allegations about Jaimes,
Talley and Santana. See Motion ¶¶ 5–10. However, none of those allegations connect Jaimes,
Talley or Santana with the harms underlying Pohl’s claims—Defendants’ unlawful taking and/or
use of Pohl’s materials. Like with Dona, the closest Kassab comes is the conclusory allegation
that these individuals “routinely placed Pohl’s alleged trade secrets and documents in the public
domain . . . . Id. ¶ 20. But this allegation doaes not provide fair notice of how these individuals
caused or contributed to the relevant harms in this lawsuit.1
Finally, Kassab alleges that eWalker, Seymour, and Ladner were previous owners of
Precision, allegedly making themf responsible for conversion by Defendants in the case. See
Motion ¶ 19. However, aty most, their ownership connects them with a separate instance of
conversion, which givCes rise to its own harm. See Pemex Exploracion y Produccion v. BASF
Corp., CIV.A. H-10a-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (stating that when
property is allegfed to have been converted and then transferred to another party, “each possession
is a new cUonversion.” applying Texas law)). Movant’s allegations against Walker, Seymour, and
1 For many of the Alleged RTPs—such as Dona, Jaimes, Talley and Santana—Kassab did not allege that they had a
legal duty that they violated that proximately caused Pohl’s harms. See Motion ¶ 20. Instead, Kassab merely states
that these persons could have breached a duty “if” they “had an agreement and/or duty to safeguard any property,” but
without ever alleging such an agreement or duty existed. See generally id.
Ladner are not sufficient to demonstrate they are responsible for or contributed to the relevant
harms giving rise to the conversion and TUTSA claims against Defendants in this lawsuit.
C. Kassab has not timely disclosed the identities of responsible third parties.
Kassab cannot designate the Alleged RTPs as responsible third parties because the
limitations periods on Pohl’s torts claims have passed with respect the Allegedl RTPs, and Kassab
failed to comply with his obligations “to timely disclose that the[se] perscont[s] may be designated
as a responsible third party under the Texas Rules of Civil Procedusre.” See TEX. CIV. PRAC. &
REM. CODE § 33.004(d). Pohl’s conversion and TUTSA claims are subject to two and three-year
statutes of limitations respectively. See TEX. CIV. PRAC. & REM. CODE § 16.003(a) (conversion);
TEX. CIV. PRAC. & REM. CODE § 16.010(a) (trade secrets). Given that Pohl filed this lawsuit in
2018, these limitations periods have all run.
In response to Pohl’s requests for disclorsure, Kassab was required to provide “the name,
address, and telephone number of any person who may be designated as a responsible third party.”
TEX. R. CIV. P. 194.2(l) (rule in effecet for cases filed prior to Jan. 1, 2021). However, Kassab’s
responses do not provide this infofrmation.2 A party’s failure to provide any of the three pieces of
information in their disclosuyre responses can show they did not satisfy their “obligations under
Rule 194.2(l) and section 33.004(d).” See In re Dawson, 550 S.W.3d 625, 630 (Tex. 2018).
Kassab’s disaclosure responses do not name Shepherd as a person that may be designated
as a third partyf.
The responses also do not provide the address or telephone number for any
Alleged RTP.4 As a result, Kassab “may not designate [any Alleged RTP] as a responsible third
2 See Kassab Defendants’ First Amended Response to Plaintiffs’ Request for Disclosure, at 3, attached as Exhibit A.
3 See id.
4 See id.
party,” because he has not timely disclosed any Alleged RTP under the Texas Rules of Civil
Procedure. See TEX. CIV. PRAC. & REM. CODE § 33.004(d); Dawson, 550 S.W.3d at 630.
V. CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Mkichael A. Pohl
object to Kassab’s Motion and request that the Court deny the Motion with lleave for Kassab to
attempt to replead. c
Dated: May 31, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650
1100l Louisiana St., Suite 3500
Haouston, Texas 77002
MTel. 713.485.7200
Fax 713.485.7250
ojfrizzell@reynoldsfrizzell.com
c Attorney for Plaintiffs Michael Pohl
f and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby ccertify that a true and correct copy of this document was served on all counsel of
record pursuantf to the Texas Rules of Civil Procedure on this 31st day of May, 2022.
/s/ Jean C. Frizzell
Jean C. Frizzell
10
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 64998436
Status as of 6/1/2022 8:30 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Zandra EFoley zfoley@thompsoncoe.com s5/31/2022 5:00:45 PM SENT
Andrew Johnson ajohnson@thompsoncoe.comg5/31/2022 5:00:45 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.coum 5/31/2022 5:00:45 PM SENT
Murray JFogler mfogler@foglerbrar.com 5/31/2022 5:00:45 PM SENT
Andrew J. Sarne asarne@krcl.com y 5/31/2022 5:00:45 PM SENT
Dale Jefferson 10607900 jefferson@mdjwalaw.com 5/31/2022 5:00:45 PM SENT
Larry Newsom lnewsom@krcl.com 5/31/2022 5:00:45 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 5/31/2022 5:00:45 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 5/31/2022 5:00:45 PM SENT
Solace Southwick ssofuthwick@reynoldsfrizzell.com 5/31/2022 5:00:45 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 5/31/2022 5:00:45 PM SENT
Todd Taylor pttaylor@jandflaw.com 5/31/2022 5:00:45 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 5/31/2022 5:00:45 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 5/31/2022 5:00:45 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 5/31/2022 5:00:45 PM SENT
Chris C.Pappas o cpappas@krcl.com 5/31/2022 5:00:45 PM SENT
Todd Taylor U ttaylor@jandflaw.com 5/31/2022 5:00:45 PM SENT
David R.Wade lawyerwade@hotmail.com 5/31/2022 5:00:45 PM SENT
Katie Budinsky kbudinsky@krcl.com 5/31/2022 5:00:45 PM SENT
Scott M.Favre scott@favrepa.com 5/31/2022 5:00:45 PM SENT
Lance Kassab eserve@kassab.law 5/31/2022 5:00:45 PM SENT
Murray Fogler mfogler@fbfog.com 5/31/2022 5:00:45 PM SENT
Kathryn Laflin KLaflin@KRCL.com 5/31/2022 5:00:45 PM SENT"
24,2022-02-04,RPL,Pohl,Pohl’s reply ISO MSJ on counterclaims,Plaintiffs' Reply in Support of Their Motion for Summary Judgment on Defendants' Counterclaims for Civil Barratry,"Pohl's reply brief supporting his MSJ on Kassab's barratry counterclaims, filed February 4, 2022. This is the final brief in the CC-1 motion chain before the court's ruling (which ultimately granted Pohl's motion). Attorney: Jean C. Frizzell of Reynolds Frizzell LLP.",CC-1,N/A,Phase 2,2022-02-04_RPL_Pohl-Reply-ISO-MSJ-on-CC_FILED.pdf,Grant summary judgment dismissing Kassab's counterclaims for civil barratry,"2/4/2022 3:45 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 61466983
By: Deandra Mosley
Filed: 2/4/2022 3:45 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY
JUDGMENT ON DEFENDANTS’ COUNTERCLAIMS
Plaintiffs Michael Pohl and Law Officae of Michael A. Pohl (collectively “Pohl”) file this
Reply in Support of Their Motion for Summary Judgment on Defendants’ Counterclaims for Civil
Barratry. e
In his Response to Plfaintiffs’ Motion (the “Response”) Kassab admits that the
Assignments1 underlying hisy counterclaims were shams that altered nothing about the ownership
of the claims and wereC made explicitly for the purpose of circumventing the statute of limitations
and fomenting otherwise barred litigation. See Response, at 6 (“Seeing Pohl’s retaliatory suit as a
means to potenftfially revive the barratry claims dismissed on limitations in Brumfield and Gandy,
Kassab aUnd his clients executed 242 Limited Assignments.”); see also Declaration of Lance
Kassab ¶ 12, Ex. 5 to the Response (after purported “assignment,” clients retained 60% interest in
claims and Kassab retained 40% contingent fee interest). These admissions demonstrate the
1 Terms defined in Plaintiffs’ Motion carry the same meaning in this Reply.
invalidity of the Assignments and therefore the Counterclaims. In addition to effectively admitting
that the Assignments are shams, Kassab’s Response fails to rebut any of the other bases on which
Pohl moved for summary judgment.
The Court can resolve Pohl’s Motion based on a straightforward applicationk of res judicata,
as Kassab freely admits that he is asserting the very same claims that are subjectl to final judgments.
Furthermore, even if they were not barred by res judicata, Kassab’s claims cdo not meet the statutory
elements for revival and are themselves barred by limitations. Fsinally, the invalidity of the
Assignments only further supports the conclusion that summarsy judgment on Kassab’s claims is
proper.
I. Res judicata applies and is dispositive of Kassab’s counterclaims.
Kassab has confirmed that his counterclaims are the same claims that were resolved by
prior final judgments on the merits. See Response, at 6 (confirming that Assignments were for the
claims “dismissed on limitations in Brumfield and Gandy”). Res judicata applies to such claims,
and the prior judgments dismissing thee Barratry Claims on the basis of limitations preclude Kassab
from re-litigating the same claimsf in this lawsuit.
Kassab’s sole argumyent against res judicata is a purported “change in material facts” that
prevents the applicatioCn of res judicata. See id. at 8. But Kassab supplies no legal support for his
argument that a chaange in facts, like an assignment, has any impact on res judicata. Despite the
dispositive natufre of the res judicata argument, Kassab devotes just over a single page of his 27-
page ResUponse and cites to two cases to address this issue. See id. at 8–9. The two cases deal with
application of res judicata to a claim that did not exist at the time of a prior judgment. Neither
case supports the conclusion that res judicata does not apply to stale claims that were previously
dismissed, merely because a party attempted to circumvent the statute of limitations by assigning
their claim to be asserted as a revived counterclaim.
In Marino v. State Farm Fire & Cas. Ins. Co., the first case Kassab relies on, the Court
“addressed the issue of whether res judicata can bar a subsequent suit on a cause of action that was
not recognized until after judgment was rendered in the first suit.” 787 S.W.2d 948, 949 (Tex.
1990) (emphasis added). In the first lawsuit between Marino and State Farm, Markino prevailed at
trial on a claim for breach of contract based on State Farm’s denial of an insulrance claim. Id. at
948–49. After the judgment, the Texas Supreme Court “recognized a tocrt cause of action for an
insurer’s breach of the duty of good faith and fair dealing,” commonsly called a “bad faith” claim.
Id. at 949. The Court found that Marino’s “bad faith” claim, assserted in the second lawsuit, was
not barred by res judicata, because it “was based on rights subsequently acquired, [and] it was not
part of his former cause of action.” Id. at 950.
Kassab’s other case is City of Lubbock v. Stubbs, 327 S.W.2d 411 (Tex. 1959), which
addresses the application of res judicata to a ciaty’s attempt to enjoin Stubbs from violating a zoning
ordinance. Stubbs, 327 S.W.2d at 414. In a suit involving a prior ordinance, Stubbs prevailed,
permitting him to continue using his eland for specific business purposes. The city then passed an
ordinance that zoned his land asf residential. Id. at 413. In the second suit, the city sought to
enforce the new zoning ordyinance against Stubbs. Stubbs argued that, like in the first suit, he
should be able to contiCnue using his land for purposes he was engaged in prior to the passing of
the ordinance. Id. at 414. However, the Court found that res judicata did not apply, in part based
on the fact thatf Sftubbs’s “present use” of his land differed in each of the suits and that the city was
enforcingU a new ordinance. Id.
The application of res judicata to Kassab’s counterclaims is not analogous to the situations
presented in Marino and Stubbs. Kassab’s Barratry Claims not only existed at the time of the prior
final judgments on the merits, the prior judgments apply to the same claims Kassab attempts to
assert here. See Response, at 8 (acknowledging that “the prior judgments in Brumfield and Gandy
concluded” that “the barratry claims were barred by the statute of limitations”). Courts citing to
the Marino and Stubbs cases have properly focused on the existence of a claim and whether it was
a “a claim that was raised or that could have been raised in the first action.” Hernakndez v. Del Ray
Chem. Intern., Inc., 56 S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 200l1, no pet.).
Kassab is incorrect that his strategic use of assignments combinecd with section 16.069 of
the Civil Practice and Remedies Code allow him to not only avoid tshe proper application of the
statute of limitations, but also to avoid the effects of res judicatas. Because the Assignors’ Barratry
Claims are the subjects of final judgments, and Kassab is in privity with the Assignors, res judicata
applies and prevents Kassab from recovering on his counterclaims. The Court should grant Pohl’s
Motion and dismiss Kassab’s Barratry Claims.
II. Kassab’s counterclaims are not reavived and are thus barred by limitations.
Kassab’s counterclaims for civil barratry are barred by limitations because they accrued
more than four years before Kassabe filed the counterclaims. Kassab does not dispute that the
underlying Barratry Claims are bafrred by limitations or that his claims are governed by a four-year
statute of limitations. See geynerally Response. Instead, Kassab argues that section 16.069 of the
Civil Practice and RemCedies Code revives claims purportedly assigned to him. Kassab’s three
arguments in responase to Pohl’s Motion do not demonstrate that section 16.069 applies.
A. Pfohl’s claims against the Defendants arise of out of a different transaction or
occurrence than Kassab’s assigned Barratry Claims.
Kassab selectively quotes the standard for determining if section 16.069 applies and
misconstrues what facts are relevant to the claims and counterclaims in this lawsuit. See Response,
at 10–14. One reason that section 16.069 does not apply is because Kassab cannot show that “[t]he
essential facts on which the counterclaim is based [are] significantly and logically relevant to both
claims.” Smith v. Ferguson, 160 S.W.3d 115, 120 (Tex. App.—Dallas 2005, pet. denied).
As Pohl stated in his Motion, and as Kassab acknowledged in his Response, courts use a
“logical relationship test,” when determining whether counterclaims arise oukt of the same
transaction or occurrence. See Motion, at 9; see also Response at 10. Howevler, Kassab fails to
acknowledge that his own cases state that this test “is met when the same cfacts, which may or may
not be disputed, are significant and logically relevant to both claimss.” Commint Tech. Services,
Inc. v. Quickel, 314 S.W.3d 646, 653 (Tex. App.—Houston [14sth Dist.] 2010, no pet.) (emphasis
added); see generally Response (not using the term “significant” to discuss application of section
16.069).
Pohl asserts claims for theft of trade secrets and conversion relating to the Defendants’
theft and misuse of Pohl’s stolen client files anad information. Kassab argues that his counterclaims
arise out of the same transaction or occurrence as Pohl’s claims because: “The facts relevant to
determining whether Precision gaineed access to Pohl’s confidential information while ‘liaising’
with prospective clients are alsof relevant to determining whether the ‘liaising’ conducted by
Precision – at Pohl’s directioyn – amounted to unlawful barratry.” See Response, at 11. Without
ever explaining why, KCassab asserts that Pohl’s claims “depend on the manner in which Precision
worked for Pohl to procure client contact information.” See id. at 13. Kassab is wrong.
“[D]etefrfmining whether Precision gained access to Pohl’s confidential information while
‘liaising’U with prospective clients” is in no way “significant and logically relevant” to Pohl’s
claims for conversion and theft of trade secrets against Kassab. Id. at 11; see also Pohl’s First
Amended Petition, at 5–12 (describing the factual bases for Pohl’s claims). It does not matter at
all to Pohl’s claims whether the information Precision stole and sold was acquired during proper
“liaising” or if it was acquired doing alleged barratrous activity. What matters are the facts
underlying Kassab’s 2016 purchase and subsequent use of Pohl’s stolen property. Because
Kassab’s counterclaims do not arise out of the same transaction or occurrence as Pohl’s claims,
section 16.069 does not apply. k
B. Kassab did not provide fair notice of valid counterclaimCs lwithin the 30-day
period required under section 16.069. 
It is undisputed that a counterclaim that does not provide fair nortiice of the facts giving rise
to the claims does not satisfy the requirement to assert a counterDclaim within the 30-day period
prescribed by section 16.069. See Response, at 14–18 (not dissputing this rule). Instead, Kassab
simply asserts that he met this requirement because he argures that his “pleading met that fair notice
standard.” See id. at 18. His pleadings demonstrate otherwise.
Kassab admits that “fair notice” requires thlat a party be able to “ascertain from the pleading
the nature, basic issues, and the type of evidMence that might be relevant to the controversy.” Id. at
17 (quoting Low v. Henry, 221 S.W.3d 6o09, 612 (Tex. 2007)). However, Kassab does not explain
how Pohl could understand the natucre, issues, and types of evidence relevant to the barratry claims
when Pohl did not know who he was alleged to have committed barratry against. Instead, Kassab
argues that even less fair notice was provided by a party in a case cited by Pohl—seeming to
suggest that he merely needed to distinguish the facts of that case from the facts in this lawsuit.
See id. at 14–17. c However, the distinguishing facts Kassab points out do nothing to change that
he was obligated to provide fair notice to Pohl of the bases and nature of his counterclaims.
The Court can decide this issue with ease. The question is whether Pohl had “fair notice”
of Kassab’s barratry counterclaims when Kassab did not provide the means for Pohl to determine
who he was alleged to have committed barratry against. Kassab argues that there is fair notice
because of the seven pages of “facts” included in Kassab’s Third Amended Counterclaim. See id.
at 16. Even if those “facts” were part of the counterclaims,2 they did not inform Pohl who he
allegedly improperly solicited and committed barratry against. Pohl could not understand the
nature, issues, and types of evidence relevant to the counterclaims without knowing who he was
alleged to have committed barratry against. k
Kassab’s allegation of unspecified “assigned barratry claims”—withoult any indication of
who assigned the claims—does not provide “fair notice” of the claims uncder Texas law.3 Kassab
did not assert his counterclaims within the required 30-day periods to revive claims barred by
limitations, and this Court should dismiss Kassab’s counterclaimss.
C. Kassab has no response to the reasoning demonstrating that the Barratry
Claims assigned to Kassab after this lawrsuit was filed cannot be revived.
In his Motion, Pohl argued that section 16.069 cannot revive claims assigned after a lawsuit
to circumvent the otherwise applicable statute lof limitations. He noted that courts apply the
provisions of the Code Construction Act whMen construing section 16.069, and thus, its purpose and
the consequences of a particular interpreotation are relevant to determining if section 16.069 should
apply. See Motion, at 13 (citations comitted).
Instead of challenging the legal principles that led to the reasoning of the cases cited by
Pohl, Kassab argues simply that the cases are factually distinguishable and sought different forms
of relief. See Response, at 18–19. Kassab does not explain why the Court, in considering the
object and purposce of section 16.069, should construe the statute to apply in circumstances when
a defendant engages in gamesmanship to attempt “to circumvent limitations by relying on section
2 That factual discussion was not incorporated into Kassab’s counterclaim and appeared to be an explanation for why
Kassab believes the lawsuit was retaliatory, not the basis of the counterclaims. See Kassab’s Counterclaim, at 11–12.
3 Kassab’s suggestion that Pohl somehow should not be able to assert this argument because “Pohl could have obtained
a hearing on his special exceptions if he actually believed that Kassab’s pleadings were deficient,” misses the point.
See Response, at 18. The issue for Kassab is whether he gave fair notice of his counterclaim within the required 30-
day period. It does not matter if subsequent to that, Pohl fails to secure a ruling on potential special exceptions.
16.069.” See Ball v. SBC Communications, Inc., 04-02-00702-CV, 2003 WL 21467219, at *5
(Tex. App.—San Antonio June 25, 2003, pet. denied).
The Court should not allow Kassab to use section 16.069 to revive claims that he did not
even own until after this lawsuit was filed. The object and purpose of section 1k6.069 would be
frustrated by permitting its application to these claims. l
III. Kassab’s arguments regarding the validity of the Assignmcents of the Barratry
Claims fail and do not address the substance of Pohl’s argruments.
In his Motion, Pohl argued that the Assignments of the BaDrratry Claims are void because
they (1) are impermissible assignments of statutory punitive cslaims, and (2) violate public policy
by acting as an improperly obtained, transparent device to ravoid limitations and increase litigation.
See Motion, at 14. Kassab’s lead argument in response is that the Assignments are valid because
Pohl is estopped from arguing otherwise. Kassabl’s misleading attempt to invoke estoppel and his
responses to Pohl’s actual arguments do noMt work.
A. Kassab’s invocation of ojudicial estoppel is misleading, and it does not apply.
Kassab’s opening and primcary argument regarding the validity of the Assignments is a
legally deceptive argument that Pohl should be estopped from arguing they are invalid because he
purportedly made an inconpsistent argument in other cases. See Response, at 20 (stating that Pohl
“has simultaneously argued to the Texas Supreme Court that the Assignments are valid”). It is
unclear why Kasscab would seek to draw this Court’s attention to the fact that while asserting his
“assigned” Boarratry Claims in this Court, he simultaneously was representing clients asserting the
exact same claims in two appellate proceedings without having notified those courts of the
purported assignments.
Contrary to Kassab’s arguments, Pohl did not take an inconsistent position in the Texas
Supreme Court. Instead, Pohl’s briefing referred to “purported” assignments and notified the
Supreme Court that Kassab himself had argued that the Assignments are valid. See Response,
Exs. 5A, 5B. Furthermore, even had Pohl taken inconsistent position, he did not prevail on this
position, making estoppel inapplicable.4
Kassab was aware that Pohl did not prevail on this alternative argument, kand yet he still
makes his estoppel argument, citing to a single case. See id. at 21 (citing lFerguson v. Bldg.
Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009)). However, Fecrguson makes clear that
estoppel is not applicable here, because it “precludes a party whso successfully maintains a
position in one proceeding from afterwards adopting a clearlys inconsistent position in another
proceeding to obtain an unfair advantage.” Ferguson, 295 S.W.3d at 643 (emphasis added).
Kassab somehow failed to include the full standard for judicial estoppel, despite it being contained
on the same page that he cited. See Response, at 21 (citing to Ferguson, 295 S.W.3d at 643).
B. Kassab has no real responase to the fact that the Assignments contain
impermissible assignmentsM of statutory punitive claims.
In his Response, Kassab does noot address the fact that punitive statutory claims are often
not assignable, nor does he address cthe four factors the Texas Supreme Court uses when analyzing
the assignability of a statutory cause of action. See Response, at 21–24. Instead, Kassab discusses
the assignability of legal malpractice claims—which Pohl did not bring up and which has no
relevance to Pohl’s actual arguments—and sets up a straw man of Pohl’s arguments by contending
that Pohl relies onc an exception to assignability that is limited to DTPA claims. See id. at 21–22.
Kassab contends that Pohl’s arguments regarding the invalidity of an assignment of a civil
barratry claim fail because of “the simple fact that a civil barratry claim is not a DTPA claim.”
4 See January 28, 2022 Notices filed Brumfield v. Williamson, No. 21-0563, in The Supreme Court of Texas, and
Gandy v. Williamson, No. 21-0564, in The Supreme Court of Texas (denying petitions for review and dismissing
Pohl’s Motions to Dismiss “as moot.”). These records are available at https://search.txcourts.gov/Case.aspx?cn=21-
0563&coa=cossup and https://search.txcourts.gov/Case.aspx?cn=21-0564&coa=cossup. This Court may take judicial
notice of these facts. See TEX. R. EVID. 201(b).
See id. at 22. This is a non sequitur. While the seminal case on the assignability of statutory claims
dealt with assignment of a DTPA claim, its reasoning was explicitly not limited to such claims.
See PPG Indus., Inc. v. JMB/Houston Centers Partners Ltd. P’ship, 146 S.W.3d 79, 87 (Tex. 2004)
(noting that “the assignability of most claims does not mean all are assignable; exckeptions may be
required due to equity and public policy” (footnotes omitted)). l
Kassab all but ignores the four factors considered by the Court inc PPG. See Response, at
21–24. Kassab does not address the fact that the legislature knew hsow to make barratry claims
assignable, yet the statute is silent. See TEX. GOV’T CODE § 82.s0651. That the legislature did not
explicitly provide for assignment “can be significant” and provides the starting point for a court’s
analysis. PPG, 146 S.W.3d at 84. Nor does Kassab discuss the purpose of the civil barratry statute,
related common-law principles prohibiting assignments of punitive statutory claims, or whether
the Assignments may increase litigation. See aPPG, 146 S.W.3d at 83–92; Response, at 23–24.
Kassab argues that some of the risks of distortion discussed in PPG are not present here.
See Response, at 23–24. However, thee risks of distortion discussed in PPG were not alleged to be
present in that case either. See PfPG, 146 S.W.3d at 91–92. The Court instead was concerned
about the rule as applied to ya class of claims. Id. The risks of distortion are present for barratry
claims as a class. AndC it is clear that assignments made to avoid limitations, “increase” litigation.
Because civil barratry claims are personal and punitive in design, and for the other reasons
discussed in thfef Motion, the claims are not assignable. Kassab’s attempt to factually distinguish
PPG hasU no effect on the rule and reasoning it laid out. This Court should find that the
Assignments of the Barratry Claims to Kassab are void and without effect.
C. Kassab’s own admissions show that the Assignments violate public policy.
Kassab admits that the Assignments were a sham device used as part of an attempt to avoid
the application of the statute of limitations. See Response, at 6 (“Seeing Pohl’s retaliatory suit as
10
a means to potentially revive the barratry claims dismissed on limitations in Brumfield and Gandy,
Kassab and his clients executed 242 Limited Assignments”). Kassab also describes in his
Response how the Assignments have no practical effect and were simply “effectuated in an attempt
to salvage the clients’ barratry claims,” and Kassab would return any recovery ikn excess of his
contingency fee to the assignors. See id. at 23. These admissions demlonstrate that the
Assignments violate public policy, and the Court should decline to enforcce them.
As discussed more thoroughly in the Motion, “the assignabislity of most claims does not
mean all are assignable; exceptions may be required due to equsity and public policy.” PPG, 146
S.W.3d at 87 (emphasis in original) (footnotes omitted). Courts may look to equitable
considerations to invalidate assignments when the assignments “tend to increase or prolong
litigation unnecessarily” or when an assignment is used as a “transparent device” to “increase and
distort litigation.” See Sw. Bell Tel. Co. v. Mkatg. on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010);
LAKXN Income, Inc. v. TLC Hosp., LLC, 02-20-00415-CV, 2021 WL 3085755, at *5 (Tex. App.—
Fort Worth July 22, 2021, no pet.) (cietation omitted).
The Assignments Kassabf received undisputedly “tend to increase or prolong litigation
