filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
56,2023-08-14,ORD,Court,Order: RTP Designation GRANTED,Order Granting Kassab's Motion for Leave to Designate Favre and Precision as Responsible Third Parties,"Signed August 14, 2023 by Judge Christine Weems in the 281st Judicial District Court (though header still references 189th District). Grants Kassab's motion (filing #51, filed March 2, 2023) to designate Scott Favre, Scott M. Favre PA, LLC, and Precision Marketing Group, LLC as responsible third parties.",RTP-2,GRANTED,Phase 4,2023-08-14_ORD_Granting-Kassab-Leave-to-Designate-RTP_SIGNED.pdf,,"3/2/2023 11:24:31 AM
Marilyn Burgess - District Clerk
Harris County
Envelope No: 73272865
By: HERRINGTON, RACHEL R
Filed: 3/2/2023 11:24:31 AM
Pgs-1
CAUSE NO. 2018-58419
LD3PX
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
§
V. § OF HARRIS COUNTY, TEXAS
§
SCOTT FAVRE, et al § 189th J UDICIAL. DISTRICT
eS
ORDER )
On this day the Court considered Defendants, Lance Chstopher Kassab and
SS
Lance Christopher Kassab, P.C. D/B/A The Kassab Law Motion for Leave to
Designate Scott Favre, Scott M. Favre, PA, LLC and Pregigion Marketing Group, LLC
i)
as Responsible Third Parties (“the Motion”). After cots ering the Motion, and having
found that Plaintiffs either did not object to (85 designation or finding Plaintiffs’
objection to be without merit, the Court willgeant the Motion. It is therefore,
&
ORDERED that Lance Christopher Kassab and Lance Christopher Kassab,
P.C. D/B/A The Kassab Law Firm’s Motion for Leave to Designate Scott Favre, Scott
M. Favre, PA, LLC and Pression Marketing Group, LLC as Responsible Third
Parties is in all things GRANTED and Scott Favre, Scott M. Favre, PA, LLC and
Precision Marketing code LLC are designated as responsible third parties in this
matter. Re
O
Ae) Signed
& Signed:
& 8/14/2023
S Judge Christine Weems"
57,2023-08-14,RSP,Kassab,Response to Pohl Barratry MSJ,Kassab Defendants' Response to Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses,"Filed August 14, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Kassab responds to Pohl's Rule 166(g) pretrial motion seeking to exclude evidence of barratry and eliminate ten of Kassab's affirmative defenses. Kassab argues barratry evidence is central to both Pohl's claims and Kassab's defenses, and that Rule 166(g) is procedurally improper for this purpose.",MSJ-3,N/A,Phase 4,2023-08-14_RSP_Kassab-Response-to-Pohl-Partial-MSJ_FILED.pdf,Deny Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants,"8/13/2023 12:21 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 78474030
By: Bonnie Lugo
Filed: 8/14/2023 12:00 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
§ k
§ e
SCOTT FAVRE, et al § 281st JUDICCIAL DISTRICT
THE KASSAB DEFENDANTS’
RESPONSE TO PLAINTIFF’S RULE 166(g) tMOTION
Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.
d/b/a The Kassab Law Firm (“Kassab”) files this Reseponse to Plaintiffs’ Michael Pohl
and Law Office of Michael A. Pohl PLLC’s (“Pohul”) Rule 166(g) Motion on Barratry
Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants (“the
Motion”), and in support thereof, woulda show the following.
SUMMARY
Pohl asks the Court to rulee that the issue of whether Pohl committed barratry
is irrelevant and should be efxcluded from evidence. Pohl is so concerned about this
issue that he has made it the subject of several motions seeking similar relief. But
barratry is central not only to Kassab’s defenses; it is central to Pohl’s own claims.
As a preliiminary matter, Pohl’s latest motion is procedurally defective. Rule
166(g) is noot intended as a substitute for normal summary judgment practice. Indeed,
Pohl previously moved for summary judgment on Kassab’s affirmative defenses, later
withdrawing his request to have his summary judgment motion heard. The new
Motion improperly tries to backdoor the same relief.
More substantively, Pohl’s barratry is relevant to virtually every issue in the
case. Take his trade secret claim. He must prove that he is the “rightful, legal, or
equitable” owner of the alleged secrets. If Pohl himself obtained the alleged secrets
illegally, he cannot enjoy the benefits of the trade secret statute. Moreover, for Pohl
to recover his attorneys’ fees on his trade secret claim, he must provek “willful and
malicious misappropriation.” In other words, Pohl’s claim dependsC on Kassab’s state
of mind. Kassab is entitled to prove that his belief about Pohl’s barratry was well-
founded. i
Barratry is also directly linked to Pohl’s claim to recover his fees for defending
the barratry suits. Pohl claims those fees as damages for misappropriation of trade
secrets. How can he seek to recover fees for defending the barratry suits without
talking about the claims in those suits? Iln addition, Kassab asserts proportionate
responsibility for these alleged damaMges; he gets to demonstrate that Pohl incurred
those fees not because of any alleged misappropriation of trade secrets but because
Pohl engaged in barratry. Bariratry therefore hits the heart of the cause of Pohl’s own
damages.
Barratry is releovant to several of Kassab’s defenses, too. As we will explain,
the defenses of illlegality, unlawful acts, attorney immunity, judicial privilege, and
others all brinig the facts surrounding the barratry into the picture.
We understand why Pohl strives so mightily to exclude evidence of his own
contributing conduct. It mortally wounds his claims. But the facts relating to the
barratry underlie and intertwine with all the claims and defenses. The Motion must
be denied.
RESPONSE TO RULE 166(g) MOTION
I. Pohl’s belated use of Rule 166(g) as a last-minute effort to decide
the merits of Kassab’s affirmative defenses is improper.
Rule 166(g) provides that, “to assist in the disposition of thee case without
undue expense or burden to the parties, the court may in its discretion direct the
attorneys for the parties and the parties … to appear beforte it for a conference to
consider … [t]he identification of legal matters to be ruled on or decided by the
court[.]” TEX. R. CIV. P. 166(g). “The pretrial confereence contemplated by this rule
should not be used to determine issues involvinug controverted facts. It is a tool to
‘dispose of issues which are founded upon admitted or undisputed facts.’” McCreight
v. City of Cleburne, 940 S.W.2d 285, 288 a(Tex. App.—Waco 1997, writ denied) (quoting
Provident Life & Acci. Ins. Co. v. Hazlitt, 216 S.W.2d 805, 807 (1949)). Thus, “[t]here
is nothing in the rule authorizineg the trial court to determine the merits of the issues
raised by the pleadings at a pfre-trial hearing, where the parties do not agree to limit
the issues, and the issues raised by the pleadings are not disposed of by admissions.”
Mason v. Tobin, 408 S.W.2d 243, 245 (Tex. Civ. App.—Houston 1966, no writ).
That is eixactly what Pohl wants the Court to do here; obtain summary-
judgment lioke dismissal of Kassab’s affirmative defenses (without providing Kassab
the requisite summary judgment notice), arguing that Kassab’s unlawful acts defense
is precluded under Texas law,1 that the defense of justification is “not available as a
1 Motion, at § B(1).
matter of law,”2 that immunity under the rules of disciplinary procedure does not
apply,3 and that “unclean hands is not a defense to legal claims.”4 Notably, Pohl
already sought to dismiss these defenses via traditional and no-evidence summary
judgment.5 Kassab, along with other defendants, responded.6 Althoughk Pohl set that
motion for hearing, he voluntarily withdrew the notice after KassabC filed his response
and it was never reset. Pohl had his opportunity to obtain dismissal on Kassab’s
affirmative defenses, but he squandered it. Pohl should noit now, at this late in the
game, be permitted to misuse Rule 166(g) as an untimely means to decide the merits
of Kassab’s affirmative defenses. See Mason, 408 S.W.2d at 245.
II. Evidence of Pohl’s barratrous conduct is directly relevant to
Pohl’s claims and his own proportionate responsibility.
Pohl’s Rule 166(g) motion is basead entirely on the false premise that “whether
barratry occurred” is “not legally relevant to the material issues in this case[.]”7
Whether Pohl committed barratery is relevant to establishing Pohl’s own claims, and
his own proportionate responfsibility.
Pohl has pursued claims under TUTSA, which requires a person claiming
ownership of a trade secret to demonstrate “rightful, legal, or equitable” title to the
information. Se
ei TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a). Yet, a person cannot
2 Motion, at § B(2).
3 Motion, at §§ B(3).
4 Motion, at § B(4).
5 See Plaintiffs’ Motion for Partial Summary Judgment on Defendants’ Affirmative Defenses that
Seek to Relitigate Failed Barratry Claims Against Plaintiffs and No-Evidence Motion for Summary
Judgment on the Remaining Affirmative Defenses, filed on August 29, 2022.
6 See Kassab’s Response to Plaintiffs’ Motion for Partial Traditional and No-Evidence Summary
Judgment, filed September 12, 2022.
7 Motion, p. 2.
own or enforce rights in a trade secret for information about ongoing illegal activities.
See Alderson v. United States, 718 F. Supp. 2d 1186, 1200 (C.D. Cal. 2010), aff'd, 686
F.3d 791 (9th Cir. 2012). In Alderson, the Court recognized that a trade secret “only
exists if the secret-holder takes reasonable efforts to maintain the skecrecy of the
information” and that “element simply cannot be satisfied with respCect to information
about ongoing illegality.” Id. The Alderson court noted that its “conclusion is
consistent with the underlying justifications of trade secretis law, which include ‘the
maintenance of standards of commercial ethics’” because “‘[c]ommercial ethics’ are
not maintained if businesses are able to conceal illegality.” Id. (quoting Kewanee Oil
Co. v. Bicron Corp., 416 U.S. 470, 481-482 (1974)).
Therefore, Kassab is entitled to estalblish that Pohl acquired the information
he claims to be confidential trade secrMets – client lists and attorney-client contracts –
through barratry by unlawfully paying Precision and its members to develop the lists
of potential clients and solicitiing them to hire Pohl. If the client lists and contracts
were procured by barratry, then Pohl cannot be a legal, equitable or rightful owner
of the information. TEoX. CIV. PRAC. & REM. CODE § 134A.002(3-a). In that case, Pohl
cannot show he mlade reasonable efforts to maintain the secrecy of the information
because commiercial ethics are not maintained if Pohl is able to conceal his illegal
barratry. Alderson, 718 F. Supp. 2d at 1200; A. Benjamini, Inc. v. Dickson, 2 S.W.3d
611, 613-14 (Tex. App. – Houston [14th Dist.] 1999, no pet.) (a person who obtains
property by illegal means, such as theft, “acquires no title in the property”); Dynamic
Prod. v. Cima Energy Ltd., No. 4:17-CV-01032, 2018 U.S. Dist. LEXIS 66987, at *21
(S.D. Tex. 2018) (company who obtained oil production by trespass was not rightful
owner of property).
Pohl also seeks attorney’s fees as damages under a “tort of another” theory.
This theory has never been embraced by the Texas Supreme Court ankd it has been
flatly rejected by the Houston Court of Appeals. Akin, Gump, StrauCss, Hauer & Feld,
L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 119 (Tex. 2009); Naschke v.
Gulf Coast Conference, 187 S.W.3d 653, 655 (Tex. App.—Hiouston [14th Dist.] 2006,
pet. denied). But to the extent it applies, it is an equitable doctrine that requires the
claimant to be an innocent party. See Brannan Paving GP, LLC v. Pavement
Markings, Inc., 446 S.W.3d 14, 27 (Tex. App.—Corpus Christi 2013, pet. denied).
Whether Pohl committed barratry is rellevant to establishing that he is not an
innocent party, and negating Pohl’s cMlaimed damages under this theory. See Per-Se
Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24
(Tex. App.—Houston [1st Disti.] June 30, 2005, no pet.) (declining to decide whether
exception applied, but holding even if it did, the plaintiff “is not a wholly innocent
party” because the satoellite litigation resulted due to their conduct).
Furthermorle, Pohl seeks his legal fees under TUTSA and exemplary damages,8
and can get th
iem only if he proves willful and malicious misappropriation. TEX. CIV.
PRAC. & REM. CODE § 134A.004(b), 134A.005(3). That means Pohl must establish that
Kassab engaged in “intentional misappropriation resulting from the conscious
disregard of the rights of the owner of the trade secret.” TEX. CIV. PRAC. & REM. CODE
8 First Amended Petition, ¶¶ 46-47.
§ 134A.002(7). Thus, Kassab’s intent is highly relevant. If Kassab believed that Pohl
had committed barratry by paying Precision to acquire the information and,
therefore, the information was property of Precision or Pohl had no legal, rightful or
equitable title to the information, then Pohl cannot establish willful aknd malicious
misappropriation. Thus, whether Pohl committed barratry – orC at least whether
Kassab had a belief that Pohl did – is directly relevant to Pohl’s own affirmative
claims. i
Moreover, whether Pohl committed barratry is directly relevant to his
proportionate responsibility. Under the statute, “a claimant may not recover damages
if his percentage of responsibility is greater than 50 percent.” TEX. CIV. PRAC. & REM.
CODE § 33.001. The trier of fact must consilder whether Pohl caused or contributed to
causing “in any way the harm for wMhich recovery of damages is sought[.]” Id. at §
33.003(a)(1). Here, the harm for which recovery of damages is sought is the purported
taking or misuse of Pohl’s allegiedly confidential information by Precision and others,
and the alleged sale of that information to Kassab who, on behalf of his clients,
brought barratry claimos against Pohl.9 Pohl seeks more than $2.4 million as “actual
loss damages” thalt include “the reasonable fees and expenses [Pohl] incurred in
defending [thei] underlying barratry and grievance proceedings that were made
possible through the [alleged] misappropriation of Pohl’s trade secrets” plus the “the
amount paid [by Pohl] under a settlement agreement [with Precision in the
Mississippi litigation, which was $1 million] that should have prevented the further
9 First Amended Petition, at ¶ 29.
[alleged] misappropriation of Pohl’s trade secrets.”10 Whether Pohl committed the
barratry which gave rise to the barratry claim is relevant to establishing that Pohl is
“in any way” responsible for the harm for which recovery of damages is sought. Id. at
§ 33.003(a)(1). k
III. Evidence of Pohl’s barratrous conduct is directly rCelevant to
Kassab’s affirmative defenses. 
Whether barratry occurred is also relevant to sevteral of Kassab’s live
affirmative defenses for which Kassab will be requesting jury findings at trial.11
Recognizing this fact, Pohl argues that “[a]s a matteer of law, ten of those defenses do
not exist or do not apply in this case.”12 Thus, Puohl asks the Court to “find that the
ten defenses … are not legally viable and will not be considered at trial.”13 The Court
should not consider Pohl’s untimely raequest for summary judgment on Kassab’s
affirmative defenses disguised a Rule 166(g) motion. Mason, 408 S.W.2d at 245.
Regardless, Pohl cannot establiseh that Kassab’s affirmative defenses fail as a matter
of law.14
A. Whether Pohl committed barratry is directly relevant to
many oof Kassab’s defenses which Pohl has failed to
conclusively negate.
The unlawiful acts rule provides that “no action will lie to recover a claim for
10 ExhibitU 1, Pohl’s Amended Response to Disclosures, at 4.
11 Exhibit 2, Kassab’s Proposed Jury Charge.
12 Motion, p. 8.
13 Motion, p. 8.
14 In his Traditional Motion for Summary Judgment filed on August 29, 2022, Kassab demonstrated
that Pohl’s unlawful acts, criminal acts and the in pari delicto doctrines preclude Pohl’s claims as a
matter of law. Kassab incorporates that argument and evidence as if set forth verbatim herein. Kassab
also incorporates the argument and evidence relating to the unlawful acts doctrine (including illegal
or criminal acts or in pari delicto) set forth on pages 9-14 of Nicholson’s Response to Plaintiffs’
Traditional and No-Evidence Motion for Summary Judgment, filed on September 12, 2022.
damages, if to establish it the plaintiff requires aid from an illegal transaction, or is
under the necessity of showing or in any manner depending upon an illegal act to
which he is a party.” Gulf, C. & S. F. RY. Co. v. Johnson, 621, 9 S.W. 602, 602-03
(1888). “Courts have interpreted this defense to mean that if the killegal act is
inextricably intertwined with the claim and the alleged damageCs would not have
occurred but for the illegal act, the plaintiff is not entitled to recover as a matter of
law.” Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex. App.—Diallas 2006, pet. denied).
Courts have applied the doctrine without a conviction of a crime so long as “the
unlawful act barring the plaintiff's claim was in fact illegal conduct.” McNally v.
McNally, No. 02-18-00142-CV, 2020 Tex. App. LEXIS 7211, at *27 (Tex. App.—Fort
Worth Sep. 3, 2020, pet. denied) (mem. op.l).
Pohl argues that the unlawful Macts doctrine is preempted by the proportionate
responsibility statute, relying on Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013).15
But even Dugger recognized ithat unlawful acts doctrine still applied in certain
contexts, like legal malpractice cases. Id. at 833 (“While some courts of appeals have
extended that reasonoing to civil defendants bringing legal malpractice actions, we
have not directly laddressed that issue.”). Thus, the Court expressly “limit[ed] the
holding in th[ait] case to personal injury and wrongful death cases.” Id. at 833.
This is not a personal injury or wrongful death case; it is a conversion and theft
of trade secret case. In contexts outside the wrongful death and personal injury
context, Texas courts have refused to allow a plaintiff to profit from his or her own
15 Motion, p. 9.
illegal conduct. See Sharpe, 191 S.W.3d at 366 (precluding a plaintiff from recovering
from an attorney after a finding that summary judgment evidence established that
the plaintiff's conduct forming the basis of the underlying civil fraud claim was
unlawful). Texas courts have specifically refused to enforce agreemenkts relating to
the unlawful solicitation of clients under the unlawful acts ruCle. See Luong v.
McAllister, No. 01-17-00198-CV, 2018 Tex. App. LEXIS 5998, at *7-8 (Tex. App.—
Houston [1st Dist.] Aug. 2, 2018, pet. denied) (mem. op.). Aind when non-contractual
claims are inextricably intertwined with contracts or agreements to do illegal acts,
Texas courts have dismissed those claims as well because “no action may be
predicated upon an admittedly unlawful act of the party asserting it.” Denson v.
Dallas Cnty. Credit Union, 262 S.W.3d 84l6, 855 (Tex. App.—Dallas 2008, no pet.)
(barring “claims arising in tort becMause they are inextricably intertwined with
[plaintiff’s] illegal contract to sell automobiles in Dallas County without a license.”);
Villanueva v. Gonzalez, 123 S.iW.3d 461, 463 (Tex. App.—San Antonio 2003, no pet.)
(holding claims for breach of fiduciary duty and fraud failed because they arose out
of an illegal contract tohat violated the occupation code).
Pohl arguesl that these doctrines do not apply because he “has not asserted any
contract claimi against Kassab, nor do any of his tort claims involve enforcing the
terms of an allegedly illegal contract.”16 But Pohl’s claims are inextricably
intertwined with his unlawful agreement with Precision. Pohl alleges that he
contracted with Precision to “to provide public relations services … to screen and
16 Motion, p. 10.
10
liaise with Pohl’s clients/prospective clients” – e.g. commit barratry – during which
time “Precision gained access to Pohl’s [allegedly] confidential and proprietary
information and property, included trade secret materials” – e.g. the client lists and
contracts that Precision accumulated during its unlawful solicitation ekfforts.17 Pohl
alleges that Precision “illegally misappropriated” this information Cand then “secretly
sold” the information to Kassab,18 who then “solicited [Pohl’s] clients/prospective
clients to act as plaintiffs … to bring cases against Pohl for ailleged barratry and other
claims.”19 Pohl’s claims fail because “they are inextricably intertwined with [Pohl’s]
illegal contract” with Precision. Denson, 262 S.W.3d at 855.
B. Whether Pohl committed barratry is directly relevant to
Kassab’s justification and immunity defenses which Pohl
either fails to address or falils to negate.
Recognizing that Kassab’s defeMnse of justification renders evidence relating to
Pohl’s acts of barratry relevant, Pohl contends that justification “is not a defense to
Pohl’s claims”20 because it is ani affirmative defense to a claim of tortious interference
with contract.”21 But just because the defense is commonly applied to one type of
claim does not mean, oas Pohl contends, that it is “not a recognized defense” to other
types of claims, sulch as theft of trade secrets or conversion. In fact, justification is
common appliied in conversion cases because the alleged theft must occur “without
justification.” Morey v. Page, 802 S.W.2d 779, 787 (Tex. App.—Dallas 1990, no writ).
17 First Amended Petition, ¶ 20.
18 First Amended Petition, ¶ 21.
19 First Amended Petition, ¶ 29.
20 Motion, p. 10.
21 Motion, p. 11.
11
Regardless, Pohl conflates Kassab’s justification defense with the defense of
immunity or privilege – which Pohl has failed to negate – and which further renders
facts relating to Pohl’s barratry relevant to this litigation.
1. Barratry is relevant to Kassab’s defense of privkilege.
The Texas Supreme Court has often looked to the RestaCtement (Third) of
Unfair Competition and Restatement of Torts when defining Texas law governing
trade secret claims. See Tex. Dep't of Pub. Safety v. Cox Teix. Newspapers, L.P., 343
S.W.3d 112, 126 n.5 (Tex. 2011); In re Union Pac. R.R. Co., 294 S.W.3d 589, 592 (Tex.
2009). With respect to the issue of privilege, that Restatement provides:
The existence of a privilege to disclose another's trade secret depends
upon the circumstances of the particular case, including the nature of
the information, the purpose of the dlisclosure, and the means by which
the actor acquired the informaation. A privilege is likely to be
recognized, for example, inM connection with the disclosure of
information that is relevant to public health or safety, or to the
commission of a crime or tort, or to other matters of substantial
public concern. e
REST. 3D OF UNFAIR COMPEOT f ITION, § 40, cmt. c (emphasis added); RESTATEMENT OF
TORTS § 757 cmt. d
(“A privilege to disclose may also be given by the law,
independently of the other's consent, in order to promote some public interest.”). The
Reporters’ Notesi to Section 40 indicate that “the policies underlying the privilege are
similar to tohose supporting the numerous state and federal ‘whistleblower’ statutes
that prohibit retaliatory personnel actions by employers against employees who
disclose violations to public officials.” REST. 3D OF UNFAIR COMPETITION, § 40,
Reporters' Notes, cmt. c.
Here, even if the list identifying Pohl’s attorney-client agreements and lists
12
identifying Pohl’s clients and prospective clients are his trade secrets (and they are
not), and even if Pohl kept that information confidential (and he did not), Kassab was
privileged to obtain the information and use it to notify Pohl’s former clients or
prospective clients that the way they were solicited to hire Pohl waks illegal and
unethical. REST. 3D OF UNFAIR COMPETITION, § 40, cmt. c; PhiladeClphia Plaza-Phase
II v. Bank of Am. Nat'l Trust & Sav. Assoc. No. 322, 2002 Phila. Ct. Com. Pl. LEXIS
13, 2002 WL 1472338, at *5 (Pa. Com. Pl. May 30, 2002) i(citing Section 757 of the
Restatement of Torts to conclude that purported disclosure of trade secrets was
“proper, if not privileged.”); Sys. Operations, Inc. v. Sci. Games Dev. Corp., 425 F.
Supp. 130, 136 (D.N.J. 1977) (stating that “disclosure of trade secret information may
itself be privileged” and concluding that it lwas).
2. Barratry is relevMant to Kassab’s defenses of attorney
immunity and judicial proceedings privilege.
Kassab is also immune ferom Pohl’s claims under the doctrines of attorney
immunity and the judicial prfoceedings privilege, two defenses raised and established
as a matter of law by Kassab,22 which Pohl fails to address in the instant Motion.
Facts relating to whether Pohl committed barratry are directly relevant to those
defenses. i
Undeor the doctrine of attorney immunity, “an attorney does not have a right of
22 In his Traditional Motion for Summary Judgment filed June 8, 2021, Kassab established, as a matter
of law, the attorney immunity defense. In the Traditional Motion for Summary Judgment filed on
August 29, 2022, Kassab established, as a matter of law, the judicial proceedings privilege and
attorney immunity. Kassab incorporates those motions and the evidence attached thereto for all
purposes herein. See TEX. R. CIV. P. 58.
13
recovery, under any cause of action, against another attorney arising from conduct
the second attorney engaged in as part of the discharge of his duties in representing
a party.” Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st Dist.] 1992, writ
denied) (emphasis added). “[A]n attorney is immune from liability to nkonclients for
conduct within the scope of his representation of his clients.” YounCgkin v. Hines, 546
S.W.3d 675, 681 (Tex. 2018). The inquiry “focuses on the kind of conduct at issue
rather than the alleged wrongfulness of said conduct.” Id.i “That is, a lawyer is no
more susceptible to liability for a given action merely because it is alleged to be
fraudulent or otherwise wrongful.” Id. “Merely labeling an attorney’s conduct
‘fraudulent’ does not and should not remove it from the scope of client representation
or render it ‘foreign to the duties of an attolrney.’” Id. at 483. Even “criminal conduct
is not categorically excepted from the Mprotections of attorney civil immunity when the
conduct alleged is connected with representing a client in litigation.” Bethel v.
Quilling, Selander, Lownds, Wiinslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020);
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015) (“an attorney’s conduct
may be wrongful but sotill fall within the scope of client representation”).
The case Talylor v. Tolbert, 644 S.W.3d 637 (Tex. 2022) is instructive on why
attorney immuinity applies here. In Taylor, the attorney was accused of violating state
and federal laws prohibiting wiretapping because the attorney obtained and used the
plaintiff’s communications in violation of the statute. Id. at 643. The plaintiff brought
a statutory claim against the attorney which permitted recovery of civil damages. Id.;
see also TEX. CODE CRIM. PROC. § 18A.502. The attorney moved for traditional
14
summary judgment, “arguing she is immune from liability as a matter of law because
the plaintiffs’ claims all stem from her role as an attorney in the modification
proceeding.” Id. at 644. The trial court agreed, but the court of appeals reversed. Id.
The Supreme Court reversed the court of appeals. Id. It concluded thatk the attorney
was, “in all respects, engaging in the office, professional training, sCkill, and authority
of an attorney in the ways that she allegedly used and disclosed the materials her
client provided.” Id. at 649. “Because [the attorney’s] condiuct falls squarely within
the confines of attorney immunity, the alleged criminality or wrongfulness of the
conduct does not perforce preclude its availability as an affirmative defense.” Id. The
court also held that “Texas’s wiretap statute does not expressly repudiate the common
law or the attorney-immunity defense.” Id.l
Here too, Kassab’s conduct whicMh forms the basis of Pohl’s claims falls squarely
within the confines of attorney immunity, regardless of whether it is alleged to have
violated the TUTSA because tihat statute does not expressly repudiate the defense.
Pohl is suing Kassab because he allegedly obtained purportedly stolen information in
violation of the TUTSoA and then “solicited [Pohl’s] clients/prospective clients to act
as plaintiffs … to lbring cases against Pohl for alleged barratry and other claims.”23
The essence ofi Pohl’s claims against Kassab are “that Kassab bought Pohl’s client list
from [Precision] so that Kassab could send advertisements to Pohl’s former clients
and solicit them to become Kassab’s clients in barratry suits against Pohl.” Kassab v.
Pohl, 612 S.W.3d 571, 578 (Tex. App.—Houston [1st Dist.] 2020, pet. denied)
23 Amended Petition, ¶ 29.
15
(characterizing Pohl’s claims against Kassab). Pohl even seeks as damages “the
reasonable fees and expenses incurred in defending [the] underlying barratry and
grievance proceedings that were made possible through the misappropriation of
Pohl’s trade secrets.”24 k
Moreover, in this very case, the court of appeals opined tChat “the alleged
purchase of Pohl[’s] client list for those clients’ contact information,
followed by the mailing of attorney advertisementis to those individuals
about specific types of claims they might be able to pursue against a
specifically identified attorney, qualifies as statements or conduct that
arose out of a commercial transaction involving the type of legal services
Kassab provides.” Kassab, 612 S.W.3d atl 578 (emphasis added). The court opined
that, “the intended audience of [KaMssab’s alleged] statement or conduct were
individuals with potential legal claims who Kassab sought to represent in
barratry suits against Pohli.” Id. at 579 (emphasis added).
The acquisition of clients and filing of lawsuits are actions taken “to facilitate
the rendition of legalo services.” Youngkin, 546 S.W.3d at 682; Clayton v. Oldcastle
Materials Tex., Incl., No. 09-18-00063-CV, 2019 Tex. App. LEXIS 1112, at *12, 15 (Tex.
App.—Beaumoint Feb. 14, 2019, no pet.) (applying attorney immunity to attorney’s
conduct which included “selling his legal services to the City as a potential client” and
subsequent conduct which “occurred in the course of his undertaking to represent”
those clients). The fact that Kassab is alleged to have committed the misconduct prior
24 Exhibit 1, Pohl’s Amended Responses to Disclosures, p. 4.
16
to any litigation is immaterial because “attorney immunity applies to claims based
on conduct outside the litigation context[.]” Haynes & Boone, LLP v. NFTD, LLC, 631
S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey Hanger, 467 S.W.3d at 485 (concluding that
attorney was immune from conduct that occurred after litigation had enkded). In other
words, Pohl’s characterization of Kassab’s activities as part of a buCsiness transaction
that occurred prior to litigation does not negate attorney immunity because Kassab
engaged in the conduct as part of his ultimate provision of liegal services to his client.
See Haynes & Boone, 631 S.W.3d at 78-79, 81 (applying attorney immunity to lawyer
conduct committed as part of business transaction). Indeed, in this case, the court of
appeals concluded that all of Kassab’s conduct for which Pohl complains “arose out
of a commercial transaction involvinlg the type of legal services Kassab
provides.” Kassab, 612 S.W.3d at 57M8 (emphasis added).
Pohl also fails to address or negate the judicial proceedings privilege. “The
judicial-proceedings privilege iis an absolute privilege that covers any statement made
by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the
proceedings, includinog statements made in open court, pre-trial hearings,
depositions, affidavlits and any of the pleadings or other papers in the case.” Landry's,
Inc. v. Animali Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021) (internal quotations
omitted). “The judicial-proceedings privilege exists to facilitate the proper
administration of the justice system. It does so by relieving the participants in the
judicial process from fear of retaliatory lawsuits for statements they make in
connection with the proceeding itself.” Id. at 48. It attaches even to “communications
17
preliminary to a proposed judicial proceeding” if “the communication has some
relation to a proceeding that is actually contemplated in good faith and under serious
consideration by the witness or a possible party to the proceeding.” Id. at 48-49.
“Even in the pre-suit context, however, the privilegke protects
communications that are themselves preparatory to tChe lawsuit.” Id.
(emphasis added). The privilege protects all communications that are “necessary to
set the judicial machinery in motion.” Id. at 50 (quoti
nig RESTATEMENT (SECOND)
OF TORTS § 586 cmt. a) (emphasis added).
Here, Pohl has sued Kassab in retaliation for Kassab “solicit[ing] …
clients/prospective clients to act as plaintiffs … to bring cases against Pohl for alleged
barratry and other claims.”25 Pohl admitsl that he is suing Kassab for statements
Kassab made to prospective clients Mwhich spawned the litigation and grievance
proceedings:26
25 Amended Petition, at ¶ 29.
26 Exhibit 3, December 2021 Deposition of Michael Pohl, at 122.
18
Because Pohl’s claims against Kassab arise out of communications that Kassab
made in prospective (solicitation letters) and actual judicial proceedings (the barratry
litigation and grievance process), Pohl’s claims against Kassab are barred by the
judicial proceedings privilege. See Crain v. Smith, 22 S.W.3d 58, 62-63k (Tex. App.—
Corpus Christi 2000, no pet.) (holding that statements in letteCr sent before the
lawsuit began were protected by the judicial-proceedings privilege); Highland Capital
Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00i055-CV, 2016 Tex. App.
LEXIS 442, at *10-11 (Tex. App.—Dallas Jan. 14, 2016, pet. denied) (mem. op.)
(applying attorney immunity to claim that attorney engaged in “malicious conduct
with respect to its illegal acquisition, retention, use, and threatened disclosure of [the
plaintiff’s] proprietary and confidential inlformation” that “it knew to be stolen and
proprietary in furtherance of its scMheme to extort, slander, and disparage [the
plaintiff]” and “refusing to return and cease use of [the plaintiff’s] proprietary
information”). i
Both the defenses of attorney immunity and the judicial proceedings privilege
necessarily require dioscussion of facts relating to Pohl’s barratry. In fact, Question
No. 8 on Kassab’s lproposed jury charge incorporates these defenses and the concept
of privilege anid asks “Did Kassab use or disclose Pohl’s information for the purpose
of reporting, investigating, or filing a lawsuit relating to a suspected violation of law,
a commission of a crime, or other matters of substantial public concern?”27 The
question instructs the jury on Texas law relating to barratry.28 Thus, information
27 Exhibit 2, Kassab’s Proposed Jury Charge, p. 15.
28 Exhibit 2, Kassab’s Proposed Jury Charge, p. 15.
19
about whether barratry occurred and the facts and circumstances giving rise to the
barratry litigation is relevant. Pohl’s contention that “whether barratry occurred” is
“not legally relevant to the material issues in this case”29 is false.
3. Barratry is relevant to Kassab’s defenskes of
immunity under Texas Rule of Disceiplinary
Procedure 17.09. C
The only immunity defense that Pohl does address is Kassab’s claim that he is
immune under Rule 17.09 of the Texas Rules of Disciplinaryi Procedure.30 Pohl argues
that “Pohl’s claims, and thus the lawsuit, are not predicated on Kassab’s involvement
in the grievance process, [so] Rule 17.09 does not apply.”31 Kassab has already
explained why this is not true and why he is entitled to immunity as a matter of law.32
Pohl has sued Kassab because Kassab allelgedly “used information from [Pohl’s] files
in the grievance proceedings thatM [Kassab] personally filed or had clients file”33
and Pohl is suing Kassab to recover “the reasonable fees and expenses incurred in
defending [the] underlying bairratry and grievance proceedings that were made
possible through the misappropriation of Pohl’s trade secrets.”34 Thus, Pohl’s lawsuit
is, at least in part, “poredicated upon the filing of a Grievance or participation in the
attorney disciplin
alry and disability system.” TEX. RULES DISCIPLINARY P. R. 17.09.
Rule 17.09 proivides “absolute and unqualified” immunity for such conduct, which
29 Motion, p. 2.
30 Motion, p. 12-13.
31 Motion, p. 12.
32 In the Traditional Motion for Summary Judgment filed on August 29, 2022, Kassab established, as
a matter of law, the defense of immunity pursuant to Texas Rule of Disciplinary Procedure 17.09,
Kassab also incorporates that motion and the evidence attached thereto. See TEX. R. CIV. P. 58.
33 December 2021 Deposition of Michael Pohl, at 122 (emphasis added).
34 Exhibit 1, Pohl’s Amended Responses to Disclosures, p. 4 (emphasis added).
20
“extends to all actions at law or in equity.” Id.
Pohl argues that Rule 17.09 applies only to “certain officials connected to the
State Bar” and not to Kassab because he “is not a State Bar official.”35 But the rule
plainly applies to “the Complainant or witness” involved in the grievancke process. Id.
(“No lawsuit may be instituted against any Complainant or wCitness predicated
upon the filing of a Grievance or participation in the attorney disciplinary and
disability system.”) (emphasis added). Pohl admits that Kassiab was both.36 Therefore,
no lawsuit may be instituted against Kassab that is predicated upon Kassab’s
involvement in the grievance process. See id. Because Pohl is suing Kassab to recover
fees Pohl incurred defending the grievances filed by Kassab or his clients against
Pohl, the claim is necessarily “predicated ulpon” the filing of the grievances, rendering
immunity provided by the rule applicMable to Kassab. See id.
Pohl concedes that a “small portion” of his damages “are connected to the
grievance process” but argues ithat is insufficient to trigger Rule 17.09 because Pohl’s
claims allege that Kassab engaged in other wrongful conduct unrelated to the
grievance process.37 Bout under Rule 17.09, “[n]o lawsuit” may be instituted if it is
“predicated upon” lthe filing of a grievance, and immunity “extends to all actions at
law or in equitiy.” Id. Because at least part of Pohl’s claims and request for damages
is predicated on the grievance proceedings, the entire suit is barred, regardless of
whether Pohl alleges that Kassab engaged in otherwise tortious or wrongful conduct.
35 Motion, pp. 12-13.
36 December 2021 Deposition of Michael Pohl, at 122.
37 Motion, p. 13.
21
See Crampton v. Farris, 596 S.W.3d 267, 274-76 (Tex. App.—Houston [1st Dist.] 2019,
no pet.) (claim for destruction of evidence related to grievance proceeding barred by
immunity); Burch v. State Bar of Tex., No. 07-19-00224-CV, 2020 Tex. App. LEXIS
1409, at *3 (Tex. App.—Amarillo Feb. 19, 2020, pet. denied) (lawksuit against
attorneys for commission who purportedly “engaged in misconCduct related to a
bankruptcy proceeding in which [plaintiff] was involved” was barred by immunity
because it occurred in relation to a grievance proceeding). i
Accordingly, whether Pohl committed barratry and Kassab’s participation in
the grievance process relating to Pohl’s barratry is relevant to Kassab’s Rule 17.09
defense, and thus the instant Motion should be denied.
4. Barratry is relevant lto Kassab’s defenses of unclean
hands. a
The doctrine of unclean hands applies to claims involving equitable remedies.
See In re Nolle, 265 S.W.3d 48e7, 494 (Tex. App.—Houston [1st Dist.] 2008, orig.
proceeding). Pohl initially
sofught “injunctive relief”38 and it is well-established that
“[i]njunctive relief is an equitable remedy.” Fetter v. Wells Fargo Bank Tex., N.A.,
110 S.W.3d 683, 688 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (emphasis
added). Recogniziing this, Pohl argues that he “previously pled injunctive relief in his
petition, to ostreamline issues for trial, Pohl will no longer seek this relief.”39 But Pohl
has not filed any amendment, and thus the claim seeking equitable relief is still live,
rendering Kassab’s unclean hands defense applicable. Moreover, Pohl has pursued
38 First Amended Petition, at ¶ 45.
39 Motion, p. 14.
22
claims under TUTSA, which requires a person claiming ownership of a trade secret
to demonstrate “legal, or equitable” title to the information. See TEX. CIV. PRAC. &
REM. CODE § 134A.002(3-a) (emphasis added). Because Pohl’s claim to ownership of
the information is grounded in equity, Kassab is entitled to show Pkohl’s unclean
hands after engaging in his illegal barratry scheme to acquire theC information that
Pohl claims are his trade secrets.
CONCLUSION AND PRAYER D i
For these reasons, Defendants Lance Christopher Kassab and Lance
Christopher Kassab, P.C. d/b/a The Kassab Law Firm ask the Court to deny Plaintiffs’
Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted
by the Kassab Defendants. l
MTHE KASSAB LAW FIRM
/s/ David Eric Kassab
e David Eric Kassab
i Texas State Bar No. 24071351
f 1214 Elgin Street
Houston, Texas 77004
Telephone: (713) 522-7400
o E-service: eserve@kassab.law
l FOGLER, BRAR, O’NEIL & GRAY, LLP
i /s/ Murray Fogler
o Murray Fogler
mfogler@foglerbrar.com
Texas State Bar No. 07207300
909 Fannin, Suite 1640
Houston, Texas 77002
(713) 481-1010
(713) 574-3224 (Fax)
ATTORNEYS FOR KASSAB DEFENDANTS
23
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been
forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the
13th day of August, 2023.
/s/ David Eric Kassab k
David Eric Kassab e
24
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 78474030
Filing Code Description: Answer/ Response / Waiver
Filing Description: Kassab Defendants' Response to Plaintiffst' Rule 166(g)
Motion i
Status as of 8/14/2023 8:18 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 8/13/2023 12:21:33 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
Jean C.Frizzell jfriazzell@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
Todd Taylor ttaylor@jandflaw.com 8/13/2023 12:21:33 PM SENT
Scott M.Favre c scott@favrepa.com 8/13/2023 12:21:33 PM SENT
Lawyer Wade f lawyerwade@hotmail.com 8/13/2023 12:21:33 PM SENT
Chris C.Pappas  cpappas@krcl.com 8/13/2023 12:21:33 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 8/13/2023 12:21:33 PM SENT
Non-Party Dona Pohl C DonaLyann@yahoo.com 8/13/2023 12:21:33 PM SENT
Non-Party Edgar Jaimesa edgarsroom@gmail.com 8/13/2023 12:21:33 PM SENT
Lance Kassab lance@kassab.law 8/13/2023 12:21:33 PM SENT
David Kassab o david@kassab.law 8/13/2023 12:21:33 PM SENT
Nicholas PiercUe nicholas@kassab.law 8/13/2023 12:21:33 PM SENT
Lance Kassab eserve@kassab.law 8/13/2023 12:21:33 PM SENT
Andrea Mendez andrea@kassab.law 8/13/2023 12:21:33 PM SENT
Murray JFogler mfogler@foglerbrar.com 8/13/2023 12:21:33 PM SENT
Murray Fogler mfogler@fbfog.com 8/13/2023 12:21:33 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 8/13/2023 12:21:33 PM SENT
Benjamin Ritz britz@thompsoncoe.com 8/13/2023 12:21:33 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 8/13/2023 12:21:33 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 78474030
Filing Code Description: Answer/ Response / Waiver
Filing Description: Kassab Defendants' Response to Plaintiffst' Rule 166(g)
Motion i
Status as of 8/14/2023 8:18 AM CST s
Case Contacts 
Raul Herman Suazo 24003021 suazo@mdjwlawg.com 8/13/2023 12:21:33 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 8/13/2023 12:21:33 PM SENT
D Kassab david@kassab.law 8/13/2023 12:21:33 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 8/13/2023 12:21:33 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 8/13/2023 12:21:33 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT
L Kassab c lance@kassab.law 8/13/2023 12:21:33 PM SENT
Kelly Skelton f reception@kassab.law 8/13/2023 12:21:33 PM SENT
Harris Wells  hwells@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT"
55,2023-03-29,RSP,Pohl,Response to Amended MSJ,Plaintiffs' Response in Opposition to the Amended Motions for Summary Judgment Filed by the Kassab Defendants,"Filed March 29, 2023 in the 281st Judicial District Court (Judge Weems) by Jean C. Frizzell of Reynolds Frizzell LLP. Responds to Kassab's Amended MSJ (filing #50). Pohl argues the Amended Motion is a disguised motion to reconsider that reiterates the same arguments and evidence denied by the 189th District Court on October 31, 2022. Pohl objects to oral hearing under 281st Court Procedure I(I).",MSJ-4,N/A,Phase 4,2023-03-29_RSP_Pohl-Response-to-Kassab-Amended-MSJ_FILED.pdf,Deny Kassab's Amended Motions for Traditional and No-Evidence Summary Judgment,"3/29/2023 5:09 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 74146534
By: Julia Adkins
Filed: 3/29/2023 5:09 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE AMENDED MOTIONS FOR
SUMMARY JUDGMENT FILED BY THE KASsSAB DEFENDANTS
Plaintiffs Michael Pohl and Law Office of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the Amended Motions for Traditional and No-Evidence Summary Judgment (the
“Amended Motion”) filed by Defendants Lance Christopher Kassab and Lance Christopher
Kassab, P.C., d/b/a The Kassab Law Firm (coallectively “Kassab”).
I. INTRODUCTION
The Court should not entertaien motions to reconsider filed under another name, especially
when such a motion fails to makef any statement about why reconsideration is warranted. Despite
its name, the Amended Motiyon does not specify what prior motions it purports to amend. But, in
substance, it seeks recoCnsideration of Kassab’s previous motions for summary judgment that the
189th District Courat denied. Kassab does not explain why those prior rulings were wrong, nor
does he attemptf to explain whether the facts, arguments, or law have changed from the previously
denied mUotions. Kassab has not demonstrated that the Court should reconsider or revisit those
rulings, or that any prior ruling was erroneous. Thus, the Court should deny the Amended Motion.
Pohl also objects to the hearing on Kassab’s Amended Motion. The vast majority of the
Amended Motion is directly copied and pasted from Kassab’s prior motions for traditional and no-
evidence summary judgment that were denied by the 189th District Court. Kassab seeks the same
relief and uses the same arguments as contained in his denied motions. Thus, the Amended Motion
is a motion to “reconsider” with a different title. Under this Court’s procedures, “[a]ll motions to
reconsider are heard by submission only.” Procedure I(I) of the 281st Judicial District Court.
Kassab has not requested reconsideration of the prior summary judgment mkotions—instead
he purports to seek a new ruling on already decided issues. See generally Amelnded Motion. This
failure to request reconsideration alone warrants the Court denying the cAmended Motion. But
even if the Court were to reconsider the prior denials of the summary sjudgment motions, the result
would be no different. The 189th District Court reached the corsrect result, and Kassab’s failure to
explain otherwise is telling. As discussed below, Pohl’s prior briefing on these issues is
dispositive, and Kassab’s limited presentation of new information in the Amended Motion does
not justify a different result.
II. BaACKGROUND
On August 29, 2022, Kassab filed motions for traditional and no-evidence summary
judgment (“Kassab’s Original MSJs”e). Kassab’s No-Evidence MSJ sought judgment on Pohl’s
affirmative claims.1 Kassab’s Trfa f ditional MSJ also sought judgment on Pohl’s claims, as well as
on Kassab’s affirmative defyenses.2 On September 12, 2022, Pohl filed responses to Kassab’s
Original MSJs that demConstrated that summary judgment in Kassab’s favor was not proper.3
Pohl’s Respaonse to Kassab’s No-Evidence MSJ—which attached over 30 exhibits of
relevant evidenfce—demonstrated that there was sufficient evidence to support each element of
Pohl’s afUfirmative claims.4 Pohl’s Response to Kassab’s Traditional MSJ laid out how Kassab
1 See Kassab’s No-Evidence Motion for Summary Judgment, filed Aug. 29, 2022 (“Kassab’s No-Evidence MSJ”).
2 See Kassab’s Traditional Motion for Summary Judgment, filed Aug. 29, 2022 (“Kassab’s Traditional MSJ”).
3 See Pohl’s Response in Opposition to the No Evidence Motions for Summary Judgment Filed by the Kassab
Defendants and the Nicholson Defendants, filed Sept. 12, 2022 (“Pohl’s Response to Kassab’s No-Evidence MSJ”);
Pohl’s Response in Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholson Defendants, filed Sept. 12, 2022 (“Pohl’s Response to Kassab’s Traditional MSJ”).
4 See generally Pohl’s Response to Kassab’s No-Evidence MSJ (including the evidence cited therein).
failed to carry his summary judgment burden—Kassab did not show that there were no disputed
material facts, nor did he demonstrate a right to judgment as a matter of law.5 After an oral hearing,
the 189th District Court denied Kassab’s Original MSJs on October 31, 2022.6
On January 4, 2023, Kassab filed his Motion to Reconsider Traditional ankd No-Evidence
Motions for Summary Judgment, in which he asked Judge Craft to reconsidler prior rulings on
Kassab’s Original MSJs.7 Kassab filed this motion and set it for hearingc with the 189th District
Court, despite the fact that this lawsuit had been transferred to this Csourt. In this motion, Kassab
reiterated the same arguments and evidence contained in Kassabs’s Original MSJs—however, that
motion did explicitly request reconsideration of the denial of Kassab’s Original MSJs.8
Without explanation, on February 24, 2023, Kassab filed the Amended Motion. It does
not state what motion(s) it amends. See generally Amended Motion. Like Kassab’s Motion to
Reconsider, that he filed the prior month, Kassaab’s Amended Motion contains the same arguments
and evidence contained in Kassab’s Original MSJs.9 However, Kassab removed references to
reconsideration of Kassab’s Originale MSJs. See id. On its face, the Amended Motion does not
purport to be based on new evidenfce, changes in the law, or new arguments that were not presented
in Kassab’s Original MSJys. See id. However, Kassab’s omission of any discussion of
reconsideration does Cnot change the substance of the Amended Motion. At best, it is an
amendment to Kassab’s prior request for reconsideration of the denial of Kassab’s Original MSJs.
5 See generally Pohl’s Response to Kassab’s Traditional MSJ (including the evidence cited therein).
6 See Court Order, entered Oct. 31, 2022.
7 See Kassab’s Motion to Reconsider Traditional and No-Evidence Motions for Summary Judgment, at 3 (“Kassab
files this Motion to Reconsider to correct the erroneous ruling of the prior judge relating to the Kassab’s Traditional
and No-Evidence Motions for Summary Judgment.”).
8 Compare Kassab’s Motion to Reconsider Traditional and No-Evidence Motions for Summary Judgment, with
Kassab’s No-Evidence MSJ, and Kassab’s Traditional MSJ.
9 Compare Amended Motion, with Kassab’s No-Evidence MSJ, and Kassab’s Traditional MSJ.
III. POHL’S OBJECTION TO KASSAB’S AMENDED MOTION
Pohl objects to Kassab setting the Amended Motion for an oral hearing, as it is almost
identical to and seeks the same relief as Kassab’s Original MSJs that were denied by the 189th
District Court. Thus, the Amended Motion is a motion to “reconsider.” Undker this Court’s
procedures, “[a]ll motions to reconsider are heard by submission only.” Procedlure I(I) of the 281st
Judicial District Court. c
IV. POHL’S INCORPORATION OF PRIOR BRsIEFING
Pohl incorporates fully by reference his prior summary judgment briefing—both the
arguments and the attached evidence—into this response teo Kassab’s Amended Motion. This
includes the following briefing and exhibits:
• Pohl’s Response in Opposition to the No-E n vidence Motions for Summary Judgment Filed
by the Kassab Defendants and the Nichoilson Defendants & Exhibits (filed Sept. 12, 2022).
• Pohl’s Response in Opposition to the Traditional Motions for Summary Judgment Filed
by the Kassab Defendants and the Nicholson Defendants & Exhibits (filed Sept. 12, 2022).
fV. DISCUSSION
All of the issues presented in Kassab’s Amended Motion—whether traditional or no-
evidence arguments for soummary judgment—have been previously ruled on in Pohl’s favor. The
same result is proper lhere, and the Court should deny the Amended Motion.
Kassab’si no-evidence summary judgment arguments fail because Pohl has previously
provided sunfficient evidence of every element of his claims in Pohl’s Response to Kassab’s No-
Evidence MSJ. Because this addressed every element of Pohl’s claims, a subsequent no-evidence
motion makes no sense—the same showing of evidence defeats such a challenge. At best,
subsequent developments might give rise to disputed issues of material fact, but such issues
preclude summary judgment in their own right.
Kassab’s traditional summary judgment arguments fare no better. Pohl’s Response to
Kassab’s Traditional MSJ raised issues of disputed material facts or exposed flaws in Kassab’s
legal arguments that precluded summary judgment in Kassab’s favor. Kassab asserts the same
flawed arguments in his Amended Motion. Once there are disputed issues of mkaterial fact that
prevent summary judgment on an issue, additional evidence on that disputed flactual issue makes
no difference in a summary judgment analysis. The five new exhibits (cout of 65 exhibits total)
attached to Kassab’s Amended Motion, at best, provide additional stestimony on disputed facts.
The Court should reject Kassab’s attempt to seek reconsiderastion under a different name and
should deny Kassab’s Amended Motion.
A. Kassab is not entitled to no-evidence summary judgment.
The 189th District Court made the right decision when it denied Kassab’s No-Evidence
MSJ. The Court should deny Kassab’s Amended Motion outright because, as was shown through
his prior briefing, Pohl has come forward with sufficient evidence to support each element of his
claims.10 Nothing has changed sincee Kassab’s No-Evidence MSJ was denied, and nothing in
Kassab’s Amended Motion suggef f sts that a different result is proper here.11
In Pohl’s prior briefying, Pohl put forward evidence sufficient to, at a minimum, raise a
genuine issue of materCial fact on each element of his three claims. See generally Pohl’s Response
in Opposition to thea No-Evidence Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholsfon Defendants (including the evidence attached and incorporated therein). By the
10 As stated above, Pohl incorporates fully by reference his prior briefing and evidence on the no-evidence summary
judgment issue. See generally Pohl’s Response to Kassab’s No-Evidence MSJ (including the evidence cited therein).
11 The wording of Kassab’s no-evidence challenge to Pohl’s claims is almost entirely copied, word-for-word, from
Kassab’s No-Evidence MSJ. Compare Amended Motion, at 88–94, with Kassab’s No-Evidence MSJ. The sole
addition is a paragraph in which Kassab argues that “Pohl has no evidence that he is wholly innocent in the illegal
obtainment of any client for which his claims are based.” See Amended Motion, at 93. This is not part of any element
of Pohl’s claims, and Kassab does not explain otherwise. Kassab cites no authority to explain the relevance of this
assertion, nor does he establish that Pohl has the burden of proof with respect to this issue. See generally id. Thus,
this argument cannot be a proper basis for no-evidence summary judgment.
nature of a no-evidence summary judgment, once a party has presented sufficient evidence to
defeat such a motion, further no-evidence challenges on the same elements of a claim are futile.
Because Kassab previously raised a no-evidence challenge to each element of Pohl’s
claims, and Pohl provided sufficient evidence to support each element of his kclaims, the no-
evidence challenge to Pohl’s claims in Kassab’s Amended Motion necessarilly fails.12 For this
reason, and for the reasons stated in Pohl’s prior briefing incorporated hcerein, Pohl requests that
the Court deny Kassab’s Amended Motion. s
B. Kassab is not entitled to traditional summary judgmsent.
Kassab makes no effort to explain to the Court how the 189th District Court erred when it
previously denied Kassab’s Traditional MSJ. Nothing material has changed since Kassab’s
Traditional MSJ was denied, and the Amended Motion reiterates the same rejected arguments and
evidence. The Court should deny Kassab’s Amended Motion because, as Pohl demonstrated in
his prior briefing, Kassab’s arguments and evidence do not entitle Kassab to judgment as a matter
of law. Thus, Pohl requests that the Ceourt deny Kassab’s Amended Motion.
