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