Billing Rates 2021: Multipliers make good fee awards even better

Sometimes, the hourly rate just isn’t enough.

In some cases, whether by contract or statute, the prevailing party is able to recover its attorneys’ fees from the other side. Normally, such awards are based on the so-called “lodestar” amount of the hours the prevailing attorneys spent on the case multiplied by their normal hourly fee.

But every so often, courts agree to add another layer of multiplication, boosting the final award to recognize a particularly tough case.

The seminal case on multipliers, the Missouri Supreme Court’s 2013 opinion in Berry v. Volkswagen Group of America Inc., noted that such enhancements should be used only in “rare or exceptional circumstances.” Nonetheless, Missouri’s appellate courts approved of at least three such multipliers in 2021.

In February, the Court of Appeals Eastern District affirmed a $5.6 million judgment against a St. Louis gas station — including attorneys’ fees awarded at triple the normal rate.

Christopher Westmoreland had alleged that his gas station went out of business after a competitor, Midwest St. Louis LLC, regularly sold fuel below cost. He sued under the Missouri Motor Fuel Marketing Act, a seldom-used state law designed to protect competition in the retail fuel market.

A St. Louis jury awarded Westmoreland $1.8 million. Judge Elizabeth Hogan later tripled that amount as required by the statute, which also provided for the prevailing party to recover attorneys’ fees.

According to the opinion, Westmoreland’s trial attorney, Jeremy Gogel, had expended 165 hours on the case at an hourly rate of $400. Hogan approximately tripled that lodestar amount to $200,000, remarking that it was “a unique case, one that not many attorneys would take on a contingent-fee basis.”

The Eastern District agreed with that analysis and also granted Westmoreland his attorneys’ fees in connection with the appeal. In an unusual move, the appeals court itself awarded the $61,800 in additional fees rather than remand it to the trial court for a determination, as the appellate attorney’s $250 hourly rate was lower than the rate the trial court already had found to be reasonable in the underlying case.

In May, the Eastern District also affirmed an enhanced fee award for an employee terminated from Harris-Stowe State University, despite the school’s argument that the jury’s mixed verdict didn’t warrant such an award.

Lynne Harrison, a former director of the university’s department of public safety, claimed her supervisor created a hostile work environment. A St. Louis jury mostly sided with the defendants, but it found in favor of Harrison on her claim of retaliatory discharge against the University and awarded her $32,000 in damages.

After trial, Harrison’s lawyers sought nearly $700,000 in attorneys’ fees, with a 1.5 multiplier that would have boosted the amount to more than $1 million. According to the Eastern District, Judge Christopher E. McGraugh found the request “astonishing.” But after paring back the number of hours billed, the judge said a multiplier of 1.25 was appropriate. The total fee award was about $464,000.

Harris-Stowe argued that the plaintiff prevailed on just one of her six claims and that the fee amount was unreasonable. The appeals court, however, noted that the judge already had trimmed the award to 56 percent less than the total amount Harrison’s attorneys, Jeremy Hollingshead and Nicholas Dudley, had requested.

The court remanded the case for a determination of additional fees for the appeal; that request is still pending.

In September, the Court of Appeals Western District affirmed a multiplied award of attorneys’ fees for a former correctional official, despite arguments from the state that the judge had failed to explain her reasoning.

A Jackson County jury awarded Shelley Gray $350,000 on claims that she faced retaliation for challenging a policy that discouraged employees from taking family and medical leave.

After trial, Grey’s attorney at the Lunceford Law Firm in Lee’s Summit and Playter Trial Lawyers in Kansas City initially sought more than $500,000. Judge Justine Del Muro disallowed some of the charges but also found it “reasonable” to apply a 1.5 multiplier, resulting in a fee award of more than $468,000.

The Western District argued that the judge’s explanation was too bare bones to justify the increase and that the attorneys should get no more than the $312,000 lodestar amount that De Muro had calculated. But the appeals court said the department never made that argument to the judge and declined to entertain the challenge on appeal.

“Simply arguing that the court failed to explain the award is insufficient where the opportunity to obtain a more thorough explanation was available,” the court said.

The appeals court also granted the plaintiffs their fees for the appