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16 2021-06-08 MSJ Kassab Kassab’s Traditional MSJ Kassab's Traditional Motion for Summary Judgment asserting three independent grounds: statute of limitations, res judicata, and attorney immunity doctrine Filed June 8, 2021 in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Dispositive motion filed in Phase 2, approximately 2.5 years after the original petition. Filed before Kassab responded to any discovery, relying on traditional summary judgment rule permitting filing 'at any time after the adverse party has appeared or answered.' Relies on arguments and evidence previously presented in the TCPA motion and interlocutory appeal. Case is before Judge Scot 'Dolli' Dollinger. District Clerk is now Marilyn Burgess. MSJ-1 DENIED Phase 2 2021-06-08_MSJ_Kassab-Traditional-MSJ_FILED.pdf Traditional summary judgment ordering that Pohl take nothing on all claims against Kassab and The Kassab Law Firm 6/8/2021 2:44 PM Marilyn Burgess - District Clerk Harris County Envelope No. 54215119 By: Ozuqui Quintanilla Filed: 6/8/2021 2:44 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 LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPCHER KASSAB, PC’S TRADITIONAL MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGEtR: Defendants/Counter-Plaintiffs Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a/ The Kassab Law Feirm files this, their Traditional Motion for Summary Judgment, and would respeuctfully show the following. SUMMlARY Plaintiffs Michael A. Pohl andM Law Office of Michael A. Pohl, PLLC (“Pohl”) sued Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firmi (“Kassab”) and others for conversion, theft of trade secrets and civil conspiracy. The Court should grant summary judgment on Pohl’s claims against Kassabo for any one of three independent reasons: • First, Polhl’s claims are barred by limitations. Pohl testified that discoveiry in federal litigation filed in 2014 revealed that his alleged tradei secrets and confidential information had been stolen from his ofofice in Gulfport, Mississippi. Pohl testified that Kassab was involved in that alleged misappropriation that occurred in 2014, and that he knew it, but he did not file suit because he “did not want to do anything precipitous.” Because Pohl waited more than three years later to bring his claims against Kassab, the claims are barred by limitations. • Second, the claims are barred by res judicata. Pohl previously brought similar claims against alleged co-conspirators in Mississippi federal litigation, wherein Pohl contends that Kassab allegedly purchased his stolen trade secrets. Yet, Pohl never brought Kassab into that lawsuit and instead paid approximately $1 million to settle the dispute against Kassab’s alleged co- conspirators resulting in a final judgment. Pohl’s claims against Kassab here are based on the same claims as were or could have been raised in that prior litigation, so they are barred kby res judicata. e • Third, Pohl’s claims against Kassab are barred by t the attorney immunity doctrine which provides that an attorney is immune from liability to nonclients for conduct within thet scope of his representation of his clients. The fact that thie alleged conduct occurred prior to litigation is irrelevant. Pohl alleges that Kassab bought Pohl’s trade secrets and client list to send advertisements to Pohl’s former clients and solicit them to beecome Kassab’s clients in barratry suits against Pohl. These claims fall squarely within attorney immunity, and Pohl’s characterization of this conduct as wrongful is immaterial. IIl BACaKGROUND On October 8, 2014, Scott Walker and Kirk Ladner and their company Precision Marketing Group, LLCe (“Precision”) sued Pohl and his law firm for breach of contract and fraud, amoOngf other claims (“the Federal Court Case”). See Walker v. Williamson, No. 1:14cv381-KS-JCG, 2016 U.S. Dist. LEXIS 61185, at *5-6 (S.D. Miss. May 9, 2016). In the Federal Court Case, Walker, Ladner and Precision (“the Runners”) allegeid that Pohl contracted with them to provide “public relations and marketing soervices” to 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.” Id. at *6-7. The Runners also alleged that they contracted with Pohl “to provide marketing and public relations services in connection with claims for automobile 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 