1. SCOPE OF REPRESENTATION 2. TERMINATION OF … · LEGAL SERVICES AGREEMENT REGARDING ELECTRONIC CIGARETTEAPING LITIGATION WHEREAS, The School Board of Pinellas County, Florida (

LEGAL SERVICES AGREEMENT REGARDING ELECTRONICCIGARETTEAPING LITIGATION

WHEREAS, The School Board of Pinellas County, Florida ( BOARD ) wishes to determine thefeasibility of BOARD bringing an action against manufacturers and/or distributors and/or sellers ofelectronic cigarettes and vaping products for damages to BOARD arising out of the marketing,distribution and sale of electronic cigarettes and vaping products to BOARD S students; and

WHEREAS, BOARD has determined that it wishes to engage Wagstaff and Cartmell, LLP, a lawfirm located in Kansas City, Missouri, and The Maher Law Firm, a law firm located in Winter Park,Florida (collectively, COUNSEL”), to investigate the viability of and potential prosecution of anaction against such manufacturers and/or distributors and/or sellers;

NOW THEREFORE, in consideration of the covenants, promises, and consent herein contained,the parties agree as follows:

1. SCOPE OF REPRESENTATION

COUNSEL, for the consideration herein provided, agrees to represent BOARD in connection withinvestigation and potential prosecution of a civil action against manufacturers and/or distributorsand/or sellers of electronic cigarettes and vaping products.

2. TERMINATION OF REPRESENTATION

This Agreement shall cover the period from March 24,2020, until the termination of the litigationor termination of the legal services rendered hereunder, whichever is sooner. This Agreement may beterminated by BOARD upon at least ten (10) days notice, and in the event of such termination, neitherparty shall have any f rther rights against the other, except that in the event of a recovery by BOARDagainst the defendant manufacturers and/or distributors and/or sellers subsequent to termination,COUNSEL shall have rights in the nature of quantum meruit to recover fees, costs and expensesreasonably allocable to its work prior to termination. In the event of termination of this Agreementfor any reason, COUNSEL shall immediately return to BOARD all materials and documents of everykind and nature, including but not limited to BOARD documents and computer disks, relating to thisAgreement and the above-mentioned matter. CO NSEL may withdraw as BOARD S attorneys at anytime if they determine, in their sole discretion, that BOARD’S claim lacks merit or that it is notworthwhile to pursue BOARD’S claim further. In the event that COUNSEL exercises its right towithdraw from representation of BOARD and BOARD subsequently receives a recovery from themanufactures and/or distributors and/or sellers of electronic cigarettes and vaping products,COUNSEL shall have no claim to such recovery.

3. ATTORNEYS FEES AND COSTS AND EXPENSES OF LITIGATION

a. There is no fee for this representation unless a monetary recovery is obtained by COUNSELin favor of BOARD, whether by suit, settlement, or otherwise. COUNSEL agrees to advance all costsassociated with prosecuting the litigation. Subject to paragraph 3 (d), below, and in consideration ofthe legal services to be rendered by COUNSEL, BOARD agrees that the contingent attorneys’ fees forthis representation shall be a twenty-five percent (25%) contingent fee. Any division of fees betweenCOUNSEL shall be based upon the contribution of each law firm. BOARD shall additionally havethe option to provide notice to COUNSEL, subsequent to execution of this Agreement, that it was

1

presented with a more favorable contingent fee agreement and it intends to accept such more favorablecontingent fee agreement if COUNSEL does not match such contingent fee agreement. BOARDmust provide COUNSEL thirty (30) days written notice of a more favorable contingent fee agreementand COUNSEL shall have thirty (30) days from receipt of such notice to match or reject such feeagreement.

