Carton v. Q Market Center, LLC

Filing 19

REPORT AND RECOMMENDATIONS by Chief Magistrate Judge Karen B. Molzen. Objections to R&R due by 7/24/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R . Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) Attachments: (1) Attachment A - Carton agreement with LMFS (2) Attachment B - Carton agreement with Pomeranz (3) Attachment C - Pomeranz agreement with LMFS (ng)

Litigation Management Agreement 

LITIGATION MANAGEMENT AGREEMENT
This Litigation Management Agreement (“Agreement”) is entered into this ___ day of _____,
2016, by and between Sharon E. Pomeranz (“Attorney”) and Litigation Management and Financial
Services, LLC (“Company”) (collectively referred to herein as “Parties”) as follows:
RECITALS
1. On July 26, 1990, the Americans with Disabilities Act (“ADA”) was signed into law. The
ADA is a comprehensive civil rights law prohibiting discrimination on the basis of disability.
2. The ADA contains four sub-parts. The first three sections of the statute, Titles I, II, and III,
bar discrimination on the basis of disability in different areas of public life.
a. ADA Title I addresses discrimination in employment and bars disability discrimination
by an "employer, employment agency, labor organization, or joint labor-management
committee." 42 U.S.C. §§ 12111(2), 12112. Title I contains its own enforcement
provision, § 12117, which incorporates the remedies of Title VII of the Civil Rights Act,
42 U.S.C. §§ 2000e-4 to -9.
b. ADA Title II, in pertinent part, bars disability discrimination in the services, programs, or
activities of a "public entity," defined as a state or local government, its agencies or
instrumentalities, and the National Railroad Passenger Corporation or any commuter
authority. Id. §§ 12131(1), 12132. Title II contains an enforcement provision, § 12133,
which incorporates the remedies of the Rehabilitation Act, 29 U.S.C. § 794a(a)(2), which,
in turn, incorporates Title VI of the Civil Rights Act, 42 U.S.C. §§ 2000d, et seq.
c. ADA Title III addresses disability discrimination in public accommodations, defined to
include places of education including post-graduate private schools, and bars disability
discrimination by "any person who owns, leases (or leases to), or operates a place of
public accommodation." §§ 12181(7)(J), 12182. The enforcement provision of Title III,
§ 12188, incorporates the remedies of Title II of the Civil Rights Act, 42 U.S.C. § 2000a3.
d. The final sub-part of the ADA, Title IV, contains miscellaneous provisions. One of these
provisions, § 12203, forbids retaliation against anyone for opposing actions made
unlawful under the ADA or for participating in a charge under the ADA. § 12203(a). It
also forbids coercion or intimidation against anyone exercising his or her rights under the
statute. § 12203(b).
3. Title III of the ADA contains a list of general activities that it defines as discrimination: the
denial of an opportunity to participate, 42 U.S.C. §§ 12182(b)(1)(A)(i), 12182(b)(1)(C); the
provision of an unequal benefit, id. § 12182(b)(1)(A)(ii); and the provision of a separate
benefit, unless doing so is necessary to provide a benefit that is as effective as that provided to
others. Id. § 12182(b)(1)(A)(iii).13Furthermore, the statute requires benefits provided to people
1 | P a g e

