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43 2022-11-14 OA Kassab 8th Amended Answer (final) Kassab Defendants' Eighth Amended Answer, Affirmative Defenses and Counterclaim (Final Pre-Trial Pleading) Filed November 14, 2022 in Cause No. 2018-58419, 189th Judicial District, Harris County, Texas. This is Kassab's final amended answer asserting 23 affirmative defenses, responsible third-party designations (8 individuals), and a counterclaim for civil barratry based on assigned claims from 242 claimants. Filed approximately three weeks before the December 5, 2022 trial setting, after all four MSJs were denied on October 31, 2022. PLEAD-1 N/A Phase 3 2022-11-14_OA_Kassab-8th-Amended-Answer-CC_FILED.pdf That Pohl recover nothing on his claims; that Kassab recover on counterclaims including (i) actual and consequential damages, (ii) statutory damages, (iii) pre- and post-judgment interest, (iv) attorneys' fees and costs, and (v) all other appropriate relief 11/14/2022 3:25 PM Marilyn Burgess - District Clerk Harris County Envelope No. 70152760 By: Deandra Mosley Filed: 11/14/2022 3:25 PM CAUSE NO. 2018-58419 MICHAEL A. POHL, et al § IN THE DISTRICT COURT V. § OF HARRIS COUNTY, TEXAS SCOTT FAVRE, et al § 189th JUDICIArL DISTRICT DEFENDANTS, LANCE CHRISTOPHER KASSAB AtND LANCE CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAWi FIRM’S EIGHTH AMENDED ANSWER, AFFIRMATIVE DEFENSES ANsD COUNTERCLAIM TO THE HONORABLE JUDGE OF SAID COURT:  COMES NOW, Defendants, Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm and files this their Eighth Amended Answer, Affirmative Defenses, and Counterclaim, and would respectfully show the Court as follows; a f  I RULE 47 STATEMENT 1. The Kassab Deffendants, in their capacity as Counter-Plaintiffs, seek monetary relief of more than $1,000,000.00. C II l PARTIES 2. Plaiintiff, Michael A. Pohl is an individual lawyer residing in Colorado and is a paroty herein. 3. Plaintiff, Law Offices of Michael A. Pohl is a law firm set up for the practice of law in various states of the union, including Texas and is a party herein. 4. Defendant, Scott Favre is a nonresident individual residing in Mississippi and is a party herein. 5. Defendant, Scott M. Favre, PA, LLC is a nonresident limited liability company located in Mississippi and is a party herein. 6. Defendant, Precision Marketing Group, LLC is a nonresident limited liability company located in Mississippi and is a party herein. k 7. Defendant, F. Douglas Montague III is a nonresident iCndividual residing in Mississippi. 8. Defendant, Montague, Pittman & Varnadoi, PA is a nonresident professional association located in Mississippi. 9. Defendant, Tina Nicholson is an individual residing in Texas and is a party herein. 10. Defendant, Baker Nicholson, lLLP, d/b/a Baker Nicholson Law Firm is a limited liability partnership located inM Texas and is a party herein. 11. Defendant, Counter-Plaintiff, Lance Christopher Kassab is an individual residing in Texas anid is a party herein. 12. Defendant, Counter-Plaintiff, Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm is ao professional corporation located in Texas and is a party herein. l III c i JURISDICTION AND VENUE 13. oThis matter is within the jurisdictional limits of this Court and Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl (“Pohl”) and Defendants, Counter-Plaintiffs, Lance Christopher Kassab (“LCK”) and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm (“Kassab, P.C.”) (collectively “Kassab”) are subject to the Court’s jurisdiction. Venue is proper in this county because one or more of the defendants are residents of this county and because a substantial part of the acts and/or omissions that form the basis of this suit occurred in this county. IV k GENERAL DENIAL e 14. Defendant, Counter-Plaintiff Kassab generally detnies all allegations made by Plaintiffs, Counter-Defendants, Michael A. Pohl ansdt Law Offices of Michael A. Pohl, and requests the Court to require Plaintiffs, Counter-Defendants, Michael A. Pohl and Law Offices of Michael A. Pohl to carry their burden of proof regarding all allegations against Kassab. AFFIRMATIViE l DEFENSES 15. Defendant, Counter-Plaintiff Kassab pleads the following affirmative defenses:  1. Statute of limitationf is; 2. Justification; y  3. Estoppel; 4. Waivera; 5. Ratiffication; 6.U Release; 7. Unclean hands; 8. Contribution; 9. Failure to mitigate; 10. Lack of standing; 11. Accord and Satisfaction; 12. Assumption of the Risk; 13. Illegality/Criminal Acts; k 14. First Amendment; C 15. Attorney Immunity; 16. Judicial Immunity; i 17. Immunity under Rule 17.09 of the Texas Rules of Disciplinary Procedure. 