1. Pohl’s prior briefing dfefeats Kassab’s Amended Motion.
The 189th District Cyourt was right on the law and the facts when it denied Kassab’s
Traditional MSJ. The Court should deny Kassab’s Amended Motion because, excluding the
handful of exceptiaons discussed below, Kassab relies on the same arguments, exhibits, and
authority contaifned in Kassab’s No-Evidence MSJ to seek the same relief a second time. Nothing
has changed since this relief was first denied, and neither should the Court’s ruling on these issues.
As stated above, Pohl incorporates fully by reference his prior briefing and evidence on the
traditional summary judgment issues.13 Because the portions of the Amended Motion addressing
12 See Court Order, entered Oct. 31, 2022 (denying Kassab’s No-Evidence MSJ).
13 See generally Pohl’s Response to Kassab’s Traditional MSJ (including the evidence cited therein).
traditional summary judgment are largely identical to Kassab’s prior motion, further briefing on
this issue would be unnecessarily duplicative. Compare Amended Motion, at 2–88, with Kassab’s
Traditional MSJ. For the reasons stated in Pohl’s Response to Kassab’s Traditional MSJ the Court
should deny Kassab’s Amended Motion. k
2. Kassab’s citations to limited new materials does not justify recon
silderation or suggest
that summary judgment is proper.
While the issues, arguments, and the vast majority of the wordinrgi and exhibits are directly
copied from Kassab’s Original MSJs, Kassab does cite five new exDhibits and two new cases in the
Amended Motion. However, even if this new material were reslevant and applicable—which Pohl
disputes—it makes no difference, because disputed issuers of material fact or flaws in Kassab’s
legal arguments prevent summary judgment.
Kassab cites the limited new material in clonnection with three arguments in the Amended
Motion: (1) Pohl’s trade secret claim fails aMs a matter of law due to a failure to sufficiently protect
the trade secrets; (2) Pohl’s trade secreto claim fails as a matter of law because Pohl does not own
the trade secrets and property at issuce in his claims; and (3) that Pohl cannot recover on his claims
because Kassab’s affirmative defense of illegality or the unlawful acts doctrine is conclusively
established as a matter of law. None of these arguments support granting summary judgment.
i. Pohl reasonably protected his trade secret information, including information
concaerning clients.
Kassab fargues that Pohl’s claim for theft of trade secrets fails because Kassab has
established as a matter of law that “Pohl did not take any measures, let alone reasonable measures,
to keep his alleged information or client lists secret.” See Amended Motion, at 59–62 (citing Exs.
61–64 to the Amended Motion). Kassab’s evidence does not establish this fact. Even if
Kassab’s presentation of the testimony were accurate—and it is not—it would at most raise issues
of disputed material facts that preclude the Court from granting Kassab’s Amended Motion. Pohl’s
prior briefing presented controverting evidence on this precise issue that precludes summary
judgment.14
Pohl testified in his deposition regarding the reasonable steps he took to protect the client
information, confidential information, and trade secrets that are the subject mattekr of this suit.15
This alone is sufficient to raise a fact issue for the jury to decide regarding whelther the steps Pohl
took were reasonable under the circumstances to protect Pohl’s trade secrects. However, additional
evidence supports Pohl’s position that he protected the confidentisality of his trade secrets—
including the testimony of the same individuals that Kassab relises on to argue otherwise.
Kassab cites the testimony of Scott Walker, Kirk Ladner, and Steve Seymour to suggest
that Pohl failed to sufficiently protect information related to clients. See Amended Motion, at 61
(citing Exs. 62-64 to the Amended Motions). But Kassab’s citations to their testimony lacks
context. Those same three individuals testifiaed that Pohl limited access to his trade secrets, and
that Pohl ensured that those who had access to that information understood the confidential
character of that information.16 Thise testimony is also sufficient to raise a fact question on this
issue and prevent summary judgmfent.
Kassab also omits relyevant testimony from Mary Arnold—a former employee of Pohl’s—
to suggest that she didC not protect the confidentiality of Pohl’s trade secret information. See
Amended Motion, at 59–60. But Kassab fails to note that, in the same deposition he cites, Mrs.
Arnold testifiefdf about how she understood that Pohl owned the relevant information and that it
was not tUo be shared or discussed around third parties.17 The omitted portions of Mrs. Arnold’s
14 See Pohl’s Response to Kassab’s Traditional MSJ, at 25–26 (including the evidence cited therein).
15 See Pohl Deposition, at 15:21-16:18, attached as Ex. U to Pohl’s Response to Kassab’s Traditional MSJ.
16 See Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7; Deposition of Kirk Ladner, at 355:18–358:10,
372:7–374:24, 377:4–23; Deposition of Steve Seymour, at 96:16-24, 223:1-20, attached as Exs. D, V, & W,
respectively, to Pohl’s Response to Kassab’s Traditional MSJ. See also Pohl Declaration ¶¶ 14-15, attached as Ex. A
to Pohl’s Response to Kassab’s Traditional MSJ.
17 See Deposition of Mary Arnold, at 83:14–24, 159:24–160:21, attached as Exhibit A.
testimony help demonstrate that there are disputed issues of material fact that prevents summary
judgment on this issue.
Kassab cannot show that he is entitled to judgment as a matter of law on Pohl’s trade secret
claim by selectively citing testimony that is contradicted, often by the same witnkess in the same
deposition. Even if Kassab’s evidence were relevant to showing that Pohl’s inlformation was not
reasonably protected—and it is not at all clear that the factors discussed bcy Kassab are relevant or
dispositive of this inquiry—there is ample controverting evidence abosut the measures took by Pohl
to protect the confidentiality of his trade secret information. Thesse disputed issues of material fact
prevent summary judgment on this issue.
ii. Kassab has not conclusively refuted, as a matter of law, Pohl’s ownership of the
relevant trade secrets and confidential information.
Kassab also argues that Pohl’s claims for ltheft of trade secrets and conversion fail because
Kassab can conclusively establish that “PohMl does not own the purported trade secrets or property
that he alleges had been converted.” Seoe Amended Motion, at 64. Kassab cites four new exhibits
in support of this argument. See id.c at 65 (citing Exs. 62–65 to the Amended Motion). However,
this issue was already addressed, and there are disputed issues of material fact that prevent
summary judgment. Kassab’s “new” evidence does not demonstrate that he can carry his burden
to establish this issue as a matter of law.
Kassab clcaims that “Walker, Ladner and Seymour all testified that all of their marketing
assets, including client contact information and lists were created by them and their marketing
companies and belonged to them.” See id. This statement is misleading at best. To the extent that
the cited testimony even concerns Pohl’s trade secrets and confidential information at issue in this
case—a fact Kassab fails to establish, despite it being his burden to do so—those same individuals
gave conflicting testimony stating the relevant documents and information were Pohl’s, belonged
to Pohl, and were kept confidential at his request.18 Such testimony—which Pohl cited in his prior
briefing—at a minimum raises a fact issue that precludes summary judgment on this issue.19
iii. Kassab not only fails to conclusively prove his affirmative defense of “unlawful
acts,” but the defense fails as a matter of law under binding precedent.
The final issue is Kassab’s argument that he conclusively established hris unlawful acts
doctrine affirmative defense, which he contends precludes any recovery by Pohl. See Amended
Motion, at 66. For this argument, Kassab cites four of the five new exhriibits. Id at 69 (citing Exs.
61–64 to the Amended Motion). Kassab also cites two new, out-Dof-state federal court decisions
that he claims support the application of his affirmative defensse. See id at 72–73. But even with
this new material, Kassab fails to carry his burden to estarblish his affirmative defense as a matter
of law. Rather, binding precedent demonstrates that his defense fails as a matter of law.
While Pohl disputes whether Kassab’s alrguments about barratry and the unlawful acts
doctrine have any relevance to this lawsuit aMt all, to the extent that the unlawful acts doctrine could
have any relevance to this case, it is preeompted by Texas’s proportionate responsibility statute. In
Dugger v. Arredondo, the Texas Sucpreme Court explicitly found that “the common law unlawful
acts doctrine is no longer a viable defense.” See 408 S.W.3d 825, 831–32 (Tex. 2013). This issue
was briefed previously, and Pohl directs the Court’s attention to that prior briefing, which Pohl
incorporates fully by reference.20 At the outset, the fact that this defense has been preempted
justifies denying cKassab’s Amended Motion on this issue.
Even if his defense were not preempted and Kassab’s evidence did suggest that Pohl
engaged in improper solicitation—two things Kassab has not demonstrated—Kassab would still
18 See Deposition of Scott Walker, at 283:17-284:22, 316-319; 321:5-324:7, 327-329; Deposition of Kirk Ladner, at
119:21-120:15, 340:10-342:17, 350:11-351:21, 355:18–358:10, 372:7–374:24, 377:4–23; Deposition of Steve
Seymour, at 96:16-24, 223:1-20, attached as Exs. D, V, & W, respectively, to Pohl’s Response to Kassab’s Traditional
MSJ.
19 See Pohl’s Response to Kassab’s Traditional MSJ, at 27; Pohl’s Response to Kassab’s No-Evidence MSJ, at 9–10.
20 See Pohl’s Response to Kassab’s Traditional MSJ, at 19–23.
10
not be entitled to judgment as a matter of law on this defense. First, as discussed throughout the
prior briefing, there is controverting evidence on this issue that raises disputed issues of material
fact.21 Furthermore, even if Kassab were able to show that some illegal act occurred, Pohl does
not need to rely on any purported illegal act to establish his claims in this lawsuit.k22 Kassab does
not even attempt to establish otherwise. See Amended Motion, at 69. Thus, thel application of this
defense is not triggered in the first place. See Carcamo-Lopez v. Does 1 tchrough 20, 865 F. Supp.
2d 736, 767 (W.D. Tex. 2011) (“But when the illegal conduct arisess in a defense and not in the
plaintiff’s case, the unlawful acts rule will not bar a plaintiff’s cslaims.”).
The two new cases Kassab cites are not binding and have no application to the facts of this
case. The first new case Kassab cites is Alderson v. United States, 718 F. Supp. 2d 1186, 1200
(C.D. Cal. 2010). See Amended Motion, at 72. Quoting dicta, Kassab argues that: “A person
cannot ‘receive trade secret protection for infaormation about ongoing illegal activities.’” See id.
(quoting Alderson, 718 F. Supp. 2d at 1200). But the reasoning of Alderson has no application to
this case. Alderson dealt with a plainetiff who, in a prior case, filed a False Claims Act action on
behalf of the federal government fconcerning Medicare fraud uncovered by the plaintiff. Alderson,
718 F. Supp. 2d at 1188. Ayt issue was whether the proceeds obtained by the plaintiff from the
prior False Claims ActC action were “correctly characterized as ordinary income” or capital gains
for purposes of taxation. See id. at 1201. It was in this context that the court considered whether
the plaintiff hafdf a protectable property interest in his knowledge of “information about ongoing
illegal acUtivities”—that is, how the Medicare fraud occurred that was the basis of the prior False
Claims Act action. See id. at 1200. The facts of this case are not analogous. Here, Pohl does not
21 See id. at 4–12, 23–27 (including the evidence cited therein).
22 See Pohl’s Response to Kassab’s No-Evidence MSJ, at 4–17 (discussing each element of Pohl’s claims without
requiring reference to or reliance on any illegal acts).
11
claim trade secret protection concerning how any illegal conduct was undertaken. Instead, Pohl
contends his customer lists and related information are entitled to trade secret protection.23
The second new case Kassab cites is Merckle GmbH v. Johnson & Johnson, 961 F. Supp.
721, 733 (D.N.J. 1997). See Amended Motion, at 72. Kassab cites to this case clakiming that there
is a privilege to disclose trade secrets “in connection with the disclosure of linformation that is
relevant to public health or safety, or to the commission of a crime or tocrt, or to other matters of
substantial public concern.” See Amended Motion, at 72 (citing Mserckle GmbH v. Johnson &
Johnson, 961 F. Supp. 721, 733 (D.N.J. 1997) & Restatement (Tshird) of Unfair Competition § 40,
cmt. c). However, there is a reason that Kassab cites this non-precedential opinion. No Texas case
has adopted this statement from the Restatement. Even if Texas were to adopt this privilege,
Kassab’s conclusory discussion does not carry his burden to establish this defense.
Kassab’s unlawful acts doctrine defensae fails as a matter of law under the binding precedent
of Dugger v. Arredondo. But even if this remained a proper defense, Kassab’s evidence does not
conclusively establish this defense eas a matter of law. The facts put forth by Kassab are
controverted by other evidence, afnd even if Kassab’s purported facts could be established, Kassab
has not conclusively shown tyhat they would trigger application of the unlawful acts doctrine, given
that Pohl’s claims do nCot require reference to or reliance on any purported unlawful act.
VI. CONCLUSION
For the fforegoing reasons, and for the reasons stated in Pohl’s prior briefing—which is
incorporaUted fully herein by reference—Plaintiffs Michael Pohl and Law Offices of Michael A.
Pohl respectfully request that the Court deny Kassab’s Amended Motion.
23 See Pohl’s Response to Kassab’s No-Evidence MSJ, at 9–10 (discussing how “the materials at issue included Pohl’s
client lists, client files, and thousands of contracts between Pohl and his clients”).
12
Dated: March 29, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 29th day of March, 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
13
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 74146534
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response to Kassab Defendantst Amended
Motions for Summary Judgment i
Status as of 3/30/2023 8:24 AM CST s
Case Contacts 
Name BarNumber Email TimgestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/29/2023 5:09:20 PM SENT
Harris Wells hwells@reynoldsfrizzell.com3/29/2023 5:09:20 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/29/2023 5:09:20 PM SENT
Scott M.Favre scott@favrepa.coma 3/29/2023 5:09:20 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/29/2023 5:09:20 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/29/2023 5:09:20 PM SENT
Misty Davis mdavis@creynoldsfrizzell.com 3/29/2023 5:09:20 PM SENT
Lance Kassab eservef@kassab.law 3/29/2023 5:09:20 PM SENT
Lance Kassab lance@kassab.law 3/29/2023 5:09:20 PM SENT
David Kassab david@kassab.law 3/29/2023 5:09:20 PM SENT
Nicholas Pierce Cnicholas@kassab.law 3/29/2023 5:09:20 PM SENT
Andrea Mendez a andrea@kassab.law 3/29/2023 5:09:20 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT
Murray Fogler o mfogler@fbfog.com 3/29/2023 5:09:20 PM SENT
D Kassab U david@kassab.law 3/29/2023 5:09:20 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT
L Kassab lance@kassab.law 3/29/2023 5:09:20 PM SENT
Kelly Skelton reception@kassab.law 3/29/2023 5:09:20 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT"
54,2023-03-15,RPL,Kassab,Reply ISO Mtn to Rule,Kassab Defendants' Reply in Support of Their Motion to Rule on Plaintiffs' Objections to Kassab's Deposition on Written Questions of Scott Favre,"Filed March 15, 2023 in the 281st Judicial District Court before Judge Christine Weems. Kassab replies to Pohl's response (filing #53) opposing Kassab's motion to rule on objections to his DWQ of Scott Favre, arguing his questions are not leading, Pohl's own questions are leading, and Pohl's boilerplate objections are waived.",MSJ-2R,N/A,Phase 4,2023-03-15_RPL_Kassab-Reply-ISO-Mtn-to-Rule_FILED.pdf,Overrule Pohl's objections to Kassab's deposition on written questions of Scott Favre,"3/15/2023 5:09 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73705718
By: Bonnie Lugo
Filed: 3/15/2023 5:09 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
§ k
§ e
SCOTT FAVRE, et al § 281st JUDICCIAL DISTRICT
KASSAB DEFENDANTS’ REPLYIN SUPPORT OF THIER
MOTION TO RULE ON PLAINTIFFS’ OBJEtCTIONS
TO THE KASSAB DEFENDANTS’ NOTICEi TO TAKE
DEPOSITION ON WRITTEN QUESTIONS OF SCOTT FAVRE
TO THE HONORABLE JUDGE CHRISTINE WEEMeS:
Defendants, Lance Christopher Kassab aund Lance Christopher Kassab, P.C.
D/B/A The Kassab Law Firm (collectively “Knassab”) file this, their Reply In Support
of Their Rule on Plaintiffs’ Objectionsa to the Kassab Defendants Notice to Take
Deposition on Written Questions of Scott Favre and would respectfully show the
following. e
KASSAB DOES N OOT f AGREE THAT HIS QUESTIONS ARE LEADING,
BUT POHL’S QUESTIONS TO FAVRE WERE
Plaintiffs claimo “[t]here is no dispute that Kassab asked leading questions,
nor does Kassab clontend that any of Pohl’s “leading” objections were directed at
non-leading quiestions.”1 Pohl’s claim is false as none of the questions propounded
by Kassab are leading in the first place and Kassab made that abundantly clear to
Pohl’s counsel in an email, stating “[t]he objections are all meritless.”2 After stating
that all the objections were meritless, Kassab stated “[a]dditionally, your clients’
1 Exhibit F, p. 3
2 Exhibit A.
leading objections are improper” for two other reasons: leading questions are
permitted on cross examination and for hostile witnesses.3 Kassab’s motion to rule
simply focused on Plaintiffs’ absurd argument—meaning even if Kassab’s questions
were leading, which they are not, Favre should be treated as a hostile wkitness.
One need only look to the questions Pohl served Favre to Csee that Pohl has
persuaded Favre to contradict his prior testimony to help Pohl with his frivolous
retaliatory lawsuit against Kassab. i
For instance, Favre has already testified in an affidavit and in Federal Court
in Mississippi that:
• In May 2016, he purchased Precision Marketing Group, LLC
(PMG) from Scott Walker and Kirk Ladner and is the sole
member of PMG.4 l
• PMG has developed propMrietary marketing lists consisting of the
names of persons and business on the Gulf Coast, particularly in
Mississippi.5
• PMG’s marketingi lists were and are solely the work product and
property of POMfG, developed during the normal course of its
marketing business.6
• Marketinog firms such as PMG develop lists of marketing
contracts (individually and/or businesses) and sell information
from lthose lists to their clients.7
• P f iMG used its marketing lists to identify potential clients and
othe lists themselves have always remained the proprietary
business property of PMG.8
3 Id. Emphasis added.
4 Exhibit B, par. 3.
5 Id., par. 11.
6 Id., par. 12.
7 Id., par. 13.
8 Id., par. 14.
• PMG’s marketing lists contain the names of thousands of
persons who eventually became Pohl’s former clients, and/or
whom Pohl solicited for representation.9
• PMG’s marketing lists constitute one of PMG’s most valuable
assets.10
• PMG never offered to sell any contracts, did not esell any
contracts and did not sell any marketing lists.11 C
• He agreed to give PMG’s marketing lists to Tina iNicholson to do
whatever she wanted to do with them.12 t
• He allowed Tina Nicholson to use PMG’s marketing lists, but
the list was never sold to anyone.13 s
• Michael Pohl and his counsel, Billy Shepherd “could care less if
that list gets out there or not.”14
Yet, after Pohl nonsuited Favre without any settlement terms whatsoever,
Pohl, in cahoots with Favre’s counsel, Daavid Wade, sent DWQ’s to Favre designed to
contradict Favre’s prior testimony rather than having a normal deposition.15 For
instance, an example of Pohl’s DWQ’s are as follows:
• Not all lists oOf contact information for individuals or businesses
that Precision possessed were lists of marketing contacts that
Precision opwned, correct?16
• In fact, at times, Precision had possession of lists of contact
infoarmlation for individuals or businesses that were created on
hialf of Mr. Pohl, correct?17
9 Id., par. 16.
10 Id., par. 20.
11 Exhibit C, p. 91-94
12 Id., p. 92.
13 Id., p. 92-93
14 Id., p. 93
15 Exhibits D & E.
16 Exhibit E, quest. 3
17 Id., quest. 4
• What had you been told, if anything, prior to executing Exhibit 4
regarding Michael Pohl and his consent to the purchase of the
assets outlined in Exhibit 4?18
Pohl’s “leading” questions suggest an answer for Favre. They suggest that
Favre possessed marketing lists not owned by PMG. They also suggest that PMG
possessed lists of contact information created on behalf of Pohl Crather than PMG.
They even suggest that Favre had been told that he needed Michael Pohl’s consent
to purchase PMG’s assets. Favre has already testified thiat PMG is a marketing
company he purchased in May of 2016 and that PMG developed marketing lists
containing contact information of businesses and individuals. He testified that all
of the marketing contact lists and contracts were PMG’s sole property and that he
was PMG’s sole member. Favre has also lalready testified that he freely gave this
information to Tina Nicholson to do wMhatever she wanted to do with it so that Pohl
could be held accountable for his illegal acts.19
Pohl’s questions are desiigned to suggest that Favre perjured himself when he
testified earlier. Of course, Pohl now objects to almost every question posed to
Favre by Kassab in ao transparent attempt to keep all of the facts that decimate his
frivolous retaliatorly case from coming to lite. In any event, Kassab’s questions are
not vague or aimbiguous, and they are certainly not leading.
KASSAB’S QUESTIONS ARE NOT LEADING
Leading questions are questions that suggest a specific desired answer.
Implement Dealers Mut. Ins. Co. Castleberry, 368 S.W.2d 249, 253 (Tex. Civ. App.—
18 Id., quest. 15
19 Exhibit C, p. 92-93
Beaumont 1963, writ ref’d n.r.e.) (‘“[T]he essential element necessary to render the
question improper is that it suggests the specific answer desired.”’) (quoting 1
CHARLES T. MCCORMICK & ROY R. RAY, TEXAS PRACTICE, TEXAS LAW OF EVIDENCE
CIVIL AND CRIMINAL § 571, at 451 (2d ed. 1956))); MCCORMICK ON EVI k DENCE, supra
note 2, § 6, at 11 (leading question “is one that suggests to the wCitness the answer
desired by the examiner”). See generally 3 WIGMORE, supra not
e 303, §§ 769-772.
Pohl made leading objections to Kassab’s questionsi 15-19, 24-26, 29, 31-39,
45-47, 53, 56-70, 73-79, 91-96, 109-112, 114-118, 120-122 and 129-145. All of these
leading objections are frivolous. A sampling of the questions which Pohl lodged
leading objections are as follows
• 15. Is PMG a marketing colmpany?
• 56. Is it true or falseM that you are listed as the purchaser in
Exhibit 4? 
• 63. Did you purchase all of the assets listed in paragraphs
1.1.1 through 1.1i.7 of Exhibit 4?
• 73. After you purchased PMG, were you the 100% owner of
PMG? p
• 78. Did you tell Lance Kassab that you needed Michael Pohl’s
conselnt to give any documents owned by PMG to Lance Kassab?
• 7f i9. Did you tell Lance Kassab that any of the documents you
ogave to Lance Kassab belonged to Michael Pohl?
• 91. Did the amendments contained in Exhibit 6 become
effective as of noon on the 9th day of December, 2015?
• 94. Does Exhibit 6 add paragraph 1.1.7 to Exhibit 4?
• 111. Did you use PMG’s client contact information to help you
or one of your companies bring claims against BP?
• 112. Did you purchase PMG so that you could help bring
claims against Michael Pohl?
• 117. Did you tell Lance Kassab that you had/were in lawful
possession of Precision’s marketing lists? e
• 133. Did you testify under oath at the Octobter 25, 2017
hearing in front of Judge Starrett that, “At no tiime was it ever
sold to anyone.”? t
• 134. Does “it” in question 133 refer to Precision’s marketing
lists containing Precision’s client contacts information?
• 139. Did you testify under oath at the October 25, 2017
hearing in front of Judge Starrett that Michael Pohl and Billy
Shepherd told you, “We could care less if that list gets out there
or not.”?
• 140. Does the “We” in quaestions 139 refer to Michael Pohl and
Billy Shepherd?
These are not leading questions as they do not suggest a specific answer.
Even if they could be construied as doing so, they are not “impermissible” leading
questions. The mere fact that a question may be answered by a simple “yes” or “no”
does not render it ano impermissibly leading question. Wheeler v. State, 433 S.W.3d
650, 655 (Tex. Aaplp.—Houston [1st Dist.] 2014, pet. ref’d) (citing Newsome v. State,
829 S.W.2d, 2f i69 (Tex. App.—Dallas 1992, no pet.). It is only when the question
suggests which answer is desired, “yes” or “no,” that it becomes a leading
question. Newsome, 829 S.W.2d at 269. Although many of these questions can be
answered with a “yes” or “no”, they are not leading because they do not suggest
what the answer should be. The answer could be “yes” or “no.” Thus, the questions
do not suggest a “specific desired answer.”
Moreover, leading questions may also be permitted to clarify a witness’s
previous testimony or to jog the memory of a witness whose recollectkion has been
exhausted. See MCCORMICK ON EVIDENCE, supra note 2, § 6, at 1C3l see also Holbert
v. State, 457 S.W.2d 286, 289 (Tex. Crim. App. 1970). Additionally, rather than
abandoning all efforts to bring out a witnesses’ testimoniy, a judge may exercise
discretion in allowing leading questions so that the full truth may be presented. See
MCCORMICK ON EVIDENCE, supra note 2, § 6, at 13; 3 WIGMORE, supra note 303, §
770, at 161-62, § 773, at 166.
Kassab has attempted to take thel deposition of Favre for more than two
years. Favre has resisted being depMosed for various reasons, the latest being his
health. Favre admits that he is exhausted and cannot sit for a normal deposition.
Thus, Kassab has been rendeired helpless with his pursuit to depose Favre in a
normal fashion where questions can be stated over and rephrased to accommodate
an objection, even ao frivolous objection. Here, Kassab only has the awkward
approach of DWQ’ls to get usable testimony that will prove Pohl’s case is illusory at
best, brought iin bad faith, at worst. It is understandable as to why Pohl wishes to
have none of this testimony in front of a jury. However, it is highly prejudicial to
prevent Kassab from attaining this testimony and presenting it to a jury.
Kassab attempted to make answering the DWQ’s easy for Favre because of
his condition by providing documents wherein Favre was a party to refresh or jog
his memory. See MCCORMICK ON EVIDENCE, supra note 2, § 6, at 13l see also Holbert
v. State, 457 S.W.2d 286, 289 (Tex. Crim. App. 1970). Yet, the DWQ’s are phrased so
an answer is not suggested as Favre can answer “yes” or “no” to many of the
questions. Moreover, none of Kassab’s questions suggest a correckt answer by
containing a tag phrase such as “didn’t he,” “isn’t it true that,” “wCould you agree” or
“correct” as many of Pohl’s questions do. Nor do the questions instruct the witness
how to answer the questions. Thus, none of Kassab’s iquestions are leading or
improper.
POHL WAIVED HIS OBJECTIONS
Pohl made many vague and ambiguous objections to many of Kassab’s
DWQ’s. However, Pohl fails to complyl or carry his burden regarding these
objections, thus, they are waived. M
It is settled that a responding party must have “a good faith factual and
legal basis” for each objectioin “at the time the objection is made.” TEX. R. CIV.
P. 193.2(c) (emphasis added). “The party must state specifically the legal or
factual basis for the oobjection and the extent to which the party is refusing
to comply with
tlhe request.” TEX. R. CIV. P. 193.2(a) (emphasis added). Thus, a
responding pairty who objects to a request because it is vague and ambiguous,
equally available, unduly burdensome, duplicative, overly broad, or assumes facts
not in evidence – as Plaintiffs have done here – must explain “specifically” at the
time the objection is made why the discovery request is objectionable and must
state “the extent to which [they are] refusing to comply” with the request. See id.
But here, Plaintiffs merely asserted the same or similar improper, prophylactic,
boilerplate objections in an attempt to obstruct justice and hide evidence with
improper and frivolous boiler plate objections.20 By failing to comply with proper
discovery procedures, Plaintiffs have waived their objections. See TE k X. R. CIV. P.
193.2(e); In re Soto, 270 S.W.3d 732, 735 (Tex. App.—AmCarillo 2008, orig.
proceeding [mand. denied]) (party’s failure to comply with rules of civil procedure
waives objections). i
KASSAB’S QUESTIONS ARE NOT VAGUE AsND AMBIGUOUS
Moreover, a responding party has a duty to use common sense when
interpreting words and phrases used in discovery requests, giving them their
ordinary meanings, their specialized melaning used in the industry at issue, or
defining them as the opposing party Mhas defined or used them in its pleadings. See
In re Swepi L.P., 103 S.W.3d 578, 590 (Tex. App.—San Antonio, 2003, orig.
proceeding) (recognizing thati the terms used in the discovery requests, although
undefined, were “easily defined in the context of the lawsuit.”). Plaintiffs and their
counsel hold themselvoes out as accomplished seasoned lawyers; surely together they
can understand thle terms used in Kassab’s DWQ’s in the context of the lawsuit or
given their oridinary meaning, even if they are not defined. Plaintiffs should not
have to define words such as “PMG’s clients” for counsel who claims to be a “Top
100 Super Lawyer.”21
20 Exhibit D, p. 25.
21 https://www.reynoldsfrizzell.com/attorneys/jean-frizzell/
Additionally, simply because a typo exists in a question or a phrase is not
spelled exactly the same as depicted in a document that is attached to a DWQ, does
not warrant an objection. It is difficult enough to take a pertinent deposition on
DWQs without well-seasoned, Super Lawyers lodging frivolous objecktions because
they somehow cannot understand a sentence due to a typo. C It is even more
obstructive and disingenuous for Plaintiffs to lodge an objection as to vague and
ambiguous due to a passage written that is not exact fromi a document, when they
had to look at the document to be able to discern that a typo existed. This
underscores Plaintiff’s intentional obstructionism through frivolous objections. Pohl
has abused the discovery process by failing to use common sense in an effort to
obstruct Favre’s testimony. The Court sholuld not condone such obstructionism.
CONCL M USION & PRAYER
For the reasons stated herein, and in the motion to rule, Pohl’s objections
should be overruled. i
 Respectfully submitted,
o THE KASSAB LAW FIRM
i __________________________
f i DAVID ERIC KASSAB
o Texas State Bar No. 24071351
LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
NICHOLAS R. PIERCE
Texas State Bar No. 24098263
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
Facsimile: 713-522-7410
10
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that on this date, March 15, 2023, I electronically fileed this document
with the Clerk of the Court using the eFile.TXCourts.gov electrConic filing system
which will send notification of such filing to all parties or counsel of record.
_______________________
DAVID eERIC KASSAB
11
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 73705718
Filing Code Description: No Fee Documents
Filing Description: Kassab Defendants' Reply ISO Motion to Rtule on
Objections to DWQ to Favre i
Status as of 3/16/2023 8:32 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/15/2023 5:09:32 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 3/15/2023 5:09:32 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/15/2023 5:09:32 PM SENT
Scott M.Favre scaott@favrepa.com 3/15/2023 5:09:32 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/15/2023 5:09:32 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/15/2023 5:09:32 PM SENT
Misty Davis c mdavis@reynoldsfrizzell.com 3/15/2023 5:09:32 PM SENT
Lance Kassab f eserve@kassab.law 3/15/2023 5:09:32 PM SENT
Andrea Mendez  andrea@kassab.law 3/15/2023 5:09:32 PM SENT
Chris C.Pappas cpappas@krcl.com 3/15/2023 5:09:32 PM SENT
Non-Party Witness Billy SheCpherd bshepherd@spcounsel.com 3/15/2023 5:09:32 PM SENT
Non-Party Dona Pohl a DonaLyann@yahoo.com 3/15/2023 5:09:32 PM SENT
Lance Kassab lance@kassab.law 3/15/2023 5:09:32 PM SENT
David Kassab o david@kassab.law 3/15/2023 5:09:32 PM SENT
Nicholas PiercUe nicholas@kassab.law 3/15/2023 5:09:32 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/15/2023 5:09:32 PM SENT
Murray Fogler mfogler@fbfog.com 3/15/2023 5:09:32 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 3/15/2023 5:09:32 PM SENT
Benjamin Ritz britz@thompsoncoe.com 3/15/2023 5:09:32 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 3/15/2023 5:09:32 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 3/15/2023 5:09:32 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 3/15/2023 5:09:32 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 73705718
Filing Code Description: No Fee Documents
Filing Description: Kassab Defendants' Reply ISO Motion to Rtule on
Objections to DWQ to Favre i
Status as of 3/16/2023 8:32 AM CST s
Case Contacts 
D Kassab david@kassab.lagw 3/15/2023 5:09:32 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/15/2023 5:09:32 PM SENT
L Kassab lance@kassab.law 3/15/2023 5:09:32 PM SENT
Kelly Skelton reception@kassab.law 3/15/2023 5:09:32 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 3/15/2023 5:09:32 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 3/15/2023 5:09:32 PM SENT"
53,2023-03-14,RSP,Pohl,Response to Mtn to Rule,Plaintiffs' Response in Opposition to Kassab's Motion to Rule on Plaintiffs' Objections to Kassab's Deposition on Written Questions of Scott Favre,"Filed March 14, 2023 in the 281st Judicial District Court by Pohl's counsel Jean C. Frizzell of Reynolds Frizzell LLP. Pohl opposes Kassab's motion seeking to overrule Pohl's objections to Kassab's deposition on written questions (DWQ) of Scott Favre. This is Kassab's second motion — the first version argued leading questions were 'cross examination' but was revised to remove that argument as directly contrary to the Texas Rules of Civil Procedure.",MSJ-2R,N/A,Phase 4,2023-03-14_RSP_Pohl-Response-to-Kassab-Mtn-to-Rule_FILED.pdf,Deny Kassab's Motion to Rule and sustain Pohl's objections to the questions contained in Kassab's DWQ,"3/14/2023 9:54 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73666907
By: Bonnie Lugo
Filed: 3/14/2023 9:54 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO KASSAB’S MOTION TO RULE
Plaintiffs Michael Pohl and Law Office of Michael As. Pohl PLLC (collectively “Pohl”)
respond in opposition to Defendants Lance Christopher rKassab and Lance Christopher Kassab
P.C.’s (collectively, “Kassab”) Motion to Rule on Plaintiffs’ Objections to the Kassab Defendants’
Notice to Take Deposition on Written Questions lof Scott Favre (the “Motion”).1
I. MBACKGROUND
The parties have been unable to osecure an oral deposition of Scott Favre (“Favre”), and the
parties have been told his capabilityc to appear is limited by his ongoing cancer treatment. Favre
is a former co-defendant, and Pohl alleged Favre conspired with Kassab to misappropriate Pohl’s
trade secrets and propertyp, including by selling that information to Kassab.2 Although Kassab
admits that he made a six-figure, up-front payment to Favre, he contends the payment was made
to hire Favre as anc e i xpert to assist Kassab with bringing barratry claims against Pohl.3 Pohl alleges
the payment woas made in exchange for misappropriating Pohl’s confidential information.4
1 This is the second motion Kassab filed regarding Pohl’s objections. Kassab initially tried to argue that his leading
questions were proper because they constituted “cross examination.” But Kassab filed a subsequent motion that
removed that argument, as it was directly contrary to the wording of the Texas Rules of Civil Procedure. Compare
Kassab Defendants’ Motion to Rule on Plaintiffs’ Objections to the Kassab Defendants’ Notice to Take Deposition
on Written Questions of Scott Favre, filed Feb. 28, 2023, with Motion (filed March 2, 2023).
2 See Pohl’s First Amended Petition ¶¶ 21–23.
3 See Deposition of Lance Kassab at 82:21–83:16, 98:15–99:8, 103:5–9, attached as Exhibit A.
4 See Pohl’s First Amended Petition ¶¶ 22–23.
After it became clear that Favre would not sit for an oral deposition, Pohl served a notice
for a deposition on written questions (“Pohl’s DWQ”) on February 3, 2023, to ensure the parties
secured Favre’s testimony before trial. See Pohl’s DWQ, attached as Exhibit 1 to the Motion.
Instead of serving questions in response, Kassab served a notice for a new deposkition on written
questions (“Kassab’s DWQ”), on February 17, 2023.5 See Kassab’s DWQ, atltached as Exhibit 2
to the Motion. Kassab did not limit himself to “direct questions” of Favrec—as provided for under
the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 200.3(a). Insstead, Kassab asked leading
questions of Favre. Kassab also asked questions with typos sthat affected the meaning of the
questions and numerous questions that were misleading, vague, or were otherwise improper. Pohl
properly asserted objections to these questions.
II. DISyCUSSION
The Court should sustain Pohl’s objections and deny the Motion because Kassab is not
entitled to ask leading questions to a co-conspirator on direct examination, and Pohl’s form
objections to Kassab’s questions aree warranted on their face given the wording of Kassab’s
questions. Kassab’s Motion is jusft over two pages in length, and it fails to specify which of Pohl’s
objections Kassab takes issuye with. The Motion should be summarily denied.
A. Pohl’s objectCions to Kassab’s leading questions should be sustained because
Kassab has not shown that Favre is a hostile witness.
The Courct should sustain Pohl’s objections to Kassab’s leading questions because the
Texas Rules oof Evidence generally prohibit the use of leading question on direct examination, and
Kassab has not shown that any exception to that rule applies. Kassab now argues that Favre—
5 Kassab initially filed a version of Kassab’s DWQ for service on February 17, 2023, but it appears that a subsequent
filing was accepted on February 20, 2023. The precise date is not material, as Kassab’s DWQ purports on its face to
be a new deposition on written questions, rather than a response to Pohl’s DWQ. Additionally, while it is not directly
at issue, to Pohl’s knowledge, Kassab did not secure Favre’s consent to a second deposition on written questions—
which is necessary given that Favre was not subpoenaed.
who Kassab was aligned with for four years and who was a co-defendant with and a co-conspirator
of Kassab—is a hostile witness to Kassab. See Motion at 1–2. But Kassab’s allegations do not
demonstrate that Favre is a hostile witness. Thus, Kassab’s leading questions are improper.
The default rule is that “[l]eading questions should not be used on direct exakmination. TEX.
R. EVID. 611(c). However, a court may allow leading questions “when a
plarty calls a hostile
witness, an adverse party, or a witness identified with an adverse partyc.” Id. “The decision to
permit a leading question lies within the sound discretion of the triasl court.” Mega Child Care,
Inc. v. Tex. Dep’t of Protective & Regulatory Services, 29 S.W.3sd 303, 308 (Tex. App.—Houston
[14th Dist.] 2000, no pet.).
There is no dispute that Kassab asked leading questions, nor does Kassab contend that any
of Pohl’s “leading” objections were directed at non-leading questions. See Motion at 1–2. Instead,
Kassab claims that his leading questions werae proper because the questions were directed at “a
hostile witness. See id. at 2. But throughout the history of this case, Favre has been aligned with
Kassab and hostile to Pohl. Kassab celaims that he hired Favre as an expert witness to assist him
on numerous potential disputes.6 f Favre is a former co-defendant of Kassab in this lawsuit.7 And
Pohl alleges that Favre is a yco-conspirator along with Kassab in relation to the misappropriation
of Pohl’s trade secrets.C8 To rebut this status quo, Kassab offers little more than conjecture.
Kassab makes three claims to support his claim that Favre should be viewed as a hostile
witness: (1) “Pflfaintiffs came to an agreement with Favre to nonsuit him and his companies”; (2)
Favre’s laUwyer “threatened to sue Kassab”; and (3) Favre’s lawyer “has refused to cooperate with
6 See Deposition of Lance Kassab at 82:21–83:16, attached as Exhibit A.
7 See generally Pohl’s First Amended Petition.
8 See id. ¶ 43.
the Kassab’s Court Reporter to set a time for Favre to answer Kassab’s deposition on written
questions.” See Motion at 2. None of these arguments has merit.
1. A plaintiff settling with or non-suiting a party does not make that party “hostile” to
remaining defendants.
Kassab’s primary justification for treating Favre as “hostile” is that Krassab submitted
questions to Favre after Pohl “came to an agreement with Favre to nonsuit him and his companies.”
See Motion at 2. Other than citing to Rule of Evidence 611(c), whicrhi provides for the hostile
witness exception, Kassab cites no authority showing that non-suitiDng a defendant makes that party
“hostile” to remaining defendants. s
As Pohl’s counsel has stated during hearings in thirs lawsuit, Pohl was incentivized to settle
or non-suit multiple defendants as part of an unsuccessful strategy to prevent trial from being
delayed.9 Given that the parties have been told plreviously that Favre had been so ill that he could
not sit for a full remote Zoom deposition,10M Pohl has no confidence that Favre could participate as
a party in a two-week trial. Given thosoe circumstances, Pohl’s non-suit of Favre does not justify
Kassab treating Favre as a hostile wcitness.
2. A personal dispute between Favre’s lawyer and Kassab does not show Favre is
“hostile” to Kassyab.
Kassab’s second justification for treating Favre as “hostile” is that an overheated and tense
email exchange oaccurred between lawyers after a deposition was canceled due to the
hospitalization off the witness. Kassab described this dispute as follows:
Favre has become a hostile witness because his lawyer, David Wade has threatened
to sue Kassab simply because Kassab asked him and Plaintiff’s counsel to pay for
the deposition that they both cancelled after Wade promised the Court he would
present Favre on a day certain and then cancelled.
9 See Dec. 1, 2022 Hearing Transcript, at 22:12–23:11, attached as Exhibit B.
10 Even when Favre did purport to be available, his lawyer could not commit that he could complete a deposition in a
single sitting. See id. at 13:11–14:13.
Motion at 2 (citing Exhibit 4 to the Motion). Kassab presents this issue without appropriate context
and in a misleading fashion.
This issue concerns a prior attempt by the parties to take an oral deposition of Favre on
December 7, 2022. Prior to that deposition, Kassab was aware that there might bek issues with the
deposition occurring as scheduled. He knew that Favre was fighting the flu andl had chemotherapy
scheduled for two days prior to the deposition.11 Counsel for Kassab cemailed Favre’s lawyer
(David Wade) the day before to inquire about whether the depositiosn would go forward.12 The
next morning, before the deposition, David Wade notified Kasssab that “Favre has been in the
hospital since last night. His deposition will not move forward this morning. I will update you with
his next availability when I receive that information. Thank you for your patience.”13
Despite being told that the deposition could not go forward due to Favre’s hospitalization,
the very next day, Kassab demanded that Davaid Wade and Pohl’s counsel pay an invoice for the
deposition that was cancelled. See Exhibit 4 to the Motion, at 2. David Wade’s response to
Kassab’s request shows his obvious efrustration.14 While Pohl does not endorse David Wade’s
response to Kassab, all that this exfchange reflects is tension between counsel to parties to a lawsuit.
It does not demonstrate that yFavre—who did not send the email—is a hostile witness to Kassab.
3. An after-theC-fact logistical issue between Favre’s lawyer and a court reporter does not
demonstrate that Favre is “hostile” to Kassab.
Kassab’s cfinal justification for why the Court should treat Favre as “hostile” is because
David Wade allegedly “refused to cooperate with the Kassab’s Court Reporter to set a time for
Favre to answer Kassab’s deposition on written questions.” See Motion at 2 (citing Exhibit 6 to
11 See Dec. 1, 2022 Hearing Transcript, at 13:7–21, attached as Exhibit B.
12 See Dec. 6, 2022 email from Murray Fogler, attached as Exhibit C.
13 See Dec. 7, 2022 email from David Wade, attached as Exhibit D.
14 It is worth noting that Kassab’s description of this email is inaccurate. Contrary to what Kassab says, David Wade
did not threaten to sue Kassab. See Motion at 2. Rather, David Wade made the facially non-serious statement that if
“you ask me that again, i will ask my client to sue . . . .” See Exhibit 4 to the Motion, at 1.
the Motion). But nothing about the email chain Kassab cites demonstrates that Favre is a hostile
witness to Kassab. Kassab provides no authority to show that a lawyer’s failure to respond to two
scheduling emails can make that lawyer’s client hostile to a party in a lawsuit.
To support his conclusion that Favre is a hostile witness due to Mr. Wkade’s supposed
failure to cooperate in scheduling, Kassab cites a single email chain. See Mlotion at 2 (citing
Exhibit 6 to the Motion). But this exhibit shows very little. First, it shocws that Mr. Wade spoke
to the court reporter hired by Kassab on February 24, 2023. See Esxhibit 6 to the Motion, at 2.
Subsequently, it appears that Mr. Wade did not respond to two scsheduling emails sent by that court
report—emails sent on consecutive days, February 28, and March 1, 2023. See id. at 1–2.
However, Mr. Wade’s failure to respond to those two emails is not indicative of much, if
anything at all. The first email was sent at 9:47 AM on February 28, 2023, and the second email
was sent the next day, March 1, 202,3 at 10:1a2 AM. Id. That same day, on March 1, 2023—just
over 30 hours after the first email was sent—Kassab first filed the Motion complaining about Mr.
Wade’s failure to respond.15 Whilee Pohl does not know if or when Mr. Wade responded, all
Kassab’s Motion indicates is thaft Kassab filed the Motion on March 1st complaining that Mr.
Wade had not responded to yan email sent the prior day, on February 28th. Such events have no
bearing on whether a wCitness is hostile to a party.
Not only does Kassab provide no authority indicating that a scheduling issue by a lawyer
can result in thfaft lawyer’s client being found to be hostile to another party, but Kassab does not
explain hUow such a finding could retroactively justify objectionable questions. Kassab served his
leading questions on Favre no later than February 20, 2023. See Kassab’s DWQ, attached as
15 See Exhibit E (showing that Kassab first attempted to file the Motion at 3:57 PM on March 1, 2023). Kassab’s
filing was rejected, and the Motion was refiled the next day, on March 2, 2023. See Motion at 5 (showing the
“Automated Certificate of eService”). The Certificate of Service on the Motion still states that it was served on “March
1, 2023,” reflecting the date that Kassab first attempted to file the Motion. See id. at 4.
Exhibit 2 to the Motion. Kassab does not address how Mr. Wade’s purported failure to respond to
emails sent well over a week after Kassab’s DWQ was served could justify Kassab’s previously
served leading questions.
Even assuming Kassab’s accounting of events could be established wkith evidence, a
lawyer’s failure to promptly respond to a scheduling email, which was sent alfter questions were
served on that lawyer’s client, does not render that client hostile to any pcarty. Because Kassab’s
post-hoc attempt to justify his leading questions fails, the Court shousld sustain Pohl’s objections
to Kassab’s leading questions. s 
B. Pohl’s objections to the form of Kassab’s questions should be sustained.
Many of Kassab’s questions to Favre are objectionable on their face. In the Motion, Kassab
even concedes that some of his questions were defective, as they contain “typos or misspellings of
words.” See Motion at 1–2. But Kassab did not choose to fix those admitted issues by submitting
amended questions as part of his “redirect questions.” Instead, Kassab makes the heated
accusation that “Pohl filed frivolous e. . . objections to several of the questions propounded.” See
id. Despite accusing Pohl of assferting “frivolous” objections, Kassab did not bother to identify
which questions or objectionys are at issue. See id.
Kassab’s failurCe to identify the questions or objections at issue indicates the weakness of
his position. He doaes not cite to a single example of the supposedly “frivolous” objections Kassab
claims were assferted by Pohl. See id. Additionally, contrary to Kassab’s suggestion (see Motion
at 2–3), eUvidence is not needed to sustain objections to the form of questions. See In re Union
Pac. Res. Co., 22 S.W.3d 338, 341 (Tex. 1999) (discussing how “evidence may not always be
necessary to support” objections). The Court should sustain Pohl’s objections because they are
asserted in response to facially objectionable questions.
Pohl objected to portions of 100 out of the 145 questions contained in Kassab’s DWQ. See
Pohl’s Objections to Kassab’s DWQ, attached as Exhibit 3 to the Motion. Kassab appears to be
concerned about “objections to several of the questions,” but Kassab does not specify which
objections or questions are at issue. See Motion at 1–2. Pohl will not waste thke Court’s time
addressing each objection to the 100 potential questions that could be at issule. Each of Pohl’s
form objections state a basis for the objection that is supported on the facec of the objection and the
request to which it is addressed. See generally Pohl’s Objections to sKassab’s DWQ, attached as
Exhibit 3 to the Motion. However, to illustrate the appropriatenesss of his objections, Pohl provides
the brief discussion of some examples below.
Kassab’s Question #3 states: “How state how many businesses have you managed in any
compacity and the names of those businesses during your entire business carrier?” See id. at 2
(errors in original). Given the typos, Pohl oabjected to the question and pointed out the various
issues, including that, “Pohl objects to the form of this question, as it contains typos and is
confusing, and it is thus vague and amebiguous.” See id. Pohl specifically pointed out that the first
word of the question, “how” appfears to be a typo. See id. It makes no sense to say “how state
how,” in the context of a quyestion. Pohl also pointed out that the spellings of “compacity” and
“carrier” appear to be iCncorrect, at least in the context of this question. See id. On the face of the
question, Pohl’s objections are proper and supported, and the Court should sustain such objections.
Anothefrf example is Kassab’s Question #15, which states: “Is PMG a marketing company?”
See id. atU 4. Pohl objected to this question on the following bases: “Pohl objects to the form of
this question, as it is vague. Pohl also objects to the form of this question because it is not limited
in time or scope.” See id. The question is vague, because it is not clear what Kassab meant by the
phrase “marketing company.” And the question is not limited in time or scope, because Kassab
did not ask about whether PMG was a “marketing company” during a specific period or otherwise
limit the scope of this question. PMG (Precision) engaged in different activities, at different times,
under different ownership. Kassab’s failure to specify a time period is objectionable.
Finally, in Question #18, Kassab asked: “Did PMG compile marketing lkists?” Id. at 5.
Pohl objected to this question on multiple grounds, including that it was vague, lnot limited in time,
and called for speculation. See id. Given that Favre purchased PMG acfter it is alleged to have
engaged in so-called “marketing” activities, there is no basis for Favres to have personal knowledge
of PMG “compil[ing] marketing lists.” See id. Thus, Kasssab’s question seeks for Favre to
speculate in response. The question is vague and ambiguous, because the meaning of the phrase
“marketing list,” is unclear, especially given the disputes about the use of this term in this lawsuit.
And the question is not limited in time, because Kassab did not ask about whether PMG compiled
“marketing lists” during a specified relevant taime period.
Pohl’s objections to these three questions are exemplars that show that Pohl made
reasonable objections to facially objeectionable questions asserted by Kassab. A simple review of
each question and the objection fitself is sufficient to support such objections. Because Pohl’s
objections are proper on theiyr face, Pohl requests that the Court sustain those objections and deny
Kassab’s Motion. C
III. CONCLUSION
For the fforegoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfuUlly request that Kassab’s Motion be denied and that the Court sustain Pohl’s objections
to the questions contained in Kassab’s DWQ.
Dated: March 14, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 14th day of March, 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
10
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73666907
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response in Opposition to Kassatb's Motion to
Rule i
Status as of 3/15/2023 8:41 AM CST s
Case Contacts 
Name BarNumber Email gTimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 3/14/2023 9:54:18 PM SENT
Benjamin Ritz britz@thompsoncoe.com 3/14/2023 9:54:18 PM SENT
Murray JFogler mfogler@foglerbarar.com 3/14/2023 9:54:18 PM SENT
Murray Fogler mfogler@fbfog.com 3/14/2023 9:54:18 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Raul Herman Suazo 24003021 suazoc@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Kevin Graham Cain 24012371 cafin@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/14/2023 9:54:18 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Scott M.Favre C scott@favrepa.com 3/14/2023 9:54:18 PM SENT
Lawyer Wade a lawyerwade@hotmail.com 3/14/2023 9:54:18 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/14/2023 9:54:18 PM SENT
Misty Davis o mdavis@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Lance KassabU eserve@kassab.law 3/14/2023 9:54:18 PM SENT
Andrea Mendez andrea@kassab.law 3/14/2023 9:54:18 PM SENT
Lance Kassab lance@kassab.law 3/14/2023 9:54:18 PM SENT
David Kassab david@kassab.law 3/14/2023 9:54:18 PM SENT
Nicholas Pierce nicholas@kassab.law 3/14/2023 9:54:18 PM SENT
D Kassab david@kassab.law 3/14/2023 9:54:18 PM SENT
L Kassab lance@kassab.law 3/14/2023 9:54:18 PM SENT
Kelly Skelton reception@kassab.law 3/14/2023 9:54:18 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73666907
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response in Opposition to Kassatb's Motion to
Rule i
Status as of 3/15/2023 8:41 AM CST s
Case Contacts 
Murray J. Fogler 7207300 mfogler@foglerbrar.com g3/14/2023 9:54:18 PM SENT"
52,2023-03-08,RSP,Pohl,Response to Mtn to Reconsider/Rule,Plaintiffs' Response in Partial Opposition to Kassab's Motion to Reconsider or Rule,"Filed March 8, 2023 in the 281st Judicial District Court (Judge Weems) by Pohl's counsel Jean C. Frizzell of Reynolds Frizzell LLP. Response to Kassab's Motion to Reconsider or Rule (filing #49), which sought reconsideration of three prior orders by Judge Dollinger. Pohl partially opposes — agreeing the court should rule on the pending RTP motion but opposing reconsideration of the abatement and discovery compulsion rulings.",MSJ-2R,N/A,Phase 4,2023-03-08_RSP_Pohl-Response-to-Kassab-Mtn-to-Reconsider-or-Rule_FILED.pdf,Deny Kassab's Motion in part; deny Kassab's Supplemental RTP Motion on the merits; decline to reconsider prior rulings on Kassab's Motion to Abate and Motion to Compel,"3/8/2023 7:39 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73486867
By: Lewis John-Miller
Filed: 3/8/2023 7:39 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN PARTIAL OPPOSITION TO KASSAB’S MOTION TO
RECONSIDER OR RULE s
Defendants Lance Christopher Kassab and Lance Christopher Kassab P.C. d/b/a/ The
Kassab Law Firm (collectively, “Kassab”) filed the Motion to Reconsider or Rule (the “Motion”),
and in it states he filed it in order to file a petition for writ of mandamus if the Motion is denied.
