Authorization to Represent and Fee Agreement
Authorization to Represent with regard to: the prosecution of a Class Action and PAGA representative action against , and any related entity (“Defendant” or “Company”) for (a) willful misclassification in violation of Labor Code § 226.8(A)(1); (b) failure to pay all wages owed in violation of Labor Code §§ 204, 1194, 1194.2, 1198, as well as IWC Wage Order No. 9; (c) failure to pay overtime compensation in violation of Labor Code §§ 510, 1194, 1194.2, and 1198, as well as IWC Wage Order No. 9; (d) failure to reimburse business expenses in violation of Labor Code § 2802; (e) unlawful deductions from compensation in violation of Cal. Labor Code §§221, 223, 400-410; (f) failure to provide wage statements in violation of California Labor Code section § 226(a); (g) failure to reimburse business expenses in violation of Cal. Labor Code §2802; (h) failure to provide paid off-duty rest breaks and pay missed rest break premiums in violation of Labor Code § 226.7, IWC Wage Order No. 9; (i) failure to provide meal periods and pay missed meal period premiums in violation of Labor Code §§ 226.7 and 512, and IWC Wage Order No. 9; (j) deceptive/fraudulent business practices based on the foregoing in violation of Cal. Business and Professions Code §17200; and (k) statutory penalties based on the foregoing under California’s Private Attorney Generals Act (“PAGA”) (Cal. Labor Code §§ 2698-2699.5)., hereinafter referred to as “Claims”.
California Law requires attorneys and clients in contingent fee cases to have a written Fee Agreement. Please read the following Authorization to Represent and Fee Agreement carefully. If you have any questions about the terms of the Fee Agreement, please call Jim Treglio at (800) 383-7027. If you understand and agree to the Fee Agreement and agree to its terms, please signify by initialing each section where indicated, and dating and signing the Fee Agreement on the last page.
I. Authorization to Represent
I want to employ Potter Handy, LLP, (hereinafter referred to as “FIRM”) to represent me in my claims as described above. CLASS ACTION: FIRM, at FIRM’s sole discretion, may pursue my claims via a class action. As class representative, I have responsibilities to the class that significantly affect my choices of how to proceed in the case including, but not limited to, settlement. As class representative, I must consider the interests of the class, not just my own interests agree to act as a class representative in a class action.
II. Fee Agreement
I understand that if the FIRM agrees to represent me, it shall devote its professional resources to the case in return for a fee that will depend upon the outcome of the case. Under some statutes that FIRM prosecutes cases under have “fee shifting” provisions such that you are entitled to reimbursement of your attorney fees and costs if you are the prevailing party. In such a situation, the attorney fees are calculated on an hourly basis and must be approved by the Court. In the event that the actions in your case has a fee shifting position, the FIRM may seek $695 per hour for its senior attorney time, pending Court approval. FIRM shall have the right to petition the court for a higher rate. In addition to the hourly attorney fees and costs recovered from defendant(s) in prosecuting you case FIRM shall receive 1/3 (33.33%) of any amount recovered on behalf of the class. This could include monetary damages paid to me and the Class for unpaid wages, and/or statutory penalties, restitutionary disgorgement of moneys wrongfully obtained by the defendant(s), actual damages, civil penalties, prejudgment interest, the approximate value of injunctive relief, and any and all benefits made to myself and the class.
In the event that a monetary recovery is obtained for a class of individuals, of which I am a member, the Firm will apply to the court for reimbursement of its costs and payment of its attorney’s fees by the defendant(s) pursuant to applicable law. Specifically, the Firm will apply for attorneys’ fees from defendant(s) under the common fund doctrine in an amount up to 33.34% of the total amount (i.e., the common fund) secured for the class, plus litigation costs incurred. In the event that the Firm receives less than 33.34% of the common fund, I will not be obligated to pay the difference between what the Firm received and 33.34% of the common fund. In the event an individual settlement for me is obtained in lieu of a class action settlement, the Firm shall receive 33.34% of the total amount secured for me in that settlement.