unnecessarily” and are admiytted “transparent device[s]” to “increase and distort litigation.” Sw.
Bell Tel. Co., 308 S.WC.3d at 916; LAKXN, 2021 WL 3085755, at *5. Kassab’s sole response is
simply that “Pohl has the filthiest of hands” and that Pohl should not benefit from any equitable
consideration. f fSee Response, at 26. However, Kassab’s overheated statements and citation to a
court’s dUiscussion of “the past litigation that led to this suit as it is relevant to the issues being
decided now,” are not competent evidence of unclean hands. See Kassab v. Pohl, 612 S.W.3d 571,
574 (Tex. App.—Houston [1st Dist.] 2020, pet. denied); Response, at 26 (citing Kassab v. Pohl).
11
Kassab ignores the fact that the Court must consider both public policy and equitable
considerations, and he does not explain why Pohl’s analysis of those considerations is incorrect.
Instead Kassab focuses on a side issue, arguing that the Assignments cannot be invalidated even
if he did violate Disciplinary Rule 1.08(h). See Response, at 24–26. While his akttempt to argue
that the Assignments do not violate Rule 1.08(h) makes little sense, it is worthl noting that Kassab
quotes the relevant caselaw in a misleading fashion. Kassab suggests that “ceven if the Assignments
are unethical and in violation of Rule 1.08 . . . the Court cannot void tshem.” See Response, at 25–
26 (citing M.A. Mills, P.C. v. Kotts, No. 14-20-00395-CV, 2022s WL 176125, at *8 (Tex. App.—
Houston [14th Dist.] Jan. 20, 2022, no pet. h.)). However, Knotts dealt with a different provision
of the Rules, and the court explicitly stated: “We previously opined that courts ‘may deem these
rules to be an expression of public policy, so that a contract violating them is unenforceable
as against public policy,’ but we also said thaat courts ‘are not required to do so.’” Kotts, 2022
WL 176125, at *6 (citations omitted) (emphasis added).
Ultimately, whether Kassab oebtained these assignments in violation of the ethical rules is
just an additional factor for the Cfourt to consider along with the other public policy and equitable
considerations. Kassab is attyempting to use the Assignments to avoid the application of the statute
of limitations in a manCner that increases and promotes litigation, rather than curbing it. The sole
purpose of the Assignments was to circumvent the statute of limitations and promote further
litigation. Assfigfnments that injure the public good such as these should be rejected.
U PRAYER
For the foregoing reasons, and the reasons stated in Pohl’s Motion, Pohl requests that the
Court grant summary judgment dismissing Kassab’s counterclaims.
12
Dated: February 4, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 4th day of February, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
13
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Melissa Hyland on behalf of Jean Frizzell
Bar No. 7484650
mhyland@reynoldsfrizzell.com r
Envelope ID: 61466983
Status as of 2/4/2022 3:50 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s2/4/2022 3:45:54 PM SENT
Todd Taylor ttaylor@jandflaw.com g2/4/2022 3:45:54 PM SENT
Scott M.Favre scott@favrepa.com u 2/4/2022 3:45:54 PM SENT
Lance Kassab eserve@kassab.law  2/4/2022 3:45:54 PM SENT
Murray JFogler mfogler@foglerbrar.cyom 2/4/2022 3:45:54 PM SENT
Murray Fogler mfogler@fbfog.caom 2/4/2022 3:45:54 PM SENT
Larry Newsom lnewsom@krcl.com 2/4/2022 3:45:54 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 2/4/2022 3:45:54 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 2/4/2022 3:45:54 PM SENT
Andrew J. Sarne asafrne@krcl.com 2/4/2022 3:45:54 PM SENT
Kathryn Laflin KLaflin@KRCL.com 2/4/2022 3:45:54 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 2/4/2022 3:45:54 PM SENT
Solace Southwicko ssouthwick@reynoldsfrizzell.com 2/4/2022 3:45:54 PM SENT
E. MarieJamisUon jamison@wrightclosebarger.com 2/4/2022 3:45:54 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 2/4/2022 3:45:54 PM SENT
Chris C.Pappas cpappas@krcl.com 2/4/2022 3:45:54 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/4/2022 3:45:54 PM SENT
David R.Wade lawyerwade@hotmail.com 2/4/2022 3:45:54 PM SENT
Felicia Grace fgrace@krcl.com 2/4/2022 3:45:54 PM SENT"
21,2021-10-18,OA,Pohl,Pohl’s response and special exceptions,"Plaintiffs-Counter Defendants Pohl's Verified Original Answer and Special Exceptions to Kassab's Fourth Amended Answer, Counterclaim, and Designation of Responsible Third Parties","Pohl's responsive pleading to Kassab's Fourth Amended Answer and Counterclaim filed on October 13, 2021. Filed October 18, 2021, five days after Kassab's amended pleading. Challenges Kassab's legal capacity to assert assigned barratry claims through verified denials and seeks clarification of the counterclaim through special exceptions. Attorney: Jean C. Frizzell of Reynolds Frizzell LLP.",PLEAD-1,N/A,Phase 2,2021-10-18_OA_Pohl-Response-and-Special-Exceptions_FILED.pdf,That the Court render judgment that Kassab take nothing; dismiss Kassab's counterclaim for barratry on its merits; and grant such other and further or alternative relief (legal and equitable) to which Pohl may be entitled,"10/18/2021 5:07 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 58297712
By: Deandra Mosley
Filed: 10/18/2021 5:07 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS–COUNTER DEFENDANTS MICHAEL POHL AND
LAW OFFICE OF MICHAEL A. POHL, PLLC’S
VERIFIED ORIGINAL ANSWERl AND SPECIAL EXCEPTIONS
Plaintiffs–Counter Defendants MichMael Pohl and Law Office of Michael A. Pohl, PLLC
(collectively “Pohl”), file this Verified Original Answer and Special Exceptions to Defendants,
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm’s Fourth
Amended Answer, Affirmative Defenses and Counterclaim, and Designation of Responsible Third
Parties, filed October 13, 2021 (the “Counterclaim”), and would show as follows:
 I. Verified Denials
Pursuant tco Rules 93(1) and 93(2) of the Texas Rules of Civil Procedure, Pohl denies that
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm
(collectively “Kassab”) has legal capacity to sue or recover in the capacity in which he sued. Kassab
purports to assert barratry claims assigned to him by his clients. Such assignments of barratry claims
(whether complete or partial) are void, and Kassab both lacks legal capacity to sue and to recover.
Pohl’s Verification is attached as Exhibit A.
II. Answer
Pursuant to Rule 92, Pohl generally denies each and every, all and singular, of the
allegations made in Kassab’s Counterclaim, and demands strict proof thereof.
Pohl hereby pleads the following affirmative defenses: k
i. Statute of limitations; l
ii. Laches; 
iii. Lack of standing; c
iv. Illegality; t
v. Res judicata; i
vi. Estoppel; 
vii. Failure to mitigate; and s
viii. Waiver.
III. Special Exceptions
Pohl specially excepts to the Counterclaim on the grounds of obscurity and lack of fair
notice. As currently pled, Pohl is unable to ascrertain the nature and basic issues presented by the
Counterclaim in order to adequately defend himself. See Counterclaim, at 12.
“An opposing party should usee special exceptions to identify defects in a pleading so that
they may be cured, if possible, bfy amendment.” Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 897 (Tex. 2000y). “The purpose of a special exception is to compel clarification of
pleadings when the pleadings are not clear or sufficiently specific or fail to plead a cause of action.”
Baylor Univ. v. Sonanichsen, 221 S.W.3d 632, 635 (Tex. 2007). Sw. Bell Tel. Co. v. Garza, 164
S.W.3d 607, 61f7 (Tex. 2004) (“Had SWBT been in doubt about Garza’s claims, it could have
sought clarification through special exceptions.”). Special exceptions are “‘the appropriate
vehicle . . . by which an adverse party may force clarification of vague pleadings,’ thereby
narrowing the range of facts that will be of consequence in the action.” In re Mem’l Hermann
Hosp. Sys., 464 S.W.3d 686, 708 (Tex. 2015) (citation omitted).
-2-
Clarification regarding the nature and basis of Kassab’s counterclaim for barratry is
necessary. In his Counterclaim, Kassab appears to be more concerned with attacking Pohl than
articulating the basis of a claim or claims that Kassab is entitled to assert against Pohl. Kassab
does not identify the specific cause of action asserted, who the original owners kof the assigned
claims are, or any facts that give rise to his barratry counterclaim. l
Without identifying the cause of action, Kassab asserts generic c“counterclaims” against
Pohl “based upon express assignments,” and then states that he “has bseen assigned barratry claims
on behalf of 242 claimants.” See Counterclaim, at 12. He does snot identify who the assignors are,
nor does Kassab state any facts that give rise to the allegedly assigned barratry claims. See id.
To the extent that Kassab argues that the “Factual Background” section is incorporated into
his barratry counterclaim, it further demonstrates the need for clarification. See id. at 4–12. The
facts discussed in that portion of the Countercalaim lead up to Kassab stating that: “more than four
hundred clients who were illegally solicited contacted the Kassab Law Firm and requested Kassab
to represent them in litigation againset Pohl and his partners. Kassab filed lawsuits on behalf of
these clients in four different coufrts in Harris County.” Id. at 11.
If those facts give risey to Kassab’s barratry counterclaim, are the claims asserted by Kassab
in this lawsuit the samCe as those asserted by Kassab’s clients in prior litigation? If so, it raises
serious questions about Kassab’s barratry counterclaim, including whether it is barred by res
judicata. The nfefed for clarification and fair notice is apparent, and the Court should require Kassab
to clarifyU the basis of the counterclaim and provide Pohl with fair notice.
IV. Conclusion
For the foregoing reasons, Pohl prays that the Court render judgment that Kassab take
nothing by reason of his allegations; dismiss Kassab’s counterclaim for barratry on its merits; and
for such other and further or alternative relief (legal and equitable) to which Pohl may be entitled.
-3-
Dated: October 18, 2021 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 0748465k0
1100 Louisiana St., Suite 3e500
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsrfrizzell.com
Attorney for PDlaintiffs Michael Pohl
and Law Osffice of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 18th day of October, 2021.
a /s/ Jean C. Frizzell
M Jean C. Frizzell
-4-
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 58297712
Status as of 10/19/2021 7:47 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s10/18/2021 5:07:28 PM SENT
Todd Taylor ttaylor@jandflaw.com g10/18/2021 5:07:28 PM SENT
Scott M.Favre scott@favrepa.com u 10/18/2021 5:07:28 PM SENT
Lance Kassab eserve@kassab.law  10/18/2021 5:07:28 PM SENT
Murray JFogler mfogler@foglerbrar.cyom 10/18/2021 5:07:28 PM SENT
Andrew J. Sarne asarne@krcl.coma 10/18/2021 5:07:28 PM SENT
Larry Newsom lnewsom@krcl.com 10/18/2021 5:07:28 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 10/18/2021 5:07:28 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 10/18/2021 5:07:28 PM SENT
Harris Wells hweflls@reynoldsfrizzell.com 10/18/2021 5:07:28 PM SENT
Kathryn Laflin KLaflin@KRCL.com 10/18/2021 5:07:28 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 10/18/2021 5:07:28 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 10/18/2021 5:07:28 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 10/18/2021 5:07:28 PM SENT
Solace Southwick ssouthwick@reynoldsfrizzell.com 10/18/2021 5:07:28 PM SENT
Felicia Grace o fgrace@krcl.com 10/18/2021 5:07:28 PM SENT
Chris C.PappaUs cpappas@krcl.com 10/18/2021 5:07:28 PM SENT
Todd Taylor ttaylor@jandflaw.com 10/18/2021 5:07:28 PM SENT
David R.Wade lawyerwade@hotmail.com 10/18/2021 5:07:28 PM SENT"
17,2021-07-26,RSP,Pohl,Pohl’s response to Kassab MSJ,"Pohl's Response in Opposition to Kassab's Traditional Motion for Summary Judgment, addressing all three grounds (limitations, res judicata, attorney immunity)","Response brief filed in Phase 2 opposing Kassab's dispositive Traditional MSJ. Pohl argues Kassab's motion recycles the same arguments and limited evidence from the TCPA motion and interlocutory appeal, and was filed prior to responding to any discovery. Filed July 26, 2021, approximately 7 weeks after Kassab's MSJ.",MSJ-1,N/A,Phase 2,2021-07-26_RSP_Pohl-Response-to-Kassab-Traditional-MSJ_FILED.pdf,Deny Kassab's Traditional Motion for Summary Judgment in all respects,"7/26/2021 2:51 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 55701585
By: Deandra Mosley
Filed: 7/26/2021 2:51 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS LANCE
CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, PC’S
TRADITIONAL MOTION FOlR SUMMARY JUDGMENT
Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the Traditional Motion for Summary Judgment filed by Defendants Lance
Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively
“Kassab”). Kassab’s Traditional Motion for Summary Judgment (the “Motion”), which Kassab
filed prior to responding to any discovery, relies on the same arguments and (very limited)
evidence previously presented to this Court and the First Court of Appeals in Kassab’s motion
under the TCPA.c Kassab’s arguments were not persuasive then, nor is his recycled assertion of
them persuasive now.
I. FACTUAL BACKGROUND
Pohl is a lawyer who represented various persons and entities in claims arising from motor
vehicle accidents and the British Petroleum Deepwater Horizon oil spill.1 Pohl engaged Precision
1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 3, attached as Exhibit A.
Marketing Group, LLC (“Precision”) to provide public relations services, to gather and preserve
evidence, and to screen and liaise with Pohl’s clients and prospective clients.2 While working for
Pohl, Precision naturally gained access to Pohl’s confidential and proprietary information and
property, including trade secret materials.3 Scott Favre, individually and/or thkrough Scott M.
Favre PA, LLC (collectively “Favre”) is the managing member of Precision.4 Flavre took physical
copies of Pohl’s information, stole Pohl’s computers, and misappropriatecd electronic data.5
In November 2016, Kassab—a lawyer who specializes in suinsg other lawyers—purchased
Pohl’s stolen confidential information and property from Favsre (with the assistance of other
Defendants) for a whopping $250,000, plus bonuses,6 taking possession of at least some of the
information and property in December 2016.7 Kassab highly valued Pohl’s stolen and
misappropriated confidential information and property because, after purchasing it, he used it to
contact and solicit Pohl’s clients and prospectiave clients.8 Kassab’s actions constitute conversion,
violations of the uniform trade secrets act (“TUTSA”), and conspiracy.
Favre’s sale of Pohl’s stolen ceonfidential information and client communications to Kassab
violated the terms of a settlementf agreement. That confidential settlement agreement, executed in
late April or early May 2017y (the “Settlement Agreement”), resolved a lawsuit in federal court in
Mississippi, styled No.C 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., In
The United States District Court For The Southern District of Mississippi, Southern Division (the
2 Id. ¶ 4.
3 Id. ¶ 6.
4 Id.
5 Id. ¶¶ 6–8.
6 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A).
7 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A).
8 Kassab has admitted using Pohl’s client files (while erroneously claiming that they belonged to Precision Marketing)
to contact Pohl’s clients and former clients to solicit them to file claims against Pohl. See Declaration of Lance
Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
“Federal Court Case”).9 Favre is a party to the Settlement Agreement, but he was not a party to
the Federal Court Case.10 Precision is the only Defendant in this lawsuit that was also party to the
Federal Court Case.11
Pohl timely brought this lawsuit against Kassab and the other Defendantsk on August 28,
2018.12 l
II. ARGUMENT c
A. Pohl’s Claims are Not Barred by Limitations. s
Pohl’s claims against Kassab accrued no earlier than Nsovember 2016 because they arise
from Kassab’s November 2016 purchase—and subsequent use—of information and property
stolen from Pohl. As no claim has a limitations period of less than two years, and Pohl brought
this lawsuit in August 2018, Pohl’s claims are not barred. Even if this were not so, Kassab has
failed to carry his burden to show that the claimas against him accrued outside the limitations period.
1. The summary judgment standard for the affirmative defense of limitations.
Kassab bears the burden to aned must “conclusively prove when” each of Pohl’s causes of
action accrued and must also nefgate the discovery rule to be entitled to summary judgment on
limitations. See Regency Fiyeld Services, LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807,
818 (Tex. 2021) (“a deCfendant seeking summary judgment based on limitations must conclusively
establish that the limaitations period expired before the claimant filed suit”); see also Motion at 6
(acknowledgingf that Kassab bears this burden).
9 Pohl Declaration ¶¶ 10–11, attached as Exhibit A.
10 Id.
11 See id. ¶ 10; Federal Court Case Order, attached as Exhibit 4 to the Motion (showing parties in the caption). Pohl
made Precision a party to the Federal Court Case through a counterclaim. See generally Pohl’s Federal Counterclaim,
attached as Exhibit 2 to the Motion.
12 See generally Pohl’s Original Petition, filed August 28, 2018.
“Generally, a claim accrues when the defendant’s wrongful conduct causes the claimant to
suffer a legal injury, which gives the claimant the right to seek a judicial remedy.” Regency, 622
S.W.3d at 814 (emphasis added). Texas courts apply specific tests to determine the accrual of
certain claims, including the three claims at issue here. k
A claim for conversion generally accrues at the time of the defendant’sl “unlawful taking”
of the plaintiff’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tcex. App.—Houston [1st
Dist.] 2006, no pet.). When property is alleged to have been convesrted and then transferred to
another party, “each possession is a new conversion.” Pemex Esxploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (citation omitted)
(applying Texas law). There is a two-year limitations
period for conversion. See TEX. CIV. PRAC.
& REM. CODE § 16.003(a).
“A cause of action for trade-secret maisappropriation accrues when the trade secret is
actually used. Use of the trade secret means commercial use by which the offending party seeks
to profit from the use of the secret.”e Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699,
721–22 (Tex. 2016) (cleaned up)f. There is a three-year limitations period for TUTSA violations.
See TEX. CIV. PRAC. & REM y. CODE § 16.010(a). The civil conspiracy claim is derivative of the
underlying torts, and itC accrues “as to each alleged underlying tort when that tort occurs.” Agar
Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 145 (Tex. 2019).
2. Pohflf’s claims against Kassab accrued within two years of the initiation of this suit.
PoUhl brought suit on August 28, 2018 against Kassab and the other Defendants.13 Because
Pohl’s conversion claim accrued after August 28, 2016 and Pohl’s TUTSA claim accrued after
August 28, 2015, Kassab’s affirmative defense of limitations fails.
13 See generally Pohl’s Original Petition, filed August 28, 2018.
Pohl’s conversion claim arises from Kassab’s purchase and subsequent use of information
and property stolen from Pohl. See Amended Complaint ¶¶ 36–38.14 The undisputed evidence
shows that Kassab made this purchase through a contract dated November 10, 2016.15 Kassab
took possession of at least some of Pohl’s information and property in December 2k016.16
Pohl’s conversion claim against Kassab accrued when Kassab took polssession of Pohl’s
property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houcston [1st Dist.] 2006, no
pet.). It does not matter if there was a prior claim for conversion sagainst other individuals or
entities, as “each possession is a new conversion.” Pemex Exsploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (emphasis added).
Because the contract to purchase the property is dated in November 201617 and Kassab was still
acquiring possession of the stolen property in December 2016,18 Pohl’s claim against Kassab for
conversion accrued, no earlier than Decembera 1, 2016—well within the two-year period.
Pohl’s TUTSA claim against Kassab is based on overlapping conduct. Kassab’s knowing
purchase and subsequent use of stolene trade secrets violated TUTSA. See Amended Complaint ¶¶
39–42. Pohl’s TUTSA claim agfainst Kassab accrued upon Kassab’s use of Pohl’s stolen trade
secrets. See Sw. Energy Proyd. Co. v. Berry-Helfand, 491 S.W.3d 699, 721–22 (Tex. 2016).
For Kassab’s liCmitation defense to prevail, he must conclusively show that Pohl’s TUTSA
claim against him accrued prior to August 28, 2015. See TEX. CIV. PRAC. & REM. CODE §
16.010(a) (profvfiding a three-year limitations period). Pohl’s claims accrued no earlier than
NovembeUr 10, 2016, as that is the date of the contract through which Kassab purchased Pohl’s
14 See also November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance
Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
15 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
16 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
17 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
18 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
trade secrets.19 As Kassab was still acquiring possession of these materials in December 2016,20
his use of Pohl’s trade secrets—and the accrual of Pohl’s TUTSA claim—necessarily occurred
after November 10, 2016.
3. Kassab’s arguments and evidence about prior wrongdoing are irkrelevant to his
limitations defense. e
Kassab focuses on wrongful conduct by others—conduct that does not give rise to Pohl’s
claims in this lawsuit—to argue that limitations bars Pohl’s claims. See Mr iotion at 7–12. However,
in determining when claims against Kassab accrued, it is Kassab’Ds alleged wrongful conduct that
is relevant, not the conduct of others. Kassab’s participations in the sale and purchase of Pohl’s
information, through a contract dated in November 2016r, and Kassab’s subsequent use of that
information is the conduct that gives rise to Pohl’s claims. See Amended Petition ¶¶ 21–23, 26–
29, 33.21 l
Even if the wrongful conduct of oMthers (that did not give rise to Pohl’s claims) were
somehow relevant to Kassab’s limitaotions defense—and it is not—Kassab has not met his
summary judgment burden. Kasscab acknowledges that he bears the burden of negating the
discovery rule. See Motion at 6.22 To do so, Kassab must conclusively establish that Pohl “knew
or in the exercise of reasonable diligence should have known of the wrongful act and resulting
injury” more than three years prior to this lawsuit for his TUTSA claim and more than two years
prior for the convcersion claim. See Regency Field Services, LLC v. Swift Energy Operating, LLC,
622 S.W.3d 807, 817 (Tex. 2021).
19 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
20 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
21 See November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance Christopher
Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
22 See also Pohl’s November 2018 Declaration ¶ 9, attached as Exhibit A to the Amended Petition (providing notice
of the potential application of the discovery rule).
Kassab purports to negate the application of the discovery rule through Pohl’s testimony.
See Motion at 11. However, Kassab’s evidence does not establish what he says it does. The
testimony Kassab cites only shows that at an undefined point prior to Pohl’s May 15, 2018
deposition, Pohl had knowledge of some wrongful conduct by some individual or kindividuals that
occurred in 2014.23 Nothing in Pohl’s testimony establishes when Pohl gaineld knowledge about
the 2014 conduct discussed, nor does it address when Pohl knew of Kassacb’s wrongful conduct.24
And, even if the testimony contained evidence that Kassab wishes its contained, it at most would
create a fact issue regarding the accrual of Pohl’s claims. Pohls has affirmatively testified that he
was not aware of the claims in this case in the two-year period prior to the filing of this case.25
Limitations does not bar Pohl’s claims, and Kassab has not shown that he is entitled to judgment
as a matter of law.
B. Res Judicata Does Not Apply to Poahl’s Claims Against Kassab.
Kassab confuses and contorts the conduct at issue in this lawsuit to argue that Pohl’s claims
are barred by res judicata as a result oef the settlement and dismissal of the Federal Court Case. See
Motion at 12–16. Because Kassafb was not a party to the judgment in the Federal Court Case, he
tries to base his res judicatya defense on an unsupported allegation that he is in privity with
Precision—which wasC a party to the Federal Court Case. Id. at 13–14. Tellingly, Precision did
not move for summary judgment (or to dismiss) on the basis that res judicata bars the claims in
this lawsuit.26 f f
23 See Exhibit 3 to the Motion (discussing Pohl’s knowledge and contentions made in May 2018).
24 See generally id.
25 Pohl’s November 2018 Declaration ¶ 9, attached as Exhibit A to the Amended Petition; see also Pohl Declaration
¶ 9, attached as Exhibit A.
26 See generally Motion to Dismiss filed by Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing
Group, LLC on November 16, 2018.
Kassab is not entitled to summary judgment on his res judicata defense because he has not
provided evidence that conclusively establishes its three elements. “Res judicata requires: (1) a
prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties or
those in privity with them, and (3) a second action based on the same claims thakt were raised or
could have been raised in the first action.” Burchfield v. Prosperity Bank, 408l S.W.3d 542, 545–
46 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citation omitted). c
The second and third elements are at issue here. Kassab scannot establish the second
element, because he admits he was not a party to the prior judsg  ment and provides no evidence
that he is in privity with anyone who was a party to a prior judgment. Furthermore, Kassab’s
evidence does not establish the third element—that Pohl’s claims against Kassab are “the same
as” the claims settled in the other case or that they could have been brought in that case—as the
evidence shows that each of the two actions haas distinct factual bases and parties.
1. Kassab fails to conclusively establish he is in privity with any party to a final judgment.
Kassab is not entitled to summeary judgment because he provided no evidence that he is in
privity with any party to the judgmfent in the Federal Court Case, nor can he provide such evidence.
See Motion at 13. The couryt in the Federal Court Case dismissed all claims with prejudice after
the parties entered intoC the voluntary Settlement Agreement.27 Kassab was not a party to that
agreement or to thea Federal Court Case, and no party to the Federal Court Case represented his
interests in that faction.
TUexas has rejected categorical approaches to privity, and a court must examine the
particular circumstances of a case before it can determine if parties are in privity. See Burchfield,
408 S.W.3d at 546–47. To determine if a person is in privity with a party to a prior action, a court
27 See Federal Court Case Order, attached as Exhibit 4 to the Motion.
must determine if that person satisfies one of three tests: “(1) they can control an action even if
they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they
can be successors in interest, deriving their claims through a party to the prior action.” Burchfield,
408 S.W.3d at 546–47 (quoting Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653k (Tex. 1996)).
Kassab does not allege that any of these three tests are satisfied, let alonle provide evidence
to conclusively establish privity with a party to the Federal Court Case. Scee Motion at 13. Rather
than addressing the controlling Texas standard, Kassab asserts thats privity exists because Pohl
alleges in this lawsuit that Kassab conspired with Precision—asn entity which was a party to the
Federal Court Case. Motion at 13. Kassab provides no Texas authority to support this assertion,
instead, Kassab cites to three out-of-state cases, none of which apply Texas law. Id.28
While it is possible for co-conspirators to be in privity with each other, under Texas law,
allegations of conspiracy alone are not enougah—Kassab must show that one of the three tests for
