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35 2022-09-12 RSP Pohl Pohl’s response to Kassab no-evid MSJ Plaintiffs' Response in Opposition to No-Evidence Motions for Summary Judgment Filed by Kassab and Nicholson Defendants — Pohl presents extensive evidence supporting all three claims (conspiracy, conversion, TUTSA) and rebuts defendants' challenges to ownership, protection, misappropriation, and damages elements Response to no-evidence MSJs filed by Kassab and Nicholson defendants on August 29, 2022, in the third phase of litigation. Filed September 12, 2022 at 11:26 PM. Pohl incorporates by reference the discussion and evidence from his companion Response in Opposition to the Traditional Motions filed the same day. Filed by Jean C. Frizzell of Reynolds Frizzell LLP. Addressed to the 189th Judicial District Court of Harris County. MSJ-2 N/A Phase 3 2022-09-12_RSP_Pohl-Response-to-Kassab-No-Evid-MSJ_FILED.pdf Deny the no-evidence motions for summary judgment filed by Kassab and Nicholson and allow all issues to be tried by a jury 9/12/2022 11:26 PM Marilyn Burgess - District Clerk Harris County Envelope No. 68182775 By: Deandra Mosley Filed: 9/12/2022 11:26 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 THE NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT FILED BY THE KASSAB DEFENDANTSl AND THE NICHOLSON DEFENDANTS Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond in opposition to the No Evidence Motions for Summary Judgment filed by Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively “Kassab”) and Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm (collectively, “Nicholson”). Given the overlapping issues in the multiple summary judgment motions before the Court, Pohl also incorpcorates by reference the discussion and evidence included in his Response in Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and the Nicholson Defendants that is filed on the same day as this Response. I. FACTUAL BACKGROUND Pohl represented various persons and entities in claims arising from motor vehicle accidents and the British Petroleum Deepwater Horizon oil spill.1 Pohl engaged Precision Marketing Group, LLC (“Precision”) to provide public relations services, to gathker and preserve evidence, and to screen and liaise with Pohl’s clients and prospective clients.2 l While working for Pohl, Precision necessarily gained access to Pohl’s confidential and propcrietary information and property, including trade secret materials.3 Scott Favre, individuaslly and/or through Scott M. Favre PA, LLC (collectively “Favre”) is the managing member osf Precision.4 Favre took physical copies of Pohl’s information, and possession of Pohl’s stolen computers and misappropriated electronic data.5 In November 2016, Defendants Douglas Montague III, his law firm Montague Pittman & Varnado, P.A. (collectively, “Montague”), Naicholson and Kassab arranged to purchase Pohl’s stolen confidential information and property from Favre for $250,000, plus bonuses,6 taking possession of at least some of the infoermation and property in December 2016.7 Kassab, Nicholson and Montague highly valued Pofhl’s stolen and misappropriated confidential information and property because, after purchyasing it, they intended to and did use it to contact and solicit Pohl’s clients and prospectivCe clients.8 Defendants’ actions constitute conversion, violations of the uniform trade secrets act (“TUTSA”), and conspiracy. 1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”), ¶ 2, attached as Exhibit A. 2 Id. ¶ 9. 3 Id. 4 Id. ¶ 24. 5 Id. ¶¶ 24–25. 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, attached as Exhibit Favre’s participation in the conspiracy to misappropriate and steal Pohl’s confidential information and client communications violated the terms of a settlement agreement. That confidential settlement agreement, executed in late April or early May 2017 (the “Settlement Agreement”), resolved a lawsuit in federal court in Mississippi, styled No. 1:14-ckv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., In The United States Distrlict Court For The Southern District of Mississippi, Southern Division (the “Federal Court Ccase”).9 Defendants’ efforts to monetize Pohl’s trade secrets through sassertions of barratry claims has been nearly a complete failure. Defendants brought barratsry claims on behalf of more than 400 plaintiffs,10 and the claims of all but four plaintiffs have been finally resolved in Pohl’s favor.11 As to those four remaining plaintiffs, the viability of their claims remains in dispute.12 Kassab asserted multiple grievances with the Texas State Bar,13 all of which have been rejected, many with the finding that “the Board has determinaed that the conduct you described in the grievance does not violate the Texas Disciplinary Rules of Professional Conduct.”14 Notwithstanding this lack of success, Defendants continuee to make allegations regarding Pohl and seek to relitigate irrelevant questions regarding Pohfl’s alleged conduct. The Court should reject Defendants’ efforts to justify their theft of Pohl’sy trade secrets by reasserting their failed claims of barratry. 