DISTRICT COURT OF APPEAL

SECOND DISTRICT

 

NEW WORLD COMMUNICATIONS

OF TAMPA, INC.,

 

Appellant,

Case No. 2D01-529

 

JANE AKRE,

 

Appellee.

/

 

 

APPELLEE=S MOTION FOR REHEARING,

MOTION FOR CLARIFICATION,

MOTION FOR REHEARING EN BANC,

AND MOTION FOR CERTIFICATION OF

QUESTION OF GREAT PUBLIC IMPORTANCE

 

Appellee, Jane Akre (AAkre@), files this Motion for Rehearing, Motion for Clarification, Motion for Rehearing En Banc, and Motion for Certification of Question of Great Public Importance pursuant to Florida Rules of Appellate Procedure 9.330 and 9.331. Akre seeks relief because the panel=s decision to summarily award attorney=s fees against the plaintiff/appellee employee and in favor of the defendant/appellant employer creates erroneous precedent that will undermine, if not eviscerate, the Florida Whistle-Blower Act.

BACKGROUND

The Court=s reversal of Akre=s judgment


Akre, a former investigative journalist for appellant, WTVT, brought this case under the Florida Whistle-Blower Act, ' 448.101, et seq., Fla. Stat. The jury found that WTVT fired Akre because she threatened to disclose to the Federal Communications Commission the station=s attempt to suppress and distort a news report she was preparing. The report addressed the potentially harmful effects of a bovine growth hormone manufactured by Monsanto, one of WTVT=s advertisers. The jury found that Akre had a good faith belief the station=s conduct violated the Federal Communications Commission=s (A FCC@) Anews distortion policy,@ and that WTVT terminated her because she threatened to report this conduct to the FCC. The jury awarded Akre $425,000 in damages.

The panel issued a decision reversing Akre=s judgment. See Ex. A. The panel did not exonerate WTVT of retaliatory discharge. Instead, in a case of first impression, it reversed Akre=s judgment on a legal ground: that the FCC=s Anews distortion policy@ was not a Alaw, rule or regulation@ within the meaning of Florida Statutes section 448.102(1). Based on this interpretation of the Whistle-Blower Act, the panel held that Akre=s complaint Afailed to state a claim under the whistle-blower=s statute.@ The panel=s opinion is the first reported decision to address this issue.

In reversing, the panel overturned a number of rulings by the trial court that the news distortion policy is a Alaw, rule or regulation.@ WTVT had argued to the contrary in its motion to dismiss Akre=s complaint, in its motion for summary judgment, in its motions for directed verdict, in its motion for judgment notwithstanding the verdict, and in its motion for new trial. The trial judges who handled this case denied all of these motions.


The Court=s award of attorney=s fees to Appellant

After issuing its decision, the panel entered a separate order summarily granting attorney=s fees to WTVT. See Ex. B. WTVT=s motion for fees was based on section 448.104 of the Act, which states that A[a] court may award reasonable attorney=s fees . . . to the prevailing party.@ (Emphasis added.) The order states only that AAppellant=s motion for attorney=s fees is granted in an amount to be set by the trial court.@ Ex. B.

In opposing WTVT=s motion for attorney=s fees, Akre argued, among other things, that (1) the Whistle-Blower Act is a remedial statute that must be liberally construed, (2) Florida courts have interpreted discretionary fee provisions in remedial laws to authorize fee recovery by a defendant only when a plaintiff=s suit is frivolous or in bad faith, and (3) Akre=s action was not frivolous or in bad faith.

WTVT filed a reply to Akre=s response. WTVT argued, among other things, that (1) section 448.104 does not state a different standard for awarding fees to prevailing plaintiffs and defendants, and (2) the Florida legislature specifically rejected the use of a more stringent standard for prevailing defendants.

 

I. MOTION FOR REHEARING


Akre respectfully urges that this Court has misapprehended and overlooked the legislative intent behind the attorney=s fee provision of the Whistle-Blower Act, as well as the harsh consequences its ground-breaking order will have for employees who seek to enforce the Act. The Whistle-Blower Act is a remedial statute designed Ato protect private employees who report or refuse to assist employers who violate laws enacted to protect the public.@ Golf Channel v. Jenkins, 752 So.2d 561, 562 (Fla. 2000) (quoting Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla. 1994)). The Act Ashould be liberally construed in favor of granting access to the remedy provided by the Legislature.@ Id. at 565-66. The Florida Supreme Court has repeatedly rejected attempts to construe Florida=s whistle-blower laws narrowly. See, e.g., id.; Irven v. Dep=t of Health & Rehabilitative Servs., 790 So.2d 403, 405 (Fla. 2001); Martin County v. Edenfield, 609 So.2d 27, 29 (Fla. 1992).

