Message from Don Bivens, Esq:
Hello and thank you for your interest in this case. I’m Don Bivens, an attorney who represents clients in a variety of different types of lawsuits across the country. I am a former president of the State Bar of Arizona, and a former chair of the Section of Litigation of the American Bar Association. I would like to take this opportunity to outline the retention agreement you will be signing, should you wish to participate as a claimant in this arbitration.
By signing the retention agreement, you are retaining myself, the law firm of Don Bivens PLLC, and Levin Law, P.A. (collectively referred to as “the Firms”) as counsel to represent you for the purposes of pursuing claims against Baby List, Inc. and any other related parties, including parent companies, subsidiaries, and affiliates (collectively “Babylist” or “the “Company”) for potential legal violations related to your private information being exposed by Babylist, including private health information related to pregnancy and surrogacy, without your knowledge or consent. You’re also authorizing the Firms to represent you in related claims against the Company that they may discover and determine are feasible to pursue on your behalf. It’s important to note that the Firms do not represent you in any other matters unless they sign a separate agreement governing those matters. The Firms will represent you to the best of their ability and according to their ethical duties as lawyers.
The retention agreement provides your rights and responsibilities as a claimant and the terms of our joint representation of you in this action. If you would like to speak with an attorney before signing the engagement agreement, you will be provided information regarding a Zoom session hosted by an attorney in the coming weeks. Please note that this message is a summary of the agreement, not the agreement itself. We ask that you please read the agreement carefully, and if you have any questions, you can also reach out to my firm by emailing contact@donbivens.com or calling 602-708-1450.
I will now go through the retention agreement to explain its key terms – please note this does not include every term, and we ask that you please read the entire agreement carefully. You of course have the right to consult with independent counsel for legal advice before entering into this agreement.
Scope of Representation
By signing this agreement, you are authorizing the Firms to take several actions on your behalf. These include sending a demand letter to Babylist, possibly engage in settlement discussions on your behalf, filing an individual arbitration claim, potentially pursuing the matter as a class action, as well as potentially executing an opt-out of any class action settlement. This flexibility allows the Firms to choose the most advantageous approach for your specific situation. If an arbitrator or other fact finder does not rule in your favor, the Firms will consider pursuing an appeal of the decision if allowed to do so. However, they may determine at their sole discretion not to pursue such an appeal.
The Firms may prepare and sign legal documents, negotiate settlements, and obtain necessary documents from Babylist or third parties to evaluate and pursue your claim. However, the Firms will not settle your claim without your express consent, and you will have the right to accept or reject any settlement offer that Babylist makes to you.
You will not be the only client the Firms are representing with respect to this claim, and you acknowledge that representation of multiple clients may give rise to potential conflicts of interest. If we believe that such a conflict exists, we will discuss it with you. If we have to withdraw from representing you, you agree to waive any objection to representing other clients in this matter.
The agreement also touches upon the unpredictable and risky nature of legal disputes. The outcome of disputed legal matters is always uncertain. The Firms cannot guarantee that this claim will be successful or that you will recover any money or obtain any other form of relief. The Firms alone shall determine if it is uneconomical to pursue, or continue to pursue, your claims.
Attorney’s Fees and Costs
The agreement also covers attorney’s fees. Attorney’s fees are not set by law — they are agreed upon together by the attorneys on the case and their clients. By signing the retention agreement, you have chosen to pay the attorneys on a contingency basis instead of paying fees as they are incurred. This means you will pay no retainer fee for this matter, and the Firms’ fee for professional services will be contingent on the results obtained. You authorize the Firms to handle this case and to negotiate any possible settlement as to both your recovery and the attorney fees.
There may naturally be a potential conflict of interest between the client and the Firms when an attorney is required to negotiate both for the client’s damages and for the attorney fees. For this case, the fees will be calculated based on the total recovery by the Firms on behalf of their clients should your claims be resolved, and before any additional costs are deducted. We call this the “total gross recovery.” The total compensation awarded to you will be that total gross recovery amount minus the payment of the attorney’s fees, as well as the deduction of any costs; I will explain what those costs may be shortly.
For representing you in this case, you are agreeing that the Firms’ contingency fee will be equal to forty percent (40%) of the total gross recovery obtained on your behalf, unless the law in your state limits contingent fees to a lower percentage. So for example, if the total gross recovery is $100,000, to the extent that no other award of fees is required by law, $40,000 would go to the Firms and $60,000 would go to the clients, divided on a per-claim basis – please note that this example does not reflect any recovery that may be likely in this case, but is solely illustrative in nature as to how fees will be calculated.
