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15 2018-12-26 RSP Pohl Pohl’s response to supp. TCPA motion Pohl's combined notice of mandatory stay, response in opposition to motion for leave to file late TCPA motion, and response in opposition to Favre/Precision's TCPA Motion to Dismiss Filed December 26, 2018 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Filed after Kassab's TCPA motion was denied by operation of law and Kassab noticed an interlocutory appeal on December 18, 2018. Pohl argues a mandatory stay bars consideration of the Favre/Precision TCPA motion. This response addresses both the timeliness of the Favre/Precision motion (filed after the 60-day TCPA deadline) and the merits of the TCPA dismissal arguments. TCPA-1 N/A Phase 1 2018-12-26_RSP_Pohl-Response-to-Supp-MTD-TCPA_FILED.pdf Deny the Motion for Leave to file late TCPA motion; deny the Motion to Dismiss as untimely and on the merits; deny attorney's fees 12/26/2018 11:52 AM Chris Daniel - District Clerk Harris County Envelope No. 29957412 By: Deandra Mosley Filed: 12/26/2018 11:52 AM CAUSE NO. 2018-58419 MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF MICHAEL A. POHL, PLLC, § Plaintiffs, § V. § k § e SCOTT FAVRE and SCOTT M. FAVRE PA, § l LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS LLC; LANCE CHRISTOPHER KASSAB and § c LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r THE KASSAB LAW FIRM; TINA § s NICHOLSON and BAKER NICHOLSON, § D LLP d/b/a BAKER NICHOLSON LAW § s  FIRM; and DOUGLAS MONTAGUE III and § s MONTAGUE PITTMAN & VARNADO, P.A., § Defendants. § r189TH JUDICIAL DISTRICT PLAINTIFFS MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL’S NOTICE OF MANDATORY STAY OF ALL PROCEEDINGS, RESPONSE IN OPPOSITION TO MOTION FOR LEAVEl TO FILE MOTION TO DISMISS, AND RESPONSE IN OPPOSITION TO aDEFENDANTS’ MOTION TO DISMISS Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl (collectively, “Pohl”) provide this notice that all proceedings are staeyed, respond in opposition to the Motion for Leave to File a Motion to Dismiss filed by Defenfdants Scott Favre (“Mr. Favre”), Scott M. Favre Public Adjuster, LLC (“Favre”), and Precisioyn Marketing Group, LLC (“Precision”) (collectively, “Defendants”), and respond in oppositCion to the Defendants’ Motion to Dismiss (the “Motion”). In light of the filing of an interlocutory appeal, this case is currently subject to a mandatory stay, precludinfgf the Court’s consideration of the Motion. In addition, the Motion was not timely filed andU should be denied for that reason. Finally, the Motion purports to find its basis in the Texas Citizens’ Participation Act, Texas Civil Practice and Remedies Code Section 27.001 et. seq. (“TCPA”), but the TCPA does not apply to Pohl’s claims, and even if it did, the Motion would fail. THIS CASE IS SUBJECT TO A MANDATORY STAY OF ALL PROCEEDINGS Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm (“Kassab”) moved to dismiss the claims against Kassab by a kmotion filed on October 24, 2018. That motion was overruled by operation of law, and Kassabl noticed an appeal of that denial on December 18, 2018. Kassab’s notice of appeal gave risce to a mandatory stay of “all other proceedings in the trial court pending resolution of that asppeal.” TEX. CIV. PRAC. & REM. CODE § 51.014(b). The stay applies to all of the “trial csourt’s proceedings, including all discovery.” In re Roser, 14-16-00065-CV, 2016 WL 2605686, at *1 (Tex. App.—Houston [14th Dist.] May 5, 2016, orig. proceeding). The stay precludes this Court’s consideration of the Motion. See In re Texas Educ. Agency, 441 S.W.3d 747, 750 (Tex. App.—Austin 2014, orig. proceeding.) (“Conducting hearings and signing the challenaged orders denying supersedeas was an abuse of the district court’s discretion because it violated the automatic stay of ‘all other proceedings in the trial court’ under section 51.014(b).”). Tehe mandatory stay of section 51.014(b) prevents the Court from considering the Motion, or ftaking any other action, until the appeal is resolved. See In re Bliss & Glennon, Inc., 1-13-y00320-CV, 2014 WL 50831, at *2 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, orig. proCceeding) (finding abuse of discretion and granting mandamus relief after trial court took action during a mandatory stay under section 51.014(b)). So longf fas the appeal of the denial of Kassab’s TCPA motion to dismiss remains pending, this CourUt must stay all proceedings, including a hearing on the Motion. Any action taken in violation of the stay will be voidable. See Roccaforte v. Jefferson County, 341 S.W.3d 919, 923 (Tex. 2011) (noting that a trial court’s actions taken in violation of section 51.014(b) are “voidable, not void”). II. THE COURT SHOULD DENY DEFENDANTS’ MOTION FOR LEAVE TO FILE THEIR MOTION OUT OF TIME The TCPA supplies a deadline for filing: “A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the leegal action.” TEX. CIV. PRAC. & REM. CODE § 27.003(b). The 60-day period begins to run upon service of the original petition and is not reset by the filing of amended petitions. See Bachararch v. Garcia, 485 S.W.3d 600, 602 (Tex. App.—Houston [14th Dist.] 2016, no pet.). D Defendants acknowledge in their Motion for Leave thast they filed their Motion to Dismiss after the deadline had passed. See Motion for Leave at 1.r While a showing of good cause would permit this Court to allow an out-of-time filing, Defendants failed to request an extension within the requisite sixty-day period and have failed to lmake such a showing of good cause. TEX. CIV. PRAC. & REM. CODE § 27.003(b) (“court mMay extend the time to file a motion under this section on a showing of good cause.” (emphasis added)). The term “showing” indicates that “proof” is involved and that good cause will be “establish[ed] through evidence and argument.” See Bryan A. Garner, Black’s Law Dictionary (10th ed. 2014) (defining “showing”). Defendants attempt but fail to make any showing of good cause. Defendants provide no explanation for the failure to file timely and therefore no basis on which to rest a finding of good cause. Instead, cDefendants ask the Court to find that the late filing could not have been “intentional” because they “had nothing to gain by filing the Motion after the deadline.” See Motion for Leave at 3. In fact, Defendants did gain something by filing late; because the Court conducted the hearing on Kassab’s TCPA Motion to Dismiss