Litigation Management Agreement 

with disabilities to be afforded in the most integrated setting appropriate to the needs of the
individual. Id. § 12182(b)(1)(B).
4. Title III of the ADA prohibits discrimination on the basis of disability by those who own or
operate places of public accommodation. 42 U.S.C. § 12182(a). In enacting the ADA,
Congress found that “historically, society has tended to isolate and segregate individuals with
disabilities.” 42 U.S.C. § 12101(a)(2). The ADA’s legislative history states that “[i]ntegration
is fundamental to the purposes of the ADA. Provision of segregated accommodations and
services relegate persons with disabilities to second-class citizen status.” H. Rep. 101–485(III),
101st Cong., 2d Sess., at 56, reprinted in 1990 U.S.C.C.A.N. 445, 479. “ ‘[T]he goal [is to]
eradicat[e] the “invisibility of the handicapped.” ’ Separate-but-equal services do not
accomplish this central goal and should be rejected.” Id. at 50, 1990 U.S.C.C.A.N. at 473.
The ADA provides a “broad mandate” to “eliminate discrimination against disabled
individuals, and to integrate them ‘into the economic and social mainstream of American life.’
” PGA Tour, Inc. v. Martin, 532 U.S. 661, 675, 121 S.Ct. 1879,149 L.Ed.2d 904
(2001) (quoting H.R.Rep. No. 101–485, pt. 2, p. 50 (1990),reprinted in 1990 U.S.C.C.A.N.
303, 332).
5. This integration mandate is found in two sections of the statute. Title III makes it
discriminatory to provide individuals with disabilities “with a good, service, facility, privilege,
advantage, or accommodation that is different or separate from that provided to other
individuals, unless such action is necessary” to provide facilities, accommodations and the like
that are as effective as those provided others. 42 U.S.C. § 12182(b)(1)(A)(iii). It also requires
that “[g]oods, services, facilities, privileges, advantages, and accommodations shall be
afforded to an individual with a disability in the most integrated setting appropriate to the needs
of the individual.” Id., § 12182(b)(1)(B).
6. Section 303 of the ADA required that all facilities designed and constructed after January 26,
1993 must be “readily accessible to and useable by” individuals with disabilities. 42 U.S.C. §
12183(a)(1). The statute further instructed the DOJ to adopt implementing standards and
regulations. 42 U.S.C. § 12186(b). On July 26, 1991, the DOJ adopted the Americans with
Disabilities Act Accessibility Guidelines as the 1991 Standards. 28 C.F.R. § 36.406(a) (1991).
The 1991 Standards are now published as Appendix D to title 28, part 36 of the Code of Federal
Regulations. On September 15, 2010, the DOJ amended its regulations and adopted the 2010
Standards.
7. The ADA also provides a private right of action for preventative relief, including an
application for a permanent or temporary injunction or restraining order for ‘any person who
is being subjected to discrimination on the basis of disability in violation of’ Title III.” 42
USC §§ 12182(a)(1), 2000a-3(a)).
8. Virtually all individual States have passed legislation similar in intent and scope to the ADA.
9. Private enforcement suits are the primary method of obtaining relief under the ADA.

2 | P a g e

Litigation Management Agreement 

10. Private enforcement suits are often brought by committed and passionate individuals desiring
to ensure compliance with the ADA.
11. Company has been contacted by one or more individuals with disabilities (“Testers”), for the
purpose of privately enforcing the ADA.
12. Testers desire to bring private civil rights enforcement lawsuits against places of public
accommodations that discriminate against Testers and other individuals with disabilities.
13. Attorney is authorized to practice law in United States District Court for the District of
________.
14. Attorney desires to act as Testers’ attorney in ADA civil rights enforcement actions.
15. Company is a litigation management company with ability to manage ADA litigation matters
from the due diligence, pre-filing investigations, drafting, conducting discovery, and all
phases of civil litigation.
NOW, THEREFORE, the Parties enter the following
AGREEMENT
1. Limitation of Engagement: This Agreement is limited to providing management services to
Attorney only in ADA Actions filed by Attorney on behalf of Testers.
2. Attorney – Company Relationship.
a. Generally: Attorney is retaining Company to provide all litigation support services within
the broadest scope of ethical rules governing the practice of law. The litigation support
includes Company providing receptionist, telephone, e-mail, paralegal and consulting
services by Company attorneys knowledgeable and experienced in ADA enforcement
actions.
b. Attorney Direction and Supervision of Company: Attorney directs Company to provide
services described in this Agreement.
c. Company’s Management Assets Assigned to Attorney: Company shall assign paralegals,
staff and personnel to work for Attorney. Company shall purchase and maintain a new
telephone number and e-mail address for Attorney in order to communicate and settle ADA
actions with Defendant or Defendant’s attorney. As required by local rules, Attorney’s
name, address, new telephone number and new e-mail address shall appear in every filing
with the Court. Attorney’s new telephone number and new e-mail address shall be
implemented in each case through the Company’s selection of an appropriate number and
e-mail address. Attorney herein agrees to the implementation of a new number and email
address on his behalf for the cases filed for Tester.

