HomeMy WebLinkAboutPillsbury, Winthrop, Shaw, Pitmann, LLP - Brinkman RESOLUTION 2021-520
SCHEDULED DOC ID: 17172
THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2021-520 WAS
SCHEDULED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD
ON JUNE 15,2021:
RESOLVED that the Town Board of the Town of Southold hereby authorizes the Town
Attorney to retain Pillsbury Winthrop Shaw Pittman, LLP, in substitution of Arnold&Porter
Kaye Scholer, LLP. as Special Counsel to represent the Town of Southold, Southold Town
Board and Southold Planning Board, in an action in Supreme Court, Suffolk County,
commenced by Brinkman Hardware Corp and Mattituck 12500 LLC.
Elizabeth A. Neville
Southold Town Clerk
r
Pillsbury Winthrop Shaw Pittman LLP
31 West 52nd Street I New York, NY 10019-6131 tel 212 858.1000 1 fax 212 858 1500
James A Catterson
Tel:212.858.1048
james.catterson@pillsburylaw.com
June 9, 2021 RECEIVED
Via Email AUG 1 8 2021
Town of Southold
Southold Town Board Southold Town Clerk
Southold Planning Board
c/o Bill Duffy,Esq.
Town Attorney
54375 Route 25
P.O. Box 1179
Southold,NY 11971
Re: Engagement
Dear Bill:
This letter confirms that Town of Southold, Southold Town Board and Southold
Planning Board("Southold" or"you")have engaged Pillsbury Winthrop Shaw
Pittman LLP to advise and represent you in the matter described below and provides
the terms and conditions of our engagement.
Scope of Engagement and Fees. You have asked us to represent Southold in
connection with the CPLR Article 78 proceeding brought by Brinkmann
Hardware Corp. and Mattituck 1250 LLC pending in Suffolk County Supreme
Court,Index No. 02780/2019.
Our billing policies and procedures, rates, charges for disbursements, and other
standard terms of engagement are provided in the Addendum to this letter.
1. Identity of the Client. Unless agreed otherwise in writing, Southold will be our
sole client in this engagement and we will not be representing any of your affiliated or
constituent individuals or entities, such as any parent or subsidiary companies,
directors, officers, founders,managers, general or limited partners, employees,
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members, or shareholders. Because we do not represent any of these other entities or
people,we may be adverse to them without seeking a consent or waiver from you.
2. Pillsbury Marketing. You agree that we may list Southold as a client in our
marketing materials and note the general nature of the matters where we have
represented you. We will of course preserve any confidential information obtained
during the course of our engagement.
3. Advance Conflicts Waiver. Pillsbury is an international law firm that represents
many different clients with diverse interests. Many of our clients conduct business or
compete with one another. Our website, www.pillsburylaw.com, describes the types
of clients we represent,the locations where we practice, and the matters we typically
handle.
In the future, we may be asked to represent a party in a transaction or a dispute that is
adverse or potentially adverse to you or to represent you where an adverse party is
another client of our firm,where that transaction or dispute is unrelated to the matter
involved in this engagement. Under the rules of professional conduct for lawyers in
many of the jurisdictions where we practice, we may be precluded from representing
a current or new client in a matter adverse or potentially adverse to you, even though
that matter is unrelated to this engagement for you, unless we have a conflict waiver
from you and the other client in advance that we may do so. Similarly, under the
rules of professional conduct for lawyers in many of the jurisdictions where we
practice,we may be precluded from representing you in a matter adverse or
potentially adverse to another client of our firm, even though that matter is unrelated
to our work for that other client,unless we have a conflict waiver from you and the
other client in advance that we may do so.
We ask that you consent to or waive the conflicts of interest associated with our
representing parties that are adverse to you in transactions and disputes so long as the
matters are unrelated to our work for you. In addition,we ask that you consent to or
waive the conflicts of interest associated with our representing you on transactional
and dispute engagements where adverse parties are also clients of ours on matters
unrelated to the engagement for you. You further agree that with respect to
transactional matters for you,we need not give you notice that adverse parties are
Pillsbury clients unless you specifically ask us whether an adverse party is a client of
ours. With respect to disputes, we will advise you if the adverse party is a Pillsbury
client. We will not undertake any such representations unless we have a reciprocal
waiver from the client that is adverse to you.
