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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

FAST TRAK INVESTMENT COMPANY, 

LLC,

Plaintiff,

v.

RICHARD P SAX, et al.,

Defendants.

Case No. 4:17-cv-00257-KAW 

MOTION GRANTING PLAINTIFF'S 

MOTION FOR SUMMARY JUDGMENT

Re: Dkt. No. 59

On January 19, 2017, Plaintiff Fast Trak Investment Company, LLC filed this action 

against Defendants Richard P. Sax and the Law Offices of Richard Sax for breach of contract and 

breach of fiduciary duty in connection with purchase agreements of prospective, future-earned 

legal fees. Before the Court is Plaintiff’s motion for summary judgment as to the first and third 

causes of action.

1

 

On May 3, 2018, the Court held a hearing, and, after careful consideration of the parties’ 

arguments and moving papers, and for the reasons set forth below, the Court GRANTS Plaintiff’s 

motion for summary judgment on the first and third causes of action.

I. BACKGROUND

Plaintiff Fast Trak is a Delaware limited liability company. When Fast Trak contracted 

with Defendant Richard Sax, its principal place of business was in New York. (Decl. of Robert 

Coppinger, “Coppinger Decl.,” Dkt. No. 59-1 ¶ 2; Decl. of Kira A. Schlesinger, “Schlesinger 

Decl.,” Dkt. No. 59-2 ¶¶ 2-3, Ex. 1.) Fast Trak is in the business of litigation funding, and it 

 

1

Plaintiff acknowledges that the second cause of action to compel arbitration appears to be moot. 

(Pl.’s Mot., Dkt. No. 59 at 3 n. 1.) The fourth cause of action is for a writ of attachment. At the 

hearing, Plaintiff requested that the undersigned retain jurisdiction over the fourth cause of action 

pending the discovery of Sax’s financial situation.
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executed the contracts at its New York offices. (Coppinger Decl. ¶ 3.) Beginning in January 

2013, Defendant Richard Sax, individually and on behalf of his law firm, entered into a series of 

Assignment, Sale, Springing Assignment & Equitable Lien Agreements with Fast Trak Investment 

Company, LLC. (Coppinger Decl. ¶ 4; Schlesinger Decl. ¶ 3, Ex. 1; Decl. of Richard Sax, “Sax 

Decl.,” Dkt. No. 63 ¶ 3.). Through these agreements, Fast Trak purchased a portion of the 

prospective future proceeds from Sax's contingency fee litigation. (Coppinger Decl. ¶ 5; 

Schlesinger Decl. ¶3, Ex. 1; Sax Decl. ¶ 4.)

The primary underlying agreements were signed by clients of the Sax firm, and 

countersigned by Sax. (Schlesinger Decl. ¶ 3.) Defendant Sax signed both individually and as an 

authorized representative of Defendant Law Offices of Richard Sax. (Schlesinger Decl. ¶ 3, Ex. 

1.) The Sax clients agreed to be liable to Fast Trak for a portion of their settlements if, and only if, 

certain conditions precedent occurred. On these contracts, Sax agreed to act as a fiduciary of Fast 

Trak to ensure that any proceeds due to Fast Trak were properly paid. (Schlesinger Decl. ¶ 4.) 

These proceeds would be paid upon resolution of the underlying litigation and receipt of the 

proceeds in each action. Under the Agreements, Fast Trak would only receive payment if the 

specified condition precedent occurred. If it did not, Fast Trak would lose its entire investment.2

(Schlesinger Decl. ¶ 4; Coppinger Decl. ¶ 8.)

The Agreements state that Fast Trak “Seller intends this transaction to be and agrees that 

this transaction is a purchase and sale and is not a loan.” (Schlesinger Decl. ¶ 3, Ex. 1.) Fast Trak 

has no involvement in the underlying litigation. (Schlesinger Decl. ¶ 5(a), Ex. 1; Coppinger Decl.

