State of Wisconsin Request for Qualifications 28349- ML Legal Counsel Services

REQUEST FOR QUALIFICATIONS

LEGAL COUNSEL SERVICES

Relating to

STATE OF WISCONSIN

PFAS LITIGATION

Issued By:

State of Wisconsin Department of Administration State Bureau of Procurement 101 East Wilson Street, 10th Floor Madison, WI 53703

(608) 217-0478 MatthewJ.Limoges@wisconsin.gov

ELECTRONIC SUBMITTALS DUE BY NOON (CT)

WEDNESDAY, FEBRUARY 10, 2021

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Prior Notification

Firms that intend to respond to this Request for Qualifications (RFQ) should immediately send their firm name and contact information (name, e-mail address, telephone number) to:

MatthewJ.Limoges@wisconsin.gov.

While not required, providing this information allows the State to distribute additional information, if needed, to potential respondents.

I. INTRODUCTION.

This Request for Qualifications (RFQ) has been prepared and released by the State of Wisconsin Department of Administration (DOA). This RFQ is an open solicitation for law firms to provide the State of Wisconsin (State) with their qualifications to provide legal counsel services for the investigation and potential litigation against parties engaged in the manufacture, processing, testing, distribution, use, or disposal of per- and polyfluoroalkyl substances (PFAS) or PFAS containing products.

PFAS are a group of human-made chemicals used for decades in numerous products including non-stick cookware, fast food wrappers, stain-resistant sprays and certain types of firefighting foam. These contaminants have made their way into Wisconsin’s environment through spills of PFAS-containing materials, discharges of PFAS-containing wastewater to treatment plants and certain types of firefighting foams.

At present, Wisconsin is overseeing the investigation and cleanup of nearly 50 sites across the state for PFAS contamination. Over the last two years, the Wisconsin Department of Natural Resources has initiated statewide PFAS sampling of surface waters and fish, as well as deer. As a result, DNR has issued several PFAS-specific fish consumption advisories and one deer liver consumption advisory. DNR also is in possession of historical PFAS sampling data on fish, surface water, eagles, deer, waterfowl and anglers.

A number of municipal and private wells across the state have PFAS at detectable levels or at concentrations that exceed state or federal ingestion advisory recommendations.

The DNR has begun sampling and will be proceeding through early 2021 to collect effluent data on over 30 PFAS compounds from wastewater treatment facilities throughout the state. The DNR will also be sampling an estimated 250 municipal drinking water systems for PFAS as part of data collection for establishing a PFAS drinking water standard for PFOA and PFOS. More information on the state’s current PFAS efforts can be accessed here: https://dnr.wisconsin.gov/topic/PFAS.

All responses to this RFQ will be reviewed in an open, objective, thorough, and independent process, as described in this RFQ. Minority-owned and disabled veteran-owned law firms are encouraged to submit a response pursuant to this RFQ.

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Engaged counsel will be expected to assist the attorney general in all phases of the investigation and litigation against parties engaged in the manufacture, processing, testing, distribution, use, or disposal of PFAS or PFAS containing products.

A. PROCURING AGENCY. This RFQ is being released by DOA. DOA’s State Bureau of Procurement is the sole point of contact during the review process.

B. CONTRACT ADMINISTRATION. Any contract resulting from this RFQ will be a contingent fee legal services contract entered into by the Governor pursuant to Sections 14.11(2)(a)1. and 20.9305 of the Wisconsin Statutes, and will be administered by Wisconsin Department of Justice.

C. CLARIFICATION OF SPECIFICATIONS. If additional information is necessary to interpret the requirements of this RFQ, please direct questions by Noon (Central Time) on February 2, 2021 to Matt Limoges at the e-mail address on the cover of this RFQ.

D. STATUTORY REQUIREMENTS. Pursuant to Wis. Stat. s. 20.9305, an agency in the executive branch is prohibited from contracting for legal services on a contingent fee basis unless the Governor makes a written determination that contracting for legal services for the state on a contingent fee basis is cost-effective and in the public interest. The governor issued that written determination on January 20, 2021.

Pursuant to Wis. Stat. s. 20.9305(2)(b), the Governor has requested that DOA invite bids to be submitted for the contract. The Department of Administration has determined that bids shall be solicited in a two-step process as outlined in section III of this RFQ.

