Class Action Example: Fixed Fee by Phase with Activity Collar Material Deviation Clause
RFP Scope of Services:
Please see below for tasks and assumptions related to the matter. All proposals should be based on the tasks outlined below.
Phase I: Initial Case Assessment and Pleadings
- Interview no more than seven (7) witnesses
- Develop preservation notice keywords
- Review collected key documents
- Engage in Settlement efforts and discussions
- Case management & Scheduling - Analyze case, develop strategy, and confer with the Company, scheduling conferences, scheduling orders, and other case management orders (assume remote court appearances)
- Prepare responses to claim letter (and any subsequent communications from plaintiff)
- Initial Motion/Pleading Practice - list all assumptions that form the basis of this fee (e.g. removal, motion to transfer venue, motions to dismiss and other pre-answer motions, motions for judgment on the pleadings, jurisdiction-related tasks, and counterclaims or third-party claims)
Phase II: Discovery:
- Written Discovery:
- Propound/respond to written discovery
- Document Production
- Take no more than five (5) depositions and defend no more than five (5) depositions (both expert & non-expert)
Phase III: Prepare Motion for Summary Judgment
- Prepare and file a Motion for Summary Judgment
- Oral argument, if required.
Phase IV: Settlement Negotiations & Agreement
- pre-mediation exposure analysis and mediation brief,
- participation in 1 full-day of private mediation
- drafting of long-form settlement agreement
- review and revision of preliminary and final settlement approval
- appearance at preliminary and final approval hearings
- monitoring of post-settlement administration process
Phase V: Defeating Class Certification
- all work relating to defeating class certification
- Assumes all work including (40) interviews and drafting (30) declarations
Phase VI: Post-Certification Discovery
- assumes a class is certified on most or all claims
- assumes (50) depositions of putative class members
- assumes all post-certification work with an expert on statistical reporting
- Assumes all Daubert motions to position for decertification.
Phase VII: Post-Certification Motions
- Assumes a motion to decertify
- Assumes a motion for a trial plan
Phase VIII: Trial Prep and Trial
- Prepare for trial including witness preparation, pretrial pleadings, jury research, and related efforts
- Trial to last 10 days
- All efforts related to trial, including witness work, and briefing, and all in-court time.
Material Deviation: The firm selected will periodically review the actual work performed in connection with this matter against the above Scope of Services which underlie the Fixed Fee. The firm will contact Company promptly if it believes that the actual work performed to defend Company in connection with this matter has varied from the Scope of Services as detailed above. Based upon a standard of good faith and fairness, Company and the firm may then review the work performed and may consider accelerating or decelerating the invoicing schedule and/or increasing or decreasing the amount of the Fixed Fee in the event of any material changes from the Scope of Services. Company may also request that the firm conduct such a review of actual work against the work contemplated by the Scope of Services. This review of the status of the work and material change discussion between Company and the firm may occur more than once during the pendency of the matter.
Unless otherwise agreed, Material Deviation shall be defined as a 30% increase or decrease in the assumed number of activities described in each RFP price item above. If there is a material deviation then we would use the below activity fixed fees to determine how much to increase or decrease the total price.