MELWANI & CHAN LLP (“MCLLP”) has investigated this matter, and believes that there is a valid legal and factual basis to prosecute this action.
The following is an outline of the terms under which MCLLP, individually or in combination with other counsel that MCLLP may associate with, will represent you (the “Client”) as a lead plaintiff. By executing this Retainer Agreement (“Agreement”) and the attached Certification, the Client agrees to serve as a lead plaintiff, pursuant to the terms and undertakings set forth in the attached Certification incorporated by reference herein, if so appointed.
1. Pursuant to this retainer agreement, MCLLP agrees to represent the Client and other class members in this litigation on a fully contingent basis with respect to its fees. In addition, MCLLP and other plaintiffs’ counsel will advance all costs and expenses that plaintiffs’ counsel deem necessary to prosecute the case. If the lawsuit generates a fund for the class, plaintiffs’ counsel will seek their fees, costs, and expenses by application to the Court.
2. On behalf of the class and as a class representative, the Client acknowledges that plaintiffs’ counsel may apply for a fee of up to 33 1/3% of the recovery plus disbursements, subject to court approval. “Disbursements” shall include but not be limited to costs of travel expenses, telephone, copying, fax transmission, depositions, investigators, messengers, mediation expenses, computer research fees, court fees, expert fees, other consultation fees and paralegal expenses. Any recovery in the litigation shall first be used to reimburse disbursements. In the event that the litigation is resolved by settlement under terms involving any “in-kind” payment, such as stock, the contingent fee agreement shall apply to such “in-kind” payment. If the recovery is non-monetary, plaintiffs’ counsel will apply for reasonable attorney’s fees to be approved by the court.
3. If there is no recovery for the class, there will be no obligation on the Client’s part to pay any legal fees. If no recovery is obtained, the Client will owe nothing for costs and other expenses. In the event that an order is entered awarding costs and expenses in favor of defendants, MCLLP will be responsible for such costs and expenses, not the Client. If the Court does not permit the case to proceed as a class action, or if the case is dismissed at any point, we will mutually decide whether, and on what basis, the case will continue.
4. The Client understands that MCLLP may seek Court approval to appoint the Client, in conjunction with possibly others who have made similar requests, as lead plaintiff(s) in the action, which we propose to file on the Clients behalf, or in connection with subsequently, filed actions arising out of the same facts.
5. MCLLP is given the authority to opt the Client out of any class action proceeding relating to the claims authorized herein and/or pursue the Client claim individually in a group action, if the Client is not appointed Lead Plaintiff and MCLLP is not appointed Class Counsel.
6. Any monies recovered from defendants on behalf of the class will be divided among class members pursuant to a court-ordered plan of allocation, which shall take into account, among other things, the proportion of total losses incurred by the Client and each other class member. Under the rules governing class action litigation, while the lead plaintiff(s) recover according to the same formula as other class members, the Court may approve, upon application therefore, reimbursement of the lead plaintiffs’ reasonable costs and expenses directly related to the representation of the class. Examples are lost wages and travel expenses associated with testifying in the action.
7. Client agrees to cooperate in the prosecution of the suit including providing documents to substantiate the Client’s claim, and to cooperate in providing discovery information, including a deposition if necessary. Client understands the obligation to each and every member of the class and to represent their interests fairly and adequately.
8. Client may terminate this Agreement as to MCLLP, with or without cause and without penalty, by providing written notice of termination. MCLLP may terminate this agreement if the Client fails to cooperate in the prosecution of this action.
9. If MCLLP is terminated for any reason, or the Client is terminated for lack of cooperation, MCLLP shall be entitled (a) to be reimbursed, pursuant to paragraph 2 above, for reasonable out-of-pocket costs and expenses that they incurred, but only if and when recovery is obtained, and (b) to be paid such compensation as might be payable to them in accordance with this Agreement, but only if and to the extent and at the time compensation is payable to the MCLLP from any recovery in this litigation pursuant to paragraph 2 above.
10. The Client agrees that our files and papers compiled in connection with our investigation and prosecution of this matter constitute the work product and property of this firm over which the firm has complete control with respect to its use and/or disclosure.
11. This Agreement will automatically terminate upon final resolution or legal disposition of the matter. You understand this Agreement creates no obligation by either party concerning any appeal of this matter.
12. Any actions arising out of this Agreement shall be governed by the laws of the state of New York, and shall be brought and maintained in the New York State Supreme Court, New York County, which shall have exclusive jurisdiction thereof.
13. This Agreement, along with the signed Certification of Proposed Lead Plaintiff form, sets forth the entire Agreement between the parties, and supersedes all other oral or written provisions.