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Your signature on this letter confirms that you do consent and agree that we may take
on such matters and that you waive any conflicts that such a future representation
might present to the extent such consent and waiver may be required under applicable
laws. We will preserve at all times your confidences under applicable rules of
professional conduct and this advance waiver does not affect that obligation.
You also acknowledge,by signing this letter,that you have had the opportunity to
consult with other counsel about the consequences of granting this advance waiver
and our position on conflicts of interest and that we recommended that you do so.
4. Conflict of Interest in Joint Representation. Because we will be representing
multiple clients in this engagement,the applicable rules of professional conduct
require that we inform you of actual and potential conflicts of interest in joint
representation and obtain your informed written consent to that joint representation.
We have discussed with you the areas of potential conflicts which are briefly referred
to below. In light of these potential conflicts,we need the written consent of all of
you.
Based on the information you have provided to us,we do not believe that this
representation of joint clients involves an actual conflict of interest. If any of you are
aware of an actual conflict of interest,please let us know immediately.
Even though there may be no actual conflict,there are potential conflicts. As we have
discussed with you, differences in your respective financial resources,prior
experience, interests and objectives could make one approach to our responsibilities
more favorable to one of you than to the others, or could lead to disputes among you.
For example, if we were to represent only one client, rather than all of you,we might
be able to obtain more favorable treatment for that one. Because we will be
representing all of you, it will be necessary to balance the interests of all parties rather
than asserting the interests of only one party.
A joint representation also has implications for confidentiality and the attorney-client
privilege. As for the attorney-client privilege,the prevailing rule is that as between
commonly represented clients,the privilege does not attach. Hence, should any
future dispute among you concerning the matter on which you have engaged us to
represent you lead to litigation,the privilege may not protect communications that
were commonly-shared. As to confidentiality, none of you should have any
expectation that information provided to us in connection with this engagement will
be kept confidential from the others. Because we will have the same duty of loyalty
to each of you, such information will be shared and we might have to withdraw if any
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of you decides that some matter material to the representation should be kept from the
others.
In the event of a material dispute arises among you regarding the Engagement,you
agree that we may continue to represent Town of Southold and may withdraw from
representing Southold Town Board and Southold Planning Board, may use in the
continuing representation any information that we learned during the course of joint
representation, and all of you waive the conflict of interest we would have in
representing client against former clients in a matter that is the same as or is
substantially related to the one as to which we represented the former clients.
By signing the consent set forth below, each of you agrees to this joint representation
in the engagement and agrees not to assert any conflict of interest based upon this
joint representation, notwithstanding any adversity that may develop. You also
acknowledge,by signing this letter,that you have had the opportunity to consult with
other counsel about the consequences of this joint representation and that we
recommended that you do so.
5. Additional Conflict Information. We also request your acknowledgement that
you agree with us that it is not a conflict of interest under the applicable rules of
professional conduct for us, in connection with funding opportunities, contracts or
merger and acquisition transactions and related financing matters,to represent,using
separate teams (commonly referred to as"trees")that maintain information barriers
between such teams about these representations (except as may be agreed in respect
of any particular subject such as, for example, shared expert diligence and a shared
common or"neutral" diligence team),to represent competing applicants, bidders
and/or advisors and financing sources for competing bidders. We, of course,will not
accept an engagement from more than one client in such situations unless we believe
that such additional representations will not have an adverse effect on the exercise of
our independent professional judgment.In connection with our representation of you
or other clients in such competitive situations,we will not advise you about the merits
of any of our other clients' competing applications or bids or challenge on your behalf
the applications or bids of or any awards to other of our clients. Your signature on this
letter also confirms that you agree with this as to any current and future such
transactions and,to the extent that there is in fact a conflict of interest under
applicable rules of professional conduct arising from such multiple representations,
you waive that conflict.
6. Termination or Withdrawal. Unless otherwise agreed in writing,this engagement
will terminate if no services are provided by us for a six-month period, except where
we are awaiting an action or decision by a court,tribunal or agency, or specific
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actions are necessary to complete the engagement that extend beyond the 6-month
period.