9 Pohl Declaration ¶ 26i, Ex. A. 10 See Petitions in four cases, attached as Exhs. 28-30; 32 to the Nicholson’s Traditional Motion for Summary Judgment, attachefd as Exhibit C. 11 See Cause No. 2017–38294, Dezzie Brumfield d/b/a LAD Enterprises, et al v. Michael A. Pohl, et al, in the 189th Judicial District Court of Harris County, Texas; No. 459,062-401, Alice Marie Gandy, et al v. Michael A. Pohl, et al., in the Probate Court No. 2 of Harris County, Texas; Cause No. 2017–37567, Mae Berry et al v. Michael A. Pohl, et al, in the 113th Judicial District Court of Harris County, Texas; (showing the Brumfield, Gandy, and Berry cases are final); see also Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *1 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet. h.) (showing that claims of four plaintiffs remain live). Pohl requests that the Court take judicial notice of these publicly available facts. 12 Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *15 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet. h.) (noting that “As to the barratry claim, we have concluded only that a fact issue continues to exist. We take no position on the validity of the barratry claim against any of these parties.”). 13 See State Bar and Board of Disciplinary Appeals letters dismissing claims, attached as Exhibit D. 14 Id. At core, Defendants’ challenges to the evidentiary basis for Pohl’s claims turn on two fallacies that they have argued from the start. First, Defendants insist that Pohl did not own the materials—including his own client agreements and client files—that they misappropriated. This is clearly wrong and has been rejected by numerous courts in different jurisdictkions. See, e.g., Fred Siegel Co., L.P.A. v. Arter & Hadden, 1999-Ohio-260, 85 Ohio St. 3d 17l1, 182, 707 N.E.2d 853, 862 (discussing how law firm’s client list could constitute a trade seccret); Reeves v. Hanlon, 95 P.3d 513, 522 (Cal. 2004) (dealing with client data that constituteds trade secrets). Even giving the argument that Pohl had no ownership interest in his client lsists, client agreements, and client files the benefit of the doubt, at most the argument raises a disputed fact issue that cannot be determined on a motion for summary judgment. Second, Defendants erroneously believe that Pohl’s claims provide them an opportunity to reassert barratry claims that have failed in every other forum. Those claims have no place herea and should be rejected. II. ARGUMENT Pohl has overwhelming prooef of each of the elements of his claims—far more than enough to respond to Defendants’ no-evidfence challenges, as fully set forth below. A. Pohl has ample evidyence of each element of conspiracy. Pohl can readCily prove that Defendants, in combination with each other, sought to accomplish the goals of conversion of Pohl’s property and misappropriation of Pohl’s trade secrets, that they reachfefd a meeting of the minds, engaged in one or more unlawful overt acts, and that he suffered dUamages as a result. 1. Pohl can prove that Defendants (a combination of two or more persons) acted in combination to accomplish their goals of conversion and misappropriation, reaching a meeting of the minds. The evidentiary record of Defendants’ conspiracy is replete with emails establishing their agreement to combine to acquire Pohl’s property and to use it for their own gaink in violation of Pohl’s rights. Starting no later than September 2016, Kassab, Nicholson and lMontague engaged in discussions with Scott Favre relating to a possible deal to bring barratcry claims against Pohl.15 The discussions between Montague and Kassab resulted in what Kasssab agreed could probably be called a joint venture between the two of them.16 The purpose osf Montague’s joint venture was to bring barratry claims against Pohl, a Texas lawyer, in Texas courts under the Texas barratry statute.17 Kassab, Nicholson, and Montague also entered into a co-counsel agreement, the purpose of which was to bring barratry claims in Texasa against Pohl.18 Kassab testified that this co-counsel agreement was made in writing, but it has not yet been produced.19 However, Kassab has produced contracts that he signed with Pohl’s feormer clients that show the co-counsel relationship between Nicholson, Kassab, and Montagufe.20 Montague admits thyat he actually sent the information and materials that form the basis of Pohl’s claims against thCem to Kassab in Texas.21 Montague states in his affidavit that he ‘informed Kassab about this matter and sent him the PMG [Precision] documents owned by Favre that I 15 See Kassab Deposition at 27:4-13; 28:22-25, attached as Exhibit E; Montague Deposition at 72:4-15, attached as Exhibit F; September 9, 2016 email from Montague, attached as Exhibit G (originally Ex. 2 to the Kassab Deposition); see also Montague Deposition at 71:18-72:15 (stating that the email in Kassab Deposition Exhibit 2 “appears to be something that I sent,” and not disputing its authenticity), Exhibit F. 16 See Kassab Deposition at 36:18-22, Ex. E. 17 See Montague Affidavit ¶ 7, Ex. H; Kassab Deposition at 53:13-15, Ex. E. 18 See Ex. F, Montague Deposition at 46:6-16; 49:1-15; Ex. I, Nicholson Deposition at 111:11-112:22. 