18. In Pari Delicto; 19. Res Judicata; 20. Defect of Parties; l 21. Abandonment; M 22. Subject of a Valid Contract; and 23. Preemption pursuanit to TEX. CIV. PRAC. & REM. CODE § 134A.007(a). SPECIFIC DENIALS 16. Defendants, Counter-Plaintiffs specifically deny that all conditions precedent regardiing Plaintiffs claims of conversion and theft of trade secrets have been perforomed or occurred prior to Plaintiffs’ filing of suit against Kassab. VII FACTUAL BACKGROUND AND PROCEDURAL HISTORY 17. LCK is a lawyer practicing law with The Kassab Law Firm, a law firm in Houston, Texas focusing on plaintiffs’ legal malpractice cases. Kassab filed four lawsuits on behalf of over four hundred clients against Pohl (the “Harris County Lawsuits”). The main allegations against Pohl are civil barratry and conspiracy to commit barratry, a third-degree felony in Texas. Pohl conspired with his wife, Donalda Pohl (“Dona”), his paralegal, Edgar Jaimes (“Jaimes”) and thrkee runners in Mississippi to illegally solicit clients on behalf of Pohl. Dona ownCs a sham lending company in Texas called Helping Hands Financing, LLC (“HH Texas”). Jaimes rans the day-to-day operations of HH Texas. The three ruinners are Scott Walker (“Walker”), Steve Seymour (“Seymour”) and Kirk Ladner (“Ladner”) (collectively “Runners”). The three Runners owned and operated two other sham companies called Helping Hands Group, LLC and Helping Hands Financial, LLC (collectively “HH Mississippi”). The three runners also olwned Precision Marketing Group, LLC (“Precision”) which they sold to ScMott Favre and/or his companies (collectively “Favre”). The runners had several other business entities from which they operated and concealed their illegal soliicitation conspiracy. 18. With regard to the clients obtained in the BP Litigation, Walker, Seymour and Ladnero hired other runners to literally go up and down streets in specific locations klnocking on doors to solicit clients on behalf of Pohl for lawsuits against Britishi Petroleum. Walker, Seymore and Ladner, through Precision and on behalf of Pohl, paid these runners as much as $300-$400 for every potential client they obtained. Pohl paid Precision as much as $1,500 for every client Precision obtained and referred to Pohl. Walker, Seymore and Ladner paid the other runners from this amount and pocketed the balance. Pohl also offered and agreed to pay Walker, Seymour and Ladner a percentage of his legal fees once cases settled. This percentage was disguised as an hourly rate of $1,500.00 per hour, but the percentage of the “settlement” payment was never below the agreed percentage. For example, no matter how much “hourly” time was actually spent on a case, thek agreed upon percentage was always achieved by simply dividing the percentagCe amount of Pohl’s legal fees by $1,500.00 to calculate the imaginary number of hours, and then the Runners would submit an invoice for those imaginary numbier of hours. Whether the Runners actually spent five (5) or fifty (50) hours on a particular case was not the measure of the “settlement” fees to be paid to the Runners, it was always the agreed upon percentage of attorney’s fees earned by Pohl regardless of actual hours spent on a case. l 19. With regard to auto accidMents, Pohl set up a “Google Alerts” to be notified whenever there was a horrific rollover or other type of horrific vehicle crash across the nation. Pohl would then imimediately send the alert to the Runners so they could arrange to visit hospitals, homes and funerals to contact the families of the injured in order to solicit theom as clients. The Runners would use their sham companies, “Helping Hands” tlo act as though they were approaching these victims to genuinely help them rathier than solicit them. The Runners would falsely tell these victims that they were there to provide money for burial services, food, clothing, lodging, etc. In reality however, the Runners’ contacted these families under these false pretenses with the sole objective of talking advantage of these victims and their families while they were emotionally distraught and not thinking straight in order to lock them into contracts which allowed the runners to select a lawyer for the victim. The victims and the family members were encouraged to hire Pohl and told they could not get the money unless they agreed to hire Pohl. Pohl would pay the Runners as much as $7,500 per client they signed up and Pohl also promised the runners ask much as 33% of Pohl’s legal fees on the back end when the case settled. AdditCionally, HH Texas would pay HH Mississippi $2,500 for every client referred to HH Texas to “loan” money to these victims and their family. Pohl used this priocedure as an attempt to put an additional buffer between him and the actual Runners. 20. Pohl also helped the Runners form another sham entity, the GM Settlement Verification Team (“GM Team”) after General Motors, Inc. issued a recall on cars due to faulty ignition switches whiclh effected the safe operation of the airbag systems on vehicles. Thus, the GM MTeam was designed to look official as if it was part of General Motors. This conspiracy was to form an official looking entity from GM as if GM was wanting to ciompensate people who had been harmed when airbags failed to deploy in relation to the ignition recall. In reality, this was just another sham company used too solicit and trick potential clients into hiring Pohl. Again, Pohl would pay Walkerl and Ladner, through their sham entity, the GM Team, a fee for every potentiail client it referred to Pohl, in addition to a percentage of his attorney’s fees on the back end. 21. Pohl knew what he was doing was illegal barratry. Accordingly, he knowingly formed entities that he perceived would insulate him from liability. In fact, Walker testified that although he and Pohl called it “marketing services” or “marketing money” it was “clear to [him] it was barratry.” In fact, Walker considered himself and his company “a pass-through for barratry money.” All total, Walker, Ladner and Precision received over $5 million in “barratry pass-through money” from Pohl and other lawyers to solicit potential clients with claims, both kauto-accident victims and those involved in the BP Deepwater Horizon litigationC. 22. One of the runners hired by Pohl and Walker to illegally solicit clients on behalf of Pohl was Magdalena Santana (“Santana”). Ini her September 24, 2016 affidavit, Santana testified that Pohl sent her on “dozens and dozens of car wreck cases all over the country.” Pohl would email Santana the link of news coverage he obtained through Google Alerts depicting an accident and asked her “to go to the victim or the victim’s family and try to get lthem to sign up with him.” Santana swore under oath that Pohl agreed to pay Mher “$5,000 per case that [she] signed, plus a percentage of his attorney’s fees.” Santana was advised by Pohl to “be persistent even if the family ... rejected [her]i.” Santana was instructed by Pohl to “approach the victims and their families while they were vulnerable, in the emergency room, their hospital rooms or at thoe funerals.” Pohl told Santana that minorities “were especially vulnerable since tlhey tended not to know that the law prohibited barratry.” According to Piohl, they “were easier to sign up.” 23. Pohl would give Santana “money to give to the victims or their families” but would only give the money to the potential client “if they agreed to sign a Pohl representation contract.” Pohl advised Santana that the money was a “foot in the door” but instructed Santana not to mention anything about hiring a lawyer “until after they agreed to take the money.” “If the client agreed to hire Pohl, then [Santana] was to have the client sign a ‘Helping Hands’ contract.” Santana would then give money to the client “from his own Helping Hands company.” When Santana questioned this, Pohl told Santana that it “was illegal for him to pay [hekr] directly for cases, and that’s why the money had to go through some company.C” 24. Pohl and/or his co-conspirators had Santana retract this affidavit through a December 19, 2017 affidavit. This purported rietraction was likely the result of Pohl paying Santana to retract the first affidavit, which is similar to something Pohl had done in the past. In fact, Pohl’s own paralegal, Jaimes, testified that on one occasion Pohl sent him to Florida with a suitcase containing $50,000 in cash to give to Santana in exchange for lher agreement not to turn Pohl into the authorities. Jaimes testified that SanMtana would only get the money if she signed a statement agreeing not to mention Pohl’s illegal activity. Jaimes testified that Santana signed the statementi and then he gave her the $50,000. 