¶ 5.) The contracts further state that “the Seller acknowledges that Purchaser has no influence, 

power or control over any matter relating to the Litigation.” (Schlesinger Decl. ¶5(c), Ex. 1 at 1-2

(Representations and Warranties of Seller, § 1(r))). Likewise, Defendants agreed there was no 

reliance on any representation by Plaintiff. (Schlesinger Decl. ¶5(d).) These sections were signed 

or initialed by Sax. Id. Sax also countersigned a letter acknowledging that he had previously 

 

2

The condition did not occur in numerous cases including Monigan v. Presto, Pacheco v. Santa 

Rosa, McQuaid v. Kaiser, and Hashim v. Braeton Purcell. (See Pl.’s Mot. at 4 n. 3.) Plaintiff 

concedes that, assuming Sax's interrogatory responses are accurate, Sax owes nothing on those 

cases.
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obtained funds from another company, Alliance Legal Solutions, and that Fast Trak was paying 

off that debt and wiring the balance directly to Sax for a total of $132,000. (Schlesinger Decl., ¶ 6; 

Ex. 2.) In each of the primary Agreements, the required condition precedent was a judgment or 

settlement in resulting in proceeds to the sellers. Id. (Schlesinger Decl., Ex. 1.)

In addition to the primary cases, Defendant Sax also pledged secondary cases as an 

inducement for Fast Trak to invest. (Schlesinger Decl. ¶ 3, Ex. 1.) Fast Trak would only be paid 

from attorneys’ fees realized by Sax as proceeds from litigation. Each secondary agreement 

contained acknowledgements signed by Sax that the Agreements were either Immediate 

Assignments or Springing Assignments. Sax further waived certain defenses: 

SAX hereby waives any and all defenses to the enforcement of this 

Agreement and the Exhibits and specifically and unconditionally 

waives any claims that the attorney's fees and disbursements are not 

assignable or that any other provision of this Agreement and the 

Exhibits is invalid or unenforceable in any respect. Further, SAX 

agrees that both FAST TRAK and SAX participated in the drafting 

of this agreement. 

(Schlesinger Decl., ¶ 5(e), Ex. 1 (Waiver of Defenses § 2(4))). 

On March 28, 2016, Sax filed for bankruptcy protection. (In re Sax, Case No. 1:16-bk10251 (N.D. Cal.). Upon discovery of the bankruptcy, Fast Trak filed a claim for $465,159.60.

(Schlesinger Decl. ¶ 7, Ex. 3.) On or around October 31, 2016, Fast Trak learned Sax had moved 

to dismiss the bankruptcy voluntarily. (Schlesinger Decl. ¶ 8.) Fast Trak wrote to Sax in care of 

his bankruptcy attorney asking for information regarding the underlying cases. (Schlesinger Decl.

¶ 8, Ex. 4.) On that same date, Sax responded with a partial list of cases in which the condition 

precedent had occurred, and a promise to conduct additional research. (Schlesinger Decl. ¶ 9, Ex. 

5.) Sax dismissed his bankruptcy on November 17, 2016. (Schlesinger Decl. 10, Ex. 6.) On 

December 19, 2016, Sax sent Fast Trak $1000.00, as “payment # 1 towards our account balance.”

(Coppinger Decl. ¶ 6; Schlesinger Decl. ¶ 11, Ex. 7.) No further payments were made. (Coppinger 

Decl. ¶ 6.) This action was filed on January 19, 2017. (Compl., Dkt. No. 1.)

Fast Trak discovered that the condition precedent for payment by Sax occurred in some 

cases. (Coppinger Decl. ¶ 7.) For example, Defendants’ document production shows that Roger 

Gadow, a Primary Agreement, resulted in a settlement of $199,500.00 on April 28, 2014.
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(Schlesinger Decl. 18, Ex. 14.) Of that recovery, Defendants’ attorneys’ fees award was $79,800. 

(Id.; Sax Decl. ¶ 8.) Fast Trak only learned of the dates and amounts of settlements during 

discovery in this litigation. (Coppinger Decl. ¶ 7.) The Agreements Sax signed in primary cases, 

including Gadow, stated he would notify Fast Trak within five days of settlement, and hold that 

portion of the proceeds for the benefit of Fast Trak. (Schlesinger Decl. ¶ 4; see, e.g., Schlesinger 

Decl., Ex. 1 at 8.) Sax failed to provide timely notice or forward any of the amounts due as 

required. (Coppinger Decl. ¶ 7.)

While the condition precedent did not occur in all secondary cases, Sax disclosed 

documentation in this case showing he obtained at least $306,805.00 in attorney’s fees.

(Schlesinger Decl. ¶ 20, Ex. 14.) This is in addition to amounts the primary clients obtained, and 

for which Sax was to act as fiduciary for Fast Trak. (Coppinger Decl. ¶ 4.) The amount currently 

due to Fast Trak is approximately $430,000. (Schlesinger Decl. ¶ 20.) Only one payment of 

$1,000 was ever tendered against that sum by Defendants. (Coppinger Decl. ¶ 6.)