19 See Ex. E, Kassab Deposition at 86:14-87:10. 20 See Ex. L. 21 See Montague Affidavit ¶ 7, Ex. H; Montague Deposition at 50:14-24, 53:19-54:6, Ex. F. received.”22 Montague himself defines the “PMG [Precision] documents” in this context as including “attorney-client contracts, communications, and lists of clients.”23 Nicholson herself had an active role in attempting to ensure that the team received all of the client contracts.24 Montague took the lead in obtaining Pohl’s documents, including engagemkent agreements between Pohl and his clients, which Montague helped facilitate the transfelr of to Kassab in Texas:25 c It is clear that Kassab and Montafgue were not satisfied with receiving Pohl’s engagement agreements. They wanted to obtainc the names and the contact information for Pohl’s clients or potential clients so that they coOuld solicit them to bring barratry claims against Mr. Pohl:26 22 Montague Affidavit ¶ 7, Ex. H (emphasis added). 23 Id. ¶ 6. 24 See Ex. M, Email dated November 22, 2016 from Nicholson to Kassab. 25 See Exhibit N, Dec. 7, 2016 email from Montague (originally used as Exhibit 11 to the Nicholson Deposition); see also Exhibit O, Nov. 14, 2016 email from Montague (originally used as Exhibit 9 to the Nicholson Deposition) (showing Montague instructed Favre to send documents to Kassab, a Texas lawyer); Exhibit F, Montague Deposition at 89:1-10 (stating he recognized Nicholson Exhibit 9 and saying it was “what it appears to be, a request for [wiring] instructions from Scott Favre.”); Exhibit E, Kassab Deposition at 138:5-9 (acknowledging that Nicholson Exhibit 11 appears to be an email from Montague to Kassab and other defendants and not disputing its authenticity). 26 See Exhibit P, Dec. 8, 2016 email from Montague (originally used as Exhibit 12 to the Nicholson Deposition); see also Exhibit I, Nicholson Deposition at 162:5-164:15 (acknowledging that the email chain shown in Nicholson Exhibit 12 “was CC’ed to me” and not disputing its authenticity). Kassab, Nicholson, and Montague were all active participants itn obtaining and processing additional information to solicit Pohl’s clients or potential clients to bring additional claims in Texas courts:27 e When Montague realizeod that additional information was needed, Montague reached out to Nicholson to obtain that additional converted and stolen information.28 Kassab was at all times critical to the conspiracy, as he and his firm were the experts on claims of barratry in Texas. 27 See Exhibit Q, Dec. 8, 2016 email from Montague (originally used as Exhibit 13 to the Nicholson Deposition); see also Exhibit F, Montague Deposition at 103:5-14 (acknowledging the email chain shown in Nicholson Exhibit 13 showed an email that appeared to be sent by Montague and not disputing its authenticity). 28 See Exhibit R, Feb. 15, 2017 email from Montague (originally used as Exhibit 14 to the Nicholson Deposition); see also Exhibit F, Montague Deposition at 116:1-8 (acknowledging the email chain shown in Nicholson Exhibit 14 and not disputing its authenticity). Montague recognized Kassab’s experience and knowledge of civil barratry claims,29 and, as Kassab points out on his website, a civil claim for barratry is “unique to Texas.”30 2. Pohl can prove that Defendants engaged in one or more overt unlawful acts in furtherance of their conspiracy. Defendants engaged in overt acts constituting both conversion and miseappropriation, and Pohl’s evidence of each of those acts is set forth in the sections addressing them below. 3. Pohl can prove that he suffered damages as a result. r Pohl has testified, as has his expert witnesses, about the eDxtensive damages arising from the underlying torts—Defendants’ theft of trade secrets and csonversion.31 Those damages arose directly from the actions of Defendants in converting anrd misappropriating Pohl’s trade secrets and then attempting to monetize those secrets by contacting Pohl’s clients and former clients and fomenting litigation against him. Pohl was alsol damaged by the loss of his property, and he is entitled to recover the market value ofM the converted and misappropriated property and information. There are multiple sources of evidence regarding the value of some or all of the converted or misappropriated infor c mation.32 As these damages are derivative of the damages suffered for the underlying torts, the evidence cited here supports damages in relation to those torts, and Pohl incorporates his discussion and evidence in relation to those claims here. See infra Parts II(B)(4) & II(C)(3). 