Agreement
SIGN UP BELOW
RETENTION AGREEMENT
This Retention Agreement (“Agreement”) is by and between __{firstName} {lastName}__ (“Client”) and the law firm of Kopelowitz Ostrow P.A. (“Counsel”). The Agreement shall be considered effective only after Counsel has counter-signed the Agreement. Absent Counsel’s counter-signature, this Agreement creates no obligation, or duty for Counsel to represent Client.
1. Scope of Representation.
a. In General. Client authorizes Counsel to represent Client, and to take all actions that, in the professional opinion of Counsel, may be necessary to investigate and prosecute claims arising out of or relating to a cybersecurity incident in which Client’s personal and sensitive information was impacted (“Claim”).
b. Potential Class Claims.
i. Client authorizes Counsel to file claims not only on behalf of Client, but also on behalf of other similarly situated individuals with claims similar to the Claims (“Potential Class”). Client authorizes Counsel to file class action litigation in federal or state court on behalf of Client as a representative of the Potential Class, if Counsel, in its professional judgment, determines that Client is a suitable named plaintiff and potential Class Representative. If required by contract, Client also authorizes Counsel to arbitrate Client’s Claim, individually or as part of a mass arbitration.
ii. Client understands that in the event of litigation or a settlement on behalf of the Potential Class, Client and Counsel will have certain specific responsibilities that are described in Exhibit A (“Duties to the Class”).
c. No Obligation to File Lawsuit Or Use Client As Named Plaintiff. This Agreement does not obligate Counsel to file any lawsuit that Counsel, in its professional judgment, concludes does not have merit, or cannot be successfully pursued at reasonable expense. In addition, Counsel may, in its professional judgment, decide not to use Client as a named plaintiff in class action litigation on behalf of the Potential Class, but instead to use another member(s) of the Potential Class as a named plaintiff(s), in which event Client would have neither the rights nor the obligations associated with being a named plaintiff or a Class Representative.
d. Counsel’s Right to Dismiss Lawsuit. In the event Counsel determines in its professional judgment, after filing a lawsuit in which Client is a named plaintiff, that Client’s claim no longer has merit, or that it is in the Potential Class’ best interest for Client to no longer be a named plaintiff, Counsel shall notify Client in writing of that determination, and Counsel shall be permitted to dismiss Client’s individual Claim without prejudice, preserving Client’s individual Claim.
e. Tax Advice Excluded. Counsel’s representation of Client does not include any tax-related advice, including advice relating to the taxability of any monies recovered by Counsel on Client’s behalf.
2. Association of Additional Counsel. Counsel shall have the option, on reasonable consultation with Client, to associate with additional counsel or law firms to assist in prosecuting the Claims. Those additional counsel or law firm(s) may represent Client jointly with Counsel. Client shall have the same obligations to additional counsel and their law firm(s) as they do to Counsel. In the event Counsel associates with other counsel or law firms, there will be no additional cost to Client.
3. No Guarantees As To Outcome. During the course of this representation, Counsel may express to Client opinions concerning possible outcomes. These expressions of opinion are not guarantees. No guarantee of any particular outcome can be made in litigation matters generally, or in this matter specifically. In any contested matter that is litigated in court, there is always a possibility that a court or a jury may ultimately rule in favor of the defendant, despite best efforts of the plaintiff’s attorneys.
4. Duties of Client. Client agrees to cooperate fully with Counsel during the course of representation, to advise Counsel fully of all pertinent matters, and to provide truthful and accurate information to the best of Client’s knowledge. Client agrees to keep Counsel informed of the Client’s address, email address, and telephone number(s) at all times. Client agrees to take appropriate precautions to protect attorney work product and attorney-client communications. Client agrees to make himself or herself available, upon Counsel’s request, for meetings, telephone calls, depositions, court hearing, trials, or other events as Counsel deems necessary. In the event of settlement or litigation on behalf of the Potential Class, Client agrees to fulfill the Duties to the Potential Class set forth in Exhibit A. Client’s failure to comply with these various duties may result in Counsel’s termination of its representation of Client.
5. Decision Making and Settlement Authority. Counsel has the right to make strategic and legal decisions relating to prosecution of the Claims, on the basis of Counsel’s professional knowledge, experience, and judgment. Counsel will not, however, settle the individual claims of Client without the approval of the Client. Client agrees not to settle Client’s individual Claim without approval of Counsel. Claims brought on behalf of the Potential Class may not be settled without approval of Counsel, and Client acknowledges that any such settlement will also be subject to court approval. In the event of an individual settlement, Client acknowledges that once Counsel informs Client of the settlement and its terms, be it verbal or in writing, and Client accepts the terms, Counsel has Client’s authority and consent to dismiss Client’s lawsuit, with or without prejudice, even if the settlement documentation has yet to be signed by the Client. Client also authorizes Counsel to sign the settlement documentation on Client’s behalf.
