Aetna Class Action Retainer
ATTORNEY-CLIENT FEE AGREEMENT
ATTORNEY-CLIENT CLASS ACTION FEE AGREEMENT
This document (the “Agreement”) is the written fee contract that California law requires lawyers to have with their clients.
The Attorneys will provide those legal services reasonably required to represent You and the potential class in this matter. The Attorneys will take reasonable steps to keep You informed of significant developments relating to your matter and respond to Your inquiries. Unless You and the Attorneys make a different agreement in writing, this agreement will govern all future services the Attorneys agree to perform for You.
You also agree to preserve, retain and make available to the Attorneys any and all paper, electronic and other types of documents, data and tangible things that you presently have in your possession while your matter and any appeals thereon are pending. “Documents, data, and tangible things” is to be interpreted broadly to include writings; records; files; correspondence; reports; memoranda; calendars; diaries; minutes; electronic messages; voicemail; E-mail; telephone message records or logs; computer and network activity logs; hard drives; backup data; removable computer storage media such as tapes, disks,
and cards; printouts; document image files; Web pages; databases; spreadsheets; software; books; ledgers; journals; orders; invoices; bills; vouchers; checks; statements; worksheets; summaries; compilations; computations; charts; diagrams; graphic presentations; drawings; films; charts; digital or chemical process photographs; video, phonographic, tape, or digital recordings or transcripts thereof; drafts; jottings; and notes. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition.
“To preserve and retain” is to be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data, and tangible things reasonably anticipated to be subject to discovery under the discovery rules in this action. Preservation includes taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migration, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible.
Since this case is a potential class action, You additionally agree as follows:
You understand and agree that Your failure to comply with any of your duties described above will constitute a material breach of this Agreement. You further understand and agree that, pursuant to Paragraph 10 below, any such breaches of your duties herein will permit the Attorneys to withdraw from representing You in the matter to which this Agreement applies.
The Attorneys will be compensated for legal services rendered only if a recovery is obtained. If no recovery is obtained, the Attorneys will receive no legal fees. When appropriate, the Attorneys will submit their request for legal fees and costs to the Court, and the Court will review the request and make a determination concerning the amount of fees and costs to be awarded to the Attorneys for their work on behalf of You and/or the potential and/or certified class.
Except as otherwise provided herein or except as otherwise ordered by a Court in class action proceedings, the fees to be paid to the Attorneys will be a percentage of the total recovery in any matter(s) the Attorneys handle pursuant to this Agreement (“Total Recovery”). The Total Recovery means cash and anything of value received as a result of the Attorneys’ representation no matter how characterized, no matter when paid and whether paid by any person or by any third party. The Total Recovery is the gross recovery and/or future recovery that is obtained, awarded, negotiated or otherwise obtained as a result of the Attorneys’ representation. The Total Recovery includes but is not limited to any damages, money, payments, consideration, royalties, licensing fees, options, stock, property, receivables, obligations, equitable relief and/or injunctive relief obtained as a result of the Attorneys’ representation. For a recovery that involves relief other than a cash payment, a reasonable cash value will be determined in good faith, and the below fee scale will be applied to that value.
The Attorneys’ fee scale for Your claims is as follows:
Such costs include, but are not limited to, any or all of the following items: Court filing fees; process serving fees; fees to private investigators; fees for experts for consultation and/or for appearance at deposition or trial; jury fees; transcript fees, graphics, video and trial exhibit costs, mail, messenger and other delivery charges; parking fees; mileage (calculated using standard IRS mileage rates then in effect), long distance telephone charges, and photocopying charges (at $0.15 per page). Please note that the foregoing list is not exclusive and other items may also be necessary. Costs and expenses paid to third parties are accounted for and charged at cost.
All costs and expenses will be accounted for and incurred in the Attorneys’ discretion to be reimbursed pursuant to this Agreement. You authorize the Attorneys to incur all reasonable costs and to hire any investigators, consultants or expert witnesses reasonably necessary in the Attorneys’ sole judgment. The Attorneys shall be obligated to obtain Your consent before incurring any costs or in retaining outside investigators and/or experts.
In addition, if any aspect of Your case is certified and proceeds as a class action, any division of attorneys’ fees will be disclosed to the Court and/or other adjudicating body as part of the Attorneys’ application for an award of attorneys’ fees and/or reimbursement of costs incurred for pursuing the case.
There is always a potential for conflicts of interest to arise when a lawyer represents more than a single client in a lawsuit. At the present time, the Attorneys are not aware of facts or circumstances making it reasonably likely that an actual conflict of interest might develop between You and other potential named plaintiffs or between You and the potential and/or certified class in this case. Likewise, You have not brought to the Attorneys’ attention any facts or matters that suggest that any conflict of interest exists or might arise in the future. However, the risk is always present, and currently unforeseen conflicts could potentially arise in the future.
The Attorneys owe a duty of loyalty to each of their clients and to the potential and/or certified class. The duty of loyalty requires the Attorneys to act in each client’s best interest, and in the best interest of the potential and/or certified class as a whole. The Attorneys cannot give legal advice to one client that might be detrimental to the other client. Nor can the Attorneys represent one client in a disagreement with another client. If any of these circumstances arise, and in the absence of further client consent, the Attorneys may be required to withdraw from the representation of You and You would be required to obtain independent legal counsel.
The Attorneys also have a duty to protect client confidential information. Where two or more clients are jointly represented in the same case, such confidential information is shared between the joint clients. This means that if one client has confidential information that the client does not want shared with the other client, then separate legal representation shall be obtained.