29 See Exhibit G, Ex. 2 to the Kassab Deposition; Exhibit H, Montague Affidavit ¶ 7; Exhibit F, Montague Deposition at 44:14-19. 30 See Barratry and Solicitation, Kassab Law Firm, https://texaslegalmalpractice.com/legal-malpractice/barratry-and- solicitation/ (last visited Aug 7, 2022); see also Exhibit F, Montague Deposition at 49:9-18 (confirming that Montague is not aware of any state, other than Texas, in which a civil claim for barratry exists). 31 See Report of John Zavitsanos on Fees, attached as Exhibit S; Pohl Declaration ¶¶ 27-28, Ex. A. 32 See Deposition of Scott Walker, at 328:10-16 (testifying about how he had heard Pohl’s client list was worth $6 million), attached as Exhibit V; Deposition of Kirk Ladner, at 314:10–315:18, 343:7-344:17 (recalling that he was told that the boxes containing Pohl’s information were worth $6 million), attached as Exhibit W; Pohl Declaration ¶ 28, Ex. A; see also 2016.11.10 Agreement Between Kassab, Montague, and Favre, attached as Exhibit EE; Montague Deposition, at 79:11-82:21, Exhibit F (indicating that Kassab and Montague paid $250,000, plus agreed to pay additional incentives, for access to Pohl’s information). B. Pohl has ample evidence of each element of conversion Conversion is the “unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner's rights.” Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971). The elekments are: “(1) the plaintiff owned, had legal possession of, or was entitled to possession of thle property; (2) the defendant assumed and exercised dominion and control over the propcerty in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the splaintiff's rights; and (3) the defendant refused the plaintiff’s demand for return of the propserty.” Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 344 (Tex.App.—San Antonio 2000, pet. denied); see also Hunt v. Baldwin, 68 S.W.3d 117, 131 (Tex. App.—Houston [14th Dist.] 2001, no pet.). 1. Pohl’s evidence that he owned, had legal possession of, or was entitled to possession of the property is more thaln sufficient. Pohl testified that he owns his compMuters, property, attorney-client contracts, forms created for his practice, data, photographs, client files, attorney work product and financial information that was stolen from his office.33 It c is not disputed that the materials at issue included Pohl’s client lists, client files, and thousands of contracts between Pohl and his clients.34 In addition to Pohl’s own testimony, the persons to whom Defendants now trace their purported ownership have testified that the client contracts and/or client lists belong to Pohl.35 In fact, Pohl’s client lists were valuable to Defencdants because they belonged to Pohl, and Defendants believed they had value as a means for convincing Pohl’s clients and former clients to bring barratry claims against Pohl.36 33 See Deposition of Michael A. Pohl, at 5:22-7:23, attached as Exhibit T. 34 See Deposition of Scott M. Favre, at 119:2-13, Exhibit U; Deposition of Lance Kassab, at 59:5-60:15, Exhibit E; Affidavit of Douglas Montague III ¶¶ 6, 7, Exhibit H. 35 See Deposition of Scott Walker, at 283:17-21, 316:5-319:14, 327:14-329:23, attached as Exhibit V; Deposition of Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17, 350:1–351:21, 356:23–358:10, attached as Exhibit W; Deposition of Steve Seymour, at 193:13-195:9, attached as Exhibit X. 36 See, e.g., Affidavit of Douglas Montague III ¶¶ 6-8, Ex. H. The argument that Pohl did not own his own client list ignores completely the undisputed fact that the list was a list of Pohl’s clients. Defendants’ insistence that Pohl did not own these materials is simply an argument; their factual challenges to Pohl’s ownership are irrelevant and should not be considered in disposing of the no-evidence motions for summary kjudgment. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003) (no-evidencel motion requires a court to disregard all contrary evidence and inferences).37 But even cif it were relevant, the immense amount of testimony declaring that Pohl does own his clienst list and contracts provides far more than a scintilla of evidence in support of Pohl’s ownersship.38 2. Pohl’s evidence that Defendants assumed and exercised dominion and control over the property in an unlawful and unauthorizedr manner, to the exclusion of and inconsistent with Pohl’s rights is more than sufficient. There is no dispute that Defendants obtained Pohl’s attorney-client contracts, communications and client lists, nor is there aany dispute that they did so without obtaining Pohl’s permission.39 Defendants expected to and did use that material and information to file suits and grievances against Pohl.40 There is,e in fact, no evidence that Defendant’s actions were lawful, authorized or consistent with Pohfl’s rights or frankly the right of Pohl’s clients. 