6. Documents. Client shall be entitled to review his or her file; however, Counsel’s work product, including any documents obtained from or created on behalf of the Potential Class, shall be the property of Counsel. At the termination of representation, Counsel may retain copies of any documents provided by the Client. Upon Client’s request, Counsel will return any original documents to Client. Counsel will have no responsibility for retaining any documents provided by Client for more than three years after the termination of representation.
7. Multiple Representation. Client agrees that Counsel may represent one or more additional clients who also are members of the Potential Class, or who otherwise have claims that relate to or overlap with Client’s Claim (“Additional Clients”).
a. No Present Conflict. In any matter in which an attorney represents multiple clients, there is always the possibility that a conflict may develop between the clients. Counsel is not presently aware of any such conflict. Client expressly consents to Counsel’s representation of Additional Clients despite the possibility of conflict.
b. In the Event of a Conflict. If a material, non-waivable conflict arises that, in the professional judgment of Counsel, would or might preclude further multiple representation of the Client or any Additional Clients, then Counsel may, subject to any necessary court approval, discontinue representation of Client or one or more Additional Clients, as deemed appropriate based on the sole judgment of Counsel.
c. Communications. Any information provided by Client in confidence to Counsel may be shared with the Additional Clients, or any other members of the Potential Class, but shall be privileged as to any other persons.
8. Attorneys’ Fees and Litigation Costs.
a. Litigation Costs. Client understands that Counsel will advance all litigation and investigative costs in connection with representing Client and the Potential Class under this Agreement and that, therefore, Counsel has an ownership interest in the causes of action and Claims to the extent of the fees and reimbursable costs payable to Counsel under this Agreement. Client understands and agrees that Counsel shall be reimbursed out of any recovery as set forth below for all costs Counsel advances, before any distribution of attorneys’ fees or any distribution to Client. For purposes of this Agreement, such costs may include, but are not limited to, filing fees and other court costs; costs of service by special process; costs of court reporters, videographers, and related deposition or transcript costs; copying and printing costs; computerized legal research; document reproduction; coding and organization services; administrative processing fees; postal and delivery charges; graphic design; travel costs; consultant fees and costs; and investigative and expert witness services.
b. Attorneys’ Fees and Costs In the Event of No Recovery. In the event there is no recovery, Counsel will not be entitled to recover any attorneys’ fee or costs from Client, except in the event that Client terminates representation, as explained below.
c. Attorneys’ Fees and Costs In the Event of a Class Recovery. In the event of a recovery or settlement on behalf of the Potential Class, or any similar class, Counsel will apply to the court for reimbursement of their costs and payment of their attorneys’ fees pursuant to any applicable law. In addition, Client understands and agrees that Counsel has the right to seek reimbursement of attorneys’ fees and costs pursuant to the Common Fund doctrine or the lodestar method from any class-wide recovery that may be obtained. Client agrees to support Counsel’s request for attorneys’ fees and costs out of the recovery. Client acknowledges those attorneys’ fees are Counsel’s attorneys’ fees and that Counsel is prohibited from sharing any attorneys’ fees award with Client.
d. Attorneys’ Fees and Costs In the Event of an Individual Recovery. If Client obtains an individual monetary recovery or settlement for any Claim prosecuted under this Agreement, whether by settlement, arbitration award, or court judgment, Counsel shall be entitled to the greater of: (1) 35% of any settlement or recovery obtained for the Client; (2) any attorneys’ fees paid by the defendant(s) as provided below; or (3) any court awarded attorneys’ fees. In addition, Counsel shall be entitled to reimbursement of litigation costs Counsel has advanced. The attorneys’ fee will be deemed earned in full upon the issuance of a final order of a court or agency of competent jurisdiction, arbitrator, or upon execution by all parties of a settlement agreement. Payment of the attorneys’ fee shall be deferred until recovery is effectuated, whether or not effectuated by Counsel.
e. Attorneys’ Fees Paid by the Defendant. Client understands and agrees that all attorneys’ fees that may be paid by the defendant(s), whether by settlement, arbitration award, or court judgment, or pursuant to any law, shall belong solely to Counsel. Client acknowledges that in an individual settlement, Counsel will negotiate a separate amount for the Client and a separate amount of attorneys’ fees for Counsel. Client understands that in many circumstances the attorneys’ fees may be well in excess of the amount Client receives for Client’s Claim. Client understands that Counsel may not share Counsel’s attorneys’ fees with Client. Counsel will make any necessary allocation of attorneys’ fees among Counsel and additional counsel with Counsel has associated for purposes of pursuing Client’s Claim.
