orders: 13
Data license: Public court records
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| 13 | 2020-09-17 | 2020-09-17 OPN 1stCOA-TCPA-Interlocutory-Appeal SIGNED | appellate | 2020-09-17_OPN_1stCOA-TCPA-Interlocutory-Appeal_SIGNED.pdf | Kassab v. Pohl Court of Appeals of Texas, First District, Houston September 17, 2020, Opinion Issued NO. 01-18-01143-CV Reporter 612 S.W.3d 571 *; 2020 Tex. App. LEXIS 7560 **; 2020 WL 5552459 were based on their alleged statements and LANCE CHRISTOPHER KASSAB, LANCE conduct in their capacity as sellers of legal CHRISTOPHER KASSAB, P.C. D/B/A THE services; [3]-The alleged sale of the lawyer's KASSAB LAW FIRM, TINA NICHOLSON, client list for a profit qualified as conduct that BAKER NICHOLSON, LLP D/B/A BAKER arose out of a commercial transaction NICHOLSON LAW FIRM, SCOTT FAVRE, involving the type of goods the entity provided SCOTT M. FAVRE PUBLIC ADJUSTER, LLC, as a marketing entity. AND PRECISION MARKETING GROUP, LLP, Appellants v. MICHAEL A. POHL AND LAW Outcome OFFICE OF MICHAEL A. POHL, PLLC, Judgment affirmed in part and reversed and Appellees remanded in part. Subsequent History: Petition for review Counsel: For Appellant: Lance C. Kassab, denied by Kassab v. Pohl, 2021 Tex. LEXIS David Eric Kassab, The Kassab Law Firm, 154 (Tex., Feb. 26, 2021) Kevin Dubose, Jessica Z. Barger, E. Marie Jamison, Wright Close & Barger, LLP, Chris C. Appeal dismissed by, Motion dismissed by, As Pappas, Andrew J. Sarne, Kane Russell moot Montague v. Michael A. Pohl & Law Off. Coleman Logan PC, Houston, Texas; Todd of Michael A. Pohl PLLC, 2023 Tex. App. Taylor, Jocelyn A. Holland, Johanson & LEXIS 865 (Tex. App. Houston 1st Dist., Feb. Fairless, LLP, Sugar Land, Texas. 9, 2023) For Appellee: Jean C. Frizzell, Solace Kirkland Prior History: [**1] On Appeal from the 189th Southwick, Reynolds Frizzell LLP, Houston, District Court, Harris County, Texas. Trial Texas. Court Case No. 2018-58419. Judges: Panel consists of Chief Justice Case Summary Radack and Justices Landau and Hightower. Opinion by: Sarah Beth Landau Overview HOLDINGS: [1]-The legal services provider's Opinion conduct that was alleged to be tortious involved the alleged conspiracy to steal, sell/buy, and use the client list for later client [*573] Michael A. Pohl and his law firm, Law solicitation, and its statements or conduct Office of Michael A. Pohl, PLLC, sued four arose out of a commercial transaction groups of individuals and entities for allegedly involving the kind of goods or services it conspiring to steal Pohl's client lists and other provided; [2]-The claims against the sellers property to pursue barratry claims against him. Page 2 of 10 612 S.W.3d 571, *573; 2020 Tex. App. LEXIS 7560, **1 Three of the four groups filed motions to "marketing" in nature. The three men are Scott dismiss under the Texas Citizens Participation Walker, Steve Seymour, and Kirk Ladner. Act.1 They are (1) Lance Christopher Kassab They are alleged to have performed these and Lance Christopher Kassab, P.C. d/b/a The actions individually and as part of an entity, Kassab Law firm; (2) Tina Nicholson and Precision Marketing Group, LLC (PMG). Baker Nicholson, LLP d/b/a Baker Nicholson Pohl represented hundreds of plaintiffs in suits Law Firm; and (3) Scott Favre, Scott M. Favre against BP Petroleum. A list of his actual and Public Adjuster, LLC, and Precision Marketing prospective clients was maintained by PMG for Group, LLP. Their three TCPA motions were its business dealings with Pohl. overruled by operation of law. The movants brought this interlocutory appeal of the denial of their motions. The Mississippi federal litigation We affirm. The Mississippi federal litigation began [**3] in 2014. Walker, Seymour, and Ladner— individually and as PMG—sued Pohl, Pohl's Background law firm, and other Texas attorneys and their This is the fourth wave of litigation involving law firms in federal court in Mississippi. They these parties. We will briefly discuss [*574] claimed they provided "marketing services" for the past litigation that led to this suit as it is Pohl and brought in "millions of dollars of relevant to the issues being decided now. claims each week" to Pohl's firm. They asserted that Pohl did not pay them the agreed fee for their services. They presented their BP Horizon litigation claims as causes of action for fraud, unjust enrichment, and breach of an agreement to The BP Horizon litigation began shortly after pay for services. the