Pohl partially opposes the relief Kassab requests in his Motion. Pohl does not oppose the Court
ruling on Kassab’s pending motion to designate responsible third parties—although Pohl contends
that motion should be denied when thee Court addresses it on the merits. However, Pohl does not
agree that the Court should reconfsider or revisit the other two rulings mentioned in the Motion,
and Kassab has not shown hyow any prior ruling was erroneous.
C I. DISCUSSION
Kassab asksa the Court to rule on one pending motion and to reconsider rulings on two other
motions. Kassafb is not entitled to relief on the merits with respect to any of those three motions.
First, the Court should rule on Kassab’s Supplemental Motion to Designate Responsible Third
Parties (“Kassab’s Supplemental RTP Motion”), but it should deny the relief Kassab requests.
Kassab’s Supplemental RTP Motion does not fix the pleading defect that caused Judge Dollinger
to deny Kassab’s first motion to designate responsible third parties. Second, Kassab provides no
basis for why the Court should reconsider the denial of Kassab’s Motion to Abate Trial Setting
(“Kassab’s Motion to Abate”), and the Court should not allow Kassab to delay trial. Third, the
Court should not reconsider the denial of Kassab’s Motion to Compel Testimony and Documents
Pursuant to the Offensive Use Doctrine (“Kassab’s Motion to Compel”). Kassab’s arguments on
the offensive-use doctrine fail on the merits. k
A. The Court should deny Kassab’s Supplemental RTP Motion. C l
Pohl agrees that the Court should rule on Kassab’s Supplemental cRTP Motion. However,
the Court should deny that motion on the merits. To designate a ressponsible third party, Kassab
must plead sufficient facts showing that alleged responsible third parties were responsible for the
harms underlying Pohl’s claims. Kassab failed to do that in his first motion, and his supplemental
motion—which asserts the same prior factual allegations in a new order—does not fix this defect.
Kassab’s failure to plead new factual allegations gives the Court a straightforward way to
resolve Kassab’s Supplemental RTP Motion. Deny it. While this case was pending before the
189th District Court, Judge Dollinger denied Kassab’s first motion to designate responsible third
parties because Kassab failed to pleaed sufficient facts showing that the alleged responsible third
parties were responsible for the hafr f ms underlying Pohl’s claims.1 Judge Dollinger’s ruling reached
the proper result, and with nyo new factual allegations, the same result is appropriate here.
As laid out in PCohl’s Objection, Kassab’s Supplemental RTP Motion did not address the
failings of the origianal motion—instead, it simply copies and paraphrases, in a new order, prior
factual allegatiofns that Judge Dollinger found to be deficient. See generally Pohl’s Objection to
Kassab’sU Supplemental Motion to Designate Responsible Third Parties, filed Nov. 30, 2022.
Because Kassab chose to assert the same facts, which were previously found to be insufficient
under the pleading standard, the Court should deny Kassab’s Supplemental RTP Motion.
1 See Court Order, dated Oct. 31, 2022 (denying Kassab’s first motion to designate responsible third parties); see also
generally Pohl’s Objection to Kassab’s Motion to Designate Responsible Third Parties, filed May 31, 2022.
B. Kassab’s Motion to Abate was properly denied.
In the fall of 2022, Kassab filed his Motion to Abate. Judge Dollinger correctly found that
abatement of this case was not proper or necessary. Nothing has changed since that ruling
occurred, and the Court should decline to revisit the denial of Kassab’s Motion to kAbate.
Kassab does not explain why he believes that Judge Dollinger’s decisioln to deny Kassab’s
Motion to Abate was wrong. See generally Motion. Instead, Kassab sucggests that abatement is
justified because he contends that “the outcome of Cheatham could sresult in a judgment against
Pohl for barratry, which will definitively establish Kassab’s defenses to Pohl’s claims.” See id. at
2. That is not true, and Pohl’s Response to the Kassab Defendants’ Motion to Abate Trial Setting,
filed Sept. 15, 2022 (“Pohl’s Response to Kassab’s Motion to Abate”), clearly explains why
abatement is not appropriate.
Even if barratry were relevant in this matter—and it is not—the results in a separate lawsuit
in which Pohl, but not Kassab, is a party cannot establish Kassab’s defenses in this lawsuit.
Kassab’s Motion to Abate argues abeatement is proper for two reasons: (1) Pohl is still incurring
damages; and (2) the outcome off a separate lawsuit—the Cheatham case—will impact Kassab’s
illegality (unlawful acts doyctrine) defense. See generally Kassab’s Motion to Abate. These
arguments did not withCstand scrutiny.
First, the faact that this case might involve future damages does not justify abatement.
Future damagesf are not an uncommon occurrence, and to recover such damages, Pohl must satisfy
the ordinUary standard of showing to the jury that he will sustain those damages with reasonable
probability. Second, Kassab’s unlawful acts defense has been preempted and does not apply—a
fact which is laid out in Pohl’s Response to Kassab’s Motion to Abate. Because nothing has
changed since the Motion to Abate was correctly ruled on in the first instance, the Court should
deny Kassab’s request to reconsider that ruling.
C. Kassab has not shown that Pohl waived the attorney–client privilege, and thus
Kassab’s Motion to Compel was properly denied.
Kassab provides no explanation for why the Court should reconsider Judge Dollinger’s
denial of Kassab’s Motion to Compel. Kassab improperly sought to pierce the attorney–client
privilege, but he failed to show how the legal elements of the offensive-use dorctrine were met.
Kassab’s Motion does nothing to explain why Kassab’s position was right on the merits, and the
Court should deny the Motion without revisiting this decision. r i
In his Motion to Compel, Kassab improperly sought to oDbtain attorney–client privileged
materials between Pohl and Billy Shepherd (Pohl’s current attosrney in the Cheatham matter). See
generally Motion to Compel. Kassab is particularly inrterested in obtaining these privileged
materials because Kassab is counsel to the plaintiffs who are suing Pohl in the Cheatham matter.
Thus, in this lawsuit, Kassab sought to obtain prlivileged materials from a third party who is his
opposing counsel in the Cheatham matter. M
Given that Kassab’s Motion too Compel was filed in conjunction with multiple other
discovery motions, Pohl filed a joinct response that addressed it as well as other discovery motions
filed by Kassab. See Plaintiffs’ Response in Opposition to the Kassab Defendants’ Three New
Motions to Compel, at 7–16, filed Sept. 27, 2022. For the reasons stated in that response, the Court
should deny Kassab’s request to reconsider the denial of Kassab’s Motion to Compel. Not only
has Kassab failedc to establish offensive-use waiver, but independently, it was a reasonable exercise
of Judge Dol o linger’s discretion to deny Kassab’s attempt to obtain this privileged information.2
Therefore, the Court should decline to reconsider this ruling and should deny the Motion.
2 Kassab never showed that he diligently pursued the discovery sought in the Motion to Compel prior to the close of
discovery. Given this, and that Kassab sought privileged materials from Pohl’s counsel (who is opposing counsel to
Kassab in another lawsuit), Judge Dollinger was entitled to exercise his discretion to limit the scope of discovery and
deny Kassab access to privileged materials. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (“scope of
discovery is within the trial court’s discretion”); In re State Farm Lloyds, 520 S.W.3d 595, 599 (Tex. 2017) (“discovery
rules imbue trial courts with the authority to limit discovery based on the needs and circumstances of the case”).
II. CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the Court deny Kassab’s Motion, in part; deny Kassab’s Supplemental
RTP Motion; and decline to reconsider prior rulings on Kassab’s Motion to Abatke and Kassab’s
Motion to Compel. l
Dated: March 8, 2023 Respectfully submitted, c
REYNOLDS FRIZZELL LsLP
By: /s/ Jean C. Frizzell
Jean C. Fsrizzell
State Bar No. 07484650
1100 Louisiarna St., Suite 3500
Houston, Texas 77002
Tel. 713.485.7200
Fax 713.485.7250
jfrizlzell@reynoldsfrizzell.com
MAttorney for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CEcRTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texasy Rules of Civil Procedure on this 8th day of March, 2023.
/s/ Jean C. Frizzell
a Jean C. Frizzell
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73486867
Status as of 3/9/2023 8:36 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/s8/2023 7:39:40 PM SENT
Andrew Johnson ajohnson@thompsoncoe.comg3/8/2023 7:39:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com u3/8/2023 7:39:40 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT
Murray Fogler mfogler@fbfog.comy 3/8/2023 7:39:40 PM SENT
Dale Jefferson 10607900 jefferson@mdjwalaw.com 3/8/2023 7:39:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 3/8/2023 7:39:40 PM SENT
Kevin Graham Cain 24012371 cain@mdojwlaw.com 3/8/2023 7:39:40 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/8/2023 7:39:40 PM SENT
Todd Taylor ttayflor@jandflaw.com 3/8/2023 7:39:40 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 3/8/2023 7:39:40 PM SENT
Lance Kassab peserve@kassab.law 3/8/2023 7:39:40 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 3/8/2023 7:39:40 PM SENT
Scott M.Favre a l scott@favrepa.com 3/8/2023 7:39:40 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/8/2023 7:39:40 PM SENT
Andrea Mendez o andrea@kassab.law 3/8/2023 7:39:40 PM SENT
Lance KassabU lance@kassab.law 3/8/2023 7:39:40 PM SENT
David Kassab david@kassab.law 3/8/2023 7:39:40 PM SENT
Nicholas Pierce nicholas@kassab.law 3/8/2023 7:39:40 PM SENT
D Kassab david@kassab.law 3/8/2023 7:39:40 PM SENT
L Kassab lance@kassab.law 3/8/2023 7:39:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT
Kelly Skelton reception@kassab.law 3/8/2023 7:39:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT"
51,2023-03-02,MTN,Kassab,Mtn to Designate Favre/Precision as RTP,"Kassab Defendants' Motion for Leave to Designate Scott Favre, Scott M. Favre PA, LLC and Precision Marketing Group, LLC as Responsible Third Parties","Filed March 2, 2023 after Pohl inexplicably nonsuited Favre and Precision on November 21, 2022. No trial date has been set. This is a new RTP motion targeting the nonsuited former co-defendants specifically (distinct from the prior RTP motions targeting Walker, Ladner, Seymour, and others). Filed before Judge Christine Weems though the header still references the 189th Judicial District.",RTP-2,GRANTED,Phase 4,2023-03-02_MTN_Kassab-Mtn-to-Designate-Favre-and-Precision-as-RTP_FILED.pdf,"Grant leave to designate Scott Favre, Scott M. Favre PA, LLC, and Precision Marketing Group, LLC as responsible third parties","3/2/2023 11:24 AM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73272865
By: Joshua Herrington
Filed: 3/2/2023 11:24 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIALk DISTRICT
KASSAB DEFENDANTS MOTION FOR LEAVE TO DECSIGNATE
SCOTT FAVRE, SCOTT M. FAVRE PA, LLC AND PRECISION MARKETING
GROUP, LLC AS RESPONSIBLE THIRD PARTIES
Defendants, Lance Christopher Kassab and Lance Cihristopher Kassab, P.C.
D/B/A The Kassab Law Firm (“Kassab”), file this, their Motion for Leave to
Designate Scott Favre, Scott M. Favre, PA, LLC and Precision Marketing Group,
LLC as Responsible Third Parties, and would respectfully show the following.
SUMMlARY
In this lawsuit, Plaintiffs MicMhael Pohl and Law Office of Michael A. Pohl,
PLLC (“Pohl”) initially sued Scott Favre and Scott M. Favre, PA, LLC (collectively,
“Favre”) and Precision Markieting Group, LLC (“Precision”) alleging Favre and
Precision, along with Kassab, were all part of “a scheme pursuant to which they
illegally obtained, moaintained, and used trade secrets and other confidential
information and lproperty belonging to Pohl.”1 On November 21, 2022, Pohl
inexplicably nionsuited Favre and Precision.2 Because Favre and Precision are
alleged to have caused or contributed to causing the harm for which recovery of
damages by Pohl is sought, Kassab files this motion requesting leave to designate
Favre and Precision as responsible third parties and would ask that it be in all
1 Exhibit 1, Pohl’s First Amended Petition, at ¶ 2.
2 Exhibit 2, Pohl’s Nonsuit as to Favre and Precision.
things granted. This motion is timely because there presently is no trial setting in
this case.
BACKGROUND
Pohl alleges that he hired Precision – which was formallky owned by
Mississippi residents Scott Walker and Kirk Ladner – “to providCe public relations
services, to gather and preserve evidence, and to screen and liaise with Pohl’s
clients/prospective clients.”3 However, the truth about whyi Pohl hired Precision was
revealed when Walker and Ladner and Precision sued Pohl in Mississippi for
nonpayment. See Walker v. Williamson, No. 1:14cv381-KS-JCG, 2016 U.S. Dist.
LEXIS 61185 (S.D. Miss. May 9, 2016). There, Precision alleged that Pohl agreed to
pay Precision and its owners “a percentlage of the attorney fees for the claims
obtained from their efforts, along witMh expenses and a flat fee.” Id. at *6-7. That, of
course, is a violation of the disciplinary rules. See TEX. DISC. R. PROF’L COND. 5.04(a)
(providing that a lawyer shaill not share or promise to share legal fees with a
nonlawyer). Moreover, “[t]here is evidence that the [Precision] contacted people and
businesses in Missisosippi to determine if they might have a claim against BP,
encouraged those lpeople to retain Pohl as their attorney, and were paid over $5
million in ‘bariratry pass-through money’ for their services.”4 Kassab v. Pohl, 612
S.W.3d 571, 574 (Tex. App. – Houston [1st Dist.] 2020, pet. denied). But after
Precision “procured thousands of viable BP claims” and “approximately sixty motor
3 Exhibit 1, Pohl’s First Amended Petition, at ¶ 20.
4 Barratry is the unlawful and unethical “solicitation of employment to prosecute or defend a claim
with intent to obtain a personal benefit.” The State Bar v. Kilpatrick, 874 S.W.2d 656, 658 n.1 (Tex.
1994).
vehicle accident cases” for Pohl, he “did noy pay any of the agreed share of his fees,”
causing Precision and its owners to file suit. Walker v. Williamson, No. 1:14-cv-381-
KS-JCG, 2016 U.S. Dist. LEXIS 76488, at *5, 24 (S.D. Miss. Mar. 1, 2016).
During the Mississippi litigation, Favre purchased Precision.5 Fkavre testified
that Precision “developed proprietary marketing lists” which werCe “solely the work
product and property of Precision, developed during the normal course of its
marketing business” which were used “to identify potenitial clients for [Pohl].”6
Favre also testified that Pohl “solicited many of the marketing contacts (individuals
and businesses) on these lists for representation” and some became clients of Pohl
while others did not.7
Lance Kassab is an attorney who rlepresents clients in claims against their
lawyers for legal malpractice or Mother malfeasance.8 Upon reviewing the
information obtained from PACER and through his discussions with Favre, Kassab
concluded that the clients wiho were solicited to hire Pohl had potential claims
against Pohl and others for civil barratry pursuant to Section 82.0651 of the Texas
Government Code.9 Foavre provided Kassab with information from Precision (after
warranting to Kalssab that the information belonged to Precision, and not Pohl),
including the inames and addresses of claimants Pohl solicited for possible BP oil
spill and motor-vehicle claims.10 Kassab sent advertisement letters to Precision’s
clients, informing them that they may have been a victim of barratry, that barratry
5 Exhibit 3, August 10, 2016 Affidavit of Scott Favre (“Favre Affidavit”), at ¶ 3.
6 Favre Affidavit, at ¶¶ 11-14.
7 Favre Affidavit, at ¶ 15.
8 Exhibit 4, September 12, 2022 Declaration of Lance Kassab (“Kassab Declaration”), at ¶ 3.
9 Kassab Declaration, at ¶ 6.
10 Kassab Declaration, at ¶ 8.
is illegal and unethical in Texas, and that, if they were in fact solicited to hire Pohl,
they would be entitled to file civil claims against Pohl.11 Literally hundreds of
individuals responded, indicating that they had personally solicited to hire Pohl in
their auto accident or BP claims.12 As a result, Kassab filed the fkour separate
barratry lawsuits against Pohl on behalf of more than 400 clients.C13
In retaliation, Pohl filed this lawsuit against Kassab, Favre, Precision and
others on August 28, 2018, while the barratry litigation wais ongoing.14 Pohl alleges
that “Precision gained access to Pohl’s confidential and proprietary information and
property, including trade secret materials” and “work product” and that “Favre and
Precision illegally misappropriated” this information15 and then allegedly “secretly
sold Pohl’s confidential information lto Kassab”16 who then “solicited
clients/prospective clients [of Pohl’s] Mto act as [p]laintiffs . . . to bring cases against
Pohl for alleged barratry and other claims.”17 Pohl alleged that Favre and Precision
breached a settlement agrieement entered in the Mississippi litigation by
“continuing to assist in the manufacture and prosecution of [barratry] claims
against Pohl.”18 Pohol also alleged that Favre and Precision “willfully and
maliciously misaplpropriated Pohl’s trade secrets by acquiring them through
improper meanis” and then allegedly “disclose[ed] them via sale to Kassab” without
11 Kassab Declaration, at ¶ 10.
12 Kassab Declaration, at ¶ 10.
13 Kassab Declaration, at ¶ 12.
14 Kassab Declaration, at ¶ 13.
15 Exhibit 1, Pohl’s First Amended Petition, at ¶¶ 20-21.
16 Exhibit 1, Pohl’s First Amended Petition, at ¶¶ 20-21.
17 Exhibit 1, Pohl’s First Amended Petition, at ¶ 29.
18 Exhibit 1, Pohl’s First Amended Petition, at ¶ 35.
Pohl’s consent.19 Pohl sued Kassab, Favre, Precision and others for conversion, theft
of trade secrets, and conspiracy, asking for a judgment to be entered jointly against
the defendants.20 However, on November 21, 2022, Pohl, without explanation,
nonsuited Favre and Precision.21 k
ARGUMENT C
“A defendant may seek to designate a person as a responsible third party by
filing a motion for leave to designate that person as a respionsible third party. The
motion must be filed on or before the 60th day before the trial date unless the court
finds good cause to allow the motion to be filed at a later date.” TEX. CIV. PRAC. &
REM. CODE § 33.004(a). Here, the Court has not yet set this case for trial. Thus, the
statute requires the Court to “grant lealve to designate the named person as a
responsible third party unless anothMer party files an objection to the motion for
leave on or before the 15th day after the date the motion is served.” Id. at §
33.004(f). Even then, the statuite requires the Court to “grant leave to designate the
person as a responsible third party unless the objecting party establishes … the
defendant did not pleoad sufficient facts concerning the alleged responsibility of the
person to satisfy tlhe pleading requirement of the Texas Rules of Civil Procedure[.]”
Id. at § 33.004i(f). Pohl cannot make that showing here.
A responsible third party is “any person who is alleged to have caused or
contributed to causing in any way the harm for which recovery of damages is
sought, whether by negligent act or omission, by any defective or unreasonably
19 Exhibit 1, Pohl’s First Amended Petition, at ¶¶ 39-41.
20 Exhibit 1, Pohl’s First Amended Petition, at ¶¶ 36-50.
21 Exhibit 2, Pohl’s Nonsuit as to Favre and Precision.
dangerous product, by other conduct or activity that violates an applicable legal
standard, or by any combination of these.” Id. at § 33.011(6). Here, Pohl alleges that
his harm is the alleged “unlawful taking” or “use” of his purported trade secret
information.22 Kassab vehemently denies Pohl’s allegations. But takking them as
true, Pohl’s own pleadings demonstrate that Favre and PreCcision caused or
contributed to causing “in any way” the loss of or eventual alleged misuse of
purported trade secret information: i
22 Exhibit 1, Pohl’s First Amended Petition, at ¶¶ 36-50.
Because Pohl’s own pleadings establish Favere and precision’s potential
responsibility, the Court must grant leave for Kassab to designate them as
responsible third parties. See TEX. CIV. PRAC. & REM. CODE § 33.004(f).
CONCLUSaION & PRAYER
For the reasons stated hereifn, the Court should grant Kassab’s request for
leave to designate Scott Favre, Scott M. Favre, PA, LLC and Precision Marketing
Group, LLC as responsiblOe third parties.
p Respectfully submitted,
THE KASSAB LAW FIRM
c __________________________
f LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
U DAVID ERIC KASSAB
Texas State Bar No. 24071351
NICHOLAS R. PIERCE
Texas State Bar No. 24098263
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that on this date, March 2, 2023, I electronically filede this document
with the Clerk of the Court using the eFile.TXCourts.gov electrConic filing system
which will send notification of such filing to all parties or counsel of record.
_____________i__________
DAVID ERIC KASSAB
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 73272865
Status as of 3/2/2023 11:40 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizszell.com 3/2/2023 11:24:31 AM SENT
Harris Wells hwells@reynoldsgfrizzell.com 3/2/2023 11:24:31 AM SENT
Todd Taylor ttaylor@jandfluaw.com 3/2/2023 11:24:31 AM SENT
Scott M.Favre scott@favrepa.com 3/2/2023 11:24:31 AM SENT
Lawyer Wade lawyerwyade@hotmail.com 3/2/2023 11:24:31 AM SENT
Andrea Mendez anadrea@kassab.law 3/2/2023 11:24:31 AM SENT
Lance Kassab lance@kassab.law 3/2/2023 11:24:31 AM SENT
David Kassab odavid@kassab.law 3/2/2023 11:24:31 AM SENT
Nicholas Pierce nicholas@kassab.law 3/2/2023 11:24:31 AM SENT
Chris C.Pappas f cpappas@krcl.com 3/2/2023 11:24:31 AM SENT
Todd Taylor ttaylor@jandflaw.com 3/2/2023 11:24:31 AM SENT
Misty Davis p mdavis@reynoldsfrizzell.com 3/2/2023 11:24:31 AM SENT
Non-Party Witness Billy SheCpherd bshepherd@spcounsel.com 3/2/2023 11:24:31 AM SENT
Lance Kassab a l eserve@kassab.law 3/2/2023 11:24:31 AM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 3/2/2023 11:24:31 AM SENT
Non-Party Edgar Joaimes edgarsroom@gmail.com 3/2/2023 11:24:31 AM SENT
Murray FoglerU mfogler@fbfog.com 3/2/2023 11:24:31 AM SENT
Murray JFogler mfogler@foglerbrar.com 3/2/2023 11:24:31 AM SENT
Andrew Johnson ajohnson@thompsoncoe.com 3/2/2023 11:24:31 AM SENT
Benjamin Ritz britz@thompsoncoe.com 3/2/2023 11:24:31 AM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 3/2/2023 11:24:31 AM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 3/2/2023 11:24:31 AM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 3/2/2023 11:24:31 AM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/2/2023 11:24:31 AM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 73272865
Status as of 3/2/2023 11:40 AM CST
Case Contacts r i
Kelly Skelton reception@kassab.law 3/2/2023 11:24:31 AM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.scom 3/2/2023 11:24:31 AM SENT"
50,2023-02-24,MSJ,Kassab,Amended Trad + No-Evidence MSJ (3rd attempt),Kassab Defendants' Amended Motions for Traditional and No-Evidence Summary Judgment (Third Attempt),"Filed February 24, 2023 before Judge Christine Weems in the 281st Judicial District Court after the case was transferred from the 189th District Court. This is Kassab's third attempt at summary judgment, reiterating and expanding arguments from prior MSJs denied by Judge Dollinger on October 31, 2022. Kassab also adopts by reference co-defendant Nicholson's traditional MSJ filed August 19, 2022.",MSJ-4,N/A,Phase 4,2023-02-24_MSJ_Kassab-Amended-Trad-and-No-Evid-MSJ_FILED.pdf,"Grant Kassab's traditional and no-evidence motions for summary judgment and order that Pohl and Law Office of Michael A. Pohl, PLLC take nothing on their claims against Lance Christopher Kassab and The Kassab Law Firm","2/24/2023 1:36 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73091211
By: Bonnie Lugo
Filed: 2/24/2023 1:36 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 281st JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ AMENDED MOTIONCS FOR
TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT
TO THE HONORABLE JUDGE CHRISTINE WEEMS: t
COME NOW, Defendants, Lance Christopher Kassab and Lance Christopher
Kassab, P.C. d/b/a/ The Kassab Law Firm and file theis, their Motions for Traditional
and No-Evidence Summary Judgment, and woulud respectfully show the following.
PRELUDE
This lawsuit is nothing more thaan a retaliatory suit brought by Michael A.
Pohl and his law firm, Law Office of Michael A. Pohl, PLLC (“Pohl”) against Lance
Christopher Kassab and Lancee Christopher Kassab, P.C. d/b/a/ The Kassab Law
Firm (“Kassab”). Kassab refpresented more than 400 clients in lawsuits against
Pohl due to his illegal and unethical solicitation of these clients. It is undisputed
that Pohl hired and paid runners more than five million dollars to illegally obtain
clients stemminig from catastrophic auto accidents and the BP Deepwater Horizon
litigation. o
Based upon Pohl’s illegal and unethical solicitation of clients, Kassab filed
four separate lawsuits against Pohl for civil barratry and negligence. In addition,
as mandated by the Texas Disciplinary Rules of Professional Conduct, Rule 8.03,
Kassab filed and helped his clients initiate several grievance proceedings, causing
the State Bar of Texas to investigate the alleged barratry, which is prohibited by
the Texas Disciplinary Rules of Professional Conduct and the Texas Penal Code. In
response, Pohl filed this lawsuit against Kassab, alleging claims of conversion, theft
of trade secrets and civil conspiracy, claiming Kassab conspired with okthers to steal
Pohl’s property and solicit his former clients or prospective clienCts to sue him for
barratry.1 Pohl claims his defense costs to defend against the barratry litigation
and grievances as his damages. The absurdity of Pohl’s claiims is only surpassed by
the absurdity of his claimed damages. Pohl’s claims were brought in bad faith and
should be dismissed with prejudice.
SUMMARY
Pohl got caught committing illegall and unethical barratry and now wants
Kassab, who brought the barratry litMigation and grievances against Pohl, to pay for
his legal fees for defending against the barratry claims and grievances. But Pohl’s
claims against Kassab are bairred as a matter of law and he has no evidence to
support various elements of his causes of action because:
• Pohl’s claims aore predicated on Kassab’s filing of a grievance against
Pohl for which Kassab has absolute and unqualified immunity
pursuant tol Rule 17.09 of the Texas Rules of Disciplinary Procedure.
• Pohl’s cilaims against Kassab are barred by the judicial proceedings
priviolege because they arise out of communications that Kassab made
in prospective (solicitation letters) and actual judicial proceedings (the
barratry litigation and grievance process).
• Pohl’s claims against Kassab are barred by attorney immunity because
an attorney does not have a right of recovery, under any cause of action
against another attorney arising from conduct the second attorney
1 Plaintiffs’ Original Petition, ¶¶ 19-28.
engaged in as part of the discharge of his duties in representing a
party.
• Pohl’s claims are barred by limitations because they accrued, if at all,
in the summer of 2014 as Pohl testified under oath, and Pohl did not
file suit against Kassab until August 2018, more than four years later.
• Pohl’s TUTSA claim is conclusively negated because his allegeed trade
secrets were not actually kept secret. Pohl’s claims also fCail because
Pohl does not own the purportedly stolen property and ttrade secrets
which consist of client files which, as a matter of law, Pohl does not
own. t
• Pohl’s illegal acts (barratry and unauthorized practice of law) preclude
any form of recovery against the whistleblowesr (Kassab) because his
acts are inexorably intertwined with Pohl’s creimes.
• Pohl is not permitted to recover as damages the attorney’s fees he
incurred in the four barratry lawsuits and/or disciplinary grievances.
• Pohl has no evidence to support thalt he owned or had possession of the
property or entitlement to possesasion of any of the allegedly converted
property or stolen property. M
• Pohl has no evidence that the Kassab Defendants unlawfully and
without authorization assumed and exercised control over the property
to the exclusion of, or iinconsistent with Pohl’s rights as an alleged
owner. O
• Pohl has no evidpence that he demanded return of the property from
the Kassab Deofendants, nor does Pohl have any evidence that the
Kassab Defendants refused to return any property.
• Pohl can c niot produce evidence as to the damages for the property’s loss
of use fdiuring the time of its detention or the value of the allegedly
conveorted property and never has produced such evidence.
• Pohl has no evidence that (1) the Kassab Defendants were involved in
a combination of two or more persons; (2) that any persons involved in
the alleged conspiracy sought to accomplish an object or course of
action; (3) the persons involved reached a meeting of the minds on the
object or course of action; (4) one or more unlawful, overt acts were
taken in pursuance of the object or course of action; or (5) damages
occurred as a proximate result.
JOINDER AND INCORPORATION BY REFERENCE
Defendants, Tina Nicholson and Baker Nicholson, LLP (“Nicholson”) moved
for traditional summary judgment on August 19, 2022 (“the Nicholson Motion”).
Kassab adopts the arguments set forth in the Nicholson Motion andk all evidence
cited therein. See TEX. R. CIV. P. 58 (“Statements in a pleading mCay be adopted by
reference in a different part of the same pleading or in another pleading or in any
motion, so long as the pleading containing such statementsi has not been superseded
by an amendment as provided by Rule 65 pursuant to Texas Rule of Civil Procedure
58.”); Lockett v. HB Zachry Co., 285 S.W.3d 63, 72 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (“Texas courts have recognized adoption of a co-party's motion for
summary judgment as a procedurally leglitimate practice.”). Reference to exhibits
attached to the Nicholson Motion willM be “Nicholson Ex. [number], [description].”
POHL’S BARRATRY SCHEME
Pohl engages in an iillicit barratry scheme to personally solicit
BP clients and victimfs of catastrophic auto accidents.
Michael Pohl and his law firm retained two non-lawyers, Scott Walker and
Kirk Ladner, and their company, Precision Marketing Group (“Precision”), to
“recruit clients fior [Pohl] to represent against BP”2 and provide “marking services”
to auto accoident victims.3 Walker testified that although he and Pohl called it
“marketing services” or “marketing money” it was “clear to [him] it was barratry.”4
In fact, Walker considered himself and his company “a pass-through for barratry
2 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, p. 19.
3 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 605-07.
4 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 149.
money.”5 All total, Walker, Ladner and Precision Marketing received over $5 million
in “barratry pass-through money” from Pohl and other lawyers to solicit accident
victims and potential clients with claims, both auto-accident victims and those
involved in the BP Deepwater Horizon litigation.6 They would use this kmoney to pay
contract workers to solicit clients.7 They would locate and instrucCt contract workers
on how to accomplish the solicitation.8 They trained “40 or 50 people” on how to “go
out and solicit contracts.”9 i
Walker would “get leads from a variety of sources” including “from Michael
Pohl” and then he and Ladner, or one of their employees, would go try to “find the
family who had lost a loved one” and “just do marketing” to “let them know that
there was help available.”10 The “help” lavailable would be offering the victims
money from Helping Hands FinancinMg, LLC (“Helping Hands Financing”).11 Helping
Hands Financing is owned by Pohl’s wife, Donalda Pohl (“Donalda”), and operated
by her cousin, Jaimes.12 If onie of the clients Precision Marketing solicited “needed
monetary help” they would be referred to Jaimes and Jaimes would “work with
them to -- to help theom.”13 The funds from Helping Hands Financing to pay to the
auto accident victilms “would have come through Edgar Jaimes.”14 In other words, if
5 Exhibit U3-B, 2016 Deposition of Scott Walker, p. 197:6-7.
6 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 73:21-25; 74:1-25; 75-1-15.
7 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 199.
8 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 77-78.
9 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 196-197.
10 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 142-143.
11 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
12 Exhibit 4, October 2018 Deposition of Edgar Jaimes, p. 28.
13 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
14 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 201-203.
Walker or his team needed money to induce the auto accident victims, he would talk
to Jaimes and seek his approval.15
Walker testified that Pohl would send him leads on the auto accident cases
because he knew that Walker and Ladner “could go out and get tkhose type of
cases.”16 Either Ladner would go to solicit the clients, or Cthey would send
Magdalena Santana (“Magdalena”), her brother Florian “Jay” Santana (“Florian”),
or one of their other employees.17 Walker testified that ithese folks working for
Precision Marketing were soliciting the victims “on behalf of Mr. Pohl.”18 Walker
and his team solicited more than 50 auto accident cases for Pohl.19 Walker always
kept Pohl informed on what he and his team were doing.20
Walker testified that the runnersl who solicited the clients would get “a
bonus” if they got the client to sign Ma contract.21 Walker testified that he and his
team would receive the bonus from either Helping Hands Financing at the direction
of Jaimes or Pohl and his lawi firm.22 The payment to the runner would come from
Precision Marketing, but Walker would then “turn in an amount that [they] spent
during the that weeko … to Mr. Pohl’s office.”23 Either Pohl or Jaimes would then
reimburse Precisilon Marketing.24 Financials obtained from Precision Marketing
evidence this ifact, reflecting incoming transfers from Pohl’s law firm or Helping
15 ExhibitU 3-A, 2018 Deposition of Scott Walker, pp. 203-204, 207-208.
16 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 146-148.
17 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 146-148.
18 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 152.
19 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 148-151.
20 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 153.
21 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 158-160, 556.
22 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 556.
23 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160.
24 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160-161, 556.
Hands Financing with payments made to various runners.25 At times, Pohl gave
direction as to some of the bonuses or fees that Precision Marketing paid to the
runners.26 And although Walker did not get “permission, per se” from Pohl to make
the specific payments to the runners, he “would tell [Pohl] after tkhe fact what
[Precision Marketing] had spent that week.”27 C
One runner, Magdalena Santana, exposes the barratry scheme
despite being paid $50,000 by Pohl to keep quiet. t
Magdalena personally solicited two of the plaintiffs who would ultimately sue
Pohl for barratry: Heraclite Bikumbu (and his minoer children) and Raymond Butts.
In her September 24, 2016 affidavit, Magdaleuna testified that Pohl sent her on
“dozens and dozens of car wreck cases all over the country.”28 Pohl would email
Magdalena the link of news coverage daepicting the accident and ask her “to go to
the victim or the victim’s family and try to get them to sign up with him.”29 Pohl
offered to give Magdalena “$5,0e00 per case that [she] signed, plus a percentage of
his attorney’s fees.”30 Mag
daflena was advised by Pohl to “be persistent even if the
family ... rejected [her].”31 Magdalena was instructed by Pohl to “approach the
victims and their families while they were vulnerable, in the emergency room, their
hospital rooms ior at the funerals.”32 Pohl told Santana that minorities “were
25 Exhibit 5, Precision Marketing Group Financials.
26 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 161-162.
27 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 162.
28 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
29 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
30 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 18.
31 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
32 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
especially vulnerable since they tended not to know that the law prohibited
barratry.”33 According to Pohl, they “were easier to sign up.”34
Pohl would give Magdalena “money to give to the victims or their families”
but “only if they agreed to sign a Pohl representation contract.”35 kPohl advised
Santana that the money was a “foot in the door” but instructeCd Santana not to
mention that she was there on behalf of a lawyer “until after they agreed to take the
money.”36 “If the client agreed to hire Pohl, then [Magdalenia] was to have the client
sign a ‘Helping Hands’ contract.”37 Pohl would then give Magdalena the money to
pay the client “from his own Helping Hands company.”38 When Magdalena
questioned this, Pohl told her that it “was illegal for him to pay [her] directly for
cases, and that’s why the money had to go lthrough some company.”39
Pohl may take the position thaMt Magdalena retracted this affidavit through a
subsequent December 19, 2017 affidavit. However, this purported retraction is
likely the result of Pohl payingi Magdalena to provide testimony, which is something
they have done in the past.40 In fact, Jaimes testified that on one occasion Pohl sent
him to Florida witho a case filled with $50,000 cash to give to Magdalena in
exchange for her sligning an statement for him.41 Jaimes testified that Magdalena
33 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19 (emphasis added).
34 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
35 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
36 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
37 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
38 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
39 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 23.
40 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
41 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
would only get the money if she signed the statement.42 Jaimes testified that
Magdalena signed the signed the statement and got the money.43
Magdalena went into more detail about this in her deposition. Magdalena
testified that that the statement was an agreement for her to keep qkuiet and not
charge Pohl with any wrongdoing or criminal or unethical condCuct.44 Magdalena
testified that Pohl paid her $50,000 cash to sign this statement, which was
delivered by Jaimes in three bags marked “trick or treat.i”45 Magdalena reiterated
that if she didn’t sign the gag agreement, she wouldn’t get the money from Pohl.46
Magdalena attempted to indicate on the agreement that she was receiving $50,000
to keep quiet, but Jaimes told her Pohl demanded that she state she only received
nominal consideration, like $100.47 Magdallena did not write the statement but “just
signed it”48 because she felt she waMs “forced to sign” it49 while “under duress.”50
Magdalena’s December 19, 2017 affidavit is likely the result of similar duress and
purchased testimony. i
Regardless, nowhere in Magdalena’s December 19th affidavit does she state
the testimony in her oformer affidavit is untrue, only that she does not “agree with”
it and that the alffidavit is not “reliable.”51 Although Magdalena states in her
December 19thi affidavit that her prior affidavit was drafted by a lawyer, Magdalena
42 ExhibitU 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
43 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
44 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
45 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 122-127.
46 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 131.
47 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 346.
48 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
49 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 155.
50 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 309.
51 Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
testified in her deposition that the September 24th affidavit was created voluntarily
with her own “testimony.”52 Magdalena testified that, unlike with Pohl, she was not
paid and had never been promised any money to provide the testimony in the
September 24th affidavit.53 Magdalena reiterated to counsel fork Pohl, Billy
Shepherd, that she was there in her deposition to tell the truth Cand would not be
bullied by his questioning or his efforts to confuse her.54
Regardless, Magdalena confirmed most of the factis set forth in her initial
affidavit in her deposition55 and this deposition testimony was not retracted.56
There, Magdalena confirmed that she was hired by Pohl to solicit auto accident
cases, the first one being an accident where a woman and her unborn child lost their
lives.57 Magdalena was instructed by Wlalker, who was instructed by Pohl, to
personally visit the mother of theM deceased and sign her up to sue the tire
manufacturer and, if she succeeded, Pohl would pay her $5,000.58 Magdalena visited
the funeral of the deceased iand got the family to feel comfortable with her.59
Although the mother was grieving, Pohl told Magdalena: “take no prisoners, this is
a cut throat businesso, you get in there and you do whatever it takes to get this
52 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 270-271.
53 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 276-278.
54 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 176.
55 See, generally, Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
56 See Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
57 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37.
58 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37-38.
59 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37-38.
10
client.”60 The solicitation was successful after Pohl gave Magdalena $2,000 to “give
to the client to convince her into signing over with the firm.”61
After that, Magdalena attempted to solicit about “forty to fifty” auto accident
cases for Pohl in multiple states from Texas to Florida.62 About fifteekn to eighteen
cases were actually signed up.63 Just like Walker, Magdalena tCestified that Pohl
would send her a web link with information about the accident and where the
potential client may be found and she would hit the grounid running.64 Magdalena
solicited clients for Pohl in “hospitals, funeral homes, you name it.”65 Pohl
instructed Magdalena to target minorities because they are “unrecognized to the
law” and “they don’t know the law.”66 In an effort to circumvent the law, Magdalena
was instructed to have the client call Pohll so that it would look like the client made
the initial contact with the lawyer.6M7 Magdalena would offer the clients money to
sign with Pohl but had explicit instructions from Pohl: “If they don't sign they don't
get no money.”68 Magdalena ireiterated, “no signature, no money.”69 Magdalena
testified in her deposition that she was paid $2,500 for every client she signed up
and was “promised ao percentage in the back end” by Pohl and Walker.70 Pohl told
60 Exhibit 8,n November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 39.
61 ExhibitU 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 40.
62 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 43.
63 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 46-47.
64 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 54.
65 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
66 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
67 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 60.
68 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 42.
69 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 66.
70 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 47.
11
Magdalena that the money would have to go through Walker’s company Precision
Marketing because it “was illegal for him to give [her] the money directly.”71
After soliciting several cases, Magdalena asked Pohl to give her the money
she was “owed” so she could “leave for good” to the Middle East tok care for her
father.72 Magdalena asked Pohl to “think it thru” if he “really wCanted to take the
bad route,” stating “I will go to the attorney General Texas bar ten [sic] bar Florida
bar I’m not giving up … I want my money and if I have to miove mountains with the
justice dept so be it.”73
Magdalena sent another email to Ladner that was forwarded by Walker and
addressed to Pohl, stating she was owed money on the cases she had solicited for
them: l
74
71 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 72.
72 Exhibit 10, April 21, 2014 Email.
73 Exhibit 10, April 21, 2014 Email.
74 Exhibit 11, May 7, 2014 Email Exchange.
12
When Pohl did not respond, Magdalena completed a questionnaire on Pohl’s law
firm website, stating “the FBI” wanted to know the “link between helping hands
and Scott Walker [and] Michael [P]ohl” and claiming that Pohl owed her “monies for
securing victims of accident for him” and questioning how she is to “ckollect monies
owed with Out contracting [sic] The Texas bar[.]”75 C
It was these threats that caused Pohl to agree to pay Magdalena, but only if
she promised to keep quiet.76 Magdalena received the $50i,000 cash but didn’t keep
quiet. On September 1, 2014. Magdalena sent another email to Pohl through his
website requesting more money:
Michael now I have on top of reporters calling me I had a call from
attorney general. The money given to me by Edgar [Jaimes] was to
keep my mouth shut. Not what wals owed that’s what happens when
you ruined my life. If I get supenaa a [sic] don’t know what will happen.
Send me another 50 pls.77 M
Magdalena continued running cases for Pohl and sending him emails requesting
payment on the cases she soliciited.78
Another runner, Kenneth Talley, exposes the barratry scheme.
Another runnero was “Coach” Kenneth Talley (“Talley”), solicited over 800 BP
cases and 20 autol accident cases for Pohl,79 including several families who would
ultimately suei Pohl for barratry: Mark Cheatham, Sr., Mark Cheatham, Jr., Luella
Miller, Mae Berry and Arthur Speck.
75 Exhibit 12, May 20, 2014 Contact Form.
76 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
77 Exhibit 13, September 1, 2014 Contact Form.
78 Exhibit 14, February 5, 2015 Email.
79 Exhibit 15, Deposition of Kenneth Talley, p. 87.
13
Talley testified that he was first hired in relation to BP claims to find “folks
that lost money due to the oil spill” and “sign them up” and “get a fee for it.”80 Talley
went to work “knocking on doors” looking for potential claimants for Pohl and his
partner in the BP litigation, Jimmy Williamson.81 Talley solicited and ksigned up for
Pohl and Williamson more than 800 BP claims.82 Talley was paidC between $75 and
$350 for each BP client he signed up.83
Talley eventually switched to soliciting auto accidient victims, “calling on
folks that had bad accidents.” 84 Talley recalls that the first client he solicited was in
“the hospital in intensive care.”85 Talley carried with him up to $1,000 to pay the
accident victims to “help them with problems” but only once they “were signed
up.”86 Talley kept a list of all the auto aclcident cases he solicited, including cases
involving the Cheathams, Berry anMd Speck.87 Talley followed a checklist that
instructed him to, among other things, bring flowers to the initial hospital visit (but
to spend no more than $50) aind to offer the victims money but to “make sure the
funding schedule” from Helping Hands Financing “is filled out properly before
releasing any cash.”8o8 Talley would advise the victims that he had attorneys who
could help them, alnd that one of those attorneys was Pohl.89 Talley was paid a fee of
$1,400 plus hiis expenses by Pohl, through Walker, for any auto accident case he
80 ExhibitU 15, Deposition of Kenneth Talley, p. 10.
81 Exhibit 15, Deposition of Kenneth Talley, p. 10-11.
82 Exhibit 15, Deposition of Kenneth Talley, p. 11.
83 Exhibit 15, Deposition of Kenneth Talley, p. 19.
84 Exhibit 15, Deposition of Kenneth Talley, p. 37.
85 Exhibit 15, Deposition of Kenneth Talley, p. 37.
86 Exhibit 15, Deposition of Kenneth Talley, p. 38.
87 Exhibit 15, Deposition of Kenneth Talley, p. 43-44; Exhibit 15-A, Talley Deposition Exhibit 165.
88 Exhibit 15-B, Talley Deposition Exhibit 168.
89 Exhibit 15, Deposition of Kenneth Talley, p. 47.
14
solicited.90 On some cases, Talley was to receive a portion of the fee paid to Helping
Hands out of Pohl’s attorney’s fees.91 Talley discussed with Pohl the “percentage of
settlements” he was to receive from the cases he solicited and Pohl told Talley that
the money was being placed in an “escrow account” for him.92 When aksked whether
Pohl knew he was getting paid to “contact vehicle accidentC victims,” Talley
responded, “the money was coming from Edgar [Jaimes] who worked for him.”93
Although his paycheck was from Walker’s company, “the ifunding came by way of
Edgar [Jaimes].”94
Personally soliciting clients for Pohl became so frequent that Talley began
carrying with him blank Pohl contracts to each solicitation.95 Talley would refer the
potential clients to “attorneys out of Houslton that were the best at handling these
types of accidents” and would offer tMo give the potential clients “money up front.”96
Talley would have no “reason not to mention Mr. Pohl’s name” during the
solicitation.97 Talley would neiver recommend any lawyers other than Pohl.98 Talley
would not tell the clients that he was getting paid to solicit them.99 Talley would
present a Pohl contraoct to the potential client.100 If the client did not agree to hire
90 Exhibit 15n, Deposition of Kenneth Talley, p. 47-48.
91 ExhibitU 15, Deposition of Kenneth Talley, p. 97-98; 102.
92 Exhibit 15, Deposition of Kenneth Talley, p. 99.
93 Exhibit 15, Deposition of Kenneth Talley, p. 100.
94 Exhibit 15, Deposition of Kenneth Talley, p. 100.
95 Exhibit 15, Deposition of Kenneth Talley, p. 49.
96 Exhibit 15, Deposition of Kenneth Talley, p. 54.
97 Exhibit 15, Deposition of Kenneth Talley, p. 108.
98 Exhibit 15, Deposition of Kenneth Talley, p. 59.
99 Exhibit 15, Deposition of Kenneth Talley, p. 58; 109.
100 Exhibit 15, Deposition of Kenneth Talley, p. 89.
15
Pohl, the clients would not get the money.101 Talley testified that Jaimes and
Donalda (the operators of Helping Hands Financing) would send him the money.102
Both Talley and Pohl knew that what they were doing was illegal. In one
instance, Talley was “run out of town” while soliciting clients for Pkohl.103 Talley
testified during the attempted solicitation he was told by a “lawCyer or policeman”
that “it was against the law what [he] was doing.”104 Talley mentioned this to Pohl
and Pohl told him “you’ve just got to leave...some people youi can’t help.”105
Pohl illegally solicited several clients who would later hire
Kassab to sue Pohl for barratry. e
One of the victims solicited by Talley aut the instruction of Pohl was Mae
Berry. Berry is the mother of Johnny Berry, a boy who died in a tragic auto accident
on or about August 17, 2014. 106 Withian days of the accident, Berry was visited at
her home by Talley.107 The visit was unsolicited.108 Talley told Berry that he was
with “Helping Hands” and broueght her a gift basket.109 Talley suggested that she
may have a lawsuit againstf the make of the vehicle that Johnny was driving and
told her he knew an attorney out of Texas named Pohl who could represent her.110
Berry had never spoken with Talley or Pohl prior to this date and she did not
101 ExhibiUt 15, Deposition of Kenneth Talley, p. 58-59.
102 Exhibit 15, Deposition of Kenneth Talley, p. 86.
103 Exhibit 15, Deposition of Kenneth Talley, p. 84.
104 Exhibit 15, Deposition of Kenneth Talley, p. 84.
105 Exhibit 15, Deposition of Kenneth Talley, p. 85.
106 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
107 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
108 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
109 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
110 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
16
request Talley to visit with her about the accident or any potential lawsuit.111 Talley
could see that Berry was morning over the loss of Johnny and offered her $500 to
pay for her son’s funeral, but only if she agreed to hire Pohl.112 In need of the money
to burry Johnny, Berry agreed to hire Pohl.113 Walker sent Pohl an emkail on August
21, 2014 forwarding the Helping Hands Financing documents anCd stating, “Coach
Ken will be getting the Pohl contract signed this afternoon.”114 However, Pohl never
ended up pursuing Berry’s case.115 i
Talley himself testified to this solicitation. Talley admits to soliciting Berry at
her home just three days after the accident that took Johnny’s life.116 Talley testifies
that he told Berry that Helping Hands “had attorneys out of Houston that were the
best at handling these types of accidents” alnd that he gave Berry $500 “up front.”117
Talley solicited Berry after he got a cMall from Ladner who told him that a “kid was
killed and it should be a good case” and that “we needed to go check it out.”118 Talley
testified that he was paid $25i0 to solicit Berry as a client and was also reimbursed
from Helping Hands the $500 he paid to Berry.119 Talley never told Berry he was
getting paid to makeo contact with her.120 Berry did not know that the solicitation
was wrongful or claused her legal injury until sometime in 2017 when she received
111 Exhibit 1n6, September 17, 2018 Declaration of Mae Berry.
112 ExhibiUt 16, September 17, 2018 Declaration of Mae Berry.
113 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
114 Exhibit 17, August 21, 2014 Email re Mae Berry.
115 Exhibit 15, Deposition of Kenneth Talley, p. 56.
116 Exhibit 15, Deposition of Kenneth Talley, p. 51-53, 55 (“Q. Okay. So you approached her three
days after the accident. A. Yes, ma’am.”).
117 Exhibit 15, Deposition of Kenneth Talley, p. 54.
118 Exhibit 15, Deposition of Kenneth Talley, p. 55.
119 Exhibit 15, Deposition of Kenneth Talley, p. 57-58; see also Exhibit 5, Precision Financials.
120 Exhibit 15, Deposition of Kenneth Talley, p. 58.
17
an advertisement from the undersigned counsel notifying her of her potential
injury.121
Talley also solicited Arthur and Lisa Speck to hire Pohl. The Specks are the
parents of is Rebecca Speck, an eighteen year old who died in July okf 2010 as the
result of a tragic auto accident.122 Talley testified that he was nCotified about this
case by Ladner who told him “there’s a case in the backyard he wanted [him] to go
pursue.”123 Talley found the Specks’ address and he “weint and knocked on their
door.”124 The visit by Talley was unsolicited.125 The Specks answered, and Talley
told them he was with Helping Hands and offered them $1,000 cash if they would
hire Pohl to pursue their claim.126 Talley testified that he “didn’t have any reason
not to mention Mr. Pohl’s name” at this vilsit because he “knew he was the attorney
handling things for us.”127 The SpeckMs agreed, and signed two contracts with Pohl’s
law firm and funding agreements with Helping Hands.128 Sometime in August of
2014, the Specks received a iletter from Pohl stating he would not pursue the
claims.129 Talley never told the Specks that anyone was paying him to make contact
with them.130 o
121 Exhibit 1n6, September 17, 2018 Declaration of Mae Berry.
122 ExhibiUt 18, September 14, 2018 Declaration of Arthur Speck.
123 Exhibit 15, Deposition of Kenneth Talley, p. 105.
124 Exhibit 15, Deposition of Kenneth Talley, p. 105.
125 Exhibit 18, September 14, 2018 Declaration of Arthur Speck.
126 Exhibit 15, Deposition of Kenneth Talley, p. 107-108.
127 Exhibit 15, Deposition of Kenneth Talley, p. 108.
128 Exhibit 18, September 14, 2018 Declaration of Arthur Speck, at Exhibit 18-A, Speck Contracts
and Exhibit 18-B, Speck Funding Agreement.
129 Exhibit 18, September 14, 2018 Declaration of Arthur Speck,
130 Exhibit 15, Deposition of Kenneth Talley, p. 109.
18
Alphonse Bethley and Sandra Johnson are the biological parents of Ashley
Bethley.131 Ahsley was killed when she lost control of her vehicle and it struck a
utility pole.132 Ashley was only twenty-four years old.133 In July of 2014, Ladner
personally solicited the Bethleys at their home to hire Pohl.134 The viksit by Ladner
was unsolicited.135 The Bethleys did not request Ladner to visit tChem, nor did they
seek out the legal services of Pohl.136 Ladner offered them money if they would hire
Pohl to pursue their claims.137 The Bethleys agreed, andi signed a blank contract
with Pohl and his law firm that was provided to them by Ladner.138 In exchange,
Ladner and Walker agreed to share $5,000 for every $1,000,000 of the received
settlement from the Bethleys’ lawsuit.139 Ladner emailed Pohl and Jaimes facts
concerning these newly solicited clients land also stated that he spoke with the
mother of the passenger of the vehicleM “and will follow up on signing that family.”140
Sometime in August of 2015, however, the Bethleys received a letter from
Pohl stating he would not bie pursuing their claim.141 Years later, in 2017, the
Bethleys received an advertisement from the undersigned counsel notifying them
the way they were coontacted by Ladner and solicited to hire Pohl may have been
131 Exhibit 19,o September 17, 2018 Declaration of Alphonse Bethley.
132 Exhibit 1n9, September 17, 2018 Declaration of Alphonse Bethley.
133 ExhibiUt 19, September 17, 2018 Declaration of Alphonse Bethley.
134 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
135 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
136 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
137 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
138 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley, and Exhibit 19-A, Bethley Pohl
Contract.