privity is satisfied. See Rogers v. Walker, 13-12-00048-CV, 2013 WL 2298449, at *4 (Tex.
App.—Corpus Christi May 23, 2013,e pet. denied); New York Pizzeria, Inc. v. Syal, 53 F. Supp. 3d
962, 969 n.6 (S.D. Tex. 2014) (“Tfhis Court predicts that the Texas Supreme Court would not adopt
a rule that alleged coconspiryators are always in privity for the purposes of claim preclusion, but
would instead hold thaCt courts must consider whether the circumstances justify such a ruling.”).
Kassab does not allege or provide any evidence that he (1) had any control in relation to
the Federal Cofufrt Case; (2) that Precision, any other party, represented Kassab’s interests; or (3)
Kassab wUas a successor in interest to Precision or any other party.
28 Kassab relies on out-of-state cases which are distinct from the facts of this case. For example, he relies on RSM
Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 800 F. Supp. 2d 182 (D.D.C. 2011). See Motion at 13. The
court in RSM found co-conspirators to be in privity with each other after the plaintiff attempted to assert the “exact
same alleged corrupt conspiracy” with a new party after that conspiracy claim had been dealt with in a prior action.
See RSM, 800 F. Supp. 2d at 194. The conspiracy alleged in this lawsuit was not part of the Federal Court Case.
Kassab cannot provide evidence to establish control, because, “[i]n determining whether
privity exists through control over a prior action, Texas courts have focused on whether an
individual actively and openly participated in the prior proceedings to such an extent that it was
clear that the individual had the right to direct them.” McNeil Interests, Inc. v. Qkuisenberry, 407
S.W.3d 381, 389 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (quotation lomitted). There is
no evidence to establish that Kassab “openly participated”—or participatced at all—in the Federal
Court Case. s
Kassab also completely fails to prove that Precision reprsesented his interests in the Federal
Court Case. Kassab does not state that he had an interest in the Federal Court Case, let alone
identify that interest or provide evidence that Precision could have represented that interest. See
generally Motion; see also Rogers, 2013 WL 2298449, at *3 (refusing to affirm summary
judgment when movant “did not state that [maovant] had an interest in the probate action, identify
his interest, or state that [a party to the action] could have represented his interest”). The same is
true for the successor in interest test.e No allegations or evidence from Kassab even address this
test, let alone carry Kassab’s sumfmary judgment burden on the issue. See generally Motion.
2. The factual basesy of Pohl’s claims against Kassab are not the “same” as those asserted
in the Federal Court Case, nor could Pohl’s claims have been asserted in that action.
Kassab’s failure to provide evidence of privity prevents him from establishing res judicata.
However, even ifc he had provided evidence of privity, Kassab does not conclusively establish that
this lawsuit “arises out of the same subject matter as the” Federal Court Case and that it could have
been litigated there. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007).
To determine whether the Federal Court Action shares the same “subject matter” as this
lawsuit, the Court should look to “the factual matters that make up the gist of the complaint,
without regard to the form of action.” Id. (cleaned up). “This should be done pragmatically, giving
10
weight to such considerations as whether the facts are related in time, space, origin, or motivation,
whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to
the parties’ expectations or business understanding or usage.” Id. (cleaned up).
Kassab cites to two pieces of evidence to show “the factual basis of Pohl’sk claims or even
potential claims in the Federal Court Case.” Motion at 14. First, he citesl to Pohl’s Federal
Counterclaim filed in that action. See id. at 13–14 (citing to Pohl’s Federacl Counterclaim, attached
as Exhibit 2 to the Motion). Second, he cites a June 2018 affidavit sfrom Pohl. See id. at 14–15
(citing to Exhibit 1 to the Motion). Neither is sufficient to satsisfy Kassab’s summary judgment
burden.
First, contrary to what Kassab’s misleading citations indicate, the factual basis of Pohl’s
Federal Counterclaim does not overlap at all with the factual bases of this lawsuit. See generally
Pohl’s Federal Counterclaim, attached as Exhaibit 2 to the Motion. To disguise this fact, Kassab
impermissibly focuses on the “form of action,” noting that Pohl “alleged theft” in the
Counterclaim. See Motion at 14. Heowever, the factual basis for that claim in the Federal Court
Case focuses entirely on impropefr billing and charging of expenses by Precision, not the theft of
personal property at issue in ythis lawsuit. Compare Pohl’s Federal Counterclaim, at 2–5, attached
as Exhibit 2 to the MoCtion (discussing conversion of “funds”), with Amended Petition ¶¶ 20–26,
36–38 (discussing the conversion of Pohl’s “confidential information and property”).
Kassabf’fs citation to Pohl’s Federal Counterclaim does not show that the factual bases of
the two aUctions overlap or are the same; it instead demonstrates that the allegations before the
federal court were entirely separate from the allegations in this lawsuit. See Citizens Ins. Co. of
Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007) (discussing how courts look to the “gist of the
complaint”). Pohl’s claims do not arise out of the alleged fraudulent billing practices of entities
11
or individuals in the Federal Court Action. See generally Amended Petition. Pohl’s claims against
Kassab in this lawsuit arise out of the conversion and theft of personal property. See id.
Second, Kassab’s other piece of evidence is Pohl’s June 2018 affidavit filed in response to
a grievance complaint initiated by Kassab against Pohl. See Motion at 14–15 (citking to Exhibit 1
to the Motion). Kassab’s use of this affidavit is misleading because the affidlavit reflects Pohl’s
knowledge after the conclusion of the Federal Court Case. Nor does thce affidavit establish that
the basis of the two actions was the same. s
Kassab triumphantly notes that the affidavit alleges that sFavre (who was not a party to the
Federal Court Case) “appears [to have] eventually sold those items and the information therein to
[Kassab].” See Motion at 15 (quoting Exhibit 1 to the Motion) (alterations from Motion). This
allegation does not establish that Pohl could have brought his current claims in the Federal Court
Case. Pohl’s statement in June 2018—over aa year after the judgment in the Federal Court
Case—about what he believed occurred does not show that the conversion claim in this lawsuit
could have been brought years prior. e In fact, the testimony makes perfect sense, as Pohl filed this
lawsuit just months later, in Augufst 2018.29 Furthermore, even if Pohl did have this knowledge of
prior to the judgment in the Fyederal Court Case, that does not change the fact that the subject matter
of the Federal Court CaCse differs from the factual basis of this lawsuit. See Barr v. Resolution Tr.
Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (“A subsequent suit will be
barred if it arifs f es out of the same subject matter of a previous suit and which through the
exercise oUf diligence, could have been litigated in a prior suit.” (emphasis added)).
Kassab was not a party to the Federal Court Case, the Settlement Agreement or the
judgment. Ignoring the applicable Texas legal standard, Kassab simply asserts that he was in
29 See generally Pohl’s Original Petition, filed August 28, 2018.
12
privity with Precision. Assertions without evidence do not satisfy Kassab’s summary judgment
burden to establish each essential element of res judicata, and his argument fails. Kassab also fails
to demonstrate that the gist of the Federal Court Case overlaps with the present lawsuit, which is
also fatal to Kassab’s res judicata defense. Summary judgment is not available. k
C. The Attorney-Immunity Doctrine Does Not Apply. C l
Kassab contrives an argument that, as an attorney, he is immcune from liability for
converting the property of others and misappropriating trade secretss because after his wrongful
acquisition of property, he used that stolen information for the “sacquisition of clients and filing of
lawsuits.” See Motion at 20. Texas does not recognize any application of the attorney-immunity
doctrine outside of an attorney–client relationship, and Kassab’s wrongful conduct was not the
type of conduct an attorney uniquely engages in to discharge duties to a client. Kassab’s attorney-
immunity doctrine defense fails. a
The Texas Supreme Court has held that two inquiries are relevant to an attorney-immunity
defense: “the type of conduct at issuee and the existence of an attorney–client relationship at the
time.” Youngkin v. Hines, 546 Sf.W.3d 675, 683 (Tex. 2018). The claims against Kassab do not
fall within the attorney-immyunity doctrine because the conduct at issue does not qualify as “the
kind of conduct in whCich an attorney engages when discharging his duties to his client.” Canty
Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). Additionally, Kassab has not established
the existence offf an attorney–client relationship at the time of his wrongful conduct.
KUassab purchased the stolen information and then used it to solicit and advertise to Pohl’s
clients/prospective clients. See Motion at 18–19 (discussing what Kassab contends is the “basis
for Pohl’s lawsuit”). Kassab’s knowing purchase of stolen property prior to his representation of
a client is neither within the scope of his representation of a client nor is it an activity undertaken
13
in a “uniquely lawyerly capacity.” See Landry’s, 2021 WL 2021130, at *3. The use of the
information by Kassab to solicit and advertise to obtain clients is not within the scope of client
representation, because this conduct necessarily precedes the “meeting of the minds” between a
potential client and attorney necessary to form an attorney–client relationship. Seke Tanox, Inc. v.
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55 (Tex. Aplp.—Houston [14th
Dist.] 2003, pet. denied). c
Kassab’s reliance on the First Court of Appeal’s opinion (in wshich that court affirmed this
Court’s denial of his TCPA Motion) is misplaced. Kassab suggessts that the court’s conclusion that
his conduct “qualifies as statements or conduct that arose out of a commercial transaction
involving the type of legal services Kassab provides” demonstrates that his conduct is of the “kind”
that attorneys provide and is thus protected by the attorney-immunity doctrine. See Motion at 19–
20 (discussing Kassab v. Pohl, 612 S.W.3d 5a71, 578 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied)). Kassab’s argument conflates the appellate court’s discussion of the scope of a
commercial transaction with the scoepe of Kassab’s duties to a client. The fact that Kassab’s
conduct was part of a commerciafl transaction does not mean that it was both “within the scope of
client representation” and wyas “not foreign to the duties of a lawyer.” Youngkin, 546 S.W.3d at
682. C
Kassab also failed to establish or provide any evidence of “the existence of an attorney–
client relationsfhfip at the time” of his wrongful conduct. Youngkin, 546 S.W.3d at 683. Kassab
attempts Uto obfuscate his inability to provide evidence of this essential fact by discussing how the
attorney-immunity doctrine can apply “prior to any litigation.” See Motion at 19. While the
doctrine can apply prior to litigation, that is not relevant. Pohl asserts claims for conduct, not just
before litigation, but before Kassab had a single client with whom he could have the requisite
14
attorney–client relationship. See, e.g., Amended Petition ¶ 29 (discussing how Kassab used “the
stolen confidential information and property” to subsequentially solicit “clients/prospective clients
to act as plaintiffs”); see also Tanox, 105 S.W.3d at 254–55 (noting how attorney–client
relationship cannot be formed prior to a “meeting of the minds”). k
In sum, Kassab cannot show that his wrongful actions were “within lthe scope of client
representation” and were “not foreign to the duties of a lawyer.” Youngckin, 546 S.W.3d at 682.
In other words, Kassab is entitled to immunity only if he can establishs as a matter of law that when
he engaged in his alleged wrongful acts, he was acting nots only within the scope of client
representation, but that there was something “particular to ‘the office, professional training, skill,
and authority of an attorney’ about” his alleged wrongful conduct. See Landry’s, Inc. v. Animal
Legal Def. Fund, --- S.W.3d ---, 19-0036, 2021 WL 2021130, at *3, *8 (Tex. May 21, 2021)
(citation omitted). Kassab has not shown thisa. See Motion at 17–20.
Because Kassab did not provide evidence of the existence of an attorney–client relationship
at the time of his wrongful actiones and that those actions were within the scope of his
representation, his request for sufmmary judgment on the attorney-immunity doctrine must be
denied. The fact that his wryongful conduct of purchasing stolen information was not the type of
conduct undertaken in Ca “uniquely lawyerly capacity” only further supports this conclusion.
III. CONCLUSION
For thef fforegoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfuUlly request that Kassab’s Motion be in all respects denied.
15
Dated: July 26, 2021 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 26th day of July, 2021.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
16"
15,2018-12-26,RSP,Pohl,Pohl’s response to supp. TCPA motion,"Pohl's combined notice of mandatory stay, response in opposition to motion for leave to file late TCPA motion, and response in opposition to Favre/Precision's TCPA Motion to Dismiss","Filed December 26, 2018 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Filed after Kassab's TCPA motion was denied by operation of law and Kassab noticed an interlocutory appeal on December 18, 2018. Pohl argues a mandatory stay bars consideration of the Favre/Precision TCPA motion. This response addresses both the timeliness of the Favre/Precision motion (filed after the 60-day TCPA deadline) and the merits of the TCPA dismissal arguments.",TCPA-1,N/A,Phase 1,2018-12-26_RSP_Pohl-Response-to-Supp-MTD-TCPA_FILED.pdf,Deny the Motion for Leave to file late TCPA motion; deny the Motion to Dismiss as untimely and on the merits; deny attorney's fees,"12/26/2018 11:52 AM
Chris Daniel - District Clerk Harris County
Envelope No. 29957412
By: Deandra Mosley
Filed: 12/26/2018 11:52 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, § D
LLP d/b/a BAKER NICHOLSON LAW § s 
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL’S
NOTICE OF MANDATORY STAY OF ALL PROCEEDINGS, RESPONSE IN
OPPOSITION TO MOTION FOR LEAVEl TO FILE MOTION TO DISMISS, AND
RESPONSE IN OPPOSITION TO aDEFENDANTS’ MOTION TO DISMISS
Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl (collectively, “Pohl”) provide
this notice that all proceedings are staeyed, respond in opposition to the Motion for Leave to File a
Motion to Dismiss filed by Defenfdants Scott Favre (“Mr. Favre”), Scott M. Favre Public Adjuster,
LLC (“Favre”), and Precisioyn Marketing Group, LLC (“Precision”) (collectively, “Defendants”),
and respond in oppositCion to the Defendants’ Motion to Dismiss (the “Motion”).
In light of the filing of an interlocutory appeal, this case is currently subject to a mandatory
stay, precludinfgf the Court’s consideration of the Motion. In addition, the Motion was not timely
filed andU should be denied for that reason. Finally, the Motion purports to find its basis in the
Texas Citizens’ Participation Act, Texas Civil Practice and Remedies Code Section 27.001 et. seq.
(“TCPA”), but the TCPA does not apply to Pohl’s claims, and even if it did, the Motion would
fail.
THIS CASE IS SUBJECT TO A MANDATORY STAY OF ALL PROCEEDINGS
Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm (“Kassab”) moved to dismiss the claims against Kassab by a kmotion filed on
October 24, 2018. That motion was overruled by operation of law, and Kassabl noticed an appeal
of that denial on December 18, 2018. Kassab’s notice of appeal gave risce to a mandatory stay of
“all other proceedings in the trial court pending resolution of that asppeal.” TEX. CIV. PRAC. &
REM. CODE § 51.014(b). The stay applies to all of the “trial csourt’s proceedings, including all
discovery.” In re Roser, 14-16-00065-CV, 2016 WL 2605686, at *1 (Tex. App.—Houston [14th
Dist.] May 5, 2016, orig. proceeding). The stay precludes this Court’s consideration of the Motion.
See In re Texas Educ. Agency, 441 S.W.3d 747, 750 (Tex. App.—Austin 2014, orig. proceeding.)
(“Conducting hearings and signing the challenaged orders denying supersedeas was an abuse of the
district court’s discretion because it violated the automatic stay of ‘all other proceedings in the trial
court’ under section 51.014(b).”). Tehe mandatory stay of section 51.014(b) prevents the Court
from considering the Motion, or ftaking any other action, until the appeal is resolved. See In re
Bliss & Glennon, Inc., 1-13-y00320-CV, 2014 WL 50831, at *2 (Tex. App.—Houston [1st Dist.]
Jan. 7, 2014, orig. proCceeding) (finding abuse of discretion and granting mandamus relief after
trial court took action during a mandatory stay under section 51.014(b)).
So longf fas the appeal of the denial of Kassab’s TCPA motion to dismiss remains pending,
this CourUt must stay all proceedings, including a hearing on the Motion. Any action taken in
violation of the stay will be voidable. See Roccaforte v. Jefferson County, 341 S.W.3d 919, 923
(Tex. 2011) (noting that a trial court’s actions taken in violation of section 51.014(b) are “voidable,
not void”).
II.
THE COURT SHOULD DENY DEFENDANTS’ MOTION FOR LEAVE TO FILE
THEIR MOTION OUT OF TIME
The TCPA supplies a deadline for filing: “A motion to dismiss a legal action under this
section must be filed not later than the 60th day after the date of service of the leegal action.” TEX.
CIV. PRAC. & REM. CODE § 27.003(b). The 60-day period begins to run upon
service of the original
petition and is not reset by the filing of amended petitions. See Bachararch v. Garcia, 485 S.W.3d
600, 602 (Tex. App.—Houston [14th Dist.] 2016, no pet.). D
Defendants acknowledge in their Motion for Leave thast they filed their Motion to Dismiss
after the deadline had passed. See Motion for Leave at 1.r While a showing of good cause would
permit this Court to allow an out-of-time filing, Defendants failed to request an extension within
the requisite sixty-day period and have failed to lmake such a showing of good cause. TEX. CIV.
PRAC. & REM. CODE § 27.003(b) (“court mMay extend the time to file a motion under this section
on a showing of good cause.” (emphasis added)). The term “showing” indicates that “proof” is
involved and that good cause will be “establish[ed] through evidence and argument.” See Bryan
A. Garner, Black’s Law Dictionary (10th ed. 2014) (defining “showing”).
Defendants attempt but fail to make any showing of good cause. Defendants provide no
explanation for the failure to file timely and therefore no basis on which to rest a finding of good
cause. Instead, cDefendants ask the Court to find that the late filing could not have been
“intentional” because they “had nothing to gain by filing the Motion after the deadline.” See
Motion for Leave at 3. In fact, Defendants did gain something by filing late; because the Court
conducted the hearing on Kassab’s TCPA Motion to Dismiss on November 5, 2018, Defendants
were able to tailor their Motion in response to the Court’s reaction to Kassab’s Motion.
Additionally, even if Defendants did not “gain” anything by a late filing, this is not
evidence of an absence of intent; it is merely a suggestion of an absence of motive. Defendants
have not provided any support for their position that the delay was for good cause.
Defendants similarly have provided no support for their argument that thek late filing was
not the result of conscious indifference. They argue only that the Court shoulld find that counsel
was not consciously indifferent because the filing was only three days clate. See id. Favre had
sixty days within which to file his motion, and his co-defendant Kasssab filed and served a TCPA
motion to dismiss on the fortieth day of that period.1 Kassab’s fsiling would have alerted a careful
lawyer to the impending deadline for his own filing. Defendants’ failure to make a timely filing
after that reminder actually suggests conscious indifference. See Wheeler v. Green, 157 S.W.3d
439, 442 n.1 (Tex. 2005) (characterizing a lawyer’s failure to meet a deadline as an “elementary
mistake” that could warrant a conclusion of inatent or conscious indifference).
Given the absence of any evidence to support their claim for good cause, Defendants’
Motion for Leave should be denied. Peohl respectfully requests that the Court deny the Motion for
Leave and decline to hear the Moftion to Dismiss as untimely.
y III.
RESPCONSE IN OPPOSITION TO MOTION TO DISMISS
A. Background
Defendfafnts, with Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law
Firm’s (cUollectively “Nicholson”) assistance, illegally sold Pohl’s stolen property to defendant
Lance Kassab for $250,000. Through this purchase, Kassab obtained the stolen names, addresses,
and in some instances actual confidential client files of Pohl’s former and potential clients so that
1 Favre was served on September 14, and Kassab filed his motion to dismiss on October 24, 2018.
Kassab could solicit those clients to assert barratry claims. To vindicate his rights, Pohl filed suit
on August 28, 2018. Since the initiation of this case, Kassab and Nicholson have already sought
dismissal of the claims against them; now Defendants ask the Court to hold that their actions in
selling and actually providing the stolen materials are protected by the TCPA. k
In an attempt to contort the application of the TCPA and delay this lalwsuit, Defendants
assert that the TCPA applies to Pohl’s causes of action for conversion of cconfidential information,
misappropriation of trade secrets, and conspiracy without sustaining tsheir burden of demonstrating
why. Contrary to Defendants’ arguments, Pohl’s claims do not starget Defendants for the exercise
of any rights of free speech, petition, or association. Pohl brings claims to hold Defendants
responsible for their wrongful conversion of Pohl’s information and misappropriation of trade
secrets, together with their participation in a conspiracy to commit both torts. The claims on their
face do not implicate the TCPA, and the inquiary should end there.
Defendants have the burden of demonstrating the applicability of the TCPA by a
preponderance of the evidence. See LeFMC Enterprises, LLC v. Baker, 546 S.W. 3d 893, 897 (Tex.
App.—Houston [1st Dist.] 2018,f pet. denied). In spite of this requirement, Defendants offer no
evidence of any kind to suppyort their position that the legal action is based on, relates to or is in
response to DefendantsC’ exercise of any protected right. Instead, Defendants, relying entirely on
non-binding precedent, simply argue that the TCPA necessarily applies to any claim for theft of
trade secrets, cfofnversion, and conspiracy, without examining those claims as they are asserted in
this case.U
Even if Defendants had demonstrated by a preponderance of the evidence that the TCPA
applies, Defendants’ Motion would nevertheless fail. Pohl’s suit is exempt from the TCPA by
virtue of the commercial exception to that statute. See TEX. CIV. PRAC. & REM. CODE § 27.010(b).
The communications at issue with Defendants arose out of a transaction involving the types of
goods and services Precision provides. Precision was primarily engaged in the business of
providing goods and services related to marketing lists, including those for potential customers—
like the converted trade secret information at issue here. The intended audikence for those
communications was Kassab and Montague, who eventually purchased the stollen information. In
a similar fashion, through the combined ownership and control interests inc Precision, which places
them in charge of Precision’s business, Mr. Favre and Favre’s condusct also falls squarely into the
commercial speech exception. s 
Although it is clear that the TCPA does not apply to Pohl’s claims, Pohl fully sets forth his
prima facie case for each element of his causes of action. The pleadings and the affidavits Pohl
supplies can leave no question that he has satisfied the second prong of the TCPA analysis.
Defendants argue but fails to conclusively estaablish the affirmative defense of limitations, which
does not bar Pohl’s claims. 
B. Defendant’s Motion Shoulde Be Denied
The Texas Legislature enfacted the TCPA “to encourage and safeguard the constitutional
rights of persons to petition, sypeak freely, associate freely, and otherwise participate in government
to the maximum extenCt permitted by law and, at the same time, protect the rights of a person to
file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002
(emphasis addefdf). The TCPA is intended to identify and dispose of lawsuits that are “designed to
chill FirstU Amendment Rights, not to dismiss meritorious lawsuits.” In re Lipsky, 460 S.W.3d 579,
589 (Tex. 2015).
“Courts use a ‘two-step procedure to expedite the dismissal of claims brought to intimidate
or to silence a defendant’s exercise of these First Amendment rights.’” Wayne Dolcefino &
Dolcefino Communications, LLC v. Cypress Creek EMS, 540 S.W.3d 194, 198 (Tex. App.—
Houston [1st Dist.] 2017, no pet.) (quoting ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895,
898 (Tex. 2017)). The first step of the TCPA analysis requires that the movant establish by “a
preponderance of evidence that the suit he is seeking to dismiss ‘is based on, relkates to, or is in
response to the [movant’s] exercise of: (1) the right of free speech; (2) the righlt to petition; or (3)
the right of association.’” Id. (alterations in original) (quoting TEX. CIVc. PRAC. & REM. CODE §
27.003). s
If the movant sustains its burden of demonstrating by a psreponderance of the evidence that
the claims asserted in the petition fall within the ambit of the TCPA, and only then, the court turns
to the second step in the process. That step shifts the burden to the non-movant to provide by clear
and specific evidence a prima facie case supporting the elements of its claim. TEX. CIV. PRAC. &
REM. CODE § 27.005(c). In examining awhether a plaintiff has sustained its burden of
demonstrating a prima facie case, a court is obligated to consider “the pleadings and supporting
and opposing affidavits stating the facets on which the liability or defense is based.” Id. § 27.006(a).
A prima facie case is established wfhen the pleadings and evidence supply the “‘minimum quantum
of evidence necessary to suypport a rational inference that the allegation of fact is true.’” In re
Lipsky, 460 S.W.3d atC 590 (quoting In re E.I DuPont de Nemours & Co., 136 S.W.3d 218, 223
(Tex. 2004)).
As set ffofrth below, neither of the two prongs necessary to dismiss claims under the TCPA
are satisfiUed here, and Defendants’ Motion should be denied.
1. Pohl’s allegations on their face do not implicate the TCPA
To determine whether Defendants have proved to the Court by a preponderance of the
evidence that the TCPA applies to Pohl’s claims, the Court should start with the most recent
petition to determine the alleged conduct that forms the basis of the legal action. See Hersh v.
Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (the “basis of a legal action is not determined by the
defendant’s admissions or denials but by the plaintiff’s allegations”). Courts “do not blindly accept
attempts by the [defendants] to characterize [plaintiff’s] claims as implicakting protected
expression.” Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2l015, pet. dism’d).
Instead, courts should “favor[] the conclusion that [the plaintiff’s] claimcs are not predicated on
protected expression.” Id. Further, “any activities by the [defendsants] that are not a factual
predicate for [the plaintiff’s] claims are simply not pertinent to tshe inquiry.” Id.
A movant under the TCPA must establish “a connection between the claims in the lawsuit
and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. In conducting this
review, the Court must view the evidence “in the light most favorable to the nonmovant.” Id. at
199. The Court’s inquiry should focus on (1a) what conduct forms the factual bases for Pohl’s
claims, based on the pleadings and evidence viewed in the light most favorable to him, and (2) the
