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9 2018-11-01 RSP Pohl Pohl’s response opposing TCPA MTD Pohl's Response in Opposition to Kassab's TCPA Motion to Dismiss Filed November 1, 2018 in response to Kassab's October 24, 2018 TCPA Motion to Dismiss. Pohl opposes dismissal on three grounds: (1) the TCPA does not apply to his claims, (2) even if it did, the commercial speech exception bars application, and (3) Pohl has established a prima facie case. Includes alternative motion for continuance and discovery. Filed in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. TCPA-1 N/A Phase 1 2018-11-01_RSP_Pohl-Response-to-Kassab-MTD-TCPA_FILED.pdf Deny the TCPA Motion to Dismiss in all respects; award Pohl costs and fees of $33,352; alternatively, grant continuance and permit discovery under §§ 27.004(c) and 27.006(b) 11/1/2018 7:18 PM Chris Daniel - District Clerk Harris County Envelope No. 28744115 By: Deandra Mosley Filed: 11/1/2018 7:18 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 MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PURSUANT TO THE TEXAS CITlIZENS PARTICIPATION ACT Plaintiffs Michael Pohl and Law OfMfices of Michael A. Pohl (collectively, “Pohl”) respond in opposition to the Motion to Dismiss filed by Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively, “Kassab”). Kassab’s Motion to Dismiss (the “Motion”) purports to find its basis in the Texas Citizens’ Participation Act, TEX. CIV. PRAC. & REM. CODEo § 27.001 et. seq. (“TCPA”), but as set forth below the TCPA does not apply to Pohl’s claims, and even if it did, the Motion would fail. c I. INTRODUCTION Kassab paid $250,000 to obtain the stolen names, addresses, and in some instances actual client files of Pohl’s former clients and potential clients so that Kassab could solicit those clients to assert barratry claims. Kassab attempted to disguise the purchase as the engagement of a putative “expert witness,” whom he agreed to indemnify in the event that Pohl asserted claims for the theft. Now that Pohl has asserted the anticipated claims, Kassab asks the Court to hold that his actions and communications in purchasing and using the stolen materials are protected by the TCPA. Despite having advocated directly inconsistent positions regarding the kTCPA in other litigation with Pohl in front of this Court, Kassab brought a meritless Motionl.1 In an attempt to contort the application of the TCPA and delay this lawsuit, Kassab assercts that the TCPA applies to Pohl’s causes of action for conversion of confidential information asnd misappropriation of trade secrets because of the purported motivation behind the assertions of those claims. The TCPA does not apply because of a defendant’s mere assertion of the motivation for the filing of a claim; instead, courts consider only whether the factual bases for a claim implicate the statutory protections. Otherwise, every defendant could simply claim—as Kassab has done here without evidence—that a particular case had been filead in retaliation for an action protected by the TCPA and invoke the entire process.  Instead, a court must examinee the claims that are asserted. Pohl’s claims in no way target Kassab for the exercise of any rigfhts of free speech, petition, or association. Pohl brings claims to hold Kassab responsible for yhis wrongful conversion of Pohl’s information and misappropriation of trade secrets, togethCer with his participation in a conspiracy to commit both torts. The claims on their face do not implicate the TCPA, and the inquiry should end there. Perhapsf fbecause the factual bases of Pohl’s claims so clearly do not implicate the TCPA, Kassab exUpends much time and effort attempting to reframe those claims as acts of retaliation for Kassab’s actions after he committed the torts for which Pohl sues. More specifically, Kassab 1 See generally Plaintiffs’ Response to Defendants’ Anti-SLAPP Motions to Dismiss, Dezzie Brumfield d/b/a LAD Enterprises, et al., v. Law Offices of Michael Pohl, et al., No. 2017-38294 (189th Dist. Ct., Harris County, Tex. Sept. 29, 2017) (filed by the Kassab firm), attached as Exhibit 1 to the affidavit of Billy Shepherd (“Shepherd Affidavit”), which is attached as Exhibit A to this Response. contends that Pohl brought tort claims against Kassab not because Kassab stole confidential and trade secret information and materials but because of what Kassab did with those materials after he stole them. Kassab has the burden of demonstrating the applicability of the TCPA by a preponderance of the evidence. See LFMC Enterprises, LLC v. Baker, 546 S.W. 3dk 893, 897 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). Kassab offers no evidence of alny kind to support his contention that the lawsuit is retaliatory. Kassab’s failure to sustain hics burden of proof is fatal to his Motion. s Moreover, even if the TCPA jurisprudence permitted tshis type of exercise, and even if Kassab had demonstrated by a preponderance of the evidence that the purported motivations for Pohl’s suit implicated one of Kassab’s rights protected by the statute, Kassab’s claim under the TCPA would nevertheless fail. If, as Kassab contends, Pohl sued Kassab because “Kassab legally and ethically contacted Pohl’s former clients aor prospective clients and filed suit against Pohl on behalf of these individuals,”2 then Pohl’s suit would be exempt from the TCPA by virtue of the commercial exception to that statute. e TEX. CIV. PRAC. & REM. CODE § 27.010(b). Because Kassab was at all times acting as a persofn primarily engaged in the business of selling his services as an attorney, his contacts with Pyohl’s clients and former clients to solicit them to bring barratry suits fall squarely within theC commercial exception to the statute. Kassab’s actions in filing a grievance against Pohl also fall within the commercial exception and are not protected by the TCPA. It is apparent on thef f face of the grievance itself—which Kassab attached to his Motion even though it is designaUted by the State Bar as “strictly confidential3—that Kassab uses the State Bar grievance mechanism as a part of his litigation strategy.4 2 Motion at 15. 3 See Grievance, attached as Exhibit 21 to the Motion, at 6 (“Disciplinary Proceedings are strictly confidential”). 