evidence 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 millionk in ‘barratry pass-through money’ for their services.” Kassab v. Pohl, 612 S.WC.3d 571, 574 (Tex. App. – Houston [1st Dist.] 2020, pet. denied). However, the Runners sued Pohl because they “procured thousands of viable BP claims” aind “approximately sixty motor vehicle accident cases” for Pohl but that Pohl “did noy pay any 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. Miss. Mar. 1, 2016). During discovery in the Federal lCourt Case, Pohl discovered that the Runners allegedly “disclosed confidMential and proprietary information to third parties without authorization” and proposed “the ‘sale’ of all of [his] accumulated work product to third partieis” while working for him.1 Pohl testifies that the Runners “undertook to convert, misappropriate for themselves and/or market to third parties claimanot files and other information and materials” that allegedly belonged to Pohl2 l– including “marketing information and other trade secrets”3 – and then the niew owner of Precision, Scott Favre, allegedly “sold those items and the information” to Kassab.4 1 Exhibit 1, Pohl’s June 19, 2018 Affidavit, at ¶ 18. 2 Exhibit 1, at ¶ 28. 3 Exhibit 1, at ¶ 28. 4 Exhibit 1, at ¶ 29. As a result, Pohl “asserted multiple claims against” the Runners in the Federal Court Case based on their alleged “fraudulent and bad faith conduct.”5 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 “teakm of thieves” who broke into Pohl’s office in 2014 and stole his confidentiaCl information and purported trade secrets.6 Pohl eventually settled his claims against the Runners, and the Federal Court Case was dismissed with prejudice oin April 24, 2017.7 After hearing about Pohl’s client-solicitation activities in Mississippi, Kassab began researching the matter and met with Favre and his counsel, Tina Nicholson. Kassab, 612 S.W.3d at 574. Favre informed Kassab that, when he bought Precision, he acquired files related to Pohl and Favrle transferred that information to Kassab. Id. Kassab prepared advertisement lMetters approved by the State Bar of Texas and sent it to the people who had been illegally solicited by Pohl, informing them that they may have potential bariratry claims against Pohl. Id. at 575. “Hundreds of Mississippi residents responded to Kassab’s advertisement letter”, “[m]ore than 400 signed representationo contracts with Kassab’s firm to pursue barratry claims against Pohl”, andl “Kassab filed four barratry suits against Pohl in Harris County district courts,i each with multiple named plaintiffs.” Id. 5 Exhibit 1, at ¶ 19; see also Exhibit 2, Pohl’s Amended Counterclaim. 6 Exhibit 3, May 15, 2018 Deposition of Michael Pohl, pp. 85-93. 7 Exhibit 4, April 21, 2017 Judgment. In retaliation, Pohl filed this litigation against Kassab, Favre, Nicholson, Precision, and others, for conversion, misappropriation of trade secrets and conspiracy.8 Here, Pohl rehashes his allegations from the Federal Court Case, claiming that “Precision gained access to Pohl’s confidential andk proprietary information and property, including trade secret materials” and “Cwork product” and “illegally misappropriated” this information and then allegedly “secretly sold Pohl’s confidential information to Kassab and [another lawyer inamed] Montague”9 who then “solicited clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring cases against Pohl for alleged barratry and other claims.”10 III TRADITIONAL SUMMARY JUDGMENT STANDARD The purpose of summary judgmaents is to eliminate patently unmeritorious claims and untenable defenses. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). eTo prevail on a traditional motion for summary judgment, the movant must fshow that no genuine issue of material fact exists and that it is entitled to ju dgment as 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 toi the nonmovant to raise a genuine issue of material fact precluding summary juodgment.” 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 8 See Pohl’s First Amended Petition (on file with the Court) (“Petition”), 9 Petition, at ¶¶ 20-21. 10 Petition, at ¶ 29. material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The traditional summary judgment rule expressly permits a party to file a traditional summary judgment motion “at any time after the akdverse party has appeared or answered.” TEX. R. CIV. P. 166a(a) (emphasis addeCd). ARGUMENT & AUTHORITIES Although Pohl’s claims against Kassab lack merit because Kassab did not misappropriate Pohl’s trade secrets or otherwise eengage in any misconduct, the Court need not decide that issue to dispose of Pouhl’s claims against Kassab. Rather, those claims should be dismissed for three independent and purely legal grounds which require no discovery. a A. Pohl’s claims against Kassab are barred by limitations. A defendant moving for esummary judgment on the affirmative defense of limitations bears the burdefn 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, the defendant must (1) conclusively prove when the cause of action accrued aind (2) negate the discovery rule if it applies and has been pleaded or otherwisoe 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) “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. 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). k Pohl has sued Kassab for conversion, theft of trade secrets,C and conspiracy to commit those acts.11 The statute of limitations for conversion is two years from the date the property is allegedly taken. TEX. CIV. PRAC. &i REM. CODE § 16.003(a); Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App. – Houston [1st Dist.] 2006, no pet.). The statute of limitations for misappropriation of trade secrets is three years from the date the misappropriation was discovered or should have been discovered through reasonable diligence. TEX. CIV. lPRAC. & REM. CODE § 16.010(a). Civil conspiracy is a derivative claim, so Mthe statute of limitations is the same as the underlying claims; here, either two or three years. See Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580 S.W.3di 136, 138 (Tex. 2019). Pohl testified under oath that he learned of the basis of his purported claims against Kassab durinog discovery in the Federal Court Case.12 Specifically, Pohl testified during thle course of discovery in that case it was “revealed” that Precision – a defendant iin this case – and the company’s former owners (Walker and Ladner) allegedly “undertook to convert, misappropriate, for themselves and/or market to third parties [Kassab] claimant files and other information and materials that 11 Petition, at ¶¶ 36-43. 12 Exhibit 1. belong to [him].”13 Pohl testified: “Those items include original client contingency fee contracts between my clients and me …, documentation of contact and personal information, claim information and supporting materials.”14 Pohl testified that those files “were at one time maintained in approximately seventeenk clear plastic file containers” and that “Ladner admitted absconding with thoseC files from [Pohl’s] satellite law office and, without [Pohl’s] consent, kept them at his residence until they were later delivered, also without [Pohl’s] consenti, to Scott Favre” – the current owner of Precision, who is also a defendant in this case.15 Pohl complains in that affidavit that Nicholson – who was counsel for Precision in the Federal Court Case, and is also a defendant in this case – “refused to return and converted to [her] own use” four computers that Pohl purchasled for his office and which Precision used while soliciting clients for Pohl.16 PMohl testifies that those computers contained “marketing information and other trade secrets, [his] proprietary client forms” and other unidentified work prodiuct.17 Pohl testifies that the ”theft and unlawful disclosure was made even more egregious” when Favre refused to return the information and “appoears [to have] eventually sold those items and the information therein to [Kassabl].”18 13 Exhibit 1,n at ¶ 28. 14 Exhibit 1, at ¶ 28. 15 Exhibit 1, at ¶ 28. 16 Exhibit 1, at ¶ 28. 17 Exhibit 1, at ¶ 28. 