extent to which that conduct is, as ae matter of law, are protected expression within the TCPA’s
definition. Sloat, 513 S.W.3d at f504.
Examining each of Pyohl’s claims against Defendants makes clear that they are not subject
to the TCPA. As PohlC’s First Amended Petition makes clear, Defendants engaged in conversion
through the act and a participation in Precision’s sale of stolen information to Kassab.2 Defendants’
liability for thisf f wrongful conduct is not based on facts related to the exercise of the rights of free
speech, pUetition, or association. Instead, their liability is based on their conduct of facilitating the
sale and the actual selling of the stolen materials.
2 See Amended Petition at ¶¶ 21–23.
Similarly, Pohl’s TUTSA claim is based on Defendants’ conduct in misappropriating trade
secrets through their sale to Kassab. For the same reasons as above, the factual basis of liability
for this claim does not trigger protections under the TCPA.
Pohl’s conspiracy claim involves Defendants’ overt acts in selling and Pohkl’s trade secrets
and other proprietary information.3 Yet again, nothing in the factual basis of lialbility provided for
this claim is based on or targets Defendants for the exercise of their rightsc of free speech, petition,
or association. s
Pohl has also asserted a claim for breach of contract agsainst Defendants. See Amended
Petition ¶ 35. Defendants have failed to seek the dismissal of the breach of contract claim in their
Motion. See generally Motion (containing no reference or discussion of the breach of contract
claim). Accordingly, Pohl’s breach of contract claim cannot be dismissed.
For all four of Pohl’s claims against aDefendants, the theory of liability is predicated on
wrongful acts, not protected speech or conduct. Pohl brought this lawsuit to vindicate his rights,
and not in response to or based upone any TCPA protected conduct. The pleadings and evidence
the Court must use to determine fif the TCPA applies make this clear. The Texas Supreme Court
has held that the petition is thye “best and all-sufficient evidence of the nature of the action.” Hersh
v. Tatum, 526 S.W.3d C462, 467 (Tex. 2017) (quoting Stockyards Nat. Bank v. Maples, 95 S.W.2d
1300, 1302 (Tex. Comm’n App. 1936)), and Pohl’s Amended Petition establishes that the nature
of the action dof fes not implicate the TCPA.
2.U Defendants have not sustained their burden of demonstrating the applicability
of the TCPA to Pohl’s claims.
As the movants, Defendants have the burden to show by a preponderance of the evidence
that Pohl’s claims are “based on, relate[] to, or [are] in response to [the Defendants’] exercise of”
3 See Amended Petition ¶ 43. See id. ¶ 38.
some protected speech or act. TEX. CIV. PRAC. & REM. CODE § 27.005(b). As set forth above,
Pohl’s claims on their face do not support Defendants’ invocation of the TCPA, and Defendants
are required to show a “connection between the claims in the lawsuit and the alleged protected
conduct.” Wayne Dolcefino, 540 S.W.3d at 201. Also, the Defendants must demoknstrate that the
protected conduct on which the Defendants rely is connected to the “facts on wlhich the liability or
defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a). c
Defendants filed no evidentiary support for their Motion. Aslthough five exhibits were
attached to Favre’s Motion, those exhibits are not verified, and thse Court should decline to consider
them. Defendants have failed to establish by a preponderance of the evidence that Pohl’s claims
are based on any act or communication protected under the TCPA. Instead, Defendants make
sweeping generalizations about the case law and rely on recharacterizations of the allegations in
Pohl’s Amended Petition. Courts have explicaitly rejected this very tactic, holding that defendants
cannot rely on their own theories of what may have motivated a claim or what its underlying basis
might be in order to support a motione to dismiss under the TCPA. See Sloat, 513 S.W.3d at 504
(rejecting the defendant’s effort tfo “recast [the Plaintiff’s] petition as complaining principally” of
actions of protest instead of ythe actions on which the petition was based). Although Defendants
make conclusory asserCtions that Pohl’s claims are “based on” or are “in response to” their alleged
protected conduct, the Court may not “blindly accept” those characterizations of Pohl’s
allegations. Infsftead, the Court must keep in mind that there needs to “be a connection between the
claims inU the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201.
a. No Showing Was Made that the Right of Association is Implicated by Pohl’s Claims
Defendants make unsupported assertions that Pohl’s trade secret and conspiracy claims
implicate their right of association. See Motion at 4–6. Instead of carrying their burden to show
10
that Pohl’s specific claims implicate their right of association, Defendants’ argument confuses
necessary and sufficient conditions; they mistakenly believe that because the TCPA can apply to
a trade secrets claim that it must apply to theirs. That simply does not follow. Even with the heavy
reliance on non-binding authority to argue for their expansive view of the TCPAk’s applicability,
Defendants are still unable to support this conclusion. l
The Motion cites the same two cases (both non-binding) discussicng the application of the
TCPA to cases involving trade secrets as were discussed in the Nichoslson Motion. See Motion at
4–5; Nicholson Motion at 4–5. Although it is certainly possibles for the TCPA to apply to a trade
secrets case, Defendants fail to provide any support for the notion that in every case, the mere
assertion of a trade secrets claim necessarily implicates the TCPA. To suggest that it does leads
to the absurd conclusion that instead of modifying trade secrets procedure directly, the Texas
Legislature decided to modify the administraation of all trade secrets cases through a statute that
does not even reference or deal with trade secrets.
The Motion does not provide eany evidence or even a quote from the Petition to argue that
Pohl’s trade secrets claims are anfalogous to those at issue in the cases cited. Instead, Defendants
rely on generic assertions thayt the TCPA must apply in this case as well. Defendants are required
to provide more to sCustain their burden of demonstrating the statute’s applicability by a
preponderance of the evidence.
Similarflfy, the Motion fails to carry its burden to show that the TCPA applies to Pohl’s
claim of cUonspiracy. Ignoring the fact that Defendants rely heavily on non-binding authority, there
is yet again a failure by the Defendants to carry their burden. Other than a single citation to the
Original Petition (which merely confirms that a civil conspiracy claim was made), no evidence is
provided to the Court at all—let alone evidence sufficient to support the application of the TCPA
11
to this claim. Defendants yet again relies on the mere existence of a conspiracy claim to trigger
the application of the TCPA. No legal authority is provided to support this idea. And again, it
would lead to ridiculous results for this Court to hold that Defendants can take advantage of the
TCPA merely by pointing out that a conspiracy claim was made, without also esktablishing by a
preponderance of the evidence that the factual basis of the claim implicates thel TCPA.
b. No Showing Was Made that the Right to Free Speech is Implicatecd by Pohl’s Claims
The Motion’s arguments related to free speech focus not on sPohl’s claims, but rather on
the Defendants’ conduct subsequent to engaging in the wrongfusl acts that form the basis of Pohl’s
claims. The problem with this approach should be immediately apparent to this Court. To allow
this to trigger the TCPA would allow Defendants to manufacture TCPA applicability. Defendants
could engage in wrongful conduct and then simply undertake activities afterwards that involve
speech or association to ensure that the TCPAa applies to claims brought against them. This cannot
be the way the TCPA works, and it is not the way it works.
In this case, the Defendanets are not being sued for bringing barratry claims or
communicating about alleged attforney misconduct. Defendants are being sued for selling stolen
trade secrets. This is not a ysituation where a plaintiff is suing defendants regarding defamation
related to their commuCnications and complaints about barratry. Defendants’ conduct subsequent
to their sale of the stolen trade secrets is not the basis of their liability. Defendants cannot carry
their burden tof fshow that Pohl’s claims implicate their free speech rights. Nothing in the four
paragraphUs of Pohl’s Original Petition cited by the Motion show that Pohl’s claims are based on
communications by Defendants that implicate their right to free speech. See Motion at 7–8 (citing
paragraphs 19–23 of Pohl’s Original Petition).
12
It should not be surprising that Defendants’ Motion does not discuss Pohl’s actual claims
in its arguments—to do so would illustrate that they are not based on Defendants exercising any
free speech rights. Defendants’ wholesale failure to support by a preponderance of the evidence
their position that the TCPA applies is fatal to the Motion. The Court should denyk the Motion on
that basis alone. l
3. Even if the TCPA otherwise applies, the commerciacl exception precludes
dismissal here. r
Even if Defendants had sustained their initial burden to showD the applicability of the TCPA,
the commercial exception to its application applies to Pohl’s cslaims. The TCPA provides:
This chapter does not apply to a legal action brorught against a person primarily
engaged in the business of selling or leasing goods or services, if the statement or
conduct arises out of the sale or lease of goods, services, or an insurance product,
insurance services, or a commercial transaction in which the intended audience is
an actual or potential buyer or customer. l
TEX. CIV. PRAC. & REM. CODE § 27.010(bM). The Texas Supreme Court has interpreted this as
requiring the following four-part test:
(1) the defendant was primarily engaged in the business of selling or leasing goods
[or services], (2) the defefndant made the statement or engaged in the conduct on
which the claim is based in the defendant’s capacity as a seller or lessor of those
goods or services, (3y) the statement or conduct at issue arose out of a commercial
transaction involving the kind of goods or services the defendant provides, and (4)
the intended aCudience of the statement or conduct were actual or potential
customers of the defendant for the kind of goods or services the defendant provides.
Castleman v. Intecrnet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018).
It is notable that the Motion does not even attempt to claim that the commercial speech
exception to the TCPA does not apply to Precision. See Motion at 9–12. The allegations against
Precision are precisely the situation that the commercial speech exception was made for: (1) As a
marketing firm, Precision is primarily engaged in the business of providing goods and services
related to marketing lists, including those for potential customers—like the converted trade secret
13
information at issue here; (2) Precisions’ conversion and sale of Pohl’s trade secrets was done in
its capacity as a seller of its marketing goods and services; (3) the conversion and sale of Pohl’s
trade secrets was a commercial transaction involving the marketing goods and services Precision
provides; and (4) Precision’s intended audience for that conduct was its actual cukstomer, Kassab
as the purchaser of the converted trade secrets. All four elements of Castlemanl are clearly met.
In a similar fashion, through the combined ownership and controlc of Precision, Mr. Favre
and Favre’s conduct also fall squarely into the commercial speech esxception. See Castleman v.
Internet Money Ltd., 546 S.W.3d 684, 689 (Tex. 2018) (discusssing how the “capacity” of the
person is relevant to whether the person was primarily engaged in selling goods or services). The
basis of Mr. Favre and Favre’s liability in this case stems from their actions taken in their capacity
as owners and managers of Precision.
The Motion attempts to shift away froma the commercial speech exception by distinguishing
between other activities undertaken by Mr. Favre and Favre (such as public adjusting) and the
marketing activities of Precision. Seee Motion at 10–12. However, Castleman makes clear that it
is possible to for both Mr. Favref and Favre to have multiple capacities, including ones that are
primarily engaged in selling ygoods or services.
4. There iCs clear and specific evidence demonstrating a prima facie case.
Defendants’ failure to demonstrate the applicability of the TCPA relieves Pohl of any
burden of demfofnstrating a prima facie case of his claims. Furthermore, Pohl has established the
applicabiUlity of the commercial exception to the TCPA, which likewise obviates the need to show
a prima facie case. Pohl nevertheless sets forth below the clear and specific evidence found in his
14
Amended Petition and the attached affidavits for each element of the claims he has asserted against
Defendants.4
In examining whether a plaintiff has sustained its burden of demonstrating a prima facie
case, the Court is obligated to consider “the pleadings and supporting and oppkosing affidavits
stating the facts on which the liability or defense is based.” TEX. CIV. PRCAlC. & REM. CODE §
27.006(a). Where a plaintiff provides enough detail in his pleading to “schow the factual basis for
its claim,” such a pleading “is sufficient to resist a TCPA motion tos dismiss.” In re Lipsky, 460
S.W.3d 579, 591 (Tex. 2015). A prima facie case is establisheds when the pleadings and evidence
supply the “‘minimum quantum of evidence necessary to support a rational inference that the
allegation of fact is true.’” Id. at 590 (quoting from In re E.I DuPont de Nemours & Co., 136
S.W.3d 218, 223 (Tex. 2004)).
The nonmovant’s evidence of a primaa facie case must be “clear and specific” in order to
avoid dismissal, id. § 27.005(c), although the statute does not define “clear and specific.” The
Texas Supreme Court, in Lipsky, refeerenced “clear” as meaning “‘unambiguous,’ ‘sure,’ or ‘free
from doubt,’” and “specific” as “f‘explicit’ or ‘relating to a particular named thing.’” Lipsky, 460
S.W.3d at 590; see also S &y S Emergency Training Sols., Inc. v. Elliott, ---S.W.3d---, 17-0628,
2018 WL 6711322, at C*3 (Tex. Dec. 21, 2018). The Court has also held that “direct evidence of
damages is not required, but the evidence must be sufficient to allow a rational inference that some
damages naturaf flly flowed from the defendant’s conduct. See Lipsky, 460 S.W.3d. at 591, 592.
InU his Amended Petition, Pohl asserts four causes of action against Defendants: (1) breach
of contract; (2) conversion; (3) violations of the Texas Uniform Trade Secrets Act, Texas Civil
Practices and Remedies Code Chapter 134A (“TUTSA”); and (4) conspiracy to commit conversion
4 In support of this Response, Pohl has attached two sworn documents, the affidavit of Billy Shepherd, Exhibit A, and
the declaration of Michael Pohl, Exhibit B.
15
and to violate TUTSA. Pohl sets forth in detail below the clear and specific evidence
demonstrating a prima facie case of each of these claims.
Because Defendants have not moved to dismiss Pohl’s breach of contract claim, Pohl is
not required to provide a prima facie case of that claim. Pohl can nevertheless ekstablish such a
prima facie case by demonstrating the existence of the Settlement Agreement land release, Pohl’s
performance under that agreement, Defendants’ failure to perform under thcat Agreement by selling
Pohl’s confidential materials to Kassab; and Pohl’s damages resultisng from that sale. See, e.g.,
Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636s (Tex. App.—Houston [1st Dist.]
2002, pet. denied) (setting forth elements of a breach of contract claim).
The elements of the conversion claim are that (a) Pohl owned and owns certain property
and information; and (b) Defendants wrongfully exercised dominion and control over Pohl’s
property in contravention of Pohl’s rights aby participating in the sale of the property and
information to Kassab for $250,000. The elements of a violation of TUTSA against Defendants
are that Defendants, without Pohl’s econsent knowingly participated in the sale of Pohl’s trade
secrets to Kassab for $250,000. f Finally, the conspiracy claim alleges that Defendants acted in
combination with other defyendants and committed overt acts toward unlawful conversion and
misappropriation. C
Pohl’s pleading—the First Amended Petition—sets forth in abundant detail each element
of each cause foff action. Pohl alleges that he hired defendant Precision Marketing Group, LLC
(“PrecisioUn”) to assist him in gathering and preserving evidence and liaise with Pohl’s clients.5
Precision thereby gained access to Pohl’s confidential and proprietary information relating to his
client’s identity and their detailed contact information.6 The information and property also included
5 Amended Petition ¶¶ 19–20.
6 Id. ¶ 20.
16
actual attorney-client fee agreements with clients/prospective clients, compilations of clients, other
confidential communications between the clients/prospective clients and Pohl, specialized legal forms
that had been prepared in compliance with various state laws after consultation with local counsel in
those jurisdictions, Pohl’s proprietary administrative client forms, fee-agreement fokrms prepared in
accordance with the laws of various states, internal emails, propriety marketing inlformation and other
trade secrets, and other work product relating claims of Pohl’s clients cand prospective clients.7
Despite Defendants’ claims to the contrary, these materials belonged tos Pohl, not Precision.
After a dispute arose between Pohl and Defendants concesrning the Defendants’ provision of
services, Pohl, Precision and Mr. Favre entered into a binding Settlement Agreement dated late April
and early May 2017.8 The Settlement Agreement expressly provides that Mr. Favre and Precision
will return to Pohl all originals and all copies of documents in their and their counsel’s possession,
custody, or control that concern or identify all apast or current clients or prospective clients of Pohl,
and that Mr. Favre and Precision will delete all such electronically stored information.9 The
Settlement Agreement also providede that Mr. Favre and Precision would not cause any claim,
complain, or legal action to be filefd f or made against Pohl.10 Defendants breached each aspect of the
Settlement Agreement by failying to return or delete the materials as promised and by causing claims,
complaints and legal acCtions—not their own—to be filed and prosecuted against Pohl.11 The very
existence of the cases that Kassab, Montague, and Nicholson are pursuing against Pohl is a breach of
the Settlement Af fgreement.12
7 Id.
8 Id. ¶¶ 30, 31.
9 Id. ¶ 31.
10 Id. ¶ 32.
11 Id. ¶ 32.
12 Id. ¶ 32.
17
Defendants, with the assistance of Nicholson who helped broker the transaction and
actually provided Pohl’s stolen information and property to Kassab, secretly entered into an
agreement with Kassab and defendants F. Douglas Montague III and Montague Pittman &
Varnado, P.A. (collectively, “Montague”) to sell Pohl’s stolen confidential inkformation and
property.13 Defendants, with the assistance of Nicholson, struck a rich balrgain; Kassab and
Montague paid Favre $250,000.00 in cash together with substantial bonuses.c14 Kassab and Montague
knew that the information and property that they were purchasing was sstolen and not Favre’s and/or
Nicholson’s to sell.15 Defendants and Nicholson likewise knews that the information and property
that they were selling or helping to sell was stolen and belonged to Pohl.16
The sale and unlawful disclosure of Pohl’s proprietary, confidential and trade secret
information was made even more egregious by the fact that from the outset of the relationship between
Pohl and Precision, Pohl made clear to Precisioan and its representatives the confidential nature of the
above listed information.17 Precision and its representatives expressed their understanding of the
confidential and proprietary nature of ethe information and that the information belonged to Pohl.18
In addition, as described afbove and in conjunction with the sale of Pohl’s information and
property to Kassab and Montaygue, all Defendants converted Pohl’s confidential information/property
by knowingly and uCnlawfully assuming and exercising dominion and control over that
information/property in a way that was inconsistent with Pohl’s ownership. Each of the Defendants,
individually andf f in combination with each other, misappropriated Pohl’s trade secrets in violation of
the TUTUSA by unlawfully obtaining and using Pohl’s confidential and trade secret
13 Id. ¶ 22–23.
14 Id. ¶ 23 & Exhibit B.
15 Id.
16 Id.
17 Id.¶ 25.
18 Id.
18
information/property in the sale of such information/property to Kassab and Montague and continuing
to use Pohl’s information and property to solicit cases against Pohl.19
These specific, detailed allegations of each element of breach of contract, conversion, theft
of trade secrets, and conspiracy are by themselves sufficient to set forth a prima fackie case meeting
the requirements of the TCPA. TEX. CIV. PRAC. & REM. CODE § 27.005(a); se
e allso Hicks v. Group
& Pension Administrators, Inc., 473 S.W.3d 518, 526 (Tex. App.—Corpucs Christi 2015, no pet.).
Although Pohl’s Amended Petition establishes a prima facie csase without the necessity for
further inquiry, Pohl provides additional evidence to supposrt his prima facie case against
Nicholson in the form of the attached affidavit of Billy Shepherd and the exhibits thereto, as well
as the declaration of Michael Pohl.
As quoted above, Kassab supplied an affidavit in which he admitted that he obtained from
Defendants and Nicholson information that iancluded the names and addresses of Pohl’s former
clients and prospective clients.20 
The admissions of both Kasesab and Nicholson make clear that it is not disputed that
Montague and Kassab bought inffo f rmation relating to Pohl’s client lists from Defendants.21 Most
elements of Pohl’s prima faycie case are therefore uncontroverted. The only controverted fact
involves ownership of Cthe materials, as Defendants claim that the materials belong to them, while
Pohl contends that the materials were his. This disputed fact is one as to which Pohl has provided
prima facie profoff.22
TUhe attached affidavits provide prima facie evidence of the following facts. Favre, the
Kassab Law Firm and Montague, Pittman and Varnado, P.A., represented by Nicholson, entered
19 Id. ¶ 33.
20 See page 2 of the Declaration of Lance Christopher Kassab.
21 Id.
22 Amended Petition ¶ 20; Declaration of Michael Pohl ¶¶ 4–6, attached as Exhibit B hereto.
19
into an Agreement, dated November 10, 2016, executed by Lance Kassab (the “Favre–Kassab
Agreement”).23 The Favre–Kassab Agreement contains many relevant provisions, including:
• That Kassab and Montague will pay Favre an hourly rate of $250, a large per-case fee,
and an “upfront advance pay retainer to Favre forin [sic] the amount of k$250,000 to be
credited against first fees earned by Favre. This retainer is fully eCarlned at the time of
payment and is not refundable. Subsequent hourly fees are not toc be credited against the
retainer.”24 s
• That Kassab and Montague “shall indemnify and hold hsarmless Favre for from [sic] any
and all costs he incurs in defending claims relatingg to an/or arising from the disclosure of
any client information where such claims areB asserted by . . . Michael Pohl. . . . Favre
certifies that he is not aware of any contractual or legal provision that prohibits him from
making such disclosure to [Kassab anad Montague].”25
• That the parties “agree that this Af greement is confidential and shall remain confidential
for all times.”26 e
On its face, the Favre–Kassab Afgreement proves that Kassab agreed to pay Favre an enormous
upfront payment of $250,000, together with substantial sums over time. The amount of the
payment alone is primaC facie evidence that Defendants knew that the confidential information and
material they were selling was not publicly known and that it belonged to Pohl.
The Favfre–Kassab Agreement also obligates Kassab to indemnify Favre from claims that
Pohl migUht bring—making clear that Nicholson and Favre contemplated that Pohl might assert
23 A copy of the Favre–Kassab Agreement is attached as Exhibit 3 to the Shepherd Affidavit, attached hereto as Exhibit
A, and also to the Amended Petition as Exhibit D.
24 See Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit, Exhibit A hereto, Exhibit D to the Amended
Petition, p. 1.
25 Id. p. 3.
26 Id.
20
such claims at the time he executed the agreement. What possible reason could there be for
Nicholson to require Kassab to indemnify if Defendants owned the materials and information that
was the subject of the Favre–Kassab Agreement? Why would indemnity be necessary if the
information and materials were publicly known? Again, these facts support Pohkl’s prima facie
case of misappropriation. l
Similarly, the requirement in the Favre–Kassab Agreement thcat the parties keep the
agreement confidential suggests that the parties understood that disclsosure of the existence of the
agreement and its terms might raise substantial issues. If thes materials and information were
publicly known and belonged to Defendants, what was the necessity for confidentiality? Each of
these facts supports Pohl’s allegation that the materials and information were trade secrets and that
Kassab knew that the confidential information and material he purchased from Favre was stolen.
Mr. Favre’s testimony regarding the paarties’ performance of the Favre–Kassab Agreement
provides additional support for Pohl’s contentions. In a hearing conducted on October 25, 2017
in Cause No. 1:14-cv-381-KS-JCG, Secott Walker, et al. v. Jimmy Williamson, et al., in the United
States District Court for the Sofuthern District of Mississippi, Southern Division (“Walker v.
Williamson Litigation”),27 Myr. Favre confirmed that Kassab, Montague or their firms had in fact
paid the $250,000 to FCavre.28 Mr. Favre testified that he did not sell attorney/client fee contracts
to Kassab and Mon a tague but instead gave them away to Nicholson.29 Mr. Favre acknowledged
that an email, fdfated December 7, 2016 and sent from Montague to Kassab and others, reflected
that Mr. FUavre had called to check that Kassab’s office had been receiving Dropbox deliveries of
27 A copy of the relevant portions of the October 25, 2017 hearing transcript in the Walker v. Williamson Litigation is
attached hereto and to the Amended Petition as Exhibit 2 to the Shepherd Affidavit.
28 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 63.
29 Id. at 92–93.
21
contracts over the last several days.30 Mr. Favre testified that between the time he received the
payment of $250,000 and April 2017, he had received no fees, provided no work and exchanged
no documents under the Favre–Kassab Agreement.31
Nicholson’s testimony contradicts Mr. Favre’s testimony in at least onke enlightening
way.32 Nicholson testified that Mr. Favre did not give her the Pohl fee conltracts; instead, she
believes he gave them to “one of her co-counsel in the Texas cases agcainst Mr. Pohl.”33 Mr.
Favre’s and Nicholson’s testimony and the emails about which they tsestify further support Pohl’s
prima facie case of intentional misappropriation, conversion sand conspiracy. The emails and
testimony confirm that Scott M. Favre, P.A. was in fact paid $250,000, and that Kassab and
Montague understood that they were to receive Dropbox deliveries of contracts. The large amount
of the payment to Favre, in advance of the delivery of contracts to the Dropbox and the absence of
any further work by Favre, supports a strong ainference that the payment was in fact in exchange
for the contracts and not for any future services. Mr. Favre’s testimony that he had given the
attorney/client fee contracts to Nichoelson and Nicholson’s disavowal of that testimony strongly
suggests that each witness hopesf to distance him or herself from the ultimate transfer to Kassab.
This contradiction supports Pyohl’s allegation that all parties to the Favre–Kassab Agreement knew
that the files and informCation being transferred had been converted or misappropriated.
As lawyers, Nicholson, Kassab, and Montague knew that the materials that were being
bought and soflfd included confidential information protected by the attorney–client privilege,
30 Id. at 95; see also email dated December 7, 2016, attached as Exhibit C to the Amended Petition.
31 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 121–27.
32 See Deposition of Tina Nicholson, dated November 27, 2017, attached as exhibit 5 to the Shepherd Affidavit at
65:11–66:10.
33 Id. at 66:7–9.
22
including actual attorney–client fee agreements.34 Mr. Favre has confirmed under oath that he
maintained the materials as confidential and protected them as valuable trade secrets.35
In sum, Pohl’s prima facie evidence in the form of both pleadings and affidavits
demonstrates each element of each of Pohl’s causes of action as set forth below: k
BREACH OF CONTRACT l
• Favre, Precision and Pohl entered into a binding agreemenct.36
• Pohl timely and fully performed that agreement.37 s
• Favre and Precision breached that agreement.38 s
• Pohl suffered damages.39 g
CONVERSION B
• The information and materials Deyfendants sold to Kassab was personal property
subject to conversion.40 a
• Pohl owned the informatiofn and materials Defendants sold.41
• Defendants wrongfully exercised dominion and control over the property.42
• Pohl has incurOred actual damages caused by Defendants’ conversion by at a
minimum hpis loss of the intrinsic value of the materials.43
34 Amended Petition ¶ 20.
35 See Affidavit off f Scott Favre, filed in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et
al., in the United States District Court for the Southern District of Mississippi, Southern Division, and attached as
Exhibit 7 to the Affidavit of Billy Shepherd.
36 Amended Petition ¶¶ 30, 31.
37 Amended Petition ¶ 35.
38 Amended Petition ¶¶ 32, 35.
39 Amended Petition ¶ 32, 35.
40 Amended Petition ¶¶ 20–21, 27; Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit; Email, Exhibit 4 to
the Shepherd Affidavit.
41 Amended Petition ¶¶ 20–21, 27, 38; Declaration of Michael Pohl ¶¶ 4–5.
42 Amended Petition ¶¶ 20, 21, 27; Declaration of Michael Pohl¶¶ 4–8.
43 Amended Petition ¶ 38; Favre Kassab Agreement, Exhibit 3 to Shepherd Affidavit (demonstrating that Kassab
placed a value on the materials of at least $250,000); Affidavit of Michael Pohl ¶¶ 5–7, 10, 12.
23
MISAPPROPRIATION OF TRADE SECRETS
• Pohl owned trade secrets.44
• Pohl maintained that information as a secret, taking substantial measures to
maintain its confidentiality.45 k
• The information has independent economic value from not beCin l g generally known
to, and not readily being ascertainable through proper mceans by, another person
who can obtain economic value from the disclosure or s use of the information.46
• Defendants misappropriated the trade secrets bsy participating in their sale with
knowledge that they had been acquired throgugh improper means—i.e., by theft.47
• The misappropriation damaged Pohl iBn the form of both actual loss and unjust
enrichment.48 y
• Defendants’ misappropriation a was willful and malicious.49
CONSPIRACY f
• Defendants were members of a combination of two or more persons.50
• The agreed objeOct of the combination was to accomplish the unlawful purposes of
conversion pand misappropriation of trade secrets.51
• Defendants and the other conspirators committed tortious overt acts to further the
objeict of the conspiracy.52
44 Amended Petition ¶¶ 20–21, 39; Declaration of Michael Pohl ¶¶ 4–5.
45 Amended Petition ¶ 39; Declaration of Michael Pohl ¶ 11.
46 Amended Petition ¶ 39; Declaration of Michael Pohl ¶ 12.
47 Amended Petition ¶¶ 40–41; Declaration of Michael Pohl ¶ 7.
48 Declaration of Michael Pohl ¶ 13.
49 Amended Petition ¶ 41; Declaration of Michael Pohl ¶¶ 5–8.
50 Amended Petition ¶¶ 33, 43.
51 Id. ¶ 43.
52 Id. ¶¶ 23, 27, 38, 43.
24
• Pohl suffered injury as a result.53
Pohl denies that Defendants have demonstrated by a preponderance of the evidence that
Pohl has asserted a legal action based on related to or in response to Defendants’ exercise of rights
to free speech, petition, or association. To the extent that the Court disagrees, Pokhl has provided
clear and specific evidence to support his petition, and the Court should denyC Dlefendants’ Motion.
5. Defendants cannot conclusively establish the defense ocf limitations.
Defendants argue that, even though Pohl may be able to establish a prima facie case, they
are still entitled to dismissal because they can establish by a prseponderance of the evidence each
essential element of the affirmative defense of limitations. This defense is not available, and
Defendants have not established it—let alone by a preponderance of the evidence.
The parties entered the Settlement Agreement in April and May 2017. Limitations for
breach of contract is four years. TEX. CIV. PaRAC. & REM. CODE § 16.051; Stine v. Stewart, 80
S.W.3d 586, 592 (Tex. 2002). The breach of contract claim is not time-barred.
As to the remainder of the claiems against Defendants, Kassab purchased the stolen material
from the Defendants by virtue of tfhe Favre–Kassab Agreement, which was executed on November
10, 2016, well under two yeayrs prior to the filing of this suit. Pohl’s claims against Defendants are
based on that purchase,C and no claim has a limitations period of less than two years. See TEX. CIV.
PRAC. & REM. CODE § 16.003(a) (two-year limitation period for conversion); TEX. CIV. PRAC. &
REM. CODE § 1f6.010(a) (three-year limitation period for TUTSA violations); Mayes v. Stewart,
316 S.W.U3d 715, 719 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Defendants contend that limitations bars this action because they engaged in wrongful
conduct more than four years ago. See Motion at 13–15. But, the Amended Petition makes clear
53 Amended Petition ¶ 43; Declaration of Michael Pohl ¶ 14.
25
that the wrongful conduct to which they refer is not the basis of this lawsuit. Furthermore, Pohl
was not aware of the claims in this case in the two year period prior to the filing of this case.
Declaration of Michael Pohl ¶ 9. Defendant has not established the defense of limitations and their
Motion to dismiss cannot be granted on that ground. k
C. Defendants Are Not Entitled to Attorney’s Fees l
Defendants are not entitled to an award of attorneys’ fees becausec their Motion should be
overruled. Furthermore, Defendants fail entirely to support their cslaim for fees. Defendants’
Motion mentions attorney’s fees precisely once. In the final ssentence, Defendants requests an
award of fees. Defendants provides no argument, and more to the point no evidentiary support for
an award of attorneys’ fees. Without an affidavit or other evidence proving the expenditure of fees
and the amount, the Court should decline to award fees in any amount. See Sullivan v. Abraham,
488 S.W.3d 294, 299–300 (Tex. 2016) (movaant has the burden of proof on fees, “‘includ[ing], at
a minimum, documentation of the services performed, who performed them and at what hourly
rate, when they were performed, ande how much time the work required.’” (citation omitted)). In
the absence of such proof, the Cofurt is not empowered to award fees.
y CONCLUSION
For the foregoiCng reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the Motion be in all respects denied.
26
Dated: December 26, 2018 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorneys for PlaintiDffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 26th day of December, 2018.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
27"
14,2018-11-30,AP,Pohl,Pohl’s 1st Amended Petition,"Pohl's First Amended Petition asserting four causes of action (breach of contract, conversion, TUTSA violations, civil conspiracy) against all defendants","Filed November 30, 2018 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Amended pleading filed approximately three months after the original petition (August 28, 2018). Filed during the pendency of Kassab's TCPA motion to dismiss. Adds detail to factual allegations and refines causes of action. This is the operative petition in Phase 1. Jury trial demanded.",PLEAD-1,N/A,Phase 1,2018-11-30_AP_Pohl-1st-Amended-Petition_FILED.pdf,Judgment against all defendants; actual damages within jurisdictional limits; injunctive relief under § 134A.003; exemplary damages under §§ 41.001 et seq. and 134A.004(b); attorney's fees under §§ 38.001 et seq. and 134A.005; pre-judgment and post-judgment interest; trial by jury,"11/30/2018 9:45 PM
Chris Daniel - District Clerk Harris County
Envelope No. 29415016
By: ARIONNE MCNEAL
Filed: 11/30/2018 9:45 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS MICHAEL POHL AND LAW OyFFICE OF MICHAEL A. POHL, PLLC’S
FIRST AMENDiED PETITION
fSUMMARY
1. Plaintiffs Michael Pcohl and Law Office of Michael A. Pohl, PLLC (sometimes
collectively “Pohl”) sue DefendOants Scott Favre and Scott M. Favre PA, LLC (collectively “Favre”);
Precision Marketing Groupp, LLC (“Precision”); Lance Christopher Kassab and Lance Christopher
Kassab, P.C. D/B/A The Kassab Law Firm (collectively “Kassab”); Tina Nicholson and Baker
Nicholson, LLP Di/B/A Baker Nicholson Law Firm (collectively “Nicholson”); and F. Douglas
Montague III oand Montague Pittman & Varnado, P.A. (collectively “Montague”). Favre, Precision,
Kassab, Nicholson, and Montague are collectively called “Defendants.”
2. Defendants engaged in a scheme pursuant to which they illegally obtained,
maintained, and used trade secrets and other confidential information and property belonging to
Pohl. Favre and Precision’s actions are in breach of a settlement agreement to which Pohl, Favre,
and Precision are parties, and all Defendants’ actions constitute the torts of conversion and
violations of the uniform trade secrets act, as well as conspiracy.
3. More specifically, Favre and Precision executed a settlement agreement with Pohl
pursuant to which they agreed to return to Pohl certain information in their andk their counsel’s
possession, custody, or control; to permanently delete such electronically-storeld information; and
not to cause any claim to be made or filed against Pohl. Favre and Precicsion also warranted that
they had not caused any suit or action to be filed against Pohl. Psohl fully complied with his
obligations under the agreement. Favre and Precision breachsed and continue to breach their
obligations under the agreement by causing claims to be made or filed against Pohl.
4. Defendants knowingly and illegally obtained and/or used confidential information
and property that belongs to Pohl, and exercised dominion and control over the information and
property in a manner inconsistent with Pohla’s rights of ownership—each of which constitutes
actionable conversion. 
5. The actions of each ofe the Defendants relative to the confidential information and
property that they obtained, mafintained, and used constitute misappropriation and violate the
Texas Uniform Trade Secretys Act. Tex. Civ. Prac. & Rem Code, § 134A.001, et seq. (“TUTSA”).
6. DefendaCnts entered into a combination with the object of unlawfully
misappropriating Pohl’s trade secrets and, in so doing, they engaged in one or more unlawful overt
acts, includinf fg stealing Pohl’s confidential information/property and using the
informatiUon/property for their own gain. Pohl has suffered damages as a proximate result of
Defendants’ conduct.
7. Pohl brings this action to recover damages and other relief for Defendants’ breach of
contract, conversion, violations of TUTSA, and conspiracy. Pohl seeks monetary relief in an amount
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over $1,000,000.00. All conditions precedent to Pohl maintaining this action and recovering from
Defendants have been performed or have occurred.
DEFENDANTS
8. Scott Favre is a nonresident individual who is a licensed public adjuskter in Texas and
who engages in business in Texas. He does not maintain a regular place of busliness in Texas or a
designated agent for service of process in Texas. Mr. Favre may be servced with citation and this
petition: (a) at his office address at 7044 Stennis Airport Road, Kiln, Misssissippi 39556; or (b) through
the Texas Secretary of State under Texas Civil Practice and Remsedies Code Sections 17.044(a)(1)
and (b).
9. Scott M. Favre PA, LLC is a nonresident limited liability company that engages in
business in Texas. It does not maintain a regular place of business in Texas or a designated agent for
service of process in Texas. Scott M. Favre PAa, may be served with citation and this petition: (a) by
serving Scott Favre, the person in charge of Scott M. Favre PA, LLC’s business, at the address of the
business, 7044 Stennis Airport Road, eKiln, Mississippi 39556; or (b) through the Texas Secretary of
State under Texas Civil Practice anfd Remedies Code Sections 17.044(a)(1) or (b).
10. Precision is a ynonresident limited liability company that engages in business in Texas.
It does not maintain a rCegular place of business in Texas or a designated agent for service of process
in Texas. Precision may be served with citation and this petition: (a) by serving Scott Favre, the
person in chargfef of Precision’s business, at 7044 Stennis Airport Road, Kiln, Mississippi 39556; or
(b) througUh the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections
17.044(a)(1) or (b).
-3-
11. Lance Christopher Kassab is an individual and resident of Texas. He is an attorney
who specializes in legal malpractice claims. He may be served with citation and this petition: (a)
at 1214 Elgin Street, Houston, Texas 77004; or (b) at 5314 Navarro Street, Houston, Texas 77056.
12. Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm is a Tekxas professional
corporation. It may be served with citation and this petition by serving its regilstered agent, Lance
Christopher Kassab: (a) at 1214 Elgin Street, Houston, Texas 77004; or (bc) at 5314 Navarro Street,
Houston, Texas 77056. s
13. Tina Nicholson is an individual and a resident ofs Texas. She is an attorney. Tina
Nicholson may be served with citation and this petition: (a) at 4306 Yoakum Blvd., Suite 400,
Houston, Texas 77006; or (b) at 1607 Dove Ridge Drive, Katy, Texas 77493.
14. Baker Nicholson, LLP D/B/A Baker Nicholson Law Firm is a Texas limited liability
partnership. It may be served with citation and athis petition: (a) by serving its partner, Allison Baker,
at 4306 Yoakum Blvd., Suite 400, Houston, Texas 77006; or (b) by serving its partner, Tina
Nicholson, at 4306 Yoakum Blvd., Sueite 400, Houston, Texas 77006.
15. F. Douglas Montagfue III is a nonresident individual who engages in business in Texas.
He does not maintain a regulayr place of business in Texas or a designated agent for service of process
in Texas. Mr. MontaguCe may be served with citation and this petition: (a) at his office address at 525
Main Street, Hattiesburg, Mississippi 39401; or (b) through the Texas Secretary of State under Texas
Civil Practice afnfd Remedies Code Sections 17.044(a)(1) or (b).
16U. Montague Pittman & Varnado, P.A. is a non-resident professional association that
engages in business in Texas. It does not maintain a regular place of business in Texas or a designated
agent for service of process in Texas. Montague Pittman & Varnado, P.A. may be served with citation
and this petition: (a) by serving F. Douglas Montague III, its registered agent for services of process
-4-
and the person in charge of its business, at 525 Main Street, Hattiesburg, Mississippi 39401; or (b)
through the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections
17.044(a) (1) or (b).
JURISDICTION/VENUE k
17. The damages that Pohl seeks in this case are within the jurisdicltional limits of this
Court. The Court has jurisdiction over Defendants because they have cthe necessary minimum
contacts with Texas, which include engaging in business in Texas, comsmitting torts in Texas and, as
to some of them, residing in Texas. Further, Favre and Precission contracted with Pohl, a Texas
resident at the time, for Pohl to perform the contract at issue in whole or in part in Texas. This case
arises out of business done in Texas by Defendants.
18. Venue is proper in Harris County under Texas Civil Practice and Remedies Code
Sections 15.002 and 15.062. a
BACKGROUND
19. Pohl is a lawyer who reepresented various persons and entities in claims arising from
motor vehicle accidents and the Bfritish Petroleum Deepwater Horizon oil spill. (See the attached
Declaration of Michael Pohl, yExhibit A, ¶ 3). Scott Favre, individually and/or through Scott M. Favre
PA, LLC, is the managiCng member of Precision, a public relations and marketing firm. Nicholson is
a lawyer who represented Favre and Precision, including for purposes of the settlement agreement
mentioned abovf fe as well as in facilitating the sale of Pohl’s confidential and proprietary information
and propeUrty to Kassab and Montague. At the time the settlement agreement was entered into and
still today, Nicholson was also Kassab and Montague’s co-counsel in connection with claims that
they are prosecuting against Pohl.
-5-
20. Pohl engaged Precision for a period of time to provide public relations services, to
gather and preserve evidence, and to screen and liaise with Pohl’s clients/prospective clients. While
working for Pohl, Precision gained access to Pohl’s confidential and proprietary information and
property, including trade secret materials, that included the identities of Pohl’s clikents/prospective
clients, as well as their detailed contact information. The information and prolperty also included
actual attorney–client fee agreements with clients/prospective clients, comcpilations of clients, other
confidential communications between the clients/prospective clients ands Pohl, specialized legal forms
that had been prepared in compliance with various state laws aftesr consultation with local counsel in
those jurisdictions, Pohl’s proprietary administrative client forms, fee-agreement forms prepared in
accordance with the laws of various states, internal emails, propriety marketing information and other
trade secrets, and other work product relating to claims of Pohl’s clients and prospective clients.
Despite Favre and Precision’s claims to the conatrary, these materials belonged to Pohl, not Precision.
Favre and Nicholson also ultimately gained access to the information.
21. Favre and Precision iellegally misappropriated Pohl’s proprietary and confidential
information and property describedf above, which included information about and/or communications
with as many as 10,000 or ymore of Pohl’s clients/prospective clients. Favre and Precision stole
physical copies of certaCin of the information, stole Pohl’s computers, and misappropriated electronic
data to which they had access through Precision’s work for Pohl. Favre, with Nicholson or with
Nicholson’s acftfive and knowing and intentional assistance, then secretly sold Pohl’s stolen
confidentUial information and property to Kassab and Montague.
22. As Kassab himself indicated in a sworn affidavit: “Favre and his counsel, Tina
Nicholson (‘Nicholson’), provided me with information from Precision Marketing’s files, including
the names and addresses of Pohl’s former clients or prospective clients.” This information, which
-6-
included compilations of former, current and prospective clients—as well as actual engagement
agreements—did not belong to Precision, however. As with any law firm, information such as
compilations of former, current and prospective clients, belong to the law firm itself. Thus,
Nicholson’s active, knowing and intentional assistance included brokering the illegakl sale of Pohl’s
information and property as well as actually providing such information and proplerty to Kassab.
23. Favre and Precision, with the assistance of Nicholson, strucck a rich bargain; Kassab
and Montague paid Favre $250,000.00 in cash together with substsantial bonuses. Kassab and
Montague knew that the information and property that they were psurchasing was stolen and not Favre
and/or Nicholson’s to sell. (A true and correct copy of the agreement to sell Pohl’s information is
attached hereto as Exhibit B). Favre, Precision, and Nicholson likewise knew that the information
and property that they were selling or helping to sell was stolen and belonged to Pohl.
24. Like Favre and Precision, Nichoalson was also motivated to participate in and facilitate
the illegal transaction with Kassab and Montague described above in furtherance of her own business.
As a direct result of the transaction aned Nicholson’s role in the transaction, Kassab and Nicholson
have apparently successfully solicfited clients for whom Nicholson is now co-counsel with Kassab.
Nicholson is a lawyer primaryily in the business of obtaining legal work and providing legal services.
Nicholson obtains legaCl work either through directly obtaining clients or entering into co-counsel
relationships with other counsel. Her participation in the illegal transaction described above and the
conduct for whfifch she is being sued was done for the purpose of and resulted in her obtaining a co-
counsel reUlationship with Kassab and thereby gaining the opportunity to provide legal services.
25. The theft, sale and unlawful disclosure of Pohl’s proprietary, confidential and trade
secret information was made even more egregious by the fact that from the outset of the relationship
between Pohl and Precision, Pohl made clear to Precision and its representatives the confidential
-7-
nature of the above listed information. Precision and its representatives expressed their understanding
of the confidential and proprietary nature of the information and that the information belonged to
Pohl.
26. Kassab is a lawyer who specializes in suing other lawyers and who, ukpon information
and belief, has worked with Montague in this connection in the past. Kassab sawl the value of Pohl’s
stolen and misappropriated confidential information and property because ict provided him the ability
to contact and solicit Pohl’s clients/prospective clients. As noted prevsiously, included in the stolen
information purchased by Kassab and Montague were actual engsagement agreements between Pohl
and his clients. (Attached as Exhibit C hereto is an email between Montague and Kassab and copying
Nicholson dated December 7, 2016 reflecting the transfer of actual engagement agreements to
Kassab).
27. Kassab and Montague had to knaow that the information and property they purchased
for a non-refundable $250,000.00 along with promises of future payments was stolen. Nicholson
likewise had to know that the informaetion and property that she assisted in selling was stolen. Any
attorney, and especially an attornefy specializing in legal malpractice, would know not to purchase or
sell another law firm’s engagyement agreements, client compilations and other materials from a third-
party. C
28. The fact that Kassab, Montague and Nicholson all knew that the information and
property involvfefd in the sale was stolen is further evidenced by terms of the purchase agreement itself.
That agreUement obligates Kassab and Montague to indemnify Favre from claims that Pohl might
bring—making clear that everyone understood that Pohl might assert a claim. Indemnity would be
unnecessary if Favre owned the materials or if they were publicly known.
-8-
29. Using the stolen confidential information and property that he knowingly purchased,
Kassab solicited those clients/prospective clients to act as plaintiffs and, joined by Nicholson and
Montague, to bring cases against Pohl for alleged barratry and other claims.
30. The actions of Favre and Precision, in addition to being tortious andk in violation of
Texas law, were in direct violation and breach of the settlement agreement, lwhich is a binding
contract. More specifically, a dispute arose resulting in a lawsuit in federal ccourt in Mississippi, styled
No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson,s et al., In The United States
District Court For The Southern District of Mississippi, Soutshern Division. That lawsuit was
resolved pursuant to a Confidential Settlement Agreement, executed in late April/early May 2017 (the
“Settlement Agreement”). Nicholson represented Favre and Precision in connection with the
Settlement Agreement, including its execution, while at the same time serving as co-counsel with
Kassab and Montague for the claims now beinga asserted against Pohl.
31. The Settlement Agreement was executed by Favre, as managing member of Precision
and on behalf of Scott M. Favre PA, LLeC, and by Pohl. The Settlement Agreement expressly provides
that Favre and Precision will returnf to Pohl all originals and all copies of documents in their and their
counsel’s possession, custodyy, or control that concern and/or identify all past or current clients and/or
prospective clients of PCohl, and that Favre and Precision will delete all such electronically-stored
information. At the time, Nicholson was not only Favre and Precision’s agent and counsel in
connection witfhf the Settlement Agreement; she was also Kassab and Montague’s co-counsel in
connectioUn with the claims now being made against Pohl in various cases.
32. The Settlement Agreement also provided that Favre and Precision would not cause
any claim, complaint, or legal action to be filed or made against Pohl. Favre and Precision further
warranted and represented that they had not caused any suit or action to be filed against Pohl. Favre
-9-
and Precision breached these provisions of the Settlement Agreement by, inter alia, causing claims,
complaints, and legal actions—not their own—to be filed and/or prosecuted against Pohl. The very
existence of the cases that Kassab, Montague, and/or Nicholson are prosecuting against Pohl is a
breach of the Settlement Agreement. k
33. In addition, as described above and in conjunction with the sale ofl Pohl’s information
and property to Kassab and Montague, all Defendants convertced Pohl’s confidential
information/property by knowingly and unlawfully assuming and exesrcising dominion and control
over that information/property in a way that was inconsistent wisth Pohl’s ownership. Each of the
Defendants, individually and in combination with each other, misappropriated Pohl’s trade secrets in
violation of the TUTSA by unlawfully obtaining and using Pohl’s confidential and trade secret
information/property in the sale of such information/property to Kassab and Montague and continuing
to use Pohl’s information and property to soliciat cases against Pohl.
34. Paragraphs 1 through 7 and 19 through 33 are incorporated into all following
paragraphs of this petition. In additione, attached hereto as Exhibit D is the affidavit of Billy Shepherd
and certain information confirminfg and further explaining the claims asserted herein.
y CAUSES OF ACTION
CounCt One: Breach of Contract (Against Favre and Precision)
35. Favre and Precision are bound by the terms of the Settlement Agreement. Pohl timely
and fully perfofrmed the Settlement Agreement. Favre and Precision breached the Settlement
AgreemenUt by assisting and continuing to assist in the manufacture and prosecution of claims against
Pohl. Their breaches include causing claims to be made against Pohl; causing complaints and legal
actions to be filed against Pohl; and Favre’s assisting Kassab and his co-counsel, Montague and
-10-
Nicholson, in pursuing claims, complaints, and actions against Pohl. Favre and Precision’s breaches
resulted in damages to Pohl.
Count Two: Conversion (Against All Defendants)
36. In selling Pohl’s proprietary and confidential information, Favre,k Precision, and
Nicholson have wrongfully assumed and exercised dominion and control ovCer Pohl’s property in
contravention of Pohl’s rights as owner of that property. c
37. In knowingly purchasing the stolen information, Kassab and Montague have
wrongfully exercised dominion and control over Pohl’s property sin contravention of Pohl’s rights as
owner of that property. g
38. In knowingly maintaining and using the Bstolen information and property since the sale
of said information and property to Kassab and Moyntague, all Defendants have wrongfully exercised
dominion and control over Pohl’s property in coantravention of Pohl’s rights as owner of that property.
Pohl owned and owns the information/prof perty, and Favre and Precision (with Nicholson or with
Nicholson’s active and knowing and intentional assistance as described above) disclosed the
information/property and sold it fto Kassab and Montague. Kassab and Montague knowingly
purchased the stolen information/property. Pohl has been damaged thereby in an amount in excess
of $250,000 which is thCe price that Kassab and Montague paid for Pohl’s information and property.
Count Three: Violation of TUTSA (Against All Defendants)
39. Pfohl maintained information regarding his clients/prospective clients and their contact
information and related data including compilations of former, current and prospective clients, as well