You may terminate this representation at any time, with or without cause, by
providing written notice to us.
We have the right to withdraw from representation of you subject to applicable rules
of professional conduct. Before withdrawing we will discuss with you any steps
necessary to protect your interests in any ongoing matter including transfer to other
legal counsel.
The termination or withdrawal of this engagement will not affect your responsibility
to pay for services rendered and charges incurred on your behalf.
7. Arbitration of Disputes. If you disagree with the amount of our fees or other
charges, or if you have any concerns about our work for you,please bring that to our
attention as soon as possible. In the event any dispute between us arising from or
relating to our work cannot be resolved informally,we both agree to forego the right
to trial by jury and to resolve any disputes between us, or any disputes you have with
any of our lawyers or staff, including but not limited to disputes over fees and
charges, exclusively through private and confidential binding arbitration before
JAMS, or another arbitral body if mutually agreed. The arbitration will be governed
by JAMS Comprehensive Arbitration Rules and Procedures, conducted before one
neutral arbitrator for any dispute where the claim is less than$300,000 or before three
neutral arbitrators for any larger dispute, and the arbitrator or arbitrators will be
authorized to award any damages or relief that a court of law having jurisdiction over
the dispute could award. Any award may be enforced in any court with jurisdiction.
You acknowledge by signing this letter that you have had the opportunity to consult
with other counsel about the consequences of agreeing to binding arbitration and that
we recommended that you do so.
To the extent that New York rules would apply to a dispute between us that cannot be
readily resolved,you may have the right to request non-binding arbitration in New
York City under Part 137 of the Rules of the Chief Administrator of the Office of
Court Administration of the New York State Unified Court System or under
applicable bar association procedures. By signing this engagement letter, you
expressly waive that right and agree to binding private arbitration as provided above.
8. Internal Communications. There may be instances where our lawyers and staff
find it useful to communicate about their professional obligations with inside or
outside counsel for our firm. For example,we may need to determine if a new
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representation of another client would present a conflict of interest because of our
work for you, and if so,the form of waiver required. Another example is where a
dispute occurs between you and our firm. You agree that if our lawyers or staff have
communications with our inside or outside legal counsel about our work for you,we
have your consent to do so, and such communications will be deemed confidential
and protected by our firm's attorney-client privilege. Our representation of you shall
not waive such privilege and you agree that we will not be obligated to disclose such
privileged communications.
9. Additional Engagements. If you request and we agree that our firm undertake
additional engagements for you, or represent any of your affiliates,we will do so on
the terms and conditions set forth in this letter unless otherwise mutually agreed in
writing.
10. Review and execution. Please review this letter carefully and let us know if you
have any questions. Please note that if, after receiving this letter explaining the terms
of our representation of you,you accept any of our services for this engagement and
do not first object to the terms contained in this letter,we will deem you to have
accepted all the terms set forth in this letter. We nonetheless ask you, if these terms
are acceptable,to please sign and return the enclosed copy, keeping a copy for your
files.
We are pleased to have this opportunity to be of service and we look forward to
working with you on the engagement.
Very truly yours,
James M. Catterson
Accepted and agreed to:
TOWN OF OUTHOLD
By '�
Bill Duffy, Town Att ly
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Dated:
SOUTHOL;OVvF9N BOARD
By �vl-v
Bill Duffy, Town Att' ey
Dated: z/
SOUTHOLD PL NNING BOA
By
Bi 1 bufffy, TownWtto)ff
Dated:
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ADDENDUM
BILLING AND DISBURSEMENTS
1. Our Billing Policies and Procedures. Our fees are based on the number of hours devoted to
this engagement. The current rate for our attorney who will work on your matter is as follows:
Attorney Name Rate
James M. Catterson $800
From time to time, it may become necessary or desirable to assign different or additional
attorneys,paralegals or document production professionals to work on your matter. The rates for
document production professionals may range from $60 to $125 USD per hour depending on the
complexity of the assignment.
Our standard hourly rates are adjusted periodically to reflect the advancing experience,
capabilities and seniority of our professionals as well as general economic factors. We will
provide you with notice of any adjustment in rates for professionals working on your matter.
