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17 2021-07-26 RSP Pohl Pohl’s response to Kassab MSJ Pohl's Response in Opposition to Kassab's Traditional Motion for Summary Judgment, addressing all three grounds (limitations, res judicata, attorney immunity) Response brief filed in Phase 2 opposing Kassab's dispositive Traditional MSJ. Pohl argues Kassab's motion recycles the same arguments and limited evidence from the TCPA motion and interlocutory appeal, and was filed prior to responding to any discovery. Filed July 26, 2021, approximately 7 weeks after Kassab's MSJ. MSJ-1 N/A Phase 2 2021-07-26_RSP_Pohl-Response-to-Kassab-Traditional-MSJ_FILED.pdf Deny Kassab's Traditional Motion for Summary Judgment in all respects 7/26/2021 2:51 PM Marilyn Burgess - District Clerk Harris County Envelope No. 55701585 By: Deandra Mosley Filed: 7/26/2021 2:51 PM CAUSE NO. 2018-58419 MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF MICHAEL A. POHL, PLLC, § Plaintiffs, § V. § k § e SCOTT FAVRE and SCOTT M. FAVRE PA, § C l LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS LLC; LANCE CHRISTOPHER KASSAB and § c LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r THE KASSAB LAW FIRM; TINA § s NICHOLSON and BAKER NICHOLSON, § LLP d/b/a BAKER NICHOLSON LAW § s FIRM; and DOUGLAS MONTAGUE III and § s MONTAGUE PITTMAN & VARNADO, P.A., § Defendants. § r189TH JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, PC’S TRADITIONAL MOTION FOlR SUMMARY JUDGMENT Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond in opposition to the Traditional Motion for Summary Judgment filed by Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively “Kassab”). Kassab’s Traditional Motion for Summary Judgment (the “Motion”), which Kassab filed prior to responding to any discovery, relies on the same arguments and (very limited) evidence previously presented to this Court and the First Court of Appeals in Kassab’s motion under the TCPA.c Kassab’s arguments were not persuasive then, nor is his recycled assertion of them persuasive now. I. FACTUAL BACKGROUND Pohl is a lawyer who represented various persons and entities in claims arising from motor vehicle accidents and the British Petroleum Deepwater Horizon oil spill.1 Pohl engaged Precision 1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 3, attached as Exhibit A. Marketing Group, LLC (“Precision”) to provide public relations services, to gather and preserve evidence, and to screen and liaise with Pohl’s clients and prospective clients.2 While working for Pohl, Precision naturally gained access to Pohl’s confidential and proprietary information and property, including trade secret materials.3 Scott Favre, individually and/or thkrough Scott M. Favre PA, LLC (collectively “Favre”) is the managing member of Precision.4 Flavre took physical copies of Pohl’s information, stole Pohl’s computers, and misappropriatecd electronic data.5 In November 2016, Kassab—a lawyer who specializes in suinsg other lawyers—purchased Pohl’s stolen confidential information and property from Favsre (with the assistance of other Defendants) for a whopping $250,000, plus bonuses,6 taking possession of at least some of the information and property in December 2016.7 Kassab highly valued Pohl’s stolen and misappropriated confidential information and property because, after purchasing it, he used it to contact and solicit Pohl’s clients and prospectiave clients.8 Kassab’s actions constitute conversion, violations of the uniform trade secrets act (“TUTSA”), and conspiracy. Favre’s sale of Pohl’s stolen ceonfidential information and client communications to Kassab violated the terms of a settlementf agreement. That confidential settlement agreement, executed in late April or early May 2017y (the “Settlement Agreement”), resolved a lawsuit in federal court in Mississippi, styled No.C 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 (the 2 Id. ¶ 4. 3 Id. ¶ 6. 4 Id. 5 Id. ¶¶ 6–8. 6 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A). 7 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A). 8 Kassab has admitted using Pohl’s client files (while erroneously claiming that they belonged to Precision Marketing) to contact Pohl’s clients and former clients to solicit them to file claims against Pohl. See Declaration of Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018. “Federal Court Case”).9 Favre is a party to the Settlement Agreement, but he was not a party to the Federal Court Case.10 Precision is the only Defendant in this lawsuit that was also party to the Federal Court Case.11 Pohl timely brought this lawsuit against Kassab and the other Defendantsk on August 28, 2018.12 l II. ARGUMENT c A. Pohl’s Claims are Not Barred by Limitations. s Pohl’s claims against Kassab accrued no earlier than Nsovember 2016 because they arise from Kassab’s November 2016 purchase—and subsequent use—of information and property stolen from Pohl. As no claim has a limitations period of less than two years, and Pohl brought this lawsuit in August 2018, Pohl’s claims are not barred. Even if this were not so, Kassab has failed to carry his burden to show that the claimas against him accrued outside the limitations period. 1. The summary judgment standard for the affirmative defense of limitations. Kassab bears the burden to aned must “conclusively prove when” each of Pohl’s causes of action accrued and must also nefgate the discovery rule to be entitled to summary judgment on limitations. See Regency Fiyeld Services, LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818 (Tex. 2021) (“a deCfendant seeking summary judgment based on limitations must conclusively establish that the limaitations period expired before the claimant filed suit”); see also Motion at 6 (acknowledgingf that Kassab bears this burden). 9 Pohl Declaration ¶¶ 10–11, attached as Exhibit A. 10 Id. 11 See id. ¶ 10; Federal Court Case Order, attached as Exhibit 4 to the Motion (showing parties in the caption). Pohl made Precision a party to the Federal Court Case through a counterclaim. See generally Pohl’s Federal Counterclaim, attached as Exhibit 2 to the Motion. 12 See generally Pohl’s Original Petition, filed August 28, 2018. “Generally, a claim accrues when the defendant’s wrongful conduct causes the claimant to suffer a legal injury, which gives the claimant the right to seek a judicial remedy.” Regency, 622 S.W.3d at 814 (emphasis added). Texas courts apply specific tests to determine the accrual of certain claims, including the three claims at issue here. k A claim for conversion generally accrues at the time of the defendant’sl “unlawful taking” of the plaintiff’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tcex. App.—Houston [1st Dist.] 2006, no pet.). When property is alleged to have been convesrted and then transferred to another party, “each possession is a new conversion.” Pemex Esxploracion y Produccion v. BASF Corp., CIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (citation omitted) (applying Texas law). There is a two-year limitations period for conversion. See TEX. CIV. PRAC. & REM. CODE § 16.003(a). “A cause of action for trade-secret maisappropriation accrues when the trade secret is actually used. Use of the trade secret means commercial use by which the offending party seeks to profit from the use of the secret.”e Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721–22 (Tex. 2016) (cleaned up)f. There is a three-year limitations period for TUTSA violations. See TEX. CIV. PRAC. & REM y. CODE § 16.010(a). The civil conspiracy claim is derivative of the underlying torts, and itC accrues “as to each alleged underlying tort when that tort occurs.” Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 145 (Tex. 2019). 2. Pohflf’s claims against Kassab accrued within two years of the initiation of this suit. PoUhl brought suit on August 28, 2018 against Kassab and the other Defendants.13 Because Pohl’s conversion claim accrued after August 28, 2016 and Pohl’s TUTSA claim accrued after August 28, 2015, Kassab’s affirmative defense of limitations fails. 13 See generally Pohl’s Original Petition, filed August 28, 2018. Pohl’s conversion claim arises from Kassab’s purchase and subsequent use of information and property stolen from Pohl. See Amended Complaint ¶¶ 36–38.14 The undisputed evidence shows that Kassab made this purchase through a contract dated November 10, 2016.15 Kassab took possession of at least some of Pohl’s information and property in December 2k016.16 Pohl’s conversion claim against Kassab accrued when Kassab took polssession of Pohl’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houcston [1st Dist.] 2006, no pet.). It does not matter if there was a prior claim for conversion sagainst other individuals or entities, as “each possession is a new conversion.” Pemex Exsploracion y Produccion v. BASF Corp., CIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (emphasis added). Because