3. Pohl’s evidence tyhat Defendants refused his demand for return of the property, if necessary, is more than sufficient. As a legal matter, Pohl contends that there was no requirement for Pohl to lodge a formal demand for the creturn of his property, as Defendants wrongfully obtained possession of the 37 Furthermore, defendants’ argument ignores that a claim for conversion requires that a plaintiff have a right to possession, not necessarily ownership, of the alleged converted property. See French v. Moore, 169 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Even if defendants were correct that Pohl did not have legal title to some of the converted information, the evidence Pohl cites to demonstrate his ownership would at the very least raise a fact question about his superior right of possession against all third parties, such as against defendants. 38 See supra notes 33 & 35. 39 See Deposition of Tina Nicholson, at 70:7-15, attached as Exhibit I; Kassab Deposition, at 60:25-62:6, Exhibit E; Pohl Declaration filed in response to TCPA Motion ¶ 8, Exhibit Y. 40 Kassab Deposition, at 70:4-20, Exhibit E. 10 converted property and their actions were a clear repudiation of Pohl’s rights to his property.41 As a factual matter, Pohl and his counsel did repeatedly demand the return of Pohl’s property.42 To the extent that there is any doubt that defendants wrongfully obtained possession of the materials, this issue is a fact question.43 However, given that the individuals who tookk the materials acknowledge that they believed it belonged to Pohl44 and did not have permislsion to take it, that should remove any doubt. Additionally, there is enough evidence that Decfendants’ actions were a repudiation of Pohl’s rights, as they used his converted materials to ssolicit clients to sue him and disregarded his instructions to Precision to maintain the confidesntiality of the materials.45 Even if demand and refusal were necessary elements of Pohl’s claim, there is ample evidence that Pohl sought the return of his files and other property from Precision, Nicholson, and Kassab as well as from other defendants. Pohl’s counsel from another lawsuit made multiple demands to Nicholson (then acting as the lawyaer for both Favre and Precision) for the return of his property.46 Both Nicholson and Kassab testified in their depositions that they had entered a joint venture to pursue barratry claims agaienst Pohl, and it is not disputed that, together with Montague, they acted together.47 It is likewfise not disputed that Pohl struggled to obtain the return of his 41 See Guillory v. Dietrich, 598 S.W.3d 284, 294 (Tex. App.—Dallas 2020, pet. denied) (“demand and refusal are not required if the defendanat wlrongfully acquired possession”); French v. Moore, 169 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2004, no peit.) (“A plaintiff is required to demand return of the property if the defendant legally obtained possession.”); El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 625 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)f (stating that a demand for return of the property is not required if the “possessor’s acts manifest a clear repudiation of the plaintiff’s rights”). 42 See Collection of Letters from Billy Shepherd, attached as Exhibit Z; see also Exhibit 12 to the Nicholson Motion. 43 See supra notes 39-40. 44 See Deposition of Scott Walker, at 283:17-21, 316:5-319:14, 327:14-329:23, attached as Exhibit V; Deposition of Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17, 350:1–351:21, 356:23–358:10, attached as Exhibit W; Deposition of Steve Seymour, at 193:13-195:9, attached as Exhibit X. 45 See Ex. B, Declaration of Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018; Ex. E, Kassab Deposition 130:3-21 (admitting that Kassab attached Pohl’s fee agreements with Pohl’s clients that he obtained from Precision to solicitation letters that Kassab sent to Pohl’s clients). 46 See Collection of Letters from Billy Shepherd, attached as Exhibit Z. 47 Nicholson Deposition, at 109:5-15, Ex, I; Kassab Deposition, at 37:2-7, Exhibit E; Exhibit AA (originally used as Exhibit 8 to Kassab Deposition). 11 property, including by seeking sanctions from a federal court for failure to return everything to him.48 Nicholson admits in her traditional motion for summary judgment that: “As part of the settlement, the Parties entered into a confidential Settlement Agreement, and in the agreement Pohl requested the return of the same trade secrets alleged here.” See Nicholson’s Amenkded Traditional Motion for Summary Judgment, at 21, filed August 29, 2022. The evidence of dlemand and refusal to return Pohl’s property is clear. c 4. Pohl’s evidence of damages resulting from the conversiosn of his property is more than sufficient. D Nicholson challenges Pohl’s evidence of damages asrising from the conversion of his property. In so doing, she ignores established Texas law trhat provides: An owner is competent to testify regarding the value of converted property and, in the absence of controverting evidence, such testimony will sustain a verdict. Wiese v. Pro Am Services, Inc., 317 S.W.3d 857, 862 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing Burns v. Rochon, 190 S.W.3d 263, 270–71 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also Burlington N. R.R. ve. Gen. Projection Sys., No. 05–97–00425–CV, 2000 WL 1100874, at *8 (Tex. App.