3 | P a g e

Litigation Management Agreement 

d. Logistics: Upon the filing of a new complaint and the completion of service of process,
Defendant or Defendant’s Attorney is expected to contact Attorney. The contact will be
made through Attorney’s assigned paralegal or other staff who will answer the new phone
line and the new address and commence negotiations. The paralegal shall maintain a log
of all communications with opposing parties which log shall be maintained in a file
accessible to Attorney and Tester through a secure file sharing and storage location.
Likewise, the paralegal assigned to Attorney shall maintain all e-mail communications in
a communications file available to Attorney and Client through a secure file sharing and
storage location
e. Communications: It is expected that all communications with opposing parties shall occur
through phone calls and e-mails. All telephone and email communications shall be
documented, saved, and shared through a log referenced above. In such cases when a
defendant party contact’s attorney directly, attorney shall immediately advise the assigned
paralegal and give instructions whether Attorney will take over the negotiations or whether
Attorney wishes paralegal to do so. In the event Attorney takes over communications,
attorney shall be responsible for notating the communications logs in a secure file sharing
and storage location.
3. Company’s Duties and Obligations: The Company, under the supervision, authority and
consent of Attorney, shall manage all aspects of ADA civil actions. The Company shall:
a. Design, pay for and maintain Pre-Filing Due Diligence Software (“DD Software”) for the
use of the Tester and Tester’s assistant; and
b. Develop, pay for and maintain Case Management Software specifically designed for ADA
Actions; and
c. Design, pay for and maintain a secure file sharing and storage location, such as dropbox,
accessible to the Company, Attorney and Tester; and
d. Hire, retain, and/or train employees with expertise in ADA litigation including, but
not limited to, paralegals, secretaries, inspectors, and attorneys licensed to practice
in a Federal District Court.
e. Aid Tester and Tester’s assistant to investigate and document ADA violations in public
accommodations with the use of DD Software; and
f. Based on DD software and ownership / control investigation, prepare a Due Diligence
Report (“DDR”) and file same in the dropbox; and
g. Contact Tester directly for the purpose of preparing and submitting Motion to Proceed in
Forma Pauperis pursuant to 28 U.S.C. § 1915 and to complete the Affidavit; and

4 | P a g e

Litigation Management Agreement 

h. On the basis of the DDR, prepare a (1) draft Verified Complaint which shall generally
describe the ADA violations and append as Exhibit A the DDR for specific violations, (2)
draft Motion to Proceed in Forma Pauperis, (3) draft Summons(es), (4) draft Civil Action
Coversheet(s), and (5) other standard documents required to be filed in the Jurisdiction
(cumulatively “Initial Court Documents”) and save the same in the Dropbox; and
i. Conduct a review of Initial Court Documents by Company; and
j. Invite Attorney and Tester to review and approve / disapprove the draft documents for
filing; and
k. Upon Attorney’s approval of the Initial Court Documents, file the same with the US
District Court; and
l. Pay the filing fee unless waived; and
m. Serve Defendants and pay for service of process; and
n. Conduct settlement discussions and:
i.

Settle Cases, or

ii.

Litigate cases under the direction of Attorney including drafting and filing a motion for
preliminary injunction, motion for default judgment, motions for judgment on the
pleadings, motion for summary judgment, and responses to Defendant(s)’ motions.

o. Prepare closing documents for approval by Attorney.

4. Attorney’s Duties and Obligations: Attorney shall
a. Contact the US District Court in which ADA enforcement actions are to be filed, and ensure
that the Clerk’s PACER distribution e-mails contain both Attorney’s primary e-mail and
paralegal’s secondary e-mail.
b. Review, approve (or disapprove) Initial Court Documents and any subsequent work papers;
and
c. Authorize Company in writing to file Initial Court Documents over Attorney’s electronic
signature; and
d. Regularly review all Actions in the secure file sharing and storage location; and