Florida courts consistently interpret discretionary fee provisions in remedial statutes to deny fees to a prevailing defendant unless the plaintiff=s suit is frivolous. For example, in Village of Palm Springs v. Retirement Builders, Inc., 396 So.2d 196 (Fla. 4th DCA 1981), then-Judge Anstead construed a Florida consumer protection law providing that Athe court in its discretion may allow the prevailing party . . . a reasonable attorney=s fee.@ The court held that fees should be denied to a prevailing defendant unless the plaintiff=s action is Afrivolous, unreasonable, without foundation@ or in Abad faith.@ Id. at 199. The same result was reached in National Union of Hosp. & Health Care Employees v. Southeast Volusia Hosp. Dist., 436 So.2d 294 (Fla. 1st DCA 1983), where the court construed a discretionary fee provision contained in a Florida statute prohibiting unfair labor practices. Id. at 295-96.


In interpreting fee provisions in remedial statutes, Florida cases, like those cited above, have adopted the reasoning of the United States Supreme Court=s decision in Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978). In Christianburg, the Court held that it would frustrate the remedial purposes of Title VII to award fees to a prevailing defendant absent proof that the plaintiff=s suit was Afrivolous, unreasonable, or groundless.@ Id. at 422. Akre has found no decision by any Florida state court in which a discretionary fee provision in a remedial statute has been construed to award fees to a prevailing defendant where the plaintiff=s action was not frivolous.[1]

The panel=s decision to award fees in this case may have been influenced by an argument WTVT made in its reply to Akre=s response to the station=s motion for attorney=s fees. That reply argued that the Whistle-Blower Act=s legislative history Afatally undermined@ Akre=s assertion that an employer is entitled to fees only if the plaintiff=s action is frivolous or in bad faith. According to WTVT:


[T]he private Act=s legislative history demonstrates that the legislature rejected the very dual standard that Akre now seeks to impose. An early version of the private Act would indeed have required a prevailing defendant to show Athat an action brought by an employee under this act was without basis in law or in fact@ in order to recover fees. SB 74 at 3 (Fla. 1991). . . . But the legislature subsequently eliminated this dual standard, electing instead to treat plaintiffs and defendants equally under the language currently in place . . . demonstrating the legislature=s intent to have a single standard for the award of attorney=s fees.

 

Reply in Supp. of Mot. of Appellant WTVT for Appellate Attys= Fees at 2 (emphasis in original).

WTVT=s argument that in the Whistle-Blower Act the legislature intended to abandon the traditional Florida method of interpreting fee provisions in remedial statutes is refuted by the legislature=s own statement. Contrary to WTVT=s assertion, the fee provision that was proposed and rejected did not recite the traditional test under which either side might win fees but the burden on defendants is heavier, what WTVT calls a Adual standard.@ Instead, it statedCand the legislature rejectedCa rule that would have authorized the awarding of fees to employers only:

Section 4. Employer relief. B A court, in its discretion, may award reasonable attorney=s fees, court costs, and expenses to an employer if the court determines that an action brought by an employee under this act was without basis in law or in fact.

 

SB 74 at 3 (quoted in App. to Initial Br. of Appellant/Cross-Appellee at 10) (emphasis added).


The rejected language was replaced with a provision authorizing fees for both employees and employers. In doing so, the legislature used the standard language it ordinarily employs in remedial statutes that are intended to give courts the discretion to award fees to the prevailing party, the same language that imposes a more stringent test on prevailing defendants: A[a] court may award reasonable attorney=s fees . . . to the prevailing party.@ ' 448.104(1), Fla. Stat. (emphasis added).

The committee report explains the reason for this change. It states that the legislature=s purpose was to authorize fees for plaintiff employees, not to abandon the established Florida rule for interpreting discretionary fee provisions in remedial statutes:

The committee substitute provides for an award of reasonable attorney=s fees, court costs, and expenses to the prevailing party instead of limiting the availability of the award to just the employer.

 

Statement of Substantial Changes Contained in Committee Substitute for Senate Bill 74 (quoted in App. to Initial Br. of Appellant/Cross-Appellee at 16) (emphasis added).

In sum, WTVT has incorrectly stated the legislature=s intent. The legislature rectified a drafting error that would have made it impossible for prevailing employees to recover attorney=s fees. It corrected that error by adopting a traditional discretionary fee standard that, as discussed, the Florida courts apply to deny fees to defendants so long as the plaintiff=s action is not frivolous.


In arguing that it should be automatically entitled to fees just because it prevailed on appeal, WTVT emphasized that the Act does not on its face articulate different standards for plaintiffs and defendants. The same argument was rejected by the United States Supreme Court in its seminal decision in Christianburg. As the Court observed in that case, Athe permissive and discretionary language of the statute does not even invite, let alone require, such a mechanical construction.@ Id. at 418. The Court emphasized that there is a significant policy difference between awarding fees to a prevailing plaintiff after she proves the defendant violated the law and awarding fees to a defendant because the plaintiff ultimately fails to prove her non-frivolous case. When a plaintiff prevails, she is the Achosen instrument@ of the legislature vindicating public policy. See id. at 418-19. This reasoning applies with even greater force to the Whistle-Blower Act, where the employee acts to protect both her own interest and the public=s. See Golf Channel, 752 So.2d at 562 (the Act is intended to protect private employees who report or refuse to assist employers who violate laws enacted to protect the public). The panel should rehear its order and hold that WTVT=s motion for attorney=s fees is denied.

The panel should rehear its fee order for another compelling reason: the order will undermine, if not destroy, the willingness and ability of employees like Akre to blow the whistle on suspected illegal conduct. Akre=s action was not frivolous, and in the trial court it withstood numerous attempts by WTVT to have the case dismissed, to have it summarily adjudged, to have a verdict directed against Akre, and to have the jury=s verdict rejected. The specific legal issue on which WTVT won reversal was ruled on a number of times by different trial judges, always in Akre=s favor. The jury=s findings that Akre was retaliated against for threatening to blow the whistle and that she had a Agood faith@ belief that WTVT was violating the news distortion policy were not overturned on appeal.


If Akre is forced to bear WTVT=s fees and costs in this case, it is reasonably anticipated that her burden will be devastating. Although WTVT has not yet submitted evidence of its fees and costs, it is not unreasonable to anticipate that WTVT will claim those fees and costs are in the hundreds of thousands of dollars, if not in the millions. WTVT is an owned and operated subsidiary of Fox Televison. It was represented by numerous lawyers, including lead and assistant trial counsel from the prominent Washington, D.C. law firm of Williams & Connolly. The trial in this case took four and one-half weeks, and it followed extensive discovery.

The fee order in this case sends a dire warning to employees who are aware of wrongdoing and contemplate whistleblowing. Under this order, even if an employee blows the whistle in good faith, she will bear the risk that all litigation expenses will be shifted to her if her judgment is reversed for any reason. This appeal demonstrates that risk graphically. The trial judges below repeatedly considered the issue of whether the FCC=s news distortion policy was a Alaw, rule or regulation@ and repeatedly rejected WTVT=s contention that it was not. It is only because the panel has now concluded that the trial judges erred in their rulings on a technical legal issue of first impression that Akre has been ordered to pay attorney=s fees.


In the wake of the fee order in this appeal, it will be difficult for any attorney to advise an employee to bring an action under the Whistle-Blower Act and assume the risks that now flow from the strict Aloser pays@ rule the panel appears to have adopted. Whistle-blower actions are often factually and legally complex. The panel=s fee order exposes an employee, proceeding in good faith, to the risk of a crippling fee award if it is later determined that the trial court committed any error.

Akre accordingly asks this Court to rehear its fee order and deny WTVT attorney=s fees. WTVT=s fee claim rests on a mistaken interpretation of the Whistle-Blower Act. The adoption of WTVT=s interpretation will have devastating consequences for the Act=s future enforcement.

 

II. MOTION FOR CLARIFICATION

If the panel does not reverse its attorney=s fees order, Akre respectfully requests that it clarify the order by stating (1) the standard for awarding fees to a prevailing defendant in a whistle-blower action, and (2) how that standard applies to the facts of this case. Again, WTVT=s fee motion rests on the fact that it has now prevailed on appeal, not on the ground that Akre=s case or position on appeal was frivolous. The fee order articulates no reason for its conclusion. As there is no basis for finding Akre=s action was frivolous, nor even an argument by WTVT to that effect, the Court=s award appears to be based on the per se Aloser pays@ rule WTVT advocated.


Clarification of the standard governing fees for prevailing defendants under the Whistle-Blower Act will provide needed guidance to the trial court. An attorney=s fee motion is now pending in the trial court. It is anticipated that the fees requested by WTVT for the trial of this case will eclipse the fees it will request for appeal.[2] Finally, clarification of the standard for fee awards in favor of prevailing defendants in whistle-blower cases will facilitate further review of this critical issue by the Supreme Court of Florida, whether in this case or in a subsequent one.