on November 5, 2018, Defendants were able to tailor their Motion in response to the Court’s reaction to Kassab’s Motion. Additionally, even if Defendants did not “gain” anything by a late filing, this is not evidence of an absence of intent; it is merely a suggestion of an absence of motive. Defendants have not provided any support for their position that the delay was for good cause. Defendants similarly have provided no support for their argument that thek late filing was not the result of conscious indifference. They argue only that the Court shoulld find that counsel was not consciously indifferent because the filing was only three days clate. See id. Favre had sixty days within which to file his motion, and his co-defendant Kasssab filed and served a TCPA motion to dismiss on the fortieth day of that period.1 Kassab’s fsiling would have alerted a careful lawyer to the impending deadline for his own filing. Defendants’ failure to make a timely filing after that reminder actually suggests conscious indifference. See Wheeler v. Green, 157 S.W.3d 439, 442 n.1 (Tex. 2005) (characterizing a lawyer’s failure to meet a deadline as an “elementary mistake” that could warrant a conclusion of inatent or conscious indifference). Given the absence of any evidence to support their claim for good cause, Defendants’ Motion for Leave should be denied. Peohl respectfully requests that the Court deny the Motion for Leave and decline to hear the Moftion to Dismiss as untimely. y III. RESPCONSE IN OPPOSITION TO MOTION TO DISMISS A. Background Defendfafnts, with Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm’s (cUollectively “Nicholson”) assistance, illegally sold Pohl’s stolen property to defendant Lance Kassab for $250,000. Through this purchase, Kassab obtained the stolen names, addresses, and in some instances actual confidential client files of Pohl’s former and potential clients so that 1 Favre was served on September 14, and Kassab filed his motion to dismiss on October 24, 2018. Kassab could solicit those clients to assert barratry claims. To vindicate his rights, Pohl filed suit on August 28, 2018. Since the initiation of this case, Kassab and Nicholson have already sought dismissal of the claims against them; now Defendants ask the Court to hold that their actions in selling and actually providing the stolen materials are protected by the TCPA. k In an attempt to contort the application of the TCPA and delay this lalwsuit, Defendants assert that the TCPA applies to Pohl’s causes of action for conversion of cconfidential information, misappropriation of trade secrets, and conspiracy without sustaining tsheir burden of demonstrating why. Contrary to Defendants’ arguments, Pohl’s claims do not starget Defendants for the exercise of any rights of free speech, petition, or association. Pohl brings claims to hold Defendants responsible for their wrongful conversion of Pohl’s information and misappropriation of trade secrets, together with their participation in a conspiracy to commit both torts. The claims on their face do not implicate the TCPA, and the inquiary should end there. Defendants have the burden of demonstrating the applicability of the TCPA by a preponderance of the evidence. See LeFMC Enterprises, LLC v. Baker, 546 S.W. 3d 893, 897 (Tex. App.—Houston [1st Dist.] 2018,f pet. denied). In spite of this requirement, Defendants offer no evidence of any kind to suppyort their position that the legal action is based on, relates to or is in response to DefendantsC’ exercise of any protected right. Instead, Defendants, relying entirely on non-binding precedent, simply argue that the TCPA necessarily applies to any claim for theft of trade secrets, cfofnversion, and conspiracy, without examining those claims as they are asserted in this case.U Even if Defendants had demonstrated by a preponderance of the evidence that the TCPA applies, Defendants’ Motion would nevertheless fail. Pohl’s suit is exempt from the TCPA by virtue of the commercial exception to that statute. See TEX. CIV. PRAC. & REM. CODE § 27.010(b). The communications at issue with Defendants arose out of a transaction involving the types of goods and services Precision provides. Precision was primarily engaged in the business of providing goods and services related to marketing lists, including those for potential customers— like the converted trade secret information at issue here. The intended audikence for those communications was Kassab and Montague, who eventually purchased the stollen information. In a similar fashion, through the combined ownership and control interests inc Precision, which places them in charge of Precision’s business, Mr. Favre and Favre’s condusct also falls squarely into the commercial speech exception. s  Although it is clear that the TCPA does not apply to Pohl’s claims, Pohl fully sets forth his prima facie case for each element of his causes of action. The pleadings and the affidavits Pohl supplies can leave no question that he has satisfied the second prong of the TCPA analysis. Defendants argue but fails to conclusively estaablish the affirmative defense of limitations, which does not bar Pohl’s claims.  B. Defendant’s Motion Shoulde Be Denied The Texas Legislature enfacted the TCPA “to encourage and safeguard the constitutional rights of persons to petition, sypeak freely, associate freely, and otherwise participate in government to the maximum extenCt permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002 (emphasis addefdf). The TCPA is intended to identify and dispose of lawsuits that are “designed to chill FirstU Amendment Rights, not to dismiss meritorious lawsuits.” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015). “Courts use a ‘two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant’s exercise of these First Amendment rights.’” Wayne Dolcefino & Dolcefino Communications, LLC v. Cypress Creek EMS, 540 S.W.3d 194, 198 (Tex. App.