Eldon R. Kenseth and Susan M. Kenseth - Page 41

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         lawsuit in the District Court, to settlement negotiations and                  
         reaching of an agreement with APV and its attorneys.                           
              In contrast to the unconditional personal liability Mr.                   
         Kenseth assumed to pay his share of out-of-pocket expenses, he                 
         did not agree to pay a fee, only to the modes of computation and               
         payment of the contingent fee to which Fox & Fox would be                      
         entitled from the proceeds of any recovery.  If there had been no              
         recovery, Fox & Fox would have received nothing.                               
              The contingent fee agreement required aggregation of the                  
         elements of any settlement offer divided between damages and                   
         attorney’s fees and provided that any division of such an offer                
         into damages and attorney’s fees would be disregarded by Fox &                 
         Fox and Mr. Kenseth.  This means that, if either the defendant’s               
         settlement offer or the court’s decision had provided for a                    
         separate award of attorney’s fees, the award of attorney’s fees                
         and the damages would have been grossed up to determine the fee                
         that Fox & Fox would be entitled to under the terms of the                     
         contingent fee agreement.12                                                    
              The contingent fee agreement provided that Mr. Kenseth could              
         not settle his case against APV without the consent of Fox & Fox.              
         Under Section VIII of the contingent fee agreement, Mr. Kenseth                

               12 Any issue presented by this provision became moot because             
          there was no agreement with APV or court award for the payment of             
          attorney’s fees.                                                              

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Last modified: May 25, 2011