Client Email:
Re: [CLIENT NAME] v. American Express Company, et al.
Dear [CLIENT NAME]
We look forward to working with you to pursue your claims against American Express Company and American Express Travel Related Services Co., Inc. (collectively, “AMEX”) regarding AMEX's anti-steering rules that prevent merchants from giving customers incentives to use payment products less expensive than AMEX branded cards. We are going to pursue claims against AMEX for any anti-competitive behavior that is a violation of Section One of the Sherman Anti-Trust Act and any applicable state law claims that are similar. This is an agreement (the “Agreement”) between you and Milberg Coleman Bryson Phillips Grossman LLC (“MCBPG”). MCBPG attorneys as well as attorneys from White Street Partners LLP ("WSP") (collectively, WSP And MCBPG are referred to as "the Attorneys") will be primarily responsible for your case. In addition, Phillips Law Group ("Phillips") will also be the referring counsel for your case.
You understand and authorize the Attorneys to proceed with filing claims on behalf of your business as an individual arbitration, rather than in a court. You also are authorizing us to contact your business' payment processor to confirm the amount that may have been charged by AMEX and any other payment network, such as Visa, Mastercard, and Discover. You also represent that you are authorized on behalf of your business entity to sign this agreement.
You also authorize the Attorneys to negotiate potential settlement on behalf of your business, but the final decision on accepting or rejecting a settlement offer rests with you. In the event that the Attorneys reach a proposed settlement of your case along with the cases of other merchants, the Attorneys will convey the proposed settlement to you at the email address you have provided. You will then have 30 days from that email to reject any proposal; otherwise, it will be deemed accepted. In addition, the Attorneys will be available to communicate with you concerning the terms of any settlement offers and to provide their professional advice regarding the terms and potential outcomes.
The Attorneys will handle the above-referenced matter based upon a contingent fee arrangement wherein our collective fee will be forty percent (40%) of any recovery obtained in this matter, whether it be through settlement or judgment. The Attorneys reserve the right to associate any co-counsel that we deem advisable or necessary for the proper handling of your claim. Our fee will be split among the Attorneys as well as any firm(s) we associate. This arrangement would not include any appeal that may be subsequently taken by any party. Further, if the arbitrator rules in your favor, we may be able to recover attorneys' fees from AMEX on your behalf. Should we be successful in doing so, our fee shall be the greater of: (1) total attorneys’ fees awarded by the arbitrator or court; or (2) forty percent (40%) of the total recovery (including any award of attorneys’ fees). If there is a recovery on your behalf, the 40% attorneys' fees will be split between the Attorneys and Phillips with the Attorneys receiving 60% and Phillips receiving 40%.
During this litigation, the Attorneys will incur expenses for copies, legal research, travel, etc. Typically, these costs are paid by the client. However, we will advance all costs incurred by the Attorneys, such as copies, postage, express delivery charges, legal research (e.g., Westlaw, LexisNexis, PACER), travel expenses, etc. The Attorneys will also incur costs that they do not generate, such as the filing fees with the arbitral organization or court, costs of the experts, legal process outsourcing companies (i.e., service of process, document production, trial exhibits), and deposition costs (including transcripts). The Attorneys will be reimbursed for these costs if, and only if, they ultimately obtain a recovery. Advanced costs are deducted from the recovery after the calculation of the contingent fee.
Please understand that the Attorneys may at any time recommend that the case not be continued for good and sufficient reasons including, but not limited to, little or no likelihood for success on the claims’ merits, or the lack of available sums, whether they be the assets of AMEX or applicable insurance coverage. If the Attorneys should make such a recommendation to discontinue, we may withdraw our representation upon due notice.
Also understand that your file and any materials compiled by the Attorneys during representation will remain the property of the Attorneys upon conclusion of the representation. The Attorneys will cooperate fully in furnishing a copy of relevant materials from the file to any successor attorney who you may retain. Additionally, the Attorneys will maintain the file on this matter for at least six (6) years. Should you wish to obtain any information or materials from the file, including personal items furnished to the Attorneys in the handling of your case (i.e., documents, photographs), these will be returned to you by request if the request is made within six (6) years after the conclusion of the representation.
Finally, the Attorneys do not make any promises or guarantees regarding the outcome or conclusion of your claims.
If you have any questions about the foregoing, please advise. The Attorneys would appreciate your returning a signed copy of this engagement letter to us for our files.
We look forward to working with you on this matter.
Sincerely,
Scott C. Harris
AGREED TO:
By: Date:
Authorized Representative of [CLIENT NAME]
[1] AMEX contends that, by accepting the terms of its Merchant Agreement, all merchants who accept AMEX agree to resolve any disputes regarding AMEX via binding individual arbitration rather than proceed with claims in court, and to waive their rights to a jury trial and to participate in any class action lawsuit. Arbitration is a simplified means of pursuing legal claims, where the claim is decided by an arbitrator rather than a judge or jury and is overseen by an arbitral organization such as the American Arbitration Association. Arbitration can be very different from a court case. Unlike a court case, there is no jury in arbitration, and there is limited discovery. Although we anticipate an arbitration, this agreement shall apply regardless of whether the claims are filed in arbitration, in court, or resolved by settlement prior to a filing in any forum.
[2] Please note that the company against which you are retaining Milberg to pursue individual arbitration claims on your behalf requires a notice letter personally signed by you to begin the dispute resolution process. So that Milberg can start this process, by signing the retainer agreement, it is your intent to provide Milberg with your electronic signature and your consent to include your electronic signature in the notice letter to be sent on your behalf to the company identified in the retainer agreement as the party against whom Milberg has agreed to represent you in connection with an individual arbitration. This is the sole limited purpose for which you are giving Milberg legal authority to utilize your electronic signature