as other information concerning his practice of law, as confidential trade secret information. Pohl
took substantial measures to maintain the confidentiality of that information and obtained assurances
from Precision that Precision would maintain the confidentiality of Pohl’s information. That
information has independent economic value from not being generally known to, and not readily
-11-
being ascertainable through proper means by, another person who can obtain economic value from
the disclosure or use of the information. The value of the information exceeds $250,000, which is the
price Kassab and Montague paid to obtain Pohl’s information.
40. Favre, Precision, and Nicholson willfully and maliciously misapprkopriated Pohl’s
trade secrets by acquiring them through improper means—specifically, by theft. l See Tex. Civ. Prac.
& Rem. Code § 134A.002(2), (3)(A). c
41. Favre, Precision, and Nicholson willfully and maliciosusly misappropriated Pohl’s
trade secrets by disclosing them via sale to Kassab and Montaguse (who purchased the trade secret
information knowing that it had been stolen) without the express or complied consent of Pohl. See
Tex. Civ. Prac. & Rem. Code § 134A.002(3)(B).
42. All Defendants willfully and maliciously misappropriated Pohl’s trade secrets by
using them without the express or implied coansent of Pohl. See Tex. Civ. Prac. & Rem. Code §
134A.002(3)(B). 
Count Four: Civeil Conspiracy (Against All Defendants)
43. Acting in combination with the agreed object of misappropriating Pohl’s trade secrets
and converting Pohl’s property, each of the Defendants committed overt acts toward the unlawful
misappropriation of Pohl’s trade secrets, which were unlawful and which proximately caused
damages to Pohl. c
DAMAGES
44. Pohl seeks actual damages within the jurisdictional limits of this Court.
45. Pohl seeks injunctive relief pursuant to Texas Civil Practice and Remedies Code
Section 134A.003.
-12-
46. Pohl seeks exemplary damages pursuant to Texas Civil Practice and Remedies Code
Sections 41.001, et seq, and 134A.004(b).
47. Pohl seeks attorney’s fees pursuant to Texas Civil Practice and Remedies Code
Sections 38.001, et seq, and 134A.005. k
48. Pohl seeks pre-judgment and post-judgment interest. l
TRIAL BY JURY c
49. Pohl requests trial by jury and has submitted the appropsriate jury fee.
CONCLUSION s
50. Pohl requests that judgment be entered in Pohl’s favor and against Defendants on the
counts and as requested above, and for such other and further or alternative relief (legal and equitable)
to which Pohl may be entitled.
Dated: November 30, 2018 M
Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
y Jean C. Frizzell
State Bar No. 07484650
 1100 Louisiana St., Suite 3500
Houston, Texas 77002
c Tel. 713.485.7200
f f Fax 713.485.7250
jfrizzell@reynoldsfrizzell.com
Attorneys for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
-13-
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2018.
/s/ Jean C. Frizzell k
Jean C. Frizzell e
-14-"
9,2018-11-01,RSP,Pohl,Pohl’s response opposing TCPA MTD,Pohl's Response in Opposition to Kassab's TCPA Motion to Dismiss,"Filed November 1, 2018 in response to Kassab's October 24, 2018 TCPA Motion to Dismiss. Pohl opposes dismissal on three grounds: (1) the TCPA does not apply to his claims, (2) even if it did, the commercial speech exception bars application, and (3) Pohl has established a prima facie case. Includes alternative motion for continuance and discovery. Filed in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas.",TCPA-1,N/A,Phase 1,2018-11-01_RSP_Pohl-Response-to-Kassab-MTD-TCPA_FILED.pdf,"Deny the TCPA Motion to Dismiss in all respects; award Pohl costs and fees of $33,352; alternatively, grant continuance and permit discovery under §§ 27.004(c) and 27.006(b)","11/1/2018 7:18 PM
Chris Daniel - District Clerk Harris County
Envelope No. 28744115
By: Deandra Mosley
Filed: 11/1/2018 7:18 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL’S
RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
PURSUANT TO THE TEXAS CITlIZENS PARTICIPATION ACT
Plaintiffs Michael Pohl and Law OfMfices of Michael A. Pohl (collectively, “Pohl”) respond
in opposition to the Motion to Dismiss filed by Defendants Lance Christopher Kassab and Lance
Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively, “Kassab”). Kassab’s Motion
to Dismiss (the “Motion”) purports to find its basis in the Texas Citizens’ Participation Act, TEX.
CIV. PRAC. & REM. CODEo § 27.001 et. seq. (“TCPA”), but as set forth below the TCPA does not
apply to Pohl’s claims, and even if it did, the Motion would fail.
c I.
INTRODUCTION
Kassab paid $250,000 to obtain the stolen names, addresses, and in some instances actual
client files of Pohl’s former clients and potential clients so that Kassab could solicit those clients
to assert barratry claims. Kassab attempted to disguise the purchase as the engagement of a
putative “expert witness,” whom he agreed to indemnify in the event that Pohl asserted claims for
the theft. Now that Pohl has asserted the anticipated claims, Kassab asks the Court to hold that his
actions and communications in purchasing and using the stolen materials are protected by the
TCPA.
Despite having advocated directly inconsistent positions regarding the kTCPA in other
litigation with Pohl in front of this Court, Kassab brought a meritless Motionl.1 In an attempt to
contort the application of the TCPA and delay this lawsuit, Kassab assercts that the TCPA applies
to Pohl’s causes of action for conversion of confidential information asnd misappropriation of trade
secrets because of the purported motivation behind the assertions of those claims. The TCPA does
not apply because of a defendant’s mere assertion of the motivation for the filing of a claim;
instead, courts consider only whether the factual bases for a claim implicate the statutory
protections. Otherwise, every defendant could simply claim—as Kassab has done here without
evidence—that a particular case had been filead in retaliation for an action protected by the TCPA
and invoke the entire process. 
Instead, a court must examinee the claims that are asserted. Pohl’s claims in no way target
Kassab for the exercise of any rigfhts of free speech, petition, or association. Pohl brings claims to
hold Kassab responsible for yhis wrongful conversion of Pohl’s information and misappropriation
of trade secrets, togethCer with his participation in a conspiracy to commit both torts. The claims
on their face do not implicate the TCPA, and the inquiry should end there.
Perhapsf fbecause the factual bases of Pohl’s claims so clearly do not implicate the TCPA,
Kassab exUpends much time and effort attempting to reframe those claims as acts of retaliation for
Kassab’s actions after he committed the torts for which Pohl sues. More specifically, Kassab
1 See generally Plaintiffs’ Response to Defendants’ Anti-SLAPP Motions to Dismiss, Dezzie Brumfield d/b/a LAD
Enterprises, et al., v. Law Offices of Michael Pohl, et al., No. 2017-38294 (189th Dist. Ct., Harris County, Tex. Sept.
29, 2017) (filed by the Kassab firm), attached as Exhibit 1 to the affidavit of Billy Shepherd (“Shepherd Affidavit”),
which is attached as Exhibit A to this Response.
contends that Pohl brought tort claims against Kassab not because Kassab stole confidential and
trade secret information and materials but because of what Kassab did with those materials after
he stole them. Kassab has the burden of demonstrating the applicability of the TCPA by a
preponderance of the evidence. See LFMC Enterprises, LLC v. Baker, 546 S.W. 3dk 893, 897 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied). Kassab offers no evidence of alny kind to support
his contention that the lawsuit is retaliatory. Kassab’s failure to sustain hics burden of proof is fatal
to his Motion. s
Moreover, even if the TCPA jurisprudence permitted tshis type of exercise, and even if
Kassab had demonstrated by a preponderance of the evidence that the purported motivations for
Pohl’s suit implicated one of Kassab’s rights protected by the statute, Kassab’s claim under the
TCPA would nevertheless fail. If, as Kassab contends, Pohl sued Kassab because “Kassab legally
and ethically contacted Pohl’s former clients aor prospective clients and filed suit against Pohl on
behalf of these individuals,”2 then Pohl’s suit would be exempt from the TCPA by virtue of the
commercial exception to that statute. e TEX. CIV. PRAC. & REM. CODE § 27.010(b). Because Kassab
was at all times acting as a persofn primarily engaged in the business of selling his services as an
attorney, his contacts with Pyohl’s clients and former clients to solicit them to bring barratry suits
fall squarely within theC commercial exception to the statute. Kassab’s actions in filing a grievance
against Pohl also fall within the commercial exception and are not protected by the TCPA. It is
apparent on thef f face of the grievance itself—which Kassab attached to his Motion even though it
is designaUted by the State Bar as “strictly confidential3—that Kassab uses the State Bar grievance
mechanism as a part of his litigation strategy.4
2 Motion at 15.
3 See Grievance, attached as Exhibit 21 to the Motion, at 6 (“Disciplinary Proceedings are strictly confidential”).
4 See id. at 8, n. 1 (Kassab describes his history of filing grievances in connection with civil lawsuits).
Although it is clear that the TCPA does not apply to Pohl’s claims, Pohl fully sets forth his
prima facie case for each element of his causes of action. The pleadings and the affidavits Pohl
supplies can leave no question that he has satisfied the second prong of the TCPA analysis.
Kassab argues but fails to conclusively establish the affirmative defensesk that he asserts
entitle him to dismissal. Limitations has not run even as of today. The attorneyl immunity doctrine
does not apply to conduct undertaken outside the scope of representing ac client. And res judicata
does not apply in these circumstances to bar the claims. s
Finally, Pohl is entitled to his fees and costs in respondsing to Kassab’s Motion. Kassab
clearly knew upon filing the Motion that it would fail, given his experience on the opposite side
of the issue in this very Court.
II.
ARGaUMENT
A. KASSAB’S MOTION TO DISMISS SHOULD BE DENIED
The Texas Legislature enaceted the Texas Citizens Participation Act (“TCPA”) “to
encourage and safeguard the confstitutional rights of persons to petition, speak freely, associate
freely, and otherwise particiypate in government to the maximum extent permitted by law and, at
the same time, protect Cthe rights of a person to file meritorious lawsuits for demonstrable injury.”
TEX. CIV. PRAC. & REM. CODE § 27.002 (emphasis added). The TCPA is intended to identify and
dispose of lawsfufits that are “designed to chill First Amendment Rights, not to dismiss meritorious
lawsuits.”U In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015).
“Courts use a ‘two-step procedure to expedite the dismissal of claims brought to intimidate
or to silence a defendant’s exercise of these First Amendment rights.’” Wayne Dolcefino &
Dolcefino Communications, LLC v. Cypress Creek EMS, 540 S.W.3d 194, 198 (Tex. App.—
Houston [1st Dist.] 2017, no pet.) (quoting ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895,
898 (Tex. 2017)). The first step of the TCPA analysis requires that the movant establish by “a
preponderance of evidence that the suit he is seeking to dismiss ‘is based on, relates to, or is in
response to the [movant’s] exercise of: (1) the right of free speech; (2) the right tok petition; or (3)
the right of association.’” Id. (alterations in original) (quoting TEX. CIV. P CRAlC. & REM. CODE §
27.003). c
If the movant sustains its burden of demonstrating by a preponsderance of the evidence that
the claims fall within the ambit of the TCPA, and only then, thse court turns to the second step in
the process. That step shifts the burden to the non-movant to provide by clear and specific evidence
a prima facie case supporting the elements of its claim.
TEX. CIV. PRAC. & REM. CODE § 27.005(c).
In examining whether a plaintiff has sustained its burden of demonstrating a prima facie case, a
court is obligated to consider “the pleadings aand supporting and opposing affidavits stating the
facts on which the liability or defense is based.” Id. § 27.006(a). A prima facie case is established
when the pleadings and evidence suppely the “‘minimum quantum of evidence necessary to support
a rational inference that the allegfation of fact is true.’” In re Lipsky, 460 S.W.3d at 590 (quoting
In re E.I DuPont de Nemourys & Co., 136 S.W.3d 218, 223 (Tex. 2004)).
As set forth belCow, neither of the two prongs of the TCPA is satisfied here, and Kassab’s
Motion should be denied.
1. fPohl’s allegations on their face do not implicate the TCPA
PoUhl asserts three claims against Kassab in his Original Petition: (1) conversion, (2)
violations of the Texas Uniform Trade Secrets Act (“TUTSA”), and (3) civil conspiracy. Original
Petition at 9–11. To determine whether Kassab has met the preponderance of the evidence
standard, the Court should start with the petition to determine the basis of the legal action. Hersh
v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (the “basis of a legal action is not determined by the
defendant’s admissions or denials but by the plaintiff’s allegations”). Courts “do not blindly accept
attempts by the [defendants] to characterize [plaintiff’s] claims as implicating protected
expression.” Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2015k, pet. dism’d).
Instead, courts should “favor[] the conclusion that [the plaintiff’s] claims arel not predicated on
protected expression.” Id. Further, “any activities by the [defendantsc] that are not a factual
predicate for [the plaintiff’s] claims are simply not pertinent to the insquiry.” Id.
Although Kassab baldly asserts that Pohl’s claims were bsrought “in retaliation” for certain
of his actions and that Pohl has somehow admitted as much, the Court may not “blindly accept”
that characterization of Pohl’s allegations. Instead, the Court must keep in mind that there needs
to “be a connection between the claims in the lawsuit and the alleged protected conduct.” Wayne
Dolcefino, 540 S.W.3d at 201. The Court muast view the evidence “in the light most favorable to
the nonmovant.” Id. at 199. In sum, the Court’s inquiry should be (1) what the factual bases for
Pohl’s claims are, based on the pleadeings and evidence viewed in the light most favorable to him,
and (2) the extent to which these ffactual bases, as a matter of law, are protected expression within
the TCPA’s definition. Sloayt, 513 S.W.3d at 504.
As the pleadingCs make clear, Pohl sues Kassab for conversion because Kassab knowingly
purchased confiden a tial information and materials that were stolen from Pohl.5 Kassab’s liability
for this wrongffufl conduct is not based on facts related to the exercise of the rights of free speech,
petition, Uor association. Instead, his liability is based on his knowing and intentional acts of
conversion and theft of trade secrets.
5 See Original Petition at ¶¶ 4, 30, 31, 32, 33.
Similarly, Pohl’s TUTSA claim is based on the same underlying conduct as the conversion
claim, except it is limited to conduct related to the stolen trade secrets.6 For the same reasons as
above, the factual basis of liability for this claim does not trigger protections under the TCPA.
Pohl’s conspiracy claim involves Kassab’s and the other Defendants’ ovkert acts in their
plan to steal and misappropriate Pohl’s trade secrets and other proprietary informlation.7 Yet again,
nothing in the factual basis of liability for this claim is based on or targetsc Kassab for the exercise
of the rights of free speech, petition, or association. s
For all three of Pohl’s claims against Kassab, the thesory of liability is predicated on
wrongful acts, not protected speech or conduct. The lawsuit was brought to vindicate Pohl’s rights,
not in retaliation for any TCPA protected conduct. The pleadings and evidence which the Court
must use to determine if the TCPA applies makes this clear. The Texas Supreme Court has held
that the petition is the “best and all-sufficient eavidence of the nature of the action.” Hersh v. Tatum,
526 S.W.3d 462, 467 (Tex. 2017) (quoting Stockyards Nat. Bank v. Maples, 95 S.W.2d 1300, 1302
(Tex. Comm’n App. 1936)), and Pohel’s Original Petition establishes that the nature of the action
does not implicate the TCPA. f
2. Kassab has nyot sustained his burden of demonstrating the applicability of the
TCPA to Pohl’s Claims.
As the movant, Kassab has the burden to show by a preponderance of the evidence that
Pohl’s claims arec “based on, relate[] to, or [are] in response to [Kassab]’s exercise of” some
protected sp
eech or act. TEX. CIV. PRAC. & REM. CODE § 27.005(b). As set forth above, Pohl’s
claims on their face do not support Kassab’s invocation of the TCPA. Given that the claims do
not clearly fall within the statute, Kassab is required to show a “connection between the claims in
6 See id. ¶¶ 34–37.
7 See id. ¶ 38.
the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. And Kassab
must demonstrate that the protected conduct on which Kassab relies must be connected to the
“facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a).
In spite of the substantial volume of “evidence” he filed in support of his Mkotion, Kassab
has supplied no evidence—much less a preponderance of the evidence—that lPohl’s lawsuit was
asserted solely or even partly in retaliation for any act or communicatcion protected under the
TCPA. Instead, Kassab resorts to asserting (without support) thats he knows the reasons and
motivations for Pohl’s claims in this suit and that the suit wass motivated by Kassab’s protected
speech and actions.8 Courts have explicitly rejected this very tactic, holding that a defendant
cannot rely on a purported motivation for bringing a claim to support a motion to dismiss under
the TCPA. See Sloat, 513 S.W.3d at 504 (rejecting the defendant’s effort to “recast [the Plaintiff’s]
petition as complaining principally” of actioans of protest instead of the actions on which the
petition was based). 
Kassab’s mere allegation thate the suit is retaliatory is not enough to make it so. Perhaps
recognizing this problem, Kassabf asserts that “Pohl has judicially admitted that he has brought his
suit against Kassab solely beycause Kassab legally and ethically contacted Pohl’s former clients or
prospective clients anCd filed suit against Pohl on behalf of these individuals.”9 Kassab cites
language in Pohl’s Original Petition alleging that “Kassab solicited clients/ prospective clients [of
Pohl’s] to act afsf Plaintiffs. . . . to bring cases against Pohl for alleged barratry and other claims.”10
This quotUation from Pohl’s Original Petition does not constitute a judicial admission of anything,
much less an admission concerning the motivating force behind Pohl’s suit. Pohl’s recitation of
8 See, e.g., Motion at 1, 19, 21.
9 See id. at 15.
10 Id. (alterations in original).
true facts regarding Kassab’s actions—facts that Kassab has acknowledged—is not enough to
show a connection between the claims Pohl has alleged and Kassab’s protected conduct. See
Wayne Dolcefino, 540 S.W.3d at 201.
In various places in his Motion, Kassab cites to Pohl’s Original Petitionk purportedly in
support of his argument that Pohl’s motive was retaliatory, but those citatiolns do not support
Kassab’s conclusion. Instead, the portions of Pohl’s Original Petition Kascsab cites simply set forth
Kassab’s actions, without mentioning a “motive” for bringing suit. As fair reading of the petition
in the light most favorable to Pohl does not support Kassab’s chsaracterization of these additional
factual allegations. See Sloat, 513 S.W.3d at 507 (rejecting attempts to recharacterize every factual
allegation in a petition as providing the basis for a claim); see also LFMC Enterprises, LLC v.
Baker, 546 S.W.3d 893, 898 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (requiring that
the defendant demonstrate the specific connecation between the plaintiff’s claim and the protected
right). 
Kassab provides no support eat all to his theory that Pohl’s suit is tied to any grievance
Kassab may have filed. Pohl’s Ofriginal Petition does not even mention any grievance, much less
make a claim in any way relyating to a grievance. Kassab has no basis at all on which to contend
that the grievance is inC any way related to Pohl’s case.
Kassab’s wholesale failure to support by a preponderance of the evidence his position that
the TCPA applfifes is fatal to his Motion. The Court should deny the Motion on that basis alone.
3.U Even if the TCPA otherwise applies, the commercial exception precludes
dismissal here.
Kassab contorts Pohl’s claims in his effort to assert that they fall within the TCPA. To the
extent, if any, that Kassab succeeds in that effort, the recharacterized claims would fall directly
within the commercial exception to the TCPA. Although Kassab cannot show that any TCPA
protected speech or conduct is connected to Pohl’s claims—as required by the TCPA—even if a
connection could be shown, the speech and conduct would fall within the commercial speech
exception in the statute. The TCPA provides an exception to its general applicability:
This chapter does not apply to a legal action brought against a person pkrimarily
engaged in the business of selling or leasing goods or services, if the steatement or
conduct arises out of the sale or lease of goods, services, or an insuranlce product,
insurance services, or a commercial transaction in which the intended audience is
an actual or potential buyer or customer. c
TEX. CIV. PRAC. & REM. CODE § 27.010(b). The Texas Supreme Csourt has interpreted this as
requiring the following four-part test: s 
(1) the defendant was primarily engaged in the business of selling or leasing goods
[or services], (2) the defendant made the statemernt or engaged in the conduct on
which the claim is based in the defendant’s capacity as a seller or lessor of those
goods or services, (3) the statement or conduct at issue arose out of a commercial
transaction involving the kind of goods or services the defendant provides, and (4)
the intended audience of the statemenlt or conduct were actual or potential
customers of the defendant for the kinda of goods or services the defendant provides.
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018).
As set forth above, Kassab repeeatedly insists that Pohl’s claims were brought in retaliation
for Kassab’s stealing Pohl’s propferty and soliciting his former clients and prospective clients to
file barratry claims and grievyances. See, e.g., Motion at 2, 19–21, 25–26. Kassab’s solicitation of
Pohl’s clients and formCer clients falls squarely within the commercial exception to the TCPA. See
Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 191 (Tex. App.—El Paso 2014, no
pet.) (attorney fafdvertising falls within the commercial exception to the TCPA). Where a lawyer
is primarUily engaged in selling legal services to clients, and the speech arises from the sale of
services where the audience is an actual or potential client, the solicitation falls outside the TCPA’s
protections. See NCDR, L.L.C. v. Mauze v. Bagby, P.L.L.C., 745 F.3d 742 (5th Cir. 2014)
(applying Texas law).
10
It is beyond dispute that Kassab is primarily engaged in the business of selling legal
services. He purchased Pohl’s list of clients and former clients, together with the attorney fee
contracts for the purpose of soliciting those clients. In his capacity as a provider of legal services,
Kassab advertised and sought out Pohl’s potential and former clients. The akdvertising and
solicitation were part of a commercial transaction involving Kassab’s effolrt to provide legal
services. The advertising and solicitation was directed at potential custcomers of Kassab’s legal
services. Kassab’s solicitation of Pohl’s clients and former clientss is commercial speech and
outside the protections of the TCPA. In fact, Kassab has tasken this position himself in his
representation in another case.11
To the extent that the Court is convinced by Kassab’s effort to reframe Pohl’s Original
Petition as retaliation for Kassab’s actions in contacting and soliciting Pohl’s clients and former
clients, Kassab’s Motion nevertheless fails. Kaassab’s actions were entirely commercial in nature
and fall squarely within the commercial exception to the TCPA.
Kassab further contends thate Pohl’s suit is brought in retaliation for Kassab’s filing of
barratry suits and grievances agaifnst Pohl. As an initial matter, Kassab’s filings do not implicate
Kassab’s protected rights; thyey instead implicate the protected rights of Kassab’s clients, who are
not parties here. See CLFMC Enterprises, LLC v. Baker, 546 S.W.3d 893, 898 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied) (requiring that the rights being protected be the rights of the
party, and not af f third party to the action). Without an assertion of Kassab’s own protected rights,
the TCPAU is not implicated.
In addition, the commercial exception should extend to an attorney’s action in filing a
lawsuit on behalf of another. The attorney’s purpose in that instance is undeniably commercial—
11 See Brumfield Litigation Plaintiffs’ Response, Exhibit 1 to the Shepherd Affidavit, Exhibit A, at 22.
11
as Kassab’s clearly was in bringing the barratry actions. The statute creates an exception for
commercial activity that should apply to an attorney’s actions in pursuit of a client’s case. The
grievance against Pohl also falls within the commercial exception because Kassab’s use of the
State Bar grievance process is as a tactic to increase pressure on the lawyers that hke sues.12
At the end of his unsupported argument that the TCPA applies to Pohll’s claims, Kassab
discusses two cases. Motion at 19–21 (discussing Collins v. Collins, No.c 01-17-00817-CV, 2018
WL 1320841 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. filsed) (mem. op.) and Reeves v.
Harbor Am. Cent., Inc., 552 S.W.3d 389 (Tex. App.—Housston [14th Dist.] 2018, no pet.)).
Neither case is supportive of Kassab’s position. The court in Collins addressed whether the right
to petition required a nexus to a matter of public concern. Collins, 2018 WL 1320841 at *2. The
lawsuit itself in Collins was factually predicted on claim that a party filed a fraudulent affidavit in
a divorce proceeding. Id. a
The Reeves case is similarly unhelpful. The court in that case simply held that the trial
court was required to conduct a TCPAe analysis as required by the statute and could not summarily
conclude that “[t]he [TCPA] asf a matter of law does not allow a party to avoid contractual
obligations such as the onesy at issue here.” Reeves, 552 S.W.3d at 392. The court remanded the
case to the trial court tCo conduct a full TCPA analysis. Id. at 396. Pohl does not deny that this
Court should conduct a TCPA analysis; instead Pohl asserts that that the TCPA does not apply and
that Kassab hasf f failed to carry his burden under prong one of the TCPA.
12 See Grievance, attached as Exhibit 21 to the Motion, at 8, n. 1 (Kassab describes his history of filing grievances in
connection with civil lawsuits).
12
4. There is clear and specific evidence demonstrating a prima facie case.
Kassab’s failure to satisfy the first prong of a motion pursuant to the TCPA relieves Pohl
of any burden of demonstrating a prima facie case of his claims. Pohl nevertheless sets forth below
the clear and specific evidence in his pleading and the attached affidavits for eachk element of the
claims he has asserted against Kassab.13 l
Pohl asserts three causes of action against Kassab: (1) conversicon; (2) violations of the
Texas Uniform Trade Secrets Act, TEX. CIV. PRAC. & REM. CODE Cshap. 134A (“TUTSA”); and
(3) conspiracy to commit conversion and to violate TUTSA. Thes elements of the conversion claim,
as asserted in the Original Petition against Kassab, are that (a) Pohl owned and owns certain
property and information; (b) Kassab purchased that information knowing that it had been stolen
from Pohl; and (c) Kassab wrongfully exercised dominion and control over Pohl’s property in
contravention of Pohl’s rights. The elements aof a violation of TUTSA against Kassab are that (a)
Kassab purchased Pohl’s trade secrets knowing that they had been acquired by improper means;
and (b) and knowing that he did neot have Pohl’s express or implied consent. Finally, the
conspiracy claim alleges that Kfassab acted in combination with the other defendants and
committed overt acts towardy unlawful conversion and misappropriation.
In examining wChether a plaintiff has sustained its burden of demonstrating a prima facie
case, the Court is obligated to consider “the pleadings and supporting and opposing affidavits
stating the factfsf on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE §
27.006(a)U. Where a plaintiff provides enough detail in his pleading to “show the factual basis for
its claim,” such a pleading “is sufficient to resist a TCPA motion to dismiss.” In re Lipsky, 460
S.W.3d 579, 591 (Tex. 2015). A prima facie case is established when the pleadings and evidence
13 In support of this Response, Pohl has attached three sworn documents, the affidavit of Billy Shepherd, Exhibit A;
the declaration of Michael Pohl, Exhibit B; and the declaration of Jean C. Frizzell, Exhibit C.
13
supply the “‘minimum quantum of evidence necessary to support a rational inference that the
allegation of fact is true.’” Id. at 590 (quoting from In re E.I DuPont de Nemours & Co., 136
S.W.3d 218, 223 (Tex. 2004)).
Pohl’s pleading—the Original Petition—sets forth in abundant detaikl each of the
allegations against Kassab. Pohl alleges that he hired defendant Precision Marlketing Group, LLC
(“Precision”) to assist him in gathering and preserving evidence and liaicse with Pohl’s clients.14
Precision thereby gained access to Pohl’s confidential and proprietarsy information relating to his
client’s identity and contact information as well as his engagsement agreements, contacts with
clients and various of Pohl’s proprietary forms.15 Pohl alleges that Defendants Precision and Scott
Favre, with the assistance of Defendant Tina Nicholson, stole physical copies of certain
information, stole Pohl’s computers, and misappropriated electronic data to which they had access
through Precision’s work for Pohl, includinga actual attorney–client fee agreements protected by
the attorney–client privilege.16 Precision and Favre entered into a settlement agreement with Pohl
in which they agreed to return to Poehl or delete the confidential and proprietary information in
their possession, custody and conftrol.17
Precision and Favre hyad secretly entered into an agreement with Kassab and defendants F.
Douglas Montague III Cand Montague Pittman & Varnado, P.A. (collectively, “Montague”) to sell
Pohl’s stolen confid a ential information and property.18 Kassab and Montague paid Favre $250,000,
together with sfufbstantial bonuses knowing that they purchased stolen information and property.19
These spUecific, detailed allegations of each element of conversion, theft of trade secrets, and
14 Original Petition at ¶¶ 19, 20.
15 Id. ¶ 20.
16 Id. ¶ ¶ 20, 21.
17 Id. ¶ 3.
18 Id. ¶ 21.
19 Id.
14
conspiracy are by themselves sufficient to set forth a prima facie case meeting the requirements of
the TCPA. TEX. CIV. PRAC. & REM. CODE § 27.005(a); see also Hicks v. Group & Pension
Administrators, Inc., 473 S.W.3d 518, 526 (Tex. App.—Corpus Christi 2015, no pet.).
Although Pohl’s Original Petition establishes a prima facie case without thke necessity for
further inquiry, Pohl also submits affidavits containing substantial prima facie elvidence supporting
those claims. As an initial matter, Kassab has admitted certain factual acspects of Pohl’s claims.
Kassab states in his Declaration: s
Upon learning of the Mississippi Litigation, I and staff ats my office obtained a large
amount of information related to the Mississippi Litigastion from the federal court’s
online public access to court records system, PACER. I also met with Scott Favre
(“Favre”), who I understood became the owner of Prrecision Marketing Group, LLC
(“Precision Marketing”) through a purchase agreement he had with the prior
owners. Favre and his counsel, Tina Nicholson (“Nicholson”) provided me with
information from Precision Marketing’s files, including the names and addresses
of Pohl’s former clients or prospective clilents.
See Declaration of Lance Christopher KassMab, attached as Exhibit 1 to his Motion. Kassab freely
admits that he obtained from Favre and Favre’s counsel, Tina Nicholson, information that included
the names and addresses of Pohl’s former clients and prospective clients. Kassab has also
admitted, at least implicitly, that he paid Favre. In a pleading filed in Cause No. 2017-38294,
Debbie Brumfield d/b/a Lad Enterprises, et. Al. v. Jimmy Williamson, Jimmy Williamson, PC,
Williamson & Rusnak, Cyndi Rusnak, Cyndi Rusnak PLLC, and Law Offices of Michael Pohl, in
the 189th Judiciacl District Court of Harris County, Texas (the “Brumfield Litigation”), Kassab
stated,
Prior to the settlement, however, Favre was hired by the undersigned counsel [i.e.
Kassab] and a Mississippi law firm to provide consulting services regarding the
value of any underlying claim against BP.20
20 See Brumfield Litigation Plaintiffs’ Response, Exhibit 1 to the Shepherd Affidavit, Exhibit A, at 18.
15
On a separate occasion, Kassab described his arrangement with Favre differently, as “an agreement
with an expert witness.”21
Kassab does not deny that he (1) obtained from Favre and Precision the confidential
information and materials that are the subject of Pohl’s conversion and misappropkriation of trade
secrets claims, and (2) that he entered into an agreement with Favre pursuant tol which Kassab paid
Favre. Given these admissions, many aspects of Pohl’s prima facie ccase are uncontroverted.
Kassab has admitted that he acquired the “names and addresses sof Pohl’s former clients or
prospective clients,” which provides prima facie support for ksey elements of Pohl’s claims of
conversion and theft of trade secrets.
The attached affidavits provide prima facie evidence of the following facts. Scott Favre,
PA LLC, the Kassab Law Firm and Montague, Pittman and Varnado, P.A. entered into an
Agreement, dated November 10, 2016, eaxecuted by Lance Kassab (the “Favre–Kassab
Agreement”).22 The Favre–Kassab Agreement contains many relevant provisions, including:
• That Kassab and Montague weill pay Favre an hourly rate of $250, a large per-case fee,
and an “upfront advancef pay retainer to Favre forin [sic] the amount of $250,000 to be
credited against firsyt fees earned by Favre. This retainer is fully earned at the time of
payment and isC not refundable. Subsequent hourly fees are not to be credited against the
retainer.”23a
• That Kfassab and Montague “shall indemnify and hold harmless Favre for from [sic] any
aUnd all costs he incurs in defending claims relating to an/or arising from the disclosure of
any client information where such claims are asserted by . . . Michael Pohl. . . . Favre
21 See Kassab’s Letter, dated July 20, 2018, to Timothy J. Baldwin, attached as part of Exhibit 21 to Kassab’s Motion.
22 A copy of the Favre–Kassab Agreement is attached as Exhibit 3 to the Shepherd Affidavit, Exhibit A.
23 See Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit, Exhibit A, p. 1.
16
certifies that he is not aware of any contractual or legal provision that prohibits him from
making such disclosure to [Kassab and Montague]”24
• That the parties “agree that this Agreement is confidential and shall remain confidential
for all times.”25 k
On its face, the Favre–Kassab Agreement proves that Kassab agreed to payC Flavre an enormous
upfront payment of $250,000, together with substantial sums over timce. The amount of the
payment alone is prima facie evidence that Kassab knew that the confidential information and
material he was buying was not publicly known and that it belosnged to Pohl.
The Favre–Kassab Agreement also obligates Kassab to indemnify Favre from claims that
Pohl might bring—making clear that Kassab contemplated that Pohl might assert such claims at
the time he executed the agreement. What possible reason could there be for Kassab to agree to
indemnify if Favre owned the materials and inaformation that was the subject of the Favre–Kassab
Agreement? Why would indemnity be necessary if the information and materials were publicly
known? Again, these facts support Peohl’s prima facie case of misappropriation.
Similarly, the requiremefnt in the Favre–Kassab Agreement that the parties keep the
agreement confidential suggyests that the parties understood that disclosure of the existence of the
agreement and its termCs might raise substantial issues. If the materials and information were
publicly known and belonged to Favre, what was the necessity for confidentiality? Each of these
facts supports fPohl’s allegation that the materials and information were trade secrets and that
Kassab kUnew that the confidential information and material he purchased from Favre was stolen.
Favre’s testimony regarding the parties’ performance of the Favre–Kassab Agreement
provides additional support for Pohl’s contentions. In a hearing conducted on October 25, 2017
24 Id. p. 3.
25 Id.
17
in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., in the United
States District Court for the Southern District of Mississippi, Southern Division (“Walker v.
Williamson Litigation”),26 Favre confirmed that Kassab, Montague or their firms had in fact paid
the $250,000 to Scott M. Favre, P.A.27 Favre testified that he did not sell attokrney/client fee
contracts to Kassab and Montague but instead gave them away to Tina Nlicholson.28 Favre
acknowledged that an email, dated December 7, 2016 and sent from Mcontague to Kassab and
others, reflected that Favre had called to check that Kassab’s office shad been receiving Dropbox
deliveries of contracts over the last several days.29 Favre testifieds that between the time he received
the payment of $250,000 and April 2017, he had received no fees, provided no work and
exchanged no documents under the Favre–Kassab Agreement.30
Nicholson’s testimony contradicts Favre’s testimony in at least one enlightening way.31
Nicholson testified that Favre did not give hera the Pohl fee contracts; instead, she believes he gave
them to “one of her co-counsel in the Texas cases against Mr. Pohl.”32 Favre’s and Nicholson’s
testimony and the emails about whiech they testify further support Pohl’s prima facie case of
intentional misappropriation, confversion and conspiracy. The emails and testimony confirm that
Scott M. Favre, P.A. was iny fact paid $250,000, and that Kassab and Montague understood that
they were to receive DCropbox deliveries of contracts. The large amount of the payment to Scott
26 A copy of the relevant portions of the October 25, 2017 hearing transcript in the Walker v. Williamson Litigation
is attached hereto as Exhibit 2 to the Shepherd Affidavit.
27 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 63.
28 Id. at 92–93.
29 Id. at 95; see also email dated December 7, 2016, attached as Exhibit 4 to the Shepherd Affidavit. To the extent, if
any, that Kassab suggests that this email may be hearsay and therefore inadmissible, Pohl responds that the email is
not offered for the truth of the matter asserted. It is instead offered to demonstrate Kassab’s knowledge of the volume
and nature of the materials Favre transmitted.
30 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 121–27.
31 See Deposition of Tina Nicholson, dated November 27, 2017, attached as exhibit 5 to the Shepherd Affidavit at
65:11–66:10.
32 Id. at 66:7–9.
18
M. Favre, P.A., in advance of the delivery of contracts to the Dropbox and the absence of any
further work by Scott M. Favre, P.A., supports a strong inference that the payment was in fact in
exchange for the contracts and not for any future services. Favre’s testimony that he had given the
attorney/client fee contracts to Nicholson and Nicholson’s disavowal of that testkimony strongly
suggests that each witness hopes to distance him or herself from the ultimate ltransfer to Kassab.
This contradiction supports Pohl’s allegation that all parties to the Favre–Kcassab Agreement knew
that the files and information being transferred had been converted ors misappropriated.
Finally, Kassab’s efforts to explain the purpose of thse Favre–Kassab Agreement also
support Pohl’s prima facie case that Kassab knew that the material and information he received
from Favre was stolen. As described above, Kassab explained the Favre–Kassab Agreement to
this Court as reflecting Favre being hired “to provide consulting services.”33 More recently,
Kassab described the agreement as constitutinga “an agreement with an expert witness.”34 Kassab’s
inability to stick to an explanation of the agreement suggests that he does not have a legitimate
one. The notion that the Favre–Kasseab Agreement constitutes the retention of an expert witness
defies all logic. At the time Kassfab purportedly hired Favre, who is not a lawyer, as an “expert,”
Kassab did not have a singlye client, much less a case. Without known clients, Favre could not
possibly have ethicallyC been engaged as an expert because he could not have determined the
presence of potential conflicts. And even though Kassab had no clients and Favre is not a lawyer,
Kassab paid Ffafvre $250,000 up front with the promise of additional future payments. The
evidence Udemonstrates that the stolen materials and information were available for sale.35 In fact,
Favre and his counsel Nicholson had expressly threatened to sell the materials to “Texas barratry
33 See Response to Motion in Brumfield, Exhibit 1 to the Shepherd Affidavit, Exhibit A at 18.
34 See Letter in support of Grievance, attached as part of Exhibit 21 to the Motion.
35 See Five Letters discussing potential sale of information, attached as Exhibit 6 to the Affidavit of Billy Shepherd.
19
lawyers” before they actually did so.36 The more plausible explanation of these facts is that the
Favre–Kassab Agreement reflects Favre’s sale and Kassab’s knowing purchase of Pohl’s stolen
files.
As lawyers, Kassab and Montague knew that the materials they purckhased included
confidential information protected by the attorney–client privilege, includinlg actual attorney–
client fee agreements.37 Scott Favre has confirmed under oath that he macintained the materials as
confidential and protected them as valuable trade secrets.38 s
In sum, Pohl’s prima facie evidence in the form osf both pleadings and affidavits
demonstrates each element of each of Pohl’s causes of action as set forth below:
CONVERSION
• The information and materials Kassab obtained was personal property subject to
conversion.39 a
• Pohl owned the information and materials Kassab obtained.40
• Kassab wrongfully ex e ercised dominion and control over the property.41
• Pohl has incurreOd f actual damages caused by Kassab’s conversion by at a minimum
his loss of the intrinsic value of the materials.42
36 Id.
37 Id. ¶ 20.
38 See Affidavit of Scott Favre, filed in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et
al., in the United States District Court for the Southern District of Mississippi, Southern Division, and attached as
Exhibit 7 to the Affidavit of Billy Shepherd.
39 Original Petition at ¶¶ 20, 21, 27; Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit; Email, Exhibit 4
to the Shepherd Affidavit.
40 Original Petition ¶¶ 20, 21, 27, 33; Affidavit of Michael Pohl.
41 Original Petition ¶¶ 20, 21, 27; Affidavit of Michael Pohl.
42 Original Petition ¶ 33; Favre Kassab Agreement, Exhibit 3 to Shepherd Affidavit (demonstrating that Kassab placed
a value on the materials of at least $250,000; Affidavit of Michael Pohl.
20
MISAPPROPRIATION OF TRADE SECRETS
• Pohl owned trade secrets.43
• Pohl maintained that information as a secret, taking substantial measures to
maintain its confidentiality.44 k
• The information has independent economic value from not beCin l g generally known
to, and not readily being ascertainable through proper mceans by, another person
who can obtain economic value from the disclosure or use of the information.45
• Kassab obtained the trade secrets with knowlesdge that they had been acquired
through improper means—i.e., by theft.46 g
• The misappropriation damages Pohl iBn the form of both actual loss and unjust
enrichment.47 y
• Kassab’s misappropriation was a willful and malicious.48
CONSPIRACY f
• Kassab was a membcer of a combination of two or more persons.49
• The agreed objeOct of the combination was to accomplish the unlawful purposes of
conversion pand misappropriation of trade secrets.50
• Kassab and the other conspirators committed tortious overt acts to further the object
of thie conspiracy.51
43 Original Petition ¶¶ 20, 21, 34; Affidavit of Michael Pohl.
44 Original Petition ¶ 34; Affidavit of Michael Pohl.
45 Original Petition ¶ 34; Affidavit of Michael Pohl.
46 Original Petition ¶¶ 35, 36; Affidavit of Michael Pohl.
47 Affidavit of Michael Pohl.
48 Original Petition ¶ 37; Affidavit of Michael Pohl.
49 Original Petition ¶¶ 27, 35.
50 Original Petition ¶ 38.
51 Original Petition ¶¶ 27, 32, 36, 38.
21
• Pohl suffered injury as a result.52
Pohl denies that Kassab has demonstrated by a preponderance of the evidence that Pohl
has asserted a legal action based on related to or in response to Kassab’s exercise of his right to
free speech, petition, or association. To the extent that the Court disagrees, Pohkl has provided
clear and specific evidence to support his petition, and the Court should denyC Klassab’s Motion.
B. ALTERNATIVE MOTION FOR CONTINUANCE ANcD DISCOVERY
Kassab filed his Motion on October 24 and set it for hearing twelve days later. While Pohl
denies that Kassab has met the threshold necessary for requirinsg him to provide the Court with a
prima facie case, and Pohl contends that he has set forth such a case, to the extent that the Court
disagrees and believes that additional evidence is necessary, Pohl seeks a continuance of the
hearing and an order permitting discovery. The TCPA permits the Court to allow discovery on
the Motion, and if discovery is granted, a contianuance of up to 120 days from service of the Motion.
TEX. CIV. PRAC. & REM. CODE §§ 27
.004(c) (permitting 120-day continuance), 27.006(b)
(permitting discovery). In the event ethat the Court is inclined to grant the Motion, there is good
cause for a continuance and discofvery because both oral and written discovery would be relevant
to obtaining additional cylear and specific evidence of Pohl’s claims for conversion,
misappropriation of trCade secrets, and conspiracy. Given that the contested issues primarily
involve Kassab’s state of mind, discovery relating to that issue would be necessary in the form of
both documentfary evidence relating to Precision’s sale of materials to Kassab and deposition
testimonyU relating to that sale.53
Specifically, the discovery that Pohl would seek includes (1) document discovery from
Kassab relating to his purchase of the materials and information, and in particular drafts of the
52 Original Petition ¶ 38; Affidavit of Michael Pohl.
53 Original Petition ¶¶ 27, 38.
22
Favre–Kassab Agreement and correspondence regarding the same; (2) an initial limited deposition
of Lance Kassab regarding his purchase of materials and information from Favre.
This request for continuance is sworn by the attached Declaration of Jean Frizzell and is
sought not for purposes of delay alone but so that justice can be done. k
C. KASSAB CANNOT CONCLUSIVELY ESTABLISH HIS DEFCElNSES
Kassab may argue that, even though Pohl can establish a prima faccie case, he is still entitled
to dismissal because he has established by a preponderance of the evisdence each essential element
of certain affirmative defenses, including limitations, attorney ismmunity, and res judicata. None
of these defenses is available, and Kassab has not established any of them—let alone by a
preponderance of the evidence.
1. The Statute of Limitations has Not Run.
Kassab purchased the stolen materaial from Favre by virtue of the Favre–Kassab
Agreement, which was executed on November 10, 2016, much less than two years prior to the
filing of this suit. All of Pohl’s claimes against Kassab are based on that purchase, and no claim
has a limitations period of less tfhan two years. See TEX. CIV. PRAC. & REM. CODE § 16.003(a)
(two-year limitation period fyor conversion); TEX. CIV. PRAC. & REM. CODE § 16.010(a) (three-year
limitation period for TCUTSA violations); Mayes v. Stewart, 316 S.W.3d 715, 719 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). Discussions about other older potential wrongful conduct
Kassab may hafvfe engaged in related to Pohl does not alter the limitations analysis for the specific
claims PoUhl brought in this case. See Motion at 26–28. It is clear that limitations does not bar
Pohl’s claims.
23
2. The Attorney Immunity Doctrine does Not Apply.
Kassab claims that as an attorney, he is immune from liability for converting the property
of others and misappropriating trade secrets. Here again, Kassab relies on a mischaracterization
of Pohl’s claims to invoke the attorney immunity doctrine. That doctrine protectsk attorneys from
civil liability for certain actions taken while representing a client in litigation. Clanty Hanger, LLP
v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). Pohl’s suit asserts claims cfor actions taken before
Kassab had a single client, much less a client in litigation. Because tshere is no way for Kassab to
show that his wrongful actions were within “the scope of clsient representation,” the attorney
immunity doctrine on its face does not apply to Pohl’s claims. Id. at 482.
3. Res Judicata Does Not Apply.
Kassab makes a contorted argument to contend that Pohl’s claims are barred by res
judicata. Kassab was not a party to the Settlemaent Agreement to which he refers, and had he been,
Pohl would include him in his breach of contract claim. There is no basis on which to contend that
Pohl’s claims against Kassab are “thee same as” the claims settled in the other case, nor that Kassab
is a party or privy to a party in thfat case. Res judicata is not an available defense.
D. REQUEST FOR AyTTORNEYS’ FEES AND COSTS
The TCPA expCressly contemplates an award of costs for the filing of a motion that is
frivolous or brought solely for the purpose of delay. TEX. CIV. PRAC. & REM. CODE § 27.009(b).
The history anfdf circumstances surrounding Kassab’s Motion conclusively establish that it is
frivolousU and Kassab brought it solely for the purpose of delay.
As the Court is aware, Kassab was involved in bringing the Brumfield Litigation against
Pohl and others alleging barratry and other causes of action. The defendants moved for dismissal
24
pursuant to the TCPA, and the Court denied those motions by order signed November 6, 2017.54
At the time defendants filed those motions, they had a good faith basis on which to believe that
the motions were well taken and should be granted, but the Court disagreed and defendants lost
their motions. The Anti-SLAPP motions in the Brumfield Litigation are highlky relevant here
because of the positions Kassab took in response to those motions and the Colurt’s resolution of
those motions. Kassab clearly knew and understood when he filed the incstant Motion that he did
not have a basis for his filing and that the Court would undoubtedly dseny his Motion.
In response to the Motion to Dismiss in Brumfield, Kassasb asserted a number of arguments
including arguing at length that the commercial speech exemption applied to prevent application
of the TCPA to his claims.55 In arguing that the commercial speech exemption applied, Kassab
argued vigorously that a lawyer’s solicitation of clients constitutes commercial speech not within
the protection of the TCPA. In making this aargument, Kassab cited multiple Texas state court
cases, Fifth Circuit cases, and cases from out of state.56 Kassab contended that “when the
communication concerning provisioen of legal services is made for the primary purpose of
attracting clients . . . the communifcation is not a matter of public concern.”57 On that basis, Kassab
argued that the commercialy exception applied to exempt his claims from coverage under the
TCPA.58 Having succCessfully asserted these arguments in Brumfield, Kassab can hardly suggest
that he was unaware of their merit.
Neverthf feless, in this case, Kassab contends that Pohl brought suit against him in retaliation
for KassaUb’s solicitation of Pohl’s former clients. Kassab argues that Pohl brought his suit against
54 A copy of the Order is attached as Exhibit 8 to the Shepherd Affidavit.
55 Brumfield Response, Exhibit 1 to Shepherd Affidavit, at 33–37.
56 Id.
57 Id. at 22.
58 Id.
25
Kassab “because Kassab legally and ethically contacted Pohl’s former clients.”59 Kassab contends
that his solicitation of those clients is protected by the TCPA, and he does not even mention the
commercial exception set forth in section 27.010 of the statute. Given that Kassab definitively
is aware of the commercial exception and its direct applicability to the claims Pohl bkrings, Kassab’s
failure even to mention the exception reveals his bad faith. His Motion is not juslt frivolous, Kassab
was demonstrably aware that it was frivolous. There can have been noc legitimate purpose for
bringing the Motion apart from creating unnecessary delay. s
The Court is empowered in these circumstances to awasrd Pohl his costs and reasonable
attorney’s fees in responding to the Motion. As set forth fully in the attached Declaration of Jean
Frizzell, those reasonable and necessary fees total $33,352. That total includes the necessary time
of lawyers in reviewing Kassab’s Motion, reviewing the TCPA, and researching and drafting a
response to the Motion. a
Kassab requests costs, attorneys’ fees and sanctions against Pohl and his law firm,
Reynolds Frizzell. Kassab is not entietled to any of the relief he requests because his Motion fails.
Furthermore, Kassab’s recitatiofn of the alleged basis for his request for sanction contains
substantial mischaracterizatiyons of the record of this case and the other cases to which he refers.
Kassab get a single facCt right: that he previously sought but was denied sanctions in an unrelated
case involving Reynolds Frizzell LLP. Kassab’s effort to relitigate that here is an entirely
inappropriate ufsfe of the TCPA and should not be countenanced.
59 Motion at 15.
26
CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the Motion be in all respects denied and that they be awarded costs and
fees in the amount of $33,352. k
Dated: November 1, 2018 Respectfully submitted, l
REYNOLDS FRIZZELL LLP c
By: /s/ Jean C. Frizzsell
Jean C. FrizzeDll
State Bar Nso. 07484650
1100 Louisiana Sst., Suite 3500
Houston, Texas 77002
Tel. 713.485r.7200
Fax 713.485.7250
jfrizzell@reynoldsfrizzell.com
Attolrneys for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIoFICATE OF SERVICE
I hereby certify that a true acnd correct copy of this document was served on all counsel of
record pursuant to the Texas Rulefs of Civil Procedure on this 1st day of November, 2018.
/s/ Jean C. Frizzell
C Jean C. Frizzell
27"
3,2018-10-15,AFF,Pohl,Pohl’s affidavit in support of claims,"Affidavit of Michael Pohl filed as Exhibit 24, sworn June 19, 2018 in Montgomery County, Texas, in response to Kassab's State Bar grievance (File No. 201801825), providing Pohl's version of facts regarding his relationship with PR Consultants and denying barratry allegations","Sworn affidavit prepared by Pohl in the State Bar of Texas grievance proceeding (No. 201801825, Kassab as Complainant, Pohl as Respondent), later filed in the Pohl v. Kassab litigation as Exhibit 24 in connection with TCPA proceedings. Sworn June 19, 2018.",TCPA-1,N/A,Phase 1,2018-10-15_AFF_Pohl-Affidavit_FILED.pdf,,"EXHIBIT 24
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NO. 201801825
LANCE CHRISTOPHER KASSAB, § STATE BAR OF TEXAS
Complainant. §
§
MIKE A. POHL, §
Respondent. § GRIEVANCE : COMPLAINT
NS
AFFIDAVIT OF MICHAEL POHL G
Rey
THE STATE OF TEXAS § ~S
COUNTY OF MONTGOMERY § ; &
BEFORE ME, the undersigned authority, on this day personally appeared
)
Michael Pohl, who upon being duly sworn, deposes says:
SN
1. My name is Michael Pohl. I am eighteen years old and am fully
capable of making this affidavit. I have pergonal knowledge of the facts addressed
SN
herein except as otherwise specifically eo and they are true and correct.
2. Iam a lawyer. My law Geta was at all times material to the allegations
herein called the Law Office, ‘Gf Michael A. Pohl (sometimes referred to as
eS
“LOMAP”). &
3. I was introduced to Scott Walker (“Walker”) and Robbie Maxwell, the
© |
principals of Maxwell W alker Consulting Group, LLC (“Maxwell-Walker”), as well
as Terry Robinsoi, and Steve Seymour (“Seymour”) in April 2012. I was introduced
SS
to Kirk Lady Laine’ approximately six to eight weeks later. These parties all
held theiasdlves out to me as professional, experienced marketing consultants who
had prior experience providing marketing and client-relations services on behalf of
lawyers and law firms generally and in connection with claims asserted against
British Petroleum arising from the Deepwater Horizon oil spill (“BP claims”) in