BOARD agrees to pay COUNSEL as attorneys’ fees a sum equal to twenty-five percent (25%) ofthe net amount recovered by way of suit or settlement after litigation expenses have been deducted(gross amount minus litigation expenses). BOARD acknowledges that the term net amountrecovered will include the present value of any structured settlements and payments over time. Inthe event that the attorneys’ fees shall be deemed or determined to be in contradiction to any applicablelaw, bar rule, regulation, or amendment, such law, rule, or regulation shall control. The term “litigationexpenses means the costs and disbursements which may be deducted from a monetary recoveryacceptable to BOARD that is obtained by COUNSEL include the following, without limitation: courtfees, process server fees, transcripts fees, expert witness fees, courier service fees, appellate printingfees, necessary travel and related expenses of attorneys to attend depositions, court hearings, trials,interview witnesses and the like, and other appropriate out-of-pocket expenses. In the event that anysettlement, final judgment, or other resolution of the action results in a monetary recovery to BOARDthat is less than the amount of the costs incurred and/or disbursements made by COUNSEL, BOARDshall not be required to pay COUNSEL any more than the sum of the full monetary recovery.

BOARD agrees that COUNSEL may, in their discretion, employ associate counsel to assist inprosecuting BOARD’S CLAIM, and BOARD agrees to the participation of any lawyers thatCOUNSEL may choose to involve in BOARD’S case. With the exceptions set forth below, paymentof attorneys’ fees to any such additional counsel will be the responsibility of COUNSEL and will notincrease the total attorneys’ fees to be paid by BOARD. Appropriate costs and expenses incurred byany such additional counsel on CLIENT’S behalf, however, will be chargeable to BOARD asrecoverable litigation expenses.

b. In some instances, it may be necessary for COUNSEL to retain special outside counsel toassist on matters other than prosecuting BOARD’S CLAIM for damages. Examples of such instancesinclude the following: a defendant may seek bankruptcy protection and BOARD seeks bankruptcycounsel that affects BOARD CLAIM; or a complex, group settlement may require an ethics opinionfrom outside counsel; or special action in probate court may be necessary. BOARD understands thatCOUNSEL do not specialize in these areas of the law and agrees that COUNSEL may retain suchspecial outside counsel to represent BOARD when COUNSEL deem such assistance to be reasonablynecessary. BOARD understands that the reasonable fees for such counsel will be deducted fro BOARD’S gross amount recovered.

c. BOARD understands that additional attorney fees and/or litigation expense reimbursement(s)may be received by COUNSEL from common benefit fund(s), plaintiff s steering committeediscretionary funds, COUNSEL’S representation of other claimants in this litigation, or from othersources. BOARD agrees and understands that the attorney fee(s) set forth above shall be recoverableto COUNSEL in addition to and not withstanding such other fees; however, litigation expenses thatare common to COUNSEL’S representation of BOARD and other claimants in this litigation shall beprorated to BOARD and COUNSEL’S other clients in the litigation, and COUNSEL shall not beentitled to reimbursement of these expenses from all sources in excess of the actual amount of suchlitigation expenses.

2

d. No monies shall be paid to COUNSEL for any work performed, costs incurred ordisbursements made by COUNSEL in the event no monetary recovery to BOARD has been obtainedby COUNSEL. In the event of a loss at trial due to an adverse jury verdict or a dismissal of the lawsuitby the court, no monies shall be paid to the COUNSEL for any work performed, costs incurred ordisbursements made by the COUNSEL. In such an event, neither party shall have any further rightsagainst the other.

e. In the event that any of BOARD S employees or agents serve in the capacity of an expertwitness in this case, that employee’s or agent’s time shall be valued at the same value of a similar non¬employee expert witness and the value of such time shall be used as an offset against litigationexpenses that would otherwise be attributable as an expense to BOARD and deducted from BOARD’Sgross settlement amount.

4. DISBURSEMENT OF PROCEEDS TO CLIENT

The proceeds of any settlement, judgment or recovery on BOARD’S behalf under the terms of thisAgreement shall be disbursed to BOARD as soon as reasonably practicable after receipt byCOUNSEL. At the time of disbursement of any proceeds recovered on BOARD’S behalf under theterms of this Agreement, BOARD will be provided with a detailed disbursement sheet reflecting themethod by which attorney’s fees have been calculated and the litigation expenses which are due toCOUNSEL from such proceeds. COUNSEL is authorized to retain out of any monies that may comeinto their hands by reason of its representation of BOARD the fees, costs, expenses and disbursementsto which they are entitled as determined in this Agreement.

