Agenda 07/24/2012 Item #16K47/24/2012 Item 16.K.4.
EXECUTIVE SUMMARY
Recommendation to authorize the Chairman to sign an Engagement and Contingency Fee
Agreement with Hinkle & Foran, P.A., et al., for representation in the Multi- District Litigation
relating to the Deepwater Horizon Oil Spill.
OBJECTIVE: To obtain Board approval for the Chairman to sign an Engagement and Contingency Fee
Agreement, consistent with the Board's May 22, 2012 approval of Hinkle & Foran, P.A., et al., as outside
counsel for the Deepwater Horizon Oil Spill Multi- District Litigation.
CONSIDERATIONS: On May 22, 2012 (Item 11.K), the Board approved the hiring of Hinkle & Foran,
P.A., et al., to represent the County in the Multi- District Litigation resulting from the April 20, 2010
Deepwater Horizon Oil Spill. This item is the related contingency agreement for services. Both Lee
County and Manatee County have entered into similar agreements.
If approved, the Chairman will be authorized to sign the agreement on behalf of the Board, consistent
with the Board's May 22nd approval.
FISCAL IMPACT: None. The County has made a claim for lost tourist tax revenue and advertising
expenses, in the amount of approximately $450,000. Any representation will be on a pure contingent fee
basis, with no exposure to the County. All costs and legal fees will be borne by outside counsel, and the
contingency fee and any costs will be deducted from the gross amount recovered.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action and requires a majority vote
for approval. -JW
RECOMMENDATION: To authorize the Chairman to sign an Engagement and Contingency Fee
Agreement (and related Statement of Client's Rights), to formally engage Hinkle & Foran, P.A., et al., as
the County's representative in the Multi- District Litigation relating to the Deepwater Horizon Oil Spill.
PREPARED BY: Jeff E. Wright, Assistant County Attorney
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.4.
7/24/2012 Item 16.K.4.
Item Summary: Recommendation to authorize the Chairman to sign an Engagement and
Contingency Fee Agreement with Hinkle & Foran, P.A., et al., for representation in the Multi -
District Litigation relating to the Deepwater Horizon Oil Spill.
Meeting Date: 7/24/2012
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
7/11/2012 8:18:21 AM
Approved By
Name: WertJack
Title: Director - Tourism,Tourism
Date: 7/11/2012 12:12:09 PM
Name: WrightJeff
Title: Assistant County Attorney,County Attorney
Date: 7/11/2012 12:21:27 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 7/11/2012 3:19:58 PM
Name: FinnEd
Title: Senior Budget Analyst, OMB
Date: 7/11/2012 5:01:15 PM
Name: OchsLeo
Title: County Manager
Date: 7/12/2012 11:12:10 AM
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7/24/2012 Item 16.K.4.
ENGAGEMENT AND CONTINGENCY FEE AGREEMENT
This AGREEMENT is made this day of , 2012, by and between Collier
County ( "the Governmental Entity ") and Levin, Papantonio, Thomas, Mitchell, Rafferty &
Proctor, P.A., a professional corporation located in Pensacola, Florida; Hinkle & Foran, P.A., a
professional corporation located in Tallahassee, Florida; Weitz & Luxenberg, P.C., a New York
professional corporation; Baron & Budd, P.C., a professional corporation located in Texas; and
Beggs & Lane, PLLC, a professional corporation located in Pensacola, Florida. (collectively
"Special Counsel ").
EVENT CAUSING HARM:
On April 20, 2010, the Deepwater Horizon (a semi - submersible Mobile Offshore Drilling Unit)
exploded in the Gulf of Mexico, resulting in the death of eleven persons and injury to many
others. Over the ensuing four months, it is estimated that more than 200 million gallons of
petroleum were released into the Gulf of Mexico.