139 Exhibit 20, Bethley Distribution Agreement.
140 Exhibit 21, July 23, 2014 Email re Ashley Bethley.
141 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
19
wrongful and may have caused them legal injury.142 Prior to receiving this
advertisement, the Bethleys did not know that the way they were contacted was
wrongful, or that it caused them legal injury or harm.143
Heraclite Bikumbu and his two minor children Plovyt and Dakvid were also
victims of Pohl’s illegal solicitation scheme. On or about July 6, 20C13, Bikumbu and
his children were traveling with relatives from Missouri to Iowa when the rear tire
on their van blew out, causing the van to enter the mediani and roll several times.144
Bikumbu and his children were hospitalized with serious injuries.145 Their relative,
Simon Kumeso, was killed in the accident.146
Just days after the accident, Magdalena and her brother Florian (also known
as Jay) showed up at the hospital rooml to personally solicit Bikumbu and his
children to hire Pohl.147 The SantanMas brought Bikumbu and his children gifts,
including clothes, and stated they were with Helping Hands and worked for Pohl.148
The Santanas told Bikumbui that he had a viable lawsuit against the tire
manufacturer and offered Bikumbu $1,000 if he would sign a contract with Pohl to
represent him and hiso children in the claim.149 The Santanas told Bikumbu that he
142 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
143 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
144 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
145 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
146 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
147 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
148 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
149 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
20
would get the money only if he signed a contract of representation.150 Bikumbu
agreed and signed a proposed contract with Pohl.151
A friend of the relative who died, Nsalambi Kkongolo, emailed Pohl days
after the accident confirming the solicitation by the Santanas: k
I am helping a family whose father (Mr. Simon Kumeso) wCas killed in
a car accident. I was then contacted my [sic] Mr. F. Jay Santana and
Maggie Santana from St Petersburg (FL) of Tower 7 Consulting Group.
They came to Jefferson City, Missouri and we did tsome paperwork
stating that you will take the case and they also givei $3000 to the wife
of the deceased as financial aid to help with funeral (at 18% interest). I
would like to make sure that Santana work with you, you will take the
case and the papers the wife of the deceased seigned are legitimate.152
Pohl responded, confirming that he had been asuked to represent the “victims of the
tragic tire failure” and vouched for the Santanas, stating “Helping Hands and Jay
Santana provide valuable assistancea to families involved in these terrible
accidents.”153 
Magdalena testified to thee solicitation of Bikumbu and his children in her
deposition, stating that she fand her brother where there on behalf of Pohl and his
law firm:
A. You were asking me about when I visited clients in the hospital.
This lwas an example of one of the clients that I had visited in
thei hospital. They had lost -- I think the husband died in a tire
bilow-out, roll-over. There were several kids in the hospital and a
ogentleman and a lady. And this was the e-mail I -- the point of
contact was a professor from the university that was going to
translate from English to French to the client. And I guess he
150 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
151 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu and Exhibit 22-A, Bikumbu-
Pohl Contract.
152 Exhibit 23, July 11, 2013 Email.
153 Exhibit 24, July 11, 2013 Response Email.
21
was reaching out to either Michael Pohl's firm or to -- yeah, to
Mr. Pohl directly. He wanted to make sure that we were who we
said we were basically.
Q. And this e-mail references Jay. Is that your brother?
A. Yes, it is. k
Q. Did he go with you to sign up that client? C
A. Yes, he did.
... t
Q. Okay. And in it Mr. Pohl says, “I can vouch icompletely for Jay
and Maggie.” Do you know why he would be vouching for you?
A. Because I'm representing him. Becaeuse I was there on his
behalf.154
Florian also testified that he provided “marketing services” for auto accident
cases,155 and specifically testifies to solilciting the Bikumbu family just days or
weeks after the accident in Missouri Moccurred.156 The Santanas were paid “bonuses”
for soliciting the “Kumeso” case.157
Raymond Butts was thie victim of a tragic automobile accident on or about
August 7, 2013 in Clear Spring, Maryland, which claimed the life of Brenda Adams,
his fiancée. Just dayso after the accident, and while in the hospital recovering from
his injuries and grlieving the loss of his fiancé, Butts received an unexpected phone
call from Magidalena, who said she was working on behalf of Pohl. Magdalena
testified about this solicitation in her deposition, calling it “a crazy one.”158
Magdalena testified that while she and Walker were “soliciting for Michael Pohl for
154 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
155 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 63-67.
156 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 66-70.
157 Exhibit 5, Precision Financials.
158 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 55.
22
the client to sign,” Butts’ family got “really irate and they called the security on
[them] at the hospital.”159 The family told security that “these people are here
soliciting for an attorney.”160 Magdalena’s persistence eventually paid off and Butts
agreed to hire Pohl, signing two contracts with his law firm.161 Magdaklena also had
Butts sign a funding agreement with Helping Hands Financing toC obtain the money
Magdalena promised to pay Butts if he hired Pohl.162 And of course, Magdalena had
Butts execute the “Attorney Acknowledgement” listing iPohl as his lawyer and
authorizing Pohl to pay back Helping Hands Financing from any settlement.163
Magdalena was paid for this unlawful solicitation. Ultimately, however, Pohl never
countersigned the contracts, and the claims were not pursued.
On or about Saturday, February l15, 2014, LaDonna Cheatham and her
children, Destiny and Markus, were tMragically killed after a tire on the Kia Sorrento
driven by LaDonna failed and caused the vehicle to cross the median and collide
with an oncoming school bus.1i64 LaDonna’s other son, Mark Cheatham, Jr. survived
the crash.165 Mark Cheatham, Sr. is the ex-husband of LaDonna, biological father to
Markus and Mark, oJr., and father-figure to Destiny.166 Luella Miller is the
159 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 55.
160 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 56.
161 Exhibit 26, Butts-Pohl Contracts.
162 Exhibit 27, Butts Funding Agreement.
163 Exhibit 28, Butts Attorney Acknowledgement.
164 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
165 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
166 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
23
surviving mother to LaDonna.167 LaDonna was only thirty-six years old, Markus
was sixteen and Destiny was only six.168
Less than a week after the accident, Pohl and his firm entered into an
agreement with Walker, Ladner and Precision to provide “marketing skervices” – i.e.
“barratry” – relating to the Cheatham accident wherein Pohl agCreed to pay these
non-lawyers an unethical percentage of his attorney’s fees.169 Talley contracted with
Precision to aid in providing these “marketing services” toi Cheatham and Miller in
exchange for $10,000 for every $1,000,000 received in a settlement.170 Talley
testified that was paid a fee by Pohl, through Precision, to personally solicit and
sign up the Cheatham family.171 And, Talley was successful.
Talley testified in his deposition thlat days after the accident, he did some
“snooping” and located the residenMce of Cheatham, Sr.172 Talley went out and
“knocked on the door” and Cheatham, Sr. answered.173 Talley told Cheatham, Sr.
and Miller that he was with “Hielping Hands” and could help them with burial costs
and “getting settlements.”174 Talley told Cheatham, Sr. that he was “associated with
attorneys out of Houoston that were really experienced with multi-types of vehicle
accidents and thalt [they] could do the best job of getting him a settlement.”175
Cheatham, Sri. and Miller signed the paperwork, including the contract with Pohl,
167 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
168 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
169 Exhibit 30, Cheatham Retention Services Agreement.
170 Exhibit 31, Cheatham Distribution Agreement.
171 Exhibit 15, Deposition of Kenneth Talley, p. 60-61.
172 Exhibit 15, Deposition of Kenneth Talley, p. 64-65.
173 Exhibit 15, Deposition of Kenneth Talley, p. 65.
174 Exhibit 15, Deposition of Kenneth Talley, p. 64.
175 Exhibit 15, Deposition of Kenneth Talley, p. 65-66.
24
right there.176 Talley testified that he gave the Cheatham family $24,000 to sign up
with the lawyers.177 Either Pohl or Ammons brought the $24,000 and gave it to the
family,178 $18,000 of which went to Cheatham, Sr., and all of which was paid by
Helping Hands Financing.179 k
Talley’s testimony is consistent with that of Cheatham, Sr. Cwho testifies that,
on or about February 19, 2014, just days after the accident, he and Miller were
personally solicited by Talley at his home in Schriever, Louiisiana and urged to hire
Pohl and Ammons in a potential lawsuit against Kia Motors.180 Neither Cheatham,
Sr. nor Miller had ever met Talley before and did not request him to visit with them
about the accident.181 Cheatham, Sr. and Miller did not have a previous attorney-
client relationship with Pohl or Ammons alt the time they were personally solicited
by Talley.182 M
At the visit, Talley encouraged Cheatham, Sr. and Miller to sign an
agreement with a Helping Hiands to investigate a potential lawsuit against Kia
Motors in exchange for $400 per hour or 40% of any recovery in their case.183 Talley
offered Cheatham, Sor. $2,000 if he would sign the agreement and hire Helping
Hands to investiglate the potential lawsuit and in turn the lawyers.184 Talley
encouraged Chieatham, Sr. to sign the agreement by stating that the money could
176 Exhibit 15, Deposition of Kenneth Talley, p. 66.
177 Exhibit 15, Deposition of Kenneth Talley, p. 74.
178 Exhibit 15, Deposition of Kenneth Talley, p. 77.
179 Exhibit 32, Helping Hands Check to Mark Cheatham.
180 Exhibit 30, Cheatham Retention Services Agreement.
181 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
182 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp. 1-2.
183 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, and Cheatham Ex. 1.
184 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
25
defray funeral costs and the investigation would reveal a viable claim against Kia
Motors.185 Talley told Miller and Cheatham, Sr. that if there was a viable case, they
could hire Pohl and Ammons to represent them in the lawsuit.186 Cheatham, Sr.
agreed and signed the investigation agreement with Helping Hands.1k87 To get the
money, Cheatham, Sr. was required to sign several documents wiCth Helping Hands
Financing, Donalda Pohl’s company.188
Days later, on or about February 21, 2014, Pohli personally visited with
Cheatham, Sr. and Miller and encouraged them to sign contingency fee agreements
with his firm and also confirmed that he would associate Ammons on the case.189
Pohl said that Ammons was an expert on auto accident and auto defect cases.190
Pohl promised to pay Cheatham, Sr. $18,0l00 if he agreed to hire Pohl and Ammons
in the auto accident case.191 CheMatham, Sr. and Miller agreed and signed
contingency fee contracts for legal services with Pohl on this same day.192
Cheatham, Sr. signed the conitract for legal services individually and on behalf of
Destiny, Markus, and Mark, Jr., who were all minors.193 The $18,000 was paid to
Cheatham, Sr. in exochange via a check written from Donalda Pohl’s company
185 ExhibiUt 29, Affidavit of Mark Cheatham, Sr., p. 2.
186 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
187 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 2.
188 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
189 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
190 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
191 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
192 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3; Exhibit 33, Miller-Pohl
Agreement.
193 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3.
26
Helping Hands Financing.194 Cheatham, Sr. and Miller later signed joint
representation agreements with Pohl and Ammons.195 Cheatham, Sr. testified that
he was offered and received an additional $500 to sign this joint agreement.196
Lacy Reese lost her husband David Reese on or about July k2, 2014 in a
vehicle accident that occurred outside of Anson, Texas.197 Reese bCuried her husband
on July 7, 2014.198 That same day, Ladner personally visited Reese’s home when she
was not there and left a business card stating he was thie “Associate Director” of
Helping Hands.199 The next day, July 8, 2014, Ladner again visited Reese’s home in
Paris, Arkansas and met with Reese and her mother, Karen Fairbanks.200 Ladner
told Reese and her mother that he was with a company called “Helping Hands” that
could investigate a potential lawsuit agailnst the vehicle manufacturer or the tire
company and sue them for the death Mof David.201 Ladner told Reese that if it looked
like she had a lawsuit, Pohl and his co-counsel, Rob Ammons, could handle the
case.202 Reese’s mother wrotei down the names of these lawyers on the back of
Ladner’s business card during this meeting.203 Ladner offered Reese money if she
would hire Helping Hoands Group and these lawyers, telling her the money could
194 Exhibit 29,o Affidavit of Mark Cheatham, Sr., p. 2; Exhibit 32, Helping Hands Check to Mark
Cheatham. n
195 ExhibiUt 29, Affidavit of Mark Cheatham, Sr., pp. 2-3, at Cheatham Ex. 5; Exhibit 34, Ammons-
Miller Agreement.
196 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp.2-3.
197 Exhibit 35, Declaration of Lacy Reese, p. 1.
198 Exhibit 35, Declaration of Lacy Reese, p. 1.
199 Exhibit 35, Declaration of Lacy Reese, p. 1, and Reese Ex. 1.
200 Exhibit 35, Declaration of Lacy Reese, p. 1.
201 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
202 Exhibit 35, Declaration of Lacy Reese, p. 1.
203 Exhibit 35, Declaration of Lacy Reese, at Reese Ex. 1.
27
help with the expenses relating to David’s death.204 Reese had never met Ladner,
Pohl or Ammons, or requested them to visit with her about the accident or
requested them to contact her.205
Although Reese was grieving over the loss of her husband, Ladnker pressured
Reese to sign the papers he had brought with him that day anCd she did.206 The
agreement that Ladner had Reese sign provided Helping Hands Group $400 per
hour or 40% of any recovery in her case.207 To get the moneiy, Reese was required to
sign several agreements with Helping Hands Financing, Donalda Pohl’s
company.208 Reese was told she would get the money after a suit had been filed.209
On July 25, 2014, unbeknownst to Reese, Pohl and his firm entered into a
“Retention of Services Agreement” with Wlalker, Ladner and Helping Hands Group
to provide “marketing services” relaMting to the death of David.210 Among other
things, Ladner was to “conduct initial interview” of the victims and “maintain
contact with the victims andi their family.”211 In exchange, Pohl agreed to pay
Ladner and Helping Hands Group fees not to exceed 30% of his own attorney’s
fees.212 Walker and Porecision Marketing then contracted with Ladner to provide
“public relations slervices pertaining to the cases of David Reese” in exchange for
204 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
205 Exhibit 35, Declaration of Lacy Reese, p. 2.
206 Exhibit 35, Declaration of Lacy Reese, p. 2.
207 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 2.
208 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 3.
209 Exhibit 35, Declaration of Lacy Reese, p. 2.
210 Exhibit 36, Reese Retention Services Agreement.
211 Exhibit 36, Reese Retention Services Agreement.
212 Exhibit 36, Reese Retention Services Agreement.
28
$5,000 for every $1,000,000 received from any settlement.213 The solicitation of
Reese occurred pursuant to these agreements.
On July 18, 2014, Ladner emailed Walker and Jaimes, the manager of
Helping Hands Financing and Pohl’s paralegal, concerning the “Rekese Case.”214
Ladner described the accident that occurred on July 2nd – less Cthan three weeks
prior.215 On or about August 16, 2014, Reese received an email from Ladner about a
contract with Pohl.216 Ladner told Reese that Pohl’s contraict would “take the place”
of the one that Reese had with Helping Hands Group and requested her to send the
contract directly to Pohl’s office.217 Reese received an email two days later from
Walker forwarding her Pohl’s contract.218 Reese signed the contract and sent it to
Pohl.219 l
Ladner does not dispute this. LMadner testified that he got an alert about the
death of Reese’s husband and flew to “nowhere Arkansas” within seven days of the
accident and “knocked on the dioor” to solicit her.220 Ladner solicited Reese on behalf
of Precision and “to get paid” by Pohl.221 Ladner referred the case to Pohl and got
paid a “bonus” of $2o,500.222 Ladner brought with him Helping Hands Financing
forms he obtainedl from Jaimes.223 Although Ladner could not recall whether he
213 Exhibit 3n7, Reese Distribution Agreement.
214 ExhibiUt 38, July 18, 2014 Email re Reese Case.
215 Exhibit 38, July 18, 2014 Email re Reese Case.
216 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
217 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
218 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 5.
219 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 6.
220 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 346-351.
221 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347.
222 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347, 358-359
223 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 349-350.
29
offered Reese money to sign up with Pohl, it was his practice to do so and the money
came from Jaimes and Helping Hands Financing, Donalda’s company.224 And Pohl
acknowledged that Ladener “was operating under [his] direction to … investigate[]
the incident as part of an initial case evaluation process.”225 In other wkords, Ladner
was soliciting Reese and evaluating her potential claim at the direCction of Pohl.
Pohl is sued by his Mississippi runners who expose the illegal
and unethical barratry scheme and Pohl settlest that litigation
after unsuccessfully seeking to have it dismissied based on the
illegality of his agreements.
On October 8, 2014, Walker and Ladner ande their company Precision sued
Pohl and his law firm for breach of contract aund fraud, among other claims (the
“Mississippi Litigation”).226 There, Walker nand Ladner alleged they had a joint
venture with Pohl to sign up clients with economic loss claims stemming from the
BP Deepwater Horizon oil spill.227 See Walker v. Williamson, No. 1:14cv381-KS-
JCG, 2016 U.S. Dist. LEXIS 6e1185, at *5-6 (S.D. Miss. May 9, 2016). They also
alleged that they had “condufcted marketing efforts to obtain personal injury clients”
for Pohl228 and that Pohl received attorney’s fees from the cases they signed up, but
that “Pohl did not pay any of the agreed share of his fees to Walker [and]
Ladner.”229 i
Moreo specifically, Walker, Ladner and Precision (“the Runners”) alleged that
Pohl contracted with them to provide “public relations and marketing services” to
224 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 351-354.
225 Exhibit 40, January 19, 2016 Letter.
226 Nicholson Exhibit 4, Walker Complaint.
227 Exhibit 41, Walker Second Amended Complaint.
228 Exhibit 41, Walker Second Amended Complaint. ¶ 118.
229 Exhibit 41, Walker Second Amended Complaint. ¶ 136.
30
potential clients impacted by the Deepwater Horizon oil spill in exchange for “a
percentage of the attorney fees for the claims obtained from their efforts, along with
expenses and a flat fee.” Walker, 2016 U.S. Dist. LEXIS 61185, at *6-7. The
Runners also alleged that they contracted with Pohl “to provide mkarketing and
public relations services in connection with claims for auCtomobile rollover
accidents.” Walker v. Williamson, No. 1:14-CV-381-KS-MTP, 2017 U.S. Dist. LEXIS
59031, at *5 (S.D. Miss. Apr. 18, 2017). “There is evidience that the [Runners]
contacted people and businesses in Mississippi to determine if they might have a
claim against BP, encouraged those people to retain Pohl as their attorney, and
were paid over $5 million in ‘barratry pass-through money’ for their services.”
Kassab v. Pohl, 612 S.W.3d 571, 574 (Telx. App. – Houston [1st Dist.] 2020, pet.
denied). However, the Runners sueMd Pohl because they “procured thousands of
viable BP claims” and “approximately sixty motor vehicle accident cases” for Pohl
but that Pohl “did noy pay ainy of the agreed share of his fees” or all expenses
incurred. Walker v. Williamson, No. 1:14-cv-381-KS-JCG, 2016 U.S. Dist. LEXIS
76488, at *5, 24 (S.D. oMiss. Mar. 1, 2016).
Precision tlransfers and assigns its assets and claims against
Pohl to iFavre – Pohl counterclaims for conversion in the
Mississiippi Litigation but settles when he cannot obtain
summoary dismissal.
During discovery in the Mississippi Litigation, Pohl discovered that the
Runners allegedly “disclosed confidential and proprietary information to third
parties without authorization” and proposed “the ‘sale’ of all of [his] accumulated
31
work product to third parties” while working for him.230 Pohl testifies that the
Runners “undertook to convert, misappropriate for themselves and/or market to
third parties claimant files and other information and materials” that allegedly
belonged to Pohl231 – including “marketing information and other tradek secrets”232 –
and then the new owner of Precision, Scott Favre, allegedly “solCd those items and
the information” to Kassab.233
As a result, Pohl “asserted multiple claims againist” the Runners in the
Federal Court Case based on their alleged “fraudulent and bad faith conduct.”234
Pohl did not assert claims against Kassab in the Federal Court Case, even though
he testified under oath that he knew Kassab allegedly was part of the “team of
thieves” who broke into Pohl’s office in 20l14 and stole his confidential information
and purported trade secrets.235 M
Pohl attempted to dismiss the Mississippi Litigation, arguing the agreements
between he and the runners iwere illegal and unenforceable.236 More specifically,
Pohl argued that under both Texas and Mississippi law “it is illegal for a non-
lawyer to accept or oagree to accept money to improperly solicit clients for a
lawyer.”237 The Mlississippi federal court denied Pohl’s motion to dismiss and
concluded thait he was in a partnership with Walker and Ladner and further
230 ExhibiUt 42, Pohl’s June 19, 2018 Affidavit, at ¶ 18.
231 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
232 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
233 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 29.
234 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 19; see also Exhibit 43, Pohl’s Amended
Counterclaim.
235 Exhibit 44, May 15, 2018 Deposition of Michael Pohl, pp. 85-93.
236 Exhibit 45, Walker Memorandum Opinion (Doc. No. 475); Exhibit 46, Walker Pohl Memorandum
(Doc. No. 175).
237 Exhibit 46, Walker Pohl Memorandum, at ¶ 18.
32
concluded that the agreements to solicit clients would only be a violation of the
Texas disciplinary rules and Texas law, which did not apply to Walker and
Ladner.238 Having failed to obtain summary dismissal, Pohl settled the Mississippi
Litigation, hoping to forever conceal the barratry operation.239 Thke Mississippi
Litigation was dismissed with prejudice on April 24, 2017.240 C
Kassab exposes Pohl’s illegal and unethical barratry and more
than 400 victims of Pohl’s barratry scheme hiret Kassab to file
civil claims and grievances against Pohl. i
Kassab was tipped off to the allegations in the Mississippi Litigation by an
acquaintance of his, F. Douglas Montague of the Mississippi law firm Montague
Pittman & Varnado, PA (“Montague”).241 Kassab obtained much information related
to the Mississippi Litigation from the flederal court’s online system, PACER.242
Kassab also associated Precision aMnd its new owner, Favre, and its counsel,
Nicholson, and obtained information directly from them, including the names and
addresses of Pohl’s former ori prospective clients.243 Favre informed Kassab that,
when he bought Precision, he acquired files related to Pohl and Favre transferred
that information to Koassab.244
Kassab preplared advertisement letters approved by the State Bar of Texas
and sent it to ipeople who had been illegally solicited by Pohl, informing them that
238 Exhibit 47, Walker Order on Pohl Motion to Dismiss (Doc. No. 252).
239 Exhibit 48, Walker Judgment (Doc. No. 499).
240 Exhibit 48, Walker Judgment (Doc. No. 499).
241 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
242 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
243 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
244 Exhibit 49, Declaration of Lance Christopher Kassab, at 2; Exhibit 50, Affidavit of Scott Favre.
33
they may have potential barratry claims against Pohl.245 Hundreds of Mississippi
residents responded to Kassab’s advertisement letter and more than 400 signed
representation contracts with Kassab’s firm to pursue barratry claims against
Pohl.246 Kassab filed four separate lawsuits on behalf of these barratkry victims in
Harris County, Texas (the “Barratry Lawsuits”).247 AdditionCally, due to the
egregiousness of Pohl’s violation of the Texas Penal Code and violations of the Texas
Disciplinary Rules of Professional Conduct, Kassab was reqiuired to notify the Texas
State Bar pursuant to disciplinary rule 8.03.248 Thus, Kassab filed grievances
against Pohl pursuant to this rule, and also at the request of some of Pohl’s former
clients.249
Pohl files this retaliatory lawsluit against Kassab seeking as
damages the costs he incurread to defend against the Barratry
Lawsuits and grievances filMed against him.
In retaliation, Pohl filed this litigation against Kassab, Favre, Nicholson,
Precision, and others, for cionversion, misappropriation of trade secrets and
conspiracy.250 Pohl rehashes his allegations from the Mississippi Litigation,
claiming that “Preciosion gained access to Pohl’s confidential and proprietary
information and plroperty, including trade secret materials” and “work product” and
245 Exhibit 4n9, Declaration of Lance Christopher Kassab, at 2; Exhibit 51, Advertisement Letters.
246 ExhibiUt 49, Declaration of Lance Christopher Kassab, at 2.
247 Exhibit 52 (Brumfield Third Amended Petition), Exhibit 53 (Gandy Third Amended Petition),
Exhibit 54 (Berry Fifth Amended Petition), Exhibit 55 (Cheatham Fourth Amended Petition)
(without exhibits).
248 Exhibit 49, Declaration of Lance Christopher Kassab, at 1.
249 Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct provides: “. . . a lawyer having
knowledge that another lawyer has committed a violation of applicable rules of professional conduct
that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer
in other respects, shall inform the appropriate disciplinary authority.”
250 See Pohl’s First Amended Petition (on file with the Court).
34
“illegally misappropriated” this information and then allegedly “secretly sold Pohl’s
confidential information to Kassab and [another lawyer named] Montague”251 who
then “solicited clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring
cases against Pohl for alleged barratry and other claims.”252 As damageks, Pohl seeks
the costs and expenses he incurred defending against the BarraCtry Lawsuits and
grievances filed against him.
SUMMARY JUDGMENT STANDARDDi
The purpose of summary judgments is to eliminate patently unmeritorious
claims and untenable defenses. Tex. Dep't of Parks & Wildlie v. Miranda, 133
S.W.3d 217, 228 (Tex. 2004). To prevail, the movant must show that no genuine
issue of material fact exists and that it isl entitled to judgment as a matter of law.
TEX. R. CIV. P. 166a(c); Lujan v. NavisMtar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). “If the
movant carries this burden, the burden shifts to the nonmovant to raise a genuine
issue of material fact precludiing summary judgment.” Lujan, 555 S.W.3d at 84; see
Maldonado v. Maldonado, 556 S.W.3d 407, 414 (Tex. App.—Houston [1st Dist.]
2018, no pet.). “A genouine issue of material fact exists if more than a scintilla of
evidence establishling the existence of the challenged element is produced.” Ford
Motor Co. v. Riidgway, 135 S.W.3d 598, 600 (Tex. 2004).
ARGUMENT & AUTHORITIES
Although Pohl’s claims against Kassab lack merit because Kassab did not
misappropriate Pohl’s trade secrets or otherwise engage in any misconduct, the
251 First Amended Petition, at ¶¶ 20-21.
252 First Amended Petition, at ¶ 29.
35
Court need not decide that issue to dispose of Pohl’s claims against Kassab. Rather,
Pohl’s claims can be dismissed for several independent reasons.
A. Pohl’s claims against Kassab are barred by immunity
under Rule 17.09 of the Texas Rules of Disciplinary
Procedure. k
First, Pohl’s claims against Kassab must be dismissed baCsed on immunity
provided in Rule 17.09 of the Texas Rules of Disciplinary Procedure. That rule
provides: i
No lawsuit may be instituted against any Complainant or
witness predicated upon the filing of a Grieevance or participation in
the attorney disciplinary and disability system. … The immunity is
absolute and unqualified and extendsu to all actions at law or in
equity.
TEX. R. DISC. P. 17.09 (emphasis added). Elven “allegations of wrongdoing” done “in
connection with [the] prosecution of dMisciplinary actions” are absolutely immune, so
long as they are “predicated upon” the filing of a grievance. Crampton v. Farris, 596
S.W.3d 267, 274-75 (Tex. App.i—Houston [1st Dist.] 2019, no pet.).
Here, it is undisputed that Pohl’s allegations of wrongdoing against Kassab
are predicated upon Koassab’s filing of grievances against Pohl. Pohl testified that he
has sued Kassab blecause Kassab allegedly “used information from [Pohl’s] files in
the grievance iproceedings that [Kassab] personally filed or had clients file and
[Kassab allegedly] shared [Pohl’s] stolen property with Ms. Nicholson so she could
defend a grievance against herself, according to her own testimony.”253 Pohl seeks
as damages in the form of “costs and expenses of … serial grievances that arose
253 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
36
from the use of the [allegedly] misappropriated trade secrets.”254 Pohl intends to
have his biased expert, John Zavitsanos,255 “testify that Defendants, including
[Kassab], sought to profit from the use of [Pohl’s information] by … using it … to
facilitate the bringing of grievances and litigation against Pohl.”256 kZavitsanos is
purportedly going to “opine that [Pohl’s] attorneys’ fees and expenCses incurred … in
defending related matters including against invalid grievances … are fair,
reasonable, necessary and recoverable under the circumstainces.”257
But Rule 17.09 makes clear that “[n]o lawsuit” may be instituted against
Kassab that is “predicated upon” the filing of a grievance or participation in the
attorney disciplinary and disability system. TEX. R. DISC. P. 17.09. Because Pohl’s
claims against Kassab and the damages lthat he seeks are “predicated upon” the
grievances that Kassab caused to Mfile against Pohl, the claims are barred by
“absolute and unqualified” immunity that “extends to all actions at law or in
equity.” Id.; Crampton, 596 Si.W.3d at 276 (claim for destruction of evidence and
property related to grievance proceeding barred by immunity under Rule 17.09);
Burch v. State Bar ofo Tex., No. 07-19-00224-CV, 2020 Tex. App. LEXIS 1409, at *3
(Tex. App.—Amarilllo Feb. 19, 2020, pet. denied) (immunity under Rule 17.09 barred
claim that attiorneys for commission, in relation to a grievance proceeding, who
purportedly “engaged in misconduct related to a bankruptcy proceeding in which
254 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122. (emphasis added).
255 Mr. Zavitsanos is bias because he was an advocate for Pohl’s co-defendant in the underlying
barratry cases that Kassab brought and because Kassab had previously sued Mr. Zavitsanos and his
firm. See Cause No. 20191510, Bragg v. Zavitsanos, in the 270th Judicial District Court of Harris
County, Texas. The Court is requested to take judicial notice of this case.
256 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 5.
257 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 6.
37
[plaintiff] was involved”). Since all of Pohl’s claims are related to the grievance
proceedings, they are all barred by Rule 17.09 and summary judgment may be and
should be granted based upon Rule 17.09 alone.
B. Pohl’s claims against Kassab are barred by the jukdicial
proceedings privilege. e
“The judicial-proceedings privilege is an absolute privilege that covers any
statement made by the judge, jurors, counsel, parties or wittnesses, and attaches to
all aspects of the proceedings, including statements made in open court, pre-trial
hearings, depositions, affidavits and any of the pleeadings or other papers in the
case.” Landry's, Inc. v. Animal Legal Def. Funud, 631 S.W.3d 40, 46 (Tex. 2021)
(internal quotations omitted). “The judicial-proceedings privilege exists to facilitate
the proper administration of the jusatice system. It does so by relieving the
participants in the judicial process from fear of retaliatory lawsuits for statements
they make in connection with thee proceeding itself.” Id. at 48.
Moreover, the jufdicial-proceedings privilege attaches even to
“communications preliminary to a proposed judicial proceeding” if “the
communication has some relation to a proceeding that is actually contemplated in
good faith and uinder serious consideration by the witness or a possible party to the
proceeding.o” Id. at 48-49. “Even in the pre-suit context, however, the privilege
protects communications that are themselves preparatory to the lawsuit.”
Id. (emphasis added). The privilege protects all communications that are
“necessary to set the judicial machinery in motion.” Id. at 50 (quoting
RESTATEMENT (SECOND) OF TORTS § 586 cmt. a) (emphasis added).
38
Here, Pohl has sued Kassab in retaliation for Kassab “solicit[ing] …
clients/prospective clients to act as plaintiffs … to bring cases against Pohl for
alleged barratry and other claims.”258 Pohl admits that he is suing Kassab for
statements Kassab made to prospective clients which spawned the lkitigation and
grievance proceedings:259 C
Because Pohl’s claims against Kassab arise out of communications that Kassab
made in prospective (solicitation letters) and actual judicial proceedings (the
barratry litigatioin and grievance process), Pohl’s claims against Kassab are barred
by the judicoial proceedings privilege. See Crain v. Smith, 22 S.W.3d 58, 62-63 (Tex.
App.—Corpus Christi 2000, no pet.) (holding that statements in letter sent before
the lawsuit began were protected by the judicial-proceedings privilege).
258 Amended Petition, at ¶ 29.
259 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
39
It matters not how Pohl characterized his claims against Kassab because “the
privilege should be extended beyond defamation when the essence of a claim is
damages that flow from communications made in the course of a judicial
proceeding.” Laub v. Pesikoff, 979 S.W.2d 686, 691 (Tex. App.—Houstkon [1st Dist.]
1998, pet. denied). Here, Pohl seeks as damages “the costs and Cexpenses of serial
litigations and serial grievances” that Kassab filed against Pohl, including
attorney’s fees for his lawyers who represented him in tihat litigation and “[a]ny
fees, any expenses [Pohl] had, hotel rooms, long-distance phone calls, copy costs,
[Pohl] intend[s] to sue Mr. Kassab for all of it.”260 Because Pohl’s alleged damages
“flow from” communications that Kassab made in the barratry litigation and
grievance proceedings, his claims are barlred regardless of label. See id. (holding
privilege applied to claims for “intentMional interference, civil conspiracy, intentional
infliction of emotional distress, negligence, and constitutional violations”); Tex. Mut.
Ins. Co. v. Ray Ferguson Interiests, Inc., No. 01-02-00807-CV, 2006 Tex. App. LEXIS
2001, at *27-28 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem.
op.) (holding that absoolute privilege applied in deceptive insurance practices claim
under Texas Insurlance Code because “although [plaintiff] did not plead defamation,
its theory of idamages was that its clients, creditors, and bonding companies
abandoned it, in part, because of the [insurer's] allegations and assertions . . . made
in the course of this judicial proceeding”). Thus, summary judgment must be
granted based upon the judicial proceedings privilege.
260 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
40
C. Pohl’s claims against Kassab are barred by attorney
immunity.
Under the doctrine of attorney immunity, “an attorney does not have a right
of recovery, under any cause of action, against another attorney arising from
conduct the second attorney engaged in as part of the discharge eof his duties in
representing a party.” Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st
Dist.] 1992, writ denied) (emphasis added). “[A]n attorney ist immune from liability
to nonclients for conduct within the scope of his representation of his clients.”
Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 201e8). The inquiry “focuses on the
kind of conduct at issue rather than the allegedu wrongfulness of said conduct.” Id.
“That is, a lawyer is no more susceptible to liability for a given action merely
because it is alleged to be fraudulent ora otherwise wrongful.” Id. “Merely labeling an
attorney’s conduct ‘fraudulent’ does not and should not remove it from the scope of
client representation or render eit ‘foreign to the duties of an attorney.’” Id. at 483.
Even “criminal conduct is noft categorically excepted from the protections of attorney
civil immunity when the conduct alleged is connected with representing a client in
litigation.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d
651, 657 (Tex. 2i020); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015)
(“an attornoey’s conduct may be wrongful but still fall within the scope of client
representation”).
Although the Court previously denied Kassab summary judgment on this
defense, the Texas Supreme Court’s recent decision in Taylor v. Tolbert, 644 S.W.3d
637 (Tex. 2022) requires reconsideration. Taylor held that even “conduct prohibited
41
by statute” is subject to attorney immunity if the “statute does not expressly, or by
necessary implication, abrogate the immunity defense, and the attorney met her
burden to establish its applicability to the conduct at issue.” Id. at 642.
In Taylor, the attorney was accused of violating state and kfederal laws
prohibiting wiretapping because the attorney obtained and usCed the plaintiff’s
communications in violation of the statute. Id. at 643. The plaintiff brought a
statutory claim against the attorney which permitted recoviery of civil damages. Id.;
see also TEX. CODE CRIM. PROC. § 18A.502. The a
ttorney moved for traditional
summary judgment, “arguing she is immune from liability as a matter of law
because the plaintiffs’ claims all stem from her role as an attorney in the
modification proceeding.” Id. at 644. The tlrial court agreed, but the court of appeals
reversed. Id. The Supreme Court graMnted review and reversed the court of appeals.
Id. It concluded that the attorney was, “in all respects, engaging in the office,
professional training, skill, aind authority of an attorney in the ways that she
allegedly used and disclosed the materials her client provided.” Id. at 649. “Because
[the attorney’s] conduoct falls squarely within the confines of attorney immunity, the
alleged criminalityl or wrongfulness of the conduct does not perforce preclude its
availability asi an affirmative defense.” Id. The court also held that “Texas’s wiretap
statute does not expressly repudiate the common law or the attorney-immunity
defense.” Id.
Here too, Kassab’s conduct which forms the basis of Pohl’s claims fall
squarely within the confines of attorney immunity, regardless of whether it is
42
alleged to have violated the TUTSA because that statute does not expressly
repudiate the defense.
Pohl is suing Kassab because he allegedly obtained purportedly stolen
information in violation of the TUTSA and then “solicikted [Pohl’s]
clients/prospective clients to act as plaintiffs … to bring casesC against Pohl for
alleged barratry and other claims.”261 The essence of Pohl’s claims against Kassab
are “that Kassab bought Pohl’s client list from [Precision] sio that Kassab could send
advertisements to Pohl’s former clients and solicit them to become Kassab’s clients
in barratry suits against Pohl.” Kassab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied) (characterizing Pohl’s claims against Kassab).
Pohl seeks as damages “the costs and lexpenses of serial litigations and serial
grievances” that Kassab filed againstM Pohl, including attorney’s fees for his lawyers
who represented him in that litigation and “[a]ny fees, any expenses [Pohl] had,
hotel rooms, long-distance pihone calls, copy costs, [Pohl] intend[s] to sue Mr.
Kassab for all of it.”262 Pohl has even designated Mr. Zavitsanos to testify to these
damages, and “the reoasonableness and necessity of the attorneys’ fees, costs, and
expenses incurredl by Pohl in defending against invalid grievances and stale
claims.”263 i
Moreover, in this very case, the court of appeals opined that “the alleged
purchase of Pohl[’s] client list for those clients’ contact information,
followed by the mailing of attorney advertisements to those individuals
261 Amended Petition, ¶ 29.
262 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
263 Exhibit 57, Pohl’s Second Amended Designation of Experts, at 3.
43
about specific types of claims they might be able to pursue against a
specifically identified attorney, qualifies as statements or conduct that
arose out of a commercial transaction involving the type of legal services
Kassab provides.” Kassab, 612 S.W.3d at 578 (emphasis added). Thek court opined
that, “the intended audience of [Kassab’s alleged] statemCent or conduct
were individuals with potential legal claims who Kassab sought to
represent in barratry suits against Pohl.” Id. at 579 (eimphasis added).
The acquisition of clients and filing of lawsuits are actions taken “to facilitate
the rendition of legal services.” Youngkin, 546 S.W.3d at 682; Clayton v. Oldcastle
Materials Tex., Inc., No. 09-18-00063-CV, 2019 Tex. App. LEXIS 1112, at *12, 15
(Tex. App.—Beaumont Feb. 14, 2019, nlo pet.) (applying attorney immunity to
attorney’s conduct which included M“selling his legal services to the City as a
potential client” and subsequent conduct which “occurred in the course of his
undertaking to represent” thoise clients). The fact that Kassab is alleged to have
committed the misconduct prior to any litigation is immaterial because “attorney
immunity applies too claims based on conduct outside the litigation context[.]”
Haynes & Boone, LlLP v. NFTD, LLC, 631 S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey
Hanger, 467 Si.W.3d at 485 (concluding that attorney was immune from conduct
that occurred after litigation had ended). In other words, Pohl’s characterization of
Kassab’s activities as part of a business transaction that occurred prior to litigation
does not negate attorney immunity because Kassab engaged in the conduct as part
of his ultimate provision of legal services to his client. See Haynes & Boone, 631
44
S.W.3d at 78-79, 81 (applying attorney immunity to lawyer conduct committed as
part of business transaction). Indeed, in this case, the court of appeals concluded
that all of Kassab’s conduct for which Pohl complains “arose out of a commercial
transaction involving the type of legal services Kassab providkes.” Kassab,
612 S.W.3d at 578 (emphasis added). C
Accordingly, Pohl’s claims against Kassab are barred by attorney immunity.
See Taylor, 644 S.W.3d at 648 (attorney could not be heldi civilly liable for conduct
which was “criminal in nature” because it was committed while discharging duties
to client); Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-
00055-CV, 2016 Tex. App. LEXIS 442, at *10-11 (Tex. App.—Dallas Jan. 14, 2016,
pet. denied) (mem. op.) (applying attorneyl immunity to claim that attorney engaged
in “malicious conduct with respect Mto its illegal acquisition, retention, use, and
threatened disclosure of [the plaintiff’s] proprietary and confidential information”
that “it knew to be stolen anid proprietary in furtherance of its scheme to extort,
slander, and disparage [the plaintiff]” and “refusing to return and cease use of [the
plaintiff’s] proprietaryo information”). The law of the case, as outlined by the court
of appeals in thisl matter, demonstrates that the alleged conduct for which Pohl
basis his claimis is clearly covered by the attorney immunity doctrine.
D. Pohl’s claims are barred by limitations.
A defendant moving for summary judgment on the affirmative defense of
limitations bears the burden of conclusively establishing the elements of that
defense. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018) (per
45
curiam). To do so, the defendant must (1) conclusively prove when the cause of
action accrued and (2) negate the discovery rule if it applies and has been pleaded
or otherwise raised. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999). A cause of action accrues when (1) “kthe allegedly
tortious act was committed and caused an injury;” or (2) “facts coCme into existence
that authorize a party to seek a judicial remedy.” United Healthcare Servs., Inc. v.
First St. Hosp. LP, 570 S.W.3d 323, 335 (Tex. App.—Housiton [1st Dist.] 2018, pet.
denied) (citing Pasko, 544 S.W.2d at 834). This is true even if all resulting damages
have not yet occurred. Pasko, 544 S.W.3d at 834. Determining the accrual date is a
question of law. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.
2003). As demonstrated below, all of Pohll’s claims against Kassab are barred by
limitations. M
1. Facts relevant to limitations.
Pohl testified that he iand Precision shared an office in Gulfport, Mississippi
from 2013-2014.264 Pohl called this his “satellite law office.”265 The owners of
Precision in 2014 weroe Scott Walker, Kirk Ladner, and Steve Seymour.266
Pohl testiflied that he closed his Gulfport, Mississippi office in the summer
of 2014.267 Hei testified that he asked Precision to arrange to have his office
equipment and files sent to him in Houston, Texas.268 Pohl testified that Precision
264 Exhibit 56, December 2021 Deposition of Michael Pohl, at 7-10.
265 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6-8.
266 Exhibit 56, December 2021 Deposition of Michael Pohl, at 16.
267 Exhibit 56, December 2021 Deposition of Michael Pohl, at 11.
268 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
46
made excuses for why they could not get his property moved to Houston.269 In June
or July of 2014, Pohl “gave up” asking Precision to arrange the move and hired his
own mover to go to Gulfport and get everything that was in the office: “every pencil,
every paper, every file, every file cabinet, every icebox.”270 Pohl testikfied that the
mover was to bring the property back to Pohl in Houston, Texas.27C1 When the mover
arrived in Gulfport, he found the office almost empty, and Precision told him that
Precision removed all files and was not returning them.2i72 Pohl testified that he
contacted Precision and was told Precision was “keeping” the files.273
Pohl asserts that Kassab and other Defendants orchestrated and participated
directly in the 2014 theft of files.274 Pohl testified that Kassab and the other
Defendants “robbed my office [and] stole mly clients’ names” in 2014.275 He further
testified: M
A. That group of criminals stole about 11,000 files out of my
Mississippi office. eThey also stole my computers and hired a
third party, whoise name slips my mind right now, to hack
into my office fcomputers and steal all of my confidential
information, internal documents. And they also stole my
forms that I created for BP and other litigation, among other
things. o
Q. And lwhen you’re saying “this group of criminals,” who did
that include?
269 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
270 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
271 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
272 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6, 12-14.
273 Exhibit 56, December 2021 Deposition of Michael Pohl, at 15.
274 Amended Petition, at ¶¶ 21-24.
275 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94-97.
47
A. It would be Scott Favre, Tina Nicholson, Lance Kassab, Doug
Montague, and potentially the people that they either bribed
or coerced into doing their dirty work.276
Pohl alleges that Kassab is a co-conspirator with Nicholson to unlawfully
misappropriate his trade secrets.277 Pohl testified that “Tina Nicholskon demanded
that Scott Walker steal my files or, because he got in trouble wCith the law, Tina
Nicholson was going to take his two baby children away from him and forced him to
cooperate with [Kassab’s] crew to rob me and hack my compiuters.”278
Pohl testified that the alleged theft of trade secret information occurred in
the summer of 2014 when Kassab and his “crew” agllegedly broke into Pohl’s office in
Gulfport and hacked his computers, stole his clients’ names and information, and
then solicited his clients:
Q. Okay. And you think I'mM an unethical lawyer?
A. Yes. You stole my fileos. You robbed me. You tried to destroy my
practice. So I doen't believe you should submit any more
materials, particularly false affidavits that have been retracted
by the witnessfes who made them and other verifiably false
accusations. And you've solicited my clients like Mr. Cheatham,
and you've told him lies to get him to sue me.
o …
A. If the Cquestion is did you steal my files and rob my office, the
answler is that you and your co-counsel and your crew robbed my
office, stole my clients' names, contacted my clients and told
thiem lies to initiate suits against me.
Q. nOkay. How did I steal your files, sir? Did I break into your
house?
A. You broke into my law office.
276 Exhibit 59, April 2021 Deposition of Michael Pohl, at 37-39.
277 Amended Petition, at ¶ 43.
278 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94.
48
Q. I did personally?
A. You and your crew.
Q. And when did I do that?
A. I don't know the exact date, but I believe it was in 2014k when
you robbed me. e
Q. I robbed you in 2014? 
A. Yes, sir. t
… i
Q. So I broke into your office and stole your stuff in 2014 at
your Gulfport, Mississippi office, right?
A. You and your crew.279
In this case, Pohl admitted under oath that he knew in 2014 that his trade secrets
had been misappropriated: l
Q. You knew as of the suMmmer of 2014, then, that the trade
secrets that you claim in this lawsuit were taken by
Precision Marketing. Is that correct?
A. Yes, I knew they were not being made available to me.280
Pohl also expressly testified that he knew in the summer 2014 that his files – which
he claims are the purported trade secrets – had been stolen from him:
Q. Who stole the files?
A. Wcell, originally it would have been Precision Marketing.
Q. Did you form the opinion that they had stolen the files when Mr.
UBlanton informed you that he learned that the files were not
available to be moved to Houston?
A. Well, I certainly had a suspicion, so I followed up and spoke to
somebody at Precision about it.
279 Exhibit 58, May 2018 Deposition of Michael Pohl, pp. 85-93. (emphasis added)
280 Exhibit 56, December 2021 Deposition of Michael Pohl, at 14. (emphasis added)
49
Q. And once you spoke to the person at Precision, that’s when you
formed your opinion that the files had been stolen from you. Is
that correct?
A. Yes.
Q. And that would have been sometime in the summer of 201k4?
A. Yes.281 l
Accordingly, it is undisputed that the alleged trade secret protperty was removed
from the Gulfport office no later than July 2014, that Precsision – who Pohl alleges
was part of Kassab’s “crew” – took it, and that by July 2014 Pohl was aware that
Precision had taken it in an alleged conspiracy with Kassab.
After Pohl discovered the taking of theB alleged trade secrets in the summer
2014, he took no immediate action to recoveyr it, find out what happened to it, or find
out if anyone else was involved in the taaking. Pohl testified that although he knew
the alleged conduct by Kassab occufrred in 2014, he did not file a lawsuit against
Kassab because he “wanted to spend time to reflect on it before taking action [and]
didn’t want to do anythingO that was precipitous.”282
On October 8, 20p14, Precision and its owners, Scott Walker, Kirk Ladner and
Steve Seymour, filed a breach of contract lawsuit against Pohl in federal court in
Mississippi.283 cPohl’s only reaction to the lawsuit was to send Walker and Ladner a
mild email two days later asking them to return his “original documents, evidence
and keys.”284 From that point forward, Precision and its owners proceeded to
publish Pohl’s alleged proprietary information in the lawsuit. For example, in
281 Exhibit 56, December 2021 Deposition of Michael Pohl, at 18-19.
282 Exhibit 58, May 2018 Deposition of Michael Pohl, p. 93.
283 Nicholson Ex. 4, Federal Original Complaint.
284 Nicholson Ex. 5, Doc. 19-1.
50
November 2014, one month after filing the lawsuit, they published his alleged
marketing materials,285 communications and contracts between Pohl and other
lawyers,286 communications between Pohl and his clients or potential clients,287 and
Pohl’s BP client solicitation letter,288 all without any complaint fromk Pohl. Thus,
Pohl acquiesced to the publication and use of his alleged trade secrCets.
Pohl took no action to recover his allegedly stolen property nor attempt to
stop the dissemination of his alleged trade secrets: he did niot file a counterclaim for
theft, conversion, or violation of a trade secrets act, nor did he move for injunctive or
other relief to reacquire or protect his trade secrets, nor did move for a protective
order regarding his alleged trade secrets or (until the March 2017 confidentiality
order that was expressly not retroactive) lenter into a confidentiality agreement to
protect and keep secret the documeMnts produced during the lawsuit.289 In short,
Pohl failed to do any of the things that a person exercising reasonable diligence
regarding the theft of trade seicrets would do.
On or about May 12, 2015, Walker, Ladner and Seymour sold Precision to
Scott Favre, and ino conjunction with the sale, they transferred the allegedly
misappropriated mlaterials to Favre’s office in Kiln, Mississippi.290 On May 12, 2015,
Nicholson enteired an appearance in the Mississippi litigation as the attorney for
Precision.291
285 Nicholson Ex. 6, Doc. 19-5 and 19-6.
286 Nicholson Ex. 7, Doc. 19-3.
287 Nicholson Ex. 8, Doc. 19-7.
288 Nicholson Ex. 9, Doc. 19-10.
289 Nicholson Ex. A, Nicholson Affidavit.
290 Nicholson Ex. 10, Doc. 396-2.
291 Nicholson Ex. 11, Doc. 77.
51
The sale of Precision to Favre apparently stimulated Pohl to determine
whether Nicholson had the alleged trade secret materials. On May 15, 2015, Pohl’s
attorney sent Nicholson a letter demanding that Walker, Ladner and Seymour turn
over to Pohl the contracts between him and his BP clients. The letterk stated, “The
contracts do not belong to your clients.”292 Pohl’s attorney sent NCicholson a second
letter on May 20, 2015. The letter repeated Pohl’s demand that Nicholson provide
the contracts to him. By way of explanation, the letter saidi, “As you may know, the
British Petroleum claim filing deadline is June 8, 2015. Mr. Pohl needs the
contracts to address client matters relating to the deadline.”293 Of course, this was a
lie because Pohl had access to all contact information, if not from his own home
office where contracts were sent to him, hils co-counsel who was administering all of
their claims in Houston had copies of Mall contracts and contact information.
On May 27, 2015, Nicholson emailed a letter to Pohl’s attorney, confirming
that the contracts in Precisioin’s possession were being held at the office of Scott
Favre, Precision’s new owner.294 In pertinent part, it said:
This letter respoonds to your faxed letters and addresses matters which
we discussed in our telephone conversation last Friday. Your client,
Michael Polhl, has demanded that my client, Precision Marketing
Group, LiLC, hand over the originals and copies of . . . contracts
betweeni him . . . and the BP/Deepwater Horizon claimants. . . Mr. Pohl
asserots that the documents do not belong to PMG or the other
Plaintiffs.295
292 Nicholson Ex. 12, 2015 Communications.
293 Nicholson Ex. 12, 2015 Communications.
294 Nicholson Ex. 12, 2015 Communications.
295 Nicholson Ex. 12, 2015 Communications.
52
Nicholson’s letter went on to state that “PMG will not relinquish possession of the
original contracts at this time.”296 Nicholson stated that the documents in question
were being held at the office of Scott Favre, Precision’s new owner.297 Nicholson also
mentioned that a computer containing some of the information had bkeen sent to a
forensic expert for recovery of date.298 C
Pohl swore to his lawyer’s letters being sent to Nicholson requesting return of
the materials in his interrogatory answers: i
l 299
Accordingly, at least as of May 2015, Pohl knew that Walker and Ladner (who Pohl
contends was part of Kassab’s “crew”) had transferred the alleged trade secrets to
Favre who was represented byi Nicholson (who Pohl contends are other members of
Kassab’s “crew”), and that Nicholson had refused Pohl’s demand for return of the
information. More thaon 3 years later, on August 28, 2018, Pohl filed this lawsuit. As
explained below,a Plohl’s TUTSA claim against Kassab, along with his conversion and
conspiracy clfaiim, are barred by the statute of limitations, and thus, summary
judgment must be granted.
296 Nicholson Ex. 12, 2015 Communications.
297 Nicholson Ex. 12, 2015 Communications.
298 Nicholson Ex. 12, 2015 Communications.
299 Nicholson Ex. 13, Pohl’s Interrogatory Answers at No. 4.
53
2. Pohl’s TUTSA is barred by the three-year statute of
limitations.
TUTSA has a three-year statute of limitations: “A person must bring suit for
misappropriation of trade secrets not later than three years after the
misappropriation is discovered or by the exercise of reasonable deiligence should
have been discovered.” TEX. CIV. PRAC. & REM. CODE § 16.010(a).
“Misappropriation”
means, among other definitions, the acquisition of a trade tsecret of another by a
person who knows or has reason to know that the trade secret was acquired by
improper means. Id. at § 134A.002(3). “Improper emeans” includes theft. Id. at §
134A.002(2). “A misappropriation of trade securets that continues over time is a
single cause of action and the limitations period … begins running without regard
to whether the misappropriation is a sinagle or continuing act.” Id. at § 16.010(b).
Accordingly, the first act of misappropriation is when the statute of
limitation accrues for misapproperiation of a trade secret. See Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 45f1 (5th Cir. 2007) (recognizing the TUTSA “explicitly
precludes treating trade secret misappropriation as a continuing tort.”); Guajardo v.
Freddie Records, Inc., No. CV H-10-02024, 2014 WL 12603179, at *2 (S.D. Tex. May
15, 2014) (“[T]hie Texas Legislature decided not to make this type of claim
a continuinog tort. Specifically, the Texas Legislature enacted a three-year statute
of limitations for suits alleging misappropriation of trade secrets in May 1997.”).
Accordingly, “the tort of misappropriation, as viewed under Texas law, occurs at the
moment of misappropriation.” Bianco v. Globus Med., Inc., 53 F. Supp. 3d 929, 938
(E.D. Tex. 2014)
54
In this case, the limitation period on the TUTSA claim began to run in
summer 2014, when Precision and allegedly Kassab, to use Pohl’s own word, “stole”
the trade secrets.300 Pohl testified that he had actual knowledge of the
misappropriation of his claimed property no later than July 2014.301k Accordingly,
the misappropriation occurred more than four years before PohCl filed this lawsuit
in August 2018.