4 See id. at 8, n. 1 (Kassab describes his history of filing grievances in connection with civil lawsuits). Although it is clear that the TCPA does not apply to Pohl’s claims, Pohl fully sets forth his prima facie case for each element of his causes of action. The pleadings and the affidavits Pohl supplies can leave no question that he has satisfied the second prong of the TCPA analysis. Kassab argues but fails to conclusively establish the affirmative defensesk that he asserts entitle him to dismissal. Limitations has not run even as of today. The attorneyl immunity doctrine does not apply to conduct undertaken outside the scope of representing ac client. And res judicata does not apply in these circumstances to bar the claims. s Finally, Pohl is entitled to his fees and costs in respondsing to Kassab’s Motion. Kassab clearly knew upon filing the Motion that it would fail, given his experience on the opposite side of the issue in this very Court. II. ARGaUMENT A. KASSAB’S MOTION TO DISMISS SHOULD BE DENIED The Texas Legislature enaceted the Texas Citizens Participation Act (“TCPA”) “to encourage and safeguard the confstitutional rights of persons to petition, speak freely, associate freely, and otherwise particiypate in government to the maximum extent permitted by law and, at the same time, protect Cthe rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002 (emphasis added). The TCPA is intended to identify and dispose of lawsfufits that are “designed to chill First Amendment Rights, not to dismiss meritorious lawsuits.”U In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015). “Courts use a ‘two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant’s exercise of these First Amendment rights.’” Wayne Dolcefino & Dolcefino Communications, LLC v. Cypress Creek EMS, 540 S.W.3d 194, 198 (Tex. App.— Houston [1st Dist.] 2017, no pet.) (quoting ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017)). The first step of the TCPA analysis requires that the movant establish by “a preponderance of evidence that the suit he is seeking to dismiss ‘is based on, relates to, or is in response to the [movant’s] exercise of: (1) the right of free speech; (2) the right tok petition; or (3) the right of association.’” Id. (alterations in original) (quoting TEX. CIV. P CRAlC. & REM. CODE § 27.003). c If the movant sustains its burden of demonstrating by a preponsderance of the evidence that the claims fall within the ambit of the TCPA, and only then, thse court turns to the second step in the process. That step shifts the burden to the non-movant to provide by clear and specific evidence a prima facie case supporting the elements of its claim. TEX. CIV. PRAC. & REM. CODE § 27.005(c). In examining whether a plaintiff has sustained its burden of demonstrating a prima facie case, a court is obligated to consider “the pleadings aand supporting and opposing affidavits stating the facts on which the liability or defense is based.” Id. § 27.006(a). A prima facie case is established when the pleadings and evidence suppely the “‘minimum quantum of evidence necessary to support a rational inference that the allegfation of fact is true.’” In re Lipsky, 460 S.W.3d at 590 (quoting In re E.I DuPont de Nemourys & Co., 136 S.W.3d 218, 223 (Tex. 2004)). As set forth belCow, neither of the two prongs of the TCPA is satisfied here, and Kassab’s Motion should be denied. 1. fPohl’s allegations on their face do not implicate the TCPA PoUhl asserts three claims against Kassab in his Original Petition: (1) conversion, (2) violations of the Texas Uniform Trade Secrets Act (“TUTSA”), and (3) civil conspiracy. Original Petition at 9–11. To determine whether Kassab has met the preponderance of the evidence standard, the Court should start with the petition to determine the basis of the legal action. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (the “basis of a legal action is not determined by the defendant’s admissions or denials but by the plaintiff’s allegations”). Courts “do not blindly accept attempts by the [defendants] to characterize [plaintiff’s] claims as implicating protected expression.” Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2015k, pet. dism’d). Instead, courts should “favor[] the conclusion that [the plaintiff’s] claims arel not predicated on protected expression.” Id. Further, “any activities by the [defendantsc] that are not a factual predicate for [the plaintiff’s] claims are simply not pertinent to the insquiry.” Id. Although Kassab baldly asserts that Pohl’s claims were bsrought “in retaliation” for certain of his actions and that Pohl has somehow admitted as much, the Court may not “blindly accept” that characterization of Pohl’s allegations. Instead, the Court must keep in mind that there needs to “be a connection between the claims in the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. The Court muast view the evidence “in the light most favorable to the nonmovant.” Id. at 199. In sum, the Court’s inquiry should be (1) what the factual bases for Pohl’s claims are, based on the pleadeings and evidence viewed in the light most favorable to him, and (2) the extent to which these ffactual bases, as a matter of law, are protected expression within the TCPA’s definition. Sloayt, 513 S.W.3d at 504. As the pleadingCs make clear, Pohl sues Kassab for conversion because Kassab knowingly purchased confiden a tial information and materials that were stolen from Pohl.5 Kassab’s liability for this wrongffufl conduct is not based on facts related to the exercise of the rights of free speech, petition, Uor association. Instead, his liability is based on his knowing and intentional acts of conversion and theft of trade secrets. 5 See Original Petition at ¶¶ 4, 30, 31, 32, 33. Similarly, Pohl’s TUTSA claim is based on the same underlying conduct as the conversion claim, except it is limited to conduct related to the stolen trade secrets.6 For the same reasons as above, the factual basis of liability for this claim does not trigger protections under the TCPA. Pohl’s conspiracy claim involves Kassab’s and the other Defendants’ ovkert acts in their plan to steal and misappropriate Pohl’s trade secrets and other proprietary informlation.7 Yet again, nothing in the factual basis of liability for this claim is based on or targetsc Kassab for the exercise of the rights of free speech, petition, or association. s For all three of Pohl’s claims against Kassab, the thesory of liability is predicated on wrongful acts, not protected speech or conduct. The lawsuit was brought to vindicate Pohl’s rights, not in retaliation for any TCPA protected conduct. The pleadings and evidence which the Court must use to determine if the TCPA applies makes this clear. The Texas Supreme Court has held that the petition is the “best and all-sufficient eavidence of the nature of the action.