HARM CAUSED:
As a result of the Deepwater Horizon Incident, commercial seafood harvesting in much of the
Gulf of Mexico was federally forbidden, and petroleum products began washing ashore along
and near the Florida seashore. As a result of these events, tourism within the area of the
Governmental Entity was (and continue to be) significantly reduced; commercial entities and
occupations of every kind have experienced (and continue to experience) large reductions in
revenue; and the market value of real estate in the impacted areas have declined. Each of these
damages, among many other forms of injury resulting from the Deepwater Horizon Incident, has
caused (and continues to cause) loss of revenue to the Governmental Entity.
NEED FOR PRIVATE COUNSEL:
The Governmental Entity intends to pursue a cause of action against all parties potentially
responsible for the Deepwater Horizon Incident ( "Defendants ") to recover damages sustained
(and to be sustained) by the Governmental Entity ( "Litigation "). However, the Litigation likely
will entail numerous complex factual and legal issues, and require the expenditure of substantial
human and financial resources, the Governmental Entity is not in a position to expend or risk.
Because of the immense allocation of resources necessary to properly undertake and pursue the
Litigation, the Governmental Entity seeks to limit its exposure in such Litigation by retaining the
services of Special Counsel to assist the Governmental Entity.
SCOPE OF SERVICES /CASE HANDLING:
Special Counsel are retained to provide legal services to the Governmental Entity for the purpose
of seeking any and all damages that the Governmental Entity is entitled to recover from the
Defendants as a result of the Litigation.
as the chief legal officer for the Governmental Entity
( "Government Counsel "), is charged with representing the Governmental Entity in legal
proceedings with respect to which it has an interest and will retain final authority over all aspects
of the Litigation, and Special Counsel shall report to and abide by the directions of Government
Counsel.
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7/24/2012 Item 16.K.4.
As provided herein, Special Counsel is authorized to take all appropriate legal action to
prosecute the Litigation and participate in settlement negotiations with approval of Government
Counsel. Government Counsel will monitor, review and participate as counsel in the prosecution
of all aspects of the Litigation. Special Counsel shall consult in advance with, and obtain the
prior approval of, Government Counsel concerning all substantive matters related to the
Litigation, including, but not limited to, the pleadings and dispositive motions, discovery and
selection of cor sultants and experts. Special Counsel shall provide Government Counsel with
copies of all material correspondence, pleadings, and discovery requests and responses related to
the Litigation. Special Counsel shall communicate with the Governmental Entity departments
through Government Counsel unless alternative arrangements are made in advance between
Special Counsel and Government Counsel. Special Counsel shall provide sufficient resources,
including attorney time and capital for payment of expenses to prosecute the Litigation faithfully
and with due diligence. Legal services under this Agreement - shall be performed only by
competent personnel under the supervision and in the employment of Special Counsel or retained
by Special Counsel as consultants with the prior approval of Government Counsel. Special
Counsel agrees to maintain contemporaneous expense records. Special Counsel shall upon
request submit expense records to Government Counsel setting forth all expenses incurred on
behalf of the Governmental Entity in pursuing the Litigation. Because the County is not in a
position to expend or risk, regardless of the outcome of the Litigation, the County shall not be
responsible for any out of pocket fees or costs, as all fees and costs are to be deducted from the
gross recovery as detailed herein.
CONTINGENT FEE:
For such professional services, the Governmental Entity agrees to pay Special Counsel attorneys'
fees and costs incurred. The attorneys' fees shall be a 20% contingency fee for resolution of any
final settlement claim payments processed through the Gulf Coast Claims Facility (or similar
administrative process); or for resolution of any compensation recovered through a legal
proceeding filed in state and/or federal court (whether such recovery occurs as a result of
settlement, judicial award and/or jury award). All fees will be calculated on the total gross
amount recovered before reduction of costs and expenditures.
As an example using a hypothetical cost amount:
Total Recovery:
$1,000
Attorneys' Fee:
200
County Co. Specific Costs
3
Pro -rata general costs
2
Net Recovery to County:
795
The percentage of the recovery allocated to Collier County Specific and General costs may be
more or less, but this example illustrates how the fee is assessed and then costs deducted before
the net payout to the County.
In the event that a court- awarded fee is collected which exceeds the contingency fee percentages
as set forth above, the court- awarded fee shall apply in lieu of the above amounts. This
employment is upon a contingent fee basis and unless a recovery is made there will be no
obligation by the Governmental Entity to pay attorneys' fees to Special Counsel.
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7/24/2012 Item 16.K.4.
COSTS:
This employment is on a contingent basis and, unless a recovery is made, there will be no
obligation by the Governmental Entity to pay costs incurred by Special Counsel. If a recovery is
made, then the Governmental Entity will be responsible for all costs and expenses incurred in the
handling of the Governmental Entity's case, in addition to the attorneys' fees noted above.
However, the Governmental Entity's responsibility for paying costs shall not exceed the gross
recovery amount.
Costs shall include, but not be limited to, cash and non -cash expenditures for filing fees;
subpoenas; depositions; witness fees; in -house and outside investigation services; expert witness
fees; Multi - District Litigation (MDL) assessments; Lexis/Nexis /Westlaw and other computer
research and on -line service costs; photographs; in -house and outside photocopies; facsimiles;
long- distance telephone calls; postage and federal express, UPS and other overnight service
charges; mediation fees; travel costs; out -of -town hotel, food and transportation charges; in-
house and outside trial exhibits; in -house and outside multi -media services; and all other costs
necessary for performance of legal services.
In addition to the above listed individual costs, Special Counsel also charges common benefit
costs to the Governmental Entity in cases where Special Counsel represents multiple clients in
similar litigation (such as this case involving the BP oil disaster). Common benefit costs are
costs expended by Special Counsel for the common benefit of a group of clients. For example, if
a deposition of a defendant expert witness is taken in one case, and this deposition can be used
for and/or benefit the claims of many other clients, Special Counsel classifies these costs as
common benefit costs. Similarly, if Special Counsel spends $30,000 to hire an expert to reach an
opinion on a topic affecting many clients, then instead of charging the entire $30,000 to the first
client who utilizes this expert, Special Counsel spreads the costs among all clients in the group.
Thus, if Special Counsel has 1,000 clients being represented in similar litigation, each client is
charged $30 of the expert fee instead of the first client being charged $30,000. By using this
common benefit cost system, no one client has to solely bear the costs which actually benefit the
group as a whole, and many of the most substantial costs of litigation can be shared equally by
all.
Common benefit costs include any and all costs which can benefit a group of clients. For
example, to the extent charges benefit a group of clients, common benefit charges may include
postage, faxes, telephone, copies, experts, investigation, computer research, transportation, and
many of the costs incurred in actually trying one client's case before a jury.
All costs advanced on behalf of the Governmental Entity, whether individually and/or common
benefit, shall bear interest at the prime rate as published by the Wall Street Journal until such
time as the costs are paid by the Governmental Entity. Unless a recovery is made there will be
no obligation by the Governmental Entity to pay costs or interest incurred by Special Counsel.
NATURE OF RELATIONSHIP:
The Governmental Entity acknowledges that by this Agreement, Special Counsel are retained as
attorneys and that neither Special Counsel nor their members or employees become officers or
employees of the Governmental Entity. Special Counsel shall be deemed at all times to be
3
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7/24/2012 Item 16.K.4.
independent contractors and shall be wholly responsible for the manner in which they perform
the services required of them by the terms of this Agreement. Special Counsel shall be liable for
any act or acts of their own, or their agents or employees, and nothing contained herein shall be
construed as creating the relationship of employer and employee between the Governmental
Entity and Special Counsel or their agents and employees.
ASSIGNMENT:
This Agreement may not be assigned by Special Counsel, Special Counsel are expressly
employed because of their unique skills, ability and experience and therefore it is understood that
no substitution or assignment maybe made unless the Governmental expressly approves such
substitution or assignment.
