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14	2020-12-21	2020-12-21 PET Kassab-Petition-for-Review-SCOTX FILED	appellate	2020-12-21_PET_Kassab-Petition-for-Review-SCOTX_FILED.pdf	FILED 20-0874 12/21/2020 7:03 PM tex-49151702 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK No. 20-0874 IN THE SUPREME COURT OF TEXAS LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, PC D/B/A THE KASSAB LAW FIRM Petitioners, MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC Respondents. On Review from the First Court of Appeals No. 01-18-01143-CV KASSAB PETITIONERS’ PETITION FOR REVIEW Lance Christopher Kassab State Bar No. 00794070 lance@kassab.law David Eric Kassab State Bar No. 24071351 david@kassab.law THE KASSAB LAW FIRM 1214 Elgin Street Houston, Texas 77004 Phone (713) 522-7400 Facsimile (713) 522-7410 Attorneys for Petitioners Lance Christopher Kassab and The Kassab Law Firm IDENTITY OF PARTIES AND COUNSEL Petitioners: Lance Christopher Kassab and Lance Christopher Kassab PC, d/b/a The Kassab Law Firm Counsel for Petitioners: Lance Christopher Kassab David Eric Kassab THE KASSAB LAW FIRM 1214 Elgin Street Houston, Texas 77004 Trial and Appellate Counsel Kevin Dubose ALEXANDER DUBOSE & JEFFERSON LLP 1844 Harvard St. Houston, Texas 77008 Appellate Counsel at Court of Appeals George “Buck” Cire THE CIRE LAW FIRM 1770 Saint James Place Suite 350, Houston, Texas 77057 Trial Counsel Petitioners: Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm Counsel for Petitioners: Jessica Z. Barger E. Marie Jamison WRIGHT CLOSE & BARGER, LLP One Riverway, Suite 2200 Houston, Texas 77056 Appellate Counsel Chris C. Pappas Andrew J. Sarne KANE RUSSELL COLEMAN LOGAN PC 5051 Westheimer Road, Suite 1000 Houston, Texas 77056 Trial and Appellate Counsel Respondents: Michael Pohl and Law Office of Michael A. Pohl, PLLC Counsel for Respondents: Solace Kirkland Southwick REYNOLDS FRIZZELL LLP 1100 Louisiana St., Suite 3500 Houston, Texas 77002 Appellate Counsel Jean C. Frizzell REYNOLDS FRIZZELL LLP 1100 Louisiana St., Suite 3500 Houston, Texas 77002 Trial Counsel Other Parties: Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing Group, LLC Counsel for Other Parties: Todd Taylor Jocelyn A. Holland JOHANSON & FAIRLESS 1456 First Colony Boulevard Sugar Land, Texas 77479 Former Counsel at Appellate Court (motion to withdraw pending) Other Parties: F. Douglas Montague III and Montague Pittman & Varnado, P.A. Counsel for Other Parties: Dale Jefferson Raul Suazo Kevin Cain MARTIN, DISIERE, JEFFERSON & WISDOM, LLP 808 Travis Street, 20th Floor Houston, Texas 77002 Trial Counsel TABLE OF CONTENTS Identity of Parties and Counsel .................................................................................. i Table of Contents ..................................................................................................... iii Index of Authorities ................................................................................................. iv Statement of the Case ................................................................................................ 1 Statement of Jurisdiction ........................................................................................... 2 Issue Presented .......................................................................................................... 3 Reasons to Grant the Petition .................................................................................... 4 Statement of the Facts ............................................................................................... 5 Summary of Argument ........................................................................................... 10 Argument................................................................................................................. 11 A. The court of appeals broadly applied the commercial-speech exemption to conduct that merely leads to the subsequent sale of services rather than to conduct arising out of the sale of services ......... 12 B. The court of appeals should have followed Castleman rather than distinguishable opinions from other courts . .......................................... 18 Prayer for Relief ...................................................................................................... 22 Certificate of Compliance ....................................................................................... 23 Certificate of Service .............................................................................................. 23 Index of Appendix .................................................................................................. 24 iii INDEX OF AUTHORITIES Cases Page(s) ADB Interest, LLC v. Wallace, 606 S.W.3d 413 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) ................. 12 Bos v. Smith, 556 S.W.3d 293 (Tex. 2018) ............................................................................. 13 Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) ......................................................................passim Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127 (Tex. 2019) ............................................................................... 2 Dickens v. Jason C. Webster, P.C., 2018 Tex. App. LEXIS 10893 (Tex. App. – Dallas, Dec. 31, 2018, no pet. h.) ............................................ 15 Kassab v. Pohl, 2020 Tex. App. LEXIS 7560, 2020 WL 5552459 (Tex. App.—Houston [1st Dist.] Sept. 17, 2020, pet. filed) ......................passim MacFarland v. Le-Vel Brands LLC, 2017 Tex. App. LEXIS 2569, 2017 WL 1089684 (Tex. App.—Dallas Mar. 23, 2017, no pet.) ................................................ 15, 16 Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181 (Tex. App.—El Paso 2014, no pet.) ........................... 19, 20, 21 NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742 (5th Cir. 2014) ................................................................. 19, 20, 21 Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) ........ 17, 21 State ex rel. Best v. Harper, 562 S.W.3d 1 (Tex. 2018) .................................................................................. 12 Toth v. Sears Home Improvement Products, Inc., 557 S.W.3d 142 (Tex. App.—Houston [14th Dist.] 2018, no pet.) .................. 16 Rules Texas Disciplinary Rule of Professional Conduct R. 8.03(a) .............................................................................................................. 8 Statutes Texas Civil Practice & Remedies Code § 27.005(a) ............................................................................................................ 1 § 27.008(a) ............................................................................................................ 1 § 27.010(b) .................................................................................................... 10, 11 Texas Government Code § 22.001(a) ............................................................................................................ 2 Texas Penal Code § 38.12 ................................................................................................................... 5 STATEMENT OF THE CASE Nature of the Case: This is a Texas Citizens Participation Act (“TCPA”) case concerning the applicability of the commercial-speech exemption. Pohl1 is a lawyer who filed a retaliatory lawsuit against Kassab2 and others3 for theft of trade secrets, conversion, and civil conspiracy. 1CR4-27; 2CR890-903;4 App. Tab 1.5 Trial Court: 189th Judicial District Court of Harris County, Texas; the Honorable Judge Scot Dollinger. Trial Court Kassab moved to dismiss the claims pursuant to the TCPA. Disposition: 1CR62-679; 3SCR6-90;1RR1-45. The trial court failed to rule on the motion within 30 days, as required by statute, TEX. CIV. PRAC. & REM. CODE § 27.005(a), so the motion was denied by operation of law. Id. at § 27.008(a). Court of Appeals: The First Court of Appeals in Houston affirmed denial of the motion to dismiss. Kassab v. Pohl, 2020 Tex. App. LEXIS 7560, 2020 WL 5552459 (Tex. App.—Houston [1st Dist.] Sept. 17, 2020, pet. filed). The opinion was authored by Justice Sarah Beth Landau, which was joined by Chief Justice Sherry Radack and Justice Richard Hightower. Court of Appeals The court of appeals affirmed, reasoning that the Disposition: commercial-speech exemption applied. App. Tab 2 (opinion); App. Tab 3 (judgment). 1 Respondents Michael Pohl and Law Office of Michael A. Pohl, PLLC. 2 Petitioners Lance Christopher Kassab and Law Offices of Lance Christopher Kassab, PC. 3 Petitioners Tina Nicholson, Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm, Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing Group, LLC and nonparties F. Douglas Montague III and Montague Pittman & Varnado, P.A. 4 References to the Clerk’s Record are made herein as “[volume]CR[page(s)]” and designations to the Supplemental Clerk’s Record are made herein as “[volume]SCR[page(s)].” 5 References to the attached Appendix are “App. [tab number].” STATEMENT OF JURISDICTION This Court has jurisdiction because this appeal presents legal questions of substantial importance to the jurisprudence of the State and statutory interpretation questions under the TCPA.6 See TEX. GOV’T CODE § 22.001(a). The court of appeals’ interpretation and application of the commercial-speech exemption conflicts with both the statute and this Court’s opinion in Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018). The court of appeals’ decision reflects increasing discord regarding the proper application of the commercial-speech exemption. This Court should grant review to provide clarity regarding this frequently litigated statutory exemption. 6 The TCPA was amended after this lawsuit was filed, but the prior version controls this case. See Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 129 (Tex. 2019). Accordingly, all citations will be the prior version of the TCPA, a copy of which is attached hereto in App. Tab 4. ISSUE PRESENTED Does the court of appeals opinion conflict with Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) to erroneously conclude that the commercial- speech exemption applied to Pohl’s claims against Kassab? REASONS TO GRANT THE PETITION In 2018, this Court noted that “Texas courts of appeals are divided on the proper construction of the commercial-speech exemption,” which it described as “no model of clarity.” Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). Although Castleman resolved a key point of disagreement among the courts at that time, in the years since the opinion, courts have again diverged regarding the application of the often-raised exemption. Here the court of appeals did so by court concluding that conduct merely leading to the subsequent sale of services is sufficient to invoke the commercial-speech exemption. In other words, the lower courts concluded that the conduct at issue did not need to “arise out of” a commercial transaction involving the kind of goods or services that the defendant provides but could occur before the services being provided take place. The Court should grant review to correct this over-expansive interpretation of the commercial-speech exemption. Without review, the opinion will have a grave effect on future Texas jurisprudence. STATEMENT OF THE FACTS In October 2014, three non-lawyer Mississippi residents, Scott Walker (“Walker”), Kirk Ladner (“Ladner”) and Steve Seymour (“Seymour”), and their related entities, including Precision Marketing Group, LLC (“Precision”), filed suit against Pohl and others in Mississippi federal court (the “Mississippi Litigation”).7 1CR117-168. There, Precision, Walker, Ladner and Seymour alleged that: (1) they had a joint venture with Pohl to sign up clients with economic loss claims stemming from the BP Deepwater Horizon oil spill and clients involved in tragic auto accidents; (2) that they successfully obtained these clients for Pohl; and (3) that Pohl breached their agreement by not paying them their agreed-upon fee, including their agreed share of Pohl’s attorney’s fees for referring these clients to Pohl. 1CR148, 153. The evidence presented in the Mississippi Litigation established that Pohl engaged in barratry. See TEX. PEN. CODE § 38.12 (defining barratry generally as the improper solicitation of clients). During that litigation, Walker testified that Pohl retained him and Precision to “provide marking services to auto accident victims[.]” 