FORT LAUDERDALE, Fla. (Legal Newsline) – Class action lawyers accused of shortchanging their key consultant in a $22 million case say his case should be dismissed.
Foote, Mielke, Chavez & O’Neil filed their motion to dismiss Sept. 8 in Florida federal court in the lawsuit brought by Stephen Arpaia, who is upset he was only paid $310,000 from a multimillion-dollar settlement with Google.
That was much lower than what was requested by lawyers, and what they requested was much lower than what Arpaia felt he was owed.
A short six-page motion asks that all four of his claims be dismissed, claiming that his fraud suit is just a fee dispute.
Arpaiao alleges breach of contract, unjust enrichment, breach of implied contract and fraud.
“Plaintiff repeatedly refers to a written contract or agreement in… his (first amended complaint),” the motion says.
“There can be no unjust enrichment when there is an express contract between the parties. Clearly, then, a complaint cannot allege an express agreement in a claim for unjust enrichment.”
Arpaia’s work helped establish a proper class to be reimbursed after plaintiffs alleged Google dumped their advertising on low-quality websites without telling them it would happen.
Arpaia was hired by the Foote firm for consulting services and performed work for Schubert, Jonekheer & Koibe when it became lead counsel.
Arpaia says he spent more than 1,000 hours on the case in a two-year span. But he watched as what was submitted to the court for approval cut both his hourly fee and the amount of hours he worked, the lawsuit says.
What was submitted asked for Arpaia to be paid more than $516,000 – for 688.1 hours at $750 per.
But in September 2017, Arpaia received a check in the mail for only $310,000 for his work. He claims this violated his agreement with the Foote firm that said he would be paid the greater of 10% of attorneys fees ($607,500) or 5% of the first 50% of all attorneys fees, plus Arpaia’s lodestar ($667,950).
Or, he asks the court, he should be paid for all of his 1,089 hours at $750 per ($817,424).
“Arpaia claims there was an express agreement with defendant for his compensation,” the motion to dismiss says.
“In Count IV, Arpaia alleges he was fraudulently induced to work on the Adworks case. A party cannot recover in fraud for alleged oral misrepresentations that are adequately covered or expressly contradicted in a later written contract.”