BP Deepwater [**2] Horizon oil spill in the Gulf of Mexico in 2010. Michael Pohl, who is a Pohl moved to dismiss the claims against him, Texas attorney, was interested in representing arguing that the alleged contract was illegal Mississippi residents in litigation against BP and unenforceable because, under Mississippi Petroleum. He allegedly entered into a law, it is illegal to accept money to begin or business relationship with three men in prosecute litigation. In other words, PMG Mississippi, agreeing to pay them a finder's fee engaged in illegal solicitation on Pohl's behalf for clients they solicited and a percentage of so the plaintiffs cannot enforce the contract to attorney's fees recovered after the solicited pay for those services. clients' cases settled. There is evidence that the three men contacted people and The federal court denied Pohl's dismissal businesses in Mississippi to determine if they motion in 2016, concluding that the PMG might have a claim against BP, encouraged affiliated plaintiffs never alleged they accepted those people to retain Pohl as their attorney, money to begin or prosecute litigation in and were paid over $5 million in "barratry violation of Mississippi law. They alleged, pass-through money" for their services. There instead, that they were owed money for public are contrary assertions that the services were relations and marketing services. After that ruling, the parties settled all their pending [**4] claims against each other, as reflected in the 1 See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. This suit court's sua sponte judgment of dismissal involved the pre-September 1, 2019 version of the TCPA. Page 3 of 10 612 S.W.3d 571, *574; 2020 Tex. App. LEXIS 7560, **4 entered in April 2017. This suit The barratry litigation The fourth litigation in this series is this suit. Pohl sued Kassab, Favre, PMG, Nichols, and The barratry litigation began in 2017 after others in Harris County district court in 2018. Lance Kassab, a Texas attorney, was alerted He asserts four causes of action: (1) a to the Mississippi federal litigation by a conversion claim against all defendants, Mississippi acquaintance. Kassab specializes alleging they stole his property, including his in legal malpractice claims. After hearing about client list and contracts; (2) a theft-of-trade- Pohl's client-solicitation activities in secrets claim against all defendants, arguing Mississippi, Kassab began researching the that his client list and other stolen proprietary matter. He met with Scott Favre (who had information are trade secrets; (3) a civil bought PMG from Walker and Ladner) and conspiracy claim against all defendants based with Tina Nicholson (Favre's and PMG's legal on these same alleged acts of theft; and (4) a counsel). Favre informed Kassab that, when breach-of-contract claim against just Favre he bought PMG, he acquired files related to and PMG, alleging they breached the Pohl. Favre transferred information from those settlement agreement in the Mississippi PMG files to Kassab, including Pohl's client federal litigation by assisting his former list. Kassab paid Favre. It is disputed whether clients [**6] with their litigation against him. the payment was for Pohl's client list or for Favre's expertise. Pohl's pleading alleges that Favre is the current managing member of PMG, that Pohl After getting Pohl's client list, Kassab prepared engaged PMG to provide "public relations an advertisement letter. According to Kassab's services" and "to screen and liaise with Pohl's affidavit, he obtained pre-approval [*575] clients/prospective clients," and that, "[w]hile from the State Bar of Texas for the working for Pohl, [PMG] gained access to advertisement letter before using it. After the Pohl's confidential and proprietary information advertisement letter was approved, he sent it and property, includ[ing] trade secret to the people on the Pohl client list. The letter materials, that included the identities of Pohl's informed the recipients "that [**5] they may clients/prospective clients as well as their have been a victim of barratry" and may "be detailed contact information . . . [and] actual entitled to file civil claims against Pohl" under attorney-client fee agreements . . . [and] other the Texas civil barratry statute. confidential communications between the clients/prospective clients and Pohl." Pohl Hundreds of Mississippi residents responded contends the defendants "engaged in a to