1CR171. Walker testified that although he and Pohl called it “marketing services” 7 Cause No. 14-cv-381-KS-JCG; Scott Walker, et al. v. Michael A. Pohl, et al.; In the United States District Court for the Southern District of Mississippi, Southern Division. or “marketing money,” it was “clear to [him] it was barratry.” 1CR178. In fact, Walker considered himself and his company “a pass-through for barratry money.” 1CR179. All told, Walker, Ladner and Precision received over $5 million in “barratry pass-through money” from Pohl and other lawyers to solicit potential clients, both auto-accident victims and those involved in the BP litigation. 1CR176. The runners used this money to pay contract workers to solicit clients. 1CR179. The runners would locate and instruct contract workers on how to accomplish the solicitation. 1CR177. The runners trained “40 or 50 people” on how to “go out and solicit contracts” on behalf of Pohl. 1CR179. In May 2016, during the Mississippi Litigation, an insurance adjuster named Scott Favre (“Favre”) purchased Precision and all the company’s assets, including Precision’s claims against Pohl in the Mississippi Litigation. 1CR640; 3SCR137. Favre and Precision were represented in the Mississippi Litigation by Texas lawyer, Tina Nicholson, and her firm, Baker Nicholson, LLP (“Nicholson”). 1CR8, 110, 342. Pohl asserted counterclaims in the Mississippi Litigation alleging that Walker and Precision (and other unknown defendants) converted his property. 3SCR16-18. Most notably, Pohl moved to dismiss the claims against him, admitting that the agreements between him and the runners were illegal and unenforceable. 1CR336-339. Specifically, Pohl argued that under both Texas and Mississippi law “it is illegal for a non-lawyer to accept or agree to accept money to improperly solicit clients for a lawyer.” 1CR338. The Mississippi federal court rejected Pohl’s contention, stating that the agreements to solicit clients would only be a violation of Texas law and Texas disciplinary rules, which did not apply to Precision, a Mississippi company, and Walker and Ladner, Mississippi residents. 1CR349-350. After failing to obtain summary dismissal, Pohl settled the Mississippi Litigation with all parties, including Favre and Precision, hoping to forever conceal his barratry operation. 1CR353-354. Lance Christopher Kassab (“Kassab”) is a licensed Texas attorney who has been practicing law for almost twenty-five years. 1CR109. Kassab graduated from law school with honors and was editor-in-chief of law review. Id. Kassab is a former intern and briefing attorney for this Court and a former intern for the Texas Supreme Court. Id. For more than twenty years, Kassab’s practice has focused primarily on representing victims of legal malpractice and publicly exposing attorney misconduct. Id. Kassab was tipped off to the allegations in the Mississippi Litigation by an acquaintance, F. Douglas Montague of the Mississippi law firm Montague Pittman & Varnado, PA (“Montague”), who was also an acquaintance of Favre and Nicholson. 1CR109-110. Kassab obtained information related to the Mississippi Litigation from the federal court’s online system, PACER. 1CR110. Kassab also associated Precision and its owner, Favre, and its counsel, Nicholson, and obtained information from them, including the names and addresses of Pohl’s former clients or prospective clients. 1CR109-110. Kassab used the marketing lists he obtained to legally notify individuals he believed were victims of unethical conduct. 1CR110. Hundreds of individuals responded, indicating they had been personally solicited to hire Pohl relating to their auto accident or BP claims. Id. Kassab agreed to represent these clients, and more than 400 individuals hired Kassab to represent them against Pohl. Id. Kassab filed four petitions on behalf of these barratry victims in Harris County, Texas (the “barratry lawsuits”). 1CR379-576. These petitions communicated matters of public concern: that Pohl conspired to commit unethical solicitation known as barratry. See id.; see also 1CR110. After reviewing the evidence obtained from the Mississippi Litigation, Kassab believed he had a duty to file a grievance against Pohl,8 and he did. Id. Kassab also filed a grievance against Pohl on behalf of one of his clients. Id. In the grievances, Kassab and his client expressed matters of public concern relating to Pohl’s legal services in the marketplace and petitioned the State Bar of Texas to reprimand and discipline Pohl in order to protect the citizens of Texas and other states. Id.; see also 1CR 578-638. 8 See TEX. DISC. R. PROF’L COND. 8.03(a) (except in circumstances which do not apply here, “a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.”). Thereafter, Pohl sued Kassab, Precision, Nicholson, Favre and Montague, alleging breach of contract, theft of trade secrets, conversion and civil conspiracy. App. Tab 1; 1CR4-14; 2CR890-903. Specifically, Pohl alleged that these parties were “acting in combination with the agreed objective” to misappropriate his trade secrets and convert the marketing lists and attorney-client contracts that Precision obtained. See id. Pohl alleges Favre and Precision, with Nicholson’s assistance, converted this property and provided it to Kassab and Montague in order to convince Pohl’s former clients “to bring cases against Pohl for alleged barratry and other claims.” 2CR898. Kassab denied the allegations and immediately moved to dismiss the lawsuit pursuant to the TCPA. 1CR75-679; 3SCR6-90. Nicholson and Favre then filed their own motions to dismiss based on the TCPA. 2CR 867-880; 3SCR136-223. The timely hearing was conducted on Kassab’s motion to dismiss. 1RR. The trial court did not rule on the motion within thirty days and the motion was denied by operation of law. TEX. CIV. PRAC. & REM. CODE § 27.008(a). Kassab, Nicholson and Favre appealed, but the court of appeals affirmed, concluding that the commercial-speech exemption applied. See Kassab v. Pohl, 2020 Tex. App. LEXIS 7560, 2020 WL 5552459, at 21-22 (Tex. App.—Houston [1st Dist.] Sept. 17, 2020, pet. filed). SUMMARY OF ARGUMENT The court of appeals erred by interpreting and applying the commercial- speech exemption broadly when exemptions to the TCPA are to be narrowly construed and applied. The commercial-speech exemption plainly applies only when the conduct forming the basis of the legal action “arises out of” the sale of goods or services or a commercial transaction in which the intended audience of the defendant’s conduct is an actual or potential customer of the kind of services that they provide. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018); TEX. CIV. PRAC. & REM. CODE § 27.010(b). Here, it is undisputed that the “conduct on which” Pohl’s claim is based is the alleged theft or purchase of client lists by Kassab, not the subsequent provision of legal services by Kassab to his clients or even statements made by Kassab to potential clients. The alleged misappropriation could not have “arose out of” legal services provided by Kassab to his clients for simple reason that the performance of those services occurred after the alleged misappropriation. Moreover, the “intended audience” of Kassab’s conduct (the alleged theft or purchase of client lists) was not his usual clients or customers, it was those who Kassab allegedly purchased the client list from. The court of appeals erred when it concluded that the commercial-speech exemption is triggered by conduct that merely leads to the subsequent sale of services and communications to audiences other than 10 the defendant’s usual actual or potential customers. Review is warranted to correct this misconstruction and overly broad application of the commercial-speech exemption, which is likely to reoccur if not corrected. ARGUMENT The commercial-speech exemption provides that the TCPA “does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services … or a commercial transaction in which the intended audience is an actual or potential buyer or customer.” TEX. CIV. PRAC. & REM. CODE § 27.010(b). This Court has identified four factors to this exemption: (1) the defendant (TCPA movant) was primarily engaged in the business of selling or leasing goods or services; (2) the defendant made the statement or engaged in the conduct on which the plaintiff's claim is based in its capacity as a seller or lessor of those goods and services; (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services that the defendant provides; and 11 (4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam). This exemption is required to be construed and applied narrowly. See ADB Interest, LLC v. Wallace, 606 S.W.3d 413, 428 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (“construing the TCPA liberally means construing its exemption narrowly.”) (citing State ex rel. Best v. Harper, 562 S.W.3d 1, 14 (Tex. 2018)). The court of appeals misconstrued these factors and broadly applied the commercial-speech exemption when it concluded that the exemption applied to Pohl’s claims against Kassab. Because that misconstruction and overly broad application of the exemption will likely impact future Texas jurisprudence, further review is warranted. A. The court of appeals broadly applied the commercial-speech exemption to conduct that leads to the subsequent sale of services rather than to conduct arising out of the sale of services. The court of appeals concluded that factor (1) was satisfied because “Kassab and his firm are in the business of selling legal services” and an attorney’s effort “to engage prospective clients and provide them with paid legal services meet[s] the first element of the Castleman test.” Kassab, 2020 Tex. App. LEXIS 7560, at 13. The court of appeals then concluded that factor (2) was satisfied because “the alleged 12 purchase of Pohl client list for those clients’ contact information, followed by the mailing of attorney advertisements to those individuals about specific types of claims they might be able to pursue against a specifically identified attorney, qualifies as statements or conduct that arose out of a commercial transaction involving the type of legal services Kassab provides.” Id. at 14. But Kassab was not sued by Pohl for soliciting or advertising to potential clients; he was sued for alleged theft and conversion of trade secrets. The court of appeals erred when it liberally construed Pohl’s petition to read into claims which were not there. See Bos v. Smith, 556 S.W.3d 293, 306 (Tex. 2018) (“a liberal construction does not require a court to read into a petition what is plainly not there.”) (internal quotations omitted). It is true that Kassab is primarily engaged in the business of selling legal services, but Pohl’s claims against Kassab were based on an alleged transaction or conduct that occurred before the provision of those legal services. Pohl’s retaliatory lawsuit alleged conversion, theft of trade secrets and civil conspiracy, claiming that Kassab and others “engaged in a scheme pursuant to which they illegally obtained, maintained, and used trade secrets and other confidential information and property belonging to Pohl.” Kassab, 2020 Tex. App. LEXIS 7560, at 6 (quoting Pohl’s pleadings). In other words, the “basis for” Pohl’s retaliatory claim is Kassab’s alleged misappropriation of Pohl’s trade secrets and conversion of property, not 13 Kassab’s solicitation of clients or subsequent provision of legal services to those clients. 