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (quoting Stockyards Nat. Bank v. Maples, 95 S.W.2d 1300, 1302 (Tex. Comm’n App. 1936)), and Pohel’s Original Petition establishes that the nature of the action does not implicate the TCPA. f 2. Kassab has nyot sustained his burden of demonstrating the applicability of the TCPA to Pohl’s Claims. As the movant, Kassab has the burden to show by a preponderance of the evidence that Pohl’s claims arec “based on, relate[] to, or [are] in response to [Kassab]’s exercise of” some protected sp eech or act. TEX. CIV. PRAC. & REM. CODE § 27.005(b). As set forth above, Pohl’s claims on their face do not support Kassab’s invocation of the TCPA. Given that the claims do not clearly fall within the statute, Kassab is required to show a “connection between the claims in 6 See id. ¶¶ 34–37. 7 See id. ¶ 38. the lawsuit and the alleged protected conduct.” Wayne Dolcefino, 540 S.W.3d at 201. And Kassab must demonstrate that the protected conduct on which Kassab relies must be connected to the “facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a). In spite of the substantial volume of “evidence” he filed in support of his Mkotion, Kassab has supplied no evidence—much less a preponderance of the evidence—that lPohl’s lawsuit was asserted solely or even partly in retaliation for any act or communicatcion protected under the TCPA. Instead, Kassab resorts to asserting (without support) thats he knows the reasons and motivations for Pohl’s claims in this suit and that the suit wass motivated by Kassab’s protected speech and actions.8 Courts have explicitly rejected this very tactic, holding that a defendant cannot rely on a purported motivation for bringing a claim to support a motion to dismiss under the TCPA. See Sloat, 513 S.W.3d at 504 (rejecting the defendant’s effort to “recast [the Plaintiff’s] petition as complaining principally” of actioans of protest instead of the actions on which the petition was based).  Kassab’s mere allegation thate the suit is retaliatory is not enough to make it so. Perhaps recognizing this problem, Kassabf asserts that “Pohl has judicially admitted that he has brought his suit against Kassab solely beycause Kassab legally and ethically contacted Pohl’s former clients or prospective clients anCd filed suit against Pohl on behalf of these individuals.”9 Kassab cites language in Pohl’s Original Petition alleging that “Kassab solicited clients/ prospective clients [of Pohl’s] to act afsf Plaintiffs. . . . to bring cases against Pohl for alleged barratry and other claims.”10 This quotUation from Pohl’s Original Petition does not constitute a judicial admission of anything, much less an admission concerning the motivating force behind Pohl’s suit. Pohl’s recitation of 8 See, e.g., Motion at 1, 19, 21. 9 See id. at 15. 10 Id. (alterations in original). true facts regarding Kassab’s actions—facts that Kassab has acknowledged—is not enough to show a connection between the claims Pohl has alleged and Kassab’s protected conduct. See Wayne Dolcefino, 540 S.W.3d at 201. In various places in his Motion, Kassab cites to Pohl’s Original Petitionk purportedly in support of his argument that Pohl’s motive was retaliatory, but those citatiolns do not support Kassab’s conclusion. Instead, the portions of Pohl’s Original Petition Kascsab cites simply set forth Kassab’s actions, without mentioning a “motive” for bringing suit. As fair reading of the petition in the light most favorable to Pohl does not support Kassab’s chsaracterization of these additional factual allegations. See Sloat, 513 S.W.3d at 507 (rejecting attempts to recharacterize every factual allegation in a petition as providing the basis for a claim); see also LFMC Enterprises, LLC v. Baker, 546 S.W.3d 893, 898 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (requiring that the defendant demonstrate the specific connecation between the plaintiff’s claim and the protected right).  Kassab provides no support eat all to his theory that Pohl’s suit is tied to any grievance Kassab may have filed. Pohl’s Ofriginal Petition does not even mention any grievance, much less make a claim in any way relyating to a grievance. Kassab has no basis at all on which to contend that the grievance is inC any way related to Pohl’s case. Kassab’s wholesale failure to support by a preponderance of the evidence his position that the TCPA applfifes is fatal to his Motion. The Court should deny the Motion on that basis alone. 3.U Even if the TCPA otherwise applies, the commercial exception precludes dismissal here. Kassab contorts Pohl’s claims in his effort to assert that they fall within the TCPA. To the extent, if any, that Kassab succeeds in that effort, the recharacterized claims would fall directly within the commercial exception to the TCPA. Although Kassab cannot show that any TCPA protected speech or conduct is connected to Pohl’s claims—as required by the TCPA—even if a connection could be shown, the speech and conduct would fall within the commercial speech exception in the statute. The TCPA provides an exception to its general applicability: This chapter does not apply to a legal action brought against a person pkrimarily engaged in the business of selling or leasing goods or services, if the steatement or conduct arises out of the sale or lease of goods, services, or an insuranlce product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer. c TEX. CIV. PRAC. & REM. CODE § 27.010(b). The Texas Supreme Csourt has interpreted this as requiring the following four-part test: s  (1) the defendant was primarily engaged in the business of selling or leasing goods [or services], (2) the defendant made the statemernt or engaged in the conduct on which the claim is based in the defendant’s capacity as a seller or lessor of those goods or services, (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and (4) the intended audience of the statemenlt or conduct were actual or potential customers of the defendant for the kinda of goods or services the defendant provides. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). As set forth above, Kassab repeeatedly insists that Pohl’s claims were brought in retaliation for Kassab’s stealing Pohl’s propferty and soliciting his former clients and prospective clients to file barratry claims and grievyances. See, e.g., Motion at 2, 19–21, 25–26. Kassab’s solicitation of Pohl’s clients and formCer clients falls squarely within the commercial exception to the TCPA. See Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 191 (Tex. App.