Respondents interested in this opportunity must adhere to the following, and no bid submitted pursuant to an invitation from DOA will exceed, the contingency fee limitations identified in Wis. Stat. s. 20.9305(2)(c):

(c) 1. No contract entered into under this subsection may provide an aggregate contingency fee excluding reasonable costs and expenses, as determined by the court with jurisdiction over the action, that is more than any of the following:

a. If the recovery is less than $10 million, 25 percent of the recovery.

b. If the recovery is at least $10 million but less than $15 million, the sum of $2,500,000 and 20 percent of the amount by which the recovery exceed $10 million.

c. If the recovery is at least $15 million but less than $20 million, the sum of $3,500,000 and 15 percent of the amount by which the recovery exceeds $15 million.

d. If the recovery is at least $20 million but less than $25 million, the sum of $4,250,000 and 10 percent of the amount by which the recovery exceeds $20 million.

e. If the recovery is at least $25 million, the sum of $4,750,000 and 5 percent of the amount by which the recovery exceeds $25 million.

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2. The aggregate contingency fee for one action under this subsection may not exceed $30 million, excluding reasonable costs and expenses as determined by the court with jurisdiction over the action, without regard to the number of attorneys retained or the number of lawsuits filed. A contingency fee may not be based on penalties or fines or any amounts attributable to penalties or fines.

(f) An attorney who is party to a contract entered into under this subsection shall, during the period beginning from the date the contract is entered into until 4 years after the contract and all of its extensions expire or are terminated, do all of the following:

1. Maintain records, including documentation of all expenses, disbursements, charges, credits, receipts and invoices, and other financial transactions, that relate to the provision of the legal services under this subsection.

2. Make all records maintained under subd. 1. available, upon request, for inspection and copying as provided under s. 19.35 (1).

3. Maintain current records detailing the time, in increments no greater than one-tenth of an hour, that attorneys and paralegals spent working under the contract and provide the record, as soon as practically possible, to the governor upon request.

Note also that Wis. Stat. s. 20.9305(2) also contains certain transparency requirements that will result in the disclosure of information to the public about the contract and amount of contingency fees paid (if any). The entirety of the statute should be reviewed by all Respondents.

E. SCOPE OF SERVICES. Pursuant to Wis. Stat. s. 14.11(2)(a)1, assist the attorney general in pursuing nuisance, tort, or other common-law-based claims against parties engaged in the manufacture, processing, testing, distribution, use, or disposal of PFAS or PFAS containing products. Such assistance to include:

1. Investigate and assess claims against parties engaged in the manufacture, processing, testing, distribution, use, or disposal of PFAS or products containing PFAS.

2. Prepare and prosecute litigation against potential liable parties.

3. Assist in all phases of the investigation and litigation, including but not limited to:

a) preparing complaint(s), filing complaint(s), service of summons;

b) responding to motions, including motions to dismiss;

c) drafting motions;

https://docs.legis.wisconsin.gov/document/statutes/20.9305(2)(f)1.

https://docs.legis.wisconsin.gov/document/statutes/19.35(1)

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d) drafting and responding to discovery requests propounded on the State of Wisconsin and to the defendants and any third parties;

e) reviewing, analyzing, and tracking documents obtained in discovery;

f) coordinating litigation with other states and the federal government to promote, to the extent beneficial, a unified approach to litigation;

g) taking depositions, defending depositions, preparing witnesses for depositions;

h) drafting responses to motions for summary judgment or other dispositive pretrial motions;

i) drafting motions for summary judgment or other appropriate dispositive motions on behalf of the State of Wisconsin;

j) identifying experts to testify on behalf of the State of Wisconsin;

k) preparing expert witnesses for deposition or trial testimony;

l) handling discovery disputes;

m) representing the State of Wisconsin in trial or any settlement negotiations;

n) representing the State of Wisconsin in responding to pretrial motions;

o) representing the State of Wisconsin in any appeal of any judgment or verdict rendered in the action, and if applicable, any remand from appeal.

4. Advise the attorney general on the conduct of the case and on strategy and tactics for each phase of the case.

II. CONDITIONS OF SUBMITTING RESPONSES. As a condition of submitting a response pursuant to this RFQ, the following conditions are understood:

A. RESPONSE PREPARATION. The detailed requirements stated in Section V of this RFQ are mandatory. Failure by a respondent to attest to or demonstrate all requirements in Section V may be the basis for elimination from consideration during the evaluation.

B. RESPONSE SUBMITTAL. Firms should submit a response electronically via email to MatthewJ.Limoges@wisocnsin.gov by the due date and time. Electronic submission via email is required.

C. RESPONSE SUBMISSION/DEADLINE. Response(s) must be submitted in the format outlined below and received at the e-mail address according to section II(2)(A) of this RFQ no later than Noon (CT) on Wednesday, February 10, 2021.

D. INCURRING COSTS. The State is not liable for any cost incurred by respondents in replying to this RFQ.

mailto:MatthewJ.Limoges@wisocnsin.gov

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E. NO OBLIGATION TO CONTRACT. The State reserves the right to cancel this RFQ for any reason prior to execution of the contract.