18 Exhibit 1, at ¶ 29. Although Pohl testified that he learned of that alleged misconduct in discovery in the Federal Court Case, which began in 2019, he does not identify a specific date in his affidavit.19 However, Pohl testified in a separate deposition that the alleged theft of trade secret information occurred in 2014 when Kakssab and his “crew” allegedly broke into Pohl’s office in Gulf Port and hacked hiCs computers, stole his clients’ names and information, and then solicited his clients: Q. Okay. And you think I'm an unethical lawyer? i A. Yes. You stole my files. You robbed me. You tried to destroy my practice. So I don't believe you should submit any more materials, particularly false affidavits that have been retracted by the witnesses who made them and other verifialbly false accusations. And you've solicited my clients like Mr. ChMeatham, and you've told him lies to get him to sue me. Q. Okay. And you statei on the record under oath, subject to perjury, that I stole your files, right? A. You and youor co-counsel and your team of thieves. l … A. If thie question is did you steal my 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 against me. Q. Okay. How did I steal your files, sir? Did I break into your house? 19 See Exhibit 1, generally. A. You broke into my law office. Q. I did personally? A. You and your crew. Q. And when did I do that? k A. I don't know the exact date, but I believe it was in 201C4 when you robbed me. Q. I robbed you in 2014? i A. Yes, sir. Q. And where did I rob you at? A. Mississippi. Q. And what location did I rob you alt? A. Our Gulfport, Mississippi oMffice at the time. I do not remember the street address where I had my office. Q. So I broke into youir office and stole your stuff in 2014 at your Gulfport, Mississippi office, right? A. You and youor crew.20 Pohl testified thalt although he knew the alleged conduct by Kassab occurred in 2014, he did niot file a lawsuit against Kassab because he “wanted to spend time to reflect on it before taking action [and] didn’t want to do anything that was precipitous.”21 20 Exhibit 3, pp. 85-93. 21 Exhibit 3, p. 93. 10 “The statute of limitations begins to run when a party has actual knowledge of a wrongful injury.” Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207 (Tex. 2011). “Once a claimant learns of a wrongful injury, the statute of limitations begins to run even if the claimant does not yet know the specific causek of the injury; the party responsible for it; the full extent of it; or the chancesC of avoiding it.” Id. (internal quotations omitted) (emphasis added). A plaintiff need not know that he has a cause of action; rather, he must only know “the facts igiving rise to the cause of action.” Comput. Assocs. Int'l Inc. v. Altai, Inc., 918 S.W.2d 453, 457 (Tex. 1996). Regarding misappropriation of trade secret claims, the statute of limitations begins to run when the plaintiff knows or “should have known of facts that in the exercise of reasonable diligence would have led tol discovery of the misappropriation.” Sw. Energy Prod. Co. v. Berry-HelfanMd, 491 S.W.3d 699, 722 (Tex. 2016). “A misappropriation of trade secrets that continues over time is a single cause of action and the limitations period …i. begins running without regard to whether the misappropriation is a sin gle or continuing act.” TEX. CIV. PRAC. & REM. CODE § 16.010(b). o Here, Pohl’sl own testimony conclusively demonstrates that he knew of his potential claimis against Kassab – and the other defendants in this lawsuit to the extent they are part of the “crew” – in 2014 when they allegedly “undertook to convert, misappropriate for themselves and/or market” Pohl’s alleged trade secret information.22 But Pohl did not immediately file suit, nor did he investigate his 22 Exhibit 1, at ¶¶ 28-29; Exhibit 3, p. 85-93. 11 claims.23 Instead, Pohl waited until August 28, 2018 – more than four years later – to file this lawsuit24 because Pohl “did not want to do anything that was precipitous.”25 Accordingly, Pohl’s claims against Kassab are barred by limitatikons. See TEX. CIV. PRAC. & REM. CODE §§ 16.003, 16.010; Agar Corp., Inc., 5C80 S.W.3d at 147 (claims for theft of trade secrets and conspiracy barred by limitations because injury was the sale of goods, which was known to have occurreid more than three years before suit against conspirators was brought); Tavana v. GTE Sw., No. 05-97-00664- CV, 1999 Tex. App. LEXIS 5365, at *11-12 (Tex. App. – Dallas July 21, 1999, pet. denied) (unpublished) (suit for misappropriation of trade secrets barred by limitations because claim accrued whenl plaintiff knew trade secrets had been misappropriated); Target Strike, Inc.M v. Marston & Marston Inc., 524 F. App'x 939, 945 (5th Cir. 2013) (applying Texas law and concluding that misappropriation of trade secret claim was barred iby limitations when conduct of defendant led plaintiff “to believe” its “confidential information had been misappropriated” and plaintiff “had reason to be aleroted by” the defendant’s actions). B. Pohll’s claims against Kassab are barred by res judicata. “Res judiicata, or claims preclusion, prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, 23 Exhibit 3, p. 93. 