Monthly Archives

August 2018

What Are The Restrictions On Attorney Fees?

By | Contingency Fee Agreement

The New Jersey Rules of Professional Conduct that apply to lawyers practicing in New Jersey set forth the requirements regarding attorney fees charged to clients.

RPC 1.5 Fees

(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;

(8) whether the fee is fixed or contingent.

(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated in writing to the client before or within a reasonable time after commencing the representation.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by law or by these rules. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

(2) a contingent fee for representing a defendant in a criminal case.

(e) Except as otherwise provided by the Court Rules, a division of fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer, or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; and

(2) the client is notified of the fee division; and

(3) the client consents to the participation of all the lawyers involved; and

(4) the total fee is reasonable.

Source

If your business is presently or may soon be involved in business litigation in the United States, email us at info@businesslitigationcontingencylawyers.com or telephone us toll-free in the United States at 800-756-2143 to find business litigation contingency lawyers who may handle your business litigation matter on a contingency basis.

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Minnesota Supreme Court To Decide If Law Firm Entitled To Contingency Fee From Former Client’s Settlement

By | Business Litigation, Contingency Fee Agreement

The Minnesota Supreme Court heard oral arguments on January 10, 2018 in a case involving a law firm seeking its full contingency fee from a former client that subsequently settled its claim against its insurer after terminating the law firm’s representation.

Faricy Law Firm, P.A., Appellant/Cross-Respondent vs. API, Inc. Asbestos Settlement Trust, Respondent/Cross-Appellant – Case No. A16-1539

Underlying Facts

API, Inc. Asbestos Settlement Trust retained Faricy Law Firm, P.A. to represent the Trust in litigation against insurers related to insurance coverage for asbestos-related claims. The retainer agreement provided for a one-third contingency fee of any recovery against the insurers.

In August 2012, the Trust fired the law firm.

In November 2012, the Trust reached a settlement agreement with an insurer for $21,500,000. The law firm demanded one-third of the payment pursuant to the retainer agreement, but the Trust refused.

The law firm filed a petition in the district court for an attorney’s lien pursuant to Minn. Stat. § 481.13 (2016), seeking one-third of the amounts the Trust receives from the insurer. The law firm argued that it is entitled to the full contingency fee, and despite the district court’s invitation, the law firm presented no argument and no alternate calculation of an appropriate fee based on quantum meruit.

The district court concluded that the law firm is entitled to compensation under the retainer agreement, but because the law firm had failed to prove the reasonable value of its services based on quantum meruit, the district court awarded the law firm nothing.

The Minnesota Court of Appeals reversed and remanded for the district court to determine the reasonable value of the services the law firm provided, instructing the district court to consider a number of factors in making that determination. Those factors did not include the terms of the contingency fee agreement.

The following issues were presented to the Minnesota Supreme Court: (1) whether the district court should consider a contingency fee agreement as one of the factors in determining the reasonable value of a discharged law firm’s services; and (2) whether the law firm’s failure to present any evidence of the reasonable value of its services except the contingency fee agreement preclude it from recovery.

Source

As of the writing of this blog post, the Minnesota Supreme Ciurt had not yet filed its opinion in the case.

If your business is presently or may soon be involved in litigation against an insurer in the United States, email us at info@businesslitigationcontingencylawyers.com or telephone us toll-free in the United States at 800-756-2143 to find business litigation contingency lawyers who may handle your business litigation matter on a contingency basis.

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Business Litigation Funding

By | Business Litigation, Class Action Lawsuits

What happens when a business needs financing in order to proceed with a litigation matter and cannot afford to fund the business litigation matter itself? Some businesses turn to business litigation funding companies that provide the capital for litigation costs and expenses, for a price.

One of the largest business litigation funding companies is Bentham IMF (“Bentham”). Bentham states on its website that it was founded in 2001 in Australia and opened its U.S. arm, Bentham IMF, in 2011. In its 16 years of operation, Bentham, as a group, has reviewed several thousand cases and has seen over 162 case investments worth at least AUD 2.1 billion in damages through to completion. Bentham claims its track record is over 91% of cases funded to a win or settlement.

Bentham accepts all commercial cases for funding consideration, including breach of contract, breach of fiduciary duty, trade secret theft, copyright/trademark/patent infringement, complex business disputes, environmental, antitrust as well as domestic and international arbitration. Bentham allows a client to fund all or a portion of the legal fees of their litigation. Bentham generally funds up to $15 million or more, depending on the case, which funding is non-recourse, meaning if the case fails there is no need to repay the investment.

To be eligible for funding, Bentham requires that the case must meet the following preliminary requirements:

  1. Funding requested must exceed $1,000,000.
  2. Judgment must exceed $10,000,000 (exclusive of punitive damages).
  3. Defendant must have a clear ability to pay.
  4. The litigation must have strong prospects of success.

Source

If your business is presently or may soon be involved in commercial litigation in the United States, email us at info@businesslitigationcontingencylawyers.com or telephone us toll-free in the United States at 800-756-2143 to find business litigation contingency lawyers who may handle your business litigation matter on a contingency basis.

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Average Cost Of Data Breach In 2018: $3.86 Million

By | Data Breach

The IBM Security and Ponemon Institute’s 2018 Cost of Data Breach Study: Global Overview reported that “data breaches continue to be costlier and result in more consumer records being lost or stolen, year after year.” The finding was based on interviews of more than 2,200 IT, data protection, and compliance professionals from 477 companies that have experienced a data breach over the past 12 months.

The report found that the average total cost of a data breach, the average cost for each lost or stolen record
(per capita cost), and the average size of data breaches in 2018 have all increased over the averages reported in 2017:

  • The average total cost rose from $3.62 to $3.86 million, an increase of 6.4 percent;
  • The average cost for each lost record rose from $141 to $148, an increase of 4.8 percent; and,
  • The average size of the data breaches increased by 2.2 percent.

Probability Of Future Data Breach

Two factors were used to determine the probability of a future data breach: the size of the data breach reported in this year’s research and where the organization is located:

  • The average global probability of a material breach in the next 24 months is 27.9 percent, an increase over last year’s 27.7 percent;
  • South Africa has the highest probability of experiencing a future data breach, at 43 percent; and,
  • Germany has the lowest probability of having a future data breach, at 14.3 percent.

The study also reported on the relationship between how quickly an organization can identify and contain data breach incidents and the financial consequences:

  • The mean time to identify (MTTI) was 197 days;
  • The mean time to contain (MTTC) was 69 days; and,
  • Companies that contained a breach in less than 30 days saved over $1 million vs. those that took more than 30 days to resolve.

The study also found:

  • The average cost of a breach for organizations that fully deploy security automation is $2.88 million;
  • Without automation, estimated cost is $4.43 million (a $1.55 million net cost difference);
  • The extensive use of IoT devices increased cost by $5 per compromised record;
  • A mega breach (defined as a data breach involving more than one million compromised records) of 1 million records yields an average total cost of $40 million; and,
  • A mega breach of 50 million records yields an average total cost of $350 million.

The key findings in the report were:

The global cost of data breach increased (the average total cost of data breach increased by 6.4 percent and the per capita cost increased by 4.8 percent; the average size of a data breach (number of records lost or stolen) also increased by 2.2 percent);

Data breaches are the most costly in the United States and the Middle East and least costly in Brazil and India (the average total cost in the United States was $7.91 million and the average total cost in the Middle East was $5.31 million; the lowest average total cost was $1.24 million in Brazil and $1.77 million in India; and, the highest average per capita costs were $233 in the United States and $202 in Canada);

Notification costs are the highest in the United States (these costs include the creation of contact databases, determination of all regulatory requirements, engagement of outside experts, postal expenditures, email bounce-backs and inbound communication setups; notification costs for organizations in the United States were the highest at $740,000 whereas India had the lowest at $20,000);

