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12 2018-11-07 OA Kassab 3rd Amended Answer Kassab's Third Amended Answer, Affirmative Defenses, Counterclaim, and Designation of Responsible Third Parties Filed November 7, 2018 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. The day after the Second Amended Answer. Third amended responsive pleading, further expanding counterclaims from 235 to 242 assigned barratry claimants. Adds additional detail to the Designation of Responsible Third Parties section regarding Shepherd's knowledge of Favre's document transfers to third parties prior to the Federal Litigation settlement. PLEAD-1 N/A Phase 1 2018-11-07_OA_Kassab-3rd-Amended-Answer-CC_FILED.pdf Plaintiffs take nothing; Kassab recovers on counterclaims and against third-party defendants including actual and consequential damages, statutory damages, pre- and post-judgment interest, attorneys' fees and costs, and all other just relief 11/7/2018 4:22 PM Chris Daniel - District Clerk Harris County Envelope No. 28873961 By: ARIONNE MCNEAL Filed: 11/7/2018 4:22 PM CAUSE NO. 2018-58419 MICHAEL A. POHL, et al § IN THE DISTRICT COURT V. § OF HARRIS COUNTY, TEXAS SCOTT FAVRE, et al § 189th JUDICIrAL DISTRICT DEFENDANTS, LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAW FIRM’S THIRD AMENDED ANSWER, AFFIRMATIVE DEFENSES AND COUNtTERCLAIM, AND DESIGNATION OF RESPONSIBLE THIRD PARTIES TO THE HONORABLE JUDGE OF SAID COURT: s COMES NOW, Defendants, Lance Christopher Kgassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm and files this thBeir Third Amended Answer, Affirmative Defenses, and Counterclaim, and Designation of Ryesponsible Third Parties, and would respectfully show the Court as follows; a RULfE 47 STATEMENT The Kassab Defendants, in teheir capacity as Counter-Plaintiffs, seek monetary relief of more than $1,000,000.00. f y PARTIES Plaintiff, Michael A. Pohl is an individual lawyer residing in Colorado. Plaintiff, Laawl Offices of Michael A. Pohl is a law firm set up for the practice of law in various states of ithe union, including Texas. Defnendant, Scott Favre is a nonresident individual residing in Mississippi. Defendant, Scott M. Favre, PA, LLC is a nonresident limited liability company located in Mississippi. Defendant, Precision Marketing Group, LLC is a nonresident limited liability company located in Mississippi. Defendant, F. Douglas Montague III is a nonresident individual residing in Mississippi. Defendant, Montague, Pittman & Varnado, PA is a nonresident professional association located in Mississippi. Defendant, Tina Nicholson is an individual residing in Texas. k Defendant, Baker Nicholson, LLP, d/b/a Baker Nicholson Law Firm ils a limited liability partnership located in Texas. c Defendant, Counter-Plaintiff, Lance Christopher Kassab is an sindividual residing in Texas. Defendant, Counter-Plaintiff, Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm is a professional corporation located in Texas. JURISDICTION AND VENUE This matter is within the jurisdictional lnimits of this Court and Plaintiffs, Counter- Defendants, Michael A. Pohl and Law Officers of Michael A. Pohl (“Pohl”) and Defendants, Counter-Plaintiffs, Lance Christopher Kassab (“LCK”) and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm (“Kassab, P.C.”) (collectively “Kassab”) are subject to the Court’s jurisdiction. Venue is proper in thifs county because one or more of the defendants are residents of this county and because a substantial part of the acts and/or omissions that form the basis of this suit occurred in this county. a l GENERAL DENIAL Defendant, Counter-Plaintiff Kassab generally denies all allegations made by Plaintiffs, Counter-Denfendants, Michael A. Pohl and Law Offices of Michael A. Pohl, and requests the Court to require Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl to carry their burden of proof regarding all allegations against Kassab. AFFIRMATIVE DEFENSES Defendant, Counter-Plaintiff Kassab pleads the following affirmative defenses: 1. Statute of limitations 2. Justification. 3. Estoppel. 4. Waiver. t 5. Ratification. t 6. Release.  7. Unclean hands. e 8. Contribution. u 9. Failure to mitigate damages. n 10. Lack of standing. r 11. Accord and Satisfaction. 12. Assumption of the Risk.  13. Illegality/Criminal Actfs 14. First Amendment.  15. Attorney Imm unity. 16. In Pari Daellicto. 