the contract to purchase the property is dated in November 201617 and Kassab was still acquiring possession of the stolen property in December 2016,18 Pohl’s claim against Kassab for conversion accrued, no earlier than Decembera 1, 2016—well within the two-year period. Pohl’s TUTSA claim against Kassab is based on overlapping conduct. Kassab’s knowing purchase and subsequent use of stolene trade secrets violated TUTSA. See Amended Complaint ¶¶ 39–42. Pohl’s TUTSA claim agfainst Kassab accrued upon Kassab’s use of Pohl’s stolen trade secrets. See Sw. Energy Proyd. Co. v. Berry-Helfand, 491 S.W.3d 699, 721–22 (Tex. 2016). For Kassab’s liCmitation defense to prevail, he must conclusively show that Pohl’s TUTSA claim against him accrued prior to August 28, 2015. See TEX. CIV. PRAC. & REM. CODE § 16.010(a) (profvfiding a three-year limitations period). Pohl’s claims accrued no earlier than NovembeUr 10, 2016, as that is the date of the contract through which Kassab purchased Pohl’s 14 See also November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018. 15 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration. 16 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration. 17 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration. 18 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration. trade secrets.19 As Kassab was still acquiring possession of these materials in December 2016,20 his use of Pohl’s trade secrets—and the accrual of Pohl’s TUTSA claim—necessarily occurred after November 10, 2016. 3. Kassab’s arguments and evidence about prior wrongdoing are irkrelevant to his limitations defense. e Kassab focuses on wrongful conduct by others—conduct that does not give rise to Pohl’s claims in this lawsuit—to argue that limitations bars Pohl’s claims. See Mr iotion at 7–12. However, in determining when claims against Kassab accrued, it is Kassab’Ds alleged wrongful conduct that is relevant, not the conduct of others. Kassab’s participations in the sale and purchase of Pohl’s information, through a contract dated in November 2016r, and Kassab’s subsequent use of that information is the conduct that gives rise to Pohl’s claims. See Amended Petition ¶¶ 21–23, 26– 29, 33.21 l Even if the wrongful conduct of oMthers (that did not give rise to Pohl’s claims) were somehow relevant to Kassab’s limitaotions defense—and it is not—Kassab has not met his summary judgment burden. Kasscab acknowledges that he bears the burden of negating the discovery rule. See Motion at 6.22 To do so, Kassab must conclusively establish that Pohl “knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury” more than three years prior to this lawsuit for his TUTSA claim and more than two years prior for the convcersion claim. See Regency Field Services, LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 817 (Tex. 2021). 19 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration. 20 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration. 21 See November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018. 22 See also Pohl’s November 2018 Declaration ¶ 9, attached as Exhibit A to the Amended Petition (providing notice of the potential application of the discovery rule). Kassab purports to negate the application of the discovery rule through Pohl’s testimony. See Motion at 11. However, Kassab’s evidence does not establish what he says it does. The testimony Kassab cites only shows that at an undefined point prior to Pohl’s May 15, 2018 deposition, Pohl had knowledge of some wrongful conduct by some individual or kindividuals that occurred in 2014.23 Nothing in Pohl’s testimony establishes when Pohl gaineld knowledge about the 2014 conduct discussed, nor does it address when Pohl knew of Kassacb’s wrongful conduct.24 And, even if the testimony contained evidence that Kassab wishes its contained, it at most would create a fact issue regarding the accrual of Pohl’s claims. Pohls has affirmatively testified that he was not aware of the claims in this case in the two-year period prior to the filing of this case.25 Limitations does not bar Pohl’s claims, and Kassab has not shown that he is entitled to judgment as a matter of law. B. Res Judicata Does Not Apply to Poahl’s Claims Against Kassab. Kassab confuses and contorts the conduct at issue in this lawsuit to argue that Pohl’s claims are barred by res judicata as a result oef the settlement and dismissal of the Federal Court Case. See Motion at 12–16. Because Kassafb was not a party to the judgment in the Federal Court Case, he tries to base his res judicatya defense on an unsupported allegation that he is in privity with Precision—which wasC a party to the Federal Court Case. Id. at 13–14. Tellingly, Precision did not move for summary judgment (or to dismiss) on the basis that res judicata bars the claims in this lawsuit.26 f f 23 See Exhibit 3 to the Motion (discussing Pohl’s knowledge and contentions made in May 2018). 