2CR890. Pohl is suing Kassab because Kassab allegedly “wrongfully exercised dominion and control over Pohl’s property in contravention of Pohl’s rights” and “willfully and maliciously misappropriated Pohl’s trade secrets by using them without the express or implied consent of Pohl.” 2CR900-901. Even Pohl agrees that he did not sue Kassab for solicitation of clients, but “for conversion because Kassab [allegedly] knowingly purchased confidential information and materials that were stolen from Pohl.” 1CR690. Moreover, Pohl repeatedly contends that Kassab’s alleged involvement in the transaction at issue led to him providing legal services to new clients and filing barratry lawsuits against Pohl. 1CR695-696 (stating Kassab “purchased Pohl’s list of clients and former clients, together with the attorney fee contracts for the purpose of soliciting those clients.”). The court of appeals recognized this, stating Pohl alleged that Kassab first allegedly engaged in a “conspiracy to steal, sell/buy, and use the client list for later client solicitation.” Kassab, 2020 Tex. App. LEXIS 7560, at 15 (emphasis added). But the commercial-speech exemption is not triggered by conduct that leads to the subsequent sale of services; the exemption applies only to the conduct arising out of the sale of services. See Castleman, 546 S.W.3d at 688- 89. In fact, Pohl’s allegations of theft and conversion do not at all depend on the subsequent sale of legal services by Kassab to his clients. 2CR890-903. 14 Factor (3) requires that the statement or conduct at issue arise out of a commercial transaction involving the kind of goods or services the defendant provides. Castleman, 546 S.W.3d at 688. The court of appeals concluded that this factor was satisfied because “Kassab’s conduct that is alleged to be tortious involved the alleged conspiracy to steal, sell/buy, and use the client list for later client solicitation.” Kassab, 2020 Tex. App. LEXIS 7560, at 15. But Pohl did not sue Kassab for sending out advertisements or solicitations; he sued Kassab for alleged conversion and theft of trade secrets. 2CR900-901. Again, Pohl’s allegations of alleged conversion and theft of trade secrets do not at all depend upon the sale of legal services by Kassab. 2CR890-903. Those allegations and claims could be made even absent the sale of legal services by Kassab that occurred after the conduct made the basis of Pohl’s retaliation claims. Because the complained of conduct occurred before and did not “arise out of” any commercial transaction involving the kind of services that Kassab provides, the commercial exception should not have been applied. See Dickens v. Jason C. Webster, P.C., No. 05-17-00423-CV, 2018 Tex. App. LEXIS 10893, at 17 (Tex. App. – Dallas, Dec. 31, 2018, no pet. h.) (commercial speech exception did not apply to claim alleging attorney tortuously interfered with contingency fee agreement because claim did “not concern or arise out of [the lawyer’s] services.”); MacFarland v. Le-Vel Brands LLC, No. 05-16-00672-CV, 2017 Tex. App. LEXIS 15 2569, 2017 WL 1089684, at 9 (Tex. App.—Dallas Mar. 23, 2017, no pet.) (mem. op.) (exemption not met because statement or conduct at issue was “not about” defendant’s business of selling services); Toth v. Sears Home Improvement Products, Inc., 557 S.W.3d 142, 154 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“Even before Castleman, courts have held that the exemption is not established unless the challenged statement was ‘about’ the speaker’s particular goods or services, or the speaker's business of selling them.”). Factor (4) requires that the intended audience of the statement or conduct be actual or potential customers of the defendant for the kind of goods or services the defendant provides. Castleman, 546 S.W.3d at 688. The court of appeals concluded that this element was satisfied because “the intended audience of the Kassab[‘s] statement or conduct were individuals with potential legal claims who Kassab sought to represent in barratry suits against Pohl” and therefore “were Kassab’s potential clients to whom he offered the kind of legal services he provides.” Kassab, 2020 Tex. App. LEXIS 7560, at 15-16. But that is not correct. The “conduct” at issue is Kassab’s alleged theft of trade secrets and purchase of Pohl’s confidential information, not statements made to potential customers of legal services. See 2CR869 (“Favre and Precision, with the assistance of Nicholson, struck a rich bargain; Kassab and Montague paid Favre $250,000.00 in cash together with 16 substantial bonuses.”). According to Pohl’s allegations, the “audience” of this conduct was not Kassab’s clients, but was Favre, Precision and Nicholson. See id. Kassab is not in the business of purchasing marketing lists; he and his firm “are in the business of selling legal services.” Kassab, 2020 Tex. App. LEXIS 7560, at 13. Pohl did not allege, nor did he submit evidence to establish, that Kassab is in the business of purchasing marketing lists, that Favre and Precision are Kassab’s usual clients, or that Favre and Precision was seeking legal services from Kassab. See 1CR110 (describing the relationship between the parties). Rather, Pohl’s claims against Kassab were premised on Kassab’s conduct relating to other services in the marketplace, namely the purchase and sale of purportedly confidential information or client files. The exemption does not apply, and a seller of goods or services may avail himself of the TCPA, “when he speaks of other goods or services in the marketplace.” Castleman, 546 S.W.3d at 689 (emphasis added). Because Kassab is not in the business of purchasing marketing lists, and Favre and Precision are not Kassab’s usual clients, nor were they seeking legal services from Kassab, the commercial-speech exemption was inapplicable. See Schimmel v. McGregor, 438 S.W.3d 847, 858 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (statements and conduct by lawyer directed to third parties did not fall within commercial speech exception because the third parties, who were the “ultimate intended audience for his statements” were not lawyer’s potential customers); Grant 17 v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 888-889 (Tex. App.—Austin 2018, pet. filed) (exception inapplicable because while the alleged conduct at issue – a breach of a purchase agreement – arose out of the agreement, the plaintiff failed to show that the agreement involved computer-related services like the defendant provides or that the audience of the conduct was an actual or potential customer of defendant). B. The court of appeals should have followed Castleman rather than distinguishable opinions from other courts. The court of appeals rejected the above arguments because it could “not agree that the alleged tortious acts can be divided in such a way to avoid the commercial- speech exemption.” Kassab, 2020 Tex. App. LEXIS 7560, at 14. But this Court did just that in Castleman and “divided” alleged tortious acts to conclude that the commercial speech exemption did not apply. The defendant in that case, Castleman, ran an online platform that served as a middleman between customers and product suppliers. 546 S.W.3d at 685. Castleman hired the plaintiff, O’Conner, to receive and fulfill customer orders placed through Castleman’s website and accused O’Connor of failing to follow the instructions and over-ordering products. Id. When O’Connor refused to pay, Castleman published statements about the dispute online, accusing O’Connor of theft. Id. O’Connor sued Castleman for defamation, but the trial court and the court of appeals concluded that the commercial-speech exemption applied. Id. at 686. 18 This Court reversed, concluding that the commercial-speech exception had not been satisfied: Castleman made the statements in his status as a customer or consumer of O’Connor’s services. Moreover, the intended audience of Castleman’s statements was not an actual or potential buyer or customer of the goods he sells. Castleman intended his statements to reach O’Connor’s actual or potential customers. His statements constituted protected speech warning those customers about the quality of O’Connor’s services, not pursuing business for himself. Id. at 690-691. In doing so, this Court “divided” the alleged tortious conduct committed by Castleman – i.e., the alleged defamatory statements – to conclude that the commercial-speech exemption did not apply. See id. The court of appeals should have correctly followed Castleman instead of relying on the two inapplicable authorities that it did. The court of appeals relied on Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181 (Tex. App.—El Paso 2014, no pet.) and NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742 (5th Cir. 2014) to apply the commercial-speech exemption, but those cases have no application here. Miller Weisbrod involved a lawsuit for slander and defamation against a law firm by an ophthalmologist contending television commercials that encouraged former patients of ophthalmologist to contact the law firm if they were left blind by treatment. 511 S.W.3d at 183-84. The law firm moved to dismiss pursuant to the TCPA and the ophthalmologist claimed the commercial speech exception. Id. at 184. 19 The trial court denied the motion to dismiss and the law firm appealed. Id. The court of appeals affirmed, recognizing that the ophthalmologist’s claims of slander arose out of the advertisements, which were commercial speech excepted from the TCPA. Id. at 191. Likewise, Mauze involved a law firm that “engaged in an advertising campaign to solicit former dental patients … from dental clinics as potential clients.” 745 F.3d at 745. Based on the law firm’s advertisements and website, the dental clinics sued the firm for false advertising, defamation, and business disparagement. Id. at 746. The law firm moved to dismiss pursuant to the TCPA. The district court denied the motion based on the commercial speech exception. Id. at 746. The law firm appealed. Id. In the absence of Texas Supreme Court interpretation of the commercial speech exception, the Fifth Circuit made an “an Erie guess” relying on Texas intermediate appellate court decisions. Id. at 755. The Fifth Circuit concluded the commercial speech exception applied because the dental clinics’ claims for false advertising and defamation arose out of the advertisements themselves, which were directed to the law firm’s potential customers. See id. Miller Weisbrod and Mauze are not helpful here because they were decided four years before this Court’s decision in Castleman. Moreover, they also are factually distinguishable. Again, Pohl is not suing Kassab for defamation arising from Kassab’s statements to potential clients. Nor is Pohl suing Kassab for false 20 advertising in the letters that Kassab sent to potential clients. Rather, the focus of the “conduct” at issue is the alleged theft of confidential trade secrets and property. 