— Houston [1st Dist.] 2017, no pet.) (quoting ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017)). The first step of the TCPA analysis requires that the movant establish by “a preponderance of evidence that the suit he is seeking to dismiss ‘is based on, relkates to, or is in response to the [movant’s] exercise of: (1) the right of free speech; (2) the righlt to petition; or (3) the right of association.’” Id. (alterations in original) (quoting TEX. CIVc. PRAC. & REM. CODE § 27.003). s If the movant sustains its burden of demonstrating by a psreponderance of the evidence that the claims asserted in the petition fall within the ambit of the TCPA, and only then, the court turns to the second step in the process. That step shifts the burden to the non-movant to provide by clear and specific evidence a prima facie case supporting the elements of its claim. TEX. CIV. PRAC. & REM. CODE § 27.005(c). In examining awhether a plaintiff has sustained its burden of demonstrating a prima facie case, a court is obligated to consider “the pleadings and supporting and opposing affidavits stating the facets on which the liability or defense is based.” Id. § 27.006(a). A prima facie case is established wfhen the pleadings and evidence supply the “‘minimum quantum of evidence necessary to suypport a rational inference that the allegation of fact is true.’” In re Lipsky, 460 S.W.3d atC 590 (quoting In re E.I DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)). As set ffofrth below, neither of the two prongs necessary to dismiss claims under the TCPA are satisfiUed here, and Defendants’ Motion should be denied. 1. Pohl’s allegations on their face do not implicate the TCPA To determine whether Defendants have proved to the Court by a preponderance of the evidence that the TCPA applies to Pohl’s claims, the Court should start with the most recent petition to determine the alleged conduct that forms the basis of the legal action. See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (the “basis of a legal action is not determined by the defendant’s admissions or denials but by the plaintiff’s allegations”). Courts “do not blindly accept attempts by the [defendants] to characterize [plaintiff’s] claims as implicakting protected expression.” Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2l015, pet. dism’d). Instead, courts should “favor[] the conclusion that [the plaintiff’s] claimcs are not predicated on protected expression.” Id. Further, “any activities by the [defendsants] that are not a factual predicate for [the plaintiff’s] claims are simply not pertinent to tshe inquiry.” Id. A movant under the TCPA must establish “a connection between the claims in the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. In conducting this review, the Court must view the evidence “in the light most favorable to the nonmovant.” Id. at 199. The Court’s inquiry should focus on (1a) what conduct forms the factual bases for Pohl’s claims, based on the pleadings and evidence viewed in the light most favorable to him, and (2) the extent to which that conduct is, as ae matter of law, are protected expression within the TCPA’s definition. Sloat, 513 S.W.3d at f504. Examining each of Pyohl’s claims against Defendants makes clear that they are not subject to the TCPA. As PohlC’s First Amended Petition makes clear, Defendants engaged in conversion through the act and a participation in Precision’s sale of stolen information to Kassab.2 Defendants’ liability for thisf f wrongful conduct is not based on facts related to the exercise of the rights of free speech, pUetition, or association. Instead, their liability is based on their conduct of facilitating the sale and the actual selling of the stolen materials. 2 See Amended Petition at ¶¶ 21–23. Similarly, Pohl’s TUTSA claim is based on Defendants’ conduct in misappropriating trade secrets through their sale to Kassab. For the same reasons as above, the factual basis of liability for this claim does not trigger protections under the TCPA. Pohl’s conspiracy claim involves Defendants’ overt acts in selling and Pohkl’s trade secrets and other proprietary information.3 Yet again, nothing in the factual basis of lialbility provided for this claim is based on or targets Defendants for the exercise of their rightsc of free speech, petition, or association. s Pohl has also asserted a claim for breach of contract agsainst Defendants. See Amended Petition ¶ 35. Defendants have failed to seek the dismissal of the breach of contract claim in their Motion. See generally Motion (containing no reference or discussion of the breach of contract claim). Accordingly, Pohl’s breach of contract claim cannot be dismissed. For all four of Pohl’s claims against aDefendants, the theory of liability is predicated on wrongful acts, not protected speech or conduct. Pohl brought this lawsuit to vindicate his rights, and not in response to or based upone any TCPA protected conduct. The pleadings and evidence the Court must use to determine fif the TCPA applies make this clear. The Texas Supreme Court has held that the petition is thye “best and all-sufficient evidence of the nature of the action.” Hersh v. Tatum, 526 S.W.3d C462, 467 (Tex. 2017) (quoting Stockyards Nat. Bank v. Maples, 95 S.W.2d 1300, 1302 (Tex. Comm’n App. 1936)), and Pohl’s Amended Petition establishes that the nature of the action dof fes not implicate the TCPA. 2.U Defendants have not sustained their burden of demonstrating the applicability of the TCPA to Pohl’s claims. As the movants, Defendants have the burden to show by a preponderance of the evidence that Pohl’s claims are “based on, relate[] to, or [are] in response to [the Defendants’] exercise of” 3 See Amended Petition ¶ 43. See id. ¶ 38. some protected speech or act. TEX. CIV. PRAC. & REM. CODE § 27.005(b). As set forth above, Pohl’s claims on their face do not support Defendants’ invocation of the TCPA, and Defendants are required to show a “connection between the claims in the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. Also, the Defendants must demoknstrate that the protected conduct on which the Defendants rely is connected to the “facts on wlhich the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a). c Defendants filed no evidentiary support for their Motion. Aslthough five exhibits were attached to Favre’s Motion, those exhibits are not verified, and thse Court should decline to consider them. Defendants have failed to establish by a preponderance of the evidence that Pohl’s claims are based on any act or communication protected under the TCPA. Instead, Defendants make sweeping generalizations about the case law and rely on recharacterizations of the allegations in Pohl’s Amended Petition. Courts have explicaitly rejected this very tactic, holding that defendants cannot rely on their own theories of what may have motivated a claim or what its underlying basis might be