—Dalflas Aug. 8, 2000, pet. denied) (op. on reh’g) (not designated for publication) (concluding tesytimony by plaintiff’s CFO concerning converted property’s rental value was legally and Cfactually sufficient to support an award for loss of use damages). Pohl is entirely competent ato testify regarding the value of the converted property.49 In additifon, there are multiple additional sources of evidence of the value of the converted materialsU, including the amount Favre paid to acquire Precision Marketing and files in its possession,50 Favre’s affidavit testimony regarding the value of the materials,51 and Defendants’ 48 See Transcript of hearing on October 25, 2017, attached as Exhibit BB; Pohl Declaration ¶ 26, Ex. A. 49 Pohl Declaration ¶ 27, Ex. A. 50 The amount was $1.5 million; see Exhibit CC; see also Exhibit 10 to the Nicholson Motion. 51 See Favre Affidavit, Ex. DD. 12 payment of $250,000 plus bonuses for access to the materials.52 Finally, there is evidence that Pohl suffered actual damages in the form of attorneys’ fees and expenses that he incurred defending litigation that arose due to Defendants’ conversion of his property.53 C. Pohl has ample evidence of each element of TUTSA. k Pohl has evidence to support each of the elements of his TUTSA claiml, as he can prove: (1) that he owned trade secrets; (2) that Defendants knowingly acquired thcem by improper means, and (3) that the misappropriation caused Pohl damages. See TEX. sCIV. PRAC. & REM. CODE § 134A.002. Texas law provides that a trade secret s  may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an oprportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 463 (Tex. App.—Austin 2004, pet. denied).  Mr. Pohl has sworn that he eowns the materials and that the materials at issue have independent economic value fromf not being generally known to or ascertainable through proper means by another person wyho can obtain economic value from them.54 He has sworn that he protected the trade secrCet information by strictly limiting access and maintaining them under lock and key and by ensauring that those who had access to the information understood its confidential nature.55 This fwas confirmed by the Precision witnesses.56 He has sworn that he has suffered 52 See 2016.11.10 Agreement Between Kassab, Montague, and Favre, attached as Exhibit EE; Montague Deposition, at 79:11-82:21, Ex. F. 53 Pohl Declaration ¶ 28, Ex. A. 54 Pohl Declaration ¶ 27, Ex. A. 55 Id. ¶¶ 14-15. 56 See, e.g., Deposition of Michael A. Pohl, attached as Exhibit T, at 5:22-7:23; Deposition of Scott M. Favre at 119:2- 13, Exhibit U; Deposition of Lance Kassab at 59:5-60:15, Exhibit E; Deposition of Scott Walker, at 283:17-21, 316:5- 319:14, 327:14-329:23, Exhibit V; Deposition of Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17, 350:1–351:21, 356:23–358:10, Exhibit W; Deposition of Steve Seymour, at 193:13-195:9, Exhibit X. 13 injury as a result of Defendants’ misappropriation of those trade secrets.57 This evidence is sufficient to overcome the challenges of the no-evidence motions. As set forth in greater detail below, Pohl has substantial evidence of each element of his claims under TUTSA. 1. Pohl’s evidence that he owned the trade secrets is sufficient. k TUTSA provides a statutory definition of the term “owner.” l “Owner” means, with respect to a trade secret, the person or enticty in whom or in which rightful, legal, or equitable title to, or the right to enforce rigrhts in, the trade secret is reposed. s TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a). Once agasin, Defendants challenge Pohl’s evidence demonstrating his ownership of the materials, claiming both that he did not own it and that his acquisition of the trade secrets was wrongful. Pohl’s evidence of ownership, as fully set forth above is substantial;58 it is Defendants’ position that Pohl did not own the materials that is unsupported by any evidence. Defendants’ caontention that Pohl has no legal or equitable title to his attorney-client agreements, his confidential client lists, and his attorney work product because he obtained those materials by impropeer means is just another reiteration of their failed arguments regarding barratry. Defendants’ cfontention that Pohl obtained the client lists through illegal action has been fought and lost, andy their efforts to reurge every failed argument should be rejected. 