The United States and the Middle East spend the most on post data breach response (post data breach response activities include help desk activities, inbound communications, special investigative activities, remediation, legal expenditures, product discounts, identity protection services and regulatory interventions; in the United States, these costs were $1.76 million and were $1.47 million in the Middle East);

Canada has the highest direct costs and the United States has the highest indirect costs (Canada had the highest direct cost at $81 per compromised record (direct costs refer to the expense outlay to accomplish a given activity such as engaging forensic experts, hiring a law firm, or offering victims identity protection services); the United States had the highest indirect per capita cost at $152 (indirect costs include employees’ time, effort, and other organizational resources spent notifying victims and investigating the incident, as well as the loss of goodwill and customer churn);

The faster a data breach can be identified and contained, the lower the costs (for the consolidated sample of 477 companies, the mean time to identify (MTTI) was 197 days, and the mean time to contain (MTTC) was 69 days; both the time to identify and the time to contain were highest for malicious and criminal attacks and much lower for data breaches caused by human error; companies that identified a breach in less than 100 days saved more than $1 million as compared to those that took more than 100 days; similarly, companies that contained a breach in less than 30 days saved over $1 million as compared to those that took more than 30 days to resolve);

Hackers and criminal insiders cause the most data breaches (forty-eight percent of all breaches in this year’s study were caused by malicious or criminal attacks; the average cost per record to resolve such an attack was $157; in contrast, system glitches cost $131 per record and human error or negligence costs $128 per record; companies in the United States and Canada spent the most to resolve a malicious or criminal attack ($258 and $213 per record, respectively); Brazil and India spent far less ($73 and $76 per record, respectively));

Incident response teams and the extensive use of encryption reduce costs (in this year’s research, an incident response (IR) team reduced the cost by as much as $14 per compromised record; hence, companies with a strong IR capability could anticipate an adjusted cost of $134, down from $148 per record; similarly, the extensive use of encryption reduced cost by $13 per capita, for an adjusted average cost of $135,
down from $148 per record);

Third party involvement in a breach and extensive cloud migration at the time of the breach increases the cost (if a third party caused the data breach, the cost increased by more than $13 per compromised record for an adjusted average cost of $161, up from $148 per record; organizations undergoing a major cloud migration at the time of the breach saw the cost increase to per capita cost by $12, for an adjusted average cost of $160, up from $148 per record);

The loss of customer trust has serious financial consequences (organizations that lost less than one percent of their customers due to a data breach resulted in an average total cost of $2.8 million; if four percent or more was lost, the average total cost was $6 million, a difference of $3.2 million).

Source

If your business is presently or may soon be involved in data breach litigation in the United States, email us at info@businesslitigationcontingencylawyers.com or telephone us toll-free in the United States at 800-756-2143 to find business litigation contingency lawyers who may handle your data breach litigation matter on a contingency basis.

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2017 Survey Finds Businesses Intend To Increase Use Of Alternative Fee Arrangements In 2018

By | Business Litigation

The “2017 Litigation Trends Annual Survey” (“Survey”) from the global law firm Norton Rose Fulbright reports that in its 2016 business litigation survey, 37% of survey respondents stated that they intended to increase their use of alternative fee arrangements (“AFAs”). The respondents who used AFAs in 2016 were “almost universally” satisfied with the quality of work they received under AFAs.

For 2017, the respondents use of AFAs was essentially unchanged – 56% used AFAs and their average spend under an AFA was 28%. The Survey predicted that there would be a rise in the use of AFAs  in 2018.

Thirty-seven percent of the 2017 survey respondents reported that they intended to increase their use of AFAs while one percent indicated they intended to decrease their use of AFAs. The respondents reported that their intention to increase their use of AFAs in the future is based on several factors: driving cost efficiency; incentivizing law firms to perform; and, enabling greater certainty around cost and ease of budgeting.

