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18 2021-08-02 RPL Kassab Kassab’s reply ISO Traditional MSJ Kassab's Objections to Pohl's Response and Reply in Support of Traditional Motion for Summary Judgment, with extensive evidentiary objections and rebuttal arguments on all three grounds Reply brief filed one week after Pohl's response (July 26, 2021) to Kassab's Traditional MSJ. Filed August 1-2, 2021. Contains two major sections: (1) detailed paragraph-by-paragraph evidentiary objections to Pohl's Declaration (Exhibit A) seeking to strike key paragraphs and exhibits as conclusory, hearsay, or lacking foundation; (2) substantive reply arguments on limitations, res judicata, and attorney immunity. Kassab represents himself pro se with David Eric Kassab. MSJ-1 N/A Phase 2 2021-08-02_RPL_Kassab-Reply-ISO-Traditional-MSJ_FILED.pdf Sustain all evidentiary objections; strike Paragraphs 5, 6, 7, 8, 9, and 10 of Pohl's Declaration and Exhibits 1-2; grant Traditional Motion for Summary Judgment ordering that Plaintiffs take nothing 8/1/2021 7:39 PM Marilyn Burgess - District Clerk Harris County Envelope No. 55892722 By: Deandra Mosley Filed: 8/2/2021 12:00 AM CAUSE NO. 2018-58419 MICHAEL A. POHL, et al § IN THE DISTRICT COURT V. § OF HARRIS COUNTY, TEXAS SCOTT FAVRE, et al § 189th JUDICIALk DISTRICT THE KASSAB DEFENDANTS’ OBJECTIONS TO PLAINTIFCFS’ RESPONSE AND REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGEtR: Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a/ The Kassab Law Firm file this, their Objections to Plaeintiffs’ Response and Reply in Support of Motion for Summary Judgment uand would respectfully show the following. BJECTIONS Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a/ The Kassab Law Firm i(collectively, “Kassab”) object to Plaintiffs’ Exhibit A, the sworn declaration of Michael A. Pohl, because statements contained in this declaration are concluosory, contain hearsay and contain no foundation or predicate to support personall knowledge, and thus, constitute no evidence at all. Conclusiory affidavits do not raise fact issues and are incompetent evidence as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Stephens v. Precision Drilling Oilfield Servs. Corp., No. 01-11-00326-CV, 2013 Tex. App. LEXIS 5700, at *19 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.). “A conclusory statement is one that does not provide the underlying facts to support the conclusion.” Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App. – Houston [14th Dist.] 2000, pet. denied). Moreover, an affidavit is conclusory when it expresses “a factual inference without stating the underlying facts on which the inference is based.” E.I. du Pont de Nemours & Co. v. Shell Oil Cok., 259 S.W.3d 800, 809 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). ThusC, bare conclusions are not evidence and are not probative of any facts. See Bavishi v. Sterling Air Conditioning, Inc., No. 01-10-00610-CV, 2011 Tex. App.i LEXIS 6271, at *24-26 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (mem. op.). Pohl’s declaration consists of nothing but conclusory statements. Kassab objects to Paragraph 4, which states: “Pohl engaged Precision Marketing Group, LLC (“Precision”) to prlovide public relations services, to gather and preserve evidence, and to screenM and liaise with Pohl’s clients and prospective clients.” This statement is conclusory because Pohl fails to provide any foundation or predicate for the statementi such as when, where, and how he engaged Precision. Pohl does not state what Precision is, who owns Precision, who he met with at Precision, when he ostruck an agreement with Precision, when Precision was supposed to condulct its work or what Precision was to receive. Pohl does not state what any of thie details of the agreement with Precision are, when Precision is to act and for how long the agreement is to take place or where it is to take place. And, although Pohl states why he allegedly “engaged Precision,” he does not provide any detail or specificity regarding the conclusory remark in paragraph 4. “[G]ather and preserve” what evidence? “[S]creen and liaise with Pohl’s clients and prospective clients” how? What type of screening? What type of liaising? What location? For what purpose? There is simply no predicate or foundation to support this conclusory statement, and thus, Pohl’s paragraph 4 contains nothing but bare conclusions which constitutes no evidence and is not