Eastern District Affirms Attorney Not Required To Meet All Three Factors For Court To Award Multiplier In Whistle Blower Case

Warren-Cook was employed by the Missouri Department of Public Safety (DPS) in the State Emergency Management Agency (SEMA).  In August of 2017 Warren-Cook commenced an action against DPS, Ernie Rhodes the Director of SEMA, and Todd Farley who was Warren-Cook’s supervisor.  Warren-Cook alleged violations of the public employee whistleblower statute, Section 105.055 and the Missouri Human Rights Act (MHRA).  A jury found against Rhodes and Farly on Warren-Cook’s whistleblower claims and awarded $85,000 in compensatory damages (Warren-Cook abandoned her whistleblower claim against DPS).  The trial court entered a judgment for Warren-Cook in the amount of $85,000, plus post-judgment interest accruing at a 7.5 percent rate.  Warren-Cook filed a Motion to Amend Judgment To Award Attorneys’ Fees and Costs and the trial subsequently amended the judgment in favor of Warren-Cook on her whistleblower claims for a total judgment of $668,252.30, plus post judgment interest at a rate of 8.25%. DPS, Farley, and Rhodes appealed a 1.5 multiplier applied by the trial court.

Section 105.055.7(4) authorizes an award of “reasonable attorney fees” to a complainant. Following the determination of the lodestar amount, trial courts may consider whether enhancement of that amount by “a multiplier is necessary to ensure a market fee that compensated counsel for taking the case in lieu of working less risky cases on an hourly basis.” 

The Missouri Supreme Court in Berry v. Volkswagen, 397 S.W.3d, 425,433 (Mo. Banc 2013) established that there are three factors trial courts should use in determining whether to apply a multiplier: (1) “the fee to be received by . . . counsel was always contingent,” (2) “taking this case precluded . . . counsel from accepting other employment that would have been less risky” and (3) “the time required by the demands of preparing this cause for trial delayed work on . . . counsel’s other work.” 

Farley and Rhodes argued that Warren-Cook did not met the second factor in Berry v. Volkswagon but the Eastern District rejected that it was necessary to satisfy all three factors.  The Eastern District advised that in Kelly v. Department of Correction the court concluded that 

[T]he foregoing three factors were not held to be strict requirements or elements requiring the absence of any one element to preclude the application of a multiplier. Rather, reading Berry (and its progeny) in proper context, we believe that each case should be decided on a case-by case basis, with due regard given to the three aforementioned factors relied upon by the trial court in Berry. Therefore, we reject a reading of Berry whereby these three factors are deemed requirements, as the [DOC] suggests.

The Eastern District concluded that the trial court had not abused its discretion in applying the 1.5 multiplier.  Warren-Cook v. Missouri Department of Public Safety, (WD85927, 4/9/2024)

US Bans Noncompete Agreements For Nearly All Jobs

NPR recently covered an interesting issue.  The Federal Trade Commission voted to ban most employment agreements that prevent workers from joining competing businesses or launching ones of their own.  The Federal Trade Commission found that noncompete agreements resulted in employees having to work in abusive workplaces or with organization whose religious principles conflicted with their own.  There is an exception for existing noncompete agreements that companies have negotiated with senior executives. Federal Trade Commission NPR

Lack Of Standing When Homeowner Violated Restrictive Covenants

The Eastern District Court of Appeals reviewed a trial court’s decision to grant a permanent injunction.  The trial court granted a permanent injunction that required the removal of solar panels from a roof because their installation violated the subdivisions Covenants, Conditions and Restrictions and the homeowner altered her roof without the approval of the association or its trustees.  The action was brought by the trustees.  The Eastern District reversed the permanent injunction on the grounds that the trustees that sought the permanent injunction were no longer trustees of the subdivision and had no authority with respect to the enforcement of the Declarations.

At issue in this case was not whether the homeowner altered the roof but an issue of standing.  The Eastern District examined when an association has standing.  In Missouri “an association has standing to assert a cause of action on behalf of its members if: (1) its members would otherwise have standing to bring suit in their own right, (2) the interest it seeks to protect is germane to the organization’s purpose; and (3) neither the claim nor the relief requested requires the participation of individual members in the lawsuit.” Hoag v. McBride & Son Inv. Co., Inc., 967 S.W.2d 157, 171 (Mo. App. E.D. 1998).

The court then examined the Declarations related to the development.  In the development’s Declaration the trustee’s authority ended when the last property in the development was sold.  Since all the lots in the development had been sold the trustees lost their standing to bring an action for an injunction.  Kallash v. Bruner-Jones, (ED111400, 3/12/2024)

States Lack The Authority To Use Section 3 Of The Fourteenth Amendment To Remove Federal Officeholder Candidates From The Ballot

Six Colorado voters filed a petition in Colorado state courts contending that Section 3 of the Fourteenth Amendment to the Constitution prohibits Donald Trump from becoming President again and is therefore ineligible to appear on the state ballot.  The Supreme Court held that the Constitution makes Congress responsible for enforcing Section 3 against federal officeholders and candidates and therefore Colorado could not exclude Donald Trump from the primary ballot.  Trump v. Anderson, (SCOTUS 23-719, 2/08/2024)