2. Pohl’s evideCnce that he protected the trade secrets is sufficient. Mr. Pohl has sworn that he strictly limited access to the trade secrets, and he ensured that those who had fafccess to that information fully understood as part of their professional obligations the confiUdential character of that information. Defendants apparently believe that because they 57 Pohl Declaration ¶ 28, Ex. A. 58 See, e.g., Deposition of Michael A. Pohl, attached as Exhibit T, at 5:22-7:23; Deposition of Scott M. Favre at 119:2- 13, Exhibit U; Deposition of Lance Kassab at 59:5-60:15, Exhibit E; Deposition of Scott Walker, at 283:17-21, 316:5- 319:14, 327:14-329:23, Exhibit V; Deposition of Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17, 350:1–351:21, 356:23–358:10, Exhibit W; Deposition of Steve Seymour, at 193:13-195:9, Exhibit X. 14 were able to unlawfully obtain the information, Pohl cannot demonstrate that he protected that information. If that argument succeeded, then in every claim of misappropriation, the misappropriation itself would prove a failure to protect the information. Defendants suggest that Pohl failed to protect the information at issue becaukse Pohl did not include a specific confidentiality provision in his contract with Precision. Bult whether Pohl did or did not take one of many potential steps to protect trade secrets does ncot support a no-evidence motion for summary judgment. Pohl has more than a scintilla osf evidence of the statutory requirement—that he take “reasonable measures under tshe circumstances” to preserve confidentiality. Pohl testified that “numerous times throughout the relationship,” he emphasized to Precision and its employees the importance of confidentiality.59 The testimony of individuals associated with Precision shows that not only were they aware of the confidential nature of the information, but they took reasonable steps ato protect the confidentiality of that information.60 These steps include (and are corroborated by Precision representatives): • Pohl informed Preciseion and all of the staff of the confidential and privileged nature of the inforfmation and instructed them to treat them accordingly.61 • Pohl maintai y ned his office at the top of Hancock Bank – “the most secure location on the cCoast.”62 • The building had 24 hour/round the clock security.63 59 Deposition of Michael Pohl at 23:5-21, Exhibit T. 60 Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7, Exhibit V; Deposition of Kirk Ladner, at 355:18– 358:10, 372:7–374:24, 377:4–23, 501:3–502:18, Exhibit W; Deposition of Steve Seymour, at 96:16-24, 223:1-20, Exhibit X. 61 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit 62 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit 63 See Deposition of Scott Walker, at 283:17-284:22, Exhibit W. 15 • The elevators were coded such that one could only get to one’s own floors.64 • There were security cameras at every floor.65 • The documents and computers were kept under “lock and seal.”66 • The engagement agreements were clearly labeled to identify the k m as contracts between lawyers and clients.67 C l Defendants’ focus on the absence of a written confidentiality provision is a distraction from the evidence (which defeats a no evidence summary judgment) of Pohl’s efforts to protect confidentiality. s 2. Pohl’s evidence that Defendants knowingly mgisappropriated the trade secrets is sufficient. r The statutory definition of “misappropriation” includes “acquisition” of a trade secret by improper means and “use” of a trade secret by a iperson if the person knows or has reason to know that the person’s knowledge of the trade secret was derived from or through a person who used improper means to acquire the trade sec ret. TEX. CIV. PRAC. & REM. CODE § 134A.002(3). Kassab and Nicholson misappropriated Poihl’s trade secrets by participating in a scheme to acquire stolen trade secrets and they then “used” Pohl’s trade secrets by contacting Pohl’s clients to solicit their participation in barratry souits. Through theirl training and experience as lawyers, Kassab and Nicholson knew or should have known that it was improper to obtain an attorneys’ client contracts and list from a third party without thant lawyer’s or the client’s authorization.68 Furthermore, the agreement that Kassab (Nicholson’s co-counsel) signed to obtain Pohl’s trade secrets contains an indemnity provision for 64 See Deposition of Scott Walker, at 322:9-23, Exhibit V. 65 Id. 66 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V. 67 Pohl Declaration ¶ 15, Ex. A. 68 See Pohl Deposition at 115:5-116:1, Exhibit T. 16 Favre in which Kassab agreed to indemnify and hold harmless Favre in defending claims relating to and/or arising from the disclosure of client information where such claims are asserted by Pohl and certain others.69 Nicholson also was responsible for sending threatening letters to get Walker and others to turn over Pohl’s information to Nicholson, Precision, and Favre.70 k In addition, certain Defendants’ “uses” of the trade secrets occurred aftelr May 1, 2017, the date of the Settlement Agreement that Nicholson discusses in her traditiocnal motion for summary judgment.71 There can be no doubt that by the time Kassab and Nicholsson used Pohl’s trade secrets to contact and solicit Pohl’s clients and former clients, they knsew that the materials belonged to Pohl and their use violated his rights of ownership. 