2CR900 (“In knowingly purchasing the stolen information, Kassab [has] wrongfully exercised dominion and control over Pohl’s property in contravention of Pohl’s rights as owner of that property.”); 2CR901 (“All Defendants willfully and maliciously misappropriated Pohl’s trade secrets by using them without the express or implied consent of Pohl.”); 2CR901 (“Acting in combination with the agreed object of misappropriating Pohl’s trade secrets and converting Pohl’s property, each of the Defendants committed overt acts toward the unlawful misappropriation of Pohl’s trade secrets, which were unlawful and which proximately caused damages to Pohl.”). Again, even Pohl agrees that he did not sue Kassab for solicitation of clients, but “for conversion because Kassab [allegedly] knowingly purchased confidential information and materials that were stolen from Pohl.” 1CR690. Because Pohl’s claims are not based on advertisements by lawyers to potential clients, Miller Weisbrod and Mauze are distinguishable, and do not establish that the commercial speech exception applied to Pohl’s claims against Kassab. See Schimmel, 438 S.W.3d at 858. Because the court of appeals followed those authorities rather than Castleman, review is warranted. 21 PRAYER FOR RELIEF Petitioners respectfully request that the Court grant the petition, reverse the court of appeals judgment, and reverse the court of appeals’ judgment, and remand the case to the trial court with instructions to dismiss with prejudice Pohl’s claims against Kassab. Kassab requests all other relief to which he is entitled. Respectfully submitted, THE KASSAB LAW FIRM /s/ Lance Christopher Kassab Lance Christopher Kassab State Bar No. 00794070 lance@kassab.law David Eric Kassab State Bar No. 24071351 david@kassab.law 1214 Elgin Street Houston, Texas 77004 Telephone: (713) 522-7400 Facsimile: (713) 522-7410 ATTORNEYS FOR PETITIONERS LANCE CHRISTOPHER KASSAB AND THE KASSAB LAW FIRM 22 CERTIFICATE OF COMPLIANCE Based on a word count run in Microsoft Word, this petition for review contains 4,145 words, excluding the portions of the petition exempt from the word count under Texas Rule of Appellate Procedure 9.4(i)(1). /s/ David Eric Kassab David Eric Kassab CERTIFICATE OF SERVICE I certify that on December 21, 2020, I electronically filed this petition for review with the Clerk of the Court using the eFile.TXCourts.gov electronic filing system which will send notification of such filing to all counsel of record. /s/ David Eric Kassab David Eric Kassab 23 INDEX OF APPENDIX Tab Item 1. Pohl’s First Amended petition (without exhibits). 2. September 12, 2020 Opinion from Court of Appeals 3. September 17, 2020 Judgment from Court of Appeals 4. Tex. Civ. Prac. & Rem. Code § 27.010 (2017 version) 24 APPENDIX TAB 1 11/30/2018 9:45 PM Chris Daniel - District Clerk Harris County Envelope No. 29415016 By: ARIONNE MCNEAL Filed: 11/30/2018 9:45 PM CAUSE NO. 2018-58419 MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF MICHAEL A. POHL, PLLC, § Plaintiffs, § SCOTT FAVRE and SCOTT M. FAVRE PA, § LLC; PRECISION MARKETING GROUP, § HARRISCOUNTY,TEXAS LLC; LANCE CHRISTOPHER KASSAB and § LANCE CHRISTOPHER KASSAB, P.C. d/b/a § THE KASSAB LAW FIRM; TINA § NICHOLSON and BAKER NICHOLSON, § LLP d/b/a BAKER NICHOLSON LAW § FIRM; and DOUGLAS MONTAGUE III and § MONTAGUE PITTMAN & VARNADO, P.A., § Defendants. § 189TH JUDICIAL DISTRICT PLAINTIFFS MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC'S FIRST AMENDED PETITION SUMMARY 1. Plaintiffs Michael Pohl and Law Office of Michael A Pohl, PLLC (sometimes collectively "Pohl") sue Defendants Scott Favre and Scott M. Favre PA, LLC ( collectively "Favre"); Precision Marketing Group, LLC ("Precision"); Lance Christopher Kassab and Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm (collectively "Kassab"); Tina Nicholson and Baker Nicholson, LLP D/B/A Baker Nicholson Law Firm (collectively "Nicholson"); and F. Douglas Montague III and Montague Pittman & Varnado, P.A. (collectively "Montague"). Favre, Precision, Kassab, Nicholson, and Montague are collectively called "Defendants." 2. Defendants engaged in a scheme pursuant to which they illegally obtained, maintained, and used trade secrets and other confidential information and property belonging to Pohl. Favre and Precision's actions are in breach of a settlement agreement to which Pohl, Favre, 890 and Precision are parties, and all Defendants' actions constitute the torts of conversion and violations of the uniform trade secrets act, as well as conspiracy. 3. More specifically, Favre and Precision executed a settlement agreement with Pohl pursuant to which they agreed to return to Pohl certain information in their and their counsel's possession, custody, or control; to permanently delete such electronically-stored information; and not to cause any claim to be made or filed against Pohl. Favre and Precision also warranted that they had not caused any suit or action to be filed against Pohl. Pohl fully complied with his obligations under the agreement. Favre and Precision breached and continue to breach their obligations under the agreement by causing claims to be made or filed against Pohl. 4. Defendants knowingly and illegally obtained and/or used confidential information and property that belongs to Pohl, and exercised dominion and control over the information and property in a manner inconsistent with Pohl's rights of ownership-each of which constitutes actionable conversion. 5. The actions of each of the Defendants relative to the confidential information and property that they obtained, maintained, and used constitute misappropriation and violate the Texas Uniform Trade Secrets Act. Tex. Civ. Prac. & Rem Code,§ 134A.001, et seq. ("TUTSA"). 6. Defendants entered into a combination with the object of unlawfully misappropriating Pohl's trade secrets and, in so doing, they engaged in one or more unlawful overt acts, including stealing Pohl's confidential information/property and usmg the information/property for their own gain. Pohl has suffered damages as a proximate result of Defendants' conduct. 7. Pohl brings this action to recover damages and other relief for Defendants' breach of contract, conversion, violations ofTUTSA, and conspiracy. Pohl seeks monetary relief in an amount -2- 891 over $1,000,000.00. All conditions precedent to Pohl maintaining this action and recovering from Defendants have been performed or have occurred. DEFENDANTS 8. Scott Favre is a nonresident individual who is a licensed public adjuster in Texas and who engages in business in Texas. He does not maintain a regular place of business in Texas or a designated agent for service of process in Texas. Mr. Favre may be served with citation and this petition: (a) at his office address at 7044 Stennis Airport Road, Kiln, Mississippi 39556; or (b) through the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections l 7.044(a)(l) and (b). 9. Scott M. Favre PA, LLC is a nonresident limited liability company that engages in business in Texas. It does not maintain a regular place of business in Texas or a designated agent for service of process in Texas. Scott M. Favre PA, may be served with citation and this petition: (a) by serving Scott Favre, the person in charge of Scott M. Favre PA, LLC' s business, at the address of the business, 7044 Stennis Airport Road, Kiln, Mississippi 39556; or (b) through the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections l 7.044(a)(l) or (b). I 0. Precision is a nonresident limited liability company that engages in business in Texas. It does not maintain a regular place of business in Texas or a designated agent for service of process in Texas. Precision may be served with citation and this petition: (a) by serving Scott Favre, the person in charge of Precision's business, at 7044 Stennis Airport Road, Kiln, Mississippi 39556; or (b) through the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections l 7.044(a)(l) or (b ). -3- 892 11. Lance Christopher Kassab is an individual and resident of Texas. He is an attorney who specializes in legal malpractice claims. He may be served with citation and this petition: (a) at 1214 Elgin Street, Houston, Texas 77004; or (b) at 5314 Navarro Street, Houston, Texas 77056. 12. Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm is a Texas professional corporation. It may be served with citation and this petition by serving its registered agent, Lance Christopher Kassab: (a) at 1214 Elgin Street, Houston, Texas 77004; or (b) at 5314 Navarro Street, Houston, Texas 77056. 13. Tina Nicholson is an individual and a resident of Texas. She is an attorney. Tina Nicholson may be served with citation and this petition: (a) at 4306 Yoakum Blvd., Suite 400, Houston, Texas 77006; or (b) at 1607 Dove Ridge Drive, Katy, Texas 77493. 14. Baker Nicholson, LLP D/B/A Baker Nicholson Law Firm is a Texas limited liability partnership. It may be served with citation and this petition: (a) by serving its partner, Allison Baker, at 4306 Yoakum Blvd., Suite 400, Houston, Texas 77006; or (b) by serving its partner, Tina Nicholson, at 4306 Yoakum Blvd., Suite 400, Houston, Texas 77006. 15. F. Douglas Montague III is a nonresident individual who engages in business in Texas. He does not maintain a regular place of business in Texas or a designated agent for service of process in Texas. Mr. Montague may be served with citation and this petition: (a) at his office address at 525 Main Street, Hattiesburg, Mississippi 39401; or (b) through the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections l 7.044(a)(l) or (b). 16. Montague Pittman & Varnado, P.A. is a non-resident professional association that engages in business in Texas. It does not maintain a regular place of business in Texas or a designated agent for service of process in Texas. Montague Pittman & Varnado, P .A may be served with citation and this petition: (a) by serving F. Douglas Montague III, its registered agent for services of process -4- 893 and the person in charge of its business, at 525 Main Street, Hattiesburg, Mississippi 39401; or (b) through the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections 1 7. 044( a) ( 1) or (b). JURISDICTIONNENUE 17. The damages that Pohl seeks in this case are within the jurisdictional limits of this Court. The Court has jurisdiction over Defendants because they have the necessary minimum contacts with Texas, which include engaging in business in Texas, committing torts in Texas and, as to some of them, residing in Texas. Further, Favre and Precision contracted with Pohl, a Texas resident at the time, for Pohl to perform the contract at issue in whole or in part in Texas. This case arises out of business done in Texas by Defendants. 