17. Res juidicata. SPECIFIC DENIALS Defendants, Counter-Plaintiffs specifically deny that all conditions precedent regarding Plaintiffs claims of conversion and theft of trade secrets have been performed or occurred prior to Plaintiffs filing suit against Kassab. FACTUAL BACKGROUND AND PROCEDURAL HISTORY LCK is a lawyer practicing law with Kassab, P.C., a law firm in Houston, Texas focusing solely on plaintiffs’ legal malpractice. Kassab filed four lawsuits on behalf of over four hundred clients against Pohl (the “Harris County Lawsuits”). The main allegations against Pohl is civil barratry and conspiracy to commit barratry, a third-degree felony in Texas. Pohl conspired with his wife, Donalda Pohl (“Dona”), his paralegal, Edgar Jaimes (“Jaimes”t), and three runners in Mississippi to illegally solicit clients on behalf of Pohl. Dona owns at sham lending company in Texas called Helping Hands Financing, LLC (“HH Texas”). Jaimes runs the day-to-day operations of HH Texas. The three runners are Scott Walker (“Walkere”), Steve Seymour (“Seymour”) and Kirk Ladner (“Ladner”). The three runners own and ouperate two other sham companies called Helping Hands Group, LLC and Helping Hands Finnancial, LLC (collectively “HH Mississippi”). The three runners also owned Precision Markerting Group, LLC (“Precision”) which they sold to Scott Favre and/or his companies (collectively “Favre”). With regard to the clients obtained in the BP Litigation, Walker, Seymour and Ladner hired other runners to literally go up anfd down streets knocking on doors to solicit clients on behalf of Pohl for lawsuits against British Petroleum. Precision paid these runners as much as $300-$400 for every client they obtained. Pohl then paid Precision as much as $1,500 for every client Precision referred tao lPohl. Pohl also offered and agreed to pay Walker, Seymour and Ladner a percentage of hisi legal fees once the cases settled. This percentage was disguised as an hourly rate of $1,500.00 per hour. With regard to auto accidents, Pohl set up a “Google Alerts” to be notified whenever there was a horrific rollover crash. Pohl would then send his runners to hospitals, homes and funerals to contact the families of the injured. The runners would use their sham companies, “Helping Hands” to act as though they were genuinely there to help these victims. The runners would falsely tell these victims that they were there to help the victims’ in their time of need in the form of money for burial services, food, clothing, lodging, etc. In reality, the runners’ contacted these families under false pretenses with the sole objective to take advantage of these victims and their families while they were emotionally distraught and not thinking straight in ordker to lock them into contracts which allowed the runners to select a lawyer for the victim. Tlhe victims and the family members were encouraged to hire Pohl and told they could not gect the money unless they agreed to hire Pohl. Pohl would pay the runners as much as $7,5s00 per client and Pohl also promised the runners as much as 33% of Pohl’s legal fees on the back end when the case settled. Additionally, HH Texas would pay HH Mississippi $2,500 for every client referred to HH Texas to “loan” money to these victims and their family. Pohl used this procedure as an attempt to put an additional layer between him and the actual runners. Pohl also helped the runners form anaother sham entity, the GM Settlement Verification Team (“GM Team”) after General Motors, Inc. issued a recall on cars due to faulty ignition switches which effected the safe opereation of the airbag systems on vehicles. Thus, the GM Team was designed to look official as iff it was part of General Motors. The conspiracy was to form an official looking entity as if GyM was contacting people who had been harmed when airbags failed to deploy in relation toC the ignition recall. In reality, this was just another sham company used to trick clients into hiaring Pohl. Again, Pohl would pay Walker and Ladner, through their sham entity, the GM Tfeam, a fee for every client it referred to Pohl, in addition to a percentage of fees on the baUck end. Pohl knew what he was doing was illegal barratry. Accordingly, he knowingly formed entities that he perceived would insulate him from liability. In fact, Walker testified that although he and Pohl called it “marketing services” or “marketing money” it was “clear to [him] it was barratry.” In fact, Walker considered himself and his company “a pass-through for barratry money.” All total, Walker, Ladner and Precision received over $5 million in “barratry pass-through money” from Pohl and other lawyers to solicit potential clients with claims, both auto-accident victims and those involved in the BP Deepwater Horizon litigation. k One of the runners hired by Pohl and Walker to solicit illegally solicit cllients on behalf of Pohl was Magdalena Santana (“Santana”). In her September 24, 2016 afcfidavit, Santana testified that Pohl sent her on “dozens and dozens of car wreck cases all ovser the country.” Pohl would email Santana the link of news coverage he obtained through Google Alerts depicting an accident and asked her “to go to the victim or the victim’s family and try to get them to sign up with him.” Santana swore under oath that Pohl agreed to pay her “$5,000 per case that [she] signed, plus a percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even if the family ... rejected [her].” Santana was instructed by Paohl to “approach the victims and their families while they were vulnerable, in the emergency room, their hospital rooms or at the funerals.” Pohl told Santana that minorities “were especieally vulnerable since they tended not to know that the law prohibited barratry.” Accordingf to Pohl, they “were easier to sign up.” Pohl would give Sanytana “money to give to the victims or their families” but would give the money to the client C“if they agreed to sign a Pohl representation contract.” Pohl advised Santana that the money was aa “foot in the door” but instructed Santana not to mention anything about hiring a lawyer “untilf after they agreed to take the money.” “If the client agreed to hire Pohl, then [Santana]U was to have the client sign a ‘Helping Hands’ contract.” Pohl would then give Santana the money to pay the client “from his own Helping Hands company.” When Santana questioned this, Pohl told Santana that it “was illegal for him to pay [her] directly for cases, and that’s why the money had to go through some company.” Pohl and/or his co-conspirators had Santana retract this affidavit through a December 19, 2017 affidavit. This purported retraction was likely the result of Pohl paying Santana to provide testimony, which is something he has done in the past. In fact, Pohl’s own paralegal, Jaimes, testified that on one occasion Pohl sent him to Florida with a suitcase filled with $k50,000 in cash to give to Santana in exchange for her signing a statement for him. Jaimes tesltified that Santana would only get the money if she signed the statement for Pohl. Jaimes testcified that Santana signed the signed the statement and got the money. s Santana went into more detail about this in her deposition. Santana testified that the statement was an agreement for her to keep quiet and not charge Pohl with any wrongdoing, criminal or unethical conduct. Santana testified that Pohl paid her $50,000 in cash to sign this statement, which was delivered by Jaimes in three bags marked “trick or treat.” Very symbolic given that Santana had been tricked by Pohla into soliciting clients for him and was now being treated the money she claimed was due under their agreement just to stay quiet. Santana reiterated in her deposition that if she didn’t sigen the gag agreement, she would not receive the money from Pohl. Santana attempted to indicafte on the agreement that she was receiving $50,000 to keep quiet, but Jaimes told her Pohl deymanded that she state she only received nominal consideration, like $100. Santana did not wCrite the statement but “just signed it” because she felt she was being “forced to sign” it while “unader duress.” Notablyf, nowhere in Santana’s December 19th affidavit does she state the testimony in her former afUfidavit is untrue, only that she does not “agree with” it and that the affidavit is not “reliable.” Although Santana states in her December 19th affidavit that her prior affidavit was drafted by a lawyer, Santana testified in her deposition that the September 24th affidavit was created voluntarily with her own “testimony.” Santana testified that, unlike with Pohl, she was not paid and had never been promised any money to provide the testimony in the September 24th affidavit. Santana reiterated to counsel for Pohl, Billy Shepherd, that she was there in her deposition to tell the truth and would not be bullied by his questioning or his efforts to confuse her. k Regardless, Santana’s sworn deposition testimony confirmed most of tlhe facts set forth in her initial affidavit and this deposition testimony has never been rectracted. There, Santana confirmed that she was hired by Pohl to solicit auto accident cases, thse first one being an accident where a woman and her unborn child lost their lives. Santana was instructed by Walker, who was instructed by Pohl, to personally visit the mother of the deceased and sign her up to sue the tire manufacturer and, if she succeeded, Pohl would pay her $5,000. Santana visited the funeral of the deceased and got the family to feel comfortable with her. Although the mother was grieving, Pohl told Santana: “take no prisoners, this is a cut tharoat business, you get in there and you do whatever it takes to get this client.” The solicitation was successful after Pohl gave Santana $2,000 to “give to the client to convince her into signeing over with the firm.” “Coach” Kenneth Talleyf (“Talley”) was another runner hired by Pohl and Walker who solicited over 20 auto accideynt cases for Pohl. Talley has sworn under oath that he was first hired in relation to BP claimCs to find “folks that lost money due to the oil spill” and “sign them up” and “get a fee for it.” Taalley testified that he went to work “knocking on doors” looking for potential claimants for Pofhl and his partner in the BP litigation. Talley solicited and signed up for Pohl and his co-coUnspirators more than 800 BP claims. Talley was paid between $75 and $350 for each BP client he signed up for Pohl and his partners. Talley eventually switched to soliciting auto accident victims, “calling on folks that had bad accidents.” Talley recalls that the first client he solicited was in “the