Kassab's advertisement letter. More than scheme pursuant to which they illegally 400 signed representation contracts with obtained, maintained, and used trade secrets Kassab's firm to pursue barratry claims against and other confidential information and property Pohl. Kassab filed four barratry suits against belonging to Pohl." Specifically, Pohl alleges Pohl in Harris County district courts, each with the defendants stole his client list and sold it to multiple named plaintiffs. The barratry litigation Kassab, who then used it to solicit clients to is on-going.2 pursue barratry claims against Pohl. Pohl's pleading also alleges that "Favre and 2 Relying on the materials received during discovery in the barratry litigation, Kassab filed a grievance against Pohl with the State Bar of Texas. There is no indication in the record of the status of that grievance. Page 4 of 10 612 S.W.3d 571, *575; 2020 Tex. App. LEXIS 7560, **6 Precision [PMG] executed a settlement require, by motion, a threshold testing of the agreement with Pohl" at the end of the merits of legal proceedings or filings that are Mississippi federal litigation in which "they deemed to implicate the expressive interests agreed to return to [**7] Pohl certain protected by the statute, with the remedies of information in their and their counsel's expedited dismissal, cost-shifting, and possession . . . [and] to permanently delete[] sanctions for any found wanting." Serafine v. such electronically-stored information." In the Blunt, 466 S.W.3d 352, 369 (Tex. App.— settlement agreement, according to Pohl, Austin 2015, no pet.) (Pemberton, J., Favre and PMG also "warranted that they had concurring); see Tex. Civ. Prac. & Rem. Code not caused any suit or action to be filed §§ 27.003-.005, .009. against Pohl." Pohl's suit seeks damages in excess of $1 A. TCPA's dismissal provision and relevant million. statutory definitions The defendants answered. They grouped into Section 27.003 of the TCPA provides that a three subsets, and each subset filed a TCPA party may move to dismiss a legal action that motion to dismiss, alleging that Pohl filed his "is based on, relates to, or is in response to suit in retaliation for their disclosure of his [that] party's exercise of" one of three rights: alleged barratry activity. They argued that the free speech, petition, or association. Id. § TCPA applies because Pohl's claims relate to 27.003(a). The Legislature statutorily defined their recognized statutory rights and that Pohl the three sets of rights protected by TCPA could not establish a prima facie case for his summary-dismissal procedures. Id. § causes of action. Their motions sought 27.001(2) (defining "exercise of the right of dismissal [*576] of Pohl's claims. The trial association" as "a communication between court held hearings on the motions to dismiss individuals who join together to collectively but did not rule. All three dismissal motions express, promote, pursue, or defend common were overruled by operation of law. The interests"); § 27.001(3) (defining "exercise of movants have appealed. the right of free speech" [**9] as "a communication made in connection with a matter of public concern"); § 27.001(4) Texas Citizens Participation Act (defining "exercise of the right to petition" as "a communication in or pertaining to" various The movants sought dismissal of Pohl's claims specifically listed proceedings, including "a against them under the Texas Citizens judicial proceeding," as well as the more Participation Act. See Tex. Civ. Prac. & Rem. general category of "any other communication Code §§ 27.001-.011. The TCPA is found in that falls within the protection of the right to Chapter 27 of the Civil Practice and Remedies petition government under the Constitution of Code, which is titled "Actions Involving the the United States or the constitution of this Exercise [**8] of Certain Constitutional state"). Rights." The TCPA's purpose is to protect "citizens who petition or speak on matters of public concern from retaliatory lawsuits that B. TCPA's shifting burdens seek to intimidate or silence them." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). It When a movant seeks dismissal under the does so by creating a "set of procedural TCPA, the movant has the initial burden to mechanisms through which a litigant may Page 5 of 10 612 S.W.3d 571, *576; 2020 Tex. App. LEXIS 7560, **9 show by a preponderance of the evidence that burden-shifting requirements by showing that the nonmovant has asserted a "legal action" one of the TCPA's several exemptions applies. that is based on, relates to, or is in response to See Tex. Civ. Prac. & Rem. Code § 27.010. the movant's exercise of one of the three rights Among them is the commercial-speech delineated in the statute. Id. § 27.005(b). If the exemption. Id. § 27.010(b).3 It provides that the movant meets that burden, the burden shifts to TCPA does not apply to, and therefore is not a the nonmovant. vehicle to achieve dismissal of, a legal action brought against a person "primarily engaged in The nonmovant has the burden to establish by the business of selling or leasing goods or clear and specific evidence a "prima facie case services," if the statement or conduct for each essential element of the claim in connected to the exercise of [**11] one of the question." Id. § 27.005(c). This generally statutory rights "arises out of the sale or lease "requires only the minimum quantum of of goods, services . . . or a commercial evidence necessary to support a rational transaction in which the intended audience is inference that the allegation of fact is true." In an actual or potential buyer or customer." Tex. re E.I. DuPont de Nemours & Co., 136 S.W.3d Civ. Prac. & Rem. Code § 27.010(b). The party 218, 223 (Tex. 2004) (orig. proceeding) asserting the commercial-speech exemption (internal quotation marks and citation [**10] has the burden to prove that the exemption omitted). "Prima facie evidence is evidence applies to the communications at issue. that, until its effect is overcome by other Schmidt v. Crawford, 584 S.W.3d 640, 652-53 evidence, will suffice as proof of a fact in (Tex. App.—Houston [1st Dist.] 2019, no pet.). issue." Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (citation omitted) D. Standard of review (disapproved of on other grounds, In re Lipsky, 460 S.W.3d at 587-88); cf. Kerlin v. Arias, 274 We review a trial court's ruling on a TCPA S.W.3d 666, 668 [*577] (Tex. 2008) (per motion to dismiss de novo. Porter-Garcia v. curiam) (explaining that summary-judgment Travis Law Firm, P.C., 564 S.W.3d 75, 83 movant's presentation of prima facie evidence (Tex. App.—Houston [1st Dist.] 2018, pet. of deed's validity established right to summary denied). We consider the pleadings and judgment unless nonmovants presented evidence in the light favorable to the evidence raising fact issue related to deed's nonmovant. Id. at 84; Dolcefino v. Cypress validity). Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Dismissal may be required, despite the nonmovant's evidence proffered to meet his To the extent resolution of this appeal turns on prima facie burden, if the movant establishes construction of the TCPA, we review that de "by a preponderance of the evidence each novo as well. Lippincott v. Whisenhunt, 462 essential element of a valid defense to the S.W.3d 507, 509 (Tex. 2015). When nonmovant's claim." Id. § 27.005(d). construing the TCPA, as with any other statute, our objective is to give effect to the C. Exemptions to applicability of TCPA dismissal procedures 3 Case law sometimes refers to the exemption as an exception. See Bejarano v. Dorgan, No. 03-19-00182-CV, A nonmovant plaintiff can avoid the TCPA's 2019 Tex. App. LEXIS 8364, 2019 WL 4458798, at *2 (Tex. App.—Austin Sept. 18, 2019, no pet.). Page 6 of 10 612 S.W.3d 571, *577; 2020 Tex. App. LEXIS 7560, **11 legislative intent, looking first to the statute's 684, 688 (Tex. 2018) (per curiam). Pohl sued plain language. Id. If that language is the three sets of movants for their role in the unambiguous, "we interpret the statute alleged theft and sale of his client information according to its plain meaning." Id. to Kassab that enabled Kassab to contact Additionally, we construe the TCPA "liberally to those clients to provide legal services in effectuate its purpose and intent fully." Tex. pursuit of barratry claims against Pohl. In our Civ. Prac. & Rem. Code § 27.011(b); see State view, all four Castleman factors are met for ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. each set of defendant-appellants. We begin 2018). with the [**13] Kassab defendants. The Commercial-Speech Exemption A. The Kassab defendants Applies Pohl's petition alleges that Kassab bought The commercial-speech exemption provides Pohl's client list from PMG so that Kassab that the TCPA does not apply to a suit against could send advertisements to Pohl's former a defendant who is "primarily