Conflicts of interest may also arise if the Attorneys are given conflicting instructions from its clients regarding case strategy, including whether or not to settle the case and on what terms. You understand that the Attorneys must protect the interests of the potential and/or certified class, and that the Attorneys must take those steps that they determine are in the best interest of the potential and/or certified class. The Attorneys cannot act as Your lawyer in resolving any disagreements or conflicting instructions between You, other jointly-represented plaintiffs and/or other potential and/or certified class representatives. If such disagreements or conflicts arise, You will be required to resolve the disagreements among yourselves, without or without independent legal counsel, and provide the Attorneys with a common set of instructions. In the event you cannot agree and the Attorneys continue to receive conflicting instructions, the Attorneys may be required to withdraw from the representation of Your interests. This may result in Your having to hire new legal counsel and incur unanticipated expenses. In addition the Attorneys’ withdrawal may come at an inconvenient time, and delays harmful to Your interests may be encountered as a result of Your need to hire new counsel.
You understand and agree that if a conflict of interest arises between You between You and other jointly-represented plaintiffs, between You and potential and/or actual class representatives or between You and the potential and/or certified class, the Attorneys shall have the right to withdraw from representing Your individual interests, but may continue to represent the other jointly-represented plaintiffs, the remaining potential and/or certified class representatives and/or the potential and/or certified class. You also understand that under such circumstances, the Attorneys may act adverse to Your interests in continuing to represent these other parties. You consent in advance to this potential adversity, and agree not to seek to disqualify the Attorneys on the basis that they are acting adverse to You as a former client if they continue to represent the other jointly-represented plaintiffs, the remaining potential and/or certified class representatives and/or the potential and/or certified class.
During the course of litigation, there may be settlement discussions with the Defendants. The Defendants may make an aggregate settlement offer, meaning that they may offer a lump sum of money in settlement of all of the claims at issue, including Your claims, any other jointly-represented plaintiffs’ claims, any potential and/or actual class representatives’ claims and the potential and/or actual class members’ claims. Another aggregate settlement possibility is that the Defendants may offer a sum certain to each individual claimant. An aggregate settlement may be insufficient to compensate each claimant individually and disagreements may arise concerning how to allocate, or divide, an aggregate settlement.
If any aspect of Your case is certified and proceeds as a class action and an aggregate settlement is reached, the Attorneys will be required to disclose and seek the Court and/or other adjudicating body’s approval of such an aggregate settlement, including the methodology for distributing any such settlement.
You acknowledge and understand the potential conflicts of interest discussed above, and You agree to waive the potential conflicts of interest which arise from the Attorneys’ representation as discussed above.
The Attorneys may withdraw from its representation of You (i) with Your consent, (ii) on court approval, (iii) if You are in material breach of this Agreement. (iv) if You refuse to cooperate with the Attorneys on any material matter or fail to follow the Attorneys’ reasonable advice on a material matter, (v) based on any fact or circumstance that would render the Attorneys’ continuing representation of You unlawful or unethical or (vi) if no court action has been filed, upon reasonable written notice to You.
In the event the Attorneys withdraw with justification under this paragraph or if You discharge the Attorneys, the Attorneys shall be reimbursed for all documented and reasonable costs incurred by the Attorneys in connection with the matter in which the Attorneys represented You in accordance with this Agreement. In addition, out of any recovery You may subsequently obtain for any matter that was commenced by the Attorneys prior to termination, the Attorneys shall receive legal fees therefrom for the services the Attorneys rendered to the date of termination reflecting the reasonable good faith value of the Attorneys’ legal services and as the Attorneys shall negotiate with the successor law firm (it being understood that in no event shall the aggregate legal fees payable to the Attorneys and all other lawyers exceed those percentages set forth above in paragraph 5, or those charged by successor counsel, whichever is greater). The attorney’s lien that is set forth in paragraph 11 shall also apply to any sums due under this paragraph. The Attorneys will not be entitled to any fees or other payment if You discharge them for good cause, which includes the Attorneys’ material breach of this Agreement (which breach is not cured after 20 days’ notice from You to the Attorneys) or unlawful or unethical behavior, or if the Attorneys withdraw for any reasons not permitted herein.
If the mediation is unsuccessful then the dispute shall be determined by binding arbitration under the rules of JAMS in Los Angeles, California by one arbitrator, either agreed to between You and the Attorneys at the time of any dispute or appointed under the JAMS rules. The cost of the arbitration shall be initially borne equally by both parties. However, upon making a determination of the claims in arbitration, the arbitrator shall have the discretion to order that the costs of the arbitration, including fees and other costs—but not reasonable attorney fees—shall be borne by the losing party. You and the Attorneys further agree that all information concerning the facts, substance or result of any such mediation or arbitration shall remain confidential and not be disclosed except to the extent necessary to enforce the arbitration award or as otherwise permitted or required by law. Binding arbitration is different than a court proceeding. In binding arbitration, there is no right to a jury trial, no right to appeal, and the arbitrator is not required to follow the law.
Note: This Arbitration clause also applies to any disputes between the Attorneys, who shall be bound equally by this clause and all its provisions.
“Not valid until executed by a representative from Wilshire Law Firm”
I have read and understood the foregoing terms and agree to them, as of the date the Attorneys’ first provided services. By signing this Agreement, I acknowledge receipt of a fully executed duplicate of this Agreement.
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Document Name: Aetna Class Action Retainer
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