F. ORAL INTERVIEWS. The State will conduct interviews with firms that the State selects for interviews in its sole discretion, in a manner that it determines is appropriate in its sole discretion. Interviews will provide an opportunity for the State to discuss with the firm any material provided to it as part of its response to this RFQ. The State may also seek additional information from firms that are invited to participate in an interview, in advance of the interview.

G. PROPRIETARY INFORMATION. Any restrictions on the use of data contained within a response must be clearly stated in the response itself. Proprietary information submitted in response to this RFQ will be handled in accordance with applicable State open records law.

III. RFQ PROCESS. This RFQ will follow a two-step process to establish the firm that the State will contract with for the services outlined in this RFQ.

A. Step 1 – Pre-qualification

Step 1 of this process will require responding firms to submit their answer to this RFQ document. Firms that have attested that they meet the mandatory requirements under Section V(A) and V(B) of this RFQ, and that the State evaluates as having demonstrated that they meet the mandatory requirements in Section V(C) of this RFQ, may be invited to oral interviews in accordance with Section II(F) of this

RFQ.

B. Step 2 – Invitation for Bids from selected firms

Firms will be selected by the State to move forward to step 2 of the process, in its sole discretion, based on the firm’s response to this RFQ document and its performance in and information provided during the interview. Firms that are selected to move forward to step 2 of the process will be invited by the State to submit a bid, which must be submitted to the State by March 12, 2021. The State will then select the lowest bid from those firms invited to bid in step 2 of this process. The lowest bidding firm will then be contacted by the State to establish an attorney-client relationship and enter into a contract for services for the scope of work outlined in section I(E) of this RFQ.

C. CALENDAR OF EVENTS. Listed below are important dates and times by which actions related to this RFQ shall be completed. In the event the State finds it necessary to change any of these dates and times, it will do so by issuing an amendment to this RFQ.

DATE Time EVENT

1/22/2021 Date of issue for the RFQ

2/2/2021 3:00 PM CT Due date and time for written questions

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2/4/2021 Written answers emailed to all respondents (target)

2/10/2021 2:00 PM CT Responses due from Firms

2/22/2021 Interviews with invited Firms (estimated)

3/4/2021 Invitations for Selected Firms to Bid Sent (estimated)

3/12/2021 Bids from Invited Firms Due (estimated)

3/19/2021 Notification to Firm with Lowest Bid (estimated)

IV. SUBMITTAL FORMAT. Responses must follow the following format. Please also include a cover letter that includes a brief executive summary.

A. FIRM NAME AND OTHER INFORMATION. Provide name and address of firm, as well as the name, phone number, and e-mail address of individual or individuals responsible for this response who may be contacted in the event of questions or notification.

B. ATTESTATION. Firm must attest to certain of the mandatory requirements in section V of this RFQ by using Appendix B of this RFQ.

C. QUALIFICATIONS AND EXPERIENCE. Firm must include information about the qualifications and experience of the firm, and specifically of the attorneys that it reasonably anticipates will provide representation under this contract.

Requirements outlined in Section V(C) and narrative responses requested in Section IV of this RFQ should be addressed in this section.

D. PROPOSED FORM OF CONTRACT. Appendix A contains a proposed Form of

Contract. Firms must provide a statement that the Form of Contract, except for those matters to be determined, is acceptable. If there are exceptions or suggested changes to the Form of Contract, those should be noted in this section, and will be discussed during the interview, if the firm is invited to participate in one.

V. MANDATORY REQUIREMENTS. Firms must attest to the requirements in Sections A and B below using Appendix B in their submitted response to this RFQ in order to for the firm to be considered. Demonstration of the requirements outlined in Section C will be incorporated into the firm’s overall response (see Section IV(C)).

A. STATUTORY REQUIREMENTS.

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1. Firm has read and agrees to follow the contingency fee limitations established in Wis. Stat. s. 20.9305(c), and that any bid it may be invited to submit will not exceed such limitations.

2. Firm has read and agrees to follow the statutory obligations established in

Wis. Stat. s. 20.9305.

B. CERTIFICATION OF NO CONFLICTING RELATIONSHIP. The firm shall certify in writing that no relationship exists between the firm and the procuring or contracting agency that interferes with fair competition or is a conflict of interest, and no relationship exists between the firm(s) and another person or organization that constitutes a conflict of interest with respect to a state contract. The Department of Administration may waive this provision, in writing, if those activities of the Attorney will not be adverse to the interests of the State.

C. MINIMUM SUBJECT MATTER & LEGAL EXPERTISE.

1. Experience with investigation and litigation involving:

a. Civil environmental claims; and

b. Manufacturer liability and tortious conduct.

2. Knowledge of the legal areas specifically associated with the investigation and anticipated litigation against PFAS manufacturers.

