THIS Retainer and Fee Agreement and Authority to Represent (“Agreement”) is between the undersigned, identified in the signature block below, (hereafter “Client”) and Dapeer Law, P.A. (“Counsel”).
1. SCOPE OF REPRESENTATION. Client may be a class member entitled to a payment in a settled class action lawsuit styled: In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, MDL No. 1720 (MDK) (JO), currently pending in the United States District Court for the Eastern District of New York (“Action”). The Action concerns excessive fees charged to businesses for accepting Visa and Mastercard cards in violation of antitrust laws. To obtain a payment from the settlement, class members must submit valid timely and complete written claim submissions (“Claims”) to the court-assigned settlement administrator, Epiq Class Action & Claims Solutions, Inc. (“Settlement Administrator”). Client understands the Settlement Administrator and Class Counsel are available at no cost to Client to assist during the Claims-filing period. The Claim forms are not yet available for completion and submission by class members. Once available, failure to submit a valid Claim will result in class members releasing their Claims without receiving payment in return. By this Agreement, Client engages Counsel to serve as Client’s counsel, agent, and representative in the submission of Client’s Claim on Client’s behalf.
2. ATTORNEY’S FEES. In consideration for representing Client and providing the services outlined in section 4 below, Client agrees to pay Counsel an attorneys’ fee of thirty percent 30% of Client’s gross dollar recovery from the settlement. If there is no recovery, Client shall not be responsible for the payment of any attorneys’ fees and will owe Counsel nothing.
3. INVESTIGATION/COUNSEL TERMINATION. Following Client’s engagement of Counsel, Counsel will investigate and confirm Client is a class member eligible for payment from the settlement. If Counsel determines Client is not a class member, or if Counsel otherwise chooses not to submit a Claim for Client, Counsel may, at any time, terminate this Agreement and withdraw from representing Client. In the event of withdrawal termination, Counsel will provide email notice to Client.
4. SCOPE OF ENGAGEMENT. Client has retained Counsel to handle the Claims submission process on its behalf acknowledging there is significant value to Client to have Counsel represent it in this capacity. Client acknowledges that, although there is no requirement that class members retain a lawyer to file Claims on their behalf, Client nevertheless has selected and engaged Counsel to file Client’s Claim and to represent Client’s interest in this Action. Notwithstanding, Client grants Counsel with full and complete authority to communicate with the Settlement Administrator on Client’s behalf and to make any and all decisions on Client’s behalf related to Client’s status as a class member and in connection with Client’s Claim. Counsel shall serve as the sole representative for Client in connection with the Action and in dealing with the Settlement Administrator for the entirety of the Claim process; receive from the Settlement Administrator Client’s Claim form; prepare, complete, and submit Client’s Claim to the Settlement Administrator; communicate as necessary with the Settlement Administrator or Class Counsel about Client, Client’s Claim, and the Claim process; respond to any follow-up requests from the Settlement Administrator for additional information or documentation necessary to prove a valid Claim; and endorse Client’s signature on any document needed to present the Claim, receive any and all payments on Client’s behalf, endorse Client’s signature on any document needed to present the Claim or on any check issued to Client in payment of the Claim; and, if applicable, deposit any check in Client’s name into Counsel’s Trust Account.
5. CLIENT PAYMENT. Client acknowledges Client’s payment will be a pro rata share of the remaining money in the settlement fund after payment of Class Counsel’s attorneys’ fees and costs, Settlement Administration costs, service awards to the Action’s class representatives, and payments allocated to those class members who opted-out of the settlement. It is not possible to know the amount of Client’s payment until all Valid Claims for all class members are submitted. It is the intention of the parties to have the Settlement Administrator pay Client directly for its share of the settlement proceeds (after deduction for attorneys’ fees) and to pay Counsel directly for its attorneys’ fees. Client agrees this Agreement shall serve as an instruction to the Settlement Administrator to make payments in that fashion. However, in the event the Settlement Administrator pays Counsel for the full amount of Client’s settlement and the payment is in the form of a check in Client’s name, Client gives Counsel power of attorney to endorse Client’s name on the check and authorizes Counsel to deposit the check in Counsel’s Trust Account, for Counsel to retain its attorneys’ fees, and to issue Client’s payment to Client. Lastly, in the event a check or electronic payment for the full amount of the settlement is sent directly to Client from the Settlement Administrator, Client agrees to within 3 days deliver Counsel its full attorneys’ fees by check or wire transfer.
6. OBLIGATION FOR PAYMENT OF ATTORNEY’S FEES IF CLIENT TERMINATES. If Client terminates this Agreement for any reason after three days from the date it was signed by Client, and termination is before submission of Client’s Claim to the Settlement Administrator, and the Claim is later approved, Counsel shall be entitled to be paid four hundred dollars ($400.00) per hour for services rendered prior to the date of termination. If Client terminates this Agreement for any reason after three days from the date it was signed by Client, and termination is after the submission of Client’s Claim to the Settlement Administrator, and the Claim is later approved, Counsel shall be entitled to payment of the entire 30% contingent attorneys’ fee. In either termination event described in this paragraph, Client shall, at Counsel’s request, inform the Settlement Administrator of Counsel’s entitlement to payment and direct the Settlement Administrator to issue payment of the attorneys’ fees and costs owed directly to Counsel.
7. TAX ADVICE EXCLUDED. Counsel’s representation of Client does not include any tax-related advice, including, but not limited to, advice relating to the effect of submitting the Claim in the Action or the taxability of Client’s losses or the amount of Client’s payment hereunder.
8. ASSOCIATION OF ADDITIONAL COUNSEL. Counsel shall have the option to associate with additional lawyers or law firms. Client will not have to pay any additional attorneys’ fees should Counsel associate with additional counsel.
9. 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 mailing 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 be available, upon Counsel’s request, for meetings, telephone calls, or other events as Counsel or the Settlement Administrator deems necessary. If required by the Settlement Client agrees to provide a sworn statement under penalty of perjury to support the Claim.
10. CLIENT’S REPRESENTATIONS AND ACKNOWLEDGMENTS. Client represents that the rights to the proceeds of the Claim have not been sold, assigned, or conveyed to any other person or entity, and that the individual signing this Agreement for Client has the authority to execute and bind Client to the obligations hereunder. Likewise, in the event the Client is a dissolved entity, the individual signing this agreement for Client acknowledges the signor is the rightful and lawful successor in interest to the entity entitled to receive the payment under the settlement and that no other party has claimed or is claiming entitlement to some or all of the payment. Client also represents that is not a debtor in any current bankruptcy nor is it a party to any franchise agreement. Lastly, Client acknowledges it has not submitted a Claim on its own behalf in this Action, Client will not submit a Claim in this Action absent acknowledging to the Settlement Administrator Client is represented by Counsel, and that Client has not signed an agreement with any other party, lawyer or non-lawyer, to represent Client in the filing of a Claim in this Action. Lastly, Client acknowledges Counsel is providing value in this matter by using her experience and knowledge in class actions to ensure Client’s Claim is properly submitted at an early stage and to ensure that Client’s Claim is filed correctly and timely. Client has access to ask Counsel any questions about the Action, the settlement, the Claims process, to supplement the Claim with additional documentation and information in the event Client or Counsel dispute the amount of the settlement offer, to advise, and to otherwise have the questions answered to the best of Counsel’s ability. Further, Client is aware that by working with Counsel it is certain to have its Claim submitted when typically in claims-made settlements in class actions, on average only 2-7% of class members submit claims. This is an important factor in retaining Counsel – even if Client could submit the Claim without having to pay a fee to anyone - as it is possible Client would have ignored the Claim form when it is eventually sent by the Settlement Administrator.
11. SWORN STATEMENT. To support the Claim, Client may be required to sign a sworn statement under penalty of perjury. Client authorizes Counsel to make that sworn statement and sign on its behalf. By signing this Agreement, the individual signing for Client is signing under the penalties of perjury that the information submitted to Counsel in connection with its eligibility for Claim submission is true and accurate, including that the signor has the full authority to sign for Client, the company took Visa and Mastercard as a form of payment between 2004 and 2019, that Client did not file for bankruptcy at any time, and that Client has not assigned its right to the proceeds from the settlement.
12. CONFIDENTIALITY. The Parties agree to keep the terms of this Agreement confidential between each other, with the exception that the Parties may share the Agreement with the Settlement Administrator, Class Counsel, or the Court, if so ordered.
13. OTHER SERVICES. Counsel is only representing Client to submit Client’s Claim in the Action, and for no other purpose.
14. ADDITIONAL INFORMATION. More information about the Action and the settlement may be found at the settlement website: https://www.paymentcardsettlement.com/en
15. TOTAL AGREEMENT. This Agreement represents the total agreement between Client and Counsel regarding attorneys’ fees and litigation expenses 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 Counsel.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Florida, without regard to its conflict of laws and principles. If any term of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall remain in effect.
17. DISPUTE RESOLUTION; JURY TRIAL WAIVER. To the extent Client and Counsel are unable to amicably resolve in good faith any dispute between them arising out of, or in connection with, this retention, the dispute must be submitted to arbitration before AAA, Inc. (JAMS) in Miami, Florida for resolution. The arbitration shall be administered by a single AAA arbitrator pursuant to AAA’s Comprehensive Arbitration Rules & Procedures, under which Client and Counsel shall share equally in the costs of the arbitration, unless the arbitrator enters a ruling otherwise reallocating the parties’ division of those costs. Judgment on any arbitral award may be entered in any court of competent jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Client and Counsel agree that Florida law applies in the determination and adjudication of the parties’ rights, responsibilities, and obligations in any such dispute. Client may wish to consult another attorney to evaluate the arbitration requirement in this contract. This agreement contains provisions requiring arbitration of certain disputes. An arbitration proceeding is a way to resolve a dispute without use of the court system. By entering into an Agreement that requires arbitration as the way to resolve certain disputes, Client waives the right to go to court to resolve those disputes by a judge or jury. CLIENT WAIVES ANY RIGHT TO A JURY TRIAL. These are important rights that should not be given up without careful consideration and consultation with another attorney about these rights.