On March 15, 2018, Fast Trak filed a motion for summary judgment. (Pl.’s Mot., Dkt. No. 

59.) On March 29, 2018, Defendants filed their opposition. (Defs.’ Opp’n, Dkt. No. 62.) On April 

5, 2018, Plaintiff filed its reply. (Pl.’s Reply, Dkt. No. 69.)

II. LEGAL STANDARD

A party may move for summary judgment on a “claim or defense” or “part of... a claim or 

defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when, after adequate 

discovery, there is no genuine issue as to material facts and the moving party is entitled to 

judgment as a matter of law. Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient 

evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 

A party seeking summary judgment bears the initial burden of informing the court of the 

basis for its motion, and of identifying those portions of the pleadings and discovery responses 

that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where 

the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no 
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reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v. City 

of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).

On an issue where the nonmoving party will bear the burden of proof at trial, it may 

discharge its burden of production by either (1) by “produc[ing] evidence negating an essential 

element of the nonmoving party's case” or (2) after suitable discovery “show[ing] that the 

nonmoving party does not have enough evidence of an essential element of its claim or defense to 

discharge its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd., v. Fritz 

Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000); see also Celotex, 477 U.S. 324-25. 

Once the moving party meets its initial burden, the opposing party must then set forth 

specific facts showing that there is some genuine issue for trial in order to defeat the motion. See

Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. “A party opposing summary judgment may not 

simply question the credibility of the movant to foreclose summary judgment. Anderson, 477 U.S. 

at 254. “Instead, the non-moving party must go beyond the pleadings and by its own evidence set 

forth specific facts showing that there is a genuine issue for trial.” Far Out Prods., Inc. v. Oskar, 

247 F.3d 986, 997 (9th Cir. 2001) (citations and quotations omitted). The non-moving party must 

produce “specific evidence, through affidavits or admissible discovery material, to show that the 

dispute exists.” Bhan v. NMS Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Conclusory or 

speculative testimony in affidavits and moving papers is insufficient to raise a genuine issue of 

material fact to defeat summary judgment. Thornhill Publ’g Co., Inc. v. Gen. Tel. & Electronics 

Corp., 594 F.2d 730, 738 (9th Cir. 1979).

In deciding a motion for summary judgment, a court must view the evidence in the light 

most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson,

477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011).

III. DISCUSSION

Plaintiff moves for summary judgment on the first and third causes of action for breach of 

contract and breach of fiduciary duty. (Compl. ¶¶ 14-20, 25-29.)

A. Choice of Law

As an initial matter, Defendants argue that the motion for summary judgment is defective 
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on the grounds that Plaintiff failed to file a separate motion to determine which state’s laws apply 

to the agreements at issue. (Def.’s Opp’n at 13-14.)

In its reply, Plaintiff astutely notes that Defendants’ argument mistakenly relies on a 

handful of tort cases. (Pl.’s Reply at 6.) Plaintiff argues that federal courts generally “hold parties 

to their contractual promises to litigate in a specified forum, and apply the same reasoning to 

contractual choice of law clauses.” Id. The Court agrees. In fact, courts in this district have found 

that choice of law determinations “are pure legal questions well-suited to summary judgment.” 

Flintkote Co. v. Aviva PLC, 177 F. Supp. 3d 1165, 1172 (N.D. Cal. 2016) (citing Shannon–Vail 

Five Inc. v. Bunch, 270 F.3d 1207, 1210 (9th Cir. 2001); TH&T Int'l Corp. v. Elgin Indus., Inc., 

216 F.3d 1084 (9th Cir. 2000)). Thus, that Plaintiff did not seek an earlier determination regarding 

the choice of law is certainly not fatal to the instant motion for summary judgment.

The Court must now determine whether California or New York law applies. “When a 

federal court sitting in diversity hears state law claims, the conflicts laws of the forum state are 

used to determine which state’s substantive law applies.” 389 Orange Street Partners v. Arnold, 

179 F.3d 656, 661 (9th Cir. 1999). Thus, California law determines the effect of the contractual 

choice-of-law provision. Under California law, there is a “strong policy favoring enforcement of 

[choice-of-law] provisions.” Nedlloyd Lines B.V. v. Sup. Ct., 3 Cal.4th 459, 464–65 (1992). To 

determine whether a choice-of-law provision is enforceable, California courts follow the 

Restatement (Second) of Conflict of Laws § 187, which provides that a choice-of-law provision 

will be enforced unless either,

(a) the chosen state has no substantial relationship to the parties or 

the transaction and there is no other reasonable basis for the parties 

choice, or

(b) application of the law of the chosen state would be contrary to a 

fundamental policy of a state which has a materially greater interest 

than the chosen state in the determination of the particular issue and 

which, under the rule of § 188, would be the state of the applicable 

law in the absence of an effective choice of law by the parties.

Restatement (Second) of Conflict of Laws § 187(2). Here, Plaintiff’s principal place of business 

was located in New York at the time of contracting, which is sufficient to constitute a substantial 

relationship to Plaintiff. (See Pl.’s Mot. at 8.) Defendants argue that California’s public policy 

conflicts with the application of New York law based on their characterization that the 
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Agreements are “illegal, usurious, and champertous transactions” and that California has a strong 

interest in protecting its residents against such recourse loans. (Defs.’ Opp’n at 16-17.) Defendants 

fail to acknowledge that New York law provides similar protections when it comes to usury and 

champerty. See discussion infra Part III.B.i.b. Thus, Defendants’ argument is unavailing.

Furthermore, the contract containing the choice-of-law provision must govern the claim 

that is alleged to arise from it. Wehlage v. EmpRes Healthcare Inc., 821 F. Supp. 2d 1122, 1127 

(N.D. Cal. 2011) (citing Nedlloyd, 3 Cal. 4th at 469). Here, the choice of law provision in the 

Agreements clearly governed the breach of contract and breach of fiduciary duty claims. 

Thus, the undersigned finds that the contracted choice of law provisions requiring the 

application of New York law is enforceable.

B. Motion for Summary Judgment

i. Breach of Contract

Plaintiff’s first cause of action is for breach of contract. (Compl. ¶¶ 14-20.) Defendants 

argue that there was no breach of contract because the contracts are not enforceable on the grounds 

that the Agreements “were illegal, usurious, and champertous recourse loans.” (Defs.’ Opp’n at 

22.) Plaintiff contends that the Agreements were purchases of prospective proceeds from 

Defendants’ contingency fee litigation rather than recourse loans. (Pl.’s Mot. at 4.) Defendants 

have presented no evidence that they abided by the terms of the Agreements. Indeed, it is 

undisputed that, aside from one $1,000 payment, Defendants have made no payments pursuant to 

the terms of the Agreements. It is also undisputed that the condition precedent—the recovery of 

attorneys’ fees—was met in certain cases, including Gadow. Thus, the Court must determine 

whether the Agreements are loans or purchase agreements to conclude whether they are 

enforceable. If they are purchase agreements, summary judgment must be granted as to the first 

cause of action for breach of contract, because the existence of the agreements and Defendants’

failure to abide by the terms thereof is undisputed. Thus, the only issue is whether Defendants’ 

defenses are valid.3

 

3

The Court notes that Sax waived all defenses pursuant to the terms of the Agreements. (See, e.g., 

Schlesinger Decl. ¶ 5(e), Ex. 1 at 13.) For the purposes of this motion, the Court will assume that 
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a. Whether the Agreements were loans.

In opposition, Defendants argue that the Agreements constitute unenforceable recourse 

loans, such that there could be no breach of contract. (Defs.’ Mot. at 17-18, 22.) Specifically, 

Defendants argue that the Agreements were loans, because Plaintiff could recover monies from a 

“lengthy list of ‘secondary’ cases as backup collateral” in order to collect on its investment if the 

primary cases did not realize sufficient proceeds. (Defs.’ Opp’n at 17-18.) The Court notes that 

several of the primary cases also served as secondary cases for other primary cases. (See 

Schlesinger Decl., Ex. 14.) 