VI. QUALIFICATIONS AND EXPERIENCE. Firms must provide narrative responses to the following inquiries.

A. Describe your firm’s proven ability to manage a team of lawyers, support staff and technical experts to ensure efficient and effective operations to achieve the goals of the investigation and anticipated litigation.

B. Describe your firm’s experience with investigation and litigation, at both the trial court and appellate level, relevant to the anticipated litigation against PFAS manufacturers.

C. Describe your firm’s experience in providing advice and guidance regarding complex civil and environmental litigation to public sector entities.

D. Describe your firm’s experience with natural resource damage assessment (NRDA) claims and litigation.

E. Describe your firm’s capacity to assign multiple attorneys and support staff to facilitate the goals of the investigation and anticipated litigation.

F. Describe your firm’s reputation within the legal community and beyond.

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G. Describe your firm’s willingness to work under the direction of and with the attorney general on this matter.

H. Describe your firm’s financial capacity to sustain an investigation, and complex and protracted litigation and appeal. Outside counsel will undertake the investigation, litigation, and appeal on a contingency basis. The State of Wisconsin will owe counsel’s fees and costs only if counsel secures a monetary recovery for the State of Wisconsin. Counsel shall not receive reimbursement for expenses incurred in the investigation, litigation, and appeal related to any defendant against whom counsel does not recover a settlement or judgment.

I. Describe the specific identity and experience of the Lead Attorney as well as other attorneys who would be providing services under the contract. Applicants should present a team of attorneys that have significant experience in complex civil and environmental litigation. Full disclosure of all attorneys and staff who are not directly employed with the firm shall be disclosed. Please include a resume of each member of the proposed team complete with the attorney who will be designated as the lead attorney.

J. Specify the type of malpractice or errors and omissions insurance that your firm carries and the limits of coverage.

K. Provide a listing of any professional sanctions or other pending or threatened governmental or regulatory proceedings which would have an adverse impact on the firm or any member of the firm. Please also include an explanation and indicate the current status or disposition.

L. Describe your firm’s history of legal proceedings about legal services provided by your firm, including: Within the last five (5) years, has your firm, or a partner or attorney in your firm, been involved in litigation or other legal proceedings about legal services provided by your firm, partner, or attorney? If so, please provide an explanation and indicate the current status or disposition.

M. Discuss how your firm is structured.

N. Identify whether your firm has been through significant developments in the past three years, such as a change in ownership or restructuring. Also, please identify whether you anticipate any significant changes within the next five (5) years.

O. Provide (including name, address, phone number, and e-mail address) three (3) references, including at least one (1) governmental client.

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APPENDIX A

PFAS Tort Litigation

The State of Wisconsin (hereinafter, State), represented by the Wisconsin Attorney

General, and the law firm of [name of firm], [City], [State] (hereinafter LAW FIRM) contract this ______ day of ___________________, _______ as follows:

1. PARTIES/PURPOSE

1.1. Parties. The parties to this Contract are the State of Wisconsin and the Wisconsin

Department of Justice (hereinafter “DOJ”) and the LAW FIRM.

1.2. Purpose. The State and the LAW FIRM agree that the LAW FIRM will provide legal services relative to PFAS Tort Litigation, to wit: assist the Attorney General with the investigation and potential litigation against parties engaged in the manufacture, processing, testing or distribution of per- and polyfluoroalkyl substances (PFAS) or

PFAS containing products. The LAW FIRM is to work only on the PFAS tort

Litigation and all case resolutions are to be approved in advance by the Attorney

General.

1.3. Work Product. The LAW FIRM understands that all work product is subject to review by the Attorney General. The State reserves the right to deny payment for any work product deemed unacceptable. Delivery of such a deficient work product may also result in Contract termination under section 9 of this Contract.

2. TERM OF CONTRACT

The initial term of this Contract is [month/day/year] through [month/day/year]. This

Contract may be extended at the option of the State upon thirty (30) calendar days written notice.

3. COMPENSATION AND COST REIMBURSEMENT

3.1. The LAW FIRM shall advance all litigation costs, expenses, and disbursements, including expert witness fees and costs, deposition costs, and document production.

Neither the State nor the DOJ shall advance payment for any services rendered or costs, expenses or disbursements incurred. The LAW FIRM’s agreement to advance all costs, expenses, and disbursements, as well as its agreement to defer fees while

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3.2. Compensation and the repayment of costs and disbursements shall be contingent upon a successful recovery of funds being obtained from Defendant(s) in the litigation pursued under the terms of this Contract (whether through settlement or final non-appealable judgment).

3.3. If no recovery is made, the State owes nothing for costs incurred by LAW FIRMs and is not obligated to reimburse the LAW FIRMs for any costs.