This is not a case where the date of the misappropriiation is unclear. This is
not an instance where an employee secretly copies information from an employer,
stealthily shares it with a competitor, and the owner of the trade secret finds out in
a roundabout way at some later point in time when a similar product hits the
market. In this case, Precision physicallyl removed all of the documents from the
office it shared with Pohl. Pohl admitMs that he unequivocally discovered the alleged
theft of the trade secrets no later than July 2014. And what’s more, Pohl testified,
that Kassab and his “crew” piarticipated in the theft of his trade secrets in 2014.
Thus, based upon Pohl’s own testimony, Pohl’s TUTSA claim against Kassab
expired in July 2017, oover a year before Pohl filed this lawsuit.
The statutolry language is very specific as to when the statute begins to run.
It says that thie limitation period starts when “misappropriation is discovered or by
the exercise of reasonable diligence should have been discovered.” TEX. CIV. PRAC. &
REM. CODE 16.010(a). Pohl discovered the theft of his trade secrets no later than
July 2014. Accordingly, the statute began to run on the misappropriation in July
300 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
301 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
55
2014, meaning Pohl’s TUTSA claim was barred by the time he filed suit in August
2018.
Alternatively, even if the statute began to run in May 2015, Pohl’s claim is
still barred. The May 2015 letters prove that Pohl knew in May 2015k that Walker,
Ladner and Seymour had transferred the disputed documents aCnd information to
Favre and Nicholson.302 Nicholson’s letter of May 27, 2015, informed Pohl that
Favre had the hard copies of the trade secret documentsi at his Kiln, Mississippi
office, they also had the computer with the alleged trade secrets, and that Nicholson
refused to return Pohl’s alleged information.303 Hence, Pohl “discovered” Nicholson’s
alleged “misappropriation” when he received her May 2015 letter confirming her
refusal to give them to Pohl, despite his alssertion of ownership. However, Pohl did
not file this lawsuit until August 28M, 2018, around three months after the latest
possible limitation period expired on May 27, 2018.
It is also important to iunderstand that the alleged subsequent use, sale or
purchase of the trade secrets did not restart the clock on the TUTSA limitations
period. The fact that,o after the trade secrets were purportedly misappropriated in
2014, or alternativlely 2015, they were allegedly subsequently used or transferred
did not restarit the limitation period. The case Agar Corp. v. Electro Circuits Int'l,
LLC, 565 S.W.3d 12 (Tex. App.—Houston [14th Dist.] 2016), aff'd in part, rev'd in
part on other grounds, 580 S.W.3d 136 (Tex. 2019) is instructive on this point. In
Agar, the plaintiff initially sued more than a dozen defendants in April 2008 in
302 Nicholson Ex. 12, 2015 Communications.
303 Nicholson Ex. 12, 2015 Communications.
56
connection with the defendants’ alleged misappropriation of the plaintiff’s
proprietary information and use of that information to create knock-off products for
sale to its customers. Id. at 19. The plaintiff added alleged co-conspirators who
allegedly purchased and sold some of the trade secrets as defendants tko the existing
lawsuit in November 2011 — more than three years after plaintiffC initially filed suit
for the misappropriation. Id. The plaintiff argued that his claim against the co-
conspirators did not accrue until July 2009 because that is iwhen the co-conspirators
were still selling the allegedly stollen trade secret information. Id. The court
rejected this argument, stating: “[a] continuing tort does not arise from one’s
copyrighting a song that another wrote and then repeatedly selling the song and
reaping profit from each sale. While it maly be said that the injury continues with
each sale and receipt of a royalty, theM act that caused the continuing injury was the
one act of copyrighting the song.” Id. at 21 (quoting Rogers v. Ardella Veigel Inter
Vivos Trust No. 2, 162 S.W.3d i281, 290 (Tex. App.–Amarillo 2005, pet. denied)).
Pohl “discovered” “the misappropriation” in the summer 2014, or
alternatively when heo exchanged letters with Nicholson in May and June 2015. If
anyone subsequenltly disclosed the trade secrets, it did not give rise to a new cause
of action. Thei express language of the TUTSA statute of limitation expressly
precludes “continuing tort” theories. TEX. CIV. PRAC. & REM. CODE § 16.010(a).
Accordingly, Pohl’s TUTSA claim against Kassab is barred by limitations and
summary judgment must be granted.
57
3. Pohl’s conversion and conspiracy claims are barred
by limitations.
Pohl’s common-law claims against Kassab for conversion and civil conspiracy
are also barred by the statute of limitations.
A person must bring suit for the conversion of personal proeperty “not later
than two years after the day the cause of action accrues.” TEX.
CIV. PRAC. & REM.
CODE § 16.003(a). Generally, the limitations period for a co
ntversion claim begins to
run at the time of the unlawful taking. Wells Fargo Bank Nw., N.A. v. RPK Capital
XVI, L.L.C., 360 S.W.3d 691, 700 (Tex. App.—Dallaes 2012, no pet.). As established
above, whether his claim accrued in 2014 or 201u5, more than two years had passed
by the time Pohl filed suit in August 2018. Therefore, his conversation claim is
barred. a
Pohl’s conspiracy claim is also barred by limitations. The Texas Supreme
Court has established that a claeim for civil conspiracy accrues when the underlying
tort accrues, and the limitatfion period for the conspiracy claim begins to run at the
same time as that for the underlying tort. Agar Corp., Inc. v. Electro Circuits Int’l,
LLC, 580 S.W.3d 136, 138 (Tex. 2019). “Understanding that civil conspiracy is a
theory of derivaitive liability, it follows that a civil conspiracy claim should share
both accruoal and the limitations period of the underlying wrong.” Id. at 144.
Because the underlying conversion and TUTSA claims are barred by limitations,
Pohl’s derivative conspiracy claim against Kassab is barred as well, and thus,
summary judgment must be granted.
58
E. Pohl’s claims are conclusively negated.
1. Pohl’s TUTSA claim is conclusively negated
because his alleged trade secrets were not actually
kept secret.
Kassab adopts the argument made and evidence identified on pkages 45-49 of
the Nicholson Motion as if set forth verbatim herein. See TEX. RC. CIV. P. 58. That
argument and evidence is equally applicable to Kassab and establishes that, as a
matter of law, Pohl did not take any measures, let alonei reasonable measures, to
keep his alleged information or client lists secret. Accordingly, Poh’s TUTSA claim
against Kassab fails as a matter of law, especially regarding the four barratry
lawsuits.
Moreover, Mary Frances Arnold, Polhl’s paralegal for approximately 35 years
testified that Pohl knew that a copy oMf all of his alleged contracts which he contends
are his trade secrets were kept by Walker and PMG in a storage shed.304 Arnold
also testified that Pohl, after ilearning that these contracts were in a storage shed,
never told Walker to secure the contracts better and never questioned whether the
storage shed was secoure, waterproof, air conditioned, had cameras, was locked or
fenced, or even inqluired who had access to the storage shed containing all of Pohl’s
alleged trade isecrets.305 Arnold also testified that she kept copies of Pohl’s client
files at her personal residence for many years.306
304 Exhibit 61-2022 Arnold Deposition, pp. 14, 45.
305 Exhibit 61-2022 Arnold Deposition, pp. 45-47, 53-54
306 Exhibit 61-2022 Arnold Deposition, pp. 112
59
Arnold further testified that 10,000 to 11,000 contracts sent to Pohl by PMG
were rejected and either sent back to Walker and PMG, thrown out or shredded.307
Arnold testified that the rejected contracts had no value.308 Arnold also testified
that she did not believe any of this material to be a trade secret.309 k
Arnold testified that PMG would send copies of contractsC to Pohl and then
Pohl would send those contracts to various other lawyers, like Jimmy Williamson,
Thomas & Wan and a Mr. Seerden.310 Arnold also testifiedi that a portal was set up
for BP claims that were not rejected and that these lawyers all had passwords for
the portal and see whatever client information was filed through them.311 Arnold
also testified that this information was sent to outside third parties at BP through
the portal.312 l
Furthermore, Arnold testifieMd that she never saw any confidentiality
agreement or non-disclosure agreement with any of these lawyers.313 She also
testified that she shared clienit information with Walker and PMG when she knew
that Walker was not Pohl’s employee.314 Arnold testified that never reprimanded
her for sharing clienot information with Maria Jeanfreau, Kirk Ladner, Jimmy
Williamson, Cyndil Rusnak, Mr. Wan, Mr, Thomas, Mr. Seerden or any of the dozens
of folks that wiorked for PMG and listed on its 1099’s.315
307 Exhibit 61-2022 Arnold Deposition, pp. 34-37, 39, 56, 60-61
308 Exhibit 61-2022 Arnold Deposition, pp. 34-37, 39, 41
309 Exhibit 61-2022 Arnold Deposition, pp. 47-48
310 Exhibit 61-2022 Arnold Deposition, pp. 50-51
311 Exhibit 61-2022 Arnold Deposition, pp. 51-52, 60, 119, 121
312 Exhibit 61-2022 Arnold Deposition, pp. 60
313 Exhibit 61-2022 Arnold Deposition, pp. 86-90, 104, 156-157, 174-175
314 Exhibit 61-2022 Arnold Deposition, pp. 173-174
315 Exhibit 61-2022 Arnold Deposition, pp. 173-175
60
Ladner, Seymour and Walker also testified that none of what Pohl now
alleges as his trade secrets was kept confidential. Ladner testified that he had no
confidentiality or non-disclosure agreements regarding client files and simply kept
in a file cabinet.316 Steve Seymour testified that Pohl never told hikm that client
lists were confidential.317 Seymour testified that PMG obtained clCients, created lists
of clients and then decided whether PMG wanted to refer the clients to Pohl or
Williamson.318 Moreover, Seymour testified that he kept icontact lists of all clients
at his home and that Pohl never asked for them.319 Seymour testified that he and
PMG created the lists of clients and that the lists contained all the names, address
and phone numbers of all the clients they referred to Pohl.320 Seymour also testified
that all of the client lists PMG created bellonged to PMG and that he simply threw
them away after the Mississippi LitiMgation ended because they were of no value.321
Walker testified that all of PMG, Helping Hands and GM Verification Team’s work
product was created by himi, Seymour and Ladner and that the work product
contained lists of all these entities clients contact information.322 Walker further
testified that he ando PMG would refer these clients to Pohl, other lawyers and
insurance adjustelrs, but the contact information was PMG’s work product.323
316 Exhibit 62-2022 Ladner Deposition, pp. 36, 41-45, 265
317 Exhibit 63-2022 Seymour Deposition, pp. 148-149
318 Exhibit 63-2022 Seymour Deposition, pp. 97-103, 105
319 Exhibit 63-2022 Seymour Deposition, pp. 142-143
320 Exhibit 63-2022 Seymour Deposition, pp. 97-99
321 Exhibit 63-2022 Seymour Deposition, pp. 142-149, 229-231
322 Exhibit 64-2022 Walker Deposition, pp. 66-70, 268-269
323 Exhibit 64-2022 Walker Deposition, pp. 13-14, 67-70, 148-149, 268-269
61
Moreover, Walker testified that he, Ladner and Seymour sold all of their and PMG’s
work product, including all the client lists to Scott Favre.324
2. Pohl’s claims fail because Pohl does not own the
purportedly stolen property and trade secrets.
“To bring a successful TUTSA claim, the claimant must firest show that it
owns a trade secret in the information it seeks to protect.” Title Source, Inc. v.
HouseCanary, Inc., 612 S.W.3d 517, 527 (Tex. App.—Satn Antonio 2020, pet.
denied); TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a
), (6); Morgan v. Clements
Fluids S. Tex., Inc., 589 S.W.3d 177, 186-87 (Tex. eApp.—Tyler 2018, no pet.). The
claimant must also demonstrate that it is “the puerson or entity in whom or in which
rightful, legal, or equitable title to, or the right to enforce rights in, the trade secret
is reposed.” TEX. CIV. PRAC. & REM. COaDE § 134A.002(3-a). Similarly, “[a] plaintiff
who has not shown title or some other right to possession of the property allegedly
converted may not maintain a esuit in conversion.” Catania v. Garage de Le Paix,
Inc., 542 S.W.2d 239, 242 f(Tex. Civ. App.—Tyler 1976, writ ref'd n.r.e.). Pohl’s
TUTSA and conversion claims against Kassab fail because, as a matter of law, he is
not the owner of the purportedly stolen property that he alleges is his trade secrets.
Pohl allegies that his trade secrets that were allegedly misappropriated are
“attorney–colient fee agreements with clients/prospective clients, compilations of
clients, other confidential communications between the clients/prospective clients
and Pohl, specialized legal forms …, … proprietary administrative client forms, fee-
agreement forms …, internal emails, propriety marketing information … and other
324 Exhibit 64-2022 Walker Deposition, pp. 13-14, 70-73, 111-112, 137-139, 228-231, 241-244, 248-254
62
work product relating to claims of Pohl’s clients and prospective clients.”325 But this
information makes up the client file that is the property of the client, not Pohl,
under Texas law.
“[T]he Texas Supreme Court recognized explicitly that an atktorney is an
agent of his client and implicitly that a client owns the contenCts of his or her
file.” In re McCann, 422 S.W.3d 701, 704-705 (Tex. Crim. App. 2013) (citing
Thomson v. Findlater Hardware Co., 205 S.W. 831, 832i (Tex. 1918)) (emphasis
added). “The attorney is the agent of the client, and the work product generated by
the attorney in representing the client belongs to the client.” In re George, 28
S.W.3d 511, 516 (Tex. 2000) (emphasis added). Under the disciplinary rules, an
attorney does not own and is therefore reqluired to promptly surrender “papers and
property to which the client is entitMled.” TEX. DISC. R. PROF'L COND. 1.15. Texas
courts have interpreted the word “property” to mean “the client’s papers and other
documents that the lawyer haid in his file.” TEX. COMM. ON PROF'L ETHICS Op. 570
(citing Hebisen v. State, 615 S.W. 2d 866 (Tex. App. – Houston [1st Dist.] 1981, no
writ)). In other wordso, all documents and information in the client file is property of
the client and not lPohl. See George, 28 S.W.3d at 516.
Moreoveir, work product and attorney-client communications are owned by
the client as part of the client’s file, and not the attorney. See TEX. COMM. ON PROF'L
ETHICS Op. 570 (noting that communications made to or on behalf of a client is work
product); Resolution Tr. Corp. v. H___, P.C., 128 F.R.D. 647, 648 (N.D. Tex. 1989)
(considering the issue of the ownership of files generated by a law firm during its
325 Amended Petition, at ¶ 20.
63
representation of a client and determining that the entire contents of the law firm’s
files concerning the representation of the client belonged to the client and ordering
the law firm to turn over the entire contents of the firm’s files, including work
product generated by the lawyer such as notes and legal memorandak). Therefore,
Pohl does not own the “internal emails … and other work productC relating to claims
of Pohl’s clients and prospective clients” that he claims is a trade secret.
While client lists can be considered a trade secreti, the lists that Precision
solicited to hire Pohl are owned by Precision, not Pohl.326 Scott Favre, the owner of
Precision, testified that Precision “solicited many of the marketing contacts
(individuals and businesses) on these lists for representation” by Pohl.327 Favre
testified that the “marketing lists containl the names of thousands of persons who
eventually became [Pohl’s] formerM clients, and/or whom [Pohl] solicited for
representation.”328 Favre made clear that the very information that Pohl claims are
the trade secretes allegedly cionverted by Kassab “were and are solely the work
product and property of Precision, developed during the normal course of its
marketing business.”3o29
Because Pohll does not own the purported trade secrets or property that he
alleges had beien converted, his TUTSA and conversion claims fail as a matter of
law. And because the conversion and statutory claims fail, Pohl’s claim for civil
conspiracy also fails. See Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631,
326 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
327 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
328 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
329 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 12 (emphasis added).
64
635 (Tex. 1997) (to prevail on a civil conspiracy claim, the plaintiff must show that
the defendant was liable for some underlying tort).
Moreover, all of the documents that Pohl alleges Kassab stole or converted
from him, are not Pohl’s, never belonged to Pohl and Pohl has nkever been in
possession of the documents. As stated above, Walker, LadnerC and Seymour all
testified that all of their marketing assets, including client contact information and
lists were created by them and their marketing companiesi and belonged to them.330
They testified that all of these assets and documents were in their possession and
then sold to Favre.331 Moreover, Favre testified that he purchased all of Walker,
Ladner, Seymour and PMG’s marketing assets, including all of their documents,
client lists and client contact informatilon.332 Furthermore, Favre testified in
Federal Court that he freely and volMuntarily gave his client contact information to
Tina Nicholson, Kassab and Montague to do whatever she or they wanted to do with
them.333 Favre even testified ithat Pohl’s counsel, Billy Shepherd told him on three
different occasions that he and Pohl did not care what he did with the contact
information.334 o
330 Exhibit 64-o2022 Walker Deposition, pp. 13-14, 67-70, 148-149, 268-269; Exhibit 63-2022 Seymour
Deposition, npp. 97-99, 142-149, 229-231; Exhibit 62-2022 Ladner Deposition, pp. 41-45, 129.
331 ExhibiUt 64-2022 Walker Deposition, pp. 13-14, 70-73, 111-112, 137-139, 228-231, 241-244, 248-
254; Exhibit 63-2022 Seymour Deposition, pp. 19-21, 22, 24-27, 29-30; Exhibit 62-2022 Ladner
Deposition, pp. 22, 44-45, 51, 53, 71-72, 104-105, 109-111, 114-116, 118, 129, 152, 153, 155-156, 160,
166-167, 181-183, 186-190.
332 Exhibit 64-2022 Walker Deposition, pp. 13-14, 70-73, 111-112, 137-139, 228-231, 241-244, 248-
254; Exhibit 63-2022 Seymour Deposition, pp. 19-21, 22, 24-27, 29-30; Exhibit 62-2022 Ladner
Deposition, pp. 22, 44-45, 51, 53, 71-72, 104-105, 109-111, 114-116, 118, 129, 152, 153, 155-156, 160,
166-167, 181-183, 186-190.
333 Exhibit 65-October 25, 2017 Testimony of Scott Favre, pp. 24-25, 91-93.
334 Exhibit 65-October 25, 2017 Testimony of Scott Favre, pp. 91-93.
65
Accordingly, Kassab never received anything that belonged to Pohl. All
documents Kassab obtained were created by Walker, Ladner, Seymour and PMG.
Walker, Ladner, Seymour sold PMG, along with all its assets, including client lists,
contact information and contracts to Favre and Favre freely and volkuntarily gave
some of the documents to Nicholson, Kassab and Montague. TherCefore, Kassab was
never and has never been in possession of any documents belonging to Pohl and
thus, Kassab is entitled to judgment as a matter of law. i
F. Pohl’s illegal acts (barratry and unauthorized practice of
law) precludes any form of reecovery against the
whistleblowers because his acts are inexorably
intertwined with his crimes. u
Pohl committed barratry and wants his whistleblowers to pay for his barratry
defense costs. But the well-establisheda and common-sense unlawful acts doctrine
precludes any recovery for Pohl’s crimes. Pohl violated the Texas laws and rules
governing lawyers by committeing barratry and practicing in other jurisdictions
without a license, sharing afn office and fees with non-lawyers, and he failed to
protect confidential client information in the process. Pohl also committed the
unauthorized practice of law in multiple states, including Louisiana, Alabama,
Florida, and Miississippi where he maintained an unauthorized law office. All of
Pohl’s claimos for recovery are inextricably intertwined with his violations of the
laws of Texas and other jurisdictions. According, his claims are barred by their
illegality.
66
1. The Unlawful Acts Doctrine.
More than a century ago, Texas developed the Unlawful Acts Rule, which
provides:
no action will lie to recover a claim for damages, if to establishk it the
plaintiff requires aid from an illegal transaction, or is uender the
necessity of showing or in any manner depending upon an iCllegal act to
which he is a party. 
Gulf, C. & S. F. RY. Co. v. Johnson, 621, 9 S.W. 602, 602-0t3 (1888). Courts have
simplified this analysis to whether the claim or damages are “inextricably
intertwined” with the illegal act or whether the eillegal act “contributed to the
injury.” McNally v. McNally, No. 02-18-00142-CuV, 2020 WL 5241189, at *10 (Tex.
App.—Fort Worth Sept. 3, 2020, pet. denied) (recognizing that the Unlawful Acts
Rule remains good law and using inteartwined language); Andrew Shebay & Co.,
P.L.L.C. v. Bishop, 429 S.W.3d 644, 648–49 (Tex. App.—Houston [1st Dist.] 2013,
pet. denied). The purpose of theis rule is to deter unlawful acts by making certain
“that the person should notf even entertain the hope of indemnity for the offense
committed.” Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441, 450 (Tex.
App.—Houston [1st Dist.] 1993, no writ) (internal quotations omitted). The rule can
be applied even iif one or more defendants have also committed an unlawful act. Id.
at 450-451 o(denying recovery to plaintiff who sued his attorney for malpractice
claiming he signed a false affidavit on the advice of his attorney who knew the
affidavit was unlawful).
67
2. Pohl knew his acts were illegal.
Pohl is well aware that his barratry precludes his claims. He asserted
“illegality and/or public policy” as a defense to paying his runners in the Mississippi
Litigation. As Pohl himself explains in his Motion to Dismiss Precisiokn’s Amended
Complaint: C
The gist of Precision’s claims, as plead in the Amenderdi Complaint, is
that Walker/Seymour/Ladner agreed to accept or asccepted money to
improperly solicit BP clients for the alleged “PDohl/Williamson joint
venture” and automobile accident clients for the salleged “Pohl/Ammons
joint venture.” s
Neither Walker/Seymour/Ladner nor Precirsion, as their assignee, can
recover from Pohl under any cause of acBtion. This is because: (1) under
Mississippi law, it is illegal and against public policy for a non-lawyer
to accept or agree to accept money yto improperly solicit clients for a
lawyer; (2) under Mississippi law, iit is illegal and against public policy
for lawyers to share legal fees with non-lawyers; and (3) under
Mississippi law, a claimant may not recover under any theory
(including contract, tort, or eqfuity) for illegal conduct or conduct that is
violative of public policy.335
And as Pohl himself further fargued, he should be judicially estopped from arguing
against this position nowy. To allow him to do so, as he says, “would allow [him] to
‘play fast and loose with the Court,’ which, in turn, would negatively impact the
reputation of thea judicial system.”336
The Mfississippi Litigation court agreed that illegality would apply to law
firms beUcause Mississippi laws “make it illegal to accept or agree to accept money to
commence or further prosecute a judicial action.”337 Additionally, the court went
onto explain that the Mississippi Rules of Professional conduct 5.4(a), 7.2(i), 7.3(a),
335 Nicholson Ex. 23, Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 192 ¶ 6.
336 Nicholson Ex. 23, Ex. 23: Doc. 192 ¶ 5
337 Nicholson Ex. 25, Order on Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 252 at 5.
68
and 8.4(a) preclude attorneys from entering into fee-splitting arrangements with
non-lawyers. Precision could not violate attorney misconduct rules “as they are
neither lawyers nor a law firm. The only ‘immoral or illegal act,’ then, would have
been committed by [Pohl].”338 Pohl’s illegal acts precluded him kand his co-
conspirators from asserting a defense of illegality because Cof his unlawful
conduct.339
Walker recently testified that Pohl paid him and otihers to solicit clients for
him in the form of an amount per contract that he and PMG were able to refer to
him.340 In fact, Walker called the money that Pohl paid PMG “barratry money.”341
Ladner recently testified that Pohl financed and paid bonuses of about 2,500 per
case that they signed up and referred to lPohl.342 Ladner also testified that Pohl
agreed to pay him, Walker and SeymMour a percentage of Pohl’s attorney’s fees from
each case.343 Seymour recently testified the same way, he stated that he and others
at PMG would do “cold callingi” on business to bring BP claims and that Pohl paid
them to do it.344 Even Mary Arnold, Pohl’s paralegal of 35 years admitted that Pohl
paid PMG a percentagoe of his fees for cases PMG referred to him.345 And, of course,
it is undisputed thlat Walker, Ladner and Seymour are not lawyers.
338 Nicholson Ex. 25, Doc. 252 at 6.
339 Nicholson Ex. 25, Doc. 252 at 6.
340 Exhibit 64-2022 Walker Deposition, pp. 174, 223-224, 228-231
341 Exhibit 64-2022 Walker Deposition, pp. 223-224
342 Exhibit 62-2022 Ladner Deposition, pp. 74-77, 78-79, 82-85, 96-99, 213-219.
343 Exhibit 62-2022 Ladner Deposition, pp. 74-77, 78-79, 82-85.
344 Exhibit 63-2022 Seymour Deposition, pp. 93, 82-91
345 Exhibit 61-2022 Arnold Deposition, pp. 66-71, 74-76, 108-111
69
3. Texas courts have applied the Unlawful Acts Rule
to preclude claims arising from barratry.
Texas courts have also applied Unlawful Acts Rule in BP solicitation cases.
In Truyen Luong v. McAllister, the appellate court affirmed summary judgment
where, as here, solicitation was an essential purpose of a fee-shaering agreement
that rendered the contract void for illegality. No. 01-17-00198-CV, 2018 WL
3651103, at *4 (Tex. App.—Houston [1st Dist.] Aug. 2, 2018t, pet. denied). Luong, a
paralegal, sued attorney McAllister for work performed on Gulf Coast Claims
Facility, BP, and Deepwater Horizon claims. Id. eat *1. Luong alleged that he
brought a lot of customers to McAllister in retuurn for an oral agreement to split
attorney’s fees. Id. at *1-2. McAllister moved to dispose of the claim arguing that
any summary judgment claim was baarred by illegality, which the trial court
granted. Id. The court of appeals agreed, stating “[t]his type of barratry contract is
prohibited by statute as well as eby disciplinary rule.” Id. at *3. The court explained:
[A] contract between fan attorney and one not an attorney, providing
that the [non-attorney] shall procure the employment of the [attorney]
by a third person for the prosecution of suits to be commenced in
consideration oof a fee to be procured or collected therein, is void as
against public policy, independent of statutes prohibiting the same.
Id. at *3. In turin, any such contract is void “to benefit and protect the public.” Id.
Luong’s agroeement to solicit was an “essential purpose” of their agreement, much as
the solicitation was an essential part of Pohl’s barratry practice. Id. at *4.
Accordingly, the appellate court affirmed the trial court’s grant of summary
judgment for McAllister, and this trial court should grant summary judgment here.
70
4. Texas courts have applied the Unlawful Acts Rule
to preclude claims for those who obtain property
illegally.
Pohl is precluded from recovering damages on trade secrets that he obtained
through illegal solicitation and the unauthorized practice of law. The ckase Sharpe v.
Turley, 191 S.W.3d 362 (Tex. App.—Dallas 2006, pet. denied) is iCnstructive on this
point. In Sharpe, the plaintiff, Sharpe, removed financial documents from a Roman
Catholic Diocese’s dumpster before alerting attorney Tuirley, who was suing the
Diocese. Turley obtained the documents from Sharpe via subpoena and following
the lawsuit both the Diocese and Sharpe contended they were the rightful owners of
the documents. Sharpe subsequently sued Turley for obtaining the documents
through fraud. The trial court granted sumlmary judgment under the Unlawful Acts
Rule and Fort Worth Court of AppeMals affirmed. Id. at 363-364. As the appellate
court explained, “Because [Sharpe’s] conduct in removing the Diocese’s items from
Diocesan property without itsi permission is the foundation of his allegation that he
has a superior right to the items and that alleged right is the basis of his fraud
claim against Turley, othe trial court properly granted summary judgment in favor of
Turley [under the lunlawful-acts rule].” Id. at 369.
As disciussed above, Pohl admits to engaging runners to illegally solicit
clients with offers to pay legal fees and bounties to the runners in states where he is
not licensed. Ladner, Talley, Santana, and Maxwell also testified that Pohl offered
to pay them bounties for signing up clients. Former clients who hired Pohl,
including Barry, Speck, Bethley, Bikumbu, Cheatham Sr. and Reese, all testified
71
that they were illegally and unethically solicited to hire Pohl. And, Pohl admitted in
the Mississippi Litigation that such conduct would be illegal and against public
policy.
A person cannot “receive trade secret protection for informkation about
ongoing illegal activities.” Alderson v. United States, 718 F. SupCp. 2d 1186, 1200
(C.D. Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012) (construing the Uniform Trade
Secrets Act and rejecting a claim of trade secret priotection for fraudulent
accounting practices in connection with Medicare frau
d); see also TEX. CIV. PRAC. &
REM. CODE §134A..008 (The Texas Uniform Trade Secrets Act “shall be applied and
construed to effectuate its general purpose to make uniform the law . . . among the
states enacting it.”). “[T]here simply canlnot be any trade secret about ongoing
illegality.” Alderson v. United StatMes, 718 F. Supp. 2d at 1200. “Notably, this
conclusion is consistent with the underlying justifications of trade secrets law,
which include ‘[t]he maintenaince of standards of commercial ethics.”’ Id. (quoting
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481–482 (1974)). ‘“Commercial
ethics’ are not maintaoined if businesses are able to conceal illegality.’” Id.
The existenlce of a privilege to disclose another's trade secret depends upon
the circumstanices of the particular case, including the nature of the information,
the purpose of the disclosure, and the means by which the actor acquired the
information. A privilege is likely to be recognized, for example, in connection with
the disclosure of information that is relevant to public health or safety, or to the
commission of a crime or tort, or to other matters of substantial public concern.
72
Merckle GmbH v. Johnson & Johnson, 961 F. Supp. 721, 733 (D.N.J. 1997);
Restatement (Third) of Unfair Competition § 40, cmt. c (1995). The Reporters’ Notes
to Section 40 indicate that “the policies underlying the privilege are similar to those
supporting the numerous state and federal 'whistleblower' statutes kthat prohibit
retaliatory personnel actions by employers against employeCes who disclose
violations to public officials.” Merckle GmbH, 961 F. Supp. at 733 quoting
Restatement (Third) of Unfair Competition § 40, Reporters’ iNotes, cmt. c.
Thus, Kassab was privileged to disclose the illegal acts of Pohl even if to do so
was to disclose his alleged trade secrets. Accordingly, Pohl cannot recover against
anyone for anything because be acquired his client files and purportedly
confidential and protected information thrlough illegal solicitation and unauthorized
practice of law. Thus, summary judgMment must be granted.
5. Pohl is precluded from claiming protection over
informatione he obtained through the unauthorized
practice oif law.
Moreover, Texas courts have consistently applied the Unlawful Acts Rule to
preclude recovery byo one who unlawfully practices a profession or occupation
without a requiredl license, even if the illegal practice was not the direct cause of the
injury. Rule 5.i05 of the Texas Rules of Professional Conduct makes it unlawful for a
Texas lawyer to commit the unauthorized practice of law in any other jurisdiction or
to assist a person who is not a member of the bar in the unauthorized practice of
law. See TEX. DISC. R. PROF’L COND. 5.05. Consequently, this Court should preclude
recovery for any claim arising from his unlawful practice in other jurisdictions.
73
For instance, the Dallas Court of Appeals refused to permit a car dealership
to recover from a sales agent that fraudulently withheld money relating to the sale
of cars because the dealership did not have the proper county license to sell cars:
Appellants argue allowing the Credit Union to prevail on the illkegality
defense allows it to walk away with a windfall. Although thies may be
true under these facts, to hold otherwise would allow iCndividuals
to indirectly profit from a business they are directly prohibited
from engaging in unless properly licensed by statute. This we
will not do. . . . We agree with the Credit Union thatt the rule applies
and bars appellants’ claims arising in tort biecause they are
inextricably intertwined with their illegal contract to sell automobiles
in Dallas County without a license.
Denson v. Dallas Cnty. Credit Union, 262 S.W.3d 846, 855 (Tex. App.—Dallas 2008,
no pet.) (emphasis added).
The law is even stricter when appliled to regulated professions. The Supreme
Court of Texas refused to permit an eMngineer to recover a fee where he had failed to
pay the renewal fee for his license and was, therefore, practicing engineering
without a current license anid in violation of the Texas Occupational Code. The
Court noted that the requirement of proper licensure for engineers was to
“safeguard life, healtho and property.” M. M. M., Inc., v. Mitchell, 265 S.W.2d 584,
585–86 (1954). l
Similarliy, the Fort Worth Court of Appeals affirmed a denial of recovery for a
person who practiced architecture without a license and then sued his partner in
the architectural firm. The Court stated that to permit recovery was to undermine
the purpose of licensure, which was “to safeguard life, health, property and the
public welfare, and to protect the public against the irresponsible practice of the
74
profession of architecture.” Farha v. Elam, 385 S.W.2d 692, 695 (Tex. Civ. App.—
Fort Worth 1964, writ ref’d n.r.e.).
As member of Texas Bar, Pohl is subject to the requirements imposed by the
Texas Rules of Professional Conduct. Rule 5.05 prohibits Texas atktorneys from
committing the unauthorized practice of law in other jurisdictionsC:
Rule 5.05. Unauthorized Practice of Law
A lawyer shall not: i
(a) practice law in a jurisdiction where doing so violates the regulation
of the legal profession in that jurisdiction; or e
(b) assist a person who is not a member ouf the bar in the performance
of activity that constitutes the unauthorized practice of law.
TEX. DISC. R. PROF’L COND. 5.05. The lcomment to the Rule explains, “Courts
generally have prohibited the unautMhorized practice of law because of a perceived
need to protect individuals and the public from the mistakes of the untrained and
the schemes of the unscrupuilous, who are not subject to the judicially imposed
disciplinary standards of competence, responsibility and accountability. . . Limiting
the practice of law too members of the bar protects the public against rendition of
legal services by ulnqualified persons.” Id. at cmt. 1.
By his oiwn admission, Pohl has never been licensed to practice law in any
state except Texas and Colorado.346 Yet, Pohl solicited and signed up auto accident
clients in Mississippi,347 Louisiana,348 Missouri,349 and Arkansas.350 Santana
346 Nicholson Ex. 31, Pohl Aug 2016 Depo at 8.
347 Exhibit 16, Declaration of Mae Berry; Exhibit 18, Declaration of Arthur Speck.
348 Exhibit 19, Declaration of Alphonse Bethley; Exhibit 29, Declaration of Mark Cheatham, Sr.
349 Exhibit 22, Declaration of Heraclite Bikumbu.
75
testified that she solicited BP clients for Pohl all across the Gulf Coast, including
Florida, Louisiana, and Mississippi.351 Further, Pohl assisted Walker, Ladner, and
the other runners in engaging in the unauthorized practice of law through soliciting
and signing up clients in those jurisdictions. In doing so, Pohl has violkated the laws
regulating Texas lawyers. Accordingly, Pohl cannot recover any Cfee related to his
unauthorized practice of law states in Louisiana, Alabama, Florida, and Mississippi
where he maintained an unauthorized law office. i
Pohl alleges that the Defendants “stole” his documents and information from
his “satellite law office” in Mississippi in 2014. In Mississippi, it is a misdemeanor
for a person to practice law without a license. The Mississippi Supreme Court has
established that “the ‘practice of law’ has lbeen defined to be as little as advising a
person of his legal rights.” In re WilliMamson, 838 So.2d 226, 234 (Miss. 2002) (citing
Darby v. Miss. State Bar, 185 So.2d 684, 687 (Miss. 1966)). The practice of law also
includes the solicitation of clieints and the investigation of a potential client’s claim.
Forbes v. St. Martin, 145 So.3d 1184 (Miss. App. 2013).
Pohl’s admittedo solicitation of Mississippi clients and his admitted visits to
Mississippi to confler with actual and potential clients constituted the unauthorized
practice of lawi in Mississippi. Pohl’s operation of a “law office” in Mississippi, and
even its very existence, violated Mississippi law. Pohl admitted that he was not
admitted to practice law in Mississippi and the law office was not associated with
350 Exhibit 35, Declaration of Lacy Reese.
351 Exhibit 6, September 26, 2016 Affidavit; Exhibit 8, Santana Depositions.
76
any Mississippi lawyer.352 Further, Pohl violated the law by sharing his office with
non-lawyers. Pohl admitted that he unlawfully shared his office space, telephones
and computers with a non-lawyer company, Precision, in violation of the Mississippi
Rules of Professional Conduct.353 In addition to his practice of law in thke Mississippi
office and his meetings with potential and actual Mississippi cliCents, Pohl admits
that, in 2012-2014, he spent the majority of his time practicing law at his
Mississippi “law office.”354 i
Further, Pohl assisted Walker, Ladner and the other runners in engaging in
the unauthorized practice of law in Mississippi by paying them for soliciting and
signing up clients on his behalf. Pohl admits that he gave Walker and Ladner
advertising brochures for them to distributle as widely as possible in Mississippi and
other states. He admits that he gaveM Walker and Ladner blank contracts that they
were to use to sign up clients for him.
Walker, Ladner and thie other runners illegally solicited on Pohl’s behalf all
of the Mississippians listed in the Gandy and Brumfield Petitions.355 Of the 133
plaintiffs in the Ganody lawsuit, 103 of them were Mississippians.356 Of the 272
Brumfield plaintiflfs, 153 were Mississippians.
Those Pietitions list people whom Pohl illegally solicited in Mississippi, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of law in Mississippi, Pohl committed that
352 See Nicholson Ex. 2, Pohl May 2018 Depo 112:19-13:10.
353 Nicholson Ex. 1, Pohl Dec 2021 Depo at 16:15-21.
354 Exhibit 60, Sept. 17 2018 Deposition of Michael Pohl, at 292-293.
355 Nicholson Ex. 29, Brumfield Petition and Nicholson Ex. 30, Gandy Petition.
356 Nicholson Ex. 30, Gandy Petition at 2-6.
77
crime, or assisted the runners in committing it, as to every one of the Mississippi
plaintiffs in those two Petitions.
Pohl also committed the unauthorized practice of law in regard to Mae Berry
and Lisa and Arthur Speck, former clients who subsequently sued Pohkl for illegally
soliciting them in Mississippi.357 Pohl sent a runner, Ken TalleyC, to each of their
homes to solicit them as clients for Pohl regarding their personal injury claims.
Talley solicited these people for Pohl and induced them ito sign a Pohl attorney-
client contract.
Pohl committed a misdemeanor and violated other Mississippi laws by
engaging in the unauthorized practice of law in Mississippi while soliciting these
clients. Since all of the “trade secret” inlformation regarding Mississippians and
others was gathered during Pohl’s illMegal solicitation activities, he cannot show his
ownership of the information without referencing his illegal activities. Pohl cannot
show that documents at his Miississippi “law office” were misappropriated without
showing that he operated an illegal law office in Mississippi. Consequently, the
Unlawful Acts Rule oprecludes Pohl from recovering in this court for the alleged
misappropriation olf “trade secrets” relating to Mississippians, or any others.
In Louisiiana, it is a felony for a person or any entity not licensed to practice
law in Louisiana to engage in the practice of law; hold oneself out as being entitled
to practice law; provide legal advice; use language in advertising suggesting the
person is a lawyer or in any way suggesting that the person is entitled to practice
law; or advertise the existence of a “law office of any kind.” LA Rev. Stat. 37:213.
357 Nicholson Ex. 32, Berry Petition at 9-12.
78
Further, it is against Louisiana law for anyone not licensed to practice law to solicit
and sign up clients, or to investigate claims, in that state. In re Guirard, 11 So.3d
1017 (La. 2009).
Walker, Ladner and the other runners illegally solicited on Pohkl’s behalf all
of the Louisianans listed in the Gandy and Brumfield PetitCions. Of the 133
plaintiffs in the Gandy lawsuit, 7 of them were Louisianans.358 Of the 272
Brumfield plaintiffs, 54 were Louisianans.359 i
Those Petitions list people whom Pohl illegally solicited in Louisiana, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of law in Louisiana, Pohl committed that
crime, or assisted the runners in commitlting it, as to every one of the Louisiana
plaintiffs in those two Petitions. M
In addition, Pohl committed the unauthorized practice of law in Louisiana in
relation to Mark Cheatham, iMark Cheatham, Jr. and Luella Miller, Louisianans
who filed the Cheatham lawsuit against Pohl. As demonstrated above, Pohl sent
runner Ken Talley too solicit them in Louisiana, which means he assisted Talley in
engaging in the unlauthorized practice of law in Louisiana. Pohl personally traveled
to Louisiana ito solicit and give legal advice to the Cheathams on at least two
occasions.
Pohl also committed the unauthorized practice of law in regard to Sandra
Johnson and Alphonse Bethley, Louisiana residents who filed the Gandy lawsuit
358 Nicholson Ex. 30, Gandy Petition at 2-9.
359 Nicholson Ex. 29, Brumfield Petition at 2-6.
79
against Pohl. Pohl sent runner Kirk Ladner to their home in Louisiana, where he
solicited them to hire Pohl for their personal injury claim and induced them to sign
a Pohl attorney-client contract. Accordingly, Pohl assisted Ladner in engaging in
the unauthorized practice of law in Louisiana. k
Pohl committed a misdemeanor and violated other LCouisiana laws by
engaging in the unauthorized practice of law in Louisiana while soliciting these
clients. Since all of the alleged “trade secret” informatioin regarding Louisianans
was gathered during Pohl’s illegal solicitation activities, he cannot show his
ownership of the information without referencing his illegal activities.
Consequently, the Unlawful Acts Rule precludes Pohl from recovering in this court
for the alleged misappropriation of “trade slecrets” relating to Louisianans.
It is a misdemeanor in AlabaMma to engage in the unauthorized practice of
law. AL Code § 34-3-1 (2021). It is also against Alabama law to provide assistance to
a person engaging in the unaiuthorized practice of law, which includes soliciting,
interviewing and signing up clients. Davis v. Alabama State Bar, 676 So.2d 306
(Ala. 1996). o
Walker, Ladlner and the other runners illegally solicited on Pohl’s behalf all
of the Alabamiians listed in the Gandy and Brumfield Petitions. Of the 133 plaintiffs
in the Gandy lawsuit, 21 of them were Alabamians.360 Of the 272 Brumfield
plaintiffs, 39 were Alabamians.361
360 Nicholson Ex. 30, Gandy Petition at 2-9.
361 Nicholson Ex. 29, Brumfield Petition at 2-6.
80
Those Petitions list people whom Pohl illegally solicited in Alabama, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of law in Alabama, Pohl committed that
crime, or assisted the runners in committing it, as to every one of kthe Alabama
plaintiffs in those two Petitions. C
The unauthorized practice of law in Florida is a felony. Fla. Stat. 454.23.
The practice of law includes soliciting and interviewing cliients. The Florida Bar v.
Meserve, 372 So.2d 1373 (Fla. 1979). It is a violation of Florida law to assist
someone engaging in the unauthorized practice of law. Id.
Walker, Ladner and the other runners illegally solicited on Pohl’s behalf all
of the Floridians listed in the Gandy and lBrumfield Petitions. Of the 133 plaintiffs
in the Gandy lawsuit, 3 of them wereM Floridians.362 Of the 272 Brumfield plaintiffs,
22 were Floridians.363
Those Petitions list peiople whom Pohl illegally solicited in Florida, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unautohorized practice of law in Florida, Pohl committed that crime,
or assisted the runlners in committing it, as to every one of the Florida plaintiffs in
those two Petiitions.
362 Nicholson Ex. 30, Gandy Petition at 2-9.
363 Nicholson Ex. 29, Brumfield Petition at 2-6.
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6. All of Pohl’s claims fail because he cannot show
ownership of the alleged trade secrets or damages
without showing that he acquired the information
through barratry or the unauthorized practice of
law.
Simply put, Pohl cannot prove that he is the owner of the ktrade secret
information without showing how he acquired it. The evidence Cpresented herein,
and in the Nicholson Motion, demonstrates that Pohl acquired the information
through illegal activity which included barratry and the iunauthorized practice of
law in multiple states and assisting others to engage in the unauthorized practice of
law. Since Pohl cannot prove his case without relying on his illegal activity, the
Unlawful Acts Rules bars his claims.
Pohl claims as damages his expenlses in defending against the Cheatham,
Berry, Gandy and Brumfield lawsuMits. He claims as damages the expenses he
incurred in defending against the Barratry Litigation and grievance filed by
Kassab. Pohl also claims thati publicity about his illegal activities caused economic
harm to his “law practice.” Thus, Pohl’s claimed damages flow solely from the fact
that people discoveredo his unlawful acts.
Pohl cannotl claim the expense of defending against the Cheatham, Berry,
Gandy and Briumfield lawsuits without addressing what the lawsuits are about. All
four of those lawsuits were filed against him by persons who were illegally solicited
by him, including some of his former clients. One of the cases (Barry) settled, and
two of the cases (Brumfield and Gandy) were dismissed on limitations. See
Brumfield v. Williamson, 634 S.W.3d 170 (Tex. App.—Houston [1st Dist.] 2021, pet.
82
denied); Gandy v. Williamson, 634 S.W.3d 214, 219 (Tex. App.—Houston [1st Dist.]
2021, pet. denied). Although the last case (Cheatham) was dismissed on summary
judgment, the court of appeals recently reversed because there was evidence of a
“barratry scheme.” See Cheatham v. Pohl, No. 01-20-00046-CV, 20k22 Tex. App.
LEXIS 649, at *25-26 (Tex. App.—Houston [1st Dist.] Jan. 27,C 2022, no pet. h.)
(mem. op.). Pohl cannot claim that Defendants caused him to defend against these
lawsuits without showing these people sued him for commiitting barratry.
Likewise, the Texas Bar grievance which Kassab submitted against Pohl is
based on Pohl’s illegal acts, which included barratry. Pohl cannot claim that
Defendants caused him to defend against a bar complaint without showing that it
concerned his unlawful activities. Regardlelss, Pohl’s claim for damages arising from
any grievances are barred by immuniMty, as stated above.
Finally, Pohl claims that publicity about his illegal activities damaged his
law practice. Pohl has not andi cannot prove these damages without showing that he
committed unlawful acts. Since his claimed damages all spring from his former
clients and others beocoming aware of his barratry and other illegal activities, he
cannot prove any olf his damages without discussing barratry.
G. Piohl is not permitted to recovery as damages the
oattorney’s fees he incurred in the four barratry lawsuits
and two disciplinary grievances.
Damages in a TUTSA suit are generally comprised of losses such as “the
value of the plaintiff’s lost profits, the defendant’s actual profits from the use of the
secret, the value a reasonably prudent investor would have paid for the trade secret,
83
the development costs the defendant avoided by the misappropriation, and a
reasonable royalty.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710–11
(Tex. 2016).
There are no differences between existing Texas common lakw and
TUTSA regarding the economic damages available for traede secret
misappropriation. Under Texas common law, the plCaintiff was
permitted to recover damages based on the value of what has been lost
by the plaintiff (lost profits) or the value of what has been gained by
the defendant (unjust enrichment). The plaintiff alsot could recover a
reasonable royalty for the defendant’s use of the plaiintiff’s trade secret.
Joseph F. Cleveland, Jr., J. Heath Coffman, The Texas Uniform Trade Secrets Act,
Tex. J. Bus. L. 323, 328 (2013).
Nonetheless, Pohl here seeks as damages the fees he incurred in defending
against the four underlying barratry suitsl and two disciplinary grievances. Nothing
the TUTSA statute permits recoverMy of such “damages”—indeed, the prevailing
party is not even entitled to recovery of its attorney’s fee under TUTSA, but instead,
the trial court has discretion wihether to award fees and only if willful and malicious
misappropriation exists. T EX. CIV. PRAC. & REM. CODE § 134A.005. If the TUTSA
plaintiff is not guaraonteed recovery of fees in the actual TUTSA suit, there is no
reason to permit thle TUTSA plaintiff to recover fees incurred in other suits.
Moreoveir, even applying common-law, Pohl is not entitled to attorney’s fees
as damages. “Whether a party is entitled to attorney’s fees is a question of
law.” Sunchase IV Homeowners Ass’n, Inc. v. Atkinson, 643 S.W.3d 420, 422 (Tex.
2022). “In Texas, attorney’s fees expended in prior litigation generally are not
recoverable as damages; attorney’s fees are recoverable only when an agreement
84
between the parties so provides.” Martin-Simon v. Womack, 68 S.W.3d 793, 797–98
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). As the Supreme Court has
explained, “For more than a century, Texas law has not allowed recovery of
attorney’s fees unless authorized by statute or contract. This rule isk so venerable
and ubiquitous in American courts it is known as ‘the American CRule.’” Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006). The Supreme Court of
Texas has never adopted that equitable “tort of another” eixception to the American
Rule. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research
Corp., 299 S.W.3d 106, 119 (Tex. 2009) (declining to address whether the “tort of
another” exception set out in section 914(2) of the Restatement should be adopted in
Texas); see also Alvarez v. Agyemang, No.l 02-19-00301-CV, 2020 WL 719440, at *3
(Tex. App.—Fort Worth Feb. 13, 2020M, no pet.) (mem. op.) (“We do not hold that the
equitable exception allows the recovery of a prevailing party’s attorney’s fees even
in the absence of a contract or iauthorizing statute.
Indeed, the Texas Supreme Court’s language in Gullo and that court’s failure
to expressly adopt oor reject this equitable theory indicate that equity does not
extend this far.”); lRiner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011,
no pet.) (“Givein the supreme court’s faithful adherence to the American Rule, and
its strong statement in Tony Gullo that trial courts lack the inherent authority to
award attorney’s fees contrary to the Rule, we decline to adopt a
new equitable exception to the Rule.”); Naschke v. Gulf Coast Conference, 187
S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (declining to
85
adopt the “tort of another” exception to the American Rule because “we are bound to
follow the existing laws of the State, we are not at liberty to adopt a theory of
recovery that has not been enacted by the Legislature or adopted by the Texas
Supreme Court”).364 k
No statute or contract provides Pohl the right to recover hisC attorney’s fees in
the two barratry suits he prevailed on, nor on the barratry suit he settled and the
ongoing suit. Application of the American Rule to preiclude Pohl’s request for
attorney’s fees damages makes sense here especially because Pohl was sued by
persons accusing him of improperly soliciting them in violation of barratry laws and
ethical rules—those persons exercised their right and choice to file suit against Pohl
for his wrongdoing. Under such circumstalnces, it would be inequitable and violate
public policy to allow Pohl to insuMlate himself from responsibility for his own
wrongdoing.
In a similar vein, even iif some equitable exception could apply here to permit
a plaintiff to recover its attorney’s fees defending an underlying lawsuit, it would
apply only if Pohl owere wholly innocent relative to the barratry suits and
grievances. See Pelr-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 WL
1539291, at *8i (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.)
364 Prior to Tony Gullo and Akin Gump, the First Court of Appeals recognized the equitable “tort of
another” exception to the general rule. See Massey v. Columbus State Bank, 35 S.W.3d 697, 701 (Tex.
App.—Houston [1st Dist.] 2001, no pet.). Tony Gullo and Akin Gump have driven home that the
general rule against allowing recovery of fees as damages is firm and the Fourteenth Court of
Appeals’ rejection of the “tort of another” exception in Martin-Simon and Naschke should be applied
here, especially because Pohl’s own wrongdoing caused him to be sued for barratry. See also
Stumhoffer v. Perales, 459 S.W.3d 158, 168 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)
(“Texas has long adhered to the American Rule with respect to awards of attorney’s fees, which
prohibits the recovery of attorney’s fees from an opposing party in legal proceedings unless
authorized by statute or contract.”).
86
(“[U]nder the ‘tort of another’ exception, BSG is not entitled to
recover attorney’s fees incurred in the arbitration because it is not a wholly
innocent party.”); Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834–35
(Tex. App.—Austin 2002, no pet.) (holding trial court properly refused kto award fees
to plaintiff because it was found partly negligent in underlyCing suit); Dayton
Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—Dallas 1987, writ
denied) (“Therefore, in the present case, Eldridge is not ani innocent party forced to
incur costs and expenses, including attorneys’ fees, to be treated as the legal
consequences of some original wrongful act of another and permitted to be recovered
as damages.”).
As an initial matter, the Cheathalm barratry suit is ongoing, with Pohl
recently losing the appeal in that caMse, even on rehearing, meaning, putting aside
all the other reasons why his claims fail, it is premature for him to be seeking fees
related to Cheatham. Regaridless, the fact the Pohl violated ethical rules and
committed barratry in having others solicit the persons who filed the barratry suits
proves he was not whoolly innocent.
Finally, beclause, as established above, Pohl failed to maintain the secrecy of
his alleged traide secrets, he cannot recover any damages involving those alleged
trade secrets even if attorney’s fees could be recovered as damages:
Like injunctive relief, a monetary recovery for trade secret
misappropriation is appropriate only for the period in which
information is entitled to protection as a trade secret, plus the
additional period, if any, in which a misappropriator retains an
advantage over good faith competitors because of misappropriation.
Actual damage to a complainant and unjust benefit to a
87
misappropriator are caused by misappropriation during this time
alone. See Conmar Products Corp. v. Universal Slide Fastener Co., 172
F.2d 150 (CA2, 1949) (no remedy for period subsequent to disclosure of
trade secret by issued patent); Carboline Co. v. Jarboe, 454 S.W.2d 540
(Mo. 1970) (recoverable monetary relief limited to period that it would
have taken misappropriator to discover trade secret without
misappropriation). k
Uniform Trade Secrets Act at § 3 DAMAGES, comment. HenCce, for numerous
reasons, Pohl’s cannot recover his attorney’s fees as damages in this suit.
NO-EVIDENCE MOTION FOR SUMMARY JUiDGMENT
As stated above, Pohl sued the Kassab Defendants for (1) conversion, (2)
violations of the Texas Uniform Trade Secrets Actg (“TUTSA”), and civil conspiracy.
Because Pohl, after an adequate time for discovery, can produce no evidence to
support each of these claims he has alleged against the Kassab Defendants, the
Court should grant this motion and dMismiss Pohl’s claims with prejudice.
oSTANDARD
Under Texas Rule of Civil Procedure 166a(i), after an adequate time for
discovery has elapsed, the party without the burden of proof may, without
presenting evidence, omove for summary judgment on the grounds that there is no
evidence to supporl t an essential element of the non-movant’s claim. TEX. R. CIV. P.