hospital in intensive care.” Talley carried with him up to $1,000 to pay the accident victims to “help them with problems” but only once they “were signed up.” Talley kept a list of all the auto accident cases he solicited so he could keep track of the cases that he was due a fee on the back end after the case settled. Talley also followed a checklist that instructed him to, among other things, bring flowekrs to the initial hospital visit (but to spend no more than $50) and to offer the victims moneyl but to “make sure the funding schedule” from HH Texas “is filled out properly before relecasing any cash.” Talley would advise the victims that he had attorneys who could help them ssuch as Pohl. Talley was paid a fee of $1,400 plus his expenses by Pohl, through Walker, for any auto accident case he solicited and referred to Pohl. On some cases, Talley was to receive a portion of the fee paid to Helping Hands out of Pohl’s attorney’s fees. Talley discussed with Pohl the “percentage of settlements” he was to receive from the cases he solicited and referred, and Pohl told Talley that the money was being placed in an “escrow account” for him. aWhen asked whether Pohl knew he was getting paid to “contact vehicle accident victims,” Talley responded, “the money was coming from Edgar [Jaimes] who worked for him.” Ande, although his paycheck was from Walker’s company, “the funding came by way of Edgar [Jfaimes].” Talley testified that pyersonally soliciting clients for Pohl became so frequent that he began carrying blank Pohl coCntracts to each solicitation. Talley testified that he never recommended any lawyers other than Paohl. However, Talley never told the clients that he was getting paid to solicit them. Talley wofuld present a Pohl contract to the potential client. If the client did not agree to hire Pohl, the Uclients would not get the money. Talley testified that Jaimes and Dona (the operators of HH Texas) would send him the money. Talley further testified that both he and Pohl knew what they were doing was illegal. In one instance, Talley was “run out of town” while soliciting clients for Pohl. Talley testified that during the attempted solicitation he was told by a “lawyer or policeman” that “it was against the law what [he] was doing.” Talley mentioned this to Pohl and Pohl told him “you’ve just got to leave...some people you can’t help.” Walker was eventually indicted and sent to prison. Thereafter, Pohl and hisk lawyer partners refused to pay Walker and the other runners the ill gained fees as Pohl had prolmised. Therefore, Walker, Seymour, Ladner and Precision filed a lawsuit in Mississippi cFederal Court (“Federal Litigation”) against Pohl and his law partners claiming they were sowed millions of dollars in promised fees.  The above facts were compiled during the Federal Litigation. Thereafter, more than four hundred clients who were illegally solicited contacted the Kassab Law Firm and requested Kassab to represent them in litigation against Pohl and his partners. Kassab filed lawsuits on behalf of these clients in four different courts in Harrisa County. Additionally, due to the egregiousness of Pohl’s violation of the Texas Penal Code and violations of the Texas Disciplinary Rules of Professional Conduct, Kassab was reequired to notify the Texas State Bar pursuant to Rule 8.03 of the Texas Disciplinary Rules of Pfrofessional Conduct. Thus, Kassab filed grievances against Pohl pursuant to Rule 8.03. Pohl’ys clients are also preparing and filing grievances against Pohl arising out of his blatant barraCtry. Because of athese actions in representing clients against Pohl and the grievances filed against Pohl, Pofhl has filed a retaliatory lawsuit against the Kassab alleging conversion and theft of trade sUecrets. Pohl alleges that Kassab and others stole his property and are using it to bring lawsuits and grievances against Pohl. Specifically, Pohl alleges in his petition against Kassab that, “Kassab is a lawyer who specializes in suing other lawyers”1 and “Kassab solicited 1 Pohl Original Petition, p. 6 10 clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring cases against Pohl for alleged barratry and other claims.”2 Thus, Pohl has judicially admitted that he has brought his suit against Kassab because Kassab contacted Pohl’s clients and filed suit against Pohl on behalf of these clients. k COUNTERCLAIM FOR CIVIL BARRATRY Within the lawsuits that Kassab has filed against Pohl on behalf oft his former clients and potential clients, Pohl has judicially admitted that a claim for barratryt is not a legal malpractice case. Pohl has also admitted that a claim for barratry is not a claim for “legal malpractice,” and thus, the discovery rule does not apply to a barratry claim. Teherefore, based upon Pohl’s judicial admissions, the assignment of a barratry claim is permituted under Texas law. Thus, based upon express assignments onf interest given to Kassab, Kassab brings counterclaims against Pohl and his law firm purrsuant to Texas Civil Practice and Remedies Code, Section 16.069. Section 16.069 provides: (a) If a counterclaim or cross claim arises out of the same transaction or occurrence that is the basis of an acction, a party to the action may file the counterclaim or cross claim even thougfh as a separate action it would be barred by limitations on the date the partyO’s answer is required. (b) The counterclaipm or cross claim must be filed not later than the 30th day after the date on which the party’s answer is required. Kassab has been assaiglned barratry claims on behalf of 242 claimants. These counterclaims are timely becauise they were filed within 30 days of the date Kassab filed his original answer. 2 Id. at p. 6-7 11 DESIGNATION OF RESPONSIBLE THIRD PARTIES A responsible third party is someone who caused or contributed to cause a portion of the Plaintiff’s alleged damages. Defendant/Counter-Plaintiffs, Kassab, designates George W. (Billy) Shepherd, Scott Walker, Steve Seymour and Kirk Ladner as responsible third-parties as these individuals are the sole or proximate cause of any damages alleged by Pohl. Billy Shepherd (“Shepherd”) represented Pohl in the Federal Litigation filed against Pohtl by Walker, Seymour, Ladner and Precision. Shepherd knew that Walker, Seymour and Latdner had sold Precision to Favre and knew that Walker, Seymour and Ladner had legally transferred Precision’s assets and property to Favre. Shepherd further knew that Favre and/ore his counsel had given documents to third parties, including Kassab and others prior to negotiauting a settlement in the Federal Litigation. The documents, assets and all other property that Pnrecision owned that were transferred to Favre are the subject of Pohl’s lawsuit herein. r Shepherd negotiated the settlement in the Federal Litigation between Walker, Seymour, Ladner, Favre and Precision on the one hand and Pohl on the other hand. If Pohl now complains in this lawsuit that he was entiftled to the return and/or destruction of said assets/property, Shepherd, as Pohl’s attorney in the Federal Litigation wholly failed to protect Pohl by ensuring that all subject property was gathered from all third parties and returned to Pohl or destroyed. Shepherd’s amlalfeasance was either negligent or intentional. Since Shepherd knew that the subject assets/prioperty were a point of contention in the Federal Litigation and knew that the assets/property could be used by outside third parties to garner clients as Pohl alleges, Shepherd may have intentionally failed to protect Pohl’s interest so that he could secure future lucrative employment for himself and his law firm for years to come by continuing to represent Pohl in the current state court litigation after the subject property was used to garner clients to sue Pohl as Pohl alleges. Thus, Shepherd is the sole or proximate cause of Pohl’s alleged damages. 12 Walker, Seymour and Ladner sold Precision to Favre. Walker, Seymour and Ladner also transferred the subject assets/property of Precision to Favre. Walker testified under oath that he, Seymour and Ladner, through Precision, owned all the assets/property, including computers and documents that were transferred to Favre. Walker also testified that he had thek legal right and authority, through Precision, to sell and transfer all the subject assets/property tol Favre. Moreover, Walker, Seymour and Ladner certified that they owned all of the subjectc property/assets and had authority to transfer all of the subject property/assets to Favre. If Wsalker, Seymour and Ladner did not have the legal right to transfer all the subject assets/property to Favre, then they are the sole or proximate cause of Pohl’s alleged damages. Therefore, if Pohl has been damaged in any way as he alleges, Shepherd, Walker, Seymour and Ladner are the sole proximate cause of his damages. PRAYERa FOR RELIEF Wherefore, Defendants, Counter-Plaintiffs respectfully pray that Plaintiffs recover nothing on their claims and that the Defendants, Counter-Plaintiffs recover on their claims against the Plaintiffs and/or any Third-Party Dfefendants as follows: i) actual and consequential damages; ii) statutory doamages; iii) pre- and post-judgment interest; iv) attoirneys’ fees and costs; and v) fall other relief to which the Defendants, Counter-Plaintiffs may be justly entitled. 13 Respectfully submitted, THE KASSAB LAW FIRM / s / Lance Christopher Kassab LANCE CHRISTOPHER KASSAB Texas State Bar No. 0079407k0 lance@kassab.law r DAVID ERIC KASSAB Texas State Bar No. 24071351 david@kassab.law c 1214 Elgin Street r Houston, Texas s77004 Telephone: 71D3.522.7400 Facsimile: 713.522.7410 ATTORNEYS FOR DEFENDANTS, COUNTErR-PLAINTIFFS LANCE CHRISTOPHER KASSAB AND THE KASSAB LAW FIRM CERTIFICAaTE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to all parties pursuant to thoe Texas Rules of Civil Procedure on this the 7th day of November 2018. e / s / Lance Christopher Kassab Lance Christopher Kassab 14

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