3.4. If a recovery is obtained, the costs incurred by LAW FIRM will be deducted prior to the calculation of the fee set forth in the Fee Agreement. The LAW FIRM will be required to submit a monthly statement to the DOJ setting forth in detail any potentially reimbursable costs incurred with respect to this appointment, together with a running total of costs accumulated since the execution of the Fee Agreement.

4. REPRESENTATIONS

4.1. Qualifications. The LAW FIRM shall provide counsel, advice, and consultation in a manner consistent with the best professional standards. In view of the personal nature of the services to be rendered under this retainer agreement, the Attorney

General shall be the sole judge of the adequacy of those services.

The LAW FIRM, by signing this Contract, attests that it has sufficient resources, including attorneys, paralegals, and other professional staff who are qualified to perform the services specified in this Contract and agrees to faithfully and diligently perform the services in accordance with the best professional standards.

It is understood that the State has engaged the resources of the LAW FIRM based upon the experience and qualifications of certain individual attorneys of the firm whose qualifications and experience have been reviewed by the State. Upon the unavailability for this engagement of any of those attorneys, listed below, this

Contract may be terminated by the State. The State may, at its option, review the qualifications and experience of other attorney(s) presented by the LAW FIRM and, if found acceptable, continue the Contract by written agreement to make substitution(s) in the following list:

A. ____________________________________________

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B. ____________________________________________

C. ____________________________________________

D. ____________________________________________

4.2. Conflict of Interest. Prior to entering into this Contract, the LAW FIRM must identify and disclose to the DOJ any matter in which the LAW FIRM or any member of the law firm is involved in which is adverse to the State of Wisconsin. The LAW FIRM represents that it has conducted a conflicts check prior to entering into this Contract and no conflicts exist with the proposed legal services. The LAW FIRM agrees to not undertake representation of a client if the representation of that client is related to the subject matter of this Contract or will be adverse to the State of Wisconsin, unless the representation complies with Wisconsin Supreme Court Rule 20:1.7 and the LAW FIRM obtains prior written approval to do so from the Attorney General.

With respect to potential conflicts of interest, other lawyers in the LAW FIRM must be advised of the LAW FIRM’s representation of the State of Wisconsin, the

Attorney General, and the Wisconsin Department of Justice, and that the firm has agreed not to accept, without prior written approval from the DOJ, any employment from other interests related to the subject matter of this Contract or adverse to the

State of Wisconsin. LAW FIRM must carefully monitor any significant change in the assignments or clients of the firm in order to avoid any situation which might affect its ability to effectively render legal services to the State and/or the DOJ.

4.3. Services to be Confidential. The LAW FIRM must keep confidential all services and information, including records, reports, and estimates. The LAW FIRM must not divulge any information to any person other than to authorized representatives of the DOJ, except as required by testimony under oath in judicial proceedings, or as otherwise required by law. The LAW FIRM must take all necessary steps to ensure that no member of the firm divulges any information concerning these services. This includes, but is not limited, to information maintained on the LAW FIRM’s computer system.

All files and documents containing confidential information must be filed in separate files maintained in the office of the LAW FIRM with access restricted to assigned attorneys and needed clerical personnel. All documents prepared on the

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LAW FIRM’s computer system must be maintained in a separate library with access permitted only to assigned attorneys and needed clerical personnel.

4.4. Assignments and Subcontracting. The LAW FIRM must not assign or subcontract any of the work or services to be performed under this Contract, without the prior written approval of the Attorney General. Any member or employee of the LAW

FIRM who performs services under this Contract is bound by the terms and conditions of this Contract.

4.5. Facilities and Personnel. The LAW FIRM has and will continue to have proper facilities and personnel to perform the services and work agreed to be performed.

4.6. Media Contacts. The LAW FIRM may not engage in any on or off the record communication (written or spoken) with any member of the media without advance approval and appropriate vetting by the Director of Communications for the

Wisconsin Department of Justice.

4.7. Records. As set forth in Paragraph 3.3 of this Contract, the LAW FIRM must submit a monthly statement to the designated representative(s) of the DOJ, setting forth in detail any potentially reimbursable costs incurred with respect to this retainer, together with a running total of costs accumulated since the execution of the Fee

Agreement. These invoices shall be considered confidential and not be subject to discovery in the litigation brought under the Scope of Work. The records must be kept in accordance with generally accepted accounting practices and sound business practices and maintained consistent with the requirements of Wis. Stat. s. 20.9305.

The DOJ, or its designees, reserve the right to inspect all records of the LAW FIRM related to this Contract.

4.8. Non-Discrimination. In connection with the performance of work under this

Contract, the LAW FIRM shall not discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in Section 51.05(5) of the Wisconsin

Statutes, sexual orientation or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer;

recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except with respect to sexual orientation, the LAW FIRM shall take affirmative action to ensure equal employment opportunities. The LAW FIRM shall post in conspicuous places, available for employees and applicants for employment, notices to be

State of Wisconsin A-14 provided by the contracting officer setting forth the provisions of the nondiscrimination clause.