25. Santana’s deposition was even more detailed. Santana testified at her deposition that the staotement was an agreement for her to keep quiet and not charge Pohl with any wronlgdoing, criminal or unethical conduct. Santana testified that Pohl paid her $50,0i00 in cash to sign this statement, which was delivered by Jaimes in three bags marked “trick or treat.” Very symbolic given that Santana had been tricked by Pohl into soliciting potential clients for him and was now being treated the money she claimed was due under their agreement just to stay quiet. Santana reiterated in her deposition that if she didn’t sign the gag agreement, she would not have received the money from Pohl. Santana attempted to indicate on the agreement that she was receiving $50,000 to keep quiet, but Jaimes told her Pohl demanded that she state she only received nominal consideration, like $100. Santana did not write the statement but “just signed it” because she felt she was being “forcked to sign” it while “under duress.” C 26. Notably, nowhere in Santana’s December 19th affidavit does she state the testimony in her former affidavit is untrue, only that shie does not “agree with” it and that the affidavit is not “reliable.” Although Santana states in her December 19th affidavit that her prior affidavit was drafted by a lawyer, Santana testified in her deposition that the September 24th affidavit was created voluntarily with her own “testimony.” Santana testified that, unlike lwith Pohl, she was not paid and had never been promised any money to provideM the testimony in the September 24th affidavit. Santana reiterated to counsel for Pohl, Billy Shepherd, that she was there for her deposition to tell the truth andi would not be bullied by his questioning or his efforts to confuse her. 27. Regardleoss, Santana’s sworn deposition testimony confirmed most, if not all of the factsl set forth in her initial affidavit and this deposition testimony has never been retiracted. Therefore, Santana confirmed that she was hired by Pohl to solicit auto accident cases, the first one being an accident where a woman and her unborn child lost their lives. Santana was instructed by Walker, who was instructed by Pohl, to personally visit the mother of the deceased and sign her up to sue the tire manufacturer and, if she succeeded, Pohl would pay her $5,000. Following Walker 10 and Pohl’s instructions, Santana visited the funeral of the deceased and got the family to feel comfortable with her. Although the mother was grieving, Pohl told Santana: “take no prisoners, this is a cut throat business, you get in there and you do whatever it takes to get this client.” The solicitation was successful after Pohl gkave Santana $2,000 to “give to the client to convince her into signing over with Cthe firm.” 28. “Coach” Kenneth Talley (“Talley”) was another runner hired by Pohl and Walker who solicited over 20 auto accident cases for Pohil. Talley has sworn under oath that he was first hired in relation to BP claims to find “folks that lost money due to the oil spill” and “sign them up” and “get a fee for it.” Talley testified that he went to work “knocking on doors” looking for potential claimants for Pohl and his partner in the BP litigation. Talley solicited and siglned up more than 800 BP claims for Pohl and his co-conspirators. Talley was pMaid between $75 and $350 for each BP client he signed up for Pohl and his partners. 29. Talley eventuallyi switched to illegally soliciting auto accident victims for Pohl, “calling on folks that had bad accidents.” Talley recalls that the first client he solicited for Pohl woas in “the hospital in intensive care.” Talley carried with him up to $1,000 to paly the accident victims to “help them with problems” but paid the potential clienit only once they “were signed up.” Talley kept a list of all the auto accident cases he solicited so he could keep track of the cases that he was due a percentage from Pohl’s attorney’s fees on the back end after the case settled. Talley also followed a checklist that instructed him to, among other things, bring flowers to the initial hospital visit (but to spend no more than $50) and to offer the victims 11 money but to “make sure the funding schedule” from HH Texas “is filled out properly before releasing any cash.” Talley would advise the victims that he had attorneys who could help them such as Pohl. Talley was paid a fee of $1,400 plus his expenses by Pohl, through Walker and/or one of his sham business entities for any kauto accident case he solicited and referred to Pohl. On some cases, Talley was tCo receive a portion of the fee paid to Helping Hands out of Pohl’s attorney’s fees. Talley discussed with Pohl the “percentage of settlements” he was to receive from ithe cases he solicited and referred, and Pohl told Talley that the money was being placed in an “escrow account” for him. When asked whether Pohl knew he was getting paid to “contact vehicle accident victims,” Talley responded, “the money was coming from Edgar [Jaimes] who worked for him.” And, although his paylcheck was from Walker’s company, “the funding came by way of Edgar [JaimeMs].” 30. Talley testified that personally soliciting clients for Pohl became so frequent that he began carryinig blank contracts to each solicitation. Talley testified that he never recommended any lawyers other than Pohl. However, Talley never told the clients that he waos getting paid to solicit them. Talley would present a contract to the potential clilent. If the client did not agree to hire Pohl, the clients would not get the moneyi. Talley testified that Jaimes and Dona (the operators of HH Texas) would send him the money. 31. Talley further testified that both he and Pohl knew what they were doing was illegal. In one instance, Talley was “run out of town” while soliciting clients for Pohl. Talley testified that during the attempted solicitation he was told by a 12 “lawyer or policeman” that “it was against the law what [he] was doing.” Talley mentioned this to Pohl and Pohl told him “you’ve just got to leave...some people you can’t help.” 32. Walker was eventually indicted and sent to prison. Beking afraid of where Walker’s indictment might lead, Pohl and his lawyer partneCrs stopped paying Walker and the other runners the illegal fees as Pohl had promised. Therefore, Walker, Seymour, Ladner and Precision filed a lawsuit in Miississippi Federal Court (“Federal Litigation”) against Pohl and his law partners claiming they were owed millions of dollars in promised fees. 33. The above facts were compiled during the Federal Litigation. Thereafter, more than four hundred clientsl who were illegally solicited contacted the Kassab Law Firm and requested KassMab to represent them in litigation against Pohl and his partners. Kassab filed lawsuits on behalf of these clients in four different courts in Harris County. Addiitionally, due to the egregiousness of Pohl’s violation of the Texas Penal Code and violations of the Texas Disciplinary Rules of Professional Conduct, Kassab was orequired to notify the Texas State Bar pursuant to Rule 8.03 of the Texas Disciplinlary Rules of Professional Conduct. Due to this mandate, Kassab filed grievanceis against Pohl pursuant to Rule 8.03. some of Pohl’s clients also prepared and filed grievances against Pohl arising out of his egregious conduct. 34. Because of these actions in representing clients against Pohl and the grievances filed against Pohl, Pohl filed this retaliatory lawsuit against Kassab alleging conversion and theft of trade secrets. Pohl alleges that Kassab and others 13 stole his property and used it to bring lawsuits and grievances against Pohl. Specifically, Pohl alleges in his petition that, “Kassab is a lawyer who specializes in suing other lawyers”1 and “Kassab solicited clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring cases against Pohl for alleged barratry and okther claims.”2 Thus, Pohl has judicially admitted that he has brought his suit agaiCnst Kassab simply because Kassab contacted illegally solicited clients to notify them of Pohl’s illegal conduct and to offer to represent them in suits against Pohli. 35. The lawsuit is frivolous and without merit as it is based upon false pretenses and was brought solely for retaliation and harassment purposes. Specifically, Kassab did not steal anything from Pohl. Additionally, Kassab did not purchase any stolen documents belonging tlo Pohl. Nor did Kassab purchase anything belonging to Pohl. Moreover, Pohl isM not the owner of documents received, if any, from Precision, Favre, Nicholson, Montague or anyone else. Lastly, none of the documents and/or informatioin that Kassab may have received from various individuals or entities are Pohl’s trade secrets as Pohl alleges. Furthermore, Pohl has failed to complyo with conditions precedent to filing his retaliatory suit for conversion and thleft of trade secrets. Specifically, Pohl has never requested from Kassab, the reiturn of his alleged property. Rather, Pohl abandoned all of the alleged documents he now accuses Kassab of stealing and/or purchasing. Pohl abandoned all of the documents he alleges were stolen and/or purchased because he knew that the documents were not his and that he had no ownership interest in the documents. If 1 Pohl Original Petition, p. 6 2 Id. at p. 6-7 14 Pohl actually believed the subject documents were his, he would have safeguarded the documents rather than abandon them with a convicted felon (Walker) and his cohorts (Seymore and Ladner). Even as of today, the subject documents sit in a warehouse, unattended and not safeguarded. k VIII C RESPONSIBLE THIRD PARTIES 36. A responsible third party is “any person who isst alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these.” Id. at § 33.011(6). Pohl claims that his harm is the allegedly “unlawful takinag” or “use” of Pohl’s purported trade secret information.3 Kassab denies Pohl’sf allegations. But even assuming they are true, Kassab’s designation satisfies the minimal notice pleading standard to demonstrate that the Designated PartieOs caused or contributed to causing “in any way” the loss of or eventual alleged mipsuse of purported trade secret information. See In re CVR Energy, Inc., 500 S.W.3d 67, 80 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“The standard for dceisignating a potentially responsible third party is notice pleading under the Toexas Rules of Civil Procedure.”). 