engaged in the clients and solicit them to become Kassab's business of selling or leasing goods or clients in barratry suits against Pohl. services, if [**12] the statement or conduct Kassab and his firm are in the business of arises out of the sale or lease of goods, selling legal services. Other cases have services . . . or a commercial transaction in recognized that attorney efforts to engage which the intended audience is an actual or prospective clients and provide them with paid potential buyer or customer." Tex. Civ. Prac. & legal services meet the first element of the Rem. Code § 27.010(b). The Texas Supreme Castleman test. See Miller Weisbrod, L.L.P. v. Court has identified four elements to this Llamas-Soforo, 511 S.W.3d 181, 189 (Tex. exemption: App.—El Paso 2014, no pet.) (stating that (1) the defendant (TCPA movant) was "case law appears settled [that] lawyer primarily engaged in the business of selling advertising is commercial speech") (internal or leasing goods or services; quotation marks omitted); see also NCDR, [*578] (2) the defendant made the L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d statement or engaged in the conduct on 742, 754-55 (5th Cir. 2014) (applying Texas which the plaintiff's claim is based in its law). capacity as a seller or lessor of those goods and services; According to Pohl's allegations, the Kassab defendants arranged with the PMG (3) the statement or conduct at issue arose defendants, with the help of the Nicholson out of a commercial transaction involving attorney defendants, to obtain, maintain, and the kind of goods or services that the use Pohl's client list and his other proprietary defendant provides; and information for their profit. Kassab allegedly entered into a business transaction to (4) the intended audience of the statement purchase the client list and then sent or conduct were actual or potential advertisements to those on the list to offer his customers of the defendant for the kind of legal services to the potential clients. Thus, the goods or services the defendant provides. claims against the Kassab defendants are Castleman v. Internet Money Ltd., 546 S.W.3d based on their alleged statements and conduct Page 7 of 10 612 S.W.3d 571, *578; 2020 Tex. App. LEXIS 7560, **13 in their capacity as sellers [**14] of legal The commercial-speech exemption applies to services. See Miller Weisbrod, 511 S.W.3d at statements and conduct. Kassab's conduct 191 (concluding that attorney advertisement to that is alleged to be tortious involved the people who might have a medical malpractice alleged conspiracy to steal, sell/buy, and use claim against a specific physician identified in the client list for later client solicitation. We the advertisement was created "primarily to conclude Kassab's statements or conduct attract clients allegedly injured by [the arose out of a commercial transaction identified physician]"); NCDR, 745 F.3d at 745- involving the kind of goods or services Kassab 53 (applying Texas law, holding that attorneys provides. See Robert B. James, DDS, Inc. v. who advertised about a national chain of Elkins, 553 S.W.3d 596, 605 (Tex. App.—San dental clinics being under government Antonio 2018, pet. denied) (stating that courts investigation and possibly engaging in of appeals have construed phrase "arising out unnecessary and harmful dental work on of" in TCPA's commercial-speech exemption children were "primarily engaged in selling broadly to include statements and conduct that legal services to clients and that the ads are "ancillary to" a commercial transaction). offered those services to potential customers"). Finally, the intended audience of the Kassab Further, the alleged purchase of Pohl client list defendants' statement or conduct were for those clients' contact information, followed individuals with potential [**16] legal claims by the mailing of attorney advertisements to who Kassab sought to represent in barratry those individuals about specific types of claims suits against Pohl. These were Kassab's they might be able to pursue against a potential clients to whom he offered the kind of specifically identified attorney, qualifies as legal services he provides. See id. statements or conduct that arose out of a Thus, the commercial-speech exemption commercial transaction involving the type of applies as to the claims against the Kassab legal services Kassab provides. See Miller defendants, leaving the TCPA summary- Weisbrod, 511 [*579] S.W.3d at 191 dismissal procedures unavailable to that (concluding that attorneys' speech "arose from subset of defendant/movants. See Castleman, the sale of their legal services to potential 546 S.W.3d at 691 (under different facts, customers" reached through their attorney concluding that nonmovant's statements did advertisements). not arise out of his sale of goods or services Kassab argues that Pohl's claims do because he was "not pursuing business for not [**15] arise out of his conduct because the himself" when he made the statements). alleged theft of the client list would have preceded the advertisements to Pohl's former clients, who were Kassab's potential clients. B. The Nicholson defendants We do not agree that the alleged tortious acts Pohl's petition alleges that Tina Nicholson and can be divided in such a way to avoid the her law firm assisted PMG, as its counsel, in commercial-speech exemption. Kassab was selling his client list to Kassab and then sued for buying an allegedly stolen client list entered into a business relationship with that identified people solicited by another Kassab to assist in providing legal services to attorney in the past and then targeting those the identified clients for a shared fee. same people to sue the other attorney. Pohl alleges a conspiracy to undertake this scheme. Nicholson and her firm are in the business of selling legal services. Attorney efforts to Page 8 of 10 612 S.W.3d 571, *579; 2020 Tex. App. LEXIS 7560, **16 engage prospective clients and provide them list to solicit shared clients meets this fourth with paid legal services meet the first element requirement. The intended audience were of the Castleman test. See Miller Weisbrod, actual or potential customers of Nicholson for 511 S.W.3d at 189 (stating that "case law the legal services she provides. See id. appears settled [that] lawyer advertising is commercial speech") (internal quotation marks Nicholson argues that Pohl's allegations are omitted). not true and that Nicholson never became an "attorney of record" in the barratry suits According [**17] to Pohl's allegations, the Kassab brought against Pohl. Nicholson does Nicholson defendants arranged with the PMG not point to any record evidence in support of defendants to obtain, maintain, and use Pohl's this position. And we view the pleadings and client list and his other proprietary information evidence in the light most favorable to the non- for their profit. Nicholson allegedly facilitated movant. Dolcefino, 540 S.W.3d at 199 (citing the sale to Kassab and became his co-counsel Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d in pursuing legal claims against Pohl on behalf 210, 214 (Tex. App.—Houston [1st Dist.] 2014, of Pohl's former clients, for a legal fee. Thus, no pet.)); MediaOne, L.L.C. v. Henderson, 592 the claims against the Nicholson defendants S.W.3d 933, 939 (Tex. App.—Tyler 2019, pet. are based on their alleged statements and denied). conduct in their capacity as sellers of legal services. See Miller Weisbrod, 511 S.W.3d Nicholson seeks to segregate its alleged [*580] at 191; NCDR, 745 F.3d at 745-53; cf. activities to argue that it did not make Toth v. Sears Home Improvement Prods., Inc., statements about its own legal services to 557 S.W.3d 142, 154 (Tex. App.—Houston potential buyers of those services when it [14th Dist.] 2018, no pet.) (concluding that allegedly assisted PMG with the sale of the speech did not fall within commercial-speech client list to Kassab. We do not agree that the exemption because nonmovant had not alleged conspiracy scheme can be severed to "proposed a commercial transaction" and did avoid the commercial-speech exemption. not make statements to secure business for Under Pohl's allegations, these parties himself). conspired to place his client list in Kassab's hands so that Kassab could pursue barratry The alleged facilitation of the sale of Pohl's claims against Pohl. The Nicholson client list to Kassab as PMG's counsel, defendants' alleged conduct in the followed by the creation of a business conspiracy [**19] touched on all aspects of relationship with Kassab to become Kassab's the transfer and use of Pohl's client list to co-counsel and share in the representation of obtain legal clients for Kassab, including the identified potential clients for a shared fee, Nicholson's alleged role as Kassab's co- qualify as statements or conduct that arose out counsel in the barratry suits. See Elkins, 553 of