The LAW FIRM agrees to comply with the provisions of the Federal Civil Rights Act of 1964, 42 USC §2000d, in performing the services under this Contract.

Within fifteen (15) days after the date of this Contract, the Attorney shall submit a written affirmative action plan to the Department of Administration - State Bureau of Procurement.

Pursuant to 2019 Wisconsin Executive Order 1, contractor agrees it will hire only on the basis of merit and will not discriminate against any persons performing a contract, subcontract or grant because of military or veteran status, gender identity or expression, marital or familial status, genetic information or political affiliation.

Pursuant to s. 16.75(10p), Wis. Stats., contractor agrees it is not, and will not for the duration of the contract, engage in a prohibited boycott of the State of Israel as defined in s. 20.931(1)(b). State agencies and authorities may not execute a contract and reserve the right to terminate an existing contract with a company that is not compliant with this provision.

4.9. Compliance. The LAW FIRM shall at all times comply with and observe all federal and state laws, including Wisconsin’s Rules of Professional Conduct for Attorneys applicable to members of the Wisconsin Bar Association, local laws, ordinances, rules, and regulations that are in effect during the period of this Contract and that, in any manner, affect the work or its conduct.

4.10. Independent Contractor. It is understood that this Contract does not establish an employee-employer relationship between the LAW FIRM and the Governor, the

Attorney General, the DOJ, or the State. The relationship of the LAW FIRM to the

State of Wisconsin, the Attorney General, and/or the DOJ in this Contract is that of an independent contractor. No liability or benefits, such as workers compensation rights or liabilities, insurance rights or liabilities, or any other provisions or liabilities, arising out of or related to a contract for hire or employer/employee relationship, must arise, accrue or be implied to either party or either party’s agent, subcontractor or employee as a result of the performance of this Contract. The LAW

FIRM will be solely and entirely responsible for its acts and the acts of the LAW

FIRM's agents and employees during the performance of this Contract.

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Notwithstanding the above, an attorney-client relationship shall exist between the

LAW FIRM, the State of Wisconsin, the Attorney General, and the Wisconsin

Department of Justice. The LAW FIRM shall follow the direction, guidance, rules, and policies of the Attorney General in its performance under this Contract. The relationship is subject to the requirements of the attorney-client privilege.

5. MANAGEMENT OF CASES

5.1. Decision-making and Control. The Attorney General shall have final authority over all aspects of the Litigation. Moreover, the Attorney General has the unfettered right to appoint one or more designated assistants to oversee the Litigation which appointment the Attorney General may modify at will.

5.2. Notifications. The LAW FIRM shall only communicate with the client(s) through the

Attorney General unless otherwise agreed to by the Attorney General. The LAW

FIRM must direct all notices, correspondence, inquiries, billing statements, pleadings, and documents mentioned in this Contract to the attention of the

Wisconsin Department of Justice’s Division of Legal Services. The Deputy

Administrator for the Division of Legal Services, and the Director of the Public

Protection Unit are the Contract Managers, unless notice of another designation is received from the Attorney General. The Deputy Administrator and the Director may designate an Assistant Attorney General in the Division to oversee the day to day administration of the Contract.

For the DOJ:

Corey F. Finkelmeyer Deputy Administrator, Division of Legal Services Wisconsin Department of Justice 17 West Main Street PO Box 7857 Madison, WI 53707-7857 finkelmeyercf@doj.state.wi.us Phone: (608) 440-1529, (608) 266-7342

R. Duane Harlow Director, Public Protection Unit Wisconsin Department of Justice 17 West Main Street Post Office Box 7857 Madison, WI 53707-7857

State of Wisconsin A-16 harlowrd@doj.state.wi.us Phone: 608-266-2950

For the LAW FIRM:

[Name of Law firm’s point of contact] [Law firm name] [Law firm address] [Phone number] [Fax number] [e-mail address]

5.3. The LAW FIRM shall submit monthly status reports and updates to the Contract

Manager(s), or such more frequent reports and updates as developments in the

Litigation may suggest.

At a minimum, monthly status reports must include a description of the current status of the Litigation, any significant events that have occurred since the previous status report, and a prospective analysis of any significant future events.

5.4. The LAW FIRM must promptly inform the Contract Manager(s) of the following developments as soon as they become known:

A. Favorable actions or events that enable meeting time schedules and/or goals sooner than anticipated.

B. Delays or adverse conditions that materially prevent, or may materially prevent, the meeting of the objectives of the services provided. A statement of any remedial action taken or contemplated by the LAW FIRM must accompany this disclosure.