probative of any facts. See Bkavishi, 2011 Tex. App. LEXIS 6271, at *24-26. C Kassab objects to Paragraph 5, which states: “I was and am the owner of the confidential, privileged and trade secret information thait Kassab obtained from Scott Favre, Precision Marketing Group, LLC (“Precision”), and Tina Nicholson on which this suit is based.” This statement is conclusory because Pohl fails to describe what the purported confidential information or trade secrets are or explain how he is the rightful owner of this information asl opposed to Favre or Precision, who have claimed to be the owner of the aMlleged marketing lists provided to Kassab. Additionally, Pohl fails to state when or why he obtained this information or what makes it confidential or priivileged. Moreover, Pohl fails to explain how the information even constitutes a trade secret. See Game Sys. v. Forbes Hutton Leasing, Inc., No. 02-o09-00051-CV, 2011 Tex. App. LEXIS 4098, at *76 (Tex. App. – Fort Worth, Mayl 26, 2011, no pet.) (mem. op.) (statement that the software “constitutes ai trade secret” was conclusory and not proper evidence). Pohl’s paragraph 5 contains nothing but bare conclusions which constitutes no evidence and is not probative of any facts. See Bavishi, 2011 Tex. App. LEXIS 6271, at *24- 26. Kassab objects to Paragraph 6 because it is conclusory and contains hearsay. First, Kassab objects to the following statement as conclusory: “Specifically, prior to that sale, Precision undertook to convert, misappropriate for itself, and/or market to third parties claimant files and other information and materials that belong to me, and to which they had access while working for me.”k Pohl fails to explain what “sale” he is referring to. Who purchased what from wChom? When was there a sale? Where did a sale take place? Pohl even fails to provide personal knowledge regard a sale. i Pohl also fails to provide any factual support about how Precision allegedly converted his purported “information or materials.” Pohl also fails to provide and foundation or predicate for the statement. Pohl fails to state how Precision undertook to convert or misappropriate forl itself anything. Pohl fails to state when items were converted or misapproprMiated, why Precision undertook to convert or misappropriate something, where it was converted or misappropriated, how long something was converted or miisappropriated, whether Pohl attempted to stop the conversion or misappropriation, when and how Pohl attempted to stop the conversion or misapporopriation, and what Pohl did to stop, prevent or safeguard against any converlsion or misappropriation. Moreoveir, Kassab also objects to the next sentence in this paragraph, wherein Pohl claims that the information taken “include[s] original client contingency fee contracts between my clients and me (and to which Precision and/or its affiliates are not parties); documentation of contact and personal information; claim information; compilations of former and current clients; and supporting materials.” Under Texas law, Pohl is not the owner of this information; “a client owns the contents of his or her file.” In re Cook, 597 S.W.3d 589, 597 (Tex. App. – Houston [14th Dist.] 2020, no pet.). Therefore, Pohl’s statement that he is the owner of this information is conclusory because Pohl does not explain howk he owns the information as opposed to his clients. C Pohl’s statement that “Kirk Ladner (a former owner of Precision) admitted to absconding with those files and, without my consent, kepit them at his residence until they were later delivered, also without my consent, to Scott Favre, the subsequent managing member of Precision” is conclusory and contains hearsay. What Ladner purportedly admitted to is hearsay. See TEX. R. EVID. 801(c). Additionally, Pohl does not provide any lfactual support for his conclusion that Ladner purportedly absconded withM the files. Therefore, in addition to being hearsay, the statement is also conclusory. Kassab objects to Paragiraph 7 which states, “Precision also refused to return and converted to its own use multiple computers that I purchased for my office and which Precision usedo while there performing services for me.” This statement is conclusory becausle it fails to provide any factual support for the statement that Precision allegiedly refused to return or converted to its own use computers allegedly purchased by Pohl. Pohl fails to state when he allegedly purchased computers, how