166a(i). The buirden then shifts to the non-movant to produce evidence that raises a
fact issue non the challenged elements. Howell v. Hilton Hotels, 84 S.W.3d 708, 711-
12 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “If the proffered evidence [in
response to a motion for summary judgment] is so weak as to create no more than a
‘mere surmise or suspicion’ of a vital fact, less than a scintilla of evidence exists
because such evidence lacks probative force, and in legal effect, is no evidence at
88
all.” Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied) (citing Kindred v. Conn/Chem., Inc., 650 S.W.2d 61,
63 (Tex. 1983)). Further, “some suspicion linked to other suspicion produces only
more suspicion, which is not the same as some evidence.” Marathon Cokrp. v. Pitzner,
106 S.W.3d 724, 727–28 (Tex. 2003) (quoting Johnson v. Brewer C& Pritchard, P.C.,
73 S.W.3d 193, 210 (Tex. 2002)).
An adequate time for discovery has passed for Poihl to obtain evidence to
prove his affirmative claims. Indeed, “[a] discovery period set by pretrial order
should be adequate opportunity for discovery unless there is a showing to the
contrary[.]” TEX. R. CIV P. 166a cmt. That date has long passed. Therefore, this no-
evidence motion for summary judgment onl Pohl’s affirmative claims is proper.
RGUMENT
A. Pohl has no evidence to support his conversion claims
against the Kassaeb Defendants.
To establish a claim ffor conversion, a plaintiff must prove that: (1) plaintiff
owned or had possession of the property or entitlement to possession, (2) defendant
unlawfully and without authorization assumed and exercised control over the
property to the eixclusion of, or inconsistent with, the plaintiff's rights as an owner,
(3) plaintiffo demanded return of the property, and (4) defendant refused to return
the property. Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386-87 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). Pohl has no evidence of elements (1), (2),
(3) or (4).
89
First, Pohl has no evidence that he owned or had possession of the property
or entitlement to possession of any of the allegedly converted property. Second, Pohl
has no evidence that the Kassab Defendants unlawfully and without authorization
assumed and exercised control over the property to the exclusion of, ork inconsistent
with Pohl’s rights as an alleged owner. Third, Pohl has no Cevidence that he
demanded return of the property from the Kassab Defendants. Fourth, Pohl has no
evidence that the Kassab Defendants refused to return thie property after demand
was allegedly made. Accordingly, Pohl’s conversion claim against the Kassab
Defendants must be dismissed on summary judgment.
Moreover, a plaintiff who establishes conversion is entitled to either (1) the
return of the property and damages forl its loss of use during the time of its
detention, or (2) the value of the pMroperty. See Wiese v. Pro Am Svcs. Inc., 317
S.W.3d 857, 862 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Pohl cannot
produce evidence as to the damiages for the property’s loss of use during the time of
its detention or the value of the allegedly converted property. For these reasons too,
Pohl’s conversion claoim against the Kassab Defendants must be dismissed on
summary judgmenlt.
B. Piohl has no evidence to support his claims of TUTSA
oviolations.
The elements of a cause of action for trade-secret misappropriation under
TUTSA are the following: (1) the plaintiff owned a trade secret; (2) the defendant
misappropriated the trade secret; and (3) the misappropriation proximately caused
plaintiff damages. TEX. CIV. PRAC. & REM. CODE §§ 134A.002(1), (3), (6),
90
134A.004(a); Malone v. PLH Group, Inc., No. 01-19-00016-CV, 2020 WL 1680058, at
*5 (Tex. App.—Houston [1st Dist.] Apr. 7, 2020, pet. denied) (mem. op.); Morgan v.
Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 186 (Tex. App.—Tyler 2018, no pet.).
Pohl has no evidence to support elements (1), (2) or (3). k
First, Pohl must produce evidence that he owned a purpoCrted trade secret.
Pohl complains that the Kassab Defendants stole his “client files” to solicit his
clients. However, Pohl cannot produce any evidence thiat he owns a client file
because a lawyer does not own his client’s files as a matter of law.
Under TUTSA, for something to be a “trade secret,” the owner must have
taken reasonable measures under the circumstances to keep the information secret,
and the information must derive indepenldent economic value, actual or potential,
from not being generally known to,M and not being readily ascertainable through
proper means by, another person who can obtain economic value from the disclosure
or use of the information. TEiX. CIV. PRAC. & REM. CODE § 134A.002(6). Pohl can
present no evidence to establish this element. Pohl has no evidence that, for each
purported trade secreot, Pohl took reasonable measures under the circumstances to
keep the informatlion secret or that the information derived independent economic
value, actual oir potential, from not being generally known to, and not being readily
ascertainable through proper means by, another person who can obtain economic
value from the disclosure or use of the information. Moreover, a person must have
rightful, legal, or equitable title to trade secrets in order to be an “owner.” Id. at §
91
134A.002(3-a). Pohl has no evidence that he had a rightful, legal, or equitable title
to the purported trade secrets.
Second, Pohl has no evidence that the Kassab Defendants misappropriated
any of Pohl’s purported trade secrets. Additionally, to prove “willful aknd malicious
misappropriation,” a plaintiff must show defendant engagedC in “intentional
misappropriation resulting from the conscious disregard of the rights of the owner
of the trade secret.” Id. at § 134A.002(7). Pohl has no eividence that the Kassab
Defendants engaged in willful and malicious appropriation of any alleged trade
secret or that the Kassab Defendants engaged in intentional misappropriation
resulting from the conscious disregard of the rights of Pohl. Pohl can produce no
evidence of the Kassab Defendants’ intent.l
Third, Pohl has no evidenMce that the Kassab Defendants’ alleged
misappropriation of any alleged trade secrets proximately caused Pohl injury or
actual damages recoverable uinder TUTSA. Pohl has no evidence supporting his
claim for attorney’s fees. Pohl has no evidence of business losses.
Additionally, aossuming, arguendo, that the law allowed Pohl to recover as
damages the attolrney’s fees he incurred in defending against the four barratry
lawsuits, Pohli has no evidence (1) showing as to each of the plaintiffs in each of
those lawsuits that he had rightful, legal, or equitable title to their names and
contact information—meaning he properly and ethically came to possesses and can
properly and ethically use that information—(2) he took reasonable measures under
the circumstances to keep secret their names and contact information, and the
92
information derived independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable through proper means by,
another person who can obtain economic value from the disclosure or use of the
information, (3) the Kassab Defendants misappropriated their namesk and contact
information, and that (4) the Kassab Defendants’ misappropriatiCon of their names
and contact information proximately caused plaintiff actual damages recoverable
under TUTSA. i
Fourth, Pohl has no evidence that he is wholly innocent in the illegal
obtainment of any client for which his claims are based. Meaning, Pohl has no
evidence to show that he was not breaking the law when he obtained a client for
which his claims are based. The fact thatl he admittedly violated the unauthorized
practice of law during the entire perMiod for which he obtained clients or potential
clients, proves there is no evidence of his legally obtaining the clients for which he
basis his claims. i
C. Pohl has no evidence to support his conspiracy claim.
An action for coivil conspiracy has five elements: (1) a combination of two or
more persons; (2) lthe persons seek to accomplish an object or course of action; (3)
the persons reiach a meeting of the minds on the object or course of action; (4) one or
more unlawful, overt acts are taken in pursuance of the object or course of action;
and (5) damages occur as a proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556
(Tex. 2005); Haynes v. Bryan, No. 01-20-00685-CV, 2022 WL 2024837, at *4 (Tex.
App.—Houston [1st Dist.] June 7, 2022, no pet. h.).
93
Pohl has no evidence that (1) the Kassab Defendants were involved in a
combination of two or more persons; (2) that any persons involved in the alleged
conspiracy sought to accomplish an object or course of action; (3) the persons
involved reached a meeting of the minds on the object or course of actikon; (4) one or
more unlawful, overt acts were taken in pursuance of the object oCr course of action;
or (5) damages occurred as a proximate result.
CONCLUSION & PRAYER
For the foregoing reasons, the Court should grant Kassab’s Motion
Traditional Motion for Summary Judgment and No-Evidence Motion for Summary
Judgment and order that Plaintiffs, Michael A. Pohl and Law Office of Michael A.
Pohl, PLLC take nothing on their claimsl against Lance Christopher Kassab and
The Kassab Law Firm. M
Respectfully submitted,
i THE KASSAB LAW FIRM
LANCE CHRISTOPHER KASSAB
 Texas State Bar No. 00794070
a lance@kassab.law
c DAVID ERIC KASSAB
f Texas State Bar No. 24071351
david@kassab.law
U NICHOLAS R. PIERCE
Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
94
ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that on this date, February 24, 2023, I electronicaklly filed this
document with the Clerk of the Court using the eFile.TXCourts.gov eelectronic filing
system which will send notification of such filing to all parties or cCounsel of record.
LANCE CHRISTOPHER KASSAB
95
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 73091211
Status as of 2/24/2023 3:38 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizszell.com 2/24/2023 1:36:14 PM SENT
Harris Wells hwells@reynoldsgfrizzell.com 2/24/2023 1:36:14 PM SENT
Todd Taylor ttaylor@jandfluaw.com 2/24/2023 1:36:14 PM SENT
Scott M.Favre scott@favrepa.com 2/24/2023 1:36:14 PM SENT
Lawyer Wade lawyerwyade@hotmail.com 2/24/2023 1:36:14 PM SENT
Andrea Mendez anadrea@kassab.law 2/24/2023 1:36:14 PM SENT
Lance Kassab lance@kassab.law 2/24/2023 1:36:14 PM SENT
David Kassab odavid@kassab.law 2/24/2023 1:36:14 PM SENT
Nicholas Pierce nicholas@kassab.law 2/24/2023 1:36:14 PM SENT
Chris C.Pappas f cpappas@krcl.com 2/24/2023 1:36:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/24/2023 1:36:14 PM SENT
Misty Davis p mdavis@reynoldsfrizzell.com 2/24/2023 1:36:14 PM SENT
Non-Party Witness Billy SheCpherd bshepherd@spcounsel.com 2/24/2023 1:36:14 PM SENT
Lance Kassab a l eserve@kassab.law 2/24/2023 1:36:14 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 2/24/2023 1:36:14 PM SENT
Non-Party Edgar Joaimes edgarsroom@gmail.com 2/24/2023 1:36:14 PM SENT
Murray FoglerU mfogler@fbfog.com 2/24/2023 1:36:14 PM SENT
Murray JFogler mfogler@foglerbrar.com 2/24/2023 1:36:14 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 2/24/2023 1:36:14 PM SENT
Benjamin Ritz britz@thompsoncoe.com 2/24/2023 1:36:14 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 2/24/2023 1:36:14 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 2/24/2023 1:36:14 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 2/24/2023 1:36:14 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 2/24/2023 1:36:14 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 73091211
Status as of 2/24/2023 3:38 PM CST
Case Contacts r i
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/24/2023 1:36:14 PM SENT
Kelly Skelton reception@kassab.lasw 2/24/2023 1:36:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 2/24/2023 1:36:14 PM SENT"
49,2023-02-23,MTN,Kassab,Mtn to Reconsider or Rule,Kassab Defendants' Motion to Reconsider or Rule on Three Prior Orders by Judge Dollinger,"Filed February 23, 2023 after the case was transferred from the 189th Judicial District Court (Judge Dollinger) to Judge Christine Weems's court on December 19, 2022. Kassab seeks reconsideration of three prior orders under Tex. R. App. P. 7.2(b) before challenging them via mandamus.",MSJ-2R,N/A,Phase 4,2023-02-23_MTN_Kassab-Mtn-to-Reconsider-or-Rule_FILED.pdf,"Set the motion for hearing and, after hearing, reconsider the three orders by Judge Dollinger, vacate those orders, and grant the relief Kassab requested in each of them (abatement, RTP designation, and compelled discovery under offensive use doctrine)","2/23/2023 2:10 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73050165
By: Bonnie Lugo
Filed: 2/23/2023 2:10 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
§ k
§ e
SCOTT FAVRE, et al § 189th JUDICCIAL DISTRICT
KASSAB DEFENDANTS’ MOTION TO RECONSIDER OR RULE
TO THE HONORABLE JUDGE CHRISTINE WEEMS: i
Defendants, Lance Christopher Kassab and Lance Christopher Kassab, P.C.
D/B/A The Kassab Law Firm (collectively “Kassab”), and file this Motion to
Reconsider or Rule, and would respectfully show the following.
This case was transferred from the l189th Judicial District Court on December
19, 2022.1 Prior to transfer, Judge DMollinger entered orders that Kassab intends to
challenge through petitions for writ of mandamus. However, under Texas Rule of
Appellate Procedure 7.2(b), this Court must be given the opportunity to reconsider
orders or actions of the predecessor judge that will be considered in the original
proceeding. See Tex. oR. Civ. P. 7.2(b); In re Loomis Armored US, LLC, No. 01-21-
00027-CV, 2021 Tlex. App. LEXIS 1820, at *1 (Tex. App. – Houston [1st Dist.] Mar.
11, 2021, origi. proceeding) (mem. op.). Accordingly, Kassab files this motion
requesting the Court to reconsider or rule on the following.
1 Although the order was signed on that date, it was not filed with the District Clerk until January 6,
2023.
First, the Court should reconsider Judge Dollinger’s order denying Kassab’s
motion to abate.2 As explained in Kassab’s motion to abate,3 this case is related to
litigation that is currently pending against Pohl for civil barratry, which is the
illegal and unethical solicitation of clients. See Cheatham v. Pohl, No. k01-20-00046-
CV, 2022 Tex. App. LEXIS 6528 (Tex. App.—Houston [1st Dist.] ACug. 30, 2022, pet.
filed) (mem. op.). In this case, Pohl seeks from Kassab attorney’s fees for defending
against the Cheatham case and other barratry litigatioin that Kassab brought
against Pohl on behalf of his clients. Although the Cheatham case was dismissed by
the trial court, it was reversed and remanded by the First Court of Appeals. See id.
at *1. It is questionable whether Pohl can sue Kassab for attorney’s fees and
expenses incurred by Pohl in the underlyling barratry litigation when Pohl never
requested and was not entitled to recMover those fees in the barratry litigation. But if
Pohl can, then the extent of Pohl’s alleged damages are not yet known because the
Cheatham case is still ongoinig. In fact, the outcome of Cheatham could result in a
judgment against Pohl for barratry, which will definitively establish Kassab’s
defenses to Pohl’s claoims. Accordingly, Kassab moved to abate the trial of this case
pending resolutionl of the Cheatham case. Judge Dollinger denied that request. The
Court should ireconsider that order before Kassab challenges it by way of
mandamus.
Second, the Court should rule on Kassab’s motion for leave to designate
responsible third parties. On October 31, 2022, Judge Dollinger denied Kassab’s
2 Exhibit 1, September 23, 2022 Order Denying Motion to Abate.
3 See The Kasab Defendants Motion to Abate Trial Setting, filed on September 6, 2022 (File No.
103867326).
motion for leave without prejudice to Kassab repleading.4 Kassab replead,5 and filed
a supplemental motion for leave to designate responsible third parties.6 Pohl filed
an objection to that designation.7 But Judge Dollinger made no ruling on Kassab’s
responsible third party motion after the amendments. Accordingly, Kakssab requests
a ruling on that motion. C
Third, Kassab asks the Court to reconsider Judge Dollinger’s order denying
Kassab’s motion to compel discovery from Pohl based on ithe doctrine of offensive
use.8 That motion demonstrated that Pohl could not on the one hand sue Kassab for
affirmative relief claiming Kassab stole his purported trade secrets – client
information – and caused those clients to bring barratry claims against Pohl while
at the same time “lower an iron curtain olf silence against otherwise pertinent and
proper questions which may have a bMearing upon his right to maintain his action.”
Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985). Judge
Dollinger denied that motion ias well, thus denying Kassab relevant and material
discovery going to the heart of Pohl’s claims and Kassab’s defenses. The Court
should reconsider thoat order as well before Kassab challenges it by way of
mandamus. l
4 Exhibit 2, October 31, 2022 Order on Motion for Leave.
5 See Defendants Lance Christopher Kassab's and Lance Christopher Kassab PC D/B/A The Kassab
Law Firms Eighth Amended Answer and Affirmative Defenses and Counter-Claim, filed on
November 14, 2022 (File No. 105099885).
6 See Kassab Defendants' Supplemental Motion to Designate RTP, filed on November 15, 2022 (File
No. 105119450).
7 See Pohl's Objection to Kassab's Supplemental Motion to Designate Responsible Third Parties, filed
on November 30, 2022 (File No. 105341290).
8 Exhibit 3, November 28, 2022 Order Denying Motion to Compel.
For the reasons stated herein, Defendants, Lance Christopher Kassab and
Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm move the Court to set
this motion for hearing and, after hearing, promptly reconsider the orders and
rulings made by Judge Dollinger, vacate those orders, and grant the reklief requested
by Kassab in each of them. C
Respectfully submitted,
THE KASSAB L DAWi FIRM
_______e___________________
DAVID ERIC KASSAB
Texuas State Bar No. 24071351
david@kassab.law
LANCE CHRISTOPHER KASSAB
lTexas State Bar No. 00794070
a lance@kassab.law
M NICHOLAS R. PIERCE
 Texas State Bar No. 24098263
nicholas@kassab.law
e 1214 Elgin Street
i Houston, Texas 77004
f Telephone: 713-522-7400
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
i CERTIFICATE OF SERVICE
I certify that on this date, February 23, 2022, I electronically filed this
document with the Clerk of the Court using the eFile.TXCourts.gov electronic filing
system which will send notification of such filing to all parties or counsel of record.
_______________________
DAVID ERIC KASSAB
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 73050165
Status as of 2/23/2023 4:12 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizszell.com 2/23/2023 2:10:22 PM SENT
Harris Wells hwells@reynoldsgfrizzell.com 2/23/2023 2:10:22 PM SENT
Todd Taylor ttaylor@jandfluaw.com 2/23/2023 2:10:22 PM SENT
Scott M.Favre scott@favrepa.com 2/23/2023 2:10:22 PM SENT
Lawyer Wade lawyerwyade@hotmail.com 2/23/2023 2:10:22 PM SENT
Murray Fogler mfaogler@fbfog.com 2/23/2023 2:10:22 PM SENT
Murray JFogler mfogler@foglerbrar.com 2/23/2023 2:10:22 PM SENT
Andrew Johnson oajohnson@thompsoncoe.com 2/23/2023 2:10:22 PM SENT
Benjamin Ritz britz@thompsoncoe.com 2/23/2023 2:10:22 PM SENT
Chris C.Pappas f cpappas@krcl.com 2/23/2023 2:10:22 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/23/2023 2:10:22 PM SENT
Misty Davis p mdavis@reynoldsfrizzell.com 2/23/2023 2:10:22 PM SENT
Non-Party Witness Billy SheCpherd bshepherd@spcounsel.com 2/23/2023 2:10:22 PM SENT
Lance Kassab a l eserve@kassab.law 2/23/2023 2:10:22 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 2/23/2023 2:10:22 PM SENT
Non-Party Edgar Joaimes edgarsroom@gmail.com 2/23/2023 2:10:22 PM SENT
Zandra EFoleUy zfoley@thompsoncoe.com 2/23/2023 2:10:22 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 2/23/2023 2:10:22 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 2/23/2023 2:10:22 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 2/23/2023 2:10:22 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/23/2023 2:10:22 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/23/2023 2:10:22 PM SENT"
48,2023-01-04,MTN,Kassab,Mtn to Reconsider No-Evid MSJ,Kassab Defendants' Motion to Reconsider Traditional and No-Evidence Motions for Summary Judgment,"Filed January 4, 2023 before Judge Tamika 'Tami' Craft after case transferred from Judge Dollinger (189th District Court). Kassab seeks reconsideration of the prior judge's October 31, 2022 denial of both traditional and no-evidence summary judgment motions on Pohl's claims of conversion, trade secret theft (TUTSA), and civil conspiracy. Kassab argues the denial was erroneous and cites new case law (Taylor v. Tolbert, 2022) requiring reconsideration of attorney immunity. 90 pages with extensive exhibits.",MSJ-2R,N/A,Phase 4,2023-01-04_MTN_Kassab-Mtn-to-Reconsider-No-Evid-MSJ_FILED.pdf,Reconsider and grant Kassab's traditional and no-evidence motions for summary judgment; dismiss Pohl's retaliatory lawsuit with prejudice; order Pohl take nothing on his claims against Kassab,"1/4/2023 12:12 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 71470463
By: DANIELLE JIMENEZ
Filed: 1/4/2023 12:12 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ MOTION TO RECONSIDER CTRADITIONAL
AND NO-EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE TAMIKA “TAMI” CRAFT: t
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a/ The
Kassab Law Firm file this, their Motion to Reconsideer Traditional and No-Evidence
Motions for Summary Judgment and would respuectfully show the following.
BACKGROUND
This lawsuit is nothing more thaan a retaliatory suit brought by Michael A.
Pohl and his law firm, Law Office of Michael A. Pohl, PLLC (“Pohl”) against Lance
Christopher Kassab and Lancee Christopher Kassab, P.C. d/b/a/ The Kassab Law
Firm (“Kassab”). Kassab refpresented more than 400 clients in lawsuits against
Pohl due to his illegal and unethical solicitation of these clients. It is undisputed
that Pohl hired and paid runners more than five million dollars to illegally obtain
clients stemminig from catastrophic auto accidents and the BP Deepwater Horizon
litigation. o
Based upon Pohl’s illegal and unethical solicitation of clients, Kassab filed
four separate lawsuits against Pohl for civil barratry. In addition, as mandated by
the Texas Disciplinary Rules of Professional Conduct, Rule 8.03, Kassab filed and
helped his clients initiate several grievance proceedings, causing the State Bar of
Texas to investigate the alleged barratry, which is prohibited by the Texas
Disciplinary Rules of Professional Conduct and the Texas Penal Code. In response,
Pohl filed this lawsuit against Kassab, alleging claims of conversion, theft of trade
secrets and civil conspiracy, claiming Kassab conspired with others tko steal Pohl’s
property and solicit his former clients or prospective clients to sueC him for barratry.1
Pohl claims his defense costs to defend against the barratry litigation and
grievances as his damages. The absurdity of Pohl’s claimsi is only surpassed by the
absurdity of his claimed damages. Pohl’s claims were brought in bad faith and
should be dismissed with prejudice.
MOTION TO RECONSIDER
Kassab files this Motion to Reconsilder to correct the erroneous ruling of the
prior judge relating to the KassabM’s Traditional and No-Evidence Motions for
Summary Judgment. Pohl will undoubtedly argue that these motions have already
been reviewed and denied by iJudge Dollinger, and thus, this motion is a waste of
time. To the contrary, however, this motion will actually save the Court and parties
time, effort, energy aond money because the motions for summary judgment should
have been grantedl in the first place. The fact that they were not, means the parties
must waste tiime, energy, effort and money trying a patently frivolous retaliatory
case. Moreover, trying this frivolous case is a waste of judicial economy and waste
of the public’s time and trust in sitting as a jury on a patently frivolous case that
has no chance of winning under the law.
1 Plaintiffs’ Original Petition, ¶¶ 19-28.
The evidence presented in Kassab’s traditional motion for summary
judgment is so overwhelming, that the failure to grant the motion was erroneous.
Moreover, Pohl wholly failed to produce any evidence on material elements of his
causes of action, thus Kassab’s no evidence motion should have bkeen granted.
Therefore, the Court should reconsider Kassab’s motions for suCmmary judgment,
grant the motions and dismiss Pohl’s retaliatory lawsuit with prejudice.
SUMMARY
Pohl got caught committing illegal and unethical barratry and now wants
Kassab, who brought the barratry litigation and grievances against Pohl, to pay for
Pohl’s legal fees for defending against the barratry claims and grievances. But
Pohl’s claims against Kassab are barred als a matter of law and he has no evidence
to support various elements of his cauMses of action because:
• Pohl’s claims are predicated on Kassab’s filing of a grievance against
Pohl for which Kassabe has absolute and unqualified immunity
pursuant to Rule 17.09 iof the Texas Rules of Disciplinary Procedure.
• Pohl’s claims again  st Kassab are barred by the judicial proceedings
privilege because they arise out of communications that Kassab made
in prospective (osolicitation letters) and actual judicial proceedings (the
barratry litigation and grievance process).
• Pohl’s claiims against Kassab are barred by attorney immunity because
an attoriney does not have a right of recovery, under any cause of action
againost another attorney arising from conduct the second attorney
engaged in as part of the discharge of his duties in representing a
party.
• Pohl’s claims are barred by limitations because they accrued, if at all,
in the summer of 2014 as Pohl testified under oath, and Pohl did not
file suit against Kassab until August 2018, more than four years later.
• Pohl’s TUTSA claim is conclusively negated because his alleged trade
secrets were not actually kept secret. Pohl’s claims also fail because
Pohl does not own the purportedly stolen property and trade secrets
which consist of client files which, as a matter of law, Pohl does not
own.
• Pohl’s illegal acts (barratry and unauthorized practice of law) preclude
any form of recovery against the whistleblower (Kassab) beecause his
acts are inexorably intertwined with Pohl’s crimes. C
• Pohl is not permitted to recover as damages the attoirney’s fees he
incurred in the four barratry lawsuits and two disciplintary grievances.
• Pohl has no evidence to support that he owned or had possession of the
property or entitlement to possession of any ofs the allegedly converted
property or stolen property. e
• Pohl has no evidence that the Kassab Defendants unlawfully and
without authorization assumed and exercised control over the property
to the exclusion of, or inconsistent with Pohl’s rights as an alleged
owner. l
• Pohl has no evidence that he Mdemanded return of the property from
the Kassab Defendants, nor does Pohl have any evidence that the
Kassab Defendants refused to return any property.
• Pohl cannot produce eviidence as to the damages for the property’s loss
of use during the tOime of its detention or the value of the allegedly
converted property.
• Pohl has no evoidence that (1) the Kassab Defendants were involved in
a combination of two or more persons; (2) that any persons involved in
the allegead lconspiracy sought to accomplish an object or course of
action; (3)i the persons involved reached a meeting of the minds on the
object of ir course of action; (4) one or more unlawful, overt acts were
takeno in pursuance of the object or course of action; or (5) damages
occurred as a proximate result.
JOINDER AND INCORPORATION BY REFERENCE
Defendants, Tina Nicholson and Baker Nicholson, LLP (“Nicholson”) moved
for traditional summary judgment on August 19, 2022 (“the Nicholson Motion”).
Kassab adopts the arguments set forth in the Nicholson Motion and all evidence
cited therein. See TEX. R. CIV. P. 58 (“Statements in a pleading may be adopted by
reference in a different part of the same pleading or in another pleading or in any
motion, so long as the pleading containing such statements has not beekn superseded
by an amendment as provided by Rule 65 pursuant to Texas Rule Cof Civil Procedure
58.”); Lockett v. HB Zachry Co., 285 S.W.3d 63, 72 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (“Texas courts have recognized adoption oif a co-party's motion for
summary judgment as a procedurally legitimate practice.”). Reference to exhibits
attached to the Nicholson Motion will be “Nicholson Ex. [number], [description].”
POHL’S BARRATRY SCHEME
Pohl engages in an illicit barraltry scheme to personally solicit
BP clients and victims of cataastrophic auto accidents.
Michael Pohl and his law firm retained two non-lawyers, Scott Walker and
Kirk Ladner, and their compeany, Precision Marketing Group (“Precision”), to
“recruit clients for [Pohl] t
o frepresent against BP”2 and provide “marking services”
to auto accident victims.3 Walker testified that although he and Pohl called it
“marketing services” or “marketing money” it was “clear to [him] it was barratry.”4
In fact, Walker iconsidered himself and his company “a pass-through for barratry
money.”5 Alol total, Walker, Ladner and Precision Marketing received over $5 million
in “barratry pass-through money” from Pohl and other lawyers to solicit accident
victims and potential clients with claims, both auto-accident victims and those
2 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, p. 19.
3 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 605-07.
4 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 149.
5 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 197:6-7.
involved in the BP Deepwater Horizon litigation.6 They would use this money to pay
contract workers to solicit clients.7 They would locate and instruct contract workers
on how to accomplish the solicitation.8 They trained “40 or 50 people” on how to “go
out and solicit contracts.”9 k
Walker would “get leads from a variety of sources” includCing “from Michael
Pohl” and then he and Ladner, or one of their employees, would go try to “find the
family who had lost a loved one” and “just do marketingi” to “let them know that
there was help available.”10 The “help” available would be offering the victims
money from Helping Hands Financing, LLC (“Helping Hands Financing”).11 Helping
Hands Financing is owned by Pohl’s wife, Donalda Pohl (“Donalda”), and operated
by her cousin, Jaimes.12 If one of the clienlts Precision Marketing solicited “needed
monetary help” they would be referMred to Jaimes and Jaimes would “work with
them to -- to help them.”13 The funds from Helping Hands Financing to pay to the
auto accident victims “would hiave come through Edgar Jaimes.”14 In other words, if
Walker or his team needed money to induce the auto accident victims, he would talk
to Jaimes and seek hios approval.15
Walker testlified that Pohl would send him leads on the auto accident cases
because he kniew that Walker and Ladner “could go out and get those type of
6 Exhibit U3-B, 2016 Deposition of Scott Walker, p. 73:21-25; 74:1-25; 75-1-15.
7 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 199.
8 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 77-78.
9 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 196-197.
10 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 142-143.
11 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
12 Exhibit 4, October 2018 Deposition of Edgar Jaimes, p. 28.
13 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
14 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 201-203.
15 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 203-204, 207-208.
cases.”16 Either Ladner would go to solicit the clients, or they would send
Magdalena Santana (“Magdalena”), her brother Florian “Jay” Santana (“Florian”),
or one of their other employees.17 Walker testified that these folks working for
Precision Marketing were soliciting the victims “on behalf of Mr. Pokhl.”18 Walker
and his team solicited more than 50 auto accident cases for PohlC.19 Walker always
kept Pohl informed on what he and his team were doing.20
Walker testified that the runners who solicited tihe clients would get “a
bonus” if they got the client to sign a contract.21 Walker testified that he and his
team would receive the bonus from either Helping Hands Financing at the direction
of Jaimes or Pohl and his law firm.22 The payment to the runner would come from
Precision Marketing, but Walker would thlen “turn in an amount that [they] spent
during the that week … to Mr. PohlM’s office.”23 Either Pohl or Jaimes would then
reimburse Precision Marketing.24 Financials obtained from Precision Marketing
evidence this fact, reflecting iincoming transfers from Pohl’s law firm or Helping
Hands Financing with payments made to various runners.25 At times, Pohl gave
direction as to some oof the bonuses or fees that Precision Marketing paid to the
runners.26 And altlhough Walker did not get “permission, per se” from Pohl to make
16 Exhibit 3-nA, 2018 Deposition of Scott Walker, pp. 146-148.
17 ExhibitU 3-A, 2018 Deposition of Scott Walker, pp. 146-148.
18 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 152.
19 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 148-151.
20 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 153.
21 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 158-160, 556.
22 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 556.
23 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160.
24 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160-161, 556.
25 Exhibit 5, Precision Marketing Group Financials.
26 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 161-162.
the specific payments to the runners, he “would tell [Pohl] after the fact what
[Precision Marketing] had spent that week.”27
One runner, Magdalena Santana, exposes the barratry scheme
despite being paid $50,000 by Pohl to keep quiet.
Magdalena personally solicited two of the plaintiffs who woulde ultimately sue
Pohl for barratry: Heraclite Bikumbu (and his minor children) and Raymond Butts.
In her September 24, 2016 affidavit, Magdalena testified tthat Pohl sent her on
“dozens and dozens of car wreck cases all over the country.”28 Pohl would email
Magdalena the link of news coverage depicting thee accident and ask her “to go to
the victim or the victim’s family and try to getu them to sign up with him.”29 Pohl
offered to give Magdalena “$5,000 per case that [she] signed, plus a percentage of
his attorney’s fees.”30 Magdalena was aadvised by Pohl to “be persistent even if the
family ... rejected [her].”31 Magdalena was instructed by Pohl to “approach the
victims and their families whilee they were vulnerable, in the emergency room, their
hospital rooms or at the
ffunerals.”32 Pohl told Santana that minorities “were
especially vulnerable since they tended not to know that the law prohibited
barratry.”33 According to Pohl, they “were easier to sign up.”34
27 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 162.
28 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
29 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
30 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 18.
31 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
32 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
33 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19 (emphasis added).
34 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
Pohl would give Magdalena “money to give to the victims or their families”
but “only if they agreed to sign a Pohl representation contract.”35 Pohl advised
Santana that the money was a “foot in the door” but instructed Santana not to
mention that she was there on behalf of a lawyer “until after they agreekd to take the
money.”36 “If the client agreed to hire Pohl, then [Magdalena] wasC to have the client
sign a ‘Helping Hands’ contract.”37 Pohl would then give Magdalena the money to
pay the client “from his own Helping Hands companiy.”38 When Magdalena
questioned this, Pohl told her that it “was illegal for him to pay [her] directly for
cases, and that’s why the money had to go through some company.”39
Pohl may take the position that Magdalena retracted this affidavit through a
subsequent December 19, 2017 affidavitl. However, this purported retraction is
likely the result of Pohl paying MagdMalena to provide testimony, which is something
they have done in the past.40 In fact, Jaimes testified that on one occasion Pohl sent
him to Florida with a case ifilled with $50,000 cash to give to Magdalena in
exchange for her signing an statement for him.41 Jaimes testified that Magdalena
would only get the omoney if she signed the statement.42 Jaimes testified that
Magdalena signedl the signed the statement and got the money.43
35 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
36 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
37 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
38 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
39 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 23.
40 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
41 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
42 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
43 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
Magdalena went into more detail about this in her deposition. Magdalena
testified that that the statement was an agreement for her to keep quiet and not
charge Pohl with any wrongdoing or criminal or unethical conduct.44 Magdalena
testified that Pohl paid her $50,000 cash to sign this statementk, which was
delivered by Jaimes in three bags marked “trick or treat.”45 MagCdalena reiterated
that if she didn’t sign the gag agreement, she wouldn’t get the money from Pohl.46
Magdalena attempted to indicate on the agreement that sihe was receiving $50,000
to keep quiet, but Jaimes told her Pohl demanded that she state she only received
nominal consideration, like $100.47 Magdalena did not write the statement but “just
signed it”48 because she felt she was “forced to sign” it49 while “under duress.”50
Magdalena’s December 19, 2017 affidavit lis likely the result of similar duress and
purchased testimony. M
Regardless, nowhere in Magdalena’s December 19th affidavit does she state
the testimony in her former aiffidavit is untrue, only that she does not “agree with”
it and that the affidavit is not “reliable.”51 Although Magdalena states in her
December 19th affidavoit that her prior affidavit was drafted by a lawyer, Magdalena
testified in her deplosition that the September 24th affidavit was created voluntarily
with her own “itestimony.”52 Magdalena testified that, unlike with Pohl, she was not
44 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
45 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 122-127.
46 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 131.
47 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 346.
48 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
49 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 155.
50 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 309.
51 Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
52 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 270-271.
10
paid and had never been promised any money to provide the testimony in the
September 24th affidavit.53 Magdalena reiterated to counsel for Pohl, Billy
Shepherd, that she was there in her deposition to tell the truth and would not be
bullied by his questioning or his efforts to confuse her.54 k
Regardless, Magdalena confirmed most of the facts set foCrth in her initial
affidavit in her deposition55 and this deposition testimony was not retracted.56
There, Magdalena confirmed that she was hired by Pohil to solicit auto accident
cases, the first one being an accident where a woman and her unborn child lost their
lives.57 Magdalena was instructed by Walker, who was instructed by Pohl, to
personally visit the mother of the deceased and sign her up to sue the tire
manufacturer and, if she succeeded, Pohl wlould pay her $5,000.58 Magdalena visited
the funeral of the deceased and goMt the family to feel comfortable with her.59
Although the mother was grieving, Pohl told Magdalena: “take no prisoners, this is
a cut throat business, you geit in there and you do whatever it takes to get this
client.”60 The solicitation was successful after Pohl gave Magdalena $2,000 to “give
to the client to convinoce her into signing over with the firm.”61
53 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 276-278.
54 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 176.
55 See, generally, Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
56 See Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
57 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37.
58 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37-38.
59 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37-38.
60 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 39.
61 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 40.
11
After that, Magdalena attempted to solicit about “forty to fifty” auto accident
cases for Pohl in multiple states from Texas to Florida.62 About fifteen to eighteen
cases were actually signed up.63 Just like Walker, Magdalena testified that Pohl
would send her a web link with information about the accident ankd where the
potential client may be found and she would hit the ground runnCing.64 Magdalena
solicited clients for Pohl in “hospitals, funeral homes, you name it.”65 Pohl
instructed Magdalena to target minorities because they iare “unrecognized to the
law” and “they don’t know the law.”66 In an effort to circumvent the law, Magdalena
was instructed to have the client call Pohl so that it would look like the client made
the initial contact with the lawyer.67 Magdalena would offer the clients money to
sign with Pohl but had explicit instructionls from Pohl: “If they don't sign they don't
get no money.”68 Magdalena reiteraMted, “no signature, no money.”69 Magdalena
testified in her deposition that she was paid $2,500 for every client she signed up
and was “promised a percentaige in the back end” by Pohl and Walker.70 Pohl told
Magdalena that the money would have to go through Walker’s company Precision
Marketing because it o“was illegal for him to give [her] the money directly.”71
After solicitling several cases, Magdalena asked Pohl to give her the money
she was “owedi” so she could “leave for good” to the Middle East to care for her
62 ExhibitU 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 43.
63 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 46-47.
64 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 54.
65 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
66 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
67 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 60.
68 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 42.
69 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 66.
70 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 47.
71 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 72.
12
father.72 Magdalena asked Pohl to “think it thru” if he “really wanted to take the
bad route,” stating “I will go to the attorney General Texas bar ten [sic] bar Florida
bar I’m not giving up … I want my money and if I have to move mountains with the
justice dept so be it.”73 k
Magdalena sent another email to Ladner that was forwardCed by Walker and
addressed to Pohl, stating she was owed money on the cases she had solicited for
them: i
74
When Pohl did not respond, Magdalena completed a questionnaire on Pohl’s law
firm website, stiating “the FBI” wanted to know the “link between helping hands
and Scott Woalker [and] Michael [P]ohl” and claiming that Pohl owed her “monies for
72 Exhibit 10, April 21, 2014 Email.
73 Exhibit 10, April 21, 2014 Email.
74 Exhibit 11, May 7, 2014 Email Exchange.
13
securing victims of accident for him” and questioning how she is to “collect monies
owed with Out contracting [sic] The Texas bar[.]”75
It was these threats that caused Pohl to agree to pay Magdalena, but only if
she promised to keep quiet.76 Magdalena received the $50,000 cash bukt didn’t keep
quiet. On September 1, 2014. Magdalena sent another email toC Pohl through his
website requesting more money:
Michael now I have on top of reporters calling mei I had a call from
attorney general. The money given to me by Edgar [Jaimes] was to
keep my mouth shut. Not what was owed that’s what happens when
you ruined my life. If I get supena a [sic] don’et know what will happen.
Send me another 50 pls.77
Magdalena continued running cases for Pohl and sending him emails requesting
payment on the cases she solicited.78 l
Another runner, Kenneth TaMlley, exposes the barratry scheme.
Another runner was “Coach” Kenneth Talley (“Talley”), solicited over 800 BP
cases and 20 auto accident caises for Pohl,79 including several families who would
ultimately sue Pohl for barratry: Mark Cheatham, Sr., Mark Cheatham, Jr., Luella
Miller, Mae Berry ando Arthur Speck.
Talley testiflied that he was first hired in relation to BP claims to find “folks
that lost moneiy due to the oil spill” and “sign them up” and “get a fee for it.”80 Talley
went to work “knocking on doors” looking for potential claimants for Pohl and his
75 Exhibit 12, May 20, 2014 Contact Form.
76 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
77 Exhibit 13, September 1, 2014 Contact Form.
78 Exhibit 14, February 5, 2015 Email.
79 Exhibit 15, Deposition of Kenneth Talley, p. 87.
80 Exhibit 15, Deposition of Kenneth Talley, p. 10.
14
partner in the BP litigation, Jimmy Williamson.81 Talley solicited and signed up for
Pohl and Williamson more than 800 BP claims.82 Talley was paid between $75 and
$350 for each BP client he signed up.83
Talley eventually switched to soliciting auto accident victimsk, “calling on
folks that had bad accidents.” 84 Talley recalls that the first client Che solicited was in
“the hospital in intensive care.”85 Talley carried with him up to $1,000 to pay the
accident victims to “help them with problems” but onlyi once they “were signed
up.”86 Talley kept a list of all the auto accident cases he solicited, including cases
involving the Cheathams, Berry and Speck.87 Talley followed a checklist that
instructed him to, among other things, bring flowers to the initial hospital visit (but
to spend no more than $50) and to offer tlhe victims money but to “make sure the
funding schedule” from Helping HaMnds Financing “is filled out properly before
releasing any cash.”88 Talley would advise the victims that he had attorneys who
could help them, and that one iof those attorneys was Pohl.89 Talley was paid a fee of
$1,400 plus his expenses by Pohl, through Walker, for any auto accident case he
solicited.90 On some coases, Talley was to receive a portion of the fee paid to Helping
Hands out of Pohll’s attorney’s fees.91 Talley discussed with Pohl the “percentage of
81 Exhibit 15n, Deposition of Kenneth Talley, p. 10-11.
82 ExhibitU 15, Deposition of Kenneth Talley, p. 11.
83 Exhibit 15, Deposition of Kenneth Talley, p. 19.
84 Exhibit 15, Deposition of Kenneth Talley, p. 37.
85 Exhibit 15, Deposition of Kenneth Talley, p. 37.
86 Exhibit 15, Deposition of Kenneth Talley, p. 38.
87 Exhibit 15, Deposition of Kenneth Talley, p. 43-44; Exhibit 15-A, Talley Deposition Exhibit 165.
88 Exhibit 15-B, Talley Deposition Exhibit 168.
89 Exhibit 15, Deposition of Kenneth Talley, p. 47.
90 Exhibit 15, Deposition of Kenneth Talley, p. 47-48.
91 Exhibit 15, Deposition of Kenneth Talley, p. 97-98; 102.
15
settlements” he was to receive from the cases he solicited and Pohl told Talley that
the money was being placed in an “escrow account” for him.92 When asked whether
Pohl knew he was getting paid to “contact vehicle accident victims,” Talley
responded, “the money was coming from Edgar [Jaimes] who workekd for him.”93
Although his paycheck was from Walker’s company, “the fundinCg came by way of
Edgar [Jaimes].”94
Personally soliciting clients for Pohl became so freiquent that Talley began
carrying with him blank Pohl contracts to each solicitation.95 Talley would refer the
potential clients to “attorneys out of Houston that were the best at handling these
types of accidents” and would offer to give the potential clients “money up front.”96
Talley would have no “reason not to lmention Mr. Pohl’s name” during the
solicitation.97 Talley would never recoMmmend any lawyers other than Pohl.98 Talley
would not tell the clients that he was getting paid to solicit them.99 Talley would
present a Pohl contract to thei potential client.100 If the client did not agree to hire
Pohl, the clients would not get the money.101 Talley testified that Jaimes and
Donalda (the operatoros of Helping Hands Financing) would send him the money.102
92 Exhibit 15n, Deposition of Kenneth Talley, p. 99.
93 ExhibitU 15, Deposition of Kenneth Talley, p. 100.
94 Exhibit 15, Deposition of Kenneth Talley, p. 100.
95 Exhibit 15, Deposition of Kenneth Talley, p. 49.
96 Exhibit 15, Deposition of Kenneth Talley, p. 54.
97 Exhibit 15, Deposition of Kenneth Talley, p. 108.
98 Exhibit 15, Deposition of Kenneth Talley, p. 59.
99 Exhibit 15, Deposition of Kenneth Talley, p. 58; 109.
100 Exhibit 15, Deposition of Kenneth Talley, p. 89.
101 Exhibit 15, Deposition of Kenneth Talley, p. 58-59.
102 Exhibit 15, Deposition of Kenneth Talley, p. 86.
16
Both Talley and Pohl knew that what they were doing was illegal. In one
instance, Talley was “run out of town” while soliciting clients for Pohl.103 Talley
testified during the attempted solicitation he was told by a “lawyer or policeman”
that “it was against the law what [he] was doing.”104 Talley mentionedk this to Pohl
and Pohl told him “you’ve just got to leave...some people you can’t Chelp.”105
Pohl illegally solicited several clients who would later hire
Kassab to sue Pohl for barratry. t
One of the victims solicited by Talley at the instruction of Pohl was Mae
Berry. Berry is the mother of Johnny Berry, a boy weho died in a tragic auto accident
on or about August 17, 2014. 106 Within days ouf the accident, Berry was visited at
her home by Talley.107 The visit was unsolicited.108 Talley told Berry that he was
with “Helping Hands” and brought hera a gift basket.109 Talley suggested that she
may have a lawsuit against the make of the vehicle that Johnny was driving and
told her he knew an attorney ouet of Texas named Pohl who could represent her.110
Berry had never spoken wifth Talley or Pohl prior to this date and she did not
request Talley to visit with her about the accident or any potential lawsuit.111 Talley
could see that Berry was morning over the loss of Johnny and offered her $500 to
pay for her son’si funeral, but only if she agreed to hire Pohl.112 In need of the money
103 ExhibiUt 15, Deposition of Kenneth Talley, p. 84.
104 Exhibit 15, Deposition of Kenneth Talley, p. 84.
105 Exhibit 15, Deposition of Kenneth Talley, p. 85.
106 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
107 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
108 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
109 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
110 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
111 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
112 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
17
to burry Johnny, Berry agreed to hire Pohl.113 Walker sent Pohl an email on August
21, 2014 forwarding the Helping Hands Financing documents and stating, “Coach
Ken will be getting the Pohl contract signed this afternoon.”114 However, Pohl never
ended up pursuing Berry’s case.115 k
Talley himself testified to this solicitation. Talley admits to Csoliciting Berry at
her home just three days after the accident that took Johnny’s life.116 Talley testifies
that he told Berry that Helping Hands “had attorneys out iof Houston that were the
best at handling these types of accidents” and that he gave Berry $500 “up front.”117
Talley solicited Berry after he got a call from Ladner who told him that a “kid was
killed and it should be a good case” and that “we needed to go check it out.”118 Talley
testified that he was paid $250 to solicit Blerry as a client and was also reimbursed
from Helping Hands the $500 he paMid to Berry.119 Talley never told Berry he was
getting paid to make contact with her.120 Berry did not know that the solicitation
was wrongful or caused her leigal injury until sometime in 2017 when she received
an advertisement from the undersigned counsel notifying her of her potential
injury.121 o
Talley also lsolicited Arthur and Lisa Speck to hire Pohl. The Specks are the
parents of is Riebecca Speck, an eighteen year old who died in July of 2010 as the
113 ExhibiUt 16, September 17, 2018 Declaration of Mae Berry.
114 Exhibit 17, August 21, 2014 Email re Mae Berry.
115 Exhibit 15, Deposition of Kenneth Talley, p. 56.
116 Exhibit 15, Deposition of Kenneth Talley, p. 51-53, 55 (“Q. Okay. So you approached her three
days after the accident. A. Yes, ma’am.”).
117 Exhibit 15, Deposition of Kenneth Talley, p. 54.
118 Exhibit 15, Deposition of Kenneth Talley, p. 55.
119 Exhibit 15, Deposition of Kenneth Talley, p. 57-58; see also Exhibit 5, Precision Financials.
120 Exhibit 15, Deposition of Kenneth Talley, p. 58.
121 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
18
result of a tragic auto accident.122 Talley testified that he was notified about this
case by Ladner who told him “there’s a case in the backyard he wanted [him] to go
pursue.”123 Talley found the Specks’ address and he “went and knocked on their
door.”124 The visit by Talley was unsolicited.125 The Specks answeredk, and Talley
told them he was with Helping Hands and offered them $1,000 cCash if they would
hire Pohl to pursue their claim.126 Talley testified that he “didn’t have any reason
not to mention Mr. Pohl’s name” at this visit because he “kinew he was the attorney
handling things for us.”127 The Specks agreed, and signed two contracts with Pohl’s
law firm and funding agreements with Helping Hands.128 Sometime in August of
2014, the Specks received a letter from Pohl stating he would not pursue the
claims.129 Talley never told the Specks thalt anyone was paying him to make contact
with them.130 M
Alphonse Bethley and Sandra Johnson are the biological parents of Ashley
Bethley.131 Ahsley was killed iwhen she lost control of her vehicle and it struck a
utility pole.132 Ashley was only twenty-four years old.133 In July of 2014, Ladner
personally solicited thoe Bethleys at their home to hire Pohl.134 The visit by Ladner
122 Exhibit 18, Sepcteimber 14, 2018 Declaration of Arthur Speck.
123 Exhibit 15, D f eiposition of Kenneth Talley, p. 105.
124 Exhibit 15,o Deposition of Kenneth Talley, p. 105.
125 Exhibit 1n8, September 14, 2018 Declaration of Arthur Speck.
126 ExhibiUt 15, Deposition of Kenneth Talley, p. 107-108.
127 Exhibit 15, Deposition of Kenneth Talley, p. 108.
128 Exhibit 18, September 14, 2018 Declaration of Arthur Speck, at Exhibit 18-A, Speck Contracts
and Exhibit 18-B, Speck Funding Agreement.
129 Exhibit 18, September 14, 2018 Declaration of Arthur Speck,
130 Exhibit 15, Deposition of Kenneth Talley, p. 109.
131 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
132 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
133 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
134 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
19
was unsolicited.135 The Bethleys did not request Ladner to visit them, nor did they
seek out the legal services of Pohl.136 Ladner offered them money if they would hire
Pohl to pursue their claims.137 The Bethleys agreed, and signed a blank contract
with Pohl and his law firm that was provided to them by Ladner.138 kIn exchange,
Ladner and Walker agreed to share $5,000 for every $1,000,00C0 of the received
settlement from the Bethleys’ lawsuit.139 Ladner emailed Pohl and Jaimes facts
concerning these newly solicited clients and also stated ithat he spoke with the
mother of the passenger of the vehicle “and will follow up on signing that family.”140
Sometime in August of 2015, however, the Bethleys received a letter from
Pohl stating he would not be pursuing their claim.141 Years later, in 2017, the
Bethleys received an advertisement froml the undersigned counsel notifying them
the way they were contacted by LadMner and solicited to hire Pohl may have been
wrongful and may have caused them legal injury.142 Prior to receiving this
advertisement, the Bethleys diid not know that the way they were contacted was
wrongful, or that it caused them legal injury or harm.143
Heraclite Bikuombu and his two minor children Plovyt and David were also
victims of Pohl’s illlegal solicitation scheme. On or about July 6, 2013, Bikumbu and
his children wiere traveling with relatives from Missouri to Iowa when the rear tire
135 ExhibiUt 19, September 17, 2018 Declaration of Alphonse Bethley.
136 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
137 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
138 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley, and Exhibit 19-A, Bethley Pohl
Contract.
139 Exhibit 20, Bethley Distribution Agreement.
140 Exhibit 21, July 23, 2014 Email re Ashley Bethley.
141 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
142 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
143 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
20
on their van blew out, causing the van to enter the median and roll several times.144
Bikumbu and his children were hospitalized with serious injuries.145 Their relative,
Simon Kumeso, was killed in the accident.146
Just days after the accident, Magdalena and her brother Floriank (also known
as Jay) showed up at the hospital room to personally solicit CBikumbu and his
children to hire Pohl.147 The Santanas brought Bikumbu and his children gifts,
including clothes, and stated they were with Helping Handis and worked for Pohl.148
The Santanas told Bikumbu that he had a viable lawsuit against the tire
manufacturer and offered Bikumbu $1,000 if he would sign a contract with Pohl to
represent him and his children in the claim.149 The Santanas told Bikumbu that he
would get the money only if he signed al contract of representation.150 Bikumbu
agreed and signed a proposed contracMt with Pohl.151
A friend of the relative who died, Nsalambi Kkongolo, emailed Pohl days
after the accident confirming tihe solicitation by the Santanas:
I am helping a family whose father (Mr. Simon Kumeso) was killed in
a car accident. I was then contacted my [sic] Mr. F. Jay Santana and
Maggie Santanoa from St Petersburg (FL) of Tower 7 Consulting Group.
They came to Jefferson City, Missouri and we did some paperwork
stating thatl you will take the case and they also give $3000 to the wife
of the decieased as financial aid to help with funeral (at 18% interest). I
144 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
145 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
146 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
147 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
148 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
149 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
150 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
151 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu and Exhibit 22-A, Bikumbu-
Pohl Contract.
21
would like to make sure that Santana work with you, you will take the
case and the papers the wife of the deceased signed are legitimate.152
Pohl responded, confirming that he had been asked to represent the “victims of the
tragic tire failure” and vouched for the Santanas, stating “Helping Hands and Jay
Santana provide valuable assistance to families involved in ethese terrible
accidents.”153 
Magdalena testified to the solicitation of Bikumbu atnd his children in her
deposition, stating that she and her brother where there on behalf of Pohl and his
law firm: e
A. You were asking me about when I vuisited clients in the hospital.
This was an example of one of the clients that I had visited in
the hospital. They had lost -- I think the husband died in a tire
blow-out, roll-over. There werle several kids in the hospital and a
gentleman and a lady. Anad this was the e-mail I -- the point of
contact was a professorM from the university that was going to
translate from English to French to the client. And I guess he
was reaching out to either Michael Pohl's firm or to -- yeah, to
Mr. Pohl directly. Hee wanted to make sure that we were who we
said we were basiically.