24 Plaintiffs’ Original Petition. 25 Exhibit 3, p. 93. 12 with the use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Tr. Corp., 837 S.W.2d 627, 628 (Tex. 1992). “The party relying on the affirmative defense of res judicata must prove (1) a prior final determination on the merits by a court of competent jurisdiction; (2) identity of parties or thkose in privity with them; and (3) a second action based on the same claims as wCere or could have been raised in the first action.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Because all elements are satisfied here, sumimary judgment based on res judicata is appropriate. Taking element (2) first, there is identity of the parties. Pohl sued Precision, Walker and other “potential” defendants in the Federal Court Case alleging, among other things, that they converted or sltole property from him by means of misrepresentation, deception, or faiMlure to disclose.26 Although Kassab was not himself a named defendant to that suit, that fact alone is immaterial because Pohl alleges that Kassab conspiredi with Precision,27 and “conspirators are deemed to be in privity for res judicata purposes.” Palaxar Grp., LLC v. Williams, No. 6:14-cv- 758-0rl-28GJK, 2014 oU.S. Dist. LEXIS 138533, at *43 (M.D. Fla. Sep. 30, 2014); Seenyur v. Coolidgle, No. 16-cv-3832 (WMW/BRT), 2018 U.S. Dist. LEXIS 5895, at *6 (D. Minn. Jian. 12, 2018) (“Members of a conspiracy are deemed under the law to be in privity with each other.”); RSM Prod. Corp. v. Freshfields Bruckhaus Deringer US LLP, 800 F. Supp. 2d 182, 193 (D.D.C. 2011) (same). 26 Exhibit 2, ¶ 6. 27 Petition, at ¶ 43. 13 Element (1) is also satisfied because Pohl voluntarily settled the Federal Court Case, and the parties dismissed their claims against each other with prejudice on April 21, 2017.28 Therefore, the only issue is whether element (3) is satisfied; thakt is, whether Pohl’s claims against Kassab “could have been raised” in the FeCderal Court Case. See Barr, 837 S.W.2d at 630 (recognizing that a prior judgment will also bar “causes of action or defenses which arise out of the same subject imatter and which might have been litigated in the first suit.”). To determine this issue, the Court must compare the factual basis of Pohl’s claims or even potential claims in the Federal Court Case with those made here. See id. (“A determination of what constitutes the subject matter of a suit necessarily requirles an examination of the factual basis of the claim or claims in the prior litigatMion.”). In the Federal Court Case, not only did Pohl sue Precision for alleged theft of his property,29 but Pohl recogniized during discovery that Precision and Walker had allegedly “undertook to convert, misappropriate, for themselves and/or market to third parties” like Kaossab “claimant files and other information and materials” that allegedly belongedl to Pohl, including “original client contingency fee contracts between [Pohil’s] clients and [Pohl] …, documentation of contact and personal information, claim information and supporting materials.”30 Pohl identifies that 28 Exhibit 4. 29 Exhibit 2, ¶ 6. 30 Exhibit 1, at ¶ 28. 14 material as “marketing information and other trade secrets,” and claims that it was stolen by Precision and its current or former owners, including Favre, a defendant in this case, and Favre’s counsel, Nicholson, also a defendant in this case.31 Pohl testifies that the ”theft and unlawful disclosure was made even mokre egregious” when Favre “appears [to have] eventually sold those items anCd the information therein to [Kassab].”32 Pohl’s lawsuit against Kassab clearly arises out of tihe same facts as those at issue in or discovered during the Federal Court Case. Here, Pohl alleges that, while working for him, Precision “gained access to Pohl’s confidential and proprietary information and property, including trade secret materials, that included the identities of Pohl’s clients/prospective cllients, as well as their detailed contact information.”33 Pohl alleges that FMavre and Precision “stole physical copies of certain of the information, stole Pohl’s computers, and misappropriated electronic data to which they had access ithrough Precision’s work for Pohl.”34 Pohl alleges that “Nicholson also ultimately gained access to this information”35 and then Favre, Precision and Nicholsoon “struck a rich bargain” and allegedly sold this information 31 Exhibit 1, at ¶ 28. 