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

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

©

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

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

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

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

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

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

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

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

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

4

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

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

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

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

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

©

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

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

3 See Complaint, p. 6.

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

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

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

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

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

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

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

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

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

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

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

NS
own use and benetit

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

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

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

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

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

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

©

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

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

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

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

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

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

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

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

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

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

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

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

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

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

©

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

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

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

4

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

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

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

©

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

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

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

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

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

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

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

&
basis of the Complaint. &

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

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

matters nde the basis of the Complaint.

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

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

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

NS
allegation is not specifically addressed above it is denied. ae
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1,2018-08-28,OP,Pohl,"Original Petition — breach of settlement, conversion, TUTSA, conspiracy","Plaintiffs' Original Petition asserting breach of settlement agreement, conversion, TUTSA trade secret misappropriation, and civil conspiracy against multiple defendants","Initial filing commencing the lawsuit. Pohl and his law firm sue Favre, Precision, Kassab, Nicholson, and Montague for conduct arising from alleged theft and misuse of confidential client information and trade secrets. Filed August 28, 2018, assigned to the 189th District Court of Harris County, Texas, Cause No. 2018-58419.",PLEAD-1,N/A,Phase 1,2018-08-28_OP_Pohl-Original-Petition_FILED.pdf,Judgment in Pohl's favor against all Defendants on all counts; actual damages within jurisdictional limits; injunctive relief under TUTSA § 134A.003; exemplary damages under §§ 41.001 et seq. and 134A.004(b); attorney's fees under §§ 38.001 et seq. and 134A.005; pre-judgment and post-judgment interest; trial by jury; and all other legal and equitable relief to which Pohl may be entitled,"8/28/2018 5:05 PM
Chris Daniel - District Clerk Harris County
Envelope No. 27116535
- . By: Walter Eldrid
2018-58419 / Court: 189 ried ate at
Cause No.
MICHAEL POHL, et al § IN THE DISTRICT COURT OF
§
Plaintiff, § HARRIS COUNTY, TEXAS
§
§ NG
LANCE KASSAB, et al § ©
Defendants. § JUDICIAE DISTRICT
a,
PLAINTIFFS MICHAEL POHL’S AND LAW OFFICE OF MICHAEL A. POHL,
PLLC’S ORIGINAL PETITION
©
SUMMARY”
Y
1. Plaintiffs Michael Pohl and Law Ome of Michael A. Pohl, PLLC (sometimes
8
collectively “Pohl”) sue Defendants Scott Favre and cott M. Favre PA, LLC (collectively “Favre”);
Precision Marketing Group, LLC crisis Lance Christopher Kassab and Lance Christopher
©
Kassab, P.C. D/B/A The Kassab ae (collectively “Kassab”); Tina Nicholson and Baker
Nicholson, LLP D/B/A Baker Nso Law Firm (collectively “Nicholson”); and F. Douglas
Montague III and Montague ear & Varnado, P.A. (collectively “Montague’”). Favre, Precision,
Kassab, Nicholson, and Montague are collectively called “Defendants.”
2. Defendait engaged in a scheme pursuant to which they illegally obtained,
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maintained, and asd trade secrets and other confidential information and property belonging to
Pohl. Favre'sand Precision’s actions are in breach of a settlement agreement to which Pohl, Favre,
and Precision are parties, and all Defendants’ actions constitute the torts of conversion and
violations of the uniform trade secrets act, as well as conspiracy.

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

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

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

constitutes actionable conversion. @

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

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

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misappropriating Poh’ trade secrets and, in so doing, they engaged in one or more unlawful overt
acts, inching stealing Pohl’s confidential information/property and using the
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information/property for their own gain. Pohl has suffered damages as a proximate result of
Defendants’ conduct.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BACKGRO SOND

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

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claims that theyre prosecuting against Pohl.

20. Pol engaged Precision for a period of time to provide public relations services, to
gather and preserve evidence, and to screen and liaise with Pohl’s clients/prospective clients. While
working for Pohl, Precision gained access to Pohl’s confidential and proprietary information and
property, including trade secret materials, that included the identities of Pohl’s clients/prospective

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

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

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were purchasing was stolen and not Favre’s and/or Nicholson’s to sell.

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

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

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

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

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

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

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

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

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

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

Count Two: Cones ein A Defendants)

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

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

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

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

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

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

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

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

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

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Sy Count Four: Civil Conspiracy (Against All Defendants)

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

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