Q. And this e-mail references Jay. Is that your brother?
A. Yes, it iso.
Q. Did hle go with you to sign up that client?
A. Yies, he did.
o ...
Q. Okay. And in it Mr. Pohl says, “I can vouch completely for Jay
and Maggie.” Do you know why he would be vouching for you?
152 Exhibit 23, July 11, 2013 Email.
153 Exhibit 24, July 11, 2013 Response Email.
22
A. Because I'm representing him. Because I was there on his
behalf.154
Florian also testified that he provided “marketing services” for auto accident
cases,155 and specifically testifies to soliciting the Bikumbu family just days or
weeks after the accident in Missouri occurred.156 The Santanas weree paid “bonuses”
for soliciting the “Kumeso” case.157 
Raymond Butts was the victim of a tragic automobilte accident on or about
August 7, 2013 in Clear Spring, Maryland, which claimed the life of Brenda Adams,
his fiancée. Just days after the accident, and while ein the hospital recovering from
his injuries and grieving the loss of his fiancé, Buutts received an unexpected phone
call from Magdalena, who said she was working on behalf of Pohl. Magdalena
testified about this solicitation in haer deposition, calling it “a crazy one.”158
Magdalena testified that while she and Walker were “soliciting for Michael Pohl for
the client to sign,” Butts’ familey got “really irate and they called the security on
[them] at the hospital.”15O9 Tfhe family told security that “these people are here
soliciting for an attorney.”160 Magdalena’s persistence eventually paid off and Butts
agreed to hire Pohl, signing two contracts with his law firm.161 Magdalena also had
Butts sign a funiding agreement with Helping Hands Financing to obtain the money
154 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
155 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 63-67.
156 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 66-70.
157 Exhibit 5, Precision Financials.
158 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 55.
159 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 55.
160 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 56.
161 Exhibit 26, Butts-Pohl Contracts.
23
Magdalena promised to pay Butts if he hired Pohl.162 And of course, Magdalena had
Butts execute the “Attorney Acknowledgement” listing Pohl as his lawyer and
authorizing Pohl to pay back Helping Hands Financing from any settlement.163
Magdalena was paid for this unlawful solicitation. Ultimately, howevekr, Pohl never
countersigned the contracts, and the claims were not pursued. C
On or about Saturday, February 15, 2014, LaDonna Cheatham and her
children, Destiny and Markus, were tragically killed after ai tire on the Kia Sorrento
driven by LaDonna failed and caused the vehicle to cross the median and collide
with an oncoming school bus.164 LaDonna’s other son, Mark Cheatham, Jr. survived
the crash.165 Mark Cheatham, Sr. is the ex-husband of LaDonna, biological father to
Markus and Mark, Jr., and father-figulre to Destiny.166 Luella Miller is the
surviving mother to LaDonna.167 LaMDonna was only thirty-six years old, Markus
was sixteen and Destiny was only six.168
Less than a week afteir the accident, Pohl and his firm entered into an
agreement with Walker, Ladner and Precision to provide “marketing services” – i.e.
“barratry” – relating oto the Cheatham accident wherein Pohl agreed to pay these
non-lawyers an unlethical percentage of his attorney’s fees.169 Talley contracted with
Precision to aiid in providing these “marketing services” to Cheatham and Miller in
162 Exhibit 27, Butts Funding Agreement.
163 Exhibit 28, Butts Attorney Acknowledgement.
164 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
165 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
166 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
167 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
168 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
169 Exhibit 30, Cheatham Retention Services Agreement.
24
exchange for $10,000 for every $1,000,000 received in a settlement.170 Talley
testified that was paid a fee by Pohl, through Precision, to personally solicit and
sign up the Cheatham family.171 And, Talley was successful.
Talley testified in his deposition that days after the accident,k he did some
“snooping” and located the residence of Cheatham, Sr.172 TallCey went out and
“knocked on the door” and Cheatham, Sr. answered.173 Talley told Cheatham, Sr.
and Miller that he was with “Helping Hands” and could heilp them with burial costs
and “getting settlements.”174 Talley told Cheatham, Sr. that he was “associated with
attorneys out of Houston that were really experienced with multi-types of vehicle
accidents and that [they] could do the best job of getting him a settlement.”175
Cheatham, Sr. and Miller signed the papelrwork, including the contract with Pohl,
right there.176 Talley testified that heM gave the Cheatham family $24,000 to sign up
with the lawyers.177 Either Pohl or Ammons brought the $24,000 and gave it to the
family,178 $18,000 of which wient to Cheatham, Sr., and all of which was paid by
Helping Hands Financing.179
Talley’s testimoony is consistent with that of Cheatham, Sr. who testifies that,
on or about Februlary 19, 2014, just days after the accident, he and Miller were
personally soliicited by Talley at his home in Schriever, Louisiana and urged to hire
170 ExhibiUt 31, Cheatham Distribution Agreement.
171 Exhibit 15, Deposition of Kenneth Talley, p. 60-61.
172 Exhibit 15, Deposition of Kenneth Talley, p. 64-65.
173 Exhibit 15, Deposition of Kenneth Talley, p. 65.
174 Exhibit 15, Deposition of Kenneth Talley, p. 64.
175 Exhibit 15, Deposition of Kenneth Talley, p. 65-66.
176 Exhibit 15, Deposition of Kenneth Talley, p. 66.
177 Exhibit 15, Deposition of Kenneth Talley, p. 74.
178 Exhibit 15, Deposition of Kenneth Talley, p. 77.
179 Exhibit 32, Helping Hands Check to Mark Cheatham.
25
Pohl and Ammons in a potential lawsuit against Kia Motors.180 Neither Cheatham,
Sr. nor Miller had ever met Talley before and did not request him to visit with them
about the accident.181 Cheatham, Sr. and Miller did not have a previous attorney-
client relationship with Pohl or Ammons at the time they were personkally solicited
by Talley.182 C
At the visit, Talley encouraged Cheatham, Sr. and Miller to sign an
agreement with a Helping Hands to investigate a potenitial lawsuit against Kia
Motors in exchange for $400 per hour or 40% of any recovery in their case.183 Talley
offered Cheatham, Sr. $2,000 if he would sign the agreement and hire Helping
Hands to investigate the potential lawsuit and in turn the lawyers.184 Talley
encouraged Cheatham, Sr. to sign the agrleement by stating that the money could
defray funeral costs and the investigMation would reveal a viable claim against Kia
Motors.185 Talley told Miller and Cheatham, Sr. that if there was a viable case, they
could hire Pohl and Ammonsi to represent them in the lawsuit.186 Cheatham, Sr.
agreed and signed the investigation agreement with Helping Hands.187 To get the
money, Cheatham, Sro. was required to sign several documents with Helping Hands
Financing, Donaldla Pohl’s company.188
180 Exhibit 30, Cheatham Retention Services Agreement.
181 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
182 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp. 1-2.
183 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, and Cheatham Ex. 1.
184 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
185 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
186 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
187 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 2.
188 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
26
Days later, on or about February 21, 2014, Pohl personally visited with
Cheatham, Sr. and Miller and encouraged them to sign contingency fee agreements
with his firm and also confirmed that he would associate Ammons on the case.189
Pohl said that Ammons was an expert on auto accident and auto dekfect cases.190
Pohl promised to pay Cheatham, Sr. $18,000 if he agreed to hire CPohl and Ammons
in the auto accident case.191 Cheatham, Sr. and Miller agreed and signed
contingency fee contracts for legal services with Pohil on this same day.192
Cheatham, Sr. signed the contract for legal services individually and on behalf of
Destiny, Markus, and Mark, Jr., who were all minors.193 The $18,000 was paid to
Cheatham, Sr. in exchange via a check written from Donalda Pohl’s company
Helping Hands Financing.194 Cheathaml, Sr. and Miller later signed joint
representation agreements with PohMl and Ammons.195 Cheatham, Sr. testified that
he was offered and received an additional $500 to sign this joint agreement.196
Lacy Reese lost her huisband David Reese on or about July 2, 2014 in a
vehicle accident that occurred outside of Anson, Texas.197 Reese buried her husband
on July 7, 2014.198 Thoat same day, Ladner personally visited Reese’s home when she
was not there andl left a business card stating he was the “Associate Director” of
189 Exhibit 29, A f ffiidavit of Mark Cheatham, Sr., p. 2.
190 Exhibit 29,o Affidavit of Mark Cheatham, Sr., p. 2.
191 Exhibit 2n9, Affidavit of Mark Cheatham, Sr., p. 2.
192 ExhibiUt 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3; Exhibit 33, Miller-Pohl
Agreement.
193 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3.
194 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2; Exhibit 32, Helping Hands Check to Mark
Cheatham.
195 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp. 2-3, at Cheatham Ex. 5; Exhibit 34, Ammons-
Miller Agreement.
196 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp.2-3.
197 Exhibit 35, Declaration of Lacy Reese, p. 1.
198 Exhibit 35, Declaration of Lacy Reese, p. 1.
27
Helping Hands.199 The next day, July 8, 2014, Ladner again visited Reese’s home in
Paris, Arkansas and met with Reese and her mother, Karen Fairbanks.200 Ladner
told Reese and her mother that he was with a company called “Helping Hands” that
could investigate a potential lawsuit against the vehicle manufacturker or the tire
company and sue them for the death of David.201 Ladner told ReeCse that if it looked
like she had a lawsuit, Pohl and his co-counsel, Rob Ammons, could handle the
case.202 Reese’s mother wrote down the names of these ilawyers on the back of
Ladner’s business card during this meeting.203 Ladner offered Reese money if she
would hire Helping Hands Group and these lawyers, telling her the money could
help with the expenses relating to David’s death.204 Reese had never met Ladner,
Pohl or Ammons, or requested them tol visit with her about the accident or
requested them to contact her.205 M
Although Reese was grieving over the loss of her husband, Ladner pressured
Reese to sign the papers he ihad brought with him that day and she did.206 The
agreement that Ladner had Reese sign provided Helping Hands Group $400 per
hour or 40% of any reocovery in her case.207 To get the money, Reese was required to
199 Exhibit 35, Declaration of Lacy Reese, p. 1, and Reese Ex. 1.
200 Exhibit 35, Declaration of Lacy Reese, p. 1.
201 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
202 Exhibit 35, Declaration of Lacy Reese, p. 1.
203 Exhibit 35, Declaration of Lacy Reese, at Reese Ex. 1.
204 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
205 Exhibit 35, Declaration of Lacy Reese, p. 2.
206 Exhibit 35, Declaration of Lacy Reese, p. 2.
207 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 2.
28
sign several agreements with Helping Hands Financing, Donalda Pohl’s
company.208 Reese was told she would get the money after a suit had been filed.209
On July 25, 2014, unbeknownst to Reese, Pohl and his firm entered into a
“Retention of Services Agreement” with Walker, Ladner and Helping kHands Group
to provide “marketing services” relating to the death of DavidC.210 Among other
things, Ladner was to “conduct initial interview” of the victims and “maintain
contact with the victims and their family.”211 In exchanige, Pohl agreed to pay
Ladner and Helping Hands Group fees not to exceed 30% of his own attorney’s
fees.212 Walker and Precision Marketing then contracted with Ladner to provide
“public relations services pertaining to the cases of David Reese” in exchange for
$5,000 for every $1,000,000 received frolm any settlement.213 The solicitation of
Reese occurred pursuant to these agrMeements.
On July 18, 2014, Ladner emailed Walker and Jaimes, the manager of
Helping Hands Financing anid Pohl’s paralegal, concerning the “Reese Case.”214
Ladner described the accident that occurred on July 2nd – less than three weeks
prior.215 On or about Aougust 16, 2014, Reese received an email from Ladner about a
contract with Pohll.216 Ladner told Reese that Pohl’s contract would “take the place”
of the one thati Reese had with Helping Hands Group and requested her to send the
208 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 3.
209 Exhibit 35, Declaration of Lacy Reese, p. 2.
210 Exhibit 36, Reese Retention Services Agreement.
211 Exhibit 36, Reese Retention Services Agreement.
212 Exhibit 36, Reese Retention Services Agreement.
213 Exhibit 37, Reese Distribution Agreement.
214 Exhibit 38, July 18, 2014 Email re Reese Case.
215 Exhibit 38, July 18, 2014 Email re Reese Case.
216 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
29
contract directly to Pohl’s office.217 Reese received an email two days later from
Walker forwarding her Pohl’s contract.218 Reese signed the contract and sent it to
Pohl.219
Ladner does not dispute this. Ladner testified that he got an alkert about the
death of Reese’s husband and flew to “nowhere Arkansas” withinC seven days of the
accident and “knocked on the door” to solicit her.220 Ladner solicited Reese on behalf
of Precision and “to get paid” by Pohl.221 Ladner referred ithe case to Pohl and got
paid a “bonus” of $2,500.222 Ladner brought with him Helping Hands Financing
forms he obtained from Jaimes.223 Although Ladner could not recall whether he
offered Reese money to sign up with Pohl, it was his practice to do so and the money
came from Jaimes and Helping Hands Finlancing, Donalda’s company.224 And Pohl
acknowledged that Ladener “was opeMrating under [his] direction to … investigate[]
the incident as part of an initial case evaluation process.”225 In other words, Ladner
was soliciting Reese and evaluiating her potential claim at the direction of Pohl.
Pohl is sued by his Mississippi runners who expose the illegal
and unethical barratry scheme and Pohl settles that litigation
after unsucceossfully seeking to have it dismissed based on the
illegality of his agreements.
On Octobier 8, 2014, Walker and Ladner and their company Precision sued
Pohl and hois law firm for breach of contract and fraud, among other claims (the
217 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
218 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 5.
219 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 6.
220 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 346-351.
221 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347.
222 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347, 358-359
223 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 349-350.
224 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 351-354.
225 Exhibit 40, January 19, 2016 Letter.
30
“Mississippi Litigation”).226 There, Walker and Ladner alleged they had a joint
venture with Pohl to sign up clients with economic loss claims stemming from the
BP Deepwater Horizon oil spill.227 See Walker v. Williamson, No. 1:14cv381-KS-
JCG, 2016 U.S. Dist. LEXIS 61185, at *5-6 (S.D. Miss. May 9, 201k6). They also
alleged that they had “conducted marketing efforts to obtain persoCnal injury clients”
for Pohl228 and that Pohl received attorney’s fees from the cases they signed up, but
that “Pohl did not pay any of the agreed share of hiis fees to Walker [and]
Ladner.”229
More specifically, Walker, Ladner and Precision (“the Runners”) alleged that
Pohl contracted with them to provide “public relations and marketing services” to
potential clients impacted by the Deepwlater Horizon oil spill in exchange for “a
percentage of the attorney fees for thMe claims obtained from their efforts, along with
expenses and a flat fee.” Walker, 2016 U.S. Dist. LEXIS 61185, at *6-7. The
Runners also alleged that thiey contracted with Pohl “to provide marketing and
public relations services in connection with claims for automobile rollover
accidents.” Walker v. oWilliamson, No. 1:14-CV-381-KS-MTP, 2017 U.S. Dist. LEXIS
59031, at *5 (S.Dl. Miss. Apr. 18, 2017). “There is evidence that the [Runners]
contacted peopile and businesses in Mississippi to determine if they might have a
claim against BP, encouraged those people to retain Pohl as their attorney, and
were paid over $5 million in ‘barratry pass-through money’ for their services.”
226 Nicholson Exhibit 4, Walker Complaint.
227 Exhibit 41, Walker Second Amended Complaint.
228 Exhibit 41, Walker Second Amended Complaint. ¶ 118.
229 Exhibit 41, Walker Second Amended Complaint. ¶ 136.
31
Kassab v. Pohl, 612 S.W.3d 571, 574 (Tex. App. – Houston [1st Dist.] 2020, pet.
denied). However, the Runners sued Pohl because they “procured thousands of
viable BP claims” and “approximately sixty motor vehicle accident cases” for Pohl
but that Pohl “did noy pay any of the agreed share of his fees” ork all expenses
incurred. Walker v. Williamson, No. 1:14-cv-381-KS-JCG, 2016 CU.S. Dist. LEXIS
76488, at *5, 24 (S.D. Miss. Mar. 1, 2016).
Precision transfers and assigns its assets andi claims against
Pohl to Favre – Pohl counterclaims for conversion in the
Mississippi Litigation but settles when he cannot obtain
summary dismissal. e
During discovery in the Mississippi Liutigation, Pohl discovered that the
Runners allegedly “disclosed confidential and proprietary information to third
parties without authorization” and proaposed “the ‘sale’ of all of [his] accumulated
work product to third parties” while working for him.230 Pohl testifies that the
Runners “undertook to converte, misappropriate for themselves and/or market to
third parties claimant files fand other information and materials” that allegedly
belonged to Pohl231 – including “marketing information and other trade secrets”232 –
and then the new owner of Precision, Scott Favre, allegedly “sold those items and
the information”i to Kassab.233
230 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 18.
231 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
232 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
233 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 29.
32
As a result, Pohl “asserted multiple claims against” the Runners in the
Federal Court Case based on their alleged “fraudulent and bad faith conduct.”234
Pohl did not assert claims against Kassab in the Federal Court Case, even though
he testified under oath that he knew Kassab allegedly was part of kthe “team of
thieves” who broke into Pohl’s office in 2014 and stole his confidCential information
and purported trade secrets.235
Pohl attempted to dismiss the Mississippi Litigationi, arguing the agreements
between he and the runners were illegal and unenforceable.236 More specifically,
Pohl argued that under both Texas and Mississippi law “it is illegal for a non-
lawyer to accept or agree to accept money to improperly solicit clients for a
lawyer.”237 The Mississippi federal courlt denied Pohl’s motion to dismiss and
concluded that he was in a partneMrship with Walker and Ladner and further
concluded that the agreements to solicit clients would only be a violation of the
Texas disciplinary rules andi Texas law, which did not apply to Walker and
Ladner.238 Having failed to obtain summary dismissal, Pohl settled the Mississippi
Litigation, hoping too forever conceal the barratry operation.239 The Mississippi
Litigation was dismlissed with prejudice on April 24, 2017.240
234 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 19; see also Exhibit 43, Pohl’s Amended
Counterclaim.
235 Exhibit 44, May 15, 2018 Deposition of Michael Pohl, pp. 85-93.
236 Exhibit 45, Walker Memorandum Opinion (Doc. No. 475); Exhibit 46, Walker Pohl Memorandum
(Doc. No. 175).
237 Exhibit 46, Walker Pohl Memorandum, at ¶ 18.
238 Exhibit 47, Walker Order on Pohl Motion to Dismiss (Doc. No. 252).
239 Exhibit 48, Walker Judgment (Doc. No. 499).
240 Exhibit 48, Walker Judgment (Doc. No. 499).
33
Kassab exposes Pohl’s illegal and unethical barratry and more
than 400 victims of Pohl’s barratry scheme hire Kassab to file
civil claims and grievances against Pohl.
Kassab was tipped off to the allegations in the Mississippi Litigation by an
acquaintance of his, F. Douglas Montague of the Mississippi law firkm Montague
Pittman & Varnado, PA (“Montague”).241 Kassab obtained much inCformation related
to the Mississippi Litigation from the federal court’s online system, PACER.242
Kassab also associated Precision and its new owner, iFavre, and its counsel,
Nicholson, and obtained information directly from them, including the names and
addresses of Pohl’s former or prospective clients.243 Favre informed Kassab that,
when he bought Precision, he acquired files related to Pohl and Favre transferred
that information to Kassab.244 l
Kassab prepared advertisemenMt letters approved by the State Bar of Texas
and sent it to people who had been illegally solicited by Pohl, informing them that
they may have potential barriatry claims against Pohl.245 Hundreds of Mississippi
residents responded to Kassab’s advertisement letter and more than 400 signed
representation contraocts with Kassab’s firm to pursue barratry claims against
Pohl.246 Kassab filled four separate lawsuits on behalf of these barratry victims in
Harris Countiy, Texas (the “Barratry Lawsuits”).247 Additionally, due to the
241 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
242 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
243 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
244 Exhibit 49, Declaration of Lance Christopher Kassab, at 2; Exhibit 50, Affidavit of Scott Favre.
245 Exhibit 49, Declaration of Lance Christopher Kassab, at 2; Exhibit 51, Advertisement Letters.
246 Exhibit 49, Declaration of Lance Christopher Kassab, at 2.
247 Exhibit 52 (Brumfield Third Amended Petition), Exhibit 53 (Gandy Second Amended Petition),
Exhibit 54 (Berry Fifth Amended Petition), Exhibit 55 (Cheatham Fourth Amended Petition)
(without exhibits).
34
egregiousness of Pohl’s violation of the Texas Penal Code and violations of the Texas
Disciplinary Rules of Professional Conduct, Kassab was required to notify the Texas
State Bar pursuant to disciplinary rule 8.03.248 Thus, Kassab filed grievances
against Pohl pursuant to this rule, and also at the request of some of kPohl’s former
clients.249 C
Pohl files this retaliatory lawsuit against Kassab seeking as
damages the costs he incurred to defend againstt the Barratry
Lawsuits and grievances filed against him. i
In retaliation, Pohl filed this litigation against Kassab, Favre, Nicholson,
Precision, and others, for conversion, misappropriation of trade secrets and
conspiracy.250 Pohl rehashes his allegations from the Mississippi Litigation,
claiming that “Precision gained access lto Pohl’s confidential and proprietary
information and property, including tMrade secret materials” and “work product” and
“illegally misappropriated” this information and then allegedly “secretly sold Pohl’s
confidential information to Kaissab and [another lawyer named] Montague”251 who
then “solicited clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring
cases against Pohl foro alleged barratry and other claims.”252 As damages, Pohl seeks
the costs and explenses he incurred defending against the Barratry Lawsuits and
grievances fileid against him.
248 Exhibit 49, Declaration of Lance Christopher Kassab, at 1.
249 Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct provides: “. . . a lawyer having
knowledge that another lawyer has committed a violation of applicable rules of professional conduct
that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer
in other respects, shall inform the appropriate disciplinary authority.”
250 See Pohl’s First Amended Petition (on file with the Court).
251 First Amended Petition, at ¶¶ 20-21.
252 First Amended Petition, at ¶ 29.
35
SUMMARY JUDGMENT STANDARD
The purpose of summary judgments is to eliminate patently unmeritorious
claims and untenable defenses. Tex. Dep't of Parks & Wildlie v. Miranda, 133
S.W.3d 217, 228 (Tex. 2004). To prevail, the movant must show thakt no genuine
issue of material fact exists and that it is entitled to judgment aCs a matter of law.
TEX. R. CIV. P. 166a(c); Lujan v. Navistar, Inc., 555 S.W.3d 79,
84 (Tex. 2018). “If the
movant carries this burden, the burden shifts to the nonmiovant to raise a genuine
issue of material fact precluding summary judgment.” Lujan, 555 S.W.3d at 84; see
Maldonado v. Maldonado, 556 S.W.3d 407, 414 (Tex. App.—Houston [1st Dist.]
2018, no pet.). “A genuine issue of material fact exists if more than a scintilla of
evidence establishing the existence of thle challenged element is produced.” Ford
Motor Co. v. Ridgway, 135 S.W.3d 598M, 600 (Tex. 2004).
ARGUMENT & AUTHORITIES
Although Pohl’s claimsi against Kassab lack merit because Kassab did not
misappropriate Pohl’s trade secrets or otherwise engage in any misconduct, the
Court need not decideo that issue to dispose of Pohl’s claims against Kassab. Rather,
Pohl’s claims can ble dismissed for several independent reasons.
A. Piohl’s claims against Kassab are barred by immunity
ounder Rule 17.09 of the Texas Rules of Disciplinary
Procedure.
First, Pohl’s claims against Kassab must be dismissed based on immunity
provided in Rule 17.09 of the Texas Rules of Disciplinary Procedure. That rule
provides:
36
No lawsuit may be instituted against any Complainant or
witness predicated upon the filing of a Grievance or participation in
the attorney disciplinary and disability system. … The immunity is
absolute and unqualified and extends to all actions at law or in
equity.
TEX. R. DISC. P. 17.09 (emphasis added). Even “allegations of wrongdoking” done “in
connection with [the] prosecution of disciplinary actions” are absoClutely immune, so
long as they are “predicated upon” the filing of a grievance. Crampton v. Farris, 596
S.W.3d 267, 274-75 (Tex. App.—Houston [1st Dist.] 2019, nio pet.).
Here, it is undisputed that Pohl’s allegations of wrongdoing against Kassab
are predicated upon Kassab’s filing of grievances against Pohl. Pohl testified that he
has sued Kassab because Kassab allegedly “used information from [Pohl’s] files in
the grievance proceedings that [Kassab] lpersonally filed or had clients file and
[Kassab allegedly] shared [Pohl’s] stoMlen property with Ms. Nicholson so she could
defend a grievance against herself, according to her own testimony.”253 Pohl seeks
as damages in the form of “coists and expenses of … serial grievances that arose
from the use of the [allegedly] misappropriated trade secrets.”254 Pohl intends to
have his biased expoert, John Zavitsanos,255 “testify that Defendants, including
[Kassab], sought tlo profit from the use of [Pohl’s information] by … using it … to
facilitate the ibringing of grievances and litigation against Pohl.”256 Zavitsanos is
purportedly going to “opine that [Pohl’s] attorneys’ fees and expenses incurred … in
253 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
254 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122. (emphasis added).
255 Mr. Zavitsanos is bias because he was an advocate for Pohl’s co-defendant in the underlying
barratry cases that Kassab brought and because Kassab had previously sued Mr. Zavitsanos and his
firm. See Cause No. 20191510, Bragg v. Zavitsanos, in the 270th Judicial District Court of Harris
County, Texas. The Court is requested to take judicial notice of this case.
256 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 5.
37
defending related matters including against invalid grievances … are fair,
reasonable, necessary and recoverable under the circumstances.”257
But Rule 17.09 makes clear that “[n]o lawsuit” may be instituted against
Kassab that is “predicated upon” the filing of a grievance or particikpation in the
attorney disciplinary and disability system. TEX. R. DISC. P. 17.0C9. Because Pohl’s
claims against Kassab and the damages that he seeks are “predicated upon” the
grievances that Kassab caused to file against Pohl, thie claims are barred by
“absolute and unqualified” immunity that “extends to all actions at law or in
equity.” Id.; Crampton, 596 S.W.3d at 276 (claim for destruction of evidence and
property related to grievance proceeding barred by immunity under Rule 17.09);
Burch v. State Bar of Tex., No. 07-19-0022l4-CV, 2020 Tex. App. LEXIS 1409, at *3
(Tex. App.—Amarillo Feb. 19, 2020, pMet. denied) (immunity under Rule 17.09 barred
claim that attorneys for commission, in relation to a grievance proceeding, who
purportedly “engaged in miscionduct related to a bankruptcy proceeding in which
[plaintiff] was involved”). Since all of Pohl’s claims are related to the grievance
proceedings, they areo all barred by Rule 17.09 and summary judgment may be and
should be granted lbased upon Rule 17.09 alone.
B. Piohl’s claims against Kassab are barred by the judicial
oproceedings privilege.
“The judicial-proceedings privilege is an absolute privilege that covers any
statement made by the judge, jurors, counsel, parties or witnesses, and attaches to
all aspects of the proceedings, including statements made in open court, pre-trial
257 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 6.
38
hearings, depositions, affidavits and any of the pleadings or other papers in the
case.” Landry's, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021)
(internal quotations omitted). “The judicial-proceedings privilege exists to facilitate
the proper administration of the justice system. It does so by krelieving the
participants in the judicial process from fear of retaliatory lawsuCits for statements
they make in connection with the proceeding itself.” Id. at 48.
Moreover, the judicial-proceedings privilegei attaches even to
“communications preliminary to a proposed judicial proceeding” if “the
communication has some relation to a proceeding that is actually contemplated in
good faith and under serious consideration by the witness or a possible party to the
proceeding.” Id. at 48-49. “Even in the prle-suit context, however, the privilege
protects communications that arMe themselves preparatory to the lawsuit.”
Id. (emphasis added). The privilege protects all communications that are
“necessary to set the judiicial machinery in motion.” Id. at 50 (quoting
RESTATEMENT (SECOND) O F TORTS § 586 cmt. a) (emphasis added).
Here, Pohl haos sued Kassab in retaliation for Kassab “solicit[ing] …
clients/prospectivel clients to act as plaintiffs … to bring cases against Pohl for
alleged barratiry and other claims.”258 Pohl admits that he is suing Kassab for
statements Kassab made to prospective clients which spawned the litigation and
grievance proceedings:259
258 Amended Petition, at ¶ 29.
259 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
39
Because Pohl’s claims against Kassab arisne out of communications that Kassab
made in prospective (solicitation letterrs) and actual judicial proceedings (the
barratry litigation and grievance process), Pohl’s claims against Kassab are barred
by the judicial proceedings privielege. See Crain v. Smith, 22 S.W.3d 58, 62-63 (Tex.
App.—Corpus Christi 2000, fno pet.) (holding that statements in letter sent before
the lawsuit began were protected by the judicial-proceedings privilege).
It matters not how Pohl characterized his claims against Kassab because “the
privilege shouldi be extended beyond defamation when the essence of a claim is
damages tohat flow from communications made in the course of a judicial
proceeding.” Laub v. Pesikoff, 979 S.W.2d 686, 691 (Tex. App.—Houston [1st Dist.]
1998, pet. denied). Here, Pohl seeks as damages “the costs and expenses of serial
litigations and serial grievances” that Kassab filed against Pohl, including
attorney’s fees for his lawyers who represented him in that litigation and “[a]ny
40
fees, any expenses [Pohl] had, hotel rooms, long-distance phone calls, copy costs,
[Pohl] intend[s] to sue Mr. Kassab for all of it.”260 Because Pohl’s alleged damages
“flow from” communications that Kassab made in the barratry litigation and
grievance proceedings, his claims are barred regardless of label. Seek id. (holding
privilege applied to claims for “intentional interference, civil consCpiracy, intentional
infliction of emotional distress, negligence, and constitutional violations”); Tex. Mut.
Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-00807-CiV, 2006 Tex. App. LEXIS
2001, at *27-28 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem.
op.) (holding that absolute privilege applied in deceptive insurance practices claim
under Texas Insurance Code because “although [plaintiff] did not plead defamation,
its theory of damages was that its clilents, creditors, and bonding companies
abandoned it, in part, because of the M[insurer's] allegations and assertions . . . made
in the course of this judicial proceeding”). Thus, summary judgment must be
granted based upon the judiciail proceedings privilege.
C. Pohl’s claims against Kassab are barred by attorney
immunity.
Under the doctrine of attorney immunity, “an attorney does not have a right
of recovery, undier any cause of action, against another attorney arising from
conduct theo second attorney engaged in as part of the discharge of his duties in
representing a party.” Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st
Dist.] 1992, writ denied) (emphasis added). “[A]n attorney is immune from liability
to nonclients for conduct within the scope of his representation of his clients.”
260 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
41
Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). The inquiry “focuses on the
kind of conduct at issue rather than the alleged wrongfulness of said conduct.” Id.
“That is, a lawyer is no more susceptible to liability for a given action merely
because it is alleged to be fraudulent or otherwise wrongful.” Id. “Merekly labeling an
attorney’s conduct ‘fraudulent’ does not and should not remove itC from the scope of
client representation or render it ‘foreign to the duties of an attorney.’” Id. at 483.
Even “criminal conduct is not categorically excepted from thie protections of attorney
civil immunity when the conduct alleged is connected with representing a client in
litigation.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d
651, 657 (Tex. 2020); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015)
(“an attorney’s conduct may be wrongfull but still fall within the scope of client
representation”). M
Although the Court previously denied Kassab summary judgment on this
defense, the Texas Supreme Ciourt’s recent decision in Taylor v. Tolbert, 644 S.W.3d
637 (Tex. 2022) requires reconsideration. Taylor held that even “conduct prohibited
by statute” is subject oto attorney immunity if the “statute does not expressly, or by
necessary implicaltion, abrogate the immunity defense, and the attorney met her
burden to estaiblish its applicability to the conduct at issue.” Id. at 642.
In Taylor, the attorney was accused of violating state and federal laws
prohibiting wiretapping because the attorney obtained and used the plaintiff’s
communications in violation of the statute. Id. at 643. The plaintiff brought a
statutory claim against the attorney which permitted recovery of civil damages. Id.;
42
see also TEX. CODE CRIM. PROC. § 18A.502. The attorney moved for traditional
summary judgment, “arguing she is immune from liability as a matter of law
because the plaintiffs’ claims all stem from her role as an attorney in the
modification proceeding.” Id. at 644. The trial court agreed, but the coukrt of appeals
reversed. Id. The Supreme Court granted review and reversed thCe court of appeals.
Id. It concluded that the attorney was, “in all respects, engaging in the office,
professional training, skill, and authority of an attorneiy in the ways that she
allegedly used and disclosed the materials her client provided.” Id. at 649. “Because
[the attorney’s] conduct falls squarely within the confines of attorney immunity, the
alleged criminality or wrongfulness of the conduct does not perforce preclude its
availability as an affirmative defense.” Id.l The court also held that “Texas’s wiretap
statute does not expressly repudiatMe the common law or the attorney-immunity
defense.” Id.
Here too, Kassab’s coinduct which forms the basis of Pohl’s claims fall
squarely within the confines of attorney immunity, regardless of whether it is
alleged to have violoated the TUTSA because that statute does not expressly
repudiate the defelnse.
Pohl isi suing Kassab because he allegedly obtained purportedly stolen
information in violation of the TUTSA and then “solicited [Pohl’s]
clients/prospective clients to act as plaintiffs … to bring cases against Pohl for
alleged barratry and other claims.”261 The essence of Pohl’s claims against Kassab
are “that Kassab bought Pohl’s client list from [Precision] so that Kassab could send
261 Amended Petition, ¶ 29.
43
advertisements to Pohl’s former clients and solicit them to become Kassab’s clients
in barratry suits against Pohl.” Kassab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied) (characterizing Pohl’s claims against Kassab).
Pohl seeks as damages “the costs and expenses of serial litigationks and serial
grievances” that Kassab filed against Pohl, including attorney’s feCes for his lawyers
who represented him in that litigation and “[a]ny fees, any expenses [Pohl] had,
hotel rooms, long-distance phone calls, copy costs, [Pohil] intend[s] to sue Mr.
Kassab for all of it.”262 Pohl has even designated Mr. Zavitsanos to testify to these
damages, and “the reasonableness and necessity of the attorneys’ fees, costs, and
expenses incurred by Pohl in defending against invalid grievances and stale
claims.”263 l
Moreover, in this very case, tMhe court of appeals opined that “the alleged
purchase of Pohl[’s] client list for those clients’ contact information,
followed by the mailing oif attorney advertisements to those individuals
about specific types of claims they might be able to pursue against a
specifically identifoied attorney, qualifies as statements or conduct that
arose out of a colmmercial transaction involving the type of legal services
Kassab proviides.” Kassab, 612 S.W.3d at 578 (emphasis added). The court opined
that, “the intended audience of [Kassab’s alleged] statement or conduct
were individuals with potential legal claims who Kassab sought to
represent in barratry suits against Pohl.” Id. at 579 (emphasis added).
262 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
263 Exhibit 57, Pohl’s Second Amended Designation of Experts, at 3.
44
The acquisition of clients and filing of lawsuits are actions taken “to facilitate
the rendition of legal services.” Youngkin, 546 S.W.3d at 682; Clayton v. Oldcastle
Materials Tex., Inc., No. 09-18-00063-CV, 2019 Tex. App. LEXIS 1112, at *12, 15
(Tex. App.—Beaumont Feb. 14, 2019, no pet.) (applying attorney kimmunity to
attorney’s conduct which included “selling his legal services Cto the City as a
potential client” and subsequent conduct which “occurred in the course of his
undertaking to represent” those clients). The fact that Kiassab is alleged to have
committed the misconduct prior to any litigation is immaterial because “attorney
immunity applies to claims based on conduct outside the litigation context[.]”
Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey
Hanger, 467 S.W.3d at 485 (concluding tlhat attorney was immune from conduct
that occurred after litigation had endMed). In other words, Pohl’s characterization of
Kassab’s activities as part of a business transaction that occurred prior to litigation
does not negate attorney immiunity because Kassab engaged in the conduct as part
of his ultimate provision of legal services to his client. See Haynes & Boone, 631
S.W.3d at 78-79, 81 (oapplying attorney immunity to lawyer conduct committed as
part of business tlransaction). Indeed, in this case, the court of appeals concluded
that all of Kasisab’s conduct for which Pohl complains “arose out of a commercial
transaction involving the type of legal services Kassab provides.” Kassab,
612 S.W.3d at 578 (emphasis added).
Accordingly, Pohl’s claims against Kassab are barred by attorney immunity.
See Taylor, 644 S.W.3d at 648 (attorney could not be held civilly liable for conduct
45
which was “criminal in nature” because it was committed while discharging duties
to client); Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-
00055-CV, 2016 Tex. App. LEXIS 442, at *10-11 (Tex. App.—Dallas Jan. 14, 2016,
pet. denied) (mem. op.) (applying attorney immunity to claim that attokrney engaged
in “malicious conduct with respect to its illegal acquisition, reCtention, use, and
threatened disclosure of [the plaintiff’s] proprietary and confidential information”
that “it knew to be stolen and proprietary in furtherancei of its scheme to extort,
slander, and disparage [the plaintiff]” and “refusing to return and cease use of [the
plaintiff’s] proprietary information”). The law of the case, as outlined by the court
of appeals in this matter, demonstrates that the alleged conduct for which Pohl
basis his claims is clearly covered by the atltorney immunity doctrine.
D. Pohl’s claims are barrMed by limitations.
A defendant moving for summary judgment on the affirmative defense of
limitations bears the burdeni of conclusively establishing the elements of that
defense. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018) (per
curiam). To do so, thoe defendant must (1) conclusively prove when the cause of
action accrued andl (2) negate the discovery rule if it applies and has been pleaded
or otherwise riaised. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999). A cause of action accrues when (1) “the allegedly
tortious act was committed and caused an injury;” or (2) “facts come into existence
that authorize a party to seek a judicial remedy.” United Healthcare Servs., Inc. v.
First St. Hosp. LP, 570 S.W.3d 323, 335 (Tex. App.—Houston [1st Dist.] 2018, pet.
46
denied) (citing Pasko, 544 S.W.2d at 834). This is true even if all resulting damages
have not yet occurred. Pasko, 544 S.W.3d at 834. Determining the accrual date is a
question of law. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.
2003). As demonstrated below, all of Pohl’s claims against Kassab akre barred by
limitations. C
1. Facts relevant to limitations.
Pohl testified that he and Precision shared an officie in Gulfport, Mississippi
from 2013-2014.264 Pohl called this his “satellite law office.”265 The owners of
Precision in 2014 were Scott Walker, Kirk Ladner, and Steve Seymour.266
Pohl testified that he closed his Gulfport, Mississippi office in the summer
of 2014.267 He testified that he asked lPrecision to arrange to have his office
equipment and files sent to him in HMouston, Texas.268 Pohl testified that Precision
made excuses for why they could not get his property moved to Houston.269 In June
or July of 2014, Pohl “gave upi” asking Precision to arrange the move and hired his
own mover to go to Gulfport and get everything that was in the office: “every pencil,
every paper, every fiole, every file cabinet, every icebox.”270 Pohl testified that the
mover was to bringl the property back to Pohl in Houston, Texas.271 When the mover
arrived in Gulifport, he found the office almost empty, and Precision told him that
264 Exhibit 56, December 2021 Deposition of Michael Pohl, at 7-10.
265 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6-8.
266 Exhibit 56, December 2021 Deposition of Michael Pohl, at 16.
267 Exhibit 56, December 2021 Deposition of Michael Pohl, at 11.
268 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
269 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
270 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
271 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
47
Precision removed all files and was not returning them.272 Pohl testified that he
contacted Precision and was told Precision was “keeping” the files.273
Pohl asserts that Kassab and other Defendants orchestrated and participated
directly in the 2014 theft of files.274 Pohl testified that Kassab aknd the other
Defendants “robbed my office [and] stole my clients’ names” in 2C014.275 He further
testified:
A. That group of criminals stole about 11,00i0 files out of my
Mississippi office. They also stole my computers and hired a
third party, whose name slips my mind right now, to hack
into my office computers and steale all of my confidential
information, internal documents. And they also stole my
forms that I created for BP and outher litigation, among other
things.
Q. And when you’re saying “this group of criminals,” who did
that include? r
A. It would be Scott Favre, Tina Nicholson, Lance Kassab, Doug
Montague, and poteontially the people that they either bribed
or coerced into doineg their dirty work.276
Pohl alleges that Kassab fis a co-conspirator with Nicholson to unlawfully
misappropriate his tradye secrets.277 Pohl testified that “Tina Nicholson demanded
that Scott Walker steal my files or, because he got in trouble with the law, Tina
Nicholson was goaing to take his two baby children away from him and forced him to
cooperate witfh [Kassab’s] crew to rob me and hack my computers.”278
272 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6, 12-14.
273 Exhibit 56, December 2021 Deposition of Michael Pohl, at 15.
274 Amended Petition, at ¶¶ 21-24.
275 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94-97.
276 Exhibit 59, April 2021 Deposition of Michael Pohl, at 37-39.
277 Amended Petition, at ¶ 43.
278 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94.
48
Pohl testified that the alleged theft of trade secret information occurred in
the summer of 2014 when Kassab and his “crew” allegedly broke into Pohl’s office in
Gulfport and hacked his computers, stole his clients’ names and information, and
then solicited his clients: k
Q. Okay. And you think I'm an unethical lawyer? C
A. Yes. You stole my files. You robbed me. You tried to destroy my
practice. So I don't believe you should sutbmit any more
materials, particularly false affidavits that hiave been retracted
by the witnesses who made them and other verifiably false
accusations. And you've solicited my clients like Mr. Cheatham,
and you've told him lies to get him to suee me.
A. If the question is did you steal myu files and rob my office, the
answer is that you and your co-counsel and your crew robbed my
office, stole my clients' names, contacted my clients and told
them lies to initiate suits agalinst me.
Q. Okay. How did I steal Myour files, sir? Did I break into your
house? 
A. You broke into my elaw office.
Q. I did personallyf?
A. You and your crew.
Q. And when did I do that?
A. I doin't know the exact date, but I believe it was in 2014 when
yiou robbed me.
Q. I robbed you in 2014?
A. Yes, sir.
Q. So I broke into your office and stole your stuff in 2014 at
your Gulfport, Mississippi office, right?
49
A. You and your crew.279
In this case, Pohl admitted under oath that he knew in 2014 that his trade secrets
had been misappropriated:
Q. You knew as of the summer of 2014, then, that thek trade
secrets that you claim in this lawsuit were teaken by
Precision Marketing. Is that correct? C
A. Yes, I knew they were not being made available to me.280
Pohl also expressly testified that he knew in the summer 2014 that his files – which
he claims are the purported trade secrets – had been stsolen from him:
Q. Who stole the files? g
A. Well, originally it would have beeBn Precision Marketing.
Q. Did you form the opinion thaty they had stolen the files when Mr.
Blanton informed you that ihle learned that the files were not
available to be moved to Haouston?
A. Well, I certainly had af suspicion, so I followed up and spoke to
somebody at Precision about it.
Q. And once you spoike to the person at Precision, that’s when you
formed your opfinion that the files had been stolen from you. Is
that correct?
A. Yes. o
Q. And that would have been sometime in the summer of 2014?
A. Yecs.281
Accordingly, it is undisputed that the alleged trade secret property was removed
from the Gulfport office no later than July 2014, that Precision – who Pohl alleges
279 Exhibit 58, May 2018 Deposition of Michael Pohl, pp. 85-93. (emphasis added)
280 Exhibit 56, December 2021 Deposition of Michael Pohl, at 14. (emphasis added)
281 Exhibit 56, December 2021 Deposition of Michael Pohl, at 18-19.
50
was part of Kassab’s “crew” – took it, and that by July 2014 Pohl was aware that
Precision had taken it in an alleged conspiracy with Kassab.
After Pohl discovered the taking of the alleged trade secrets in the summer
2014, he took no immediate action to recover it, find out what happenedk to it, or find
out if anyone else was involved in the taking. Pohl testified that Calthough he knew
the alleged conduct by Kassab occurred in 2014, he did not file a lawsuit against
Kassab because he “wanted to spend time to reflect on it biefore taking action [and]
didn’t want to do anything that was precipitous.”282
On October 8, 2014, Precision and its owners, Scott Walker, Kirk Ladner and
Steve Seymour, filed a breach of contract lawsuit against Pohl in federal court in
Mississippi.283 Pohl’s only reaction to the llawsuit was to send Walker and Ladner a
mild email two days later asking theMm to return his “original documents, evidence
and keys.”284 From that point forward, Precision and its owners proceeded to
publish Pohl’s alleged propriietary information in the lawsuit. For example, in
November 2014, one month after filing the lawsuit, they published his alleged
marketing materials,o285 communications and contracts between Pohl and other
lawyers,286 commulnications between Pohl and his clients or potential clients,287 and
Pohl’s BP clieint solicitation letter,288 all without any complaint from Pohl. Thus,
Pohl acquiesced to the publication and use of his alleged trade secrets.
282 Exhibit 58, May 2018 Deposition of Michael Pohl, p. 93.
283 Nicholson Ex. 4, Federal Original Complaint.
284 Nicholson Ex. 5, Doc. 19-1.
285 Nicholson Ex. 6, Doc. 19-5 and 19-6.
286 Nicholson Ex. 7, Doc. 19-3.
287 Nicholson Ex. 8, Doc. 19-7.
288 Nicholson Ex. 9, Doc. 19-10.
51
Pohl took no action to recover his allegedly stolen property nor attempt to
stop the dissemination of his alleged trade secrets: he did not file a counterclaim for
theft, conversion, or violation of a trade secrets act, nor did he move for injunctive or
other relief to reacquire or protect his trade secrets, nor did move fork a protective
order regarding his alleged trade secrets or (until the March 20C17 confidentiality
order that was expressly not retroactive) enter into a confidentiality agreement to
protect and keep secret the documents produced during ithe lawsuit.289 In short,
Pohl failed to do any of the things that a person exercising reasonable diligence
regarding the theft of trade secrets would do.
On or about May 12, 2015, Walker, Ladner and Seymour sold Precision to
Scott Favre, and in conjunction with tlhe sale, they transferred the allegedly
misappropriated materials to Favre’sM office in Kiln, Mississippi.290 On May 12, 2015,
Nicholson entered an appearance in the Mississippi litigation as the attorney for
Precision.291 i
The sale of Precision to Favre apparently stimulated Pohl to determine
whether Nicholson haod the alleged trade secret materials. On May 15, 2015, Pohl’s
attorney sent Nichlolson a letter demanding that Walker, Ladner and Seymour turn
over to Pohl thie contracts between him and his BP clients. The letter stated, “The
contracts do not belong to your clients.”292 Pohl’s attorney sent Nicholson a second
letter on May 20, 2015. The letter repeated Pohl’s demand that Nicholson provide
289 Nicholson Ex. A, Nicholson Affidavit.
290 Nicholson Ex. 10, Doc. 396-2.
291 Nicholson Ex. 11, Doc. 77.
292 Nicholson Ex. 12, 2015 Communications.
52
the contracts to him. By way of explanation, the letter said, “As you may know, the
British Petroleum claim filing deadline is June 8, 2015. Mr. Pohl needs the
contracts to address client matters relating to the deadline.”293 Of course, this was a
lie because Pohl had access to all contact information, if not from hkis own home
office where contracts were sent to him, his co-counsel who was adCministering all of
their claims in Houston had copies of all contracts and contact information.
On May 27, 2015, Nicholson emailed a letter to Poihl’s attorney, confirming
that the contracts in Precision’s possession were being held at the office of Scott
Favre, Precision’s new owner.294 In pertinent part, it said:
This letter responds to your faxed letters and addresses matters which
we discussed in our telephone conversation last Friday. Your client,
Michael Pohl, has demanded thalt my client, Precision Marketing
Group, LLC, hand over the oraiginals and copies of . . . contracts
between him . . . and the BP/DMeepwater Horizon claimants. . . Mr. Pohl
asserts that the documents do not belong to PMG or the other
Plaintiffs.295
Nicholson’s letter went on to istate that “PMG will not relinquish possession of the
original contracts at this time.”296 Nicholson stated that the documents in question
were being held at theo office of Scott Favre, Precision’s new owner.297 Nicholson also
mentioned that a lcomputer containing some of the information had been sent to a
forensic experti for recovery of date.298
293 Nicholson Ex. 12, 2015 Communications.
294 Nicholson Ex. 12, 2015 Communications.
295 Nicholson Ex. 12, 2015 Communications.
296 Nicholson Ex. 12, 2015 Communications.
297 Nicholson Ex. 12, 2015 Communications.
298 Nicholson Ex. 12, 2015 Communications.
53
Pohl swore to his lawyer’s letters being sent to Nicholson requesting return of
the materials in his interrogatory answers:
i 299
Accordingly, at least as of May 2015, Pohl knew that WaDlkier and Ladner (who Pohl
contends was part of Kassab’s “crew”) had transferresd the alleged trade secrets to
Favre who was represented by Nicholson (who Pohl contends are other members of
Kassab’s “crew”), and that Nicholson had refused Pohl’s demand for return of the
information. More than 3 years later, on Alugust 28, 2018, Pohl filed this lawsuit. As
explained below, Pohl’s TUTSA claim against Kassab, along with his conversion and
conspiracy claim, are barred by the statute of limitations, and thus, summary
judgment must be granted. i
2. Pohl’s TUTSA is barred by the three-year statute of
limpitations.
TUTSA has a three-year statute of limitations: “A person must bring suit for
misappropriationi of trade secrets not later than three years after the
misapproproiation is discovered or by the exercise of reasonable diligence should
have been discovered.” TEX. CIV. PRAC. & REM. CODE § 16.010(a). “Misappropriation”
means, among other definitions, the acquisition of a trade secret of another by a
person who knows or has reason to know that the trade secret was acquired by
299 Nicholson Ex. 13, Pohl’s Interrogatory Answers at No. 4.
54
improper means. Id. at § 134A.002(3). “Improper means” includes theft. Id. at §
134A.002(2). “A misappropriation of trade secrets that continues over time is a
single cause of action and the limitations period … begins running without regard
to whether the misappropriation is a single or continuing act.” Id. at § 1k6.010(b).
Accordingly, the first act of misappropriation is whCen the statute of
limitation accrues for misappropriation of a trade secret. See Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 451 (5th Cir. 2007) (recognizinig the TUTSA “explicitly
precludes treating trade secret misappropriation as a continuing tort.”); Guajardo v.
Freddie Records, Inc., No. CV H-10-02024, 2014 WL 12603179, at *2 (S.D. Tex. May
15, 2014) (“[T]he Texas Legislature decided not to make this type of claim
a continuing tort. Specifically, the Texas lLegislature enacted a three-year statute
of limitations for suits alleging misaMppropriation of trade secrets in May 1997.”).
Accordingly, “the tort of misappropriation, as viewed under Texas law, occurs at the
moment of misappropriation.”i Bianco v. Globus Med., Inc., 53 F. Supp. 3d 929, 938
(E.D. Tex. 2014)
In this case, tohe limitation period on the TUTSA claim began to run in
summer 2014, wheln Precision and allegedly Kassab, to use Pohl’s own word, “stole”
the trade seicrets.300 Pohl testified that he had actual knowledge of the
misappropriation of his claimed property no later than July 2014.301 Accordingly,
the misappropriation occurred more than four years before Pohl filed this lawsuit
in August 2018.
300 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
301 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
55
This is not a case where the date of the misappropriation is unclear. This is
not an instance where an employee secretly copies information from an employer,
stealthily shares it with a competitor, and the owner of the trade secret finds out in
a roundabout way at some later point in time when a similar prokduct hits the
market. In this case, Precision physically removed all of the doCcuments from the
office it shared with Pohl. Pohl admits that he unequivocally discovered the alleged
theft of the trade secrets no later than July 2014. And whiat’s more, Pohl testified,
that Kassab and his “crew” participated in the theft of his trade secrets in 2014.
Thus, based upon Pohl’s own testimony, Pohl’s TUTSA claim against Kassab
expired in July 2017, over a year before Pohl filed this lawsuit.
The statutory language is very speclific as to when the statute begins to run.
It says that the limitation period staMrts when “misappropriation is discovered or by
the exercise of reasonable diligence should have been discovered.” TEX. CIV. PRAC. &
REM. CODE 16.010(a). Pohl diiscovered the theft of his trade secrets no later than
July 2014. Accordingly, the statute began to run on the misappropriation in July
2014, meaning Pohl’so TUTSA claim was barred by the time he filed suit in August
2018. l
Alternaitively, even if the statute began to run in May 2015, Pohl’s claim is
still barred. The May 2015 letters prove that Pohl knew in May 2015 that Walker,
Ladner and Seymour had transferred the disputed documents and information to
Favre and Nicholson.302 Nicholson’s letter of May 27, 2015, informed Pohl that
Favre had the hard copies of the trade secret documents at his Kiln, Mississippi
302 Nicholson Ex. 12, 2015 Communications.
56
office, they also had the computer with the alleged trade secrets, and that Nicholson
refused to return Pohl’s alleged information.303 Hence, Pohl “discovered” Nicholson’s
alleged “misappropriation” when he received her May 2015 letter confirming her
refusal to give them to Pohl, despite his assertion of ownership. Howekver, Pohl did
not file this lawsuit until August 28, 2018, around three monthCs after the latest
possible limitation period expired on May 27, 2018.