32 Exhibit 1, at ¶ 29. 33 Petition, at ¶ 20. 34 Petition, at ¶ 21. 35 Petition, at ¶ 20. 15 to Kassab so Kassab could solicit clients to act as plaintiffs against Pohl for barratry and other claims.36 “Any cause of action which arises out of those same facts should, if practicable, be litigated in the same lawsuit.” Barr, 837 S.W.2d at 630k. There is no practical reason why Pohl could not have sued Kassab in the FeCderal Court Case prior to Pohl agreeing to nonsuit that case with prejudice.37 Pohl’s testimony reveals that he knew of the alleged theft of trade secrets by Kassiab and other defendants named herein, including Favre and Nicholson, during discovery in the Federal Court Case.38 Accordingly, Pohl’s claims against Kassab are barred by res judicata. See id. at 231 (“A subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which throlugh the exercise of diligence, could have been litigated in a prior suit.”); MadeMra Production Co. v. Atlantic Richfield Co., 107 S.W.3d 652, 665 (Tex. App.—Texarkana 2003, pet. denied) (plaintiff’s failure to “add new parties” to prior federal coiurt proceeding involving similar subject matter could not “be remedied by” a subsequent “action in state court.”); Holloway v. Starnes, 840 S.W.2d 14, 21 (Tex. oApp.—Dallas 1992, writ denied) (summary judgment on res judicata affirmed lwhen “most of the factual allegations relied on” in the prior litigation werei used to support a new lawsuit for conspiracy). 36 Petition, at ¶¶ 23-29. 37 Exhibit 4. 38 Exhibit 1, at ¶¶ 28-29. 16 C. Pohl’s claims against Kassab are barred by attorney immunity. “[A]n attorney is 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. 2018). The inquiry “focuses on the kind of conduct at issue reather 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 allegetd 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 reperesentation or render it ‘foreign to the duties of an attorney.’” Id. at 483. Even “curiminal conduct is not categorically excepted from the protections of attorney civil immunity when the conduct alleged is connected with representing a clienta 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,e 483 (Tex. 2015) (“an attorney’s conduct may be wrongful but still fall within fthe scope of client representation”). The case Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 Tex. App. LEXIS 442 (Tex. App.—Dallas Jan. 14, 2016, pet. denied) (mem. oip.) demonstrates why Pohl’s claims against Kassab are barred by attorney imomunity. In Highland Capital, the plaintiff attempted to sue the lawyer for the defendant alleging the lawyer obtained stolen property of the defendant and threatened to disclose this confidential information to extort a settlement. Id. at *2. The plaintiff, Highland, argued that the lawyer, Looper Reed, engaged in “malicious conduct with respect to its illegal acquisition, retention, use, and threatened 17 disclosure of Highland’s proprietary and confidential information” including “reviewing, copying, and analyzing information it knew to be stolen and proprietary in furtherance of its scheme to extort, slander, and disparage Highland, threatening Highland that it would disclose proprietary information and disparage kHighland if a monetary sum was not paid, and refusing to return and cease Cuse of Highland’s proprietary information after receiving written notice of the proprietary and confidential nature of these documents and Highland's idemand that the stolen materials be returned.” Id. at *10-*11. The court of appeals affirmed the trial court’s dismissal of these claims on the pleadings39 based on attorney immunity because the alleged conduct fell “squarely within the scope of Looper Reed’s representation” in the lawsuit. Id. at *16. l The entire basis for Pohl’s lawMsuit against Kassab is that Kassab allegedly purchased the purportedly stolen information and “solicited [Pohl’s] clients/prospective clients to iact as plaintiffs … to bring cases against Pohl for alleged barratry and other claims.”40 The essence of Pohl’s claims against Kassab are “that Kassab bougoht Pohl’s client list from [Precision] so that Kassab could send advertisements to lPohl’s former clients and solicit them to become Kassab’s clients in barratry suiits against Pohl.” Kassab, 612 S.W.3d at 578 (characterizing Pohl’s claims against Kassab). These claims fall squarely within attorney immunity, and Pohl’s characterization of this conduct as wrongful is immaterial. See Highland, 39 The dismissal was via Texas Rule of Civil Procedure 91a. 40 Petition, ¶ 29. 