a commercial transaction involving the type S.W.3d at 605 (noting broad reading of of legal services Nicholson provided. See commercial-speech exemption phrase "arising Miller Weisbrod, 511 S.W.3d at 191. out of" by courts of appeals). Finally, the intended audience of the Nicholson Thus, the commercial-speech exemption defendants' statement or conduct were, [**18] applies as to the claims against the Nicholson first, Kassab, and then Pohl's former clients. defendants, leaving the TCPA summary- Nicholson's alleged involvement in selling the dismissal procedures unavailable to that client list to Kassab and then using the client subset of defendant/movants. Page 9 of 10 612 S.W.3d 571, *580; 2020 Tex. App. LEXIS 7560, **19 The PMG defendants argue that, even if the C. The PMG defendants commercial-speech exception applies to PMG, Pohl has identified no speech or conduct by Pohl's petition alleges that PMG, now owned Defendant Scott M. Favre P.A., L.L.C. or by Favre, stole his client list and sold it for a Defendant Scott Favre, individually—separate profit to Kassab. from the speech or conduct of PMG—that proposed a business transaction involving the According to Favre's affidavit, PMG's sale of goods or services to intended marketing lists contain the names of customers. In other words, the PMG thousands of people who had been Pohl's defendants argue that Pohl failed to show why clients or from whom Pohl solicited business. an exemption [**21] to the TCPA applies to Favre averred that these lists have monetary each and every defendant/movant within the value and constitute "one of Precision's most PMG group of defendants. But, in the same valuable assets." According to Favre, PMG vein, the PMG defendants failed to argue why likely would have the opportunity to sell the the TCPA would apply to each of them same client list to another buyer. This separately from the other two. At all times, evidence meets the requirement that PMG be when arguing for application of the TCPA, the primarily engaged in the business of selling PMG defendants assert that they, collectively, goods—here, client lists. exercised their protected rights, thereby [*581] According to Pohl's allegations, the invoking the TCPA. Having chosen to rely on PMG defendants obtained, maintained, and their collective activity to invoke the TCPA, used Pohl's client [**20] list for their profit. they seek to burden Pohl with the added PMG allegedly sold Pohl's client list to Kassab requirement of showing application of the for Kassab to generate potential clients. Thus, exemption to each separately. The PMG the claims against the PMG defendants are defendants have provided no legal authority to based on their alleged statements and conduct support aggregate analysis for coming within in their capacity as sellers of the identified the TCPA but segregation for purposes of goods. See ETX Successor Tyler v. Pridgeon, applying the TCPA's listed exemptions. See 570 S.W.3d 392, 398 (Tex. App.—Tyler 2019, TEX. R. APP. P. 38.1(i). no pet.). The commercial-speech exemption applies to the claims against the PMG defendants, The alleged sale of Pohl's client list for a profit leaving the TCPA summary-dismissal qualifies as conduct that arose out of a procedures unavailable to that subset of commercial transaction involving the type of defendant/movants as well. goods PMG provides as a marketing entity. See Woodhull Ventures 2015, L.P. v. Megatel Homes III, LLC, No. 03-18-00504-CV, 2019 Conclusion Tex. App. LEXIS 6276, 2019 WL 3310509, at *3 (Tex. App.—Austin July 24, 2019, no pet.). Because the commercial-speech exemption Additionally, the intended audience of the applies to all three groups of defendant- PMG defendants' statements or conduct was movants, we conclude there was no error in Kassab, who became a customer of PMG's the denial of all three TCPA motions to when Kassab allegedly bought the client list for dismiss. We have not analyzed and offer no his own use. The goods or services allegedly view on the underlying claims in this bought were the type of goods or services suit. [**22] We hold merely that the TCPA PMG provides. Page 10 of 10 612 S.W.3d 571, *581; 2020 Tex. App. LEXIS 7560, **22 summary-dismissal procedures are not available to these defendant-movants based on the claims asserted against them. We affirm the denial of the motions to dismiss and remand the suit to the trial court for additional proceedings. Sarah Beth Landau Justice End of Document |