I understand that the Firm will advance all legal and investigative costs in connection with the Firm’s representation of me under this Agreement. I understand and agree that the Firm shall be reimbursed out of any recovery obtained, for all Costs it advanced before any distribution of attorneys’ fees to the Firms or any distribution to the Class or to me. For purposes of this Agreement, “Costs” shall include, but are not limited to filing fees, deposition costs, expert fees, mediation fees, messenger service fees, process server fees and legal research fees.
I understand that in a class action my recovery will be the same as all the other class members and will likely be significantly less than if my case were pursued for me on an individual basis. I understand that as a class representative I have responsibilities to act in the best interest of the class rather than my personal best interest.
I understand that, as a Class Representative, I may be entitled to an enhancement fee for my time, effort and participation in bringing the Class Action to the Court’s attention. If and when a representative PAGA and/or class settlement is reached, the Firm will apply to the Court for an enhancement fee on my behalf. The Firm cannot, however, guarantee that any particular amount will be awarded by the Court as an enhancement fee, and any such enhancement fee will be awarded, if at all, in the discretion of the Court.
I understand and agree that all attorney’s fees that may be recovered from the Company, whether by settlement or litigation pursuant to any law, shall belong to the Firm. Sanctions awarded by the court against the Company and/or its counsel solely belong to the Firm, and are not part of any recovery.
If I (the client) do not unilaterally dismiss the case, withdraw from the case or unilaterally fire the FIRM, FIRM will receive no compensation for its services if there is no recovery and FIRM’s compensation shall not exceed recovery from defendant(s); I will not have to pay FIRM out-of-pocket. No recovery = No fee.
I understand that if FIRM shall have sole discretion as to whether to pursue an appeal.
I understand that in fee shifting cases, hourly attorney fees can greatly exceed the amount of damages that I will personally recover by settlement, judgment, or trial verdict for my damages. I understand that if a lawsuit is litigated and substantial periods of time are expended in a case, that the attorney fees might by grow to be one-hundred times (or more) the damages. Thus, this fee agreement is not simply a percentage-based fee agreement whereby the FIRM gets a fixed percentage of the total recovery.
I understand that my agreement to act as a class representative and to give the FIRM sole discretion to pursue this matter on a class basis is a material term to FIRM agreeing to represent me.
I understand that attorney fees are not set by law, and are negotiable between attorney and client. By signing below I acknowledge that I have been informed that the rates and percentages for attorney fees are not set by law and are negotiable. I have had sufficient time to consult with independent counsel of my choice and to consider these rates before agreeing to the same. I agree to be bound and to pay these rates as set forth.
FIRM explained that it is only willing to represent me because I have committed to act as a representative of the class of persons similarly situated with me. FIRM explained that my individual claims alone and the fees FIRM would likely be entitled to therefrom would not be sufficient to compensate FIRM for the attorney time, expense and risk FIRM would incur.
I understand that no settlement of my claims or Case will be made without my approval. I retain the ultimate authority to accept or reject any settlement offer. Further, I understand that because of the claims asserted in this case are of a representative basis, that any settlement must be approved by third parties, such as the Court, the California Labor Workforce & Development Agency (in the case of a PAGA representative action), and in some instances, the other class members. I further understand that such approval can take several months.
Authorization to Conduct Background Check
I hereby authorize the FIRM to conduct a review of my background, including but not limited to my criminal history, previous or current residences, and any other public and non-public records/databases. I understand that the information collected in the background check will be used for the sole purpose of verifying and collecting information required for the FIRM to lawfully and accurately represent me in the matter(s) for which I have retained their services.
Waiver of Conflict of Interest
I also understand that there is a potential conflict of interest whenever the attorney is required to negotiate both for the client’s damages and for the attorney fees. I have been informed that I have the right to consult with independent counsel for legal advice before entering into this Agreement. Notwithstanding that, I agree to the terms contained herein and I expressly waive any objection to this potential conflict of interest that may now or may later exist between the FIRM and me. I hereby authorize FIRM to handle this case and to negotiate any possible settlement as to both my recovery and the attorney fees. You may have a conflict with the class in negotiating for an award to you at the same time as needing to work for the best interests of the class. By signing below you waive these conflicts of interest
Withdrawal and Authorization for Lien
I understand that either the FIRM or I may withdraw at any time upon giving reasonable notice. In the event of such withdrawal, FIRM will place a lien on the case for its advanced costs and for the attorneys fee available under this Agreement or any other remedy available to FIRM, I will not be responsible for FIRM’S attorney fees or costs so long as I participate in the litigation in good faith. If however, I do not participate in the litigation in good faith or cause the litigation to be stopped without the consent of the FIRM, this would a breach of the Agreement and I can be responsible for FIRM damages, fees and costs.
FIRM Does not Guarantee Result
I understand that there is always a risk to litigation. If I were to lose a case, under some circumstances, I may have to pay costs and/or attorney fees to the prevailing party. I acknowledge that FIRM has made no guarantee regarding the successful termination of my case and all expressions about the relative chances of success are matters of opinion only.
Return of File
I understand that I have a right to my client papers and property upon termination of the FIRM’S representation. At the conclusion of FIRM’S representation, the FIRM may destroy the hard copies of all documents concerning my case in 60 days; the FIRM is authorized to destroy the hard copies of my file. The FIRM will maintain the records in a digital format for at least four years after the representation is terminated and thereafter may dispose of the digital records at FIRM’S discretion.
Limitation of Scope of Representation
I understand that the FIRM’S representation is limited to my Claims defined above. I hereby give authority to FIRM to give my tax ID # to the defendant(s). I further understand that the defendant(s) are usually required to report any settlement amount to the Internal Revenue Service. I acknowledge that the FIRM has not and will not give any advice related to the effect recovery could have to my taxes and or ramifications on any public assistance (SSI, SSDI, etc.) that I receive. I understand that I will need to talk to a tax or benefit professional regarding these issues and that FIRM does not have any such professionals. I understand that this Agreement does not require Firm to defend any claims brought by any entity related to Claims defined above, brought by any other entity or to deal with the way information is reported to credit bureaus.
COSTS AND LITIGATION EXPENSES
I understand that if the defendant(s) prevail in my case costs and/or attorney fees can be awarded against me. Any such award would entirely be my obligation.
I hereby authorize Attorney to communicate with me via electronic communications, including the transmission of attorney-client privileged matter (e.g., updates, fact analysis, forwarding documents, etc.), utilizing the e-mail address I provided to Attorney. I hereby acknowledge that electronic transmission of data may or may not be fully secure, and may be susceptible to an invasion of privacy. Notwithstanding the inherent risks applicable to e-mail communications, by providing Attorney with my e-mail address, I agree to accept the risks attendant to electronic communications and authorize Attorney to communicate with me electronically.
Potential Conflict in the Event of Multiple Representation
I am informed that Rules of Professional Conduct of the State Bar of California require my informed written consent before the Firm may concurrently represent two or more clients with an interest on the same subject matter. The Firm has explained to me the possibility of conflict that is present by such multiple representation. I hereby expressly consent to such multiple representation in the event additional employees, former employees, or consumers of the Defendant retain the Firm, despite the possibility of conflict.
Severability of the Terms of This Fee Agreement
If any provision of this Agreement is held to be illegal or invalid by a court of competent jurisdiction, such provision shall be deemed to be severed and deleted; and neither such provision, nor its severance deletion, shall affect the validity of the remaining provisions.
Who You Are Retaining
Potter Handy, LLP is a California limited liability partnership that is registered with the California State Bar. Mark Potter, State Bar #166317 and Russell Handy State Bar #195058 are the partners of FIRM. I understand that Mr. Potter and Mr. Handy have many employees and independent contractors that work for them and that these other attorneys could make Court appearance(s) on my matter. FIRM may, at its sole discretion, work with other firm(s) on my matter. In class actions FIRM often associates with another firm to share work responsibilities and split the attorney fees. In the event that more than one law firm works on my case, neither I, nor the Class will pay any additional attorneys’ fees .
This Fee Agreement contains the entire agreement of Client and FIRM. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on Client and FIRM.
I acknowledge and agree to the terms and conditions of the above Contingent Fee Contract.