Plaintiff argues that the Agreements are assignments or the sale of proceeds, because 

repayment was uncertain and contingent upon the condition precedent of a favorable outcome for 

Sax’s pledged cases, rather than a loan. (Pl.’s Reply at 9.) One defining characteristic of a 

business transaction is whether the invested amount is at risk such that repayment is uncertain. NY 

Capital Asset Corp. v. F & B Fuel Oil Co., 58 Misc. 3d 1229(A), at *8 (N.Y. Sup. Ct. 2018) 

(Where “repayment is not absolute; the transaction is sufficiently risky such that it cannot be 

considered a loan as a matter of law. . . .”). In NY Capital, the trial court found that “purchases 

and sales of future receivables and sales proceeds . . . are common commercial transactions 

expressly contemplated by the Uniform Commercial Code” and that several New York trial courts 

“have considered and rejected arguments that agreements to purchase receivables and sales 

proceeds were loans.” 58 Misc. 3d 1229(A), at * 6 (citations omitted). Here, despite Defendants’ 

protestations to the contrary, repayment was contingent on Defendants’ recovery, such that 

repayment could not be considered absolute. In fact, the Monigan case resulted in a defense 

verdict, while the Pacheco case was abandoned, and Plaintiff asserts that, in accordance with the 

terms of the Agreements, no payment is due on those cases. (Pl.’s Reply at 9.) That the 

Agreements referenced secondary cases as collateral does not change the fact that recovery in 

those cases was also required before payment was due. (See Defs.’ Opp’n at 17-18.) As such, 

without citing to any legal authority, Defendants seek to impose more risk on the purchase of 

 

the waiver provision is similarly unenforceable should the Agreements be unenforceable.
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future proceeds than the law requires.

“The next quintessential factor in determining the definite nature of a repayment 

requirement is whether the agreement has a finite term or not.” NY Capital, 58 Misc. 3d 1229(A), 

at *7 (citing K9 Bytes, Inc. v Arch Capital Funding, LLC, 56 Misc 3d 807, 817; 57 N.Y.S.3d 625 

(Sup. Ct., Westchester Co. 2017)). Essentially, when payment is not set at a fixed time, the 

hallmark of a loan is missing. See id. Here, each of the Agreements makes allowance for the 

possibility that repayment may take many years, potentially going beyond the original schedule. 

(See, e.g., Schlesinger Decl., Ex. 1 at 002.) Thus, there was no end date by which payment was 

required.

In light of the foregoing, the Court finds that repayment under the Agreements are not 

absolute, thereby rendering them purchase agreements rather than loans, which are generally valid 

under New York law.

b. The Agreements are not usurious or champertous.

Defendants contend that the Agreements are illegal, because they are usurious and 

champertous. (See Defs.’ Opp’n at 22.) Under New York law, “if the transaction is not a loan, 

there can be no usury, however unconscionable the contract may be.” NY Capital, 58 Misc. 3d 

1229(A), at *6 (citing Rabid Capital Finance, LLC v. Natures Market Corp., 57 Misc 3d 979 

(Sup. Ct., Westchester County 2017)).4Since the Agreements are assignments of the sale or 

proceeds rather than loans, there could be no usury.

Defendants’ claim that the Agreements were champertous similarly fails. (See Defs.’ 

Opp’n at 20.) Champerty requires that Fast Trak exert some level of control over the primary or 

secondary litigation. It does not apply where litigation is either ongoing or will be undertaken 

regardless of the contract at issue. Indeed, 

the purpose of New York’s champerty statute “was to prevent 

attorneys and solicitors from purchasing debts, or other things in 

action, for the purpose of obtaining costs by a prosecution thereof, 

and [it] was never intended to prevent the purchase for the honest 

purpose of protecting some other important right of the assignee”.

 

4 California law also requires either a loan or a forbearance for there to be usury. Sw. Concrete 

Prods. v. Gosh Constr. Corp., 51 Cal. 3d 701, 705 (1990). 
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Tr. For the Certificate Holders of Merrill Lynch Mortg. Inv'rs, Inc. v. Love Funding Corp., 13 

N.Y.3d 190, 199, 918 N.E.2d 889 (2009)(quoting Baldwin v. Latson, 2 Barb Ch 306, 308, 1847 

WL 4161 (N.Y. Ch. 1847)). Here, Plaintiff did not exert any control over the underlying cases, 

which is evidenced by the terms of the Agreements that explicitly stated as much. (See Pl.’s Mot. 

at 11-12; Schlesinger Decl. ¶5, Ex. 1.) In opposition, Defendants argue that “[e]ven though 

Plaintiff avers that it wishes to have no control over the litigation matters, it would seem to be 

complaining that Defendant withdrew from a case he ultimately decided was without merit, which 

is his professional duty.” (Defs.’ Opp’n at 22.) Complaining, however, is not the same as exerting 

control. In fact, the very act of complaining indicates a lack of control over the underlying 

litigation, and, therefore, Fast Trak’s actions do not rise to the level of champerty.