C. For every case accepted, the LAW FIRM must:

1. Promptly undertake all efforts, including legal proceedings, as directed by the Attorney General, and must prosecute any case to its conclusion unless directed to the contrary by the Attorney General.

2. Provide copies of all pleadings filed in any court by the LAW FIRM, or by the opposing party, to the Contract Manager(s).

5.5. Motions. Before any dispositive motion is filed, the supporting brief must be submitted to the Attorney General for review and approval for filing with the court.

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5.6. Investigative Support. All claims will be vigorously pursued and prepared for filing.

5.7. Discovery Requests. The LAW FIRM must consult with Contract Manager(s) and assist in the preparation of answers to requests for discovery. The LAW FIRM must indicate those requests to which it intends to object.

5.8. Witness and Exhibit Lists. At least ten (10) calendar days before the day a witness list or an exhibit list is due, the Contract Manager(s) must receive a preliminary witness list or exhibit list for review and recommendation of additional names of witnesses or additional exhibits.

5.9. Mediation. Fifteen (15) calendar days before any mediation, the mediation summary must be submitted to the Contract Manager(s) for review and recommendation.

Immediately following mediation, the LAW FIRM must submit a status memorandum indicating the amount of the mediation and a recommendation to accept or reject the mediation.

5.10. Trial Dates. The LAW FIRM must advise the Contract Manager(s) immediately upon receipt of a trial date.

5.11. Settlements. All settlements are subject to approval by the Attorney General. The

LAW FIRM must immediately communicate any settlement proposal received along with a recommendation to accept, reject, or offer a counter-proposal to any offer received to the DOJ’s Contract Manager(s). “Settlement” includes, but is not limited to, the voluntary remand of a case to the trial court or by way of stipulation or motion.

5.12. Experts. The LAW FIRM must provide advance notice to the Contract Manager(s) prior to the selection of experts or consultants, and the Attorney General shall have the right to reject proposed experts or consultants. The LAW FIRM shall cooperate with the Attorney General and make all records and documents relevant to the tasks as described in the Scope of Work available to the Attorney General through the

Contract Manager(s) or his or her designee in a timely fashion.

5.13. File Closing. The LAW FIRM must advise the Contract Manager(s), in writing, of the reason for closing a file (e.g., whereabouts unknown, no assets, bankruptcy, payment in full, or settlement).

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6. INDEMNIFICATION

The LAW FIRM agrees to indemnify and hold harmless the State of Wisconsin, its elected officials, officers, agencies, boards, and employees against and from any and all liabilities, damages, penalties, claims, costs, charges, and expenses (including, without limitation, fees and expenses of attorneys, expert witnesses and other consultants) which may be imposed upon, incurred by, or asserted against the State of Wisconsin for either of the following reasons:

A. Any malpractice, negligent or tortious act or omission attributable, in whole or in part, to the LAW FIRM or any of its employees, consultants, subcontractors, assigns, agents, or any entities associated, affiliated, or subsidiary to the LAW FIRM now existing, or later created, their agents and employees for whose acts any of them might be liable.

B. The LAW FIRM’s failure to perform its obligation either expressed or implied by this Contract.

7. INSURANCE

7.1. Errors and Omissions. The LAW FIRM must maintain professional liability insurance sufficient in amount to provide coverage for any errors or omissions arising out of the performance of any of the professional services rendered pursuant to this Contract.

7.2. Certificates of Insurance. Certificates evidencing the purchase of insurance must be furnished to the DOJ, upon request. All certificates are to be prepared and submitted by the insurance provider and must contain a provision indicating that the coverage(s) afforded under the policies will not be cancelled, materially changed, or not renewed without thirty (30) calendar days prior written notice, except for ten

(10) calendar days for non- payment of premium, and any such notice of cancellation, material change, or non- renewal must be promptly forwarded to the

Department upon receipt.

7.3. Additional Insurance. If, during the term of this Contract changed conditions should, in the judgment of the Attorney General, render inadequate the insurance limits the LAW FIRM will furnish, on demand, proof of additional coverage as may be required. All insurance required under this Contract must be acquired at the expense of the LAW FIRM, under valid and enforceable policies, issued by insurers

State of Wisconsin A-19 of recognized responsibility. The Attorney General reserves the right to reject as unacceptable any insurer.

8. APPEALS

The LAW FIRM agrees that no appeal of any order(s) of any Wisconsin Circuit Court, the

Wisconsin Court of Appeals, or any United States District Court will be taken to the

Wisconsin Court of Appeals, the Wisconsin Supreme Court, or any United States Circuit

Court of Appeals, without prior written approval of the Attorney General. Further, the

LAW FIRM agrees that no petition for certiorari will be filed in the United States Supreme

Court without prior written permission of the Attorney General.

9. TERMINATION OF CONTRACT AND APPOINTMENT

9.1. Law Firm Termination. The LAW FIRM may terminate this Contract upon sixty (60) calendar day’s prior written notice (Notice of Termination). Upon delivery of such notice, the LAW FIRM must continue all work and services until otherwise directed by the Attorney General. The LAW FIRM will be paid only as set forth in the contingency fee arrangement specified under the Fee Agreement.

9.2. State of Wisconsin Termination. The Attorney General may terminate this Contract and LAW FIRM appointment, at any time and without cause, by issuing a Notice of

Termination to the LAW FIRM.

9.3. Termination Process and Work Product. Upon receipt of a Notice of Termination, and except as otherwise directed by the Attorney General, the LAW FIRM must:

A. stop work under the Contract on the date and to the extent specified in the

Notice of Termination;

B. incur no costs beyond the date specified by the Attorney General;

C. on the date the termination is effective, submit to the Contract Manager(s) all records, reports, documents, and pleadings as the Attorney General specifies and carry out such directives as the Attorney General may issue concerning the safeguarding and disposition of files and property; and

D. submit within thirty (30) calendar days a closing memorandum and final billing.

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Upon termination of this Contract, all finished or unfinished original (or copies when originals are unavailable) documents, briefs, files, notes, or other materials

(the “Work Product”) prepared by the LAW FIRM under this Contract, must become the exclusive property of the Attorney General, free from any claims on the part of the LAW FIRM except as herein specifically provided. The Work Product must promptly be delivered to the Attorney General. The LAW FIRM acknowledges that any intentional failure or delay on its part to deliver the Work Product to the

Attorney General will cause irreparable injury to the State of Wisconsin not adequately compensable in damages and for which the State of Wisconsin has no adequate remedy at law. The LAW FIRM accordingly agrees that the Attorney

General may, in such event, seek injunctive relief in a court of competent jurisdiction. The Attorney General must have full and unrestricted use of the Work

Product for the purpose of completing the services. In addition, each party will assist the other party in the orderly termination of the Contract.

The rights and remedies of either party provided by the Contract are in addition to any other rights and remedies provided by law or equity.

10. GENERAL PROVISIONS

10.1. Governing Law and Jurisdiction. This Contract shall be governed under the laws of the State of Wisconsin. Venue for any action brought under this Contract shall lie in

Madison, Dane County, Wisconsin.

10.2. No Waiver. A party’s failure to insist on the strict performance of this Contract does not constitute waiver of any breach of the Contract.

10.3. Additional Law Firms. It is understood that during the term of this Contract, the

State may contract with other LAW FIRMs providing the same or similar services.

10.4. Other Debts. The LAW FIRM agrees that it is not, and will not become, in arrears on any contract, debt, or other obligation to the State of Wisconsin, including taxes.

10.5. Invalidity. If any provision of this Contract or its application to any persons or circumstances to any extent is judicially determined to be invalid or unenforceable, the remainder of this Contract will not be affected, and each provision of the

Contract will be valid and enforceable to the fullest extent permitted by law.

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10.6. Headings. Contract section headings are for convenience only and must not be used to interpret the scope or intent of this Contract.

10.7. Entire Agreement. This Contract represents the entire agreement between the parties and supersedes all proposals or other prior agreements, oral or written, and all other communications between the parties.

10.8. Amendment. No Contract amendment will be effective and binding upon the parties unless it expressly makes reference to this Contract, is in writing, and is signed by duly authorized representatives of all parties and all the requisite State approvals are obtained.

10.9. Issuing Office. This Contract is issued by the DOJ, and DOJ is the only state office authorized to change the terms and conditions of this Contract.

10.10. Counterparts. This Contract may be signed in counterparts, each of which has the force of an original, and all of which constitute one document.

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APPENDIX B

ATTESTATIONS TO MANDATORY REQUIREMENTS IN SECTION V

Firms must attest to the following requirements their submitted response to this RFQ in order to for the firm to be considered.

STATUTORY REQUIREMENTS.

Firm has read and agrees to follow the contingency fee limitations established in Wis.

Stat. s. 20.9305(c), and that any bid it may be invited to submit will not exceed such limitations.

Firm has read and agrees to follow the statutory obligations established in Wis. Stat.

s. 20.9305.

CERTIFICATION OF NO CONFLICTING RELATIONSHIP.

Firm certifies that no relationship exists between the firm and the procuring or contracting agency that interferes with fair competition or is a conflict of interest, and no relationship exists between the firm(s) and another person or organization that constitutes a conflict of interest with respect to a state contract.

The Department of Administration may waive this provision, in writing, if those activities of the Attorney will not be adverse to the interests of the State.

Signature

Name

Date