37. Kassab alleges that Walker, Ladner and Seymour are responsible for the harm alleged to the extent they misappropriated Pohl’s trade secrets in the first 3 Pohl RTP Objection, at 2. 15 instance and sold them to Scott Favre, who Pohl alleges then sold them to Kassab to pursue the barratry litigation. In fact, Pohl himself, swore under oath that Walker, Lander and Seymour, who Pohl identified collectively as the “PR Consultants,” attempted to sell his “accumulated work product to third parties”4 and k“undertook to convert, misappropriate for themselves and/or market to third parCties claimant files and other information and materials that belong to me.”5 Pohl testified that the purported information stolen by Walker, Ladner and iSeymour is the same information that Pohl claims is his trade secrets here: “original client contingency fee contracts between [Pohl’s] clients and [Pohl], documentation of contact and personal information, claim information and supporting materials.”6 Pohl testified that this purportedly trade secret information wals delivered or sold Walker, Ladner and Seymour “without his consent” to FavMre.7 Pohl alleges in this lawsuit that Favre then sold that same information to Kassab to pursue barratry claims against Pohl.8 If any loss or eventual misuse of Piohl’s purported trade secret information did occur, Walker, Ladner and Seymour clearly caused or contributed to causing it, as had Walker, Ladner and oSeymour not stolen Pohl’s alleged trade secrets as he alleges, they could not havle sold the alleged trade secrets to Favre and thus, Favre could not have given thei alleged trade secrets to Kassab. 4 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 18. 5 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 28. 6 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶ 28. 7 Exhibit 1, Pohl June 19, 2018 Affidavit, at ¶¶ 28-29. 8 Pohl’s First Amended Petition, at ¶ 24. 16 38. Walker testified under oath that he, Seymour and Ladner, through Precision, owned all the assets/property, including computers and documents that were transferred to Favre. Walker also testified that he had the legal right and authority, through Precision, to sell and transfer all the subject assetks/property to Favre. Moreover, Walker, Seymour and Ladner certified that theCy owned all of the subject property/assets and had authority to transfer all of the subject property/assets to Favre. If Walker, Seymour and Ladner did not have thei legal right to transfer all of the subject assets/property to Favre, then they caused or contributed to causing any alleged harm for which recovery of damages is sought by Pohl by selling the alleged trade secrets to Favre. 39. Kassab also sufficiently allegled how Pohl’s counsel in the Mississippi litigation, Shepherd, caused or contribMuted to causing the purported loss or misuse of Pohl’s allegedly confidential information. Specifically, Shepherd negotiated a settlement in the litigation wiith Walker, Ladner and Seymour but failed to protect Pohl by ensuring that all subject property was gathered from all third parties and returned to Pohl or deostroyed as part of the any settlement agreement, if in fact Pohl owned and/or desirled to safeguard the subject property. 40. Sihepherd knew that Walker, Seymour and Ladner had sold Precision to Favre and knew that Walker, Seymour and Ladner had legally transferred Precision’s assets, including the subject matter of Pohl’s conversion and theft of trade secrets claims, to Favre. Shepherd further knew that Favre and/or his counsel had given documents to third parties, including Kassab and others prior to negotiating a 17 settlement in the Mississippi Litigation. Thus, Shepherd failed to protect Pohl’s alleged trade secrets by failing to include a provision in the settlement agreement forcing all parties to gather the alleged trade secrets from outside third parties like Kassab so they could be returned to Pohl, if in fact he owns them as aklleged. This failure by Shepherd caused and/or contributed to causing the harmC for which recovery of damages is sought by Pohl. 40. Shepherd’s malfeasance was either negligient or