—El Paso 2014, no pet.) (attorney fafdvertising falls within the commercial exception to the TCPA). Where a lawyer is primarUily engaged in selling legal services to clients, and the speech arises from the sale of services where the audience is an actual or potential client, the solicitation falls outside the TCPA’s protections. See NCDR, L.L.C. v. Mauze v. Bagby, P.L.L.C., 745 F.3d 742 (5th Cir. 2014) (applying Texas law). 10 It is beyond dispute that Kassab is primarily engaged in the business of selling legal services. He purchased Pohl’s list of clients and former clients, together with the attorney fee contracts for the purpose of soliciting those clients. In his capacity as a provider of legal services, Kassab advertised and sought out Pohl’s potential and former clients. The akdvertising and solicitation were part of a commercial transaction involving Kassab’s effolrt to provide legal services. The advertising and solicitation was directed at potential custcomers of Kassab’s legal services. Kassab’s solicitation of Pohl’s clients and former clientss is commercial speech and outside the protections of the TCPA. In fact, Kassab has tasken this position himself in his representation in another case.11 To the extent that the Court is convinced by Kassab’s effort to reframe Pohl’s Original Petition as retaliation for Kassab’s actions in contacting and soliciting Pohl’s clients and former clients, Kassab’s Motion nevertheless fails. Kaassab’s actions were entirely commercial in nature and fall squarely within the commercial exception to the TCPA. Kassab further contends thate Pohl’s suit is brought in retaliation for Kassab’s filing of barratry suits and grievances agaifnst Pohl. As an initial matter, Kassab’s filings do not implicate Kassab’s protected rights; thyey instead implicate the protected rights of Kassab’s clients, who are not parties here. See CLFMC Enterprises, LLC v. Baker, 546 S.W.3d 893, 898 (Tex. App.— Houston [1st Dist.] 2018, pet. denied) (requiring that the rights being protected be the rights of the party, and not af f third party to the action). Without an assertion of Kassab’s own protected rights, the TCPAU is not implicated. In addition, the commercial exception should extend to an attorney’s action in filing a lawsuit on behalf of another. The attorney’s purpose in that instance is undeniably commercial— 11 See Brumfield Litigation Plaintiffs’ Response, Exhibit 1 to the Shepherd Affidavit, Exhibit A, at 22. 11 as Kassab’s clearly was in bringing the barratry actions. The statute creates an exception for commercial activity that should apply to an attorney’s actions in pursuit of a client’s case. The grievance against Pohl also falls within the commercial exception because Kassab’s use of the State Bar grievance process is as a tactic to increase pressure on the lawyers that hke sues.12 At the end of his unsupported argument that the TCPA applies to Pohll’s claims, Kassab discusses two cases. Motion at 19–21 (discussing Collins v. Collins, No.c 01-17-00817-CV, 2018 WL 1320841 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. filsed) (mem. op.) and Reeves v. Harbor Am. Cent., Inc., 552 S.W.3d 389 (Tex. App.—Housston [14th Dist.] 2018, no pet.)). Neither case is supportive of Kassab’s position. The court in Collins addressed whether the right to petition required a nexus to a matter of public concern. Collins, 2018 WL 1320841 at *2. The lawsuit itself in Collins was factually predicted on claim that a party filed a fraudulent affidavit in a divorce proceeding. Id. a The Reeves case is similarly unhelpful. The court in that case simply held that the trial court was required to conduct a TCPAe analysis as required by the statute and could not summarily conclude that “[t]he [TCPA] asf a matter of law does not allow a party to avoid contractual obligations such as the onesy at issue here.” Reeves, 552 S.W.3d at 392. The court remanded the case to the trial court tCo conduct a full TCPA analysis. Id. at 396. Pohl does not deny that this Court should conduct a TCPA analysis; instead Pohl asserts that that the TCPA does not apply and that Kassab hasf f failed to carry his burden under prong one of the TCPA. 12 See Grievance, attached as Exhibit 21 to the Motion, at 8, n. 1 (Kassab describes his history of filing grievances in connection with civil lawsuits). 12 4. There is clear and specific evidence demonstrating a prima facie case. Kassab’s failure to satisfy the first prong of a motion pursuant to the TCPA relieves Pohl of any burden of demonstrating a prima facie case of his claims. Pohl nevertheless sets forth below the clear and specific evidence in his pleading and the attached affidavits for eachk element of the claims he has asserted against Kassab.13 l Pohl asserts three causes of action against Kassab: (1) conversicon; (2) violations of the Texas Uniform Trade Secrets Act, TEX. CIV. PRAC. & REM. CODE Cshap. 134A (“TUTSA”); and (3) conspiracy to commit conversion and to violate TUTSA. Thes elements of the conversion claim, as asserted in the Original Petition against Kassab, are that (a) Pohl owned and owns certain property and information; (b) Kassab purchased that information knowing that it had been stolen from Pohl; and (c) Kassab wrongfully exercised dominion and control over Pohl’s property in contravention of Pohl’s rights. The elements aof a violation of TUTSA against Kassab are that (a) Kassab purchased Pohl’s trade secrets knowing that they had been acquired by improper means; and (b) and knowing that he did neot have Pohl’s express or implied consent. Finally, the conspiracy claim alleges that Kfassab acted in combination with the other defendants and committed overt acts towardy unlawful conversion and misappropriation. In examining wChether a plaintiff has sustained its burden of demonstrating a prima facie case, the Court is obligated to consider “the pleadings and supporting and opposing affidavits stating the factfsf on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a)U. Where a plaintiff provides enough detail in his pleading to “show the factual basis for its claim,” such a pleading “is sufficient to resist a TCPA motion to dismiss.” In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015). A prima facie case is established when the pleadings and evidence 13 In support of this Response, Pohl has attached three sworn documents, the affidavit of Billy Shepherd, Exhibit A; the declaration of Michael