9. Attorneys’ Lien. You hereby grant Counsel a lien on any Claim that is the subject matter of this Agreement. The lien will be for any sums due and owing by Client to Counsel at the conclusion or termination of Counsel’s services. The lien will attach to any recovery Client may obtain based on the Claim that is the subject matter of this Agreement, whether by judgment, settlement, or otherwise.
10. Termination. Either party may terminate representation under this Agreement, but only as set forth below:
a. Termination by Counsel.
i. In light of the fact that discovery of currently unknown facts or future changes in existing law may make the Claim too risky or uncertain to pursue, and that Counsel are willing to advance costs and attorney time on behalf of the Client with no assurance of recovery, Counsel may terminate the representation if, in the sole judgment of Counsel, the chances of success do not justify going forward with Client’s Claim, or continuing representation would result in an unreasonable financial burden to Counsel, or in the case of a conflict. Counsel shall be entitled to file a notice dismissing Client’s individual Claim following reasonable notice to Client. In the case of termination by Counsel under this paragraph, Client understands and agrees that Counsel retains the right to recover costs and attorneys’ fees for work to date of termination out of any monetary recovery Client ultimately obtains for any Claim previously prosecuted by Counsel under this Agreement.
ii. Counsel may terminate representation if Client fails to abide by his or her obligations as set forth in this Agreement. Counsel shall be entitled to file a notice dismissing Client’s individual Claim following reasonable notice to Client. In the event of such termination, Client understands and agrees that Counsel retains the right to recover costs and attorneys’ fees for work to date of termination out of any monetary recovery Client ultimately obtains for any Claim previously prosecuted by Counsel under this Agreement.
iii. In any case of termination of representation by Counsel, Client will not be responsible for payment of attorneys’ fees and costs that exceed Client’s ultimate monetary recovery.
b. Termination By Client. Client may terminate Counsel by delivering to Counsel a written notice, stating that Client has decided to terminate the representation, and providing an explanation of the reason for that decision. Such termination shall become effective only upon Counsel’s receipt of such written notice. In the event of such termination, Client understands and agrees that Counsel retains the right to recover costs and attorneys’ fees equal to the reasonable value of the service Counsel provided to Client or the Potential Class out of any monetary recovery Client ultimately obtains for any Claim (individual or class) previously prosecuted by Counsel under this Agreement.
c. Termination Upon Resolution. Counsel’s representation of Client will automatically terminate upon final resolution or legal disposition of Client’s Claim, whether by settlement, arbitration award, or court judgment, and payment of all outstanding attorneys’ fees and costs, as provided for herein.
11. Total Agreement. This Agreement represents the total agreement between Client and Counsel regarding attorneys’ fees and costs and other terms involving representation of Client by Counsel. Any modifications, additions, or other changes to this Agreement shall be made only in writing and signed by Client and authorized representatives of Counsel.
12. Governing Law. This Agreement shall be governed by the laws of the State of Florida.
BY SIGNING BELOW, CLIENT INDICATES THAT CLIENT HAS READ THE TERMS OF THIS RETENTION AGREEMENT, AND AGREES TO THOSE TERMS. FURTHER, AS STATED ABOVE, THIS AGREEMENT IS NOT EFFECTIVE UNLESS COUNTER-SIGNED BY AN ATTORNEY AT KOPELOWITZ OSTROW P.A.
________________________________________ Date: __{date}_
{firstName} {lastName}
{address}
________________________________________ Date: ________
KOPELOWITZ OSTROW P.A.
1 West Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
EXHIBIT A
DUTIES TO THE CLASS
If you represent a class in litigation or settlement, you and your attorneys will have to meet certain legal standards and will have certain special responsibilities that do not exist in a purely individual case. If you do not meet these standards, the Court will not appoint you as a class representative. Below is a short description of those duties and responsibilities. Please contact us at any time to further clarify any of these points or if you have any questions whatsoever.
