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6. Substantial Reduction of Claimant’s Control by
Contingent Fee Agreement
When Mr. Kenseth executed the contingent fee agreement, he
gave up substantial control over the conduct of his age
discrimination claim. He also gave up total control of the
portion of the recovery that was ultimately received and retained
by Fox & Fox.
The contingent fee agreement provided that Mr. Kenseth could
not settle his case without the consent of Fox & Fox. It further
provided that, if Mr. Kenseth had terminated his representation
by Fox & Fox, that firm would still have a lien for the
contingent fee called for by the agreement, and all costs and
disbursements would become due and payable within 10 days.
Moreover, Mr. Kenseth was just one member of the class of
claimants represented by Fox & Fox. All these factors
contributed, as a practical matter, to the creation of
substantial barriers to Mr. Kenseth’s ability to fire Fox & Fox
and to hire other attorneys or to try to settle his case
himself.
Mr. Kenseth instead relied on the guidance and expertise of
Fox & Fox, and Fox & Fox made all strategic and tactical
decisions in the management and pursuit of Mr. Kenseth’s age
discrimination claim. Fox & Fox negotiated a net recovery (after
reduction by the contingent fee) that substantially exceeded the
settlement that the EEOC had recommended.
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