Pohl, Exhibit B; and the declaration of Jean C. Frizzell, Exhibit C. 13 supply the “‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’” Id. at 590 (quoting from In re E.I DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)). Pohl’s pleading—the Original Petition—sets forth in abundant detaikl each of the allegations against Kassab. Pohl alleges that he hired defendant Precision Marlketing Group, LLC (“Precision”) to assist him in gathering and preserving evidence and liaicse with Pohl’s clients.14 Precision thereby gained access to Pohl’s confidential and proprietarsy information relating to his client’s identity and contact information as well as his engagsement agreements, contacts with clients and various of Pohl’s proprietary forms.15 Pohl alleges that Defendants Precision and Scott Favre, with the assistance of Defendant Tina Nicholson, stole physical copies of certain information, stole Pohl’s computers, and misappropriated electronic data to which they had access through Precision’s work for Pohl, includinga actual attorney–client fee agreements protected by the attorney–client privilege.16 Precision and Favre entered into a settlement agreement with Pohl in which they agreed to return to Poehl or delete the confidential and proprietary information in their possession, custody and conftrol.17 Precision and Favre hyad secretly entered into an agreement with Kassab and defendants F. Douglas Montague III Cand Montague Pittman & Varnado, P.A. (collectively, “Montague”) to sell Pohl’s stolen confid a ential information and property.18 Kassab and Montague paid Favre $250,000, together with sfufbstantial bonuses knowing that they purchased stolen information and property.19 These spUecific, detailed allegations of each element of conversion, theft of trade secrets, and 14 Original Petition at ¶¶ 19, 20. 15 Id. ¶ 20. 16 Id. ¶ ¶ 20, 21. 17 Id. ¶ 3. 18 Id. ¶ 21. 19 Id. 14 conspiracy are by themselves sufficient to set forth a prima facie case meeting the requirements of the TCPA. TEX. CIV. PRAC. & REM. CODE § 27.005(a); see also Hicks v. Group & Pension Administrators, Inc., 473 S.W.3d 518, 526 (Tex. App.—Corpus Christi 2015, no pet.). Although Pohl’s Original Petition establishes a prima facie case without thke necessity for further inquiry, Pohl also submits affidavits containing substantial prima facie elvidence supporting those claims. As an initial matter, Kassab has admitted certain factual acspects of Pohl’s claims. Kassab states in his Declaration: s Upon learning of the Mississippi Litigation, I and staff ats my office obtained a large amount of information related to the Mississippi Litigastion from the federal court’s online public access to court records system, PACER. I also met with Scott Favre (“Favre”), who I understood became the owner of Prrecision Marketing Group, LLC (“Precision Marketing”) through a purchase agreement he had with the prior owners. Favre and his counsel, Tina Nicholson (“Nicholson”) provided me with information from Precision Marketing’s files, including the names and addresses of Pohl’s former clients or prospective clilents. See Declaration of Lance Christopher KassMab, attached as Exhibit 1 to his Motion. Kassab freely admits that he obtained from Favre and Favre’s counsel, Tina Nicholson, information that included the names and addresses of Pohl’s former clients and prospective clients. Kassab has also admitted, at least implicitly, that he paid Favre. In a pleading filed in Cause No. 2017-38294, Debbie Brumfield d/b/a Lad Enterprises, et. Al. v. Jimmy Williamson, Jimmy Williamson, PC, Williamson & Rusnak, Cyndi Rusnak, Cyndi Rusnak PLLC, and Law Offices of Michael Pohl, in the 189th Judiciacl District Court of Harris County, Texas (the “Brumfield Litigation”), Kassab stated, Prior to the settlement, however, Favre was hired by the undersigned counsel [i.e. Kassab] and a Mississippi law firm to provide consulting services regarding the value of any underlying claim against BP.20 20 See Brumfield Litigation Plaintiffs’ Response, Exhibit 1 to the Shepherd Affidavit, Exhibit A, at 18. 15 On a separate occasion, Kassab described his arrangement with Favre differently, as “an agreement with an expert witness.”21 Kassab does not deny that he (1) obtained from Favre and Precision the confidential information and materials that are the subject of Pohl’s conversion and misappropkriation of trade secrets claims, and (2) that he entered into an agreement with Favre pursuant tol which Kassab paid Favre. Given these admissions, many aspects of Pohl’s prima facie ccase are uncontroverted. Kassab has admitted that he acquired the “names and addresses sof Pohl’s former clients or prospective clients,” which provides prima facie support for ksey elements of Pohl’s claims of conversion and theft of trade secrets. The attached affidavits provide prima facie evidence of the following facts. Scott Favre, PA LLC, the Kassab Law Firm and Montague, Pittman and Varnado, P.A. entered into an Agreement, dated November 10, 2016, eaxecuted by Lance Kassab (the “Favre–Kassab Agreement”).22 The Favre–Kassab Agreement contains many relevant provisions, including: • That Kassab and Montague weill pay Favre an hourly rate of $250, a large per-case fee, and an “upfront advancef pay retainer to Favre forin [sic] the amount of $250,000 to be credited against firsyt fees earned by Favre. This retainer is fully earned at the time of payment and isC not refundable. Subsequent hourly fees are not to be credited against the retainer.”23a • That Kfassab and Montague “shall indemnify and hold harmless Favre for from [sic] any aUnd all costs he incurs in defending claims relating to an/or arising from the disclosure of any client information where such claims are asserted by . . . Michael Pohl. . . . Favre 21 See Kassab’s Letter, dated July 20, 2018, to Timothy J. Baldwin, attached as part of Exhibit 21 to Kassab’s Motion. 22 A copy of the Favre–Kassab Agreement is attached as Exhibit 3 to the Shepherd Affidavit, Exhibit A. 23 See Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit, Exhibit A, p. 1. 