many computers were purchased, which of the computers purchased were converted, what type of computers he is referring to and when these mysterious computers where converted. Kassab objects to multiple statements in Paragraph 8 as conclusory and speculative, lacking personal knowledge and because they contain hearsay. First, the statement “Precision expressed their understanding of the confidential nature of the information based on their prior experiencek in providing litigation-related services to BP claims facilities and to attorneyCs, a field in which Precision held themselves out to me as experienced professionals” is conclusory. Pohl does not state who at Precision allegedly expressed thieir understanding of the confidential nature of the information, how it was expressed, when it was expressed, where it was expressed, why it was expressed or who it was expressed to. Pohl also does not state who at Precision allegedly held themselves out to Pohl as “experienced professionals” or provide factls to demonstrate how that occurred, when it occurred, or where it occurred, if it Meven did. Second, the statement, “Precision expressed their understanding of the confidential nature of the infoirmation” is also impermissible hearsay. See TEX. R. EVID. 801(c). Third, Kassab oobjects to the following statement “Nevertheless, without my consent, and altholugh they were without legal title to the contracts, documents, computers, paisswords or data stored thereon, Precision purported to sell the contracts, documents, computer, passwords and/or stored data to Scott Favre (even after I had informed Favre that the materials had been stolen from me by Precision), who it appears (with Tina Nicholson’s assistance) eventually sold those items and the information therein to Kassab.” This statement is conclusory because Pohl does not explain why Precision would not have his consent to do what it allegedly did, or why Precision would not have “legal title” to the information. Pohl’s contention that Precision did not have “legal title” is an unsupported legal conclusion. Moreover, Pohl’s statement that Precision “purportedk to sell” or “appears” to have eventually sold the information to Kassab is nCothing more than speculation by Pohl as what Precision did, which is insufficient. See Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (“interested witnesis’ affidavit which recites that the affiant ‘estimates,’ or ‘believes’ certain facts to be true will not support summary judgment.”); Essex Ins. Co. v. Mason Bros. Constr., Inc., No. 07-02-0408- CV, 2004 Tex. App. LEXIS 5740, at *13 (Tex. App. – Amarillo June 29, 2004, pet. denied) (mem. op.) (statement that “it appelars” some fact occurred was conclusory). Kassab also objects to ParagrMaph 9 as conclusory. Pohl states “Prior to the two year period leading up to the filing of this case, I was unaware that Scott Favre and Precision, with the assistiance of Tina Nicholson, had sold my information to Kassab and Montague.” But Pohl provides no facts to support any conclusion that an actual sale occurreod. Pohl does not state how he knows a sale occurred or provide any details of thel purported sale. Pohl fails to state where an alleged sale took place, what wias sold, who paid what for an alleged sale, how he was privy to this alleged sale or how he has personal knowledge of any kind related to this alleged sale. Moreover, Pohl fails to provide facts to support his conclusion that he was unaware of any purported sale. Pohl also states, “And, in fact, that sale occurred in November of 2016, less than two years before this suit was filed.” But again, Pohl fails to provide any detail relating to how he knows or has personal knowledge of a purported sale occurring on this date. Thus, Kassab objects to this statement as well because it iks conclusory. Kassab also objects to paragraph 10 because it is vagueC, ambiguous, not clear, positive or direct, or free from contradiction. Pohl states in paragraph 10 that, “Pohl, Precision, and other entities and individuals weire parties to a lawsuit in Federal court in Mississippi, . . .” He then states, “No other Defendants were parties to the Federal Court Case.” Pohl does not identify what “other entities and individuals were parties to the lawsuit.” Therefore, when he states, “No other Defendants were parties to the Federal Clourt Case”, the entire paragraph is not clear, positive, direct or free from conMtradiction, and therefore, it is also vague and ambiguous, and must be struck. TEX. R. CIV. P. 166a(c); McIntire v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003); Tirico Techs. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) (to establish facts, an interested witness’s testimony must be clear, positive, direct, credible, free from conotradiction and uncontroverted even though it could have been readily controverteld). Since the testimony does not meet these requirements, it will not support suimmary judgment. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Kassab also objects to Exhibits 1 and 2 attached to Pohl’s declaration and objects to paragraphs 12 and 13, which attempt to authenticate Exhibits 1 and 2 within the declaration. Pohl swears under oath that Exhibits 1 and 2 are “true and correct”, however, Pohl provides no basis for this statement. Pohl states that “Exhibit 1 is a true and correct copy of an agreement among and between Scott Favre, PA LLC, the Kassab Law Firm and Montakgue, Pittman and Varnado, P.A., dated November 10, 2016 executed by LCance Kassab and produced by Precision to Pohl after the court’s April 24, 2017 order in the Federal Court Case.” However, Pohl is not a party to the alleged aigreement. Additionally, Pohl does not state how he knows the document is what he purports it to be. Pohl does not state that he was present when the alleged agreement was executed, nor does he state that he saw the parties execute the alleged agreement. Moreover, Pohl does not provide any details relatling to his statement that this alleged agreement was “produced by PrecisiMon to Pohl.” Pohl does not state how it was allegedly produced, when it was produced, where it was produced or why it was produced. Pohl also fails to staite what order he is referring to. Additionally, Pohl states that “Exhibit 2 is a true and correct copy of an email, dated Decembeor 7, 2016 from Doug Montague to Lance Kassab, with copies to Tina Nicholson,l Scott Favre, and Andrea Mendez, and produced by Precision to Pohl after thei court’s April 24, 2017 order in the Federal Court Case.” However, Pohl is not a party to the alleged email. Furthermore, Pohl does not state how he knows the document is what he purports it to be. Pohl does not state that he was present when the alleged email was drafted, who drafted it or why it was drafted or sent, nor does he state that he saw the parties draft or send the alleged email. Moreover, Pohl does not provide any details relating to his statement that this alleged agreement was “produced by Precision to Pohl.” Pohl does not state how it was allegedly produced, when it was produced, where it was produced or why it was produced. Pohl also fails to state what order he is referring to. k An affidavit must show affirmatively that the witness is cCompetent. Tex. R. Civ. P. 166a(f). Competency does not refer to the sufficiency of the specific testimony, which is an issue of personal knowledge. Laidilaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 661 (Tex. 1995) (witness was found not competent to testify about property metes and bounds because he made only conclusory statements). Additionally, an affidavit must be based on the affiant’s personal knowledge and must state that the facts lin it are true and correct. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (TexM. 1994); see TEX. R. EVID. 602 (evidence must show how witness has personal knowledge); Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (affidavit did not ishow how witness could have personal knowledge of particular events); Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex. 1988 (affidavit did noto show how witness became familiar with facts about operation of radio station). lBecause Pohl’s declaration fails to show personal knowledge and competency reigarding the prove up Exhibits 1 and 2, they must be struck. Accordingly, Kassab requests that Paragraphs 5, 6, 7, 8, 9 and 10 of Pohl’s declaration be stuck. Additionally, Kassab requests that Exhibits 1 and 2 attached to Pohl’s affidavit be struck. With these paragraphs and exhibits struck, Pohl has failed to raise a genuine issue of material fact to defeat Kassab’s claims of 10 limitations, res judicata and attorney immunity, rendering summary judgment in favor of Kassab proper. REPLY A. Limitations e Pohl argues that his claims against Kassab accrued when Kasab allegedly purchased Pohl’s confidential information through a contratct dated November 10, 2016. Resp. at 5. However, Pohl testified under oath, and the evidence demonstrates that Pohl accused Kassab of stealing his informeation and knew of Kassab’s involvement in 2014 but did not immediately filue 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.” Mot. Eaxhibit 3, at 93. Pohl’s argument that “it does not matter” that he knew of Precision’s purported theft earlier is without merit because a cause of action accruees when (1) “the allegedly tortious act was committed and caused an injury;” or (2f) “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). This is true even if all resuliting damages have not yet occurred. Schlumberger Tech. Corp. v. Pasko, 544 oS.W.3d 830, 834 (Tex. 2018) Pohl testified under oath that he learned of the basis of his purported claims against Kassab during discovery in the Federal Court Case. Mot. Exhibit 1. Specifically, Pohl testified during the course of discovery in that case it was “revealed” that Precision – a defendant in this case – and the company’s former 11 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 belong to [him].” Mot. Exhibit 1, at 28. Pohl testified: “Those items include original client contingency fee contractsk between my clients and me …, documentation of contact and personal inCformation, claim information and supporting materials.” Id. Pohl testified that those files “were at one time maintained in approximately seventeen clear plaistic file containers” and that “Ladner admitted absconding with those 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] consent, to Scott Favre” – the current owner of Precision, who is also a defendant in this lcase. Id. Pohl complains in that affidavit that Nicholson “refused to return anMd converted to [her] own use” four computers that Pohl purchased for his office and which Precision used while soliciting clients for Pohl. Id. Pohl testifies thait those computers contained “marketing information and other trade secrets, [his] proprietary client forms” and other unidentified work product. Id. Pohl testoifies that the “theft and unlawful disclosure was made even more egregious” wlhen Favre refused to return the information and “appears [to have] eventuailly sold those items and the information therein to [Kassab].” Mot. Exhibit 1, at 29. In substance, Pohl testified under oath that Kassab and his “crew” broke into his office in “Gulfport, Mississippi” and stole his stuff in 2014. Notably, Pohl does not dispute any of this testimony in his Response. Rather, Pohl states that “Kassab bears the burden to and must ‘conclusively prove when’ 12 each of Pohl’s causes of action accrued and must also negate the discovery rule to be entitled to summary judgment on limitations. Resp. at 3. However, Kassab has conclusively proven when each of Pohl’s causes of action accrued—the testimony came straight from Pohl’s mouth when he testified under oath as ouktlined above and in more detail within the Motion for Summary JudgmentC. And, although Kassab did negate the discovery rule by Pohl’s own sworn testimony, Pohl never pled the discovery rule. Thus, the discovery rule does niot apply to the pending motion. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988) (party seeking to avail itself of the discovery rule must plead the rule). Moreover, the discovery rule only applies when the subject matter is inherently undiscoverable and objectively verifiable. Wagner & Brouln, Ltd. v. Horwood, 58 S.W. 3d 732, 734 (Tex. 2001). Pohl testified under oaMth that Kassab and his crew stole his stuff in 2014. There is nothing inherently undiscoverable about this. Pohl attempts to autheinticate and cite to an alleged email that somehow proves that Kassab obtained his documents at a later date beyond 2014. However, the proposition Pohl oattempts by way of the alleged email is not only contrary to Pohl’s sworn testilmony, but it also proves absolutely nothing relating to Kassab’s alleged unlawiful conduct. The alleged email not only contains hearsay, but it also does not provide any passage that states that Pohl’s documents are being obtained by Kassab on a particular date. In fact, Pohl’s name is nowhere to be found in the email. Nor was he a party to the email. Thus, the alleged email proves nothing even if it were admitted into the summary judgment record. 