24 See generally id. 25 Pohl’s November 2018 Declaration ¶ 9, attached as Exhibit A to the Amended Petition; see also Pohl Declaration ¶ 9, attached as Exhibit A. 26 See generally Motion to Dismiss filed by Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing Group, LLC on November 16, 2018. Kassab is not entitled to summary judgment on his res judicata defense because he has not provided evidence that conclusively establishes its three elements. “Res judicata requires: (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties or those in privity with them, and (3) a second action based on the same claims thakt were raised or could have been raised in the first action.” Burchfield v. Prosperity Bank, 408l S.W.3d 542, 545– 46 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citation omitted). c The second and third elements are at issue here. Kassab scannot establish the second element, because he admits he was not a party to the prior judsg  ment and provides no evidence that he is in privity with anyone who was a party to a prior judgment. Furthermore, Kassab’s evidence does not establish the third element—that Pohl’s claims against Kassab are “the same as” the claims settled in the other case or that they could have been brought in that case—as the evidence shows that each of the two actions haas distinct factual bases and parties. 1. Kassab fails to conclusively establish he is in privity with any party to a final judgment. Kassab is not entitled to summeary judgment because he provided no evidence that he is in privity with any party to the judgmfent in the Federal Court Case, nor can he provide such evidence. See Motion at 13. The couryt in the Federal Court Case dismissed all claims with prejudice after the parties entered intoC the voluntary Settlement Agreement.27 Kassab was not a party to that agreement or to thea Federal Court Case, and no party to the Federal Court Case represented his interests in that faction. TUexas has rejected categorical approaches to privity, and a court must examine the particular circumstances of a case before it can determine if parties are in privity. See Burchfield, 408 S.W.3d at 546–47. To determine if a person is in privity with a party to a prior action, a court 27 See Federal Court Case Order, attached as Exhibit 4 to the Motion. must determine if that person satisfies one of three tests: “(1) they can control an action even if they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they can be successors in interest, deriving their claims through a party to the prior action.” Burchfield, 408 S.W.3d at 546–47 (quoting Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653k (Tex. 1996)). Kassab does not allege that any of these three tests are satisfied, let alonle provide evidence to conclusively establish privity with a party to the Federal Court Case. Scee Motion at 13. Rather than addressing the controlling Texas standard, Kassab asserts thats privity exists because Pohl alleges in this lawsuit that Kassab conspired with Precision—asn entity which was a party to the Federal Court Case. Motion at 13. Kassab provides no Texas authority to support this assertion, instead, Kassab cites to three out-of-state cases, none of which apply Texas law. Id.28 While it is possible for co-conspirators to be in privity with each other, under Texas law, allegations of conspiracy alone are not enougah—Kassab must show that one of the three tests for privity is satisfied. See Rogers v. Walker, 13-12-00048-CV, 2013 WL 2298449, at *4 (Tex. App.—Corpus Christi May 23, 2013,e pet. denied); New York Pizzeria, Inc. v. Syal, 53 F. Supp. 3d 962, 969 n.6 (S.D. Tex. 2014) (“Tfhis Court predicts that the Texas Supreme Court would not adopt a rule that alleged coconspiryators are always in privity for the purposes of claim preclusion, but would instead hold thaCt courts must consider whether the circumstances justify such a ruling.”). Kassab does not allege or provide any evidence that he (1) had any control in relation to the Federal Cofufrt Case; (2) that Precision, any other party, represented Kassab’s interests; or (3) Kassab wUas a successor in interest to Precision or any other party. 