16 certifies that he is not aware of any contractual or legal provision that prohibits him from making such disclosure to [Kassab and Montague]”24 • That the parties “agree that this Agreement is confidential and shall remain confidential for all times.”25 k On its face, the Favre–Kassab Agreement proves that Kassab agreed to payC Flavre an enormous upfront payment of $250,000, together with substantial sums over timce. The amount of the payment alone is prima facie evidence that Kassab knew that the confidential information and material he was buying was not publicly known and that it belosnged to Pohl. The Favre–Kassab Agreement also obligates Kassab to indemnify Favre from claims that Pohl might bring—making clear that Kassab contemplated that Pohl might assert such claims at the time he executed the agreement. What possible reason could there be for Kassab to agree to indemnify if Favre owned the materials and inaformation that was the subject of the Favre–Kassab Agreement? Why would indemnity be necessary if the information and materials were publicly known? Again, these facts support Peohl’s prima facie case of misappropriation. Similarly, the requiremefnt in the Favre–Kassab Agreement that the parties keep the agreement confidential suggyests that the parties understood that disclosure of the existence of the agreement and its termCs might raise substantial issues. If the materials and information were publicly known and belonged to Favre, what was the necessity for confidentiality? Each of these facts supports fPohl’s allegation that the materials and information were trade secrets and that Kassab kUnew that the confidential information and material he purchased from Favre was stolen. Favre’s testimony regarding the parties’ performance of the Favre–Kassab Agreement provides additional support for Pohl’s contentions. In a hearing conducted on October 25, 2017 24 Id. p. 3. 25 Id. 17 in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., in the United States District Court for the Southern District of Mississippi, Southern Division (“Walker v. Williamson Litigation”),26 Favre confirmed that Kassab, Montague or their firms had in fact paid the $250,000 to Scott M. Favre, P.A.27 Favre testified that he did not sell attokrney/client fee contracts to Kassab and Montague but instead gave them away to Tina Nlicholson.28 Favre acknowledged that an email, dated December 7, 2016 and sent from Mcontague to Kassab and others, reflected that Favre had called to check that Kassab’s office shad been receiving Dropbox deliveries of contracts over the last several days.29 Favre testifieds that between the time he received the payment of $250,000 and April 2017, he had received no fees, provided no work and exchanged no documents under the Favre–Kassab Agreement.30 Nicholson’s testimony contradicts Favre’s testimony in at least one enlightening way.31 Nicholson testified that Favre did not give hera the Pohl fee contracts; instead, she believes he gave them to “one of her co-counsel in the Texas cases against Mr. Pohl.”32 Favre’s and Nicholson’s testimony and the emails about whiech they testify further support Pohl’s prima facie case of intentional misappropriation, confversion and conspiracy. The emails and testimony confirm that Scott M. Favre, P.A. was iny fact paid $250,000, and that Kassab and Montague understood that they were to receive DCropbox deliveries of contracts. The large amount of the payment to Scott 26 A copy of the relevant portions of the October 25, 2017 hearing transcript in the Walker v. Williamson Litigation is attached hereto as Exhibit 2 to the Shepherd Affidavit. 27 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 63. 28 Id. at 92–93. 29 Id. at 95; see also email dated December 7, 2016, attached as Exhibit 4 to the Shepherd Affidavit. To the extent, if any, that Kassab suggests that this email may be hearsay and therefore inadmissible, Pohl responds that the email is not offered for the truth of the matter asserted. It is instead offered to demonstrate Kassab’s knowledge of the volume and nature of the materials Favre transmitted. 30 Walker v. Williamson Litigation transcript, Exhibit 2 to Shepherd Affidavit at 121–27. 31 See Deposition of Tina Nicholson, dated November 27, 2017, attached as exhibit 5 to the Shepherd Affidavit at 65:11–66:10. 32 Id. at 66:7–9. 18 M. Favre, P.A., in advance of the delivery of contracts to the Dropbox and the absence of any further work by Scott M. Favre, P.A., supports a strong inference that the payment was in fact in exchange for the contracts and not for any future services. Favre’s testimony that he had given the attorney/client fee contracts to Nicholson and Nicholson’s disavowal of that testkimony strongly suggests that each witness hopes to distance him or herself from the ultimate ltransfer to Kassab. This contradiction supports Pohl’s allegation that all parties to the Favre–Kcassab Agreement knew that the files and information being transferred had been converted ors misappropriated. Finally, Kassab’s efforts to explain the purpose of thse Favre–Kassab Agreement also support Pohl’s prima facie case that Kassab knew that the material and information he received from Favre was stolen. As described above, Kassab explained the Favre–Kassab Agreement to this Court as reflecting Favre being hired “to provide consulting services.”33 More recently, Kassab described the agreement as constitutinga “an agreement with an expert witness.”34 Kassab’s inability to stick to an explanation of the agreement suggests that he does not have a legitimate one. The notion that the Favre–Kasseab Agreement constitutes the retention of an expert witness defies all logic. At the time Kassfab purportedly hired Favre, who is not a lawyer, as an “expert,” Kassab did not have a singlye client, much less a case. Without known clients, Favre could not possibly have ethicallyC been engaged as an expert because he could not have determined the presence of potential conflicts. And even though Kassab had no clients and Favre is not a lawyer, Kassab paid Ffafvre $250,000 up front with the promise of additional future payments. The evidence Udemonstrates that the stolen materials and information were available for sale.35 In fact, Favre and his counsel Nicholson had expressly threatened to sell the materials to “Texas barratry 33 See Response to Motion in Brumfield, Exhibit 1 to the Shepherd Affidavit, Exhibit A at 18. 34 See Letter in support of Grievance, attached as part of Exhibit 21 to the Motion. 35 See Five Letters discussing potential sale of information, attached as Exhibit 6 to the Affidavit of Billy Shepherd. 