5 | P a g e

Litigation Management Agreement 

e. In those cases where Attorney handles negotiations and litigation, if any, maintain the
current status of the case in a secure file sharing and storage location for review by
Company and Tester; and
f. Receive settlement amounts, if any, and distribute same as indicated below.
5. The Attorney – Tester Relationship: The Attorney-Tester Relationship shall be governed by
a separate Attorney-Client Agreement. The Attorney’s agreement with Testers shall provide,
inter alia, the following:
a. That Testers are aware that in a federal ADA action, a plaintiff is not entitled to damages
or recompense other than for costs, expenses and attorney’s fees.
b. That Testers are aware of the Attorney – Company Agreement (this Agreement) and
consents to litigation services provided by Company for Attorney.
6. Compensation: No compensation shall be due to Company until and unless an Action
results in an actual judicial award or settlement payment (“Monetary Recovery”) and the
Monetary Recovery has cleared Attorney’s Trust Account. Where the award has cleared
Attorney’s Trust Account, the following shall apply:
7. Acknowledgement of Fee Receipt: a) "Attorney acknowledges that they will be paid One
Hundred Dollars ($100.00) per case filed, no matter the outcome of the cases filed."
Attorney acknowledges that they have agreed, or will agree, in a separate agreement to
receive from Tester(s) an amount of Attorney’s fees in a negotiated attorney-client
agreement with Testers. Attorney acknowledges that Testers pay the Attorney, via the
Company, within twenty-one (21) calendar days of filing a Complaint. Attorney and
Company recognize that the reasonable fees for Attorney’s work on each case may be
greater than or less than the actual amount received from Tester and the rates Attorney
agrees upon are done so for purposes of serving the underserved and advancing ADA
enforcement and compliance.
a. Management Payment Fee: The Parties acknowledge and agree that a fair market rate for
Company’s services would exceed $10,000.00 per case filed. Despite the fair market rate,
Company agrees to take a lower fee for purposes of serving the underserved and
advancing ADA enforcement and compliance. Attorney agrees to convey to Company the
full amount of any Monetary Recovery obtained through settlement. Attorney also agrees
to convey to Company $2,000.00 for any case in which a Monetary Recovery is obtained
through judicial order or other administrative order awarding costs, attorneys’ fees, or
other damages. Attorney’s obligation to pay Company following an order does not arise
until at least $2,000 is recovered in actual liquid funds.
8. Avoiding Unauthorized Practice of Law
a. General Guidelines: A lawyer may use nonlawyers outside the firm to assist the
lawyer in rendering legal services to the client. The ABA’s Model Rule 5.3 and
6 | P a g e

Litigation Management Agreement 

accompanying comments shall serve as instruction and models for the conduct
between Attorney and Company.
b. No Practice of Law by Company: Company affirms its commitment to avoid any
unauthorized practice of law. Company will maintain the professional
independence of Attorney. Company will make reasonable efforts to ensure that
the Company’s conduct is compatible with the professional obligations of
Attorney.
c. Guidance by Attorney: Attorney will make reasonable efforts to ensure that the
services provided by Company are done so in a manner that is compatible with
the lawyer’s professional obligations. Attorney will communicate directions
appropriate under the circumstances to give reasonable assurance that the
Company’s conduct is compatible with the professional obligations of the lawyer.
i. Local Standard: Attorney avers that he/she will review all local ethical
rules in order to direct conduct of Company.
9. Mutual Confidentiality and Non-Disclosure
a. During the Course of Attorney and Company’s relationship, the Parties may be
exposed to or come into possession of information that is confidential and
proprietary to the other party. For purposed of this section, the party receiving
Protected Information (as hereinafter defined) is referred to as the “Recipient” and
the party disclosing Protected Information is referred to as the “Disclosing Party.”
Each such party shall be responsible and liable for its respective representatives
the same as if such representatives were co-parties to this section.
b. “Protected Information” means all information of either party (or information of a
third party which either party has in its possession) including, but not limited to,
information relating to business, trade secrets, financial information, marketing
information, intellectual property rights, customer lists, operations and software
products, computer source code and object code, hardware and software designs
and specifications, reports, flow charts, technology, tax returns, client lists,
pricing, business plans and related documents, and any such other information
that either party would reasonably consider to be confidential or proprietary.
Unless excluded in writing by Disclosing Party, both Parties shall assume that any
and all information disclosed in Protected Information, whether in oral form,
metadata, written, or in some other tangible or intangible form, and whether
designated as confidential or unmarked.
c. If disclosure of the Protected Information is required by any court order or similar
order to which Recipient must comply, Recipient shall immediately notify
Disclosing Party to allow Disclosing Party to object to the disclosure and to take
additional confidentiality precautions. Recipient shall take precautions to protect
the confidentiality of the Protected Information to be disclosed. Recipient will
make formal or legal objections on its own behalf and on behalf of Disclosing
party if so requested by Disclosing Party.
d. Recipient shall not use or disclose Protected Information of Disclosing Party
except in further of the relationship between the Parties hereto. The Parties agree
to disclose Protected Information to their representatives only on a need-to-know
basis, and only after such representatives have been informed of the terms of this
Agreement and been given an opportunity to review it. All Protected Information
7 | P a g e