The most commonly used AFAs were fixed fee (77% in 2017, compared to 67% in 2016); capped fee (53% in 2017, compared to 52% in 2016); blended rate (42% in 2017, compared to 44% in 2016); performance/rewards (21% in 2017, compared to 27% in 2016); and, contingent fee (25% in 2017, compared to 26% in 2016).

The Survey reports that respondents who used performance-based or contingent fee AFAs found these arrangements were comparable to fixed fee arrangement with regard to billing goals. However, respondents “much preferred” the certainty of fixed fees over risk-sharing or outcome-related AFAs.

The Survey reported that the typical volume of disputes is decreasing “very slightly” but as organizations get larger, they become more of a target for disputes and the proportion of disputes “rises dramatically.”

The Survey stated that the respondents reported that the most numerous types of litigation matters that were pending against their orgainzations during the preceding twelve months were labor/employment (48% in 2017, compared to 44% in 2016); contracts (43% in 2017, compared to 35% in 2016); personal injury (19% in 2017, compared to 22% in 2016); IP actions/patents (17% in 2017, compared to 16% in 2016); class actions (14% in 2017, compared to 10% in 2016); regulatory/investigations (14% in 2017, compared to 15% in 2016); and, product liability (12% in 2017, compared to 14% in 2016).

The three most concerning types of litigation were regulatory/investigations, class actions, and environmental/toxic torts.

The Survey concluded: “AFAs have a high satisfaction level but there seems to be some inertia in realizing the expected growth in their use.”

Source

If your business is presently or may soon be involved in litigation in the United States, email us at info@businesslitigationcontingencylawyers.com or telephone us toll-free in the United States at 800-756-2143 to find business litigation contingency lawyers who may handle your business litigation matter on a contingency basis.

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Occupational Fraud Statistics Between January 2016 And October 2017

By | Business Fraud, Occupational Fraud

The 2018 Report to the Nations from the Association of Certified Fraud Examiners reported on world-wide occupational fraud data based on an analysis of 2,690 cases of occupational fraud between January 2016 and October 2017 based on information provided by the Certified Fraud Examiners who investigated those cases.  Occupational fraud is defined as fraud committed against the organization by its own officers, directors, or employees.

The Report’s analysis of 2,690 cases of occupational fraud involved 125 countries in 23 industry categories. The total losses were in excess of $7 billion, with a median loss per case in the amount of $130,000. Twenty-two percent of the cases resulted in losses in excess of $1 million. The median duration of a fraud scheme was 16 months. The most common scheme in every global region was corruption.

The most common and least costly schemes involved asset misappropriation, with a medican loss of $114,000. The least common and most costly schemes involved financial statement fraud (10 percent of the cases), with a median loss of $800,000.

Small businesses (less than 100 employees) lost almost twice as much per scheme due to fraud ($200,000 median loss) than large businesses ($104,000 median loss). Internal control weaknesses were responsible for almost one-half of frauds.

The most common initial detection method was tips (40 percent versus 15 percent by internal audit and 13 percent by management review), with employees providing more than half of the tips.

Owners/executives represented only 19 percent of the occupational fraud cases but caused a median loss of $850,000. The losses caused by men were 75 percent larger than those caused by women. Those who had been with their company longer stole twice as much. Only 4 precent of those who committed fraud had a prior fraud conviction.

When fraudsters collude with each other, the median losses are far greater ($338,000 when three or more colluded; $150,00 when two colluded; $74,000 median loss for one fraudster). Eighty-five percent of fraudsters displayed at least one behavioral red flag of fraud.

The Report found that a majority of fraud victims recovered nothing.