5. SETTLEMENT

BOARD has the authority to accept or reject any final settlement amount after receiving the adviceof COUNSEL. COUNSEL shall keep BOARD’S School Board Attorney apprised of all settlementdiscussions and proposals and consider all feedback provided by BOARD’S School Board Attorney.COUNSEL shall provide BOARD’S School Board Attorney with a minimum of forty-five (45) daysprior written notice of a proposed settlement and all reasonably required details in order for BOARD’SSchool Board Attorney to consult with BOARD and provide BOARD with an opportunity to considerthe proposed settlement. BOARD understands settlements are a compromise of its claim, and thatCOUNSEL’S fee, as outlined in Section 3 above, applies to settlements also. For example, if asettlement is reached, and includes future or structured payments, COUNSEL’S fee shall include itscontingent portion of those future or structured payments as outlined in Section 3 above.

BOARD understands that COUNSEL may determine that it is in BOARD’S best interests forBOARD’S case to be filed, settled, and/or go to trial with a larger group of clients. BOARD givespermission to COUNSEL to disclose BOARD’S injury category, gross settlement offer amount, netsettlement offer amount, name, or other material terms of BOARD’S settlement, if any, to otherclaimants also represented by COUNSEL whose cases may be settled at the same time if suchdisclosure is necessary to comply with any court orders, and/or applicable rules of legal ethics.Additionally, BOARD understands that if a dispute subsequently arises between clients representedby COUNSEL as part of a litigation or settlement group, that the attorney-client privilege may not beavailable for assertion by BOARD against the other client(s) on issues of commonly given advice.

3

6. NO GUARANTEE OF RECOVERY

BOARD understands and acknowledges that dispute resolution through litigation often takes yearsto achieve. BOARD understands and acknowledges that there is no guarantee or assurances of anykind regarding the likelihood of success of BOARD S claim, but that COUNSEL will use their skill,diligence, and experience to diligently pursue its action.

7. INDEPENDENT CONTRACTOR

It is expressly agreed that COUNSEL'S status hereunder is that of an independent contractor andthe COUNSEL shall not be considered an employee of BOARD for any purpose.

8. DUTIES AND RESPONSIBILITIES OF PARTIES

All professional work performed under this Agreement shall be performed by COUNSEL inaccordance with existing professional standards. COUNSEL shall exert its best ef orts and use its bestjudgment in review and analysis and preparation of opinions and memoranda and representation insuch proceedings. BOAR will cooperate with COUNSEL, associated attorneys, and theirrepresentatives at all times and comply with all reasonable requests of attorneys in the prosecution ofthis matter on a timely basis. BOARD agrees to be truthful at all times with COUNSEL and associatedattorneys, to provide whatever information is necessary (in the attorney’s estimation) in a timely andcompetent manner, and to provide immediate information as to any change in BOARD’S status whichmay have any impact on the prosecution of this claim.

9. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State ofFlorida, without regard to conflicts of law rules. Venue shall be designated in the State of Florida,Circuit Court for the Sixth Judicial Circuit in Pinellas County, Florida, or in the United States DistrictCourt for the Middle District of Florida in Tampa, Florida.

10. ENTIRE AGREEMENT

It is expressly agreed that this Agreement represents the entire agreement of the parties, that allprevious understandings are merged in this Agreement, and that no modification of this Agreementshall be valid unless written and executed by both parties.

11. SEVERANCE CLAUSE

It is expressly agreed that if any term or provision of this Agreement, or the application thereof toany person or circumstance, shall be held invalid or unenforceable to any extent, the remainder of thisAgreement, or the application of such term or provision to persons or circumstances other than thoseto which it is held invalid or unenforceable, shall not be affected thereby; and every other term andprovision of this Agreement shall be valid and shall be enforced to the f llest extent permitted by law.

12. ACKNOWLEDGEMENTS AND AUTHORITY TO EXECUTE

The parties acknowledge that they have carefully read and fully understand all of the provisionsof this Agreement, and that they have the capacity to enter into this Agreement. Each party and theperson signing on behalf of each party represents that the person signing this Agreement has the

4

authority to execute this document and thereby bind the party hereto on whose behalf the person issigning. Specifically, the BOARD ac nowledges that it is bound by this Agreement and will executeall the necessary documents (i.e., passing an ordinance or resolution) that may be required by itsgoverning statutes and/or code.

13. COMPLIANCE WITH LAWS

COUNSEL shall comply with all applicable federal and state laws, codes, rules, and regulationsin performing its duties, responsibilities, and obligations pursuant to this Agreement. In the event thatCOUNSEL requires any confidential student information to e ectively advance BOARD S claims,COUNSEL shall, in addition to all other confidentiality obligations, comply with all applicablerequirements of the federal Family Educational Rights and Privacy Act.

14. RECORDS

Each party shall maintain its own respective records and documents associated with thisAgreement in accordance with the records retention requirements applicable to Florida public records.Each party shall be responsible for compliance with any public records requests served upon itpursuant to Section 119.07, Florida Statutes, and any resultant award of attorney’s fees for non-compliance with that law. COUNSEL shall provide prompt notice to BOARD’S School BoardAttorney in the event that COUNSEL receives a public records request associated with this Agreementor the services that COUNSEL is providing to BOARD hereunder. Further, COUNSEL shall provide,upon request by BOARD, records relating to its legal representation of BOARD as described in thisAgreement.

15. RELIANCE ON COUNSEL S EXPERTISE; INDEMNIFICATION

COUNSEL warrants and represents to BOARD that it possesses the specialized knowledge,training, qualifications, and experience necessary to perform the services described in this Agreementand acknowledges that the BOARD and BOARD’S School Board Attorney will rely uponCOUNSEL’S advice, recommendations, and opinions concerning the services provided under thisAgreement, including but not limited to , their compliance with applicable law and rules. COUNSELagrees to indemnify and hold the BOARD and its employees and agents harmless from and againstany and all claims, damages, judgments, liens, atto ey’s fees, or other costs associated with any rulingor judgment against the BOARD and/or its employees or agents in the litigation contemplated by thisAgreement based upon claims of Malicious Prosecution, Abuse of Process, frivolous litigation orsimilar claims. Where the services under this Agreement require COUNSEL to makerecommendations that are controversial or likely to create community dissent, COUNSEL agrees totimely notify and confer with the BOARD’S School Board Attorney before it makes suchrecommendations publicly.

16. PROFESSIONAL LIABILITY INSURANCE

COUNSEL shall procure and maintain Professional Liability Insurance for the life of thisAgreement, plus two years after completion. This insurance shall provide coverage against suchliability resulting from this Agreement. The minimum limits of coverage shall be $3,000,000 with adeductible not to exceed $10,000. In the event of a claim, the deductible shall be the responsibility ofCOUNSEL.

5

17. MEDIA STATEMENTS

COUNSEL shall promptly notify BOARD S School Board Attorney of any requests for a mediastatement regarding BOARD’S litigation and COUNSEL and BOARD S School Board Attorney, inconjunction with BOARD’S Office of Strategic Communications, shall coordinate any response priorto the response being provided to the media.

IN WITNESS WHEREOF, the parties hereto h ve executed this Agreement as of the latest atewritten below.

WAGSTAFF & CARTMELL, LLP

Name; Jonathan P. Kieffer

Title: Partner for the Fir

Date:

THE MAHER LAW FIRM

THE SCHOOL BOARD OF PINELLAS, FLORIDA

By:

Name: Carol J. Cook

Title: Board Chair

Date:

Approved As To Form:

6