18. Venue is proper in Harris County under Texas Civil Practice and Remedies Code Sections 15.002 and 15.062. BACKGROUND 19. Pohl is a lawyer who represented various persons and entities in claims arising from motor vehicle accidents and the British Petroleum Deepwater Horizon oil spill. (See the attached Declaration of Michael Pohl, Exhibit A, ,i 3). Scott Favre, individually and/or through Scott M. Favre PA, LLC, is the managing member of Precision, a public relations and marketing firm. Nicholson is a lawyer who represented Favre and Precision, including for purposes of the settlement agreement mentioned above as well as in facilitating the sale of Pohl's confidential and proprietary information and property to Kassab and Montague. At the time the settlement agreement was entered into and still today, Nicholson was also Kassab and Montague's co-counsel in connection with claims that they are prosecuting against Pohl. -5- 894 20. Pohl engaged Precision for a period of time to provide public relations services, to gather and preserve evidence, and to screen and liaise with Pohl's clients/prospective clients. While working for Pohl, Precision gained access to Pohl's confidential and proprietary information and property, including trade secret materials, that included the identities of Pohl' s clients/prospective clients, as well as their detailed contact information. The information and property also included actual attorney-client fee agreements with clients/prospective clients, compilations of clients, other confidential communications between the clients/prospective clients and Pohl, specialized legal forms that had been prepared in compliance with various state laws after consultation with local counsel in those jurisdictions, Pohl's proprietary administrative client forms, fee-agreement forms prepared in accordance with the laws of various states, internal emails, propriety marketing information and other trade secrets, and other work product relating to claims of Pohl's clients and prospective clients. Despite Favre and Precision's claims to the contrary, these materials belonged to Pohl, not Precision. Favre and Nicholson also ultimately gained access to the information. 21. Favre and Precision illegally misappropriated Pohl's proprietary and confidential information and property described above, which included information about and/or communications with as many as 10,000 or more of Pohl's clients/prospective clients. Favre and Precision stole physical copies of certain of the information, stole Pohl's computers, and misappropriated electronic data to which they had access through Precision's work for Pohl. Favre, with Nicholson or with Nicholson's active and knowing and intentional assistance, then secretly sold Pohl's stolen confidential information and property to Kassab and Montague. 22. As Kassab himself indicated in a sworn affidavit: "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 clients." This information, which -6- 895 included compilations of former, current and prospective clients-as well as actual engagement agreements-did not belong to Precision, however. As with any law firm, information such as compilations of former, current and prospective clients, belong to the law firm itself Thus, Nicholson's active, knowing and intentional assistance included brokering the illegal sale of Pohl's information and property as well as actually providing such information and property to Kassab. 23. Favre and Precision, with the assistance of Nicholson, struck a rich bargain; Kassab and Montague paid Favre $250,000.00 in cash together with substantial bonuses. Kassab and Montague knew that the information and property that they were purchasing was stolen and not Favre and/or Nicholson's to sell. (A true and correct copy of the agreement to sell Pohl's information is attached hereto as Exhibit B). Favre, Precision, and Nicholson likewise knew that the information and property that they were selling or helping to sell was stolen and belonged to Pohl. 24. Like Favre and Precision, Nicholson was also motivated to participate in and facilitate the illegal transaction with Kassab and Montague described above in furtherance of her own business. As a direct result of the transaction and Nicholson's role in the transaction, Kassab and Nicholson have apparently successfully solicited clients for whom Nicholson is now co-counsel with Kassab. Nicholson is a lawyer primarily in the business of obtaining legal work and providing legal services. Nicholson obtains legal work either through directly obtaining clients or entering into co-counsel relationships with other counsel. Her participation in the illegal transaction described above and the conduct for which she is being sued was done for the purpose of and resulted in her obtaining a co counsel relationship with Kassab and thereby gaining the opportunity to provide legal services. 25. The theft, sale and unlawful disclosure of Pohl's proprietary, confidential and trade secret information was made even more egregious by the fact that from the outset of the relationship between Pohl and Precision, Pohl made clear to Precision and its representatives the confidential -7- 896 nature of the above listed information. Precision and its representatives expressed their understanding of the confidential and proprietary nature of the information and that the information belonged to Pohl. 26. Kassab is a lawyer who specializes in suing other lawyers and who, upon information and belief, has worked with Montague in this connection in the past. Kassab saw the value of Pohl's stolen and misappropriated confidential information and property because it provided him the ability to contact and solicit Pohl' s clients/prospective clients. As noted previously, included in the stolen information purchased by Kassab and Montague were actual engagement agreements between Pohl and his clients. (Attached as Exhibit C hereto is an email between Montague and Kassab and copying Nicholson dated December 7, 2016 reflecting the transfer of actual engagement agreements to Kassab). 27. Kassab and Montague had to know that the information and property they purchased for a non-refundable $250,000.00 along with promises of future payments was stolen. Nicholson likewise had to know that the information and property that she assisted in selling was stolen. Any attorney, and especially an attorney specializing in legal malpractice, would know not to purchase or sell another law firm's engagement agreements, client compilations and other materials from a third party. 28. The fact that Kassab, Montague and Nicholson all knew that the information and property involved in the sale was stolen is further evidenced by terms of the purchase agreement itself That agreement obligates Kassab and Montague to indemnify Favre from claims that Pohl might bring-making clear that everyone understood that Pohl might assert a claim. Indemnity would be unnecessary if Favre owned the materials or if they were publicly known. -8- 897 29. Using the stolen confidential information and property that he knowingly purchased, Kassab solicited those clients/prospective clients to act as plaintiffs and, joined by Nicholson and Montague, to bring cases against Pohl for alleged barratry and other claims. 30. The actions of Favre and Precision, in addition to being tortious and in violation of Texas law, were in direct violation and breach of the settlement agreement, which is a binding contract. More specifically, a dispute arose resulting in a lawsuit in federal court in Mississippi, styled No. l: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. That lawsuit was resolved pursuant to a Confidential Settlement Agreement, executed in late April/early May 2017 (the "Settlement Agreement"). Nicholson represented Favre and Precision in connection with the Settlement Agreement, including its execution, while at the same time serving as co-counsel with Kassab and Montague for the claims now being asserted against Pohl. 31. The Settlement Agreement was executed by Favre, as managing member of Precision and on behalf of Scott M. Favre PA, LLC, and by Pohl. The Settlement Agreement expressly provides that Favre and Precision will return to Pohl all originals and all copies of documents in their and their counsel's possession, custody, or control that concern and/or identify all past or current clients and/or prospective clients of Pohl, and that Favre and Precision will delete all such electronically-stored information. At the time, Nicholson was not only Favre and Precision's agent and counsel in connection with the Settlement Agreement; she was also Kassab and Montague's co-counsel in connection with the claims now being made against Pohl in various cases. 32. The Settlement Agreement also provided that Favre and Precision would not cause any claim, complaint, or legal action to be filed or made against Pohl. Favre and Precision further warranted and represented that they had not caused any suit or action to be filed against Pohl. Favre -9- 898 and Precision breached these provisions of the Settlement Agreement by, inter alia, causing claims, complaints, and legal actions-not their own-to be filed and/or prosecuted against Pohl. The very existence of the cases that Kassab, Montague, and/or Nicholson are prosecuting against Pohl is a breach of the Settlement Agreement. 33. In addition, as described above and in conjunction with the sale of Pohl's information and property to Kassab and Montague, all Defendants converted Pohl' s confidential information/property by knowingly and unlawfully assuming and exercising dominion and control over that information/property in a way that was inconsistent with Pohl's ownership. Each of the Defendants, individually and in combination with each other, misappropriated Pohl's trade secrets in violation of the TUTSA by unlawfully obtaining and using Pohl's confidential and trade secret information/property in the sale of such information/property to Kassab and Montague and continuing to use Pohl' s information and property to solicit cases against Pohl. 34. Paragraphs 1 through 7 and 19 through 33 are incorporated into all following paragraphs of this petition. In addition, attached hereto as Exhibit Dis the affidavit of Billy Shepherd and certain information confirming and further explaining the claims asserted herein. CAUSES OF ACTION Count One: Breach of Contract (Against Favre and Precision) 35. Favre and Precision are bound by the terms of the Settlement Agreement. Pohl timely and fully performed the Settlement Agreement. Favre and Precision breached the Settlement Agreement by assisting and continuing to assist in the manufacture and prosecution of claims against Pohl. Their breaches include causing claims to be made against Pohl; causing complaints and legal actions to be filed against Pohl; and Favre' s assisting Kassab and his co-counsel, Montague and -10- 899 Nicholson, in pursuing claims, complaints, and actions against Pohl. Favre and Precision's breaches resulted in damages to Pohl. Count Two: Conversion (Against All Defendants) 36. In selling Pohl's proprietary and confidential information, Favre, Precision, and Nicholson have wrongfully assumed and exercised dominion and control over Pohl's property in contravention of Pohl's rights as owner of that property. 37. In knowingly purchasing the stolen information, Kassab and Montague have wrongfully exercised dominion and control overPohl's property in contravention of Pohl's rights as owner of that property. 38. In knowingly maintaining and using the stolen information and property since the sale of said information and property to Kassab and Montague, all Defendants have wrongfully exercised dominion and control over Pohl' s property in contravention of Pohl' s rights as owner of that property. Pohl owned and owns the information/property, and Favre and Precision (with Nicholson or with Nicholson's active and knowing and intentional assistance as described above) disclosed the information/property and sold it to Kassab and Montague. Kassab and Montague knowingly purchased the stolen information/property. Pohl has been damaged thereby in an amount in excess of $250,000 which is the price that Kassab and Montague paid for Pohl' s information and property. Count Three: Violation of TUTSA (Against All Defendants) 39. Pohl maintained information regarding his clients/prospective clients and their contact information and related data including compilations of former, current and prospective clients, as well as other information concerning his practice of law, as confidential trade secret information. Pohl took substantial measures to maintain the confidentiality of that information and obtained assurances from Precision that Precision would maintain the confidentiality of Pohl's information. That information has independent economic value from not being generally known to, and not readily -11- 900 being ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information. The value of the information exceeds $250,000, which is the price Kassab and Montague paid to obtain Pohl's information. 40. Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl's trade secrets by acquiring them through improper means-specifically, by theft. See Tex. Civ. Prac. & Rem. Code § 134A.002(2), (3)(A). 41. Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl's trade secrets by disclosing them via sale to Kassab and Montague (who purchased the trade secret information knowing that it had been stolen) without the express or complied consent of Pohl. See Tex. Civ. Prac. & Rem. Code § 134A.002(3)(B). 42. All Defendants willfully and maliciously misappropriated Pohl's trade secrets by using them without the express or implied consent of Pohl. See Tex. Civ. Prac. & Rem. Code § 134A.002(3)(B). Count Four: Civil Conspiracy (Against All Defendants) 43. Acting in combination with the agreed object of misappropriating Pohl's trade secrets and converting Pohl's property, each of the Defendants committed overt acts toward the unlawful misappropriation of Pohl's trade secrets, which were unlawful and which proximately caused damages to Pohl. DAMAGES 44. Pohl seeks actual damages within the jurisdictional limits of this Court. 45. Pohl seeks injunctive relief pursuant to Texas Civil Practice and Remedies Code Section 134A.003. -12- 901 46. Pohl seeks exemplary damages pursuant to Texas Civil Practice and Remedies Code Sections 41.001, et seq, and 134A.004(b). 47. Pohl seeks attorney's fees pursuant to Texas Civil Practice and Remedies Code Sections 38.001, et seq, and 134A.005. 48. Pohl seeks pre-judgment and post-judgment interest. TRIAL BY JURY 49. Pohl requests trial by jury and has submitted the appropriate jury fee. CONCLUSION 50. Pohl requests that judgment be entered in Pohl's favor and against Defendants on the counts and as requested above, and for such other and further or alternative relief (legal and equitable) to which Pohl may be entitled. Dated: November 30, 2018 Respectfully submitted, REYNOLDS FRIZZELL LLP By: Isl Jean C. Frizzell Jean C. Frizzell State Bar No. 07484650 1100 Louisiana St., Suite 3500 Houston, Texas 77002 Tel. 713.485.7200 Fax 713.485.7250 i frizzell(a;reynoldsfrizzell. com Attorneys for Plaintiffs Michael Pohl and Law Office of Michael A. Pohl, PLLC -13- 902 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document was served on all counsel of record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2018. Isl Jean C. Frizzell Jean C. Frizzell -14- 903 APPENDIX TAB 2 Opinion issued September 17, 2020 In The Court of Appeals For The First District of Texas ———————————— NO. 01-18-01143-CV ——————————— LANCE CHRISTOPHER KASSAB, LANCE CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAW FIRM, TINA NICHOLSON, BAKER NICHOLSON, LLP D/B/A BAKER NICHOLSON LAW FIRM, SCOTT FAVRE, SCOTT M. FAVRE PUBLIC ADJUSTER, LLC, AND PRECISION MARKETING GROUP, LLP, Appellants MICHAEL A. POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC, Appellees On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2018-58419 O P I N I O N Michael A. Pohl and his law firm, Law Office of Michael A. Pohl, PLLC, sued four groups of individuals and entities for allegedly conspiring to steal Pohl’s client lists and other property to pursue barratry claims against him. Three of the four groups filed motions to dismiss under the Texas Citizens Participation Act.1 They are (1) Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law firm; (2) Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm; and (3) Scott Favre, Scott M. Favre Public Adjuster, LLC, and Precision Marketing Group, LLP. Their three TCPA motions were overruled by operation of law. The movants brought this interlocutory appeal of the denial of their motions. We affirm. Background This is the fourth wave of litigation involving these parties. We will briefly discuss the past litigation that led to this suit as it is relevant to the issues being decided now. BP Horizon litigation The BP Horizon litigation began shortly after the BP Deepwater Horizon oil spill in the Gulf of Mexico in 2010. Michael Pohl, who is a Texas attorney, was 1 See TEX. CIV. PRAC. & REM. CODE §§ 27.001-.011. This suit involved the pre- September 1, 2019 version of the TCPA. interested in representing Mississippi residents in litigation against BP Petroleum. He allegedly entered into a business relationship with three men in Mississippi, agreeing to pay them a finder’s fee for clients they solicited and a percentage of attorney’s fees recovered after the solicited clients’ cases settled. There is evidence that the three men contacted people and businesses in Mississippi to determine if they might have a claim against BP, encouraged those people to retain Pohl as their attorney, and were paid over $5 million in “barratry pass-through money” for their services. There are contrary assertions that the services were “marketing” in nature. The three men are Scott Walker, Steve Seymour, and Kirk Ladner. They are alleged to have performed these actions individually and as part of an entity, Precision Marketing Group, LLC (PMG). Pohl represented hundreds of plaintiffs in suits against BP Petroleum. A list of his actual and prospective clients was maintained by PMG for its business dealings with Pohl. The Mississippi federal litigation The Mississippi federal litigation began in 2014. Walker, Seymour, and Ladner—individually and as PMG—sued Pohl, Pohl’s law firm, and other Texas attorneys and their law firms in federal court in Mississippi. They claimed they provided “marketing services” for Pohl and brought in “millions of dollars of claims each week” to Pohl’s firm. They asserted that Pohl did not pay them the agreed fee for their services. They presented their claims as causes of action for fraud, unjust enrichment, and breach of an agreement to pay for services. Pohl moved to dismiss the claims against him, arguing that the alleged contract was illegal and unenforceable because, under Mississippi law, it is illegal to accept money to begin or prosecute litigation. In other words, PMG engaged in illegal solicitation on Pohl’s behalf so the plaintiffs cannot enforce the contract to pay for those services. The federal court denied Pohl’s dismissal motion in 2016, concluding that the PMG affiliated plaintiffs never alleged they accepted money to begin or prosecute litigation in violation of Mississippi law. They alleged, instead, that they were owed money for public relations and marketing services. After that ruling, the parties settled all their pending claims against each other, as reflected in the court’s sua sponte judgment of dismissal entered in April 2017. The barratry litigation The barratry litigation began in 2017 after Lance Kassab, a Texas attorney, was alerted to the Mississippi federal litigation by a Mississippi acquaintance. Kassab specializes in legal malpractice claims. After hearing about Pohl’s client- solicitation activities in Mississippi, Kassab began researching the matter. He met with Scott Favre (who had bought PMG from Walker and Ladner) and with Tina Nicholson (Favre’s and PMG’s legal counsel). Favre informed Kassab that, when he bought PMG, he acquired files related to Pohl. Favre transferred information from those PMG files to Kassab, including Pohl’s client list. Kassab paid Favre. It is disputed whether the payment was for Pohl’s client list or for Favre’s expertise. After getting Pohl’s client list, Kassab prepared an advertisement letter. According to Kassab’s affidavit, he obtained pre-approval from the State Bar of Texas for the advertisement letter before using it. After the advertisement letter was approved, he sent it to the people on the Pohl client list. The letter informed the recipients “that they may have been a victim of barratry” and may “be entitled to file civil claims against Pohl” under the Texas civil barratry statute. Hundreds of Mississippi residents responded to Kassab’s advertisement letter. More than 400 signed representation contracts with Kassab’s firm to pursue barratry claims against Pohl. Kassab filed four barratry suits against Pohl in Harris County district courts, each with multiple named plaintiffs. The barratry litigation is on- going.2 This suit The fourth litigation in this series is this suit. Pohl sued Kassab, Favre, PMG, Nichols, and others in Harris County district court in 2018. He asserts four causes of action: (1) a conversion claim against all defendants, alleging they stole his property, 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. including his client list and contracts; (2) a theft-of-trade-secrets claim against all defendants, arguing that his client list and other stolen proprietary information are trade secrets; (3) a civil conspiracy claim against all defendants based on these same alleged acts of theft; and (4) a breach-of-contract claim against just Favre and PMG, alleging they breached the settlement agreement in the Mississippi federal litigation by assisting his former clients with their litigation against him. Pohl’s pleading alleges that Favre is the current managing member of PMG, that Pohl engaged PMG to provide “public relations services” and “to screen and liaise with Pohl’s clients/prospective clients,” and that, “[w]hile working for Pohl, [PMG] gained access to Pohl’s confidential and proprietary information and property, includ[ing] trade secret materials, that included the identities of Pohl’s clients/prospective clients as well as their detailed contact information . . . [and] actual attorney-client fee agreements . . . [and] other confidential communications between the clients/prospective clients and Pohl.” Pohl contends the defendants “engaged in a scheme pursuant to which they illegally obtained, maintained, and used trade secrets and other confidential information and property belonging to Pohl.” Specifically, Pohl alleges the defendants stole his client list and sold it to Kassab, who then used it to solicit clients to pursue barratry claims against Pohl. Pohl’s pleading also alleges that “Favre and Precision [PMG] executed a settlement agreement with Pohl” at the end of the Mississippi federal litigation in which “they agreed to return to Pohl certain information in their and their counsel’s possession . . . [and] to permanently delete[] such electronically-stored information.” In the settlement agreement, according to Pohl, Favre and PMG also “warranted that they had not caused any suit or action to be filed against