 

III. MOTION FOR REHEARING EN BANC

AND STATEMENT OF COUNSEL

 

We, the undersigned attorneys, express a belief, based on a reasoned and studied professional judgment, that the panel decision is of exceptional importance. As discussed above, the panel=s award of fees to the defendant in this whistle-blower case will undermine if not eliminate the willingness and ability of employees to bring actions under the Whistle-Blower Act. For this reason, Akre submits that the matter should be considered by the court en banc.

 

IV. MOTION FOR CERTIFICATION OF QUESTION

OF GREAT PUBLIC IMPORTANCE

 


For the above reasons, Akre respectfully suggests that the question of whether a prevailing defendant should be awarded attorney=s fees in a non-frivolous action under the Whistle-Blower Act is a question of great public importance within the meaning of Article V, ' 4(2) of the Florida Constitution, and Rule 9.030(a)(2)(v), Florida Rules of Appellate Procedure. In the event the fee order against Akre is allowed to stand, Akre requests that the following question be certified to the Florida Supreme Court:

Whether an employer who prevails in an action brought under the Florida Whistle-Blower Act, ' 448.101, et seq., Fla. Stat., may recover attorneys= fees from the employee who brings an action that is not frivolous, unreasonable, without foundation, or in bad faith?

 

Akre=s statement of the question to be certified is based on the fee standard articulated by then-Judge Anstead in Village of Palm Springs v. Retirement Builders, Inc., 396 So.2d 196, 199 (Fla. 4th DCA 1981).

Respectfully submitted,

 

 

____________________________ ____________________________________

Michael S. Finch Stuart C. Markman (FBN 322571)

(FBN 937304) Robert W. Ritsch, Of Counsel (FBN 780375)

1401 61st Street South Katherine Earle Yanes (FBN 159727)

St. Petersburg, FL 33707 Kynes, Markman & Felman, P.A.

Phone: (727) 562-7862 Post Office Box 3396

Tampa, FL 33601

Phone: (813) 229-111

 

Counsel for Appellee Jane Akre


CERTIFICATE OF SERVICE

I CERTIFY that a copy of the foregoing has been furnished by U.S. Mail, this 27th day of February, 2003, to:

 


William E. McDaniels, Esq.

Thomas G. Hentoff, Esq.

Williams & Connolly LLP

725 Twelfth Street, N.W.

Washington, DC 20005

 

Patricia Fields Anderson, Esq.

Patricia Fields Anderson, P.A.

447 Third Avenue N., Suite 405

St. Petersburg, FL 33701

 

Gary D. Roberts, Esq.

Theodore A. Russell, Esq.

Fox Group Legal Dep=t

2121 Avenue of the Stars, Suite 700

Los Angeles, CA 90067

 

Lora J. Smeltzly, Esq.

255 15th Avenue N.E.

St. Petersburg, FL 33704

 

Robert Corn-Revere, Esq.

Brad C. Deutsch, Esq.

Hogan & Hartson, L.L.P.

555 Thirteenth Street, N.W.

Washington, DC 20004

 

Roy C. Young, Esq.

Young, van Assenderp,

Varnadoe & Anderson, P.A.

Gallie=s Hall

225 South Adams Street

Tallahassee, FL 32301


 

 

____________________________________

Stuart C. Markman


INDEX

 

 

 

 

Opinion filed February 14, 2003................................................................ Exhibit A

 

 

 

 

Order dated February 17, 2003, granting Appellant=s

 

motion for attorney=s fees........................................................................ Exhibit B



[1]As persuasive authority, WTVT relied on the federal trial court=s decision in Gamb v. Hilton Hotels Corp., 1997 WL 893874 (M.D. Fla. Sept. 26, 1997), which states that Aprevailing defendants should not be treated differently from prevailing plaintiffs in attorneys= fees determinations in Florida whistleblower cases.@ Gamb also stated, however, that it would award fees to the defendant in that case Aeven if frivolity were the correct standard.@ 1997 WL 893874, *2. In any event, a more recent federal district court decision interpreting the Act has followed the Florida approach that Akre urged. In Stewart v. Town of Zolfo, 1998 WL 776848 (M.D. Fla. Sept. 19, 1998), the court was asked to award attorney=s fees to a defendant that succeeded in having the plaintiff=s whistle-blower claim dismissed. Id. at *3. The district court exercised its statutory discretion and denied fees and costs to the defendant because the plaintiff acted in Agood faith@ in bringing an action of Aarguable merit.@ Id.

[2]In addition, under section 448.104, the same discretionary standard applies to awards of costs, and it is Akre=s position that WTVT should not be awarded appellate costs for the same reasons recited here. The issues of appellate and trial costs are handled in the first instance by the trial court.