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negotiations with APV and its attorneys, Fox & Fox tried to
ensure that the amounts actually received by Mr. Kenseth and the
other class members would approximate the full value of their
claims. Fox & Fox did this by including in their demands on
behalf of the claimants an amount for attorney’s fees that would
be included in and paid out of the settlement proceeds.
The bulk of the settlement proceeds was paid by APV directly
to the Fox & Fox trust account, by prearrangement between APV and
Fox & Fox.13 From the gross amount so paid, Fox & Fox paid itself
its agreed upon contingent fee of $1,060,000 and computed and
apportioned the remaining amount for distribution to Mr. Kenseth
and the other class members.14
13 Excluding the back pay portion--14.15 percent of the
total settlement proceeds and 23.58 percent of the total
distribution to class members--paid directly to Mr. Kenseth and
the other class members by APV, and from which employment taxes
were paid and withheld.
14 Mr. Kenseth had the largest share of the settlement of
any member of the class. The range of amounts distributed to
individual class members ranged from 2 percent of the total
amount distributed (Mr. Benisch) to 8.6 percent (Mr. Kenseth).
Although each class member’s back pay portion was the same
percentage of his share of the total settlement distributed to
class members (23.58 percent), the record does not disclose the
basis of the apportionment of the total settlement amount
distributed to each member of the class. The uniform
apportionment between back pay and the remainder of each
claimant’s share of the settlement proceeds seems inconsistent
with the way in which each claimant’s future earnings and
benefits were projected over estimated future work life and then
discounted back to present value by the economist retained by Fox
& Fox to assist in determining the amounts of the claimants’
claims. However, this lack of information and apparent
(continued...)
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