2. Fees generally will be billed within 30 days of the month in which the services are rendered,
and disbursements and other charges will generally be billed within 30 to 60 days after they are
incurred by us. Payment is due upon your receipt of our statement.
The timely payment of our statements is important to us and a critical part of our engagement. If
a bill is not paid within 35 days following the date of the statement,you agree that interest on the
full amount thereof at the rate of 1%per month will also be due. Interest will commence to run
on the 35th day following the date of our statement for all unpaid amounts. Payment of interest
does not waive or limit our rights to withdraw from representation for failure to make timely
payment of statements when due.
3. Estimates of Fees and Expenses. Any estimates of anticipated fees that we provide at your
request,whether for budgeting purposes or otherwise, are only an approximation of what the
actual fees will be. Unless we have otherwise agreed in writing, any such estimate is not a
maximum or minimum fee quotation, and our fees will be determined based on actual hours
incurred as provided above.
4. Disbursements. In the course of our engagement, we will use our normal support systems. In
addition to our fees for legal services,we will charge separately for certain costs, expense
disbursements and taxes, as applicable. A list of our standard charges that may be incurred
during the course of the engagement is set forth below.
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PILLSBURY WINTHROP SHAW PITTMAN LLP
DISBURSEMENT CHARGE RATES 1 -USD
as of 01/01/2021
DISBURSEMENT/EXPENSE* CLIENT CHARGE BASIS
Computer
Litigation Support Data Hosting charges $20 per GB per month
Computer Research(LexisNexis and Westlaw),etc. Charged based on standard vendor rates per search,less a
discount of 30%on Westlaw and LexisNexis searches,plus
the hourly rate of the person conducting the search.
Document Preparation
Convenience Copies,Printing,Scanning $0.19 per page—Black and white
$0.44 per page-Color
Copy Center Reproduction and Printing(Photocopies, $0.15 per page(for jobs under 3,500 counts)
scans,images,etc.) $0.10 per page(for jobs of 3,500 counts or more)
Oversized Copies $0.75 per page
Color Copies $0.40 per page(for jobs under 3,500 counts)
$0.35 per page(for jobs of 3,500 counts or more)
Document Binding(Briefs,formal presentation $1.25 per binding
documents,etc.)
CD Burn $5.00 per burn
DVD Burn $7.50 per bum
Tabs $0.20 per tab
Litigation Preparation(Copying,scanning,etc.) $0.10 per page(light)
$0.12 per page(medium)
$0.15 per page(heavy)
$0.19 per page(glass work)
" There is no charge for postage,faxes or domestic and international phone calls
1 All other expenses incurred and paid for by the firm on behalf of clients,including express couner service,court services,catering,equipment rental,third party
conference calls,cell phone expenses,etc are charged at cost Disbursements for large vendor invokes(over$5000)will be forwarded directly to the client for
payment Alternatively,if the client prefers to have the firm pay the vendor for large invoices and include the disbursement on the next client bill,the Simi will
do so if the vendor agrees to defer payment of their invoice until the client pays the firm
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For matters involving patent work, we do not handle the payment of maintenance fees or
annuities on granted United States or foreign patents. If you do not already have an arrangement
for handling these payments,we suggest you consider engaging Computer Patent Annuities
("CPA") or another similar vendor to handle monitoring and payment of your annuities. CPA,
which has no affiliation with us,presently handles approximately 1,000,000 renewal payments
each year and has relationships with patent and trademark offices in every country in the world.
Of course,you can attend to these payments yourself rather than make use of a vendor, but we
recommend against doing so. Please inform us as soon as possible which vendor you currently
use or plan to engage for payment of maintenance fees and annuities on granted patents.
5. Electronic Discovery Activities and Charges. In the event that your matter involves
processing,reviewing and/or producing documents,we may,with your approval,provide certain
eDiscovery services to support these activities, including processing of electronic data for
culling, analysis and review, hosting of electronic files and databases in one of our eDiscovery
platforms ("eDiscovery databases"), assembling and distributing document and data productions,
or performing related analytics,technical services and project management tasks. We may also
perform research activities on your eDiscovery databases to improve productivity or provide
analytic results or insights, consistent with our confidentiality obligations to you.
Our Litigation Support Department maintains resources within the firm's network to facilitate
eDiscovery projects, as an alternative to using a third-party vendor or consultants for these
services. If you elect to use our Litigation Support Department, you will be charged fees for
eDiscovery services at hourly or unit-based(e.g.,per-gigabyte or per-document) rates,
depending on the nature of your project and the type of eDiscovery services we perform. This
includes monthly hosting charges based on the volume of eDiscovery databases maintained in
our platform on your behalf.
You agree to pay for eDiscovery services performed by us in connection with this engagement,
regardless of the outcome of your matter. You authorize us to delete your eDiscovery databases,
upon 10 days written notice of our intent to do so, at the conclusion of any eDiscovery project, or
upon the termination of this engagement. You further authorize us to take your eDiscovery
databases offline if you fall behind on payments to us and agree that we are under no obligation
to continue hosting your eDiscovery databases or providing access to them if your account is not
current. You also agree that you are entitled to receive a copy of your eDiscovery databases, but
only upon written request received by us prior to their deletion, subject to our ordinary hourly
rates and media charges and provided your payments to us are up-to-date.
6. Communications,Files and Subpoenas. In working on the engagement, we will preserve
communications and documents in either hard-copy or electronic form, depending on the
circumstances, as reasonably necessary to represent you. As described below, some of these
files belong to you("Client Files") and some belong to us. The Client Files consist of those
electronic and hard-copy documents that are kept in the central file that we maintain for each
client matter. Before we transmit the Client Files to you at your request,we will remove
administrative documents,purely internal correspondence and drafts of documents or
memoranda that we may prepare but do not transmit to you.
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In the event we are required to respond to a subpoena or other formal request for records or other
information relating to our services for you, including testimony at a deposition,we will consult
you before responding to determine if you want to supply the information demanded and/or
assert the attorney-client or other privilege that may apply. You agree to reimburse us for the
time and expense for responding to such demands, including, without limitation,the time and
expense for searching, locating, reviewing and copying responsive information, appearing at
depositions or hearings, and litigating any issues raised at your request.
At the completion or termination of this engagement,you may request in writing the return or
disposal of the Client Files. In order to collect and prepare the Client Files for delivery or
disposal,we likely will need to spend time and incur expense. You agree to pay us at our regular
rates for this time and pay any necessary disbursements. We will give you an estimate of our
expected charges promptly after receipt of your written request for transfer or disposal of the
files. In our discretion we may make and keep a copy of any Client Files being returned or
disposed of at our expense.
If you do not request return of the Client Files,we will maintain them for a period of five years,
after which time you agree that we may dispose of them in a confidential manner. Prior to
disposal of the Client Files,we will advise you in writing, at the last known address in our files,
of our intent to do so in order to give you an opportunity to request the materials. We may
dispose of our own files at any time without notice to you.
Please also note that if electronic communications are sent or received by you on a computer or
other device that may be accessed by third-parties, the privilege protection that such
communications with us might otherwise be afforded may be lost. We therefore strongly
encourage you not to use such a device when communicating with us. Please also note that our
records may be accessed electronically by all our offices and that we may store records using
"cloud computing."
7. Non-legal Services. Because we are a law firm,we provide only legal services. In the
engagement we will not provide any investment, insurance, accounting or technical advice,make
business decisions, or investigate the character or credit of those with whom you may be dealing.
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RECEIVED
; .z AUG 1 8 2021
Southold Town Clerk
Office of the Town Attorney
Town of Southold
Town Hall Annex, 54375 Route 25
P.O. Box 1179
Southold, New York 11971-0959
Telephone : 631-765-1939
Facsimile: 631-765-6639
MEMORANDUM
To: Ms. Elizabeth A. Neville, Town Clerk
From: Melissa Mirabelli
Secretary to the Town Attorney
Date: August 18, 2021
Subject: Agreement between Town of Southold and
Pillsbury, Winthrop, Shaw, Pittman LLP
With respect to the above-referenced matter, I am enclosing the original
Agreement together with the Resolution.
If you have any questions regarding the enclosed, please do not hesitate to call
me. Thank you.
/mm
Enclosures
cc: Accounting