in order to support a motione to dismiss under the TCPA. See Sloat, 513 S.W.3d at 504 (rejecting the defendant’s effort tfo “recast [the Plaintiff’s] petition as complaining principally” of actions of protest instead of ythe actions on which the petition was based). Although Defendants make conclusory asserCtions that Pohl’s claims are “based on” or are “in response to” their alleged protected conduct, the Court may not “blindly accept” those characterizations of Pohl’s allegations. Infsftead, the Court must keep in mind that there needs to “be a connection between the claims inU the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. a. No Showing Was Made that the Right of Association is Implicated by Pohl’s Claims Defendants make unsupported assertions that Pohl’s trade secret and conspiracy claims implicate their right of association. See Motion at 4–6. Instead of carrying their burden to show 10 that Pohl’s specific claims implicate their right of association, Defendants’ argument confuses necessary and sufficient conditions; they mistakenly believe that because the TCPA can apply to a trade secrets claim that it must apply to theirs. That simply does not follow. Even with the heavy reliance on non-binding authority to argue for their expansive view of the TCPAk’s applicability, Defendants are still unable to support this conclusion. l The Motion cites the same two cases (both non-binding) discussicng the application of the TCPA to cases involving trade secrets as were discussed in the Nichoslson Motion. See Motion at 4–5; Nicholson Motion at 4–5. Although it is certainly possibles for the TCPA to apply to a trade secrets case, Defendants fail to provide any support for the notion that in every case, the mere assertion of a trade secrets claim necessarily implicates the TCPA. To suggest that it does leads to the absurd conclusion that instead of modifying trade secrets procedure directly, the Texas Legislature decided to modify the administraation of all trade secrets cases through a statute that does not even reference or deal with trade secrets. The Motion does not provide eany evidence or even a quote from the Petition to argue that Pohl’s trade secrets claims are anfalogous to those at issue in the cases cited. Instead, Defendants rely on generic assertions thayt the TCPA must apply in this case as well. Defendants are required to provide more to sCustain their burden of demonstrating the statute’s applicability by a preponderance of the evidence. Similarflfy, the Motion fails to carry its burden to show that the TCPA applies to Pohl’s claim of cUonspiracy. Ignoring the fact that Defendants rely heavily on non-binding authority, there is yet again a failure by the Defendants to carry their burden. Other than a single citation to the Original Petition (which merely confirms that a civil conspiracy claim was made), no evidence is provided to the Court at all—let alone evidence sufficient to support the application of the TCPA 11 to this claim. Defendants yet again relies on the mere existence of a conspiracy claim to trigger the application of the TCPA. No legal authority is provided to support this idea. And again, it would lead to ridiculous results for this Court to hold that Defendants can take advantage of the TCPA merely by pointing out that a conspiracy claim was made, without also esktablishing by a preponderance of the evidence that the factual basis of the claim implicates thel TCPA. b. No Showing Was Made that the Right to Free Speech is Implicatecd by Pohl’s Claims The Motion’s arguments related to free speech focus not on sPohl’s claims, but rather on the Defendants’ conduct subsequent to engaging in the wrongfusl acts that form the basis of Pohl’s claims. The problem with this approach should be immediately apparent to this Court. To allow this to trigger the TCPA would allow Defendants to manufacture TCPA applicability. Defendants could engage in wrongful conduct and then simply undertake activities afterwards that involve speech or association to ensure that the TCPAa applies to claims brought against them. This cannot be the way the TCPA works, and it is not the way it works. In this case, the Defendanets are not being sued for bringing barratry claims or communicating about alleged attforney misconduct. Defendants are being sued for selling stolen trade secrets. This is not a ysituation where a plaintiff is suing defendants regarding defamation related to their commuCnications and complaints about barratry. Defendants’ conduct subsequent to their sale of the stolen trade secrets is not the basis of their liability. Defendants cannot carry their burden tof fshow that Pohl’s claims implicate their free speech rights. Nothing in the four paragraphUs of Pohl’s Original Petition cited by the Motion show that Pohl’s claims are based on communications by Defendants that implicate their right to free speech. See Motion at 7–8 (citing paragraphs 19–23 of Pohl’s Original Petition). 12 It should not be surprising that Defendants’ Motion does not discuss Pohl’s actual claims in its arguments—to do so would illustrate that they are not based on Defendants exercising any free speech rights. Defendants’ wholesale failure to support by a preponderance of the evidence their position that the TCPA applies is fatal to the Motion. The Court should denyk the Motion on that basis alone. l 3. Even if the TCPA otherwise applies, the commerciacl exception precludes dismissal here. r Even if Defendants had sustained their initial burden to showD the applicability of the TCPA, the commercial exception to its application applies to Pohl’s cslaims. The TCPA provides: This chapter does not apply to a legal action brorught against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer. l TEX. CIV. PRAC. & REM. CODE § 27.010(bM). The Texas Supreme Court has interpreted this as requiring the following four-part test: (1) the defendant was primarily engaged in the business of selling or leasing goods [or services], (2) the defefndant made the statement or engaged in the conduct on which the claim is based in the defendant’s capacity as a seller or lessor of those goods or services, (3y) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and (4) the intended aCudience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides. Castleman v. Intecrnet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). It is notable that the Motion does