28 Kassab relies on out-of-state cases which are distinct from the facts of this case. For example, he relies on RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 800 F. Supp. 2d 182 (D.D.C. 2011). See Motion at 13. The court in RSM found co-conspirators to be in privity with each other after the plaintiff attempted to assert the “exact same alleged corrupt conspiracy” with a new party after that conspiracy claim had been dealt with in a prior action. See RSM, 800 F. Supp. 2d at 194. The conspiracy alleged in this lawsuit was not part of the Federal Court Case. Kassab cannot provide evidence to establish control, because, “[i]n determining whether privity exists through control over a prior action, Texas courts have focused on whether an individual actively and openly participated in the prior proceedings to such an extent that it was clear that the individual had the right to direct them.” McNeil Interests, Inc. v. Qkuisenberry, 407 S.W.3d 381, 389 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (quotation lomitted). There is no evidence to establish that Kassab “openly participated”—or participatced at all—in the Federal Court Case. s Kassab also completely fails to prove that Precision reprsesented his interests in the Federal Court Case. Kassab does not state that he had an interest in the Federal Court Case, let alone identify that interest or provide evidence that Precision could have represented that interest. See generally Motion; see also Rogers, 2013 WL 2298449, at *3 (refusing to affirm summary judgment when movant “did not state that [maovant] had an interest in the probate action, identify his interest, or state that [a party to the action] could have represented his interest”). The same is true for the successor in interest test.e No allegations or evidence from Kassab even address this test, let alone carry Kassab’s sumfmary judgment burden on the issue. See generally Motion. 2. The factual basesy of Pohl’s claims against Kassab are not the “same” as those asserted in the Federal Court Case, nor could Pohl’s claims have been asserted in that action. Kassab’s failure to provide evidence of privity prevents him from establishing res judicata. However, even ifc he had provided evidence of privity, Kassab does not conclusively establish that this lawsuit “arises out of the same subject matter as the” Federal Court Case and that it could have been litigated there. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). To determine whether the Federal Court Action shares the same “subject matter” as this lawsuit, the Court should look to “the factual matters that make up the gist of the complaint, without regard to the form of action.” Id. (cleaned up). “This should be done pragmatically, giving 10 weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties’ expectations or business understanding or usage.” Id. (cleaned up). Kassab cites to two pieces of evidence to show “the factual basis of Pohl’sk claims or even potential claims in the Federal Court Case.” Motion at 14. First, he citesl to Pohl’s Federal Counterclaim filed in that action. See id. at 13–14 (citing to Pohl’s Federacl Counterclaim, attached as Exhibit 2 to the Motion). Second, he cites a June 2018 affidavit sfrom Pohl. See id. at 14–15 (citing to Exhibit 1 to the Motion). Neither is sufficient to satsisfy Kassab’s summary judgment burden. First, contrary to what Kassab’s misleading citations indicate, the factual basis of Pohl’s Federal Counterclaim does not overlap at all with the factual bases of this lawsuit. See generally Pohl’s Federal Counterclaim, attached as Exhaibit 2 to the Motion. To disguise this fact, Kassab impermissibly focuses on the “form of action,” noting that Pohl “alleged theft” in the Counterclaim. See Motion at 14. Heowever, the factual basis for that claim in the Federal Court Case focuses entirely on impropefr billing and charging of expenses by Precision, not the theft of personal property at issue in ythis lawsuit. Compare Pohl’s Federal Counterclaim, at 2–5, attached as Exhibit 2 to the MoCtion (discussing conversion of “funds”), with Amended Petition ¶¶ 20–26, 36–38 (discussing the conversion of Pohl’s “confidential information and property”). Kassabf’fs citation to Pohl’s Federal Counterclaim does