My firm and Levin Law agree that if this case results in any award of attorney’s fees that the total fees will be divided equally between the two firms. My firm and Levin Law believe that this division of attorneys’ fees is reasonable in light of the anticipated responsibilities of the two firms, and in light of the need to represent you competently and diligently. The division of responsibility is as follows: Levin Law will serve as lead counsel in this case, which includes filing the arbitrations, making and responding to pleadings and motions, conducting discovery, engaging in mediation and settlement, and participating in hearings. My firm will serve as co-counsel, and is primarily responsible for marketing to and vetting qualified claimants, and will also consult with Levin Law on all major aspects of the case.
The agreement also addresses the expenses of pursuing your claim. Generally, expenses can include, for example, filing costs and fees, charges for photocopies, postage, expert witness fees, court transcription fees, mediation and arbitration costs and fees, messenger services, overnight mail, transportation, and other disbursements. If there is a recovery, you will be informed in writing of the amount of the expenses to be deducted from your recovery at cost after attorney’s fees have been calculated. For example, if the total gross recovery is $100,000, and the lawyers expended $1,000 in costs, the Firms would be paid the 40% contingent fee plus those costs, or $41,000, and the clients would receive $59,000. Again, this example does not reflect any recovery that may be likely in this case, but is solely illustrative in nature as to how fees will be calculated in accordance with this agreement. If you do not obtain any recovery, you will not be required to pay these expenses.
Client Responsibilities
I will now go through your responsibilities throughout the course of the case. You must agree to be truthful with the Firms. You agree to respond promptly to our requests for information or documents necessary to move your claim forward, and you agree to notify us in writing of any changes to your address, telephone, or other contact information. If you fail to cooperate with us, if you don’t follow our advice, or if you fail to comply with the agreement, we may withdraw our representation of you. The agreement also sets out other circumstances in which our representation may be withdrawn.
You are expressly authorizing the Firms (and any party acting on their behalf) to contact you at the mobile phone numbers you have provided and may provide in the future, including by text message, SMS and WhatsApp. You agree that the Firms may use automatic telephone dialing systems in connection with text messages sent to your phone.
While you have the freedom to change attorneys at any time, if you decide to switch to another law firm without good cause and subsequently receive a settlement or judgment, we would still be entitled to our full fee as outlined in the agreement. On the other hand, if you change firms for good cause, or if we withdraw as your counsel, and you later obtain a favorable outcome, you agree to pay us reasonable fees and expenses for the services we’ve provided. This ensures that we are fairly compensated for our work, while still allowing you the flexibility to change representation if necessary.
You will be required to inform the Firms of any and all developments that may significantly affect your claims, including, but not limited to arrests, convictions, and bankruptcy filings. If any of these events occur and you do not notify the Firms, they may terminate the representation. You must agree to preserve and provide copies of all documents and data within your possession regarding the case to the Firms, to keep the Firms informed of any notable information and developments which may come to your attention, and to keep the Firms advised of your current address and telephone number. It is very important that you keep the contact information you have provided us current, as we may consult with you from time to time about important matters about your case. We may also need more or updated information from you. You must also agree to appear on time at all legal proceedings when we deem it necessary for you to attend, and generally to cooperate fully with the Firms in all matters related to the preparation and presentation of your claims.
You understand that the attorneys are pursuing this matter on behalf of many other persons in addition to you, and the economics of this case might not make sense to pursue your case alone. Because the Firms represent a large number of individuals, you understand that the Firms may not be able to contact you via telephone calls. You and the Firms will primarily communicate through electronic means, such as email, text message, or automated phone dialing. Unless you choose to, you may not meet any attorneys face to face, or speak with an attorney over the phone for the vast majority or even entire duration of the matter. Your communication with the Firms may primarily be with the firm’s non-attorney staff. Please let us know if we should not communicate with you by email or even regular mail because of a risk that these communications might be read by others.
Dispute Resolution
If you and the Firms have any dispute about this Agreement or our services, including about the fees, we will first try to settle it through direct discussions. If we can’t resolve the dispute through direct discussions, both parties agree to first try to settle the dispute by mediation administered by the American Arbitration Association under its Consumer Mediation Procedures. If mediation is unsuccessful, any disagreements will be settled by arbitration administered by the American Arbitration Association in accordance with its Consumer Arbitration Rules.
Additional Considerations
Finally, I want to discuss some other important considerations. You further give the firm your authority to give your tax ID # to the defendant. The defendants are usually required to report any settlement amount to the IRS. The Firms have not and will not give any advice related to the effect recovery could have on your taxes and or ramifications on any public assistance that you receive. You will need to talk to a tax or benefit professional regarding these issues. At the conclusion of the Firms’ representation, you will have the right to your documents and records. We will destroy the hard copies of all documents concerning your case within 60 days of terminating representation, and 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 our discretion.
Thank you for taking the time to read this explanation.