intentional. If Shepherd knew that the subject assets/property were a point of contention in the Mississippi Litigation and knew that the assets/property could be used by outside third parties to garner clients to sue Pohl, as Pohl alleges, Shepherd may have intentionally failed to protect Pohl’s interelst so that he could secure future lucrative employment for himself and his law fiMrm for years to come by continuing to represent Pohl in litigation to be brought against Pohl after the subject property was used to garner clients to sue Pohl as Piohl alleges. Thus, Shepherd is a person who caused or contributed to causing the harm for which recovery of damages is sought by Pohl. 41. Finally, oKassab sufficiently alleged how Dona Pohl, Jaimes, Tally and Santana caused olr contributed to causing the purported loss or misuse of Pohl’s alleged trade siecret information. Specifically, Kassab alleges that these persons failed to keep Pohl’s information confidential because they routinely placed Pohl’s alleged trade secrets and documents in the public domain, circulating Precision’s marketing lists and other documents allegedly belonging to Pohl to numerous third parties rather than safeguard these documents and lists. 18 42. Additionally, if Walker, Seymour, Ladner, Dona, Jaimes, Talley or Santana had an agreement and/or duty to safeguard any property allegedly owned by Pohl as Pohl alleges, they are responsible for failing to safeguard the property. Additionally, Walker, Seymour, Ladner, Dona, Jaimes, Talley and Santkana routinely placed Pohl’s alleged trade secrets and documents in the public dComain, circulating Precision’s marketing lists and other documents allegedly belonging to Pohl to numerous third parties rather than safeguard these documients and lists. 43. “Under the notice-pleading standard, fair notice is achieved if the opposing party can ascertain from the pleading the nature and basic issues of the controversy, and what type of evidence might be relevant.” In re CVR Energy, Inc., 500 S.W.3d at 80. “A trial court may not revliew the truth of the allegations or consider the strength of the defendant's evidenMce.” Id. Kassab satisfies this “low threshold” by alleging that the Designated Parties caused or contributed to causing the alleged theft or misuse of Pohl’s puriported trade secret information. See id. Therefore, Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley, Santana are persons who caused or contributedo to causing any alleged harm for which recovery of damages is sought by Pohl. Thleir conduct caused or contributed to causing in part (if not entirely) the harm for wihich recovery of damages is sought by Pohl, and that conduct violated an applicable legal standard and/or constitutes negligence. See TEX. CIV. PRAC. & REM. CODE § 33.011(6). Thus, the jury should be permitted to consider apportioning fault in this case to Shepherd, Walker, Seymour, Ladner, Dona, Jaimes, Talley, 19 Santana. Their designation as responsible third parties is factually justified and legally appropriate.9 COUNTERCLAIM FOR CIVIL BARRATRY 44. Within the lawsuits that Kassab has filed against PoChll on behalf of his former clients and/or potential clients, Pohl has judicially admcitted that a claim for barratry is not a legal malpractice case. Pohl has also admitted that a because a claim for barratry is not a claim for “legal malpractice,s” the Discovery Rule does not apply to a barratry claim. Therefore, based upogn Pohl’s judicial admissions, the assignment of a barratry claim is permitted unBder Texas law. 45. Thus, based upon express assignments of interest given to Kassab, Kassab brings counterclaims againstM Pohl and his law firm pursuant to Texas Civil Practice and Remedies Code, Sectioon 16.069. Section 16.069 provides: (a) If a counterclaim or ccross claim arises out of the same transaction or occurrence that is fthe basis of an action, a party to the action may file the counterclaim or cross claim even though as a separate action it would be baryred by limitations on the date the party’s answer is required. (b) The counterclaim or cross claim must be filed not later than the 30th day after the date on which the party’s answer is required. 9 It is also onf no concern here that the Court might be unable to exert personal jurisdiction over either WaUlker, Seymour, Ladner, Talley, Dona, Jaimes or Santana. In its 2003 revision of Chapter 33, the Legislature abolished the predecessor law, which had defined responsible third parties to be only those over whom the court could exercise jurisdiction, thus allowing the designation of those “who are not subject to the court’s jurisdiction or who are immune from liability to the claimant.” See, e.g., In re Unitec Elevator Serv. Co., 178 S.W.3d 53, 58 & n. 5 (Tex. App.