Pohl.” Pohl’s suit seeks damages in excess of $1 million. The defendants answered. They grouped into three subsets, and each subset filed a TCPA motion to dismiss, alleging that Pohl filed his suit in retaliation for their disclosure of his alleged barratry activity. They argued that the TCPA applies because Pohl’s claims relate to their recognized statutory rights and that Pohl could not establish a prima facie case for his causes of action. Their motions sought dismissal of Pohl’s claims. The trial court held hearings on the motions to dismiss but did not rule. All three dismissal motions were overruled by operation of law. The movants have appealed. Texas Citizens Participation Act The movants sought dismissal of Pohl’s claims against them under the Texas Citizens Participation Act. See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. The TCPA is found in Chapter 27 of the Civil Practice and Remedies Code, which is titled “Actions Involving the Exercise of Certain Constitutional Rights.” The TCPA’s purpose is to protect “citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). It does so by creating a “set of procedural mechanisms through which a litigant may require, by motion, a threshold testing of the merits of legal proceedings or filings that are deemed to implicate the expressive interests protected by the statute, with the remedies of expedited dismissal, cost- shifting, and sanctions for any found wanting.” Serafine v. Blunt, 466 S.W.3d 352, 369 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring); see TEX. CIV. PRAC. & REM. CODE §§ 27.003–.005, .009. A. TCPA’s dismissal provision and relevant statutory definitions Section 27.003 of the TCPA provides that a party may move to dismiss a legal action that “is based on, relates to, or is in response to [that] party’s exercise of” one of three rights: free speech, petition, or association. Id. § 27.003(a). The Legislature statutorily defined the three sets of rights protected by TCPA summary-dismissal procedures. Id. § 27.001(2) (defining “exercise of the right of association” as “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests”); § 27.001(3) (defining “exercise of the right of free speech” as “a communication made in connection with a matter of public concern”); § 27.001(4) (defining “exercise of the right to petition” as “a communication in or pertaining to” various specifically listed proceedings, including “a judicial proceeding,” as well as the more general category of “any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state”). B. TCPA’s shifting burdens When a movant seeks dismissal under the TCPA, the movant has the initial burden to show by a preponderance of the evidence that the nonmovant has asserted a “legal action” that is based on, relates to, or is in response to the movant’s exercise of one of the three rights delineated in the statute. Id. § 27.005(b). If the movant meets that burden, the burden shifts to the nonmovant. The nonmovant has the burden to establish by clear and specific evidence a “prima facie case for each essential element of the claim in question.” Id. § 27.005(c). This generally “requires only the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (internal quotation marks and citation omitted). “Prima facie evidence is evidence that, until its effect is overcome by other evidence, will suffice as proof of a fact in issue.” Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. App.— Houston [14th Dist.] 2013, pet. denied) (citation omitted) (disapproved of on other grounds, In re Lipsky, 460 S.W.3d at 587–88); cf. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam) (explaining that summary-judgment movant’s presentation of prima facie evidence of deed’s validity established right to summary judgment unless nonmovants presented evidence raising fact issue related to deed’s validity). Dismissal may be required, despite the nonmovant’s evidence proffered to meet his prima facie burden, if the movant establishes “by a preponderance of the evidence each essential element of a valid defense to the nonmovant’s claim.” Id. § 27.005(d). C. Exemptions to applicability of TCPA dismissal procedures A nonmovant plaintiff can avoid the TCPA’s burden-shifting requirements by showing that one of the TCPA’s several exemptions applies. See TEX. CIV. PRAC. & REM. CODE § 27.010. Among them is the commercial-speech exemption. Id. § 27.010(b).3 It provides that the TCPA does not apply to, and therefore is not a vehicle to achieve dismissal of, a legal action brought against a person “primarily engaged in the business of selling or leasing goods or services,” if the statement or conduct connected to the exercise of one of the statutory rights “arises out of the sale or lease of goods, services . . . or a commercial transaction in which the intended audience is an actual or potential buyer or customer.” TEX. CIV. PRAC. & REM. CODE § 27.010(b). The party asserting the commercial-speech exemption has the burden 3 Case law sometimes refers to the exemption as an exception. See Bejarano v. Dorgan, No. 03-19-00182-CV, 2019 WL 4458798, at 2 (Tex. App.—Austin Sept. 18, 2019, no pet.). 10 to prove that the exemption applies to the communications at issue. Schmidt v. Crawford, 584 S.W.3d 640, 652–53 (Tex. App.—Houston [1st Dist.] 2019, no pet.). D. Standard of review We review a trial court’s ruling on a TCPA motion to dismiss de novo. Porter- Garcia v. Travis Law Firm, P.C., 564 S.W.3d 75, 83 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). We consider the pleadings and evidence in the light favorable to the nonmovant. Id. at 84; Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017, no pet.). To the extent resolution of this appeal turns on construction of the TCPA, we review that de novo as well. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). When construing the TCPA, as with any other statute, our objective is to give effect to the legislative intent, looking first to the statute’s plain language. Id. If that language is unambiguous, “we interpret the statute according to its plain meaning.” Id. Additionally, we construe the TCPA “liberally to effectuate its purpose and intent fully.” TEX. CIV. PRAC. & REM. CODE § 27.011(b); see State ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018). The Commercial-Speech Exemption Applies The commercial-speech exemption provides that the TCPA does not apply to a suit against a defendant who is “primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease 11 of goods, services . . . or a commercial transaction in which the intended audience is an actual or potential buyer or customer.” TEX. CIV. PRAC. & REM. CODE § 27.010(b). The Texas Supreme Court has identified four elements to this exemption: (1) the defendant (TCPA movant) was primarily engaged in the business of selling or leasing goods or services; (2) the defendant made the statement or engaged in the conduct on which the plaintiff’s claim is based in its capacity as a seller or lessor of those goods and services; (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services that the defendant provides; and (4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam). Pohl sued the three sets of movants for their role in the alleged theft and sale of his client information to Kassab that enabled Kassab to contact those clients to provide legal services in pursuit of barratry claims against Pohl. In our view, all four Castleman factors are met for each set of defendant-appellants. We begin with the Kassab defendants. A. The Kassab defendants Pohl’s petition alleges that Kassab bought Pohl’s client list from PMG so that Kassab could send advertisements to Pohl’s former clients and solicit them to become Kassab’s clients in barratry suits against Pohl. 12 Kassab and his firm are in the business of selling legal services. Other cases have recognized that attorney efforts to engage prospective clients and provide them with paid legal services meet the first element of the Castleman test. See Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 189 (Tex. App.—El Paso 2014, no pet.) (stating that “case law appears settled [that] lawyer advertising is commercial speech”) (internal quotation marks omitted); see also NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 754–55 (5th Cir. 2014) (applying Texas law). According to Pohl’s allegations, the Kassab defendants arranged with the PMG defendants, with the help of the Nicholson attorney defendants, to obtain, maintain, and use Pohl’s client list and his other proprietary information for their profit. Kassab allegedly entered into a business transaction to purchase the client list and then sent advertisements to those on the list to offer his legal services to the potential clients. Thus, the claims against the Kassab defendants are based on their alleged statements and conduct in their capacity as sellers of legal services. See Miller Weisbrod, 511 S.W.3d at 191 (concluding that attorney advertisement to people who might have a medical malpractice claim against a specific physician identified in the advertisement was created “primarily to attract clients allegedly injured by [the identified physician]”); NCDR, 745 F.3d at 745–53 (applying Texas law, holding that attorneys who advertised about a national chain of dental clinics 13 being under government investigation and possibly engaging in unnecessary and harmful dental work on children were “primarily engaged in selling legal services to clients and that the ads offered those services to potential customers”). Further, the alleged purchase of Pohl client list for those clients’ contact information, followed by the mailing of attorney advertisements to those individuals about specific types of claims they might be able to pursue against a specifically identified attorney, qualifies as statements or conduct that arose out of a commercial transaction involving the type of legal services Kassab provides. See Miller Weisbrod, 511 S.W.3d at 191 (concluding that attorneys’ speech “arose from the sale of their legal services to potential customers” reached through their attorney advertisements). Kassab argues that Pohl’s claims do not arise out of his conduct because the alleged theft of the client list would have preceded the advertisements to Pohl’s former clients, who were Kassab’s potential clients. We do not agree that the alleged tortious acts can be divided in such a way to avoid the commercial-speech exemption. Kassab was sued for buying an allegedly stolen client list that identified people solicited by another attorney in the past and then targeting those same people to sue the other attorney. Pohl alleges a conspiracy to undertake this scheme. The commercial-speech exemption applies to statements and conduct. Kassab’s conduct that is alleged to be tortious involved the alleged conspiracy to 14 steal, sell/buy, and use the client list for later client solicitation. We conclude Kassab’s statements or conduct arose out of a commercial transaction involving the kind of goods or services Kassab provides. See Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 605 (Tex. App.