19 lawyers” before they actually did so.36 The more plausible explanation of these facts is that the Favre–Kassab Agreement reflects Favre’s sale and Kassab’s knowing purchase of Pohl’s stolen files. As lawyers, Kassab and Montague knew that the materials they purckhased included confidential information protected by the attorney–client privilege, includinlg actual attorney– client fee agreements.37 Scott Favre has confirmed under oath that he macintained the materials as confidential and protected them as valuable trade secrets.38 s In sum, Pohl’s prima facie evidence in the form osf both pleadings and affidavits demonstrates each element of each of Pohl’s causes of action as set forth below: CONVERSION • The information and materials Kassab obtained was personal property subject to conversion.39 a • Pohl owned the information and materials Kassab obtained.40 • Kassab wrongfully ex e ercised dominion and control over the property.41 • Pohl has incurreOd f actual damages caused by Kassab’s conversion by at a minimum his loss of the intrinsic value of the materials.42 36 Id. 37 Id. ¶ 20. 38 See Affidavit of Scott Favre, filed in Cause No. 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., in the United States District Court for the Southern District of Mississippi, Southern Division, and attached as Exhibit 7 to the Affidavit of Billy Shepherd. 39 Original Petition at ¶¶ 20, 21, 27; Favre-Kassab Agreement, Exhibit 3 to the Shepherd Affidavit; Email, Exhibit 4 to the Shepherd Affidavit. 40 Original Petition ¶¶ 20, 21, 27, 33; Affidavit of Michael Pohl. 41 Original Petition ¶¶ 20, 21, 27; Affidavit of Michael Pohl. 42 Original Petition ¶ 33; Favre Kassab Agreement, Exhibit 3 to Shepherd Affidavit (demonstrating that Kassab placed a value on the materials of at least $250,000; Affidavit of Michael Pohl. 20 MISAPPROPRIATION OF TRADE SECRETS • Pohl owned trade secrets.43 • Pohl maintained that information as a secret, taking substantial measures to maintain its confidentiality.44 k • The information has independent economic value from not beCin l g generally known to, and not readily being ascertainable through proper mceans by, another person who can obtain economic value from the disclosure or use of the information.45 • Kassab obtained the trade secrets with knowlesdge that they had been acquired through improper means—i.e., by theft.46 g • The misappropriation damages Pohl iBn the form of both actual loss and unjust enrichment.47 y • Kassab’s misappropriation was a willful and malicious.48 CONSPIRACY f • Kassab was a membcer of a combination of two or more persons.49 • The agreed objeOct of the combination was to accomplish the unlawful purposes of conversion pand misappropriation of trade secrets.50 • Kassab and the other conspirators committed tortious overt acts to further the object of thie conspiracy.51 43 Original Petition ¶¶ 20, 21, 34; Affidavit of Michael Pohl. 44 Original Petition ¶ 34; Affidavit of Michael Pohl. 45 Original Petition ¶ 34; Affidavit of Michael Pohl. 46 Original Petition ¶¶ 35, 36; Affidavit of Michael Pohl. 47 Affidavit of Michael Pohl. 48 Original Petition ¶ 37; Affidavit of Michael Pohl. 49 Original Petition ¶¶ 27, 35. 50 Original Petition ¶ 38. 51 Original Petition ¶¶ 27, 32, 36, 38. 21 • Pohl suffered injury as a result.52 Pohl denies that Kassab has demonstrated by a preponderance of the evidence that Pohl has asserted a legal action based on related to or in response to Kassab’s exercise of his right to free speech, petition, or association. To the extent that the Court disagrees, Pohkl has provided clear and specific evidence to support his petition, and the Court should denyC Klassab’s Motion. B. ALTERNATIVE MOTION FOR CONTINUANCE ANcD DISCOVERY Kassab filed his Motion on October 24 and set it for hearing twelve days later. While Pohl denies that Kassab has met the threshold necessary for requirinsg him to provide the Court with a prima facie case, and Pohl contends that he has set forth such a case, to the extent that the Court disagrees and believes that additional evidence is necessary, Pohl seeks a continuance of the hearing and an order permitting discovery. The TCPA permits the Court to allow discovery on the Motion, and if discovery is granted, a contianuance of up to 120 days from service of the Motion. TEX. CIV. PRAC. & REM. CODE §§ 27 .004(c) (permitting 120-day continuance), 27.006(b) (permitting discovery). In the event ethat the Court is inclined to grant the Motion, there is good cause for a continuance and discofvery because both oral and written discovery would be relevant to obtaining additional cylear and specific evidence of Pohl’s claims for conversion, misappropriation of trCade secrets, and conspiracy. Given that the contested issues primarily involve Kassab’s state of mind, discovery relating to that issue would be necessary in the form of both documentfary evidence relating to Precision’s sale of materials to Kassab and deposition testimonyU relating to that sale.53 Specifically, the discovery that Pohl would seek includes (1) document discovery from Kassab relating to his purchase of the materials and information, and in particular drafts of the 52 Original Petition ¶ 38; Affidavit of Michael Pohl. 53 Original Petition ¶¶ 27, 38. 22 Favre–Kassab Agreement and correspondence regarding the same; (2) an initial limited deposition of Lance Kassab regarding his purchase of materials and information from Favre. This request for continuance is sworn by the attached Declaration of Jean Frizzell and is sought not for purposes of delay alone but so that justice can be done. k C. KASSAB CANNOT CONCLUSIVELY ESTABLISH HIS DEFCElNSES Kassab may argue that, even though Pohl can establish a prima faccie case, he is still entitled to dismissal because he has established by a preponderance of the evisdence each essential element of certain affirmative defenses, including limitations, attorney ismmunity, and res judicata. None of these defenses is available, and Kassab has not established any of them—let alone by a preponderance of the evidence. 1. The Statute of Limitations has Not Run. Kassab purchased the stolen materaial from Favre by virtue of the Favre–Kassab Agreement, which was executed on November 10, 2016, much less than two years prior to the filing of this suit. All of Pohl’s claimes against Kassab are based on that purchase, and no claim has a limitations period of less tfhan two years. See TEX. CIV. PRAC. & REM. CODE § 16.003(a) (two-year limitation period fyor conversion); TEX. CIV. PRAC. & REM. CODE § 16.010(a) (three-year limitation period for TCUTSA violations); Mayes v. Stewart, 316 S.W.3d 715, 719 (Tex. App.— Houston [1st Dist.] 2006, no pet.). Discussions about other older potential wrongful conduct Kassab may hafvfe engaged in related to Pohl does not alter the limitations analysis for the specific claims PoUhl brought in this case. See Motion at 26–28. It is clear that limitations does not bar Pohl’s claims. 