Case 2:10-cv-00191-TS-DN Document 22 Filed 04/19/2010 Page 1 of 5

WOOD CRAPO LLC

Mary Anne Q. Wood #3539
Darryl J. Lee #4955
500 Eagle Gate Tower
60 East South Temple
Salt Lake City, Utah 84111
Telephone (801) 366-6060

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

RADER, FISHMAN & GRAUER, PLLC )

)
Plaintiff, ) ANSWER AND AFFIRMATIVE
) DEFENSES TO COUNTERCLAIM
v. )
)
1-800 CONTACTS, INC., ) Civil No. 2:10-cv-191
)
Defendant. ) Judge Ted Stewart
)

Plaintiff Rader Fishman & Grauer, PLLC (“RFG”), by and through its counsel,

files herewith its Answer and Affirmative Defenses to the Counterclaim asserted by Defendant

and Counterclaimant 1-800 Contacts, Inc. (“1-800"), as follows:

FIRST AFFIRMATIVE DEFENSE

Counterclaimant’s Counterclaim fails to state claims upon which relief may be

granted.

SECOND AFFIRMATIVE DEFENSE

RFG responds to each paragraph of the Counterclaim, by paragraph number as

delineated in the Counterclaim, as follows:

1. As Counterclaimant has admitted such in its response to RFG’s

Complaint, and on that basis, RFG admits the allegations of Paragraph 1.

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2. 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 RFG

to represent it in litigation against Lens.com, and at Counterclaimant’s direction, RFG filed an

action 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 pay

RFG 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 expressly

admitted 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 not

want to pay any more than $750,000.00 in attorneys’ fees for the Lens.com matter during

calendar 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 billing

certain attorneys’ fees incurred in the last quarter of 2008, and not bill such fees to

Counterclaimant until the beginning of calendar year 2009.

7. RFG admits that in or around November 2008, RFG and Counterclaimant

agreed in principle that RFG would cap the attorneys’ fees for the Lens.com matter to $1.1M

through the trial of the case. Except as expressly admitted herein, RFG denies each and every

other allegation of Paragraph 7.

8. RFG incorporates herein its responses to Paragraphs 1 through 7 as set

forth above.

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9. 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 set

forth above.

13. RFG admits that it owed Counterclaimant all duties created by the

attorney/client relationship. Except as expressly admitted herein, RFG denies each and every

other 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 the

extent its Prayer for Relief requires a response, RFG denies that Counterclaimant is entitled to

any of the relief set forth therein.

Accordingly, RFG respectfully prays for Judgment on Counterclaimant’s

Counterclaim 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; and

4. 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 its

agreements with RFG to pay for legal services rendered.

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FOURTH AFFIRMATIVE DEFENSE

Counterclaimant’s claims are barred from recovery due to its anticipatory breach

of its agreements to pay RFG for legal services rendered.

FIFTH AFFIRMATIVE DEFENSE

Counterclaimant’s claims are barred by the doctrine of unclean hands.

SIXTH AFFIRMATIVE DEFENSE

Counterclaimant has failed to mitigate its damages, if any.

SEVENTH AFFIRMATIVE DEFENSE

Counterclaimant’s claims are barred by the doctrines of waiver and estoppel.

Dated this 19th day of April, 2010.

WOOD CRAPO LLC

/s/ Darryl J. Lee

Mary Anne Q. Wood
Darryl J. Lee
Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

On the date below written, the undersigned hereby certifies that a true and correct

copy of the forgoing ANSWER AND AFFIRMATIVE DEFENSES TO COUNTERCLAIM

was served as indicated to:

VIA ECF:

Richard D. Burbidge
Jefferson W. Gross
Burbidge Mitchell & Gross
214 South State Street, Suite 920
Salt Lake City, UT 84111

Dated this 19th day of April, 2010.

/s/ Darryl J. Lee