not even attempt to claim that the commercial speech exception to the TCPA does not apply to Precision. See Motion at 9–12. The allegations against Precision are precisely the situation that the commercial speech exception was made for: (1) As a marketing firm, Precision is primarily engaged in the business of providing goods and services related to marketing lists, including those for potential customers—like the converted trade secret 13 information at issue here; (2) Precisions’ conversion and sale of Pohl’s trade secrets was done in its capacity as a seller of its marketing goods and services; (3) the conversion and sale of Pohl’s trade secrets was a commercial transaction involving the marketing goods and services Precision provides; and (4) Precision’s intended audience for that conduct was its actual cukstomer, Kassab as the purchaser of the converted trade secrets. All four elements of Castlemanl are clearly met. In a similar fashion, through the combined ownership and controlc of Precision, Mr. Favre and Favre’s conduct also fall squarely into the commercial speech esxception. See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 689 (Tex. 2018) (discusssing how the “capacity” of the person is relevant to whether the person was primarily engaged in selling goods or services). The basis of Mr. Favre and Favre’s liability in this case stems from their actions taken in their capacity as owners and managers of Precision. The Motion attempts to shift away froma the commercial speech exception by distinguishing between other activities undertaken by Mr. Favre and Favre (such as public adjusting) and the marketing activities of Precision. Seee Motion at 10–12. However, Castleman makes clear that it is possible to for both Mr. Favref and Favre to have multiple capacities, including ones that are primarily engaged in selling ygoods or services. 4. There iCs clear and specific evidence demonstrating a prima facie case. Defendants’ failure to demonstrate the applicability of the TCPA relieves Pohl of any burden of demfofnstrating a prima facie case of his claims. Furthermore, Pohl has established the applicabiUlity of the commercial exception to the TCPA, which likewise obviates the need to show a prima facie case. Pohl nevertheless sets forth below the clear and specific evidence found in his 14 Amended Petition and the attached affidavits for each element of the claims he has asserted against Defendants.4 In examining whether a plaintiff has sustained its burden of demonstrating a prima facie case, the Court is obligated to consider “the pleadings and supporting and oppkosing affidavits stating the facts on which the liability or defense is based.” TEX. CIV. PRCAlC. & REM. CODE § 27.006(a). Where a plaintiff provides enough detail in his pleading to “schow the factual basis for its claim,” such a pleading “is sufficient to resist a TCPA motion tos dismiss.” In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015). A prima facie case is establisheds when the pleadings and evidence supply the “‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’” Id. at 590 (quoting from In re E.I DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)). The nonmovant’s evidence of a primaa facie case must be “clear and specific” in order to avoid dismissal, id. § 27.005(c), although the statute does not define “clear and specific.” The Texas Supreme Court, in Lipsky, refeerenced “clear” as meaning “‘unambiguous,’ ‘sure,’ or ‘free from doubt,’” and “specific” as “f‘explicit’ or ‘relating to a particular named thing.’” Lipsky, 460 S.W.3d at 590; see also S &y S Emergency Training Sols., Inc. v. Elliott, ---S.W.3d---, 17-0628, 2018 WL 6711322, at C*3 (Tex. Dec. 21, 2018). The Court has also held that “direct evidence of damages is not required, but the evidence must be sufficient to allow a rational inference that some damages naturaf flly flowed from the defendant’s conduct. See Lipsky, 460 S.W.3d. at 591, 592. InU his Amended Petition, Pohl asserts four causes of action against Defendants: (1) breach of contract; (2) conversion; (3) violations of the Texas Uniform Trade Secrets Act, Texas Civil Practices and Remedies Code Chapter 134A (“TUTSA”); and (4) conspiracy to commit conversion 4 In support of this Response, Pohl has attached two sworn documents, the affidavit of Billy Shepherd, Exhibit A, and the declaration of Michael Pohl, Exhibit B. 15 and to violate TUTSA. Pohl sets forth in detail below the clear and specific evidence demonstrating a prima facie case of each of these claims. Because Defendants have not moved to dismiss Pohl’s breach of contract claim, Pohl is not required to provide a prima facie case of that claim. Pohl can nevertheless ekstablish such a prima facie case by demonstrating the existence of the Settlement Agreement land release, Pohl’s performance under that agreement, Defendants’ failure to perform under thcat Agreement by selling Pohl’s confidential materials to Kassab; and Pohl’s damages resultisng from that sale. See, e.g., Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636s (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (setting forth elements of a breach of contract claim). The elements of the conversion claim are that (a) Pohl owned and owns certain property and information; and (b) Defendants wrongfully exercised dominion and control over Pohl’s property in contravention of Pohl’s rights aby participating in the sale of the property and information to Kassab for $250,000. The elements of a violation of TUTSA against Defendants are that Defendants, without Pohl’s econsent knowingly participated in the sale of Pohl’s trade secrets to Kassab for $250,000. f Finally, the conspiracy claim alleges that Defendants acted in combination with other defyendants and committed overt acts toward unlawful conversion and misappropriation. C Pohl’s pleading—the First Amended Petition—sets forth in abundant detail each element of each cause foff action. Pohl alleges that he hired defendant Precision Marketing Group, LLC (“PrecisioUn”) to assist him in gathering and preserving evidence and liaise with Pohl’s clients.5 Precision thereby gained access to Pohl’s confidential and proprietary information relating to his client’s identity and their detailed contact information.6 The information and property also included 5 Amended Petition ¶¶ 19–20. 6 Id. ¶ 20. 