SUBCONTRACTING:
Special Counsel are prohibited from subcontracting this Agreement or services unless such
subcontracting is agreed to in writing by the Governmental Entity. No party on the basis of this
Agreement shall in any way contract on behalf of or in the name of the other party of this
Agreement. Any violation of this provision shall confer no right on any party and shall be void.
CONFIDENTIALITY:
Special Counsel understand and agree that, in the performance of this Agreement, Special
Counsel may have access to private or confidential information, which maybe owned or
controlled by the Governmental Entity or any officer or employee thereof and that such
information may contain proprietary or confidential details, whose disclosure to third parties may
be damaging to the Governmental Entity or prohibited by iaw. Special Counsel agree that such
information shall be held in confidence and used only in performance of the Agreement and shall
not be furnished to others by Special Counsel except as authorized by the Governmental Entity
or as required by law.
RETENTION OF CLIENT FILE:
The Governmental Entity understands that Special Counsel will only retain the Governmental
Entity's file for a period of six years after the case is completed. After the six -year period, the
entire file will be discarded, and Special Counsel will not retain a copy of any portion of the file.
Thus, it is the Governmental Entity's responsibility to seek the return of all original documents
immediately after the case is completed, and to request a copy of any portions of the file the
Governmental Entity wishes to retain. If the Governmental Entity waits more than six years to
request the file, then no portion ,of the file will be in existence at that time.
FORUM AND CHOICE OF LAW:
Any actions arising out of this Agreement shall be governed by the laws of Florida.
MODIFICATION:
This Agreement shall not be modified, nor may compliance with its terms be waived, except by
written instrument executed and approved by Special Counsel and the Governmental Entity (or
its designee).
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7/24/2012 Item 16.K.4.
LEGAL CONSTRUCTION:
In case any provision, or any portion of any provision, contained in this Agreement shall for any
reason be held to be invalid, illegal and/or unenforceable in any respect, such invalidity,
illegality and/or unenforceability shall not affect the validity and/or enforceability of any other
provision or portion thereof, and this Agreement shall be construed as if such invalid, illegal
and/or unenforceable provision or portion thereof was never contained herein.
ENTIRE AGREEMENT:
This contract sets forth the entire Agreement between the parties, and supersedes all other oral or
written provisions.
RECEIPT OF DOCUMENTS:
The undersigned Governmental Entity has, before signing this contract, received and read The
Statement of Client's Rights and understands each of the rights set forth therein. The
undersigned Governmental Entity has signed the statement and received a signed copy to refer to
while being represented by Special Counsel.
Signed this day of
APPROVED BY:
COLLIER COUNTY
ATTEST:
DWIGHT E. BROCK, Clerk
By:
Deputy Clerk
HINKLE & FORAN, P.A.
Date:
2012.
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
FRED W. COYLE, CHAIRMAN
LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY & PROCTOR, P.A.
By: Date:
BARON & BUDD, P.C.
By: Date:
BEGGS & LANE, RLLP
By: Date:
5
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WEITZ & LUXENBERG, P.C.
Date:
Approved as to form and legal sufficiency:
By:
Jeff E. Wright
Assistant County Attorney
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7/24/2012 Item 16.K.4.
7/24/2012 Item 16.K.4.
STATEMENT OF CLIENT'S RIGHTS
Before you, the prospective the Governmental Entity, arrange a contingency fee agreement with
a lawyer, you should understand this statement of your rights as a client. This statement is not a
part of the actual contract between you and your lawyer but as a prospective client, you should
be aware of these rights:
1. There is no legal requirement that a lawyer charge a client a set fee or a percentage of money
recovered in a case. You, the client, have the right to talk with your lawyer about the proposed
fee and to bargain about the rate or percentage as in any other contract. If you do not reach an
agreement with one (1) lawyer, you may talk with other lawyers.
2. Any contingent fee contract must be in writing and you have three (3) business days to
reconsider the contract. You may cancel the contract without any reason if you notify your
lawyer in writing within three (3) business days of signing the contract. If you withdraw from
the contract within the first three (3) business days you do not owe the lawyer a fee, although
you may be responsible for the lawyer's actual costs during that time. If your lawyer begins to
represent you, your lawyer may not withdraw from the case without giving you notice, delivering
necessary papers to you, and allowing you time to employ another lawyer. Often, your lawyer
must obtain court approval before withdrawing from a case. If you discharge your lawyer
without good cause after the 3 -day period, you may have to pay a fee for the work the lawyer has
done.
3. Before hiring a lawyer, you the client have the right to know about the lawyer's education,
training, and experience. If you ask, the lawyer should tell you specifically about the lawyer's
actual experience dealing with cases similar to yours. If you ask, the lawyer should provide
information about special training or knowledge and give you this information in writing if you
request it.
4. Before signing a contingent fee contract with you, a lawyer must advise you whether the
lawyer intends to handle your case alone or whether other lawyers will be helping with the case.
If your lawyer intends to refer the case to other lawyers, the lawyer should tell you what kind of
fee sharing arrangement will be made with the other lawyers. If lawyers from different Special
Counsels will represent you, at least one lawyer from each Special Counsel must sign the
contingent fee contract.
5. If your lawyer intends to refer your case to another lawyer, or counsel with other lawyers, your
lawyer should tell you about that at the beginning. If your lawyer takes the case and later
decides to refer it to another lawyer or to associate with other lawyers, you should sign a new
contract that includes the new lawyers. You, the client, also have the right to consult with each
lawyer working on your case and each lawyer is legally responsible to represent your interests.
Also, The Florida Bar contends that each lawyer is legally responsible for the acts of the other
lawyers involved in the case.
6. You, the client, have the right to know in advance how you will need to pay the expenses and
the legal fees at the end of the case. If you pay a deposit in advance for costs, you may ask
reasonable questions about how the money will be or has been spent and how much of it remains
7
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7/24/2012 Item 16.K.4.
unspent. Your lawyer should give a reasonable estimate about future necessary costs. If your
lawyer agrees to lend or advance you money to prepare or research the case, you have the right
to know periodically how much money your lawyer has spent on your behalf. You also have the
right to decide, after consulting with your lawyer, how much money is to be spent to prepare a
case. If you pay the expenses, you have the right to decide how much to spend. Your lawyer
should also inform you whether the fee will be based on the gross amount recovered or on the
amount recovered minus the costs.
7. You, the client, have the right to be told by your lawyer about possible adverse consequences
if you lose the case. Those adverse consequences might include money that you might have to
pay to your lawyer for costs, and liability you might have for attorney's fees, costs, and expenses
to the other side.
8. You, the client, have the right to receive and approve a closing statement at the end of the case
before you pay any money. This statement must list all of the financial details of the entire case,
including the amount recovered, all expenses, and a precise statement of your lawyer's fee. Until
you approve the closing statement, you need not pay any money to anyone, including your
lawyer. You also have the right to have every lawyer or Special Counsel working on your case
sign this closing statement.
9. You, the client, have the right to ask your lawyer at reasonable intervals how the case is
progressing and to have these questions answered to the best of your lawyer's ability.
10. You, the client, have the right to make the final decision regarding settlement of a case. Your
lawyer must notify you of all offers of settlement before and after the trial. Offers during the
trial must be immediately communicated and you should consult with your lawyer regarding
whether to accept a settlement. However, you must make the final decision to accept or reject a
settlement.
If at any time, you, the client, believe that your lawyer has charged an excessive or illegal fee,
you, the client, have the right to report the matter to The Florida Bar, the agency that oversees
the practice and behavior of all lawyers in Florida. For information on how to reach The Florida
Bar, call 850 -561 -5600, or contact the local bar association. Any disagreement between you and
your lawyer about a fee can be taken to court and you may wish to hire another lawyer to help
you resolve this disagreement. Usually fee disputes must be handled in a separate lawsuit, unless
your fee contract provides for arbitration. You can request, but may not require, that a provision
for arbitration (under Chapter 682, Florida Statutes, or under the fee arbitration rule of the Rules
Regulating The Florida Bar) be included in your fee contract.
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APPROVED BY:
COLLIER COUNTY
ATTEST:
DWIGHT E. BROCK, Clerk
Deputy Clerk
7/24/2012 Item 16.x.4.
v
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
FRED W. COYLE, CHAIRMAN
HINKLE & FORAN, P.A.
By: Date:
LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY & PROCTOR, P.A.
By: Date:
BARON & BUDD, P.C.
By:
BEGGS & LANE, RLLP
By:
Date:
Date:
WEITZ & LUXENBERG, P.C.
By: Date:
Approved as to form and legal sufficiency:
By:
Jeff E. Wright
Assistant County Attorney
Q
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7/24/2012 Item 16.K.4.
EXECUTIVE SUMMARY
Recommendation to authorize the County Attorney to engage outside counsel for representation
in the Multi- District Litigation relating to damages incurred as a result of the Deepwater Horizon
Oil Spill.
OBJECTIVE: To obtain Board authorization for the County Attorney to engage the services of outside
counsel to represent the County's interest in the ongoing litigation relating to the Deepwater Horizon Oil
Spill.
CONSIDERATIONS: The County has filed a claim in the Deepwater Horizon Oil Spill litigation, seeking
to recover lost tourist tax revenue and advertisement expenses resulting from the April 20, 2010, oil spill
(see Agenda Item 16.F.4, April 12 -13, 2011).
Three plaintiffs' firms contacted the County Attorney's Office seeking to represent the County on its
claim. Those first firms, in order of preference, are: (1) Hinkle & Foran, P.A. (" "Hinkle ")(part of a
consortium of mainly Florida firms); (2) Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. ( "Beasley
Allen ") (an Alabama firm); and (3) Motley Rice, LLC (a South Carolina firm). All the firms claim to have a
unique bargaining position, a team of experts, and state of the art economic modeling.
Hinkle is the recommended firm for several reasons. First, of the three firms, Hinkle currently represents
the greatest number of Florida local governments (including Lee, Escambia, Jackson, Jefferson, Leon
and Wakulla Counties; cities of Pensacola, Tallahassee, Marathon; and several other Florida cities and
school districts). Notably, Lee County selected Hinkle over Beasley Allen. Second, Hinkle's consortium
is heavily represented in the Multi- District Litigation on both the Plaintiff's Steering Committee (the
"PSC ") (4 of 15 seats) and the Plaintiff's Executive Committee (the "PEC ") (2 of 4 seats). Finally, Hinkle
has been the clearest in communicating its proposed terms of representation and proposed
compensation; which involves a contingency fee of 20% of the gross recovery to the County.
Beasley Allen is staff's second choice in order of preference. Beasley Allen is an Alabama firm that is
currently representing Gulf and Walton Counties, along with several Alabama municipalities and a few
Florida municipalities. They have one attorney on the PSC (versus Hinkle's four), and none on the PEC
(versus Hinkle's two).
In the unlikely event that attempts to secure representation with Hinkle should fail, staff recommends
retaining Beasley Allen.
FISCAL IMPACT: None. The County has made a claim for lost tourist tax revenue and advertising
expenses, in the amount of approximately $450,000. Any representation will be on a contingent fee
basis, with no exposure to the County.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this
Executive Summary.
LEGAL CONSIDERATIONS: The County Attorney's Office is in agreement with staff's recommendation.
This item is legally sufficient for Board action and requires a majority vote for approval. -JW
RECOMMENDATION: To authorize the County Attorney's Office to engage Hinkle & Foran, P.A., to
represent the County in the Multi- District Litigation relating to the Deepwater Horizon Oil Spill.
Alternatively, in the event a retainer agreement cannot be reached with Hinkle & Foran, to authorize the
retention of counsel in the remaining order of preference stated above.
PREPARED BY: Jack Wert, Director, Collier County Tourism Department
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