3. Pohl’s evidence that he incurred actual damages is sufficient. Pohl has testified relating to his extensive damages arising from Defendants’ theft of trade secrets.72 Those damages arose directly from athe actions of Defendants in misappropriating Pohl’s trade secrets and attempting to monetize those secrets by contacting Pohl’s clients and former clients and fomenting litigation againest him. Additionally, Pohl has provided evidence of damages in the form of the market value fof his trade secrets that constitute unjust enrichment/reasonable royalty damages for Defendaynts’ theft of those trade secrets.73 69 2016.11.10 Agreement Between Kassab, Montague, and Favre, Ex. EE. 70 See Letters from Nicholson (originally used as Exhibits 70 and 71 in the Walker Deposition), attached as Exhibit FF; Deposition of Scott Walker, at 391, 394:11-395:9 (discussing Exhibits 70 and 71 and showing that they were produced by Nicholson’s attorney in the deposition), Ex. V. 71 See Petitions in four cases, attached as Exhs. 28-30; 32 to the Nicholson’s Traditional Motion for Summary Judgment, each filed after May 1, 2017, Exhibit C. These filings were in direct violation of the Settlement Agreement, which requires that parties and their affiliates (defined to include their attorneys) will not file or cause to be filed any complaint, claim or legal action against Pohl and others. 71 Cf. Nicholson’s Amended Traditional Motion for Summary Judgment, at 21, filed August 29, 2022 72 See Pohl Declaration ¶¶ 27-28, Ex. A. 73 See id. ¶ 27. 17 III. CONCLUSION For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl respectfully request that the No Evidence Motions for Summary Judgment filedk by Kassab and Nicholson be in all respects denied and that the issues raised in Plaintiffs’ Peltition be tried by a jury. c Dated: September 12, 2022 Respectfully submitted,s REYNOLDS FRIZZEsLL LLP By: /s/ Jean C. Frizzell Jean rC. Frizzell State Bar No. 07484650 1100 Louisiana St., Suite 3500 Houston, Texas 77002 Tel.l 713.485.7200 Faax 713.485.7250 Mjfrizzell@reynoldsfrizzell.com oAttorney for Plaintiffs Michael Pohl e and Law Office of Michael A. Pohl, PLLC CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document was served on all counsel of record pursuant to the TCexas Rules of Civil Procedure on this the 12th day of September, 2022. c /s/ Jean C. Frizzell f Jean C. Frizzell 18 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Suni Blue on behalf of Jean Frizzell e Bar No. 7484650 C sblue@reynoldsfrizzell.com t Envelope ID: 68182775 r Status as of 9/13/2022 8:05 AM CST Case Contacts Name BarNumber Email sTimestampSubmitted Status Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 11:26:05 PM SENT Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 11:26:05 PM SENT Andrew J. Sarne asarne@krcl.com 9/12/2022 11:26:05 PM SENT Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 11:26:05 PM SENT Kathryn Laflin KLaflin@KRCL.com 9/12/2022 11:26:05 PM SENT Murray JFogler mfogler@foglerbrrar.com 9/12/2022 11:26:05 PM SENT Murray Fogler mfogler@fbfog.com 9/12/2022 11:26:05 PM SENT Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT Larry Newsom lnewsom@fkrcl.com 9/12/2022 11:26:05 PM SENT Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 11:26:05 PM SENT Chris C.Pappas cpappas@krcl.com 9/12/2022 11:26:05 PM SENT Todd Taylor titaylor@jandflaw.com 9/12/2022 11:26:05 PM SENT Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT Todd Taylor ttaylor@jandflaw.com 9/12/2022 11:26:05 PM SENT Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 11:26:05 PM SENT Scott M.Favre scott@favrepa.com 9/12/2022 11:26:05 PM SENT Andrea Mendez C andrea@kassab.law 9/12/2022 11:26:05 PM SENT Lance Kassab  lance@kassab.law 9/12/2022 11:26:05 PM SENT David Kassab a david@kassab.law 9/12/2022 11:26:05 PM SENT Nicholas Pierce c nicholas@kassab.law 9/12/2022 11:26:05 PM SENT Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 11:26:05 PM SENT Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 11:26:05 PM SENT Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 11:26:05 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:26:05 PM SENT L Kassab lance@kassab.law 9/12/2022 11:26:05 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:26:05 PM SENT Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 11:26:05 PM SENT Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 11:26:05 PM SENT E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 11:26:05 PM SENT Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 11:26:05 PM SENT Katie Budinsky kbudinsky@krcl.com 9/12/2022 11:26:05 PM ERROR D Kassab david@kassab.law 9/12/2022 11:26:05 PM SENT

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