23 2. The Attorney Immunity Doctrine does Not Apply. Kassab claims that as an attorney, he is immune from liability for converting the property of others and misappropriating trade secrets. Here again, Kassab relies on a mischaracterization of Pohl’s claims to invoke the attorney immunity doctrine. That doctrine protectsk attorneys from civil liability for certain actions taken while representing a client in litigation. Clanty Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). Pohl’s suit asserts claims cfor actions taken before Kassab had a single client, much less a client in litigation. Because tshere is no way for Kassab to show that his wrongful actions were within “the scope of clsient representation,” the attorney immunity doctrine on its face does not apply to Pohl’s claims. Id. at 482. 3. Res Judicata Does Not Apply. Kassab makes a contorted argument to contend that Pohl’s claims are barred by res judicata. Kassab was not a party to the Settlemaent Agreement to which he refers, and had he been, Pohl would include him in his breach of contract claim. There is no basis on which to contend that Pohl’s claims against Kassab are “thee same as” the claims settled in the other case, nor that Kassab is a party or privy to a party in thfat case. Res judicata is not an available defense. D. REQUEST FOR AyTTORNEYS’ FEES AND COSTS The TCPA expCressly contemplates an award of costs for the filing of a motion that is frivolous or brought solely for the purpose of delay. TEX. CIV. PRAC. & REM. CODE § 27.009(b). The history anfdf circumstances surrounding Kassab’s Motion conclusively establish that it is frivolousU and Kassab brought it solely for the purpose of delay. As the Court is aware, Kassab was involved in bringing the Brumfield Litigation against Pohl and others alleging barratry and other causes of action. The defendants moved for dismissal 24 pursuant to the TCPA, and the Court denied those motions by order signed November 6, 2017.54 At the time defendants filed those motions, they had a good faith basis on which to believe that the motions were well taken and should be granted, but the Court disagreed and defendants lost their motions. The Anti-SLAPP motions in the Brumfield Litigation are highlky relevant here because of the positions Kassab took in response to those motions and the Colurt’s resolution of those motions. Kassab clearly knew and understood when he filed the incstant Motion that he did not have a basis for his filing and that the Court would undoubtedly dseny his Motion. In response to the Motion to Dismiss in Brumfield, Kassasb asserted a number of arguments including arguing at length that the commercial speech exemption applied to prevent application of the TCPA to his claims.55 In arguing that the commercial speech exemption applied, Kassab argued vigorously that a lawyer’s solicitation of clients constitutes commercial speech not within the protection of the TCPA. In making this aargument, Kassab cited multiple Texas state court cases, Fifth Circuit cases, and cases from out of state.56 Kassab contended that “when the communication concerning provisioen of legal services is made for the primary purpose of attracting clients . . . the communifcation is not a matter of public concern.”57 On that basis, Kassab argued that the commercialy exception applied to exempt his claims from coverage under the TCPA.58 Having succCessfully asserted these arguments in Brumfield, Kassab can hardly suggest that he was unaware of their merit. Neverthf feless, in this case, Kassab contends that Pohl brought suit against him in retaliation for KassaUb’s solicitation of Pohl’s former clients. Kassab argues that Pohl brought his suit against 54 A copy of the Order is attached as Exhibit 8 to the Shepherd Affidavit. 55 Brumfield Response, Exhibit 1 to Shepherd Affidavit, at 33–37. 56 Id. 57 Id. at 22. 58 Id. 25 Kassab “because Kassab legally and ethically contacted Pohl’s former clients.”59 Kassab contends that his solicitation of those clients is protected by the TCPA, and he does not even mention the commercial exception set forth in section 27.010 of the statute. Given that Kassab definitively is aware of the commercial exception and its direct applicability to the claims Pohl bkrings, Kassab’s failure even to mention the exception reveals his bad faith. His Motion is not juslt frivolous, Kassab was demonstrably aware that it was frivolous. There can have been noc legitimate purpose for bringing the Motion apart from creating unnecessary delay. s The Court is empowered in these circumstances to awasrd Pohl his costs and reasonable attorney’s fees in responding to the Motion. As set forth fully in the attached Declaration of Jean Frizzell, those reasonable and necessary fees total $33,352. That total includes the necessary time of lawyers in reviewing Kassab’s Motion, reviewing the TCPA, and researching and drafting a response to the Motion. a Kassab requests costs, attorneys’ fees and sanctions against Pohl and his law firm, Reynolds Frizzell. Kassab is not entietled to any of the relief he requests because his Motion fails. Furthermore, Kassab’s recitatiofn of the alleged basis for his request for sanction contains substantial mischaracterizatiyons of the record of this case and the other cases to which he refers. Kassab get a single facCt right: that he previously sought but was denied sanctions in an unrelated case involving Reynolds Frizzell LLP. Kassab’s effort to relitigate that here is an entirely inappropriate ufsfe of the TCPA and should not be countenanced. 59 Motion at 15. 26 CONCLUSION For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl respectfully request that the Motion be in all respects denied and that they be awarded costs and fees in the amount of $33,352. k Dated: November 1, 2018 Respectfully submitted, l REYNOLDS FRIZZELL LLP c By: /s/ Jean C. Frizzsell Jean C. FrizzeDll State Bar Nso. 07484650 1100 Louisiana Sst., Suite 3500 Houston, Texas 77002 Tel. 713.485r.7200 Fax 713.485.7250 jfrizzell@reynoldsfrizzell.com Attolrneys for Plaintiffs Michael Pohl and Law Office of Michael A. Pohl, PLLC CERTIoFICATE OF SERVICE I hereby certify that a true acnd correct copy of this document was served on all counsel of record pursuant to the Texas Rulefs of Civil Procedure on this 1st day of November, 2018. /s/ Jean C. Frizzell C Jean C. Frizzell 27

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