Litigation Management Agreement 

shall remain the sole property of Disclosing Party. Upon termination of this
Agreement or upon request by Disclosing Party, Recipient shall promptly return
to Disclosing Party, or destroy at Disclosing Party’s request, all materials in
Recipient’s possession or control that contain any Protected Information. Any
copies of such items or material shall also be returned or destroyed. Nothing
contained in this Agreement shall be construed as granting or conferring any
right, title, or interest, in any Protected Information, patent, trademark, copyright,
trade secret or other proprietary right that is now or subsequently owned by
Disclosing Party. Recipient shall not reverse engineer, decompile or disassemble
any software disclosed by Disclosing Party. Recipient shall not alter, modify or
prepare derivative works from the Protected Information except in connection
with the business relationship among the parties, and all such derivative works
shall be destroyed at the request of Disclosing Party.
e. Recipient shall not utilize any knowledge gained or access to Disclosing Party’s
Proprietary Information to develop products or solutions that are competitive to
those of Disclosing Party; provided however, that nothing in this Section shall
preclude Recipient from independently developing products or solutions if such
Recipient can demonstrate by competent evidence that such product or solution
was independently developed through no use of Protected Information provided
by Disclosing Party.
f. Neither party has made or is making any representation or warranty regarding the
accuracy or completeness of the Protected Information.
10. Damages
a. The parties acknowledge and agree that violation of this Agreement may cause
irreparable harm, which may not be fully or adequately compensated by recovery
of monetary damages. Accordingly, in the event of any violation or threatened
violation of the terms of this Agreement, the breaching party shall be entitled to
injunctive relief from a court of competent jurisdiction in addition to damages and
any other remedy available at law or in equity. If any action at law or in equity is
brought to enforce or interpret the terms of this Agreement, the prevailing party
shall be entitled to recover, at trial and on appeal, reasonable attorneys’ fees, costs
and disbursements in addition to any other relief that may be granted.
11. Term and Termination
a. Term: This Agreement shall become effective on the date first written above and,
unless superseded by a subsequent agreement, shall remain in effect for so long as
Company refers Testers to Attorney.
b. Termination of Relationship: Any party to this Agreement may terminate the
relationship established by this agreement upon delivery of a written 20-day
notice of intent not to continue the Parties’ relationship.
c. Remaining Obligations: In the event a party terminates the Parties’ relationship,
all duties and obligations under this Agreement will remain in effect for cases
filed including Company’s obligation to provide litigation support, Attorney’s
obligation to represent Testers, and Attorney’s obligation to pay Company all
funds received from judgment or settlement.
d. Opportunity to substitute: If a party elects to terminate the Parties’ relationship, a
party may elect to use a substitute or alternative to provide the services described
8 | P a g e

Litigation Management Agreement 

within this Agreement. Despite the opportunity to substitute services, the
obligations for monetary payment to Company will remain in effect for all cases
filed.
e. Non-Delegable Duty to Pay: Company acknowledges the attorney-client
relationship between Attorney and Testers. The parties affirmatively agree that
the obligation to pay settlement proceeds from Testers’ cases is the sole obligation
of Attorney and such duty is non-delegable.
The parties have executed this Agreement as of the date first written above.
By:

By:

Name: Alex Callan

Name: Sharon E. Pomeranz

Agent of Litigation Management and
Financial Services, LLC 

9 | P a g e