not show that the factual bases of the two aUctions overlap or are the same; it instead demonstrates that the allegations before the federal court were entirely separate from the allegations in this lawsuit. See Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007) (discussing how courts look to the “gist of the complaint”). Pohl’s claims do not arise out of the alleged fraudulent billing practices of entities 11 or individuals in the Federal Court Action. See generally Amended Petition. Pohl’s claims against Kassab in this lawsuit arise out of the conversion and theft of personal property. See id. Second, Kassab’s other piece of evidence is Pohl’s June 2018 affidavit filed in response to a grievance complaint initiated by Kassab against Pohl. See Motion at 14–15 (citking to Exhibit 1 to the Motion). Kassab’s use of this affidavit is misleading because the affidlavit reflects Pohl’s knowledge after the conclusion of the Federal Court Case. Nor does thce affidavit establish that the basis of the two actions was the same. s Kassab triumphantly notes that the affidavit alleges that sFavre (who was not a party to the Federal Court Case) “appears [to have] eventually sold those items and the information therein to [Kassab].” See Motion at 15 (quoting Exhibit 1 to the Motion) (alterations from Motion). This allegation does not establish that Pohl could have brought his current claims in the Federal Court Case. Pohl’s statement in June 2018—over aa year after the judgment in the Federal Court Case—about what he believed occurred does not show that the conversion claim in this lawsuit could have been brought years prior. e In fact, the testimony makes perfect sense, as Pohl filed this lawsuit just months later, in Augufst 2018.29 Furthermore, even if Pohl did have this knowledge of prior to the judgment in the Fyederal Court Case, that does not change the fact that the subject matter of the Federal Court CaCse differs from the factual basis of this lawsuit. See Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (“A subsequent suit will be barred if it arifs f es out of the same subject matter of a previous suit and which through the exercise oUf diligence, could have been litigated in a prior suit.” (emphasis added)). Kassab was not a party to the Federal Court Case, the Settlement Agreement or the judgment. Ignoring the applicable Texas legal standard, Kassab simply asserts that he was in 29 See generally Pohl’s Original Petition, filed August 28, 2018. 12 privity with Precision. Assertions without evidence do not satisfy Kassab’s summary judgment burden to establish each essential element of res judicata, and his argument fails. Kassab also fails to demonstrate that the gist of the Federal Court Case overlaps with the present lawsuit, which is also fatal to Kassab’s res judicata defense. Summary judgment is not available. k C. The Attorney-Immunity Doctrine Does Not Apply. C l Kassab contrives an argument that, as an attorney, he is immcune from liability for converting the property of others and misappropriating trade secretss because after his wrongful acquisition of property, he used that stolen information for the “sacquisition of clients and filing of lawsuits.” See Motion at 20. Texas does not recognize any application of the attorney-immunity doctrine outside of an attorney–client relationship, and Kassab’s wrongful conduct was not the type of conduct an attorney uniquely engages in to discharge duties to a client. Kassab’s attorney- immunity doctrine defense fails. a The Texas Supreme Court has held that two inquiries are relevant to an attorney-immunity defense: “the type of conduct at issuee and the existence of an attorney–client relationship at the time.” Youngkin v. Hines, 546 Sf.W.3d 675, 683 (Tex. 2018). The claims against Kassab do not fall within the attorney-immyunity doctrine because the conduct at issue does not qualify as “the kind of conduct in whCich an attorney engages when discharging his duties to his client.” Canty Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). Additionally, Kassab has not established the existence offf an attorney–client relationship at the time of his wrongful conduct. KUassab purchased the stolen information and then used it to solicit and advertise to Pohl’s clients/prospective clients. See Motion at 18–19 (discussing what Kassab contends is the “basis for Pohl’s lawsuit”). Kassab’s knowing purchase of stolen property prior to his representation of a client is neither within the scope of his representation of a client nor is it an activity undertaken 13 in a “uniquely lawyerly capacity.” See Landry’s, 2021 WL 2021130, at *3. The use of the information by Kassab to solicit and advertise to obtain clients is not within the scope of client representation, because this conduct necessarily precedes the “meeting of the minds” between a potential client and attorney necessary to form an attorney–client relationship. Seke Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55 (Tex. Aplp.