13 B. Res Judicata Pohl argues that Kassab has not established that he was in privity with the parties in the Federal Court Case and has not established that the claims against Kassab are the same that were made in the Federal Court Casek. Resp. at 8. However, Kassab conclusively did establish the element of priCvity and that the second action was based on the same claims as were or could have been raised in the first action. i Pohl has sued Favre and Precision in this litigation for the same conversion and theft of trade secrets he is suing Kassab for. Pohl also sued Precision in the Federal Court Case. And, of course, Precision was owned by Favre during the pendency and settlement of the Federal Clourt Case. Additionally, Pohl has alleged and judicially admitted that Favre, PMrecision and Kassab are co-conspirators to the conversion and trade secrets claims. Thus, Kassab is in privity with Precision and Favre relating to the claims miade in the Federal Court Case. Palaxar Grp., LLC v. Williams, No. 6:14-cv-758-0rl-28GJK, 2014 U.S. Dist. LEXIS 138533, at *43 (M.D. Fla. Sep. 30, 2014); oSeenyur v. Coolidge, No. 16-cv-3832 (WMW/BRT), 2018 U.S. Dist. LEXIS 5895l, at *6 (D. Minn. Jan. 12, 2018) (“Members of a conspiracy are deemed underi 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). See also SED Holdings, L.L.C. v. TM Prop. Sols., L.L.C. (In re 3 Star Props., L.L.C.), 2021 U.S. App. LEXIS 22430 (5th Cir. 2021). 14 Additionally, Kassab conclusively proved that the claims made in this case. In the Federal Court Case, not only did Pohl sue Precision for alleged theft of his property (Mot. Exhibit 2, par. 6), but Pohl recognized during discovery that Precision and Walker had allegedly “undertook to convert, misappkropriate, for themselves and/or market to third parties” like Kassab “claimaCnt files and other information and materials” that allegedly belonged to Pohl, including “original client contingency fee contracts between [Pohl’s] cilients and [Pohl] …, documentation of contact and personal information, claim information and supporting materials.” Mot. Exhibit 1, par 28. Pohl identifies that material as “marketing information and other trade secrets,” and claims that it was stolen by Precision and its current or former ownelrs, including Favre, a defendant in this case, and Favre’s counsel, Nicholson, Malso a defendant in this case. Id. Pohl testifies that the “theft and unlawful disclosure was made even more egregious” when Favre “appears [to have] eventualliy sold those items and the information therein to [Kassab].” Mot. Exhibit 1, par. 29. In this case, Poohl alleges that, while working for him, Precision “gained access to Pohl’s colnfidential and proprietary information and property, including trade secret miaterials, that included the identities of Pohl’s clients/prospective clients, as well as their detailed contact information.” Pohl’s Pet., p. 20. Pohl alleges that Favre and Precision “stole physical copies of certain of the information, stole Pohl’s computers, and misappropriated electronic data to which they had access through Precision’s work for Pohl.” Pohl’s Pet., p. 21. Pohl can not run away 15 from his own sworn testimony. Therefore, res judicata has been conclusively proved. C. Attorney Immunity Pohl argues that the attorney immunity doctrine does not applky to Kassab’s conduct, and thus, summary judgment cannot be granted on atCtorney immunity. Pohl cites a couple of cases that stand for general principals which do not apply here, yet fails to distinguish any of the multitude of caises that Kassab cites to support his argument regarding attorney immunity. However, the law in Texas is clear and unambiguous, “[A]n attorney is immune from liability to nonclients for conduct within the scope of his representation of his clients.” Youngkin v.l Hines, 546 S.W.3d 675, 681 (Tex. 2018). The inquiry “focuses on the kind Mof conduct at issue rather than the alleged wrongfulness of said conduct.” Id. “That is, a lawyer is no more susceptible to liability for a given action meriely because it is alleged to be fraudulent or otherwise wrongful.” Id. “Merely labeling an attorney’s conduct ‘fraudulent’ does not and should not remove it ofrom the scope of client representation or render it ‘foreign to the duties of an alttorney.’” Id. at 483. Even “criminal conduct is not categorically excepted fromi the protections of attorney civil immunity when the conduct alleged is connected with representing a client in litigation.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015) (“an attorney’s conduct may be wrongful but still fall within the scope of client representation”). 