16 actual attorney-client fee agreements with clients/prospective clients, compilations of clients, other confidential communications between the clients/prospective clients and Pohl, specialized legal forms that had been prepared in compliance with various state laws after consultation with local counsel in those jurisdictions, Pohl’s proprietary administrative client forms, fee-agreement fokrms prepared in accordance with the laws of various states, internal emails, propriety marketing inlformation and other trade secrets, and other work product relating claims of Pohl’s clients cand prospective clients.7 Despite Defendants’ claims to the contrary, these materials belonged tos Pohl, not Precision. After a dispute arose between Pohl and Defendants concesrning the Defendants’ provision of services, Pohl, Precision and Mr. Favre entered into a binding Settlement Agreement dated late April and early May 2017.8 The Settlement Agreement expressly provides that Mr. Favre and Precision will return to Pohl all originals and all copies of documents in their and their counsel’s possession, custody, or control that concern or identify all apast or current clients or prospective clients of Pohl, and that Mr. Favre and Precision will delete all such electronically stored information.9 The Settlement Agreement also providede that Mr. Favre and Precision would not cause any claim, complain, or legal action to be filefd f or made against Pohl.10 Defendants breached each aspect of the Settlement Agreement by failying to return or delete the materials as promised and by causing claims, complaints and legal acCtions—not their own—to be filed and prosecuted against Pohl.11 The very existence of the cases that Kassab, Montague, and Nicholson are pursuing against Pohl is a breach of the Settlement Af fgreement.12 7 Id. 8 Id. ¶¶ 30, 31. 9 Id. ¶ 31. 10 Id. ¶ 32. 11 Id. ¶ 32. 12 Id. ¶ 32. 17 Defendants, with the assistance of Nicholson who helped broker the transaction and actually provided Pohl’s stolen information and property to Kassab, secretly entered into an agreement with Kassab and defendants F. Douglas Montague III and Montague Pittman & Varnado, P.A. (collectively, “Montague”) to sell Pohl’s stolen confidential inkformation and property.13 Defendants, with the assistance of Nicholson, struck a rich balrgain; Kassab and Montague paid Favre $250,000.00 in cash together with substantial bonuses.c14 Kassab and Montague knew that the information and property that they were purchasing was sstolen and not Favre’s and/or Nicholson’s to sell.15 Defendants and Nicholson likewise knews that the information and property that they were selling or helping to sell was stolen and belonged to Pohl.16 The sale and unlawful disclosure of Pohl’s proprietary, confidential and trade secret information was made even more egregious by the fact that from the outset of the relationship between Pohl and Precision, Pohl made clear to Precisioan and its representatives the confidential nature of the above listed information.17 Precision and its representatives expressed their understanding of the confidential and proprietary nature of ethe information and that the information belonged to Pohl.18 In addition, as described afbove and in conjunction with the sale of Pohl’s information and property to Kassab and Montaygue, all Defendants converted Pohl’s confidential information/property by knowingly and uCnlawfully assuming and exercising dominion and control over that information/property in a way that was inconsistent with Pohl’s ownership. Each of the Defendants, individually andf f in combination with each other, misappropriated Pohl’s trade secrets in violation of the TUTUSA by unlawfully obtaining and using Pohl’s confidential and trade secret 13 Id. ¶ 22–23. 14 Id. ¶ 23 & Exhibit B. 15 Id. 16 Id. 17 Id.¶ 25. 18 Id. 18 information/property in the sale of such information/property to Kassab and Montague and continuing to use Pohl’s information and property to solicit cases against Pohl.19 These specific, detailed allegations of each element of breach of contract, conversion, theft of trade secrets, and conspiracy are by themselves sufficient to set forth a prima fackie case meeting the requirements of the TCPA. TEX. CIV. PRAC. & REM. CODE § 27.005(a); se e allso Hicks v. Group & Pension Administrators, Inc., 473 S.W.3d 518, 526 (Tex. App.—Corpucs Christi 2015, no pet.). Although Pohl’s Amended Petition establishes a prima facie csase without the necessity for further inquiry, Pohl provides additional evidence to supposrt his prima facie case against Nicholson in the form of the attached affidavit of Billy Shepherd and the exhibits thereto, as well as the declaration of Michael Pohl. As quoted above, Kassab supplied an affidavit in which he admitted that he obtained from Defendants and Nicholson information that iancluded the names and addresses of Pohl’s former clients and prospective clients.20  The admissions of both Kasesab and Nicholson make clear that it is not disputed that Montague and Kassab bought inffo f rmation relating to Pohl’s client lists from Defendants.21 Most elements of Pohl’s prima faycie case are therefore uncontroverted. The only controverted fact involves ownership of Cthe materials, as Defendants claim that the materials belong to them, while Pohl contends that the materials were his. This disputed fact is one as to which Pohl has provided prima facie profoff.22 TUhe attached affidavits provide prima facie evidence of the following facts. Favre, the Kassab Law Firm and Montague, Pittman and Varnado, P.A., represented by Nicholson, entered 19 Id. ¶ 33. 20 See page 2 of the Declaration of Lance Christopher Kassab. 21 Id. 22 Amended Petition ¶ 20; Declaration of Michael Pohl ¶¶ 4–6, attached as Exhibit B hereto. 