—Houston [14th Dist.] 2003, pet. denied). c Kassab’s reliance on the First Court of Appeal’s opinion (in wshich that court affirmed this Court’s denial of his TCPA Motion) is misplaced. Kassab suggessts that the court’s conclusion that his conduct “qualifies as statements or conduct that arose out of a commercial transaction involving the type of legal services Kassab provides” demonstrates that his conduct is of the “kind” that attorneys provide and is thus protected by the attorney-immunity doctrine. See Motion at 19– 20 (discussing Kassab v. Pohl, 612 S.W.3d 5a71, 578 (Tex. App.—Houston [1st Dist.] 2020, pet. denied)). Kassab’s argument conflates the appellate court’s discussion of the scope of a commercial transaction with the scoepe of Kassab’s duties to a client. The fact that Kassab’s conduct was part of a commerciafl transaction does not mean that it was both “within the scope of client representation” and wyas “not foreign to the duties of a lawyer.” Youngkin, 546 S.W.3d at 682. C Kassab also failed to establish or provide any evidence of “the existence of an attorney– client relationsfhfip at the time” of his wrongful conduct. Youngkin, 546 S.W.3d at 683. Kassab attempts Uto obfuscate his inability to provide evidence of this essential fact by discussing how the attorney-immunity doctrine can apply “prior to any litigation.” See Motion at 19. While the doctrine can apply prior to litigation, that is not relevant. Pohl asserts claims for conduct, not just before litigation, but before Kassab had a single client with whom he could have the requisite 14 attorney–client relationship. See, e.g., Amended Petition ¶ 29 (discussing how Kassab used “the stolen confidential information and property” to subsequentially solicit “clients/prospective clients to act as plaintiffs”); see also Tanox, 105 S.W.3d at 254–55 (noting how attorney–client relationship cannot be formed prior to a “meeting of the minds”). k In sum, Kassab cannot show that his wrongful actions were “within lthe scope of client representation” and were “not foreign to the duties of a lawyer.” Youngckin, 546 S.W.3d at 682. In other words, Kassab is entitled to immunity only if he can establishs as a matter of law that when he engaged in his alleged wrongful acts, he was acting nots only within the scope of client representation, but that there was something “particular to ‘the office, professional training, skill, and authority of an attorney’ about” his alleged wrongful conduct. See Landry’s, Inc. v. Animal Legal Def. Fund, --- S.W.3d ---, 19-0036, 2021 WL 2021130, at *3, *8 (Tex. May 21, 2021) (citation omitted). Kassab has not shown thisa. See Motion at 17–20. Because Kassab did not provide evidence of the existence of an attorney–client relationship at the time of his wrongful actiones and that those actions were within the scope of his representation, his request for sufmmary judgment on the attorney-immunity doctrine must be denied. The fact that his wryongful conduct of purchasing stolen information was not the type of conduct undertaken in Ca “uniquely lawyerly capacity” only further supports this conclusion. III. CONCLUSION For thef fforegoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl respectfuUlly request that Kassab’s Motion be in all respects denied. 15 Dated: July 26, 2021 Respectfully submitted, REYNOLDS FRIZZELL LLP By: /s/ Jean C. Frizzell Jean C. Frizzell State Bar No. 07484650 k 1100 Louisiana St., Suite 3500 e Houston, Texas 77002 l Tel. 713.485.7200 Fax 713.485.7250 c jfrizzell@reynoldsfrizzell.rcom Attorney for PlaintifDfs Michael Pohl and Law Office of Michael A. Pohl, PLLC CERTIFICATE OF SERrVICE I hereby certify that a true and correct copy of this document was served on all counsel of record pursuant to the Texas Rules of Civil Procedure on this 26th day of July, 2021. M /s/ Jean C. Frizzell  Jean C. Frizzell 16

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