For the reasons set forth above, the Agreements are not usurious or champertous, and are, 

therefore, enforceable.

c. Merits of the breach of contract claim

In failing to oppose the motion for summary judgement on the merits of the breach of 

contract claim, and instead relying on the argument that the Agreements were unenforceable loans,

Defendants have waived this argument. (See Defs.’ Opp’n at 22.)

Nevertheless, the Court finds that Plaintiff has met its burden of producing sufficient 

evidence to affirmatively demonstrate that valid contracts were entered into, the condition 

precedent occurred in many cases, and that Defendants did not perform as agreed, which resulted 

in damages to Plaintiff in the form of nonpayment. Since Defendants have submitted no evidence 

in an attempt to establish the existence of a material factual dispute, the Court finds that no 

reasonable trier of fact could find other than for the moving party. 

Accordingly, the Court grants the motion for summary judgment on the breach of contract 

claim.

ii. Breach of Fiduciary Duty

Plaintiff’s third cause of action is for breach of fiduciary duty. (Compl. ¶¶ 25-29.) Again, 

Defendants sole argument is that there was no breach of fiduciary duty because the Agreements 

are not enforceable, such that no fiduciary duty was owed. (Defs.’ Opp’n at 23.) Specifically, 
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Defendants argue that they were “not holding money for Plaintiff. Plaintiff loaned money to 

Defendant.” Id. As discussed above, the Agreements are enforceable as purchase agreements and 

were not loans. See discussion supra Part III.B.i.a. Based on the undisputed fact that Sax signed 

the Agreements containing the fiduciary duty clause, if the Agreements are valid, Defendants 

owed a fiduciary duty. Defendants advance no other arguments nor do they identify any evidence

or legal authority to suggest that a fiduciary duty was not owed. Since their sole argument fails,

Defendants have waived any argument that they did not owe a fiduciary duty.

Accordingly, summary judgment must be granted in regards to the third cause of action.

C. Amount of Damages

Plaintiff claims that it is owed approximately $430,000. (Schlesinger Decl. ¶ 20.) At the 

hearing, Plaintiff clarified that it calculated that amount based on Defendants’ document 

production, which included several “disbursement” records, showing what Defendants purportedly

collected on cases, including the attorneys’ fees, costs, and the funds disbursed to the respective 

clients. (See Schlesinger Decl., Ex. 14.) While Plaintiff is unable to provide an amount certain at 

this time, it is undisputed that Defendants collected some monies and did not forward the proceeds 

to Plaintiff pursuant to the Agreements. For example, in the Gadow case, which served as both a 

primary and secondary case, Sax collected at least $79,800.00 in attorneys’ fees. Id. at 4. Based 

on the terms of the Gadow Agreement, signed on March 22, 2013, the payment schedule required 

a pay-off amount of $11,448.20 if the amount was paid on the third anniversary—March 22, 

2016—which has passed. (Schlesinger Decl., Ex. 1 at 2.) The payment schedule provides that the 

total pay-off amount increases by $450.00 for each additional six-month period. Id. Thus, at a 

minimum, since no payment has been made, it is undisputed that Plaintiff sustained damages in 

excess of $11,448.20. See id. It is also undisputed that funds were disbursed to clients that should 

have been held for Plaintiff pursuant to the terms of the Agreements signed by the respective 

clients, which required that funds not be disbursed to them “without first fully satisfying Fast 

Trak’s lien.” (See Schlesinger Decl., Ex. 1 at 6 (“Irrevocable Instructions to Counsel”), Ex. 1 at 8-

9 (“Acknowledgement by Counsel”).) Taken together, these facts are sufficient to satisfy the 

damages element of the breach of contract and breach of fiduciary duty claims.
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As discussed at the hearing, the Court will address the damages in more detail after the 

parties furnish supplemental briefing as ordered.

IV. CONCLUSION

In light of the foregoing, the Court GRANTS Plaintiff’s motion for summary judgment on 

the first and third causes of action.

All remaining trial and pretrial dates and deadlines are VACATED.

IT IS SO ORDERED.

Dated: May 11, 2018

__________________________________

KANDIS A. WESTMORE

United States Magistrate Judge