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.