The Report states: “Among the various kinds of fraud that organizations might be faced with, occupational fraud is likely the largest and most prevalent threat … There are millions of business and government organizations operating throughout the world and every one
of them, in some way, is vulnerable or potentially vulnerable to fraud committed by their employees. Most of those employees will never steal or abuse the trust that has been placed in them, but the ones who do can cause enormous damage.”

https://s3-us-west-2.amazonaws.com/acfepublic/2018-report-to-the-nations.pdf

If your business may be the victim of occupational fraud (business fraud) in the United States, email us at info@businesslitigationcontingencylawyers.com or telephone us toll-free in the United States at 800-756-2143 to find business litigation contingency lawyers who may handle your business fraud matter on a contingency basis.

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Cybersecurity Litigation In 2017 And Beyond

By | Business Litigation, Cyber Security

An article entitled “2017 Cybersecurity Litigation Year in Review and Forecasts” published on December 22, 2017 in the New York Law Journal stated, “Cyber-related litigation continues to be volatile, with 2017 witnessing several momentous developments including rulings on standing, the extent of insurance coverage, the fate of the Fourth Amendment’s third-party doctrine in the digital age, and the emerging standard of care for cybersecurity. At the same time, Europe is seeing its own tectonic shifts in how it handles data, including data that is shared with the United States, creating some very serious fault lines that will need to be watched closely in 2018.”

” Courts in 2017 continued to conclude that commercial general liability policies do not always apply to cyber events. Cyber events may not even implicate the insurer’s duty to defend against breach class actions, much less provide coverage for resulting losses.”

” … 2017 saw adoption of the National Association of Insurance Commissioners (NAIC) Insurance Data Security Model Law. The Model Law establishes minimum cybersecurity standards largely consistent with New York’s regulation. Like the other key federal and state regulations, this Model Law promotes a proactive, holistic and risk-based cyber strategy and, importantly, it requires senior corporate oversight.”

” …  the General Data Protection Regulation (GDPR) enters into force on May 25, 2018. The GDPR is designed to be “future-proof” against technological developments and hopes to harmonize data privacy laws across the EU—but not necessarily with other jurisdictions—thus
setting up the potential for conflicting regulatory requirements for U.S. companies. While requiring greater transparency and accountability from companies, it includes greater privacy protections for individuals. As a matter of law, U.S. companies will have to comply with GDPR if they:

• target offering of goods or services to individuals in the EU (even if for free);

• monitor the behavior of individuals who are in the EU including for purposes such as behavioral advertising;

• provide services to EU clients involving using personal data, for example, by hosting EU personal data on U.S.-based servers; or

• provide centralized IT systems or data storage functions for the enterprise which contain personal data about the employees and customers of any EU subsidiaries.”

The article concluded: “Ultimately, 2017 was a tremendously significant year for cybersecurity litigation, and the explosion of cybersecurity
regulation in 2017 also signifies an even more significant litigation year in 2018, both here and abroad. Anticipating and mitigating what is coming not only helps prevent breaches, but also can help limit the litigation and regulatory enforcement fallout that could—and often does—ensue.”

Source

If your business suffered financial or other significant harm due to a cybersecurity breach in  the United States, email us at info@businesslitigationcontingencylawyers.com or telephone us toll-free in the United States at 800-756-2143 to discuss whether your cyber security breach matter may be appropriate to be handled on a contingency basis.

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Business Litigation And Compliance Statistics

By | Business Litigation

AlixPartners published its Litigation and Corporate Compliance Survey (“Survey”) results in November 2016 that polled 300 senior executives (general counsel and compliance officers ) at U.S. and European companies with annual revenues of $150 million or more between June and October, 2016.

The Survey found:

  •  8% have been involved in a bet-the-company lawsuit.
  •  53% say such lawsuits were class actions compared with 15% in its 2015 survey.
  •  27% say these suits involved regulatory issues or investigations compared with 22% in 2015.
  •  92% say the number of class action disputes their companies have been involved in either increased or stayed the same.
  •  91% say the number of M&A disputes either increased or stayed the same.
  •  23% say their companies have been involved in disputes related to data privacy.
  •  44% say their companies have been involved in international arbitrations in the past 12 months compared with 30% in 2015.
  •  60% of U.S. respondents and 63% of European respondents say data security is important in managing risk.
  •  96% say the implementation of new technologies to mitigate risk has either increased or remained the same.
  •  60% say data security is important in managing risk while 46% say information governance is critical to managing risk.
  •  30% say they would pay more for certified data centers.
  •  93% say the size of their companies’ litigation departments either increased or stayed the same.
  •  22% say the use of outside law firms increased compared with 21% in 2015.
  •  6% say spending on litigation has decreased, compared with 16% in 2015.