—San Antonio 2018, pet. denied) (stating that courts of appeals have construed phrase “arising out of” in TCPA’s commercial- speech exemption broadly to include statements and conduct that are “ancillary to” a commercial transaction). Finally, the intended audience of the Kassab defendants’ statement or conduct were individuals with potential legal claims who Kassab sought to represent in barratry suits against Pohl. These were Kassab’s potential clients to whom he offered the kind of legal services he provides. See id. Thus, the commercial-speech exemption applies as to the claims against the Kassab defendants, leaving the TCPA summary-dismissal procedures unavailable to that subset of defendant/movants. See Castleman, 546 S.W.3d at 691 (under different facts, concluding that nonmovant’s statements did not arise out of his sale of goods or services because he was “not pursuing business for himself” when he made the statements). B. The Nicholson defendants Pohl’s petition alleges that Tina Nicholson and her law firm assisted PMG, as its counsel, in selling his client list to Kassab and then entered into a business 15 relationship with Kassab to assist in providing legal services to the identified clients for a shared fee. Nicholson and her firm are in the business of selling legal services. Attorney efforts to engage prospective clients and provide them with paid legal services meet the first element of the Castleman test. See Miller Weisbrod, 511 S.W.3d at 189 (stating that “case law appears settled [that] lawyer advertising is commercial speech”) (internal quotation marks omitted). According to Pohl’s allegations, the Nicholson defendants arranged with the PMG defendants to obtain, maintain, and use Pohl’s client list and his other proprietary information for their profit. Nicholson allegedly facilitated the sale to Kassab and became his co-counsel in pursuing legal claims against Pohl on behalf of Pohl’s former clients, for a legal fee. Thus, the claims against the Nicholson defendants are based on their alleged statements and conduct in their capacity as sellers of legal services. See Miller Weisbrod, 511 S.W.3d at 191; NCDR, 745 F.3d at 745–53; cf. Toth v. Sears Home Improvement Prods., Inc., 557 S.W.3d 142, 154 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (concluding that speech did not fall within commercial-speech exemption because nonmovant had not “proposed a commercial transaction” and did not make statements to secure business for himself). 16 The alleged facilitation of the sale of Pohl’s client list to Kassab as PMG’s counsel, followed by the creation of a business relationship with Kassab to become Kassab’s co-counsel and share in the representation of the identified potential clients for a shared fee, qualify as statements or conduct that arose out of a commercial transaction involving the type of legal services Nicholson provided. See Miller Weisbrod, 511 S.W.3d at 191. Finally, the intended audience of the Nicholson defendants’ statement or conduct were, first, Kassab, and then Pohl’s former clients. Nicholson’s alleged involvement in selling the client list to Kassab and then using the client list to solicit shared clients meets this fourth requirement. The intended audience were actual or potential customers of Nicholson for the legal services she provides. See id. Nicholson argues that Pohl’s allegations are not true and that Nicholson never became an “attorney of record” in the barratry suits Kassab brought against Pohl. Nicholson does not point to any record evidence in support of this position. And we view the pleadings and evidence in the light most favorable to the non-movant. Dolcefino, 540 S.W.3d at 199 (citing Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214 (Tex. App.—Houston [1st Dist.] 2014, no pet.)); MediaOne, L.L.C. v. Henderson, 592 S.W.3d 933, 939 (Tex. App.—Tyler 2019, pet. denied). Nicholson seeks to segregate its alleged activities to argue that it did not make statements about its own legal services to potential buyers of those services when it 17 allegedly assisted PMG with the sale of the client list to Kassab. We do not agree that the alleged conspiracy scheme can be severed to avoid the commercial-speech exemption. Under Pohl’s allegations, these parties conspired to place his client list in Kassab’s hands so that Kassab could pursue barratry claims against Pohl. The Nicholson defendants’ alleged conduct in the conspiracy touched on all aspects of the transfer and use of Pohl’s client list to obtain legal clients for Kassab, including Nicholson’s alleged role as Kassab’s co-counsel in the barratry suits. See Elkins, 553 S.W.3d at 605 (noting broad reading of commercial-speech exemption phrase “arising out of” by courts of appeals). Thus, the commercial-speech exemption applies as to the claims against the Nicholson defendants, leaving the TCPA summary-dismissal procedures unavailable to that subset of defendant/movants. C. The PMG defendants Pohl’s petition alleges that PMG, now owned by Favre, stole his client list and sold it for a profit to Kassab. According to Favre’s affidavit, PMG’s marketing lists contain the names of thousands of people who had been Pohl’s clients or from whom Pohl solicited business. Favre averred that these lists have monetary value and constitute “one of Precision’s most valuable assets.” According to Favre, PMG likely would have the opportunity to sell the same client list to another buyer. This evidence meets the 18 requirement that PMG be primarily engaged in the business of selling goods—here, client lists. According to Pohl’s allegations, the PMG defendants obtained, maintained, and used Pohl’s client list for their profit. PMG allegedly sold Pohl’s client list to Kassab for Kassab to generate potential clients. Thus, the claims against the PMG defendants are based on their alleged statements and conduct in their capacity as sellers of the identified goods. See ETX Successor Tyler v. Pridgeon, 570 S.W.3d 392, 398 (Tex. App.—Tyler 2019, no pet.). The alleged sale of Pohl’s client list for a profit qualifies as conduct that arose out of a commercial transaction involving the type of goods PMG provides as a marketing entity. See Woodhull Ventures 2015, L.P. v. Megatel Homes III, LLC, No. 03-18-00504-CV, 2019 WL 3310509, at *3 (Tex. App.—Austin July 24, 2019, no pet.). Additionally, the intended audience of the PMG defendants’ statements or conduct was Kassab, who became a customer of PMG’s when Kassab allegedly bought the client list for his own use. The goods or services allegedly bought were the type of goods or services PMG provides. The PMG defendants argue that, even if the commercial-speech exception applies to PMG, Pohl has identified no speech or conduct by Defendant Scott M. Favre P.A., L.L.C. or Defendant Scott Favre, individually—separate from the speech or conduct of PMG—that proposed a business transaction involving the sale of 19 goods or services to intended customers. In other words, the PMG defendants argue that Pohl failed to show why an exemption to the TCPA applies to each and every defendant/movant within the PMG group of defendants. But, in the same vein, the PMG defendants failed to argue why the TCPA would apply to each of them separately from the other two. At all times, when arguing for application of the TCPA, the PMG defendants assert that they, collectively, exercised their protected rights, thereby invoking the TCPA. Having chosen to rely on their collective activity to invoke the TCPA, they seek to burden Pohl with the added requirement of showing application of the exemption to each separately. The PMG defendants have provided no legal authority to support aggregate analysis for coming within the TCPA but segregation for purposes of applying the TCPA’s listed exemptions. See TEX. R. APP. P. 38.1(i). The commercial-speech exemption applies to the claims against the PMG defendants, leaving the TCPA summary-dismissal procedures unavailable to that subset of defendant/movants as well. Conclusion Because the commercial-speech exemption applies to all three groups of defendant-movants, we conclude there was no error in the denial of all three TCPA motions to dismiss. We have not analyzed and offer no view on the underlying claims in this suit. We hold merely that the TCPA summary-dismissal procedures 20 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 Panel consists of Chief Justice Radack and Justices Landau and Hightower. 21 APPENDIX TAB 3 JUDGMENT Court of Appeals First District of Texas NO. 01-18-01143-CV LANCE CHRISTOPHER KASSAB, LANCE CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAW FIRM, TINA NICHOLSON, BAKER NICHOLSON, LLP D/B/A BAKER NICHOLSON LAW FIRM, SCOTT FAVRE, SCOTT M. FAVRE PUBLIC ADJUSTER, LLC, AND PRECISION MARKETING GROUP, LLP, Appellants MICHAEL A. POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC, Appellees Appeal from the 189th District Court of Harris County. (Tr. Ct. No. 2018-58419). This case is an appeal from the interlocutory denial of a TCPA motion by operation of law on December 5, 2018. After submitting the case on the appellate record and the arguments properly raised by the parties, the Court holds that the trial court’s order contains no reversible error. Accordingly, the Court affirms the trial court’s order. The Court orders that the appellants, LANCE CHRISTOPHER KASSAB, LANCE CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAW FIRM, TINA NICHOLSON, BAKER NICHOLSON, LLP D/B/A BAKER NICHOLSON LAW FIRM, SCOTT FAVRE, SCOTT M. FAVRE PUBLIC ADJUSTER, LLC, AND PRECISION MARKETING GROUP, LLP, jointly and severally, pay all appellate costs. The Court orders that this decision be certified below for observance. Judgment rendered September 17, 2020. Panel consists of Chief Justice Radack and Justices Landau and Hightower. Opinion delivered by Justice Landau. APPENDIX TAB 4 2017 Tex. Civ. Prac. & Rem. Code § 27.010 2017 Texas Code Archive Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code > Title 2 Trial, Judgment, and Appeal > Subtitle B Trial Matters > Chapter 27 Actions Involving the Exercise of Certain Constitutional Rights Sec. 27.010. Exemptions. (a) This chapter does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney. (b) This chapter does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer. (c) This chapter does not apply to a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action. (d) This chapter does not apply to a legal action brought under the Insurance Code or arising out of an insurance contract. History Enacted by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, effective June 17, 2011; am. Acts 2013, 83rd Leg., ch. 1042 (H.B. 2935), § 3, effective June 14, 2013. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2020 All rights reserved. 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The filer served this document via email generated by the efiling system on the date and to the persons listed below: David Kassab Bar No. 24071351 david@kassab.law Envelope ID: 49151702 Status as of 12/22/2020 7:14 AM CST Associated Case Party: LanceChristopherKassab Name BarNumber Email TimestampSubmitted Status Lance Kassab eserve@kassab.law 12/21/2020 7:03:01 PM SENT Kevin Dubose kdubose@adjtlaw.com 12/21/2020 7:03:01 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Marie Jamison jamison@wrightclosebarger.com 12/21/2020 7:03:01 PM SENT Jessica Barger barger@wrightclosebarger.com 12/21/2020 7:03:01 PM SENT Todd Taylor ttaylor@jandflaw.com 12/21/2020 7:03:01 PM SENT Jocelyn Holland jholland@jandflaw.com 12/21/2020 7:03:01 PM SENT Chris Pappas cpappas@krcl.com 12/21/2020 7:03:01 PM SENT Andrew Sarne asarne@krcl.com 12/21/2020 7:03:01 PM SENT Associated Case Party: Michael Pohl Name BarNumber Email TimestampSubmitted Status John Frizzell jfrizzell@reynoldsfrizzell.com 12/21/2020 7:03:01 PM SENT Solace Southwick ssouthwick@reynoldsfrizzell.com 12/21/2020 7:03:01 PM SENT