19 into an Agreement, dated November 10, 2016, executed by Lance Kassab (the “Favre–Kassab Agreement”).23 The Favre–Kassab Agreement contains many relevant provisions, including: • That Kassab and Montague will pay Favre an hourly rate of $250, a large per-case fee, and an “upfront advance pay retainer to Favre forin [sic] the amount of k$250,000 to be credited against first fees earned by Favre. This retainer is fully eCarlned at the time of payment and is not refundable. Subsequent hourly fees are not toc be credited against the retainer.”24 s • That Kassab and Montague “shall indemnify and hold hsarmless Favre for from [sic] any and all costs he incurs in defending claims relatingg to an/or arising from the disclosure of any client information where such claims areB asserted by . . . Michael Pohl. . . . Favre certifies that he is not aware of any contractual or legal provision that prohibits him from making such disclosure to [Kassab anad Montague].”25 • That the parties “agree that this Af greement is confidential and shall remain confidential for all times.”26 e On its face, the Favre–Kassab Afgreement proves that Kassab agreed to pay Favre an enormous upfront payment of $250,000, together with substantial sums over time. The amount of the payment alone is primaC facie evidence that Defendants knew that the confidential information and material they were selling was not publicly known and that it belonged to Pohl. The Favfre–Kassab Agreement also obligates Kassab to indemnify Favre from claims that Pohl migUht bring—making clear that Nicholson and Favre contemplated that Pohl might assert 23 A copy of the Favre–Kassab Agreement is attached as Exhibit 3 to the Shepherd Affidavit, attached hereto as Exhibit A, and also to the Amended Petition as Exhibit D. 24 See Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit, Exhibit A hereto, Exhibit D to the Amended Petition, p. 1. 25 Id. p. 3. 26 Id. 20 such claims at the time he executed the agreement. What possible reason could there be for Nicholson to require Kassab to indemnify if Defendants owned the materials and information that was the subject of the Favre–Kassab Agreement? Why would indemnity be necessary if the information and materials were publicly known? Again, these facts support Pohkl’s prima facie case of misappropriation. l Similarly, the requirement in the Favre–Kassab Agreement thcat the parties keep the agreement confidential suggests that the parties understood that disclsosure of the existence of the agreement and its terms might raise substantial issues. If thes materials and information were publicly known and belonged to Defendants, what was the necessity for confidentiality? Each of these facts supports Pohl’s allegation that the materials and information were trade secrets and that Kassab knew that the confidential information and material he purchased from Favre was stolen. Mr. Favre’s testimony regarding the paarties’ performance of the Favre–Kassab Agreement provides additional support for Pohl’s contentions. In a hearing conducted on October 25, 2017 in Cause No. 1:14-cv-381-KS-JCG, Secott Walker, et al. v. Jimmy Williamson, et al., in the United States District Court for the Sofuthern District of Mississippi, Southern Division (“Walker v. Williamson Litigation”),27 Myr. Favre confirmed that Kassab, Montague or their firms had in fact paid the $250,000 to FCavre.28 Mr. Favre testified that he did not sell attorney/client fee contracts to Kassab and Mon a tague but instead gave them away to Nicholson.29 Mr. Favre acknowledged that an email, fdfated December 7, 2016 and sent from Montague to Kassab and others, reflected that Mr. FUavre had called to check that Kassab’s office had been receiving Dropbox deliveries of 27 A copy of the relevant portions of the October 25, 2017 hearing transcript in the Walker v. Williamson Litigation is attached hereto and to the Amended Petition as Exhibit 2 to the Shepherd Affidavit. 28 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 63. 29 Id. at 92–93. 21 contracts over the last several days.30 Mr. Favre testified that between the time he received the payment of $250,000 and April 2017, he had received no fees, provided no work and exchanged no documents under the Favre–Kassab Agreement.31 Nicholson’s testimony contradicts Mr. Favre’s testimony in at least onke enlightening way.32 Nicholson testified that Mr. Favre did not give her the Pohl fee conltracts; instead, she believes he gave them to “one of her co-counsel in the Texas cases agcainst Mr. Pohl.”33 Mr. Favre’s and Nicholson’s testimony and the emails about which they tsestify further support Pohl’s prima facie case of intentional misappropriation, conversion sand conspiracy. The emails and testimony confirm that Scott M. Favre, P.A. was in fact paid $250,000, and that Kassab and Montague understood that they were to receive Dropbox deliveries of contracts. The large amount of the payment to Favre, in advance of the delivery of contracts to the Dropbox and the absence of any further work by Favre, supports a strong ainference that the payment was in fact in exchange for the contracts and not for any future services. Mr. Favre’s testimony that he had given the attorney/client fee contracts to Nichoelson and Nicholson’s disavowal of that testimony strongly suggests that each witness hopesf to distance him or herself from the ultimate transfer to Kassab. This contradiction supports Pyohl’s allegation that all parties to the Favre–Kassab Agreement knew that the files and informCation being transferred had been converted or misappropriated. As lawyers, Nicholson, Kassab, and Montague knew that the materials that were being bought and soflfd included confidential information protected by the attorney–client privilege, 30 Id. at 95; see also email dated December 7, 2016, attached as Exhibit C to the Amended Petition. 31 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 121–27. 32 See Deposition of Tina Nicholson, dated November 27, 2017, attached as exhibit 5 to the Shepherd Affidavit at 65:11–66:10. 33 Id. at 66:7–9. 22 including actual attorney–client fee agreements.34 Mr. Favre has confirmed under oath that he maintained the materials as confidential and protected them as valuable trade secrets.35 In sum, Pohl’s prima facie evidence in the form of both pleadings and affidavits demonstrates each element of each of Pohl’s causes of action as set forth below: k BREACH OF CONTRACT l • Favre, Precision and Pohl entered into a binding agreemenct.36 • Pohl timely and fully performed that agreement.37 s • Favre and Precision breached that agreement.38 s • Pohl suffered damages.39 g CONVERSION B • The information and materials Deyfendants sold to Kassab was personal property subject to conversion.40 a • Pohl owned the informatiofn and materials Defendants sold.41 • Defendants wrongfully exercised dominion and control over the property.42 • Pohl has incurOred actual damages caused by Defendants’ conversion by at a minimum hpis loss of the intrinsic value of the materials.43 34 Amended Petition ¶ 20. 