1. You Are Representing the Interests of the Class. “The class” is the group of similarly situated people who have been affected by the challenged conduct. You and your attorneys will owe a “fiduciary duty” to the class. In general, this means that your and our primary goal is to advance the interests of the class, which includes you, ahead of your own personal interests or objectives, and that you are obligated to seek the best possible result for the class, even if it is not the best possible result for you personally.
2. Objectives of the Litigation or Settlement. The two main objectives of any litigation or settlement on behalf of the class will be to obtain fair monetary relief to compensate the losses of the class and to establish systematic non-monetary, programmatic changes at the company to stop the challenged conduct from occurring or prevent it from happening again in the future.
3. Duties as a Class Representative. As a class representative, the Court requires that you will adequately and fairly represent the class. This is your duty. Here is how you are expected to accomplish that duty:
a. You must be generally familiar with the litigation.
i. This does not mean that you must know every aspect of this litigation. We will keep you informed of major events and this will satisfy your duty. If a complaint is filed, you should read the complaint and understand it generally. You should know who the parties are. You should know why you are suing.
ii. You may and should confer with us at any time you feel it is appropriate to do so.
b. You must vigorously prosecute the litigation. This basically means you will authorize your attorneys to do what is necessary to successfully prosecute this case on behalf of the class. You have done so, and we will vigorously pursue this case.
c. You must hire lawyers experienced in class action litigation. Your lawyers have national experience in class actions. We will select co-counsel and local counsel, when necessary, who will have sufficient experience to satisfy the Court.
d. You must retain all records that could pertain to your claims. It is a requirement that a party to a lawsuit preserve all records that could be evidence in the lawsuit. This includes documents that currently exist or documents that exist in the future, including electronic documents (i.e., emails and text messages). When in doubt, please retain the documents. Please ask us before destroying or deleting any document.
4. Notice to the Class. You may be responsible for providing notice to the class, depending on whether the federal rules or the judge requires such notice. We will undertake this task on your behalf and be responsible for all costs. Notice is usually accomplished by mail or email to identifiable class members and publishing the notice in a newspaper or on a website.
5. Time Commitments. You will be expected to make certain time commitments to the case. These typically include making yourself available for regular meetings and conference calls with the attorneys and with other potential class members. If a case is filed, you will probably be deposed, and you will have to spend several days preparing for and attending the deposition. If a case is filed you will have to spend time answering written questions, with the help of your attorneys, and gathering up any documents you may have that are related to the case. If a case is filed or if there is a class settlement, you may have to appear in court from time to time.
6. Confidentiality. You will be expected to protect certain information from being disclosed to anyone other than your attorneys. This means that you should not discuss litigation strategy or other confidential matters with anyone else, including other potential class members, unless one of your attorneys is present. There also may be court orders or agreements with the defendant that require certain documents, discussions or other matters to be kept secret. In those circumstances, we will review those orders or agreements with you, and you will be expected to abide by them. Violating one of those orders or agreements could have very serious consequences for your case.
7. No Special Treatment. You have not been promised any special treatment above the treatment which may be awarded to other class members. If successful, we will probably ask the judge to award you additional compensation for the extra time and effort you expend as a class representative and for having the courage to challenge defendant’s conduct. We cannot guarantee that the judge will do so.
8. Publicity. In general, the attorneys will only publicize information about you or about the case if a case is filed, or if there is a class settlement. In those circumstances, certain information about you and the case will automatically become public, and may receive a great deal of media or other public attention. At that point, the attorneys will probably publicize information about you and about the case consistent with the applicable Rules of Professional Conduct, and will generally keep you advised of major developments in that regard. You do not have to speak with any reporters personally if you do not wish to do so. In that case, we will speak on your behalf.
9. You Do Not Have a Duty to Investigate or to Be an Expert. As an intimidation tactic, defendants may ask you in a deposition what investigation you have undertaken to fulfill your duty as a class representative. You have no such duty personally; this is why you have hired experienced lawyers. We intend to conduct a thorough investigation and you have fulfilled your duty by relying on us to do so. We will and have discussed with you our investigation. Nonetheless, it is a good practice for you to familiarize yourself with the allegations in the Complaint, if one is filed, to keep a file on this matter, to read information we provide to you, and to stay generally abreast of developments.
10. Settlement. If this case settles and does not go to trial, the settlement must be approved by the Court. You are entitled to object to the settlement if you do not agree with our recommendation to settle. We will consult you before recommending a settlement.
11. Judicial Approval. In prosecuting a class action, all of our actions are subject to judicial supervision and approval and courts take that approval seriously.