16 The entire basis for Pohl’s lawsuit against Kassab is that Kassab allegedly purchased the purportedly stolen information and “solicited [Pohl’s] clients/prospective clients to act as plaintiffs … to bring cases against Pohl for alleged barratry and other claims.” Pohl’s Pet., par. 29. The esseknce of Pohl’s claims against Kassab are “that Kassab bought Pohl’s client list fCrom [Precision] so that Kassab could send advertisements to Pohl’s former clients and solicit them to become Kassab’s clients in barratry suits against Pohl.” Kaissab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (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 Capital Mgmt., LP v. Looper Reed & McGlraw, P.C., No. 05-15-00055-CV, 2016 Tex. App. LEXIS 442 (Tex. App.—Dallas JMan. 14, 2016, pet. denied) (mem. op.) (“That [a party] characterized the firm’s conduct as fraudulent or otherwise wrongful was immaterial to [the court’s] evailuation of the immunity defense.”). The fact that Kassab is alleged to have committed the misconduct prior to any litigation is immaoterial because “attorney immunity applies to claims based on conduct outside thle litigation context[.]” See Haynes & Boone, LLP v. NFTD, LLC, No. 20-0066, i2021 Tex. LEXIS 423, at *32 (May 21, 2021); 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 Zientz & Mann, P.C., No. 05-16-00394-CV, 17 2017 Tex. App. LEXIS 2092, at *10 (Tex. App.—Dallas Mar. 10, 2017, no pet.) (mem. op.) (recognizing that Texas courts “have noted that attorney immunity applies outside of the litigation context” and citing opinions). In this very case, the court of appeals opined that “the allegedk purchase of Pohl[’s] client list for those clients’ contact information, followedC by the mailing of attorney advertisements to those individuals about specific types of claims they might be able to pursue against a specifically identifiedi attorney, qualifies as statements or conduct that arose out of a commercial transaction involving the type of legal services Kassab provides.” Kassab, 612 S.W.3d at 578 (emphasis added).1 That court opined that “the intended audience of [Kassab’s alleged] statement or conduct were indilviduals with potential legal claims who Kassab sought to represent in barrMatry suits against Pohl. These were Kassab’s potential clients to whom he offered the kind of legal services he provides.” Id. at 579. i The acquisition of clients and filing of lawsuits are actions “taken and communications madeo to facilitate the rendition of legal services” and are protected by the attorney imlmunity doctrine. Youngkin, 546 S.W.3d at 682. Because Pohl’s claims againsti Kassab are “based in part” on that conduct (Pohl’s Pet., par. 29), 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.— 1 This is the law of the case. No matter how Pohl wishes to characterize the facts, he cannot escape the court of appeals opinion and renderings in this case. 18 Houston [1st Dist.] Nov. 20, 2014, no pet.) (mem. op.) (attorney not liable to third party for filing confidential medical records because the filing of 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.] 1992, writ denied) (“an kattorney does not have a right of recovery, under any cause of action, againsCt another attorney arising from conduct the second attorney engaged in as part of the discharge of his duties in representing a party.”) (emphasis added). i III CONCLUSION & PRAYE e R For the reasons set forth herein and inu the initial Motion for Summary Judgment, Defendants/Counter-Plaintiffs Lance Christopher Kassab and The Kassab Law Firm respectfully requesta the Court to sustain the objections made herein and grant this Motion for Summary Judgment, ordering that Plaintiffs take nothing in their claims againste Lance Christopher Kassab and The Kassab Law Firm. f Respectfully submitted, THE KASSAB LAW FIRM i / s / Lance Christopher Kassab i LANCE CHRISTOPHER KASSAB o Texas State Bar No. 00794070 lance@kassab.law DAVID ERIC KASSAB Texas State Bar No. 24071351 david@kassab.law 1214 Elgin Street Houston, Texas 77004 Telephone: 713.522.7400 Facsimile: 713.522.7410 19 ATTORNEYS FOR LANCE CHRISTOPHER KASSAB AND THE KASSAB LAW FIRM CERTIFICATE OF SERVICE C I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to all parties pursuant to thte Texas Rules of Civil Procedure on this the 1st day of August, 2021. i / s / Lance Christopher Kassab Lance eChristopher Kassab 20

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