35 See Affidavit off f Scott Favre, filed in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., in the United States District Court for the Southern District of Mississippi, Southern Division, and attached as Exhibit 7 to the Affidavit of Billy Shepherd. 36 Amended Petition ¶¶ 30, 31. 37 Amended Petition ¶ 35. 38 Amended Petition ¶¶ 32, 35. 39 Amended Petition ¶ 32, 35. 40 Amended Petition ¶¶ 20–21, 27; Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit; Email, Exhibit 4 to the Shepherd Affidavit. 41 Amended Petition ¶¶ 20–21, 27, 38; Declaration of Michael Pohl ¶¶ 4–5. 42 Amended Petition ¶¶ 20, 21, 27; Declaration of Michael Pohl¶¶ 4–8. 43 Amended Petition ¶ 38; Favre Kassab Agreement, Exhibit 3 to Shepherd Affidavit (demonstrating that Kassab placed a value on the materials of at least $250,000); Affidavit of Michael Pohl ¶¶ 5–7, 10, 12. 23 MISAPPROPRIATION OF TRADE SECRETS • Pohl owned trade secrets.44 • Pohl maintained that information as a secret, taking substantial measures to maintain its confidentiality.45 k • The information has independent economic value from not beCin l g generally known to, and not readily being ascertainable through proper mceans by, another person who can obtain economic value from the disclosure or s use of the information.46 • Defendants misappropriated the trade secrets bsy participating in their sale with knowledge that they had been acquired throgugh improper means—i.e., by theft.47 • The misappropriation damaged Pohl iBn the form of both actual loss and unjust enrichment.48 y • Defendants’ misappropriation a was willful and malicious.49 CONSPIRACY f • Defendants were members of a combination of two or more persons.50 • The agreed objeOct of the combination was to accomplish the unlawful purposes of conversion pand misappropriation of trade secrets.51 • Defendants and the other conspirators committed tortious overt acts to further the objeict of the conspiracy.52 44 Amended Petition ¶¶ 20–21, 39; Declaration of Michael Pohl ¶¶ 4–5. 45 Amended Petition ¶ 39; Declaration of Michael Pohl ¶ 11. 46 Amended Petition ¶ 39; Declaration of Michael Pohl ¶ 12. 47 Amended Petition ¶¶ 40–41; Declaration of Michael Pohl ¶ 7. 48 Declaration of Michael Pohl ¶ 13. 49 Amended Petition ¶ 41; Declaration of Michael Pohl ¶¶ 5–8. 50 Amended Petition ¶¶ 33, 43. 51 Id. ¶ 43. 52 Id. ¶¶ 23, 27, 38, 43. 24 • Pohl suffered injury as a result.53 Pohl denies that Defendants have demonstrated by a preponderance of the evidence that Pohl has asserted a legal action based on related to or in response to Defendants’ exercise of rights to free speech, petition, or association. To the extent that the Court disagrees, Pokhl has provided clear and specific evidence to support his petition, and the Court should denyC Dlefendants’ Motion. 5. Defendants cannot conclusively establish the defense ocf limitations. Defendants argue that, even though Pohl may be able to establish a prima facie case, they are still entitled to dismissal because they can establish by a prseponderance of the evidence each essential element of the affirmative defense of limitations. This defense is not available, and Defendants have not established it—let alone by a preponderance of the evidence. The parties entered the Settlement Agreement in April and May 2017. Limitations for breach of contract is four years. TEX. CIV. PaRAC. & REM. CODE § 16.051; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). The breach of contract claim is not time-barred. As to the remainder of the claiems against Defendants, Kassab purchased the stolen material from the Defendants by virtue of tfhe Favre–Kassab Agreement, which was executed on November 10, 2016, well under two yeayrs prior to the filing of this suit. Pohl’s claims against Defendants are based on that purchase,C and no claim has a limitations period of less than two years. See TEX. CIV. PRAC. & REM. CODE § 16.003(a) (two-year limitation period for conversion); TEX. CIV. PRAC. & REM. CODE § 1f6.010(a) (three-year limitation period for TUTSA violations); Mayes v. Stewart, 316 S.W.U3d 715, 719 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Defendants contend that limitations bars this action because they engaged in wrongful conduct more than four years ago. See Motion at 13–15. But, the Amended Petition makes clear 53 Amended Petition ¶ 43; Declaration of Michael Pohl ¶ 14. 25 that the wrongful conduct to which they refer is not the basis of this lawsuit. Furthermore, Pohl was not aware of the claims in this case in the two year period prior to the filing of this case. Declaration of Michael Pohl ¶ 9. Defendant has not established the defense of limitations and their Motion to dismiss cannot be granted on that ground. k C. Defendants Are Not Entitled to Attorney’s Fees l Defendants are not entitled to an award of attorneys’ fees becausec their Motion should be overruled. Furthermore, Defendants fail entirely to support their cslaim for fees. Defendants’ Motion mentions attorney’s fees precisely once. In the final ssentence, Defendants requests an award of fees. Defendants provides no argument, and more to the point no evidentiary support for an award of attorneys’ fees. Without an affidavit or other evidence proving the expenditure of fees and the amount, the Court should decline to award fees in any amount. See Sullivan v. Abraham, 488 S.W.3d 294, 299–300 (Tex. 2016) (movaant has the burden of proof on fees, “‘includ[ing], at a minimum, documentation of the services performed, who performed them and at what hourly rate, when they were performed, ande how much time the work required.’” (citation omitted)). In the absence of such proof, the Cofurt is not empowered to award fees. y CONCLUSION For the foregoiCng reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl respectfully request that the Motion be in all respects denied. 26 Dated: December 26, 2018 Respectfully submitted, REYNOLDS FRIZZELL LLP By: /s/ Jean C. Frizzell Jean C. Frizzell State Bar No. 07484650 k 1100 Louisiana St., Suite 3500 e Houston, Texas 77002 l Tel. 713.485.7200 Fax 713.485.7250 c jfrizzell@reynoldsfrizzell.rcom Attorneys for PlaintiDffs Michael Pohl and Law Office of Michael A. Pohl, PLLC CERTIFICATE OF SERrVICE I hereby certify that a true and correct copy of this document was served on all counsel of record pursuant to the Texas Rules of Civil Procedure on this 26th day of December, 2018. M /s/ Jean C. Frizzell  Jean C. Frizzell 27

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