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 need to sign, should you wish to participate as a plaintiff in this lawsuit. 

 

By signing the retention agreement, you are retaining myself, the law firm of Don Bivens PLLC, and the law firm of Potter Handy LLP as counsel to represent you for the purposes of pursuing claims against Google for violations of your privacy rights while using Google’s Incognito mode. The retention agreement provides your rights and responsibilities as a plaintiff 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 next few 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. 

 

By signing the agreement, you are agreeing that our firms will have full discretion regarding when, how and where best to pursue your claims – whether it be as an individual, mass, or class action in state or federal court, or as an arbitration, and you are giving the firms the power to be able to settle the matter with your consent. Please be aware that you are appointing the firms to represent you with respect to this case and this case alone. Thus, the firms do not agree to represent you in any subsequent or related matters, and the agreement does not cover your representation by the firms in the case of an appeal. While the firms maintain full discretion as to how to pursue your claims and litigate your case, when it comes to the settlement of this case, you have ultimate decision-making authority on the settlement terms. However, if you don’t agree to the terms of settlement the attorneys negotiate for you, you agree that we may withdraw from representing you. 

 

The agreement also touches upon the unpredictable and risky nature of litigation. There is always risk to litigation. If you were to lose a case, under some circumstances, you may have to pay costs and/or attorney fees to the prevailing party. The firms make no guarantee regarding the success of your case, and you should be aware that litigation is generally unpredictable. The attorneys alone shall determine if it is uneconomical to pursue, or continue to pursue, your claims.

 

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 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 – or in the language of the fee agreement, “the client’s recovery” – 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 will receive the greater of either 40% of that total gross recovery or the total amount of fees awarded by the court as established by law. 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 – 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 Potter Handy agree that if this case results in any award of attorney’s fees that the total fees will be divided 50% to each firm. My firm and Potter Handy 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: Potter Handy will serve as lead counsel in this case, which includes filing the complaint, making and responding to motions, conducting discovery, engaging in mediation and settlement, and if necessary going to trial.  My firm will serve as co-counsel, and is responsible for the marketing and vetting of qualified plaintiffs and class representatives, and will also consult with Potter Handy on all major aspects of the case. 

 

The agreement also addresses costs of pursuing your claim. For purposes of this agreement, costs are defined as expenses which the firms deem necessary for this case. Such expenses include, for example, phone charges, postage costs, delivery charges, investigation costs, court filing fees, mediation costs, expert fees, online legal research fees, and accountant’s fees. In the cases where the firms work with other professionals (such as investigators or accountants), we will obtain your consent before doing so. Costs and expenses which are advanced by the firms will be itemized. By signing the agreement, you will be acknowledging that you understand and agree that costs will be deducted from your recovery after attorneys fees have been calculated. For example, if the total gross recovery is $100,000, and the lawyers expended $1,000 in costs, the firm’s 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  

 

I will now go through your responsibilities throughout the course of the case – according to the retention agreement. You must agree to be truthful with the firms. 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 filing. If any of these events occur and you do not notify the firms, they may terminate the representation. You must agree to provide all documents 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, telephone number and whereabouts.  It is very important that you keep the contact information you have provided us current, as we will 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. 

 

The agreement also talks about the communication between yourself and the firms. You understand that the attorneys are pursuing this case 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 will likely 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 will primarily be with the firm’s non-attorney staff.

 

Finally, I want to discuss some other important considerations. By signing the retention agreement, you acknowledge that the firms will not be required to assist you in any way to seek financing using your case as collateral, nor pay you any advance of any potential recovery, and that you will not request any such loan or advance. You also authorize the firms to conduct a review of your background, including but not limited to your criminal history, previous or current residences, and any other public records. The information collected in the background check will be used for the sole purpose of verifying and collecting information required for the firms to lawfully and accurately represent you in this matter. 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.