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Rader Fishman v 1-800 Contacts Counterclaim Answer

Rader Fishman v 1-800 Contacts Counterclaim Answer

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Published by Eric Goldman

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Published by: Eric Goldman on May 15, 2010
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05/15/2010

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WOOD CRAPO
LLC
Mary Anne Q. Wood #3539Darryl J. Lee #4955500 Eagle Gate Tower 60 East South TempleSalt Lake City, Utah 84111Telephone (801) 366-6060
 Attorneys for Plaintiff 
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF UTAH, CENTRAL DIVISION
RADER, FISHMAN & GRAUER, PLLCPlaintiff,v.1-800 CONTACTS, INC.,Defendant.))))))))))
 ANSWER AND AFFIRMATIVE  DEFENSES TO COUNTERCLAIM 
Civil No. 2:10-cv-191Judge Ted StewartPlaintiff Rader Fishman & Grauer, PLLC (“RFG”), by and through its counsel,files herewith its Answer and Affirmative Defenses to the Counterclaim asserted by Defendantand Counterclaimant 1-800 Contacts, Inc. (“1-800"), as follows:
FIRST AFFIRMATIVE DEFENSE
Counterclaimant’s Counterclaim fails to state claims upon which relief may begranted.
SECOND AFFIRMATIVE DEFENSE
RFG responds to each paragraph of the Counterclaim, by paragraph number asdelineated in the Counterclaim, as follows:1.As Counterclaimant has admitted such in its response to RFG’sComplaint, and on that basis, RFG admits the allegations of Paragraph 1.
Case 2:10-cv-00191-TS-DN Document 22 Filed 04/19/2010 Page 1 of 5
 
22.RFG admits the allegations of Paragraph 2.3.RFG admits the allegations of Paragraph 3.4.RFG admits the allegations of Paragraph 4.5.RFG admits that in or around August 2007, Counterclaimant asked RFGto represent it in litigation against Lens.com, and at Counterclaimant’s direction, RFG filed anaction against Lens.com in federal court in Utah captioned
1-800 Contacts v. Lens.com.,
2:07-cv-00591 CW (the Lens.com litigation). RFG further admits that Counterclaimant agreed to payRFG for all legal fees and related costs incurred to prosecute the matter on Counterclaimant’s behalf, pursuant to the attorney/client relationship created by such retention. Except as expresslyadmitted herein, RFG denies each and every allegation of Paragraph 5.6.Denied. RFG affirmatively asserts that in November 2008,Counterclaimant informed RFG that the Company’s senior managers and/or investors did notwant to pay any more than $750,000.00 in attorneys’ fees for the Lens.com matter duringcalendar year 2008, and asked RFG to limit the attorneys’ fees charged for the Lens.com matter to $750,000.00 for calendar year 2008, with the understanding that RFG would delay billingcertain attorneys’ fees incurred in the last quarter of 2008, and not bill such fees toCounterclaimant until the beginning of calendar year 2009.7.RFG admits that in or around November 2008, RFG and Counterclaimantagreed in principle that RFG would cap the attorneys’ fees for the Lens.com matter to $1.1Mthrough the trial of the case. Except as expressly admitted herein, RFG denies each and everyother allegation of Paragraph 7.8.RFG incorporates herein its responses to Paragraphs 1 through 7 as setforth above.
Case 2:10-cv-00191-TS-DN Document 22 Filed 04/19/2010 Page 2 of 5
 
39.RFG denies the allegations of Paragraph 9.10.RFG denies the allegations of Paragraph 10.11.RFG denies the allegations of Paragraph 11.12.RFG incorporates herein its responses to Paragraphs 1 through 11 as setforth above.13.RFG admits that it owed Counterclaimant all duties created by theattorney/client relationship. Except as expressly admitted herein, RFG denies each and everyother allegation of Paragraph 13.14.RFG denies the allegations of Paragraph 14.15.RFG denies the allegations of Paragraph 15.RFG states that Counterclaimant’s Prayer for Relief requires no response. To theextent its Prayer for Relief requires a response, RFG denies that Counterclaimant is entitled toany of the relief set forth therein.Accordingly, RFG respectfully prays for Judgment on Counterclaimant’sCounterclaim as follows:1.That the Counterclaim be dismissed with prejudice;2.That Counterclaimant take nothing for its First and Second Claims for Relief;3.For costs of suit incurred herein; and4.For such other and further relief as the Court deems just and proper.
THIRD AFFIRMATIVE DEFENSE
Counterclaimant is barred from recovery due to its material breaches of itsagreements with RFG to pay for legal services rendered.
Case 2:10-cv-00191-TS-DN Document 22 Filed 04/19/2010 Page 3 of 5

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