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trying to create an unnecessary appearance of certainty. The
substantial impediments petitioners subjected themselves to in
entering into the contingent fee agreement are enough to take
this case out of the traditional assignment of income situation,
where the assignor’s retained control is absolute and unfettered.
On page 27, the majority opinion uses the gross misnomer
“details” to characterize what Mr. Kenseth entrusted to Fox &
Fox. How can it be accurate to say that Fox & Fox was only
responsible for the “details of his [Mr. Kenseth’s] litigation”?
Mr. Kenseth and the other class members were able with the advice
of Fox & Fox to sign the severance agreement and receive
severance pay, as well as press their ADEA claims; this is
because APV and its attorneys had made a mistake in preparing the
severance agreement that was spotted by Fox & Fox. The findings
also note that EEOC had recommended that the claims be settled
for an amount 2.5 times smaller than what Fox & Fox was able to
negotiate. To quote from the findings:
Petitioner and the other members of the class
relied on the guidance and expertise of Fox & Fox in
signing the separation agreements tendered to them by
APV and then seeking redress against APV. Commencing
with the advice to petitioner that he could sign the
separation agreement with APV without giving up his age
discrimination claim, Fox & Fox made all strategic and
tactical decisions in the management and pursuit of the
age discrimination claims of petitioner and the other
class members against APV that led to the settlement
agreement and the recovery from APV. [Majority op. p.
12.]
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