-- Houston [1st Dist.] 2005, orig. proceeding); accord Hix-Hernandez v. Ford Motor Co., No. 1:20-cv-29-RP, 2021 WL 7632564, at *1 (W.D. Tex. May 6, 2021) (“A defendant may designate a responsible third party despite the fact that the party has a defense to liability, cannot be joined as a defendant, or both. Even parties who are outside the court’s jurisdiction or are immune from liability may be designated responsible third parties.”) (internal citations omitted). 20 Kassab has been assigned barratry claims on behalf of 242 claimants. These counterclaims are timely because they were filed within 30 days of the date Kassab filed his original answer. X k CLAIM FOR ATTORNEY’S FEES e 46. Defendants contend that all or some of Plaintiffs’ claims for misappropriate under TUTSA were made in bad faith, enablitng Defendants to recover their reasonable attorney’s fees. See TEX. CIV. P RAC. & REM. CODE § 134A.005. e XI u PRAYER FOR RELIEF Wherefore, Defendants, Counter-Pllaintiffs respectfully pray that Plaintiffs recover nothing on their claims and that the Defendants, Counter-Plaintiffs recover on their claims against the Plaintiffs and/or any Third-Party Defendants as follows: i) actual and conseqiuential damages; ii) statutory damages; iii) pre- and ppost-judgment interest; iv) attorneys’ fees and costs; and v) all other relief to which the Defendants, Counter-Plaintiffs may be justly entitled. 21 Respectfully submitted, THE KASSAB LAW FIRM / s / Lance Christopher Kassab LANCE CHRISTOPHER KASS k AB Texas State Bar No. 00e794070 lance@kassab.law C DAVID ERIC KASSABt  Texas State Bar No. 24071351 david@kassab.latw 1214 Elgin Stireet Houston, Texas 77004 Telephone: 713.522.7400 Facsimeile: 713.522.7410 ATTOR u NEYS FOR LANCE CHRISTOPHER KASSAB AND THE KASSAB LAW FIRM lFOGLER, BRAR, O’NEIL AND GRAY, LLP M /s/ Murray Fogler  Murray Fogler State Bar No. 07207300 e mfogler@foglerbrar.com i 909 Fannin, Suite 1640 f Houston, Texas 77010 Telephone: 713-481-1010 Facsimile: 713-574-3224 ATTORNEY FOR LANCE a l CHRISTOPHER KASSAB AND THE c i KASSAB LAW FIRM REGARDING i PLAINTIFFS’ AFFIRMATIVE CLAIMS 22 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 14th day of November 2022. / s / Lance Christopher Kassab Lance Christopher KCassab 23 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. David Kassab Bar No. 24071351 david@kassab.law r Envelope ID: 70152760 Status as of 11/14/2022 3:36 PM CST Case Contacts r i Name BarNumber Email TimestampSubmitted Status Solace Southwick ssouthwick@reynoldssfrizzell.com 11/14/2022 3:25:53 PM SENT Jean C.Frizzell jfrizzell@reynoldgsfrizzell.com 11/14/2022 3:25:53 PM SENT Harris Wells hwells@reynouldsfrizzell.com 11/14/2022 3:25:53 PM SENT Todd Taylor ttaylor@jandflaw.com 11/14/2022 3:25:53 PM SENT Scott M.Favre scott@yfavrepa.com 11/14/2022 3:25:53 PM SENT Lawyer Wade lawayerwade@hotmail.com 11/14/2022 3:25:53 PM SENT Andrea Mendez andrea@kassab.law 11/14/2022 3:25:53 PM SENT Lance Kassab olance@kassab.law 11/14/2022 3:25:53 PM SENT David Kassab david@kassab.law 11/14/2022 3:25:53 PM SENT Jason M.Ciofalo f jason@ciofalolaw.com 11/14/2022 3:25:53 PM SENT Chris C.Pappas cpappas@krcl.com 11/14/2022 3:25:53 PM SENT Todd Taylor p ttaylor@jandflaw.com 11/14/2022 3:25:53 PM SENT Misty Davis C mdavis@reynoldsfrizzell.com 11/14/2022 3:25:53 PM SENT Nicholas Pierce a l nicholas@kassab.law 11/14/2022 3:25:53 PM SENT Murray JFogler mfogler@foglerbrar.com 11/14/2022 3:25:53 PM SENT Murray Fogler o mfogler@fbfog.com 11/14/2022 3:25:53 PM SENT Andrew JohnsUon ajohnson@thompsoncoe.com 11/14/2022 3:25:53 PM SENT Vilma Yanes vyanes@thompsoncoe.com 11/14/2022 3:25:53 PM SENT Benjamin Ritz britz@thompsoncoe.com 11/14/2022 3:25:53 PM SENT Zandra EFoley zfoley@thompsoncoe.com 11/14/2022 3:25:53 PM SENT Dale Jefferson 10607900 jefferson@mdjwlaw.com 11/14/2022 3:25:53 PM SENT Raul Herman Suazo 24003021 suazo@mdjwlaw.com 11/14/2022 3:25:53 PM SENT Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/14/2022 3:25:53 PM SENT D Kassab david@kassab.law 11/14/2022 3:25:53 PM SENT 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. David Kassab Bar No. 24071351 david@kassab.law r Envelope ID: 70152760 Status as of 11/14/2022 3:36 PM CST Case Contacts r i Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/14/2022 3:25:53 PM SENT L Kassab lance@kassab.law s 11/14/2022 3:25:53 PM SENT Murray J. Fogler 7207300 mfogler@foglerbgrar.com 11/14/2022 3:25:53 PM SENT Non-Party Witness Billy Shepherd bshepherd@supcounsel.com 11/14/2022 3:25:53 PM SENT

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