Subsequent Administrative Action Did Not Render Issue Moot 

Yonas Fikre, is a U. S. citizen and Sudanese emigree, brought suit alleging that the government placed him on the No Fly List unlawfully. Mr. Fikre alleged that he traveled from his home in Portland, Oregon to Sudan in 2009.  While in Sudan Mr. Fikre was told he could not return to the United States because the government had been placed him on the No Fly List. The two agents that informed him he was on the No Fly List questioned him extensively about the Portland mosque he attended, and they offered to take steps to remove him from the No Fly List if he agreed to become an FBI informant. Mr. Fikre refused.  Eventually, Mr. Fikre traveled to Sweden, where he filed this suit, alleging that the government had violated his rights to procedural due process by failing to provide either meaningful notice of his addition to the No Fly List or any appropriate way to secure redress. He further alleged that the government had placed him on the list for constitutionally impermissible reasons related to his race, national origin, and religious beliefs. Mr. Fikre sought, among other things, an injunction prohibiting the government from keeping him on the No Fly List and a declaratory judgment confirming the government had violated his rights. In May 2016, the government notified Mr. Fikre that he had been removed from the No Fly List and sought a dismissal of his suit in district court, arguing that its administrative action had rendered the case moot.  The district court agreed with the government, but the Ninth Circuit reversed the district court decision twice.  First, the Ninth Circuit found that a party seeking to moot a case based on its own voluntary cessation of challenged conduct must show that the conduct cannot “reasonably be expected to recur.” On the second occasion the Ninth Circuit held that the government had failed to meet its burden because the declaration did not disclose the conduct that landed Mr. Fikre on the No Fly List and did not ensure that he would not be placed back on the list for engaging in the same or similar conduct in the future. 

The Supreme Court stated that a defendant may not “automatically moot a case” by the simple expedient of suspending its challenged conduct after it is sued. Instead, a defendant’s “voluntary cessation of a challenged practice” will moot a case only if the defendant can show that the practice cannot “reasonably be expected to recur.” The government’s representation that it would not relist Mr. Fikre may mean that his past conduct is not enough to warrant relisting, that does not speak to whether the government might relist him if he engages in the same or similar conduct in the future. The government contended that because Mr. Fikre has been delisted since 2016 and has presumably interacted freely with his co-religionists during that time, it is unlikely he will face relisting in the future. The government’s position or statement is too insufficient to warrant dismissal. A defendant’s speculation about a plaintiff’s actions cannot make up for a lack of assurance about its own. The burden here is on the defendant to establish that it cannot reasonably be expected to resume its challenged conduct, and nothing the government offers here satisfies that formidable standard.  Federal Bureau of Investigation v Fikre, (SCOTUS 22-1178, 3/19/2024)

Building Permit Conditioned On Traffic Impact Fee 6^th Amendment Taking

The Supreme Court in Sheetz v. County of Eldorado reviewed whether fees authored by the County Board violated the takings clause of the 6^th Amendment.  

The County of El Dorado established certain fees be paid as a condition of receiving a building permit.  George Sheetz was seeking a residential building permit and was required to pay a $23,420 traffic impact fee.  The fee was part of a “General Plan” enacted by the County’s Board of Supervisors to address increasing demand for public services spurred by new development. The fee amount was not based on the costs of traffic impacts specifically attributable to Sheetz’s particular project, but rather was assessed according to a rate schedule that took into account the type of development and its location within the County. Sheetz paid the fee under protest and obtained the permit. He later sought relief in state court, claiming that conditioning the building permit on the payment of a traffic impact fee constituted an unlawful “exaction” of money in violation of the Takings Clause. The Takings Clause does not distinguish between legislative and administrative land-use permit conditions.  Sheetz’s argued that Nollan v. California Coastal Comm’n required the County to make an individualized determination that the fee imposed on him was necessary to offset traffic congestion attributable to his project. The County argued that Nollan was only applicable to permit conditions imposed on an ad hoc basis by administrators, not a fee that was imposed by Board-enacted legislation.

The Supreme Court reminded us that when the government wants to take private property for a public purpose, the Fifth Amendment’s Takings Clause requires the government to provide the owner “just compensation.” States have substantial authority to regulate land use, and a state law that merely restricts land use in a way “reasonably necessary to the effectuation of a substantial government purpose” is not a taking unless it saps too much of the property’s value or frustrates the owner’s investment backed expectations.  When the government withholds or conditions a building permit for reasons unrelated to its legitimate land-use interests, those actions amount to extortion.  Nollan and Dolan set out a out a two-part test modeled on the unconstitutional conditions doctrine. First, permit conditions must have an “essential nexus” to the government’s land-use interest, ensuring that the government is acting to further its stated purpose, not leveraging its permitting monopoly to exact private property without paying for it. Second, permit conditions must have “rough proportionality” to the development’s impact on the land-use interest and may not require a landowner to give up (or pay) more than is necessary to mitigate harms resulting from new development.

The Constitution provides “no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation.” Whether a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development is an issue for the state courts to consider.  The court vacated and remanded the matter.  Sheetz v. County Of El Dorado, (SCOTUS 22-1074. 3/12/2024)