18 2016 Tex. App. LEXIS 442 at *16 (“That [a party] characterized the firm’s conduct as fraudulent or otherwise wrongful was immaterial to [the court’s] evaluation of the immunity defense.”). The fact that Kassab is alleged to have committed the misconkduct prior to any litigation is immaterial because “attorney immunity applies tCo claims based on conduct outside the litigation context[.]” See Haynes & Boone, LLP v. NFTD, LLC, No. 20-0066, 2021 Tex. LEXIS 423, at *32 (May 21, 20i21); Cantey Hanger, 467 S.W.3d at 485 (stating that “[t]he majority of Texas cases addressing attorney immunity arise in the litigation context [,] [b]ut that is not universally the case” and concluding that attorney was immune from conduct that occurred after litigation had ended); Santiago v. Mackie Wolf Zielntz & Mann, P.C., No. 05-16-00394-CV, 2017 Tex. App. LEXIS 2092, at *10M (Tex. App.—Dallas Mar. 10, 2017, no pet.) (mem. op.) (recognizing that Texas courts “have noted that attorney immunity applies outside of thie litigation context” and citing opinions). Here, the court of appeals recognized that “the alleged purchase of Pohl[’s] client list for those cloients’ contact information, followed by the mailing of attorney advertisements tol those individuals about specific types of claims they might be able to pursuei 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 v. Pohl, 612 S.W.3d 571, 578 (Tex. App. – Houston [1st Dist.] 2020, pet. denied) (emphasis added). That court opined that “the intended audience of [Kassab’s alleged] statement or conduct were individuals 19 with potential legal claims who Kassab sought to represent in barratry suits against Pohl. These were Kassab’s potential clients to whom he offered the kind of legal services he provides.” Id. at 579. The acquisition of clients and filing of lawsuits are actionsk “taken and communications made to facilitate the rendition of legal services”C and are protected by the attorney immunity doctrine. Youngkin, 546 S.W.3d at 682. Because Pohl’s claims against Kassab are “based in part” on that conduct,i41 the attorney immunity doctrine applies and Pohl’s claims are barred as a matter of law. See id.; Highland Capital Mgmt., 2016 Tex. App. LEXIS 442, at *16; Sacks v. Hall, No. 01-13-00531- CV, 2014 Tex. App. LEXIS 12570, at *30 (Tex. App.—Houston [1st Dist.] Nov. 20, 2014, no pet.) (mem. op.) (attorney not lilable to third party for filing confidential medical records because the filing Mof the records did not constitute an action “foreign to the duties of an attorney.”); Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st Dist.] 199i2, writ denied) (“an attorney does not have a right of recovery, under any cause of action, against another attorney arising from conduct the second aottorney engaged in as part of the discharge of his duties in representing a parlty.”) (emphasis added). i V o CONCLUSION & PRAYER For the foregoing reasons, the Court should grant summary judgment and order that Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC take 41 Petition, ¶ 29. 20 nothing in their claims against Lance Christopher Kassab and The Kassab Law Firm. Respectfully submitted, THE KASSAB LAW FIRM k __________________________ LANCE CHRISTOPHiER KASSAB Texas State Bart No. 00794070 lance@kassabi.law DAVID ERIC KASSAB Texas State Bar No. 24071351 david@ekassab.law NICHOLAS R. PIERCE Texuas State Bar No. 24098263 nicholas@kassab.law 1214 Elgin Street lHouston, Texas 77004 a Telephone: 713-522-7400 M Facsimile: 713-522-7410  E-Service: eserve@kassab.law e ATTORNEYS FOR KASSAB PARTIES CERTIFICATE OF SERVICE I certify that on this date, June 8, 2021, I electronically filed this document with the Clerk of lthe Court using the eFile.TXCourts.gov electronic filing system which will send inotification of such filing to all parties or counsel of record. _______________________ DAVID ERIC KASSAB 21

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