It is also important to understand that the allegedi subsequent use, sale or
purchase of the trade secrets did not restart the clock on the TUTSA limitations
period. The fact that, after the trade secrets were purportedly misappropriated in
2014, or alternatively 2015, they were allegedly subsequently used or transferred
did not restart the limitation period. Thel case Agar Corp. v. Electro Circuits Int'l,
LLC, 565 S.W.3d 12 (Tex. App.—HouMston [14th Dist.] 2016), aff'd in part, rev'd in
part on other grounds, 580 S.W.3d 136 (Tex. 2019) is instructive on this point. In
Agar, the plaintiff initially suied more than a dozen defendants in April 2008 in
connection with the defendants’ alleged misappropriation of the plaintiff’s
proprietary informatioon and use of that information to create knock-off products for
sale to its customlers. Id. at 19. The plaintiff added alleged co-conspirators who
allegedly purchiased and sold some of the trade secrets as defendants to the existing
lawsuit in November 2011 — more than three years after plaintiff initially filed suit
for the misappropriation. Id. The plaintiff argued that his claim against the co-
conspirators did not accrue until July 2009 because that is when the co-conspirators
were still selling the allegedly stollen trade secret information. Id. The court
303 Nicholson Ex. 12, 2015 Communications.
57
rejected this argument, stating: “[a] continuing tort does not arise from one’s
copyrighting a song that another wrote and then repeatedly selling the song and
reaping profit from each sale. While it may be said that the injury continues with
each sale and receipt of a royalty, the act that caused the continuing inkjury was the
one act of copyrighting the song.” Id. at 21 (quoting Rogers v. ACrdella Veigel Inter
Vivos Trust No. 2, 162 S.W.3d 281, 290 (Tex. App.–Amarillo 2005, pet. denied)).
Pohl “discovered” “the misappropriation” in tihe summer 2014, or
alternatively when he exchanged letters with Nicholson in May and June 2015. If
anyone subsequently disclosed the trade secrets, it did not give rise to a new cause
of action. The express language of the TUTSA statute of limitation expressly
precludes “continuing tort” theories. TEXl. CIV. PRAC. & REM. CODE § 16.010(a).
Accordingly, Pohl’s TUTSA claim aMgainst Kassab is barred by limitations and
summary judgment must be granted.
3. Pohl’s coniversion and conspiracy claims are barred
by limitaftions.
Pohl’s common-law claims against Kassab for conversion and civil conspiracy
are also barred by the statute of limitations.
A person imust bring suit for the conversion of personal property “not later
than two yoears after the day the cause of action accrues.” TEX. CIV. PRAC. & REM.
CODE § 16.003(a). Generally, the limitations period for a conversion claim begins to
run at the time of the unlawful taking. Wells Fargo Bank Nw., N.A. v. RPK Capital
XVI, L.L.C., 360 S.W.3d 691, 700 (Tex. App.—Dallas 2012, no pet.). As established
above, whether his claim accrued in 2014 or 2015, more than two years had passed
58
by the time Pohl filed suit in August 2018. Therefore, his conversation claim is
barred.
Pohl’s conspiracy claim is also barred by limitations. The Texas Supreme
Court has established that a claim for civil conspiracy accrues when thke underlying
tort accrues, and the limitation period for the conspiracy claim beCgins to run at the
same time as that for the underlying tort. Agar Corp., Inc. v. Electro Circuits Int’l,
LLC, 580 S.W.3d 136, 138 (Tex. 2019). “Understanding tihat civil conspiracy is a
theory of derivative liability, it follows that a civil conspiracy claim should share
both accrual and the limitations period of the underlying wrong.” Id. at 144.
Because the underlying conversion and TUTSA claims are barred by limitations,
Pohl’s derivative conspiracy claim againlst Kassab is barred as well, and thus,
summary judgment must be granted.M
E. Pohl’s claims are conclusively negated.
1. Pohl’s TiUTSA claim is conclusively negated
because fhis alleged trade secrets were not actually
kept secret.
Kassab adopts othe argument made and evidence identified on pages 45-49 of
the Nicholson M
otlion as if set forth verbatim herein. See TEX. R. CIV. P. 58. That
argument andi evidence is equally applicable to Kassab and establishes that, as a
matter of law, Pohl did not take any measures, let alone reasonable measures, to
keep his alleged information or client lists secret. Accordingly, Poh’s TUTSA claim
against Kassab fails as a matter of law, especially regarding the four barratry
lawsuits.
59
2. Pohl’s claims fail because Pohl does not own the
purportedly stolen property and trade secrets.
“To bring a successful TUTSA claim, the claimant must first show that it
owns a trade secret in the information it seeks to protect.” Title Source, Inc. v.
HouseCanary, Inc., 612 S.W.3d 517, 527 (Tex. App.—San Antoenio 2020, pet.
denied); TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a), (6); M
organ v. Clements
Fluids S. Tex., Inc., 589 S.W.3d 177, 186-87 (Tex. App.—Tytler 2018, no pet.). The
claimant must also demonstrate that it is “the person or entity in whom or in which
rightful, legal, or equitable title to, or the right to eneforce rights in, the trade secret
is reposed.” TEX. CIV. PRAC. & REM. CODE § 134uA.002(3-a). Similarly, “[a] plaintiff
who has not shown title or some other right to possession of the property allegedly
converted may not maintain a suit in aconversion.” Catania v. Garage de Le Paix,
Inc., 542 S.W.2d 239, 242 (Tex. Civ. App.—Tyler 1976, writ ref'd n.r.e.). Pohl’s
TUTSA and conversion claims aegainst Kassab fail because, as a matter of law, he is
not the owner of the purportefdly stolen property that he alleges is his trade secrets.
Pohl alleges that his trade secrets that were allegedly misappropriated are
“attorney–client fee agreements with clients/prospective clients, compilations of
clients, other coinfidential communications between the clients/prospective clients
and Pohl, sopecialized legal forms …, … proprietary administrative client forms, fee-
agreement forms …, internal emails, propriety marketing information … and other
work product relating to claims of Pohl’s clients and prospective clients.”304 But this
304 Amended Petition, at ¶ 20.
60
information makes up the client file that is the property of the client, not Pohl,
under Texas law.
“[T]he Texas Supreme Court recognized explicitly that an attorney is an
agent of his client and implicitly that a client owns the contents okf his or her
file.” In re McCann, 422 S.W.3d 701, 704-705 (Tex. Crim. ACpp. 2013) (citing
Thomson v. Findlater Hardware Co., 205 S.W. 831, 832 (Tex. 1918)) (emphasis
added). “The attorney is the agent of the client, and the wiork product generated by
the attorney in representing the client belongs to the client.” In re George, 28
S.W.3d 511, 516 (Tex. 2000) (emphasis added). Under the disciplinary rules, an
attorney does not own and is therefore required to promptly surrender “papers and
property to which the client is entitled.” lTEX. DISC. R. PROF'L COND. 1.15. Texas
courts have interpreted the word “prMoperty” to mean “the client’s papers and other
documents that the lawyer had in his file.” TEX. COMM. ON PROF'L ETHICS Op. 570
(citing Hebisen v. State, 615 Si.W. 2d 866 (Tex. App. – Houston [1st Dist.] 1981, no
writ)). In other words, all documents and information in the client file is property of
the client and not Pohol. See George, 28 S.W.3d at 516.
Moreover, wlork product and attorney-client communications are owned by
the client as p
iart of the client’s file, and not the attorney. See TEX. COMM. ON PROF'L
ETHICS Op. 570 (noting that communications made to or on behalf of a client is work
product); Resolution Tr. Corp. v. H___, P.C., 128 F.R.D. 647, 648 (N.D. Tex. 1989)
(considering the issue of the ownership of files generated by a law firm during its
representation of a client and determining that the entire contents of the law firm’s
61
files concerning the representation of the client belonged to the client and ordering
the law firm to turn over the entire contents of the firm’s files, including work
product generated by the lawyer such as notes and legal memoranda). Therefore,
Pohl does not own the “internal emails … and other work product relakting to claims
of Pohl’s clients and prospective clients” that he claims is a trade sCecret.
While client lists can be considered a trade secret, the lists that Precision
solicited to hire Pohl are owned by Precision, not Pohl.305 Sicott Favre, the owner of
Precision, testified that Precision “solicited many of the marketing contacts
(individuals and businesses) on these lists for representation” by Pohl.306 Favre
testified that the “marketing lists contain the names of thousands of persons who
eventually became [Pohl’s] former clielnts, and/or whom [Pohl] solicited for
representation.”307 Favre made clear Mthat the very information that Pohl claims are
the trade secretes allegedly converted by Kassab “were and are solely the work
product and property of Pirecision, developed during the normal course of its
marketing business.”308
Because Pohl dooes not own the purported trade secrets or property that he
alleges had been clonverted, his TUTSA and conversion claims fail as a matter of
law. And becaiuse the conversion and statutory claims fail, Pohl’s claim for civil
conspiracy also fails. See Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631,
635 (Tex. 1997) (to prevail on a civil conspiracy claim, the plaintiff must show that
305 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
306 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
307 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
308 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 12 (emphasis added).
62
the defendant was liable for some underlying tort). Accordingly, Kassab is entitled
to judgment as a matter of law.
F. Pohl’s illegal acts (barratry and unauthorized practice of
law) precludes any form of recovery against the
whistleblowers because his acts are inexokrably
intertwined with his crimes. e
Pohl committed barratry and wants his whistleblowers to pay for his barratry
defense costs. But the well-established and common-sense tunlawful acts doctrine
precludes any recovery for Pohl’s crimes. Pohl violated the Texas laws and rules
governing lawyers by committing barratry and peracticing in other jurisdictions
without a license, sharing an office and fees wuith non-lawyers, and he failed to
protect confidential client information in the process. Pohl also committed the
unauthorized practice of law in multaiple states, including Louisiana, Alabama,
Florida, and Mississippi where he maintained an unauthorized law office. All of
Pohl’s claims for recovery are einextricably intertwined with his violations of the
laws of Texas and other jufrisdictions. According, his claims are barred by their
illegality.
1. The Unlawful Acts Doctrine.
More thani a century ago, Texas developed the Unlawful Acts Rule, which
provides: o
no action will lie to recover a claim for damages, if to establish it the
plaintiff requires aid from an illegal transaction, or is under the
necessity of showing or in any manner depending upon an illegal act to
which he is a party.
63
Gulf, C. & S. F. RY. Co. v. Johnson, 621, 9 S.W. 602, 602-03 (1888). Courts have
simplified this analysis to whether the claim or damages are “inextricably
intertwined” with the illegal act or whether the illegal act “contributed to the
injury.” McNally v. McNally, No. 02-18-00142-CV, 2020 WL 5241189k, at *10 (Tex.
App.—Fort Worth Sept. 3, 2020, pet. denied) (recognizing that tChe Unlawful Acts
Rule remains good law and using intertwined language); Andrew Shebay & Co.,
P.L.L.C. v. Bishop, 429 S.W.3d 644, 648–49 (Tex. App.—Hiouston [1st Dist.] 2013,
pet. denied). The purpose of this rule is to deter unlawful acts by making certain
“that the person should not even entertain the hope of indemnity for the offense
committed.” Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441, 450 (Tex.
App.—Houston [1st Dist.] 1993, no writ) (ilnternal quotations omitted). The rule can
be applied even if one or more defendMants have also committed an unlawful act. Id.
at 450-451 (denying recovery to plaintiff who sued his attorney for malpractice
claiming he signed a false afifidavit on the advice of his attorney who knew the
affidavit was unlawful).
2. Poohl knew his acts were illegal.
Pohl is welll aware that his barratry precludes his claims. He asserted
“illegality and/ior public policy” as a defense to paying his runners in the Mississippi
Litigation. As Pohl himself explains in his Motion to Dismiss Precision’s Amended
Complaint:
The gist of Precision’s claims, as plead in the Amended Complaint, is
that Walker/Seymour/Ladner agreed to accept or accepted money to
improperly solicit BP clients for the alleged “Pohl/Williamson joint
64
venture” and automobile accident clients for the alleged “Pohl/Ammons
joint venture.”
Neither Walker/Seymour/Ladner nor Precision, as their assignee, can
recover from Pohl under any cause of action. This is because: (1) under
Mississippi law, it is illegal and against public policy for a non-lawyer
to accept or agree to accept money to improperly solicit clientks for a
lawyer; (2) under Mississippi law, it is illegal and against pubelic policy
for lawyers to share legal fees with non-lawyers; andC (3) under
Mississippi law, a claimant may not recover under any theory
(including contract, tort, or equity) for illegal conduct or conduct that is
violative of public policy.309 t
And as Pohl himself further argued, he should be judicially estopped from arguing
against this position now. To allow him to do so, ase he says, “would allow [him] to
‘play fast and loose with the Court,’ which, in uturn, would negatively impact the
reputation of the judicial system.”310
The Mississippi Litigation courta agreed that illegality would apply to law
firms because Mississippi laws “make it illegal to accept or agree to accept money to
commence or further prosecutee a judicial action.”311 Additionally, the court went
onto explain that the Missisfsippi Rules of Professional conduct 5.4(a), 7.2(i), 7.3(a),
and 8.4(a) preclude attorneys from entering into fee-splitting arrangements with
non-lawyers. Precision could not violate attorney misconduct rules “as they are
neither lawyers inor a law firm. The only ‘immoral or illegal act,’ then, would have
been commoitted by [Pohl].”312 Pohl’s illegal acts precluded him and his co-
309 Nicholson Ex. 23, Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 192 ¶ 6.
310 Nicholson Ex. 23, Ex. 23: Doc. 192 ¶ 5
311 Nicholson Ex. 25, Order on Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 252 at 5.
312 Nicholson Ex. 25, Doc. 252 at 6.
65
conspirators from asserting a defense of illegality because of his unlawful
conduct.313
3. Texas courts have applied the Unlawful Acts Rule
to preclude claims arising from barratry.
Texas courts have also applied Unlawful Acts Rule in BP soelicitation cases.
In Truyen Luong v. McAllister, the appellate court affirmed summary judgment
where, as here, solicitation was an essential purpose of a tfee-sharing agreement
that rendered the contract void for illegality. No. 01-17-00198-CV, 2018 WL
3651103, at *4 (Tex. App.—Houston [1st Dist.] Auge. 2, 2018, pet. denied). Luong, a
paralegal, sued attorney McAllister for work uperformed on Gulf Coast Claims
Facility, BP, and Deepwater Horizon claims. Id. at *1. Luong alleged that he
brought a lot of customers to McAllistaer in return for an oral agreement to split
attorney’s fees. Id. at *1-2. McAllister moved to dispose of the claim arguing that
any summary judgment claime was barred by illegality, which the trial court
granted. Id. The court of apfpeals agreed, stating “[t]his type of barratry contract is
prohibited by statute as well as by disciplinary rule.” Id. at *3. The court explained:
[A] contract between an attorney and one not an attorney, providing
that the [noln-attorney] shall procure the employment of the [attorney]
by a thirid person for the prosecution of suits to be commenced in
consideriation of a fee to be procured or collected therein, is void as
againost public policy, independent of statutes prohibiting the same.
Id. at *3. In turn, any such contract is void “to benefit and protect the public.” Id.
Luong’s agreement to solicit was an “essential purpose” of their agreement, much as
the solicitation was an essential part of Pohl’s barratry practice. Id. at *4.
313 Nicholson Ex. 25, Doc. 252 at 6.
66
Accordingly, the appellate court affirmed the trial court’s grant of summary
judgment for McAllister, and this trial court should grant summary judgment here.
4. Texas courts have applied the Unlawful Acts Rule
to preclude claims for those who obtain property
illegally. k
Pohl is precluded from recovering damages on trade secretCs that he obtained
through illegal solicitation and the unauthorized practice of law. The case Sharpe v.
Turley, 191 S.W.3d 362 (Tex. App.—Dallas 2006, pet. deniied) is instructive on this
point. In Sharpe, the plaintiff, Sharpe, removed financial documents from a Roman
Catholic Diocese’s dumpster before alerting attorney Turley, who was suing the
Diocese. Turley obtained the documents from Sharpe via subpoena and following
the lawsuit both the Diocese and Sharpe clontended they were the rightful owners of
the documents. Sharpe subsequentMly sued Turley for obtaining the documents
through fraud. The trial court granted summary judgment under the Unlawful Acts
Rule and Fort Worth Court oif Appeals affirmed. Id. at 363-364. As the appellate
court explained, “Because [Sharpe’s] conduct in removing the Diocese’s items from
Diocesan property witohout its permission is the foundation of his allegation that he
has a superior riglht to the items and that alleged right is the basis of his fraud
claim against Tiurley, the trial court properly granted summary judgment in favor of
Turley [under the unlawful-acts rule].” Id. at 369.
As discussed above, Pohl admits to engaging runners to illegally solicit
clients with offers to pay legal fees and bounties to the runners in states where he is
not licensed. Ladner, Talley, Santana, and Maxwell also testified that Pohl offered
67
to pay them bounties for signing up clients. Former clients who hired Pohl,
including Barry, Speck, Bethley, Bikumbu, Cheatham Sr. and Reese, all testified
that they were illegally and unethically solicited to hire Pohl. And, Pohl admitted in
the Mississippi Litigation that such conduct would be illegal and akgainst public
policy. C
A person cannot “receive trade secret protection for information about
ongoing illegal activities.” Alderson v. United States, 718i F. Supp. 2d 1186, 1200
(C.D. Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012) (construing the Uniform Trade
Secrets Act and rejecting a claim of trade secret protection for fraudulent
accounting practices in connection with Medicare fraud); see also TEX. CIV. PRAC. &
REM. CODE §134A..008 (The Texas Uniforml Trade Secrets Act “shall be applied and
construed to effectuate its general puMrpose to make uniform the law . . . among the
states enacting it.”). “[T]here simply cannot be any trade secret about ongoing
illegality.” Alderson v. Uniteid States, 718 F. Supp. 2d at 1200. “Notably, this
conclusion is consistent with the underlying justifications of trade secrets law,
which include ‘[t]he moaintenance of standards of commercial ethics.”’ Id. (quoting
Kewanee Oil Co. lv. Bicron Corp., 416 U.S. 470, 481–482 (1974)). ‘“Commercial
ethics’ are not imaintained if businesses are able to conceal illegality.’” Id.
The existence of a privilege to disclose another's trade secret depends upon
the circumstances of the particular case, including the nature of the information,
the purpose of the disclosure, and the means by which the actor acquired the
information. A privilege is likely to be recognized, for example, in connection with
68
the disclosure of information that is relevant to public health or safety, or to the
commission of a crime or tort, or to other matters of substantial public concern.
Merckle GmbH v. Johnson & Johnson, 961 F. Supp. 721, 733 (D.N.J. 1997);
Restatement (Third) of Unfair Competition § 40, cmt. c (1995). The Repkorters’ Notes
to Section 40 indicate that “the policies underlying the privilege aCre similar to those
supporting the numerous state and federal 'whistleblower' statutes that prohibit
retaliatory personnel actions by employers against eimployees who disclose
violations to public officials.” Merckle GmbH, 961 F. Supp. at 733 quoting
Restatement (Third) of Unfair Competition § 40, Reporters’ Notes, cmt. c.
Thus, Kassab was privileged to disclose the illegal acts of Pohl even if to do so
was to disclose his alleged trade secrets. lAccordingly, Pohl cannot recover against
anyone for anything because be Macquired his client files and purportedly
confidential and protected information through illegal solicitation and unauthorized
practice of law. Thus, summairy judgment must be granted.
5. Pohl is precluded from claiming protection over
information he obtained through the unauthorized
proactice of law.
Moreover, Tlexas courts have consistently applied the Unlawful Acts Rule to
preclude recoviery by one who unlawfully practices a profession or occupation
without a required license, even if the illegal practice was not the direct cause of the
injury. Rule 5.05 of the Texas Rules of Professional Conduct makes it unlawful for a
Texas lawyer to commit the unauthorized practice of law in any other jurisdiction or
to assist a person who is not a member of the bar in the unauthorized practice of
69
law. See TEX. DISC. R. PROF’L COND. 5.05. Consequently, this Court should preclude
recovery for any claim arising from his unlawful practice in other jurisdictions.
For instance, the Dallas Court of Appeals refused to permit a car dealership
to recover from a sales agent that fraudulently withheld money relatinkg to the sale
of cars because the dealership did not have the proper county licenCse to sell cars:
Appellants argue allowing the Credit Union to prevail on the illegality
defense allows it to walk away with a windfall. Althotugh this may be
true under these facts, to hold otherwise would aillow individuals
to indirectly profit from a business they are directly prohibited
from engaging in unless properly licensed by statute. This we
will not do. . . . We agree with the Credit Uenion that the rule applies
and bars appellants’ claims arising in tort because they are
inextricably intertwined with their illegaul contract to sell automobiles
in Dallas County without a license.
Denson v. Dallas Cnty. Credit Union, 262 lS.W.3d 846, 855 (Tex. App.—Dallas 2008,
no pet.) (emphasis added). M
The law is even stricter when applied to regulated professions. The Supreme
Court of Texas refused to permiit an engineer to recover a fee where he had failed to
pay the renewal fee for his license and was, therefore, practicing engineering
without a current licoense and in violation of the Texas Occupational Code. The
Court noted thatl the requirement of proper licensure for engineers was to
“safeguard lifei, health and property.” M. M. M., Inc., v. Mitchell, 265 S.W.2d 584,
585–86 (1954).
Similarly, the Fort Worth Court of Appeals affirmed a denial of recovery for a
person who practiced architecture without a license and then sued his partner in
the architectural firm. The Court stated that to permit recovery was to undermine
70
the purpose of licensure, which was “to safeguard life, health, property and the
public welfare, and to protect the public against the irresponsible practice of the
profession of architecture.” Farha v. Elam, 385 S.W.2d 692, 695 (Tex. Civ. App.—
Fort Worth 1964, writ ref’d n.r.e.). k
As member of Texas Bar, Pohl is subject to the requiremenCts imposed by the
Texas Rules of Professional Conduct. Rule 5.05 prohibits Texas attorneys from
committing the unauthorized practice of law in other jurisdiictions:
Rule 5.05. Unauthorized Practice of Law
A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation
of the legal profession in that jurisdiction; or
(b) assist a person who is not a maember of the bar in the performance
of activity that constitutes the Munauthorized practice of law.
TEX. DISC. R. PROF’L COND. 5.05. The comment to the Rule explains, “Courts
generally have prohibited thei unauthorized practice of law because of a perceived
need to protect individuals and the public from the mistakes of the untrained and
the schemes of the uonscrupulous, who are not subject to the judicially imposed
disciplinary standlards of competence, responsibility and accountability. . . Limiting
the practice ofi law to members of the bar protects the public against rendition of
legal services by unqualified persons.” Id. at cmt. 1.
By his own admission, Pohl has never been licensed to practice law in any
state except Texas and Colorado.314 Yet, Pohl solicited and signed up auto accident
314 Nicholson Ex. 31, Pohl Aug 2016 Depo at 8.
71
clients in Mississippi,315 Louisiana,316 Missouri,317 and Arkansas.318 Santana
testified that she solicited BP clients for Pohl all across the Gulf Coast, including
Florida, Louisiana, and Mississippi.319 Further, Pohl assisted Walker, Ladner, and
the other runners in engaging in the unauthorized practice of law throkugh soliciting
and signing up clients in those jurisdictions. In doing so, Pohl hasC violated the laws
regulating Texas lawyers. Accordingly, Pohl cannot recover any fee related to his
unauthorized practice of law states in Louisiana, Alabamai, Florida, and Mississippi
where he maintained an unauthorized law office.
Pohl alleges that the Defendants “stole” his documents and information from
his “satellite law office” in Mississippi in 2014. In Mississippi, it is a misdemeanor
for a person to practice law without a licelnse. The Mississippi Supreme Court has
established that “the ‘practice of lawM’ has been defined to be as little as advising a
person of his legal rights.” In re Williamson, 838 So.2d 226, 234 (Miss. 2002) (citing
Darby v. Miss. State Bar, 185 iSo.2d 684, 687 (Miss. 1966)). The practice of law also
includes the solicitation of clients and the investigation of a potential client’s claim.
Forbes v. St. Martin, 1o45 So.3d 1184 (Miss. App. 2013).
Pohl’s admiltted solicitation of Mississippi clients and his admitted visits to
Mississippi to iconfer with actual and potential clients constituted the unauthorized
practice of law in Mississippi. Pohl’s operation of a “law office” in Mississippi, and
even its very existence, violated Mississippi law. Pohl admitted that he was not
315 Exhibit 16, Declaration of Mae Berry; Exhibit 18, Declaration of Arthur Speck.
316 Exhibit 19, Declaration of Alphonse Bethley; Exhibit 29, Declaration of Mark Cheatham, Sr.
317 Exhibit 22, Declaration of Heraclite Bikumbu.
318 Exhibit 35, Declaration of Lacy Reese.
319 Exhibit 6, September 26, 2016 Affidavit; Exhibit 8, Santana Depositions.
72
admitted to practice law in Mississippi and the law office was not associated with
any Mississippi lawyer.320 Further, Pohl violated the law by sharing his office with
non-lawyers. Pohl admitted that he unlawfully shared his office space, telephones
and computers with a non-lawyer company, Precision, in violation of thke Mississippi
Rules of Professional Conduct.321 In addition to his practice of lawC in the Mississippi
office and his meetings with potential and actual Mississippi clients, Pohl admits
that, in 2012-2014, he spent the majority of his timei practicing law at his
Mississippi “law office.”322
Further, Pohl assisted Walker, Ladner and the other runners in engaging in
the unauthorized practice of law in Mississippi by paying them for soliciting and
signing up clients on his behalf. Pohl aldmits that he gave Walker and Ladner
advertising brochures for them to disMtribute as widely as possible in Mississippi and
other states. He admits that he gave Walker and Ladner blank contracts that they
were to use to sign up clients fior him.
Walker, Ladner and the other runners illegally solicited on Pohl’s behalf all
of the Mississippianso listed in the Gandy and Brumfield Petitions.323 Of the 133
plaintiffs in the Glandy lawsuit, 103 of them were Mississippians.324 Of the 272
Brumfield plaiintiffs, 153 were Mississippians.
Those Petitions list people whom Pohl illegally solicited in Mississippi, either
directly or through his runners. Since solicitation of work for an attorney
320 See Nicholson Ex. 2, Pohl May 2018 Depo 112:19-13:10.
321 Nicholson Ex. 1, Pohl Dec 2021 Depo at 16:15-21.
322 Exhibit 60, Sept. 17 2018 Deposition of Michael Pohl, at 292-293.
323 Nicholson Ex. 29, Brumfield Petition and Nicholson Ex. 30, Gandy Petition.
324 Nicholson Ex. 30, Gandy Petition at 2-6.
73
constitutes the unauthorized practice of law in Mississippi, Pohl committed that
crime, or assisted the runners in committing it, as to every one of the Mississippi
plaintiffs in those two Petitions.
Pohl also committed the unauthorized practice of law in regard kto Mae Berry
and Lisa and Arthur Speck, former clients who subsequently suedC Pohl for illegally
soliciting them in Mississippi.325 Pohl sent a runner, Ken Talley, to each of their
homes to solicit them as clients for Pohl regarding theiri personal injury claims.
Talley solicited these people for Pohl and induced them to sign a Pohl attorney-
client contract.
Pohl committed a misdemeanor and violated other Mississippi laws by
engaging in the unauthorized practice of llaw in Mississippi while soliciting these
clients. Since all of the “trade secreMt” information regarding Mississippians and
others was gathered during Pohl’s illegal solicitation activities, he cannot show his
ownership of the information iwithout referencing his illegal activities. Pohl cannot
show that documents at his Mississippi “law office” were misappropriated without
showing that he opeorated an illegal law office in Mississippi. Consequently, the
Unlawful Acts Rulle precludes Pohl from recovering in this court for the alleged
misappropriatiion of “trade secrets” relating to Mississippians, or any others.
In Louisiana, it is a felony for a person or any entity not licensed to practice
law in Louisiana to engage in the practice of law; hold oneself out as being entitled
to practice law; provide legal advice; use language in advertising suggesting the
person is a lawyer or in any way suggesting that the person is entitled to practice
325 Nicholson Ex. 32, Berry Petition at 9-12.
74
law; or advertise the existence of a “law office of any kind.” LA Rev. Stat. 37:213.
Further, it is against Louisiana law for anyone not licensed to practice law to solicit
and sign up clients, or to investigate claims, in that state. In re Guirard, 11 So.3d
1017 (La. 2009). k
Walker, Ladner and the other runners illegally solicited oCn Pohl’s behalf all
of the Louisianans listed in the Gandy and Brumfield Petitions. Of the 133
plaintiffs in the Gandy lawsuit, 7 of them were Louiisianans.326 Of the 272
Brumfield plaintiffs, 54 were Louisianans.327
Those Petitions list people whom Pohl illegally solicited in Louisiana, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of llaw in Louisiana, Pohl committed that
crime, or assisted the runners in coMmmitting it, as to every one of the Louisiana
plaintiffs in those two Petitions.
In addition, Pohl commiitted the unauthorized practice of law in Louisiana in
relation to Mark Cheatham, Mark Cheatham, Jr. and Luella Miller, Louisianans
who filed the Cheathoam lawsuit against Pohl. As demonstrated above, Pohl sent
runner Ken Talleyl to solicit them in Louisiana, which means he assisted Talley in
engaging in thie unauthorized practice of law in Louisiana. Pohl personally traveled
to Louisiana to solicit and give legal advice to the Cheathams on at least two
occasions.
326 Nicholson Ex. 30, Gandy Petition at 2-9.
327 Nicholson Ex. 29, Brumfield Petition at 2-6.
75
Pohl also committed the unauthorized practice of law in regard to Sandra
Johnson and Alphonse Bethley, Louisiana residents who filed the Gandy lawsuit
against Pohl. Pohl sent runner Kirk Ladner to their home in Louisiana, where he
solicited them to hire Pohl for their personal injury claim and inducedk them to sign
a Pohl attorney-client contract. Accordingly, Pohl assisted LadnCer in engaging in
the unauthorized practice of law in Louisiana.
Pohl committed a misdemeanor and violated otiher Louisiana laws by
engaging in the unauthorized practice of law in Louisiana while soliciting these
clients. Since all of the alleged “trade secret” information regarding Louisianans
was gathered during Pohl’s illegal solicitation activities, he cannot show his
ownership of the information witholut referencing his illegal activities.
Consequently, the Unlawful Acts RuMle precludes Pohl from recovering in this court
for the alleged misappropriation of “trade secrets” relating to Louisianans.
It is a misdemeanor ini Alabama to engage in the unauthorized practice of
law. AL Code § 34-3-1 (2021). It is also against Alabama law to provide assistance to
a person engaging ino the unauthorized practice of law, which includes soliciting,
interviewing and lsigning up clients. Davis v. Alabama State Bar, 676 So.2d 306
(Ala. 1996). i
Walker, Ladner and the other runners illegally solicited on Pohl’s behalf all
of the Alabamians listed in the Gandy and Brumfield Petitions. Of the 133 plaintiffs
76
in the Gandy lawsuit, 21 of them were Alabamians.328 Of the 272 Brumfield
plaintiffs, 39 were Alabamians.329
Those Petitions list people whom Pohl illegally solicited in Alabama, either
directly or through his runners. Since solicitation of work for kan attorney
constitutes the unauthorized practice of law in Alabama, PohCl committed that
crime, or assisted the runners in committing it, as to every one of the Alabama
plaintiffs in those two Petitions. i
The unauthorized practice of law in Florida is a felony. Fla. Stat. 454.23.
The practice of law includes soliciting and interviewing clients. The Florida Bar v.
Meserve, 372 So.2d 1373 (Fla. 1979). It is a violation of Florida law to assist
someone engaging in the unauthorized pralctice of law. Id.
Walker, Ladner and the otherM runners illegally solicited on Pohl’s behalf all
of the Floridians listed in the Gandy and Brumfield Petitions. Of the 133 plaintiffs
in the Gandy lawsuit, 3 of theim were Floridians.330 Of the 272 Brumfield plaintiffs,
22 were Floridians.331
Those Petitionos list people whom Pohl illegally solicited in Florida, either
directly or throulgh his runners. Since solicitation of work for an attorney
constitutes thei unauthorized practice of law in Florida, Pohl committed that crime,
or assisted the runners in committing it, as to every one of the Florida plaintiffs in
those two Petitions.
328 Nicholson Ex. 30, Gandy Petition at 2-9.
329 Nicholson Ex. 29, Brumfield Petition at 2-6.
330 Nicholson Ex. 30, Gandy Petition at 2-9.
331 Nicholson Ex. 29, Brumfield Petition at 2-6.
77
6. All of Pohl’s claims fail because he cannot show
ownership of the alleged trade secrets or damages
without showing that he acquired the information
through barratry or the unauthorized practice of
law.
Simply put, Pohl cannot prove that he is the owner of the ktrade secret
information without showing how he acquired it. The evidence Cpresented herein,
and in the Nicholson Motion, demonstrates that Pohl acquired the information
through illegal activity which included barratry and the iunauthorized practice of
law in multiple states and assisting others to engage in the unauthorized practice of
law. Since Pohl cannot prove his case without relying on his illegal activity, the
Unlawful Acts Rules bars his claims.
Pohl claims as damages his expenlses in defending against the Cheatham,
Berry, Gandy and Brumfield lawsuMits. He claims as damages the expenses he
incurred in defending against the Barratry Litigation and grievance filed by
Kassab. Pohl also claims thati publicity about his illegal activities caused economic
harm to his “law practice.” Thus, Pohl’s claimed damages flow solely from the fact
that people discoveredo his unlawful acts.
Pohl cannotl claim the expense of defending against the Cheatham, Berry,
Gandy and Briumfield lawsuits without addressing what the lawsuits are about. All
four of those lawsuits were filed against him by persons who were illegally solicited
by him, including some of his former clients. One of the cases (Barry) settled, and
two of the cases (Brumfield and Gandy) were dismissed on limitations. See
Brumfield v. Williamson, 634 S.W.3d 170 (Tex. App.—Houston [1st Dist.] 2021, pet.
78
denied); Gandy v. Williamson, 634 S.W.3d 214, 219 (Tex. App.—Houston [1st Dist.]
2021, pet. denied). Although the last case (Cheatham) was dismissed on summary
judgment, the court of appeals recently reversed because there was evidence of a
“barratry scheme.” See Cheatham v. Pohl, No. 01-20-00046-CV, 20k22 Tex. App.
LEXIS 649, at *25-26 (Tex. App.—Houston [1st Dist.] Jan. 27,C 2022, no pet. h.)
(mem. op.). Pohl cannot claim that Defendants caused him to defend against these
lawsuits without showing these people sued him for commiitting barratry.
Likewise, the Texas Bar grievance which Kassab submitted against Pohl is
based on Pohl’s illegal acts, which included barratry. Pohl cannot claim that
Defendants caused him to defend against a bar complaint without showing that it
concerned his unlawful activities. Regardlelss, Pohl’s claim for damages arising from
any grievances are barred by immuniMty, as stated above.
Finally, Pohl claims that publicity about his illegal activities damaged his
law practice. Pohl has not andi cannot prove these damages without showing that he
committed unlawful acts. Since his claimed damages all spring from his former
clients and others beocoming aware of his barratry and other illegal activities, he
cannot prove any olf his damages without discussing barratry.
G. Piohl is not permitted to recovery as damages the
oattorney’s fees he incurred in the four barratry lawsuits
and two disciplinary grievances.
Damages in a TUTSA suit are generally comprised of losses such as “the
value of the plaintiff’s lost profits, the defendant’s actual profits from the use of the
secret, the value a reasonably prudent investor would have paid for the trade secret,
79
the development costs the defendant avoided by the misappropriation, and a
reasonable royalty.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710–11
(Tex. 2016).
There are no differences between existing Texas common lakw and
TUTSA regarding the economic damages available for traede secret
misappropriation. Under Texas common law, the plCaintiff was
permitted to recover damages based on the value of what has been lost
by the plaintiff (lost profits) or the value of what has been gained by
the defendant (unjust enrichment). The plaintiff alsot could recover a
reasonable royalty for the defendant’s use of the plaiintiff’s trade secret.
Joseph F. Cleveland, Jr., J. Heath Coffman, The Texas Uniform Trade Secrets Act,
Tex. J. Bus. L. 323, 328 (2013).
Nonetheless, Pohl here seeks as damages the fees he incurred in defending
against the four underlying barratry suitsl and two disciplinary grievances. Nothing
the TUTSA statute permits recoverMy of such “damages”—indeed, the prevailing
party is not even entitled to recovery of its attorney’s fee under TUTSA, but instead,
the trial court has discretion wihether to award fees and only if willful and malicious
misappropriation exists. T EX. CIV. PRAC. & REM. CODE § 134A.005. If the TUTSA
plaintiff is not guaraonteed recovery of fees in the actual TUTSA suit, there is no
reason to permit thle TUTSA plaintiff to recover fees incurred in other suits.
Moreoveir, even applying common-law, Pohl is not entitled to attorney’s fees
as damages. “Whether a party is entitled to attorney’s fees is a question of
law.” Sunchase IV Homeowners Ass’n, Inc. v. Atkinson, 643 S.W.3d 420, 422 (Tex.
2022). “In Texas, attorney’s fees expended in prior litigation generally are not
recoverable as damages; attorney’s fees are recoverable only when an agreement
80
between the parties so provides.” Martin-Simon v. Womack, 68 S.W.3d 793, 797–98
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). As the Supreme Court has
explained, “For more than a century, Texas law has not allowed recovery of
attorney’s fees unless authorized by statute or contract. This rule isk so venerable
and ubiquitous in American courts it is known as ‘the American CRule.’” Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006). The Supreme Court of
Texas has never adopted that equitable “tort of another” eixception to the American
Rule. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research
Corp., 299 S.W.3d 106, 119 (Tex. 2009) (declining to address whether the “tort of
another” exception set out in section 914(2) of the Restatement should be adopted in
Texas); see also Alvarez v. Agyemang, No.l 02-19-00301-CV, 2020 WL 719440, at *3
(Tex. App.—Fort Worth Feb. 13, 2020M, no pet.) (mem. op.) (“We do not hold that the
equitable exception allows the recovery of a prevailing party’s attorney’s fees even
in the absence of a contract or iauthorizing statute.
Indeed, the Texas Supreme Court’s language in Gullo and that court’s failure
to expressly adopt oor reject this equitable theory indicate that equity does not
extend this far.”); lRiner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011,
no pet.) (“Givein the supreme court’s faithful adherence to the American Rule, and
its strong statement in Tony Gullo that trial courts lack the inherent authority to
award attorney’s fees contrary to the Rule, we decline to adopt a
new equitable exception to the Rule.”); Naschke v. Gulf Coast Conference, 187
S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (declining to
81
adopt the “tort of another” exception to the American Rule because “we are bound to
follow the existing laws of the State, we are not at liberty to adopt a theory of
recovery that has not been enacted by the Legislature or adopted by the Texas
Supreme Court”).332 k
No statute or contract provides Pohl the right to recover hisC attorney’s fees in
the two barratry suits he prevailed on, nor on the barratry suit he settled and the
ongoing suit. Application of the American Rule to preiclude Pohl’s request for
attorney’s fees damages makes sense here especially because Pohl was sued by
persons accusing him of improperly soliciting them in violation of barratry laws and
ethical rules—those persons exercised their right and choice to file suit against Pohl
for his wrongdoing. Under such circumstalnces, it would be inequitable and violate
public policy to allow Pohl to insuMlate himself from responsibility for his own
wrongdoing.
In a similar vein, even iif some equitable exception could apply here to permit
a plaintiff to recover its attorney’s fees defending an underlying lawsuit, it would
apply only if Pohl owere wholly innocent relative to the barratry suits and
grievances. See Pelr-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 WL
1539291, at *8i (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.)
332 Prior to Tony Gullo and Akin Gump, the First Court of Appeals recognized the equitable “tort of
another” exception to the general rule. See Massey v. Columbus State Bank, 35 S.W.3d 697, 701 (Tex.
App.—Houston [1st Dist.] 2001, no pet.). Tony Gullo and Akin Gump have driven home that the
general rule against allowing recovery of fees as damages is firm and the Fourteenth Court of
Appeals’ rejection of the “tort of another” exception in Martin-Simon and Naschke should be applied
here, especially because Pohl’s own wrongdoing caused him to be sued for barratry. See also
Stumhoffer v. Perales, 459 S.W.3d 158, 168 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)
(“Texas has long adhered to the American Rule with respect to awards of attorney’s fees, which
prohibits the recovery of attorney’s fees from an opposing party in legal proceedings unless
authorized by statute or contract.”).
82
(“[U]nder the ‘tort of another’ exception, BSG is not entitled to
recover attorney’s fees incurred in the arbitration because it is not a wholly
innocent party.”); Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834–35
(Tex. App.—Austin 2002, no pet.) (holding trial court properly refused kto award fees
to plaintiff because it was found partly negligent in underlyCing suit); Dayton
Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—Dallas 1987, writ
denied) (“Therefore, in the present case, Eldridge is not ani innocent party forced to
incur costs and expenses, including attorneys’ fees, to be treated as the legal
consequences of some original wrongful act of another and permitted to be recovered
as damages.”).
As an initial matter, the Cheathalm barratry suit is ongoing, with Pohl
recently losing the appeal in that caMse, even on rehearing, meaning, putting aside
all the other reasons why his claims fail, it is premature for him to be seeking fees
related to Cheatham. Regaridless, the fact the Pohl violated ethical rules and
committed barratry in having others solicit the persons who filed the barratry suits
proves he was not whoolly innocent.
Finally, beclause, as established above, Pohl failed to maintain the secrecy of
his alleged traide secrets, he cannot recover any damages involving those alleged
trade secrets even if attorney’s fees could be recovered as damages:
Like injunctive relief, a monetary recovery for trade secret
misappropriation is appropriate only for the period in which
information is entitled to protection as a trade secret, plus the
additional period, if any, in which a misappropriator retains an
advantage over good faith competitors because of misappropriation.
Actual damage to a complainant and unjust benefit to a
83
misappropriator are caused by misappropriation during this time
alone. See Conmar Products Corp. v. Universal Slide Fastener Co., 172
F.2d 150 (CA2, 1949) (no remedy for period subsequent to disclosure of
trade secret by issued patent); Carboline Co. v. Jarboe, 454 S.W.2d 540
(Mo. 1970) (recoverable monetary relief limited to period that it would
have taken misappropriator to discover trade secret without
misappropriation). k
Uniform Trade Secrets Act at § 3 DAMAGES, comment. HenCce, for numerous
reasons, Pohl’s cannot recover his attorney’s fees as damages in this suit.
NO-EVIDENCE MOTION FOR SUMMARY JUiDGMENT
As stated above, Pohl sued the Kassab Defendants for (1) conversion, (2)
violations of the Texas Uniform Trade Secrets Actg (“TUTSA”), and civil conspiracy.
Because Pohl, after an adequate time for discovery, can produce no evidence to
support each of these claims he has alleged against the Kassab Defendants, the
Court should grant this motion and dMismiss Pohl’s claims with prejudice.
oSTANDARD
Under Texas Rule of Civil Procedure 166a(i), after an adequate time for
discovery has elapsed, the party without the burden of proof may, without
presenting evidence, omove for summary judgment on the grounds that there is no
evidence to supporl t an essential element of the non-movant’s claim. TEX. R. CIV. P.
166a(i). The buirden then shifts to the non-movant to produce evidence that raises a
fact issue non the challenged elements. Howell v. Hilton Hotels, 84 S.W.3d 708, 711-
12 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “If the proffered evidence [in
response to a motion for summary judgment] is so weak as to create no more than a
‘mere surmise or suspicion’ of a vital fact, less than a scintilla of evidence exists
because such evidence lacks probative force, and in legal effect, is no evidence at
84
all.” Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied) (citing Kindred v. Conn/Chem., Inc., 650 S.W.2d 61,
63 (Tex. 1983)). Further, “some suspicion linked to other suspicion produces only
more suspicion, which is not the same as some evidence.” Marathon Cokrp. v. Pitzner,
106 S.W.3d 724, 727–28 (Tex. 2003) (quoting Johnson v. Brewer C& Pritchard, P.C.,
73 S.W.3d 193, 210 (Tex. 2002)).
An adequate time for discovery has passed for Poihl to obtain evidence to
prove his affirmative claims. Indeed, “[a] discovery period set by pretrial order
should be adequate opportunity for discovery unless there is a showing to the
contrary[.]” TEX. R. CIV P. 166a cmt. That date has long passed. Therefore, this no-
evidence motion for summary judgment onl Pohl’s affirmative claims is proper.
RGUMENT
A. Pohl has no evidence to support his conversion claims
against the Kassaeb Defendants.
To establish a claim ffor conversion, a plaintiff must prove that: (1) plaintiff
owned or had possession of the property or entitlement to possession, (2) defendant
unlawfully and without authorization assumed and exercised control over the
property to the eixclusion of, or inconsistent with, the plaintiff's rights as an owner,
(3) plaintiffo demanded return of the property, and (4) defendant refused to return
the property. Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386-87 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). Pohl has no evidence of elements (1), (2),
(3) or (4).
85
First, Pohl has no evidence that he owned or had possession of the property
or entitlement to possession of any of the allegedly converted property. Second, Pohl
has no evidence that the Kassab Defendants unlawfully and without authorization
assumed and exercised control over the property to the exclusion of, ork inconsistent
with Pohl’s rights as an alleged owner. Third, Pohl has no Cevidence that he
demanded return of the property from the Kassab Defendants. Fourth, Pohl has no
evidence that the Kassab Defendants refused to return thie property after demand
was allegedly made. Accordingly, Pohl’s conversion claim against the Kassab
Defendants must be dismissed on summary judgment.
Moreover, a plaintiff who establishes conversion is entitled to either (1) the
return of the property and damages forl its loss of use during the time of its
detention, or (2) the value of the pMroperty. See Wiese v. Pro Am Svcs. Inc., 317
S.W.3d 857, 862 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Pohl cannot
produce evidence as to the damiages for the property’s loss of use during the time of
its detention or the value of the allegedly converted property. For these reasons too,
Pohl’s conversion claoim against the Kassab Defendants must be dismissed on
summary judgmenlt.
B. Piohl has no evidence to support his claims of TUTSA
oviolations.
The elements of a cause of action for trade-secret misappropriation under
TUTSA are the following: (1) the plaintiff owned a trade secret; (2) the defendant
misappropriated the trade secret; and (3) the misappropriation proximately caused
plaintiff damages. TEX. CIV. PRAC. & REM. CODE §§ 134A.002(1), (3), (6),
86
134A.004(a); Malone v. PLH Group, Inc., No. 01-19-00016-CV, 2020 WL 1680058, at
*5 (Tex. App.—Houston [1st Dist.] Apr. 7, 2020, pet. denied) (mem. op.); Morgan v.
Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 186 (Tex. App.—Tyler 2018, no pet.).
Pohl has no evidence to support elements (1), (2) or (3). k
First, Pohl must produce evidence that he owned a purpoCrted trade secret.
Pohl complains that the Kassab Defendants stole his “client files” to solicit his
clients. However, Pohl cannot produce any evidence thiat he owns a client file
because a lawyer does not own his client’s files as a matter of law.
Under TUTSA, for something to be a “trade secret,” the owner must have
taken reasonable measures under the circumstances to keep the information secret,
and the information must derive indepenldent economic value, actual or potential,
from not being generally known to,M and not being readily ascertainable through
proper means by, another person who can obtain economic value from the disclosure
or use of the information. TEiX. CIV. PRAC. & REM. CODE § 134A.002(6). Pohl can
present no evidence to establish this element. Pohl has no evidence that, for each
purported trade secreot, Pohl took reasonable measures under the circumstances to
keep the informatlion secret or that the information derived independent economic
value, actual oir potential, from not being generally known to, and not being readily
ascertainable through proper means by, another person who can obtain economic
value from the disclosure or use of the information. Moreover, a person must have
rightful, legal, or equitable title to trade secrets in order to be an “owner.” Id. at §
87
134A.002(3-a). Pohl has no evidence that he had a rightful, legal, or equitable title
to the purported trade secrets.
Second, Pohl has no evidence that the Kassab Defendants misappropriated
any of Pohl’s purported trade secrets. Additionally, to prove “willful aknd malicious
misappropriation,” a plaintiff must show defendant engagedC in “intentional
misappropriation resulting from the conscious disregard of the rights of the owner
of the trade secret.” Id. at § 134A.002(7). Pohl has no eividence that the Kassab
Defendants engaged in willful and malicious appropriation of any alleged trade
secret or that the Kassab Defendants engaged in intentional misappropriation
resulting from the conscious disregard of the rights of Pohl. Pohl can produce no
evidence of the Kassab Defendants’ intent.l
Third, Pohl has no evidenMce that the Kassab Defendants’ alleged
misappropriation of any alleged trade secrets proximately caused Pohl injury or
actual damages recoverable uinder TUTSA. Pohl has no evidence supporting his
claim for attorney’s fees. Pohl has no evidence of business losses.
Additionally, aossuming, arguendo, that the law allowed Pohl to recover as
damages the attolrney’s fees he incurred in defending against the four barratry
lawsuits, Pohli has no evidence (1) showing as to each of the plaintiffs in each of
those lawsuits that he had rightful, legal, or equitable title to their names and
contact information—meaning he properly and ethically came to possesses and can
properly and ethically use that information—(2) he took reasonable measures under
the circumstances to keep secret their names and contact information, and the
88
information derived independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable through proper means by,
another person who can obtain economic value from the disclosure or use of the
information, (3) the Kassab Defendants misappropriated their namesk and contact
information, and that (4) the Kassab Defendants’ misappropriatiCon of their names
and contact information proximately caused plaintiff actual damages recoverable
under TUTSA. i
Fourth, Pohl has no evidence that he is wholly innocent in the illegal
obtainment of any client for which his claims are based. Meaning, Pohl has no
evidence to show that he was not breaking the law when he obtained a client for
which his claims are based. The fact thatl he admittedly violated the unauthorized
practice of law during the entire perMiod for which he obtained clients or potential
clients, proves there is no evidence of his legally obtaining the clients for which he
basis his claims. i
C. Pohl has no evidence to support his conspiracy claim.
An action for coivil conspiracy has five elements: (1) a combination of two or
more persons; (2) lthe persons seek to accomplish an object or course of action; (3)
the persons reiach a meeting of the minds on the object or course of action; (4) one or
more unlawful, overt acts are taken in pursuance of the object or course of action;
and (5) damages occur as a proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556
(Tex. 2005); Haynes v. Bryan, No. 01-20-00685-CV, 2022 WL 2024837, at *4 (Tex.
App.—Houston [1st Dist.] June 7, 2022, no pet. h.).
89
Pohl has no evidence that (1) the Kassab Defendants were involved in a
combination of two or more persons; (2) that any persons involved in the alleged
conspiracy sought to accomplish an object or course of action; (3) the persons
involved reached a meeting of the minds on the object or course of actikon; (4) one or
more unlawful, overt acts were taken in pursuance of the object oCr course of action;
or (5) damages occurred as a proximate result.
CONCLUSION & PRAYER
For the foregoing reasons, the Court should grant Kassab’s Motion to
Reconsider Kassab’s Traditional Motion for Summary Judgment and No-Evidence
Motion for Summary Judgment and order that Plaintiffs, Michael A. Pohl and Law
Office of Michael A. Pohl, PLLC take lnothing on their claims against Lance
Christopher Kassab and The Kassab MLaw Firm.
i Respectfully submitted,
THE KASSAB LAW FIRM
a LANCE CHRISTOPHER KASSAB
c Texas State Bar No. 00794070
f lance@kassab.law
DAVID ERIC KASSAB
U Texas State Bar No. 24071351
david@kassab.law
NICHOLAS R. PIERCE
Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
90
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE e
I certify that on this date, January 4, 2023, I electronically filed this
document with the Clerk of the Court using the eFile.TXCourts.gov electronic filing
system which will send notification of such filing to all partiets or counsel of record.
LBANCE CHRISTOPHER KASSAB
91
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 71470463
Status as of 1/4/2023 1:23 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 1/4/2023 12:12:54 PM SENT
Jean C.Frizzell jfrizzell@reynoldgsfrizzell.com 1/4/2023 12:12:54 PM SENT
Harris Wells hwells@reynouldsfrizzell.com 1/4/2023 12:12:54 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/4/2023 12:12:54 PM SENT
Scott M.Favre scott@yfavrepa.com 1/4/2023 12:12:54 PM SENT
Lawyer Wade lawayerwade@hotmail.com 1/4/2023 12:12:54 PM SENT
Andrea Mendez andrea@kassab.law 1/4/2023 12:12:54 PM SENT
Lance Kassab olance@kassab.law 1/4/2023 12:12:54 PM SENT
David Kassab david@kassab.law 1/4/2023 12:12:54 PM SENT
Jason M.Ciofalo f jason@ciofalolaw.com 1/4/2023 12:12:54 PM SENT
Chris C.Pappas cpappas@krcl.com 1/4/2023 12:12:54 PM SENT
Todd Taylor p ttaylor@jandflaw.com 1/4/2023 12:12:54 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 1/4/2023 12:12:54 PM SENT
Nicholas Pierce a l nicholas@kassab.law 1/4/2023 12:12:54 PM SENT
Murray JFogler mfogler@foglerbrar.com 1/4/2023 12:12:54 PM SENT
Murray Fogler o mfogler@fbfog.com 1/4/2023 12:12:54 PM SENT
Andrew JohnsUon ajohnson@thompsoncoe.com 1/4/2023 12:12:54 PM SENT
Benjamin Ritz britz@thompsoncoe.com 1/4/2023 12:12:54 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 1/4/2023 12:12:54 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 1/4/2023 12:12:54 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 1/4/2023 12:12:54 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 1/4/2023 12:12:54 PM SENT
D Kassab david@kassab.law 1/4/2023 12:12:54 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/4/2023 12:12:54 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 71470463
Status as of 1/4/2023 1:23 PM CST
Case Contacts r i
L Kassab lance@kassab.law 1/4/2023 12:12:54 PM SENT
Kelly Skelton reception@kassab.lasw 1/4/2023 12:12:54 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 1/4/2023 12:12:54 PM SENT
Non-Party Witness Billy Shepherd bshepherd@supcounsel.com 1/4/2023 12:12:54 PM SENT
Lance Kassab eserve@kassab.law 1/4/2023 12:12:54 PM SENT"