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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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