Source

If your business is presently or may soon be involved in litigation in the United States, email us at info@businesslitigationcontingencylawyers.com or telephone us toll-free in the United States at 800-756-2143 to find business litigation contingency lawyers who may handle your business litigation matter on a contingency basis.

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Cybercrimes Statistics

By | Cyber Security

The “2017 Cybercrime Report” (“Report”) published by Cybersecurity Ventures states: “Cybercrime is the greatest threat to every company in the world, and one of the biggest problems with mankind. The impact on society is reflected in the numbers. Last year, Cybersecurity Ventures predicted that cybercrime will cost the world $6 trillion annually by 2021, up from $3 trillion in 2015. This represents the greatest transfer of economic wealth in history, risks the incentives for innovation and investment, and will be more profitable than the global trade of all major illegal drugs combined.”

The Report states: “Cyberattacks are the fastest growing crime in the U.S., and they are increasing in size, sophistication, and cost … Cybercrime costs include damage and destruction of data, stolen money, lost productivity, theft of intellectual property, theft of personal and financial data, embezzlement, fraud, post-attack disruption to the normal course of business, forensic investigation, restoration and deletion of hacked data and systems, and reputational harm.”

The Report states: “The Yahoo hack was recently recalculated to have affected 3 billion user accounts, and the Equifax breach in 2017 — with 143 million customers affected — exceeds the largest publicly disclosed hacks ever reported. These major hacks alongside the WannaCry and NotPetya cyberattacks which occurred in 2017 are not only larger scale and more complex than previous attacks, but they are a sign of the times.”

Cybersecurity Ventures predicts that there will be 6 billion Internet users by 2022 (75% of the projected world population of 8 billion) — and more than 7.5 billion Internet users by 2030 (90% of the projected world population of 8.5 billion, 6 years of age and older).

Cybersecurity Ventures predicts global spending on cybersecurity products and services will exceed $1 trillion cumulatively from 2017 to 2021, and anticipates 12-15 percent year-over-year  cybersecurity market growth through 2021. Cybercrime will more than triple the number of job openings to 3.5 million cybersecurity unfilled positions by 2021.

Global spending on security awareness training for employees is predicted to reach $10 billion by 2027, up from around $1 billion in 2014. Training employees how to recognize and defend against cyber attacks is the most under-spent sector of the cybersecurity industry.

Global ransomware damage costs are predicted to exceed $5 billion in 2017, up more than 15X from 2015. Healthcare providers have been the bullseye for hackers over the past two years: ransomware attacks on healthcare organizations are expected to quadruple by 2020.

Nearly half of all cyber attacks are committed against small businesses, and the percentage is expected to rise in 2018. A business will fall victim to a ransomware attack every 14 seconds by 2019, increasing from every 40 seconds in 2017.

The Report states: “Cyber criminals are creating an average of around 1.4 million phishing websites every month with fake pages designed to mimic the company they’re spoofing. The average size of distributed denial-of-service (DDoS) attacks is 4X larger than what cybercriminals were launching two years ago — and more than 42 percent of DDoS incidents in 2017 exceed a whopping 50Gbps, up from 10 percent of cases in 2015.”

Source

If your business suffered financial or other significant harm due to a cybercrime, email us at info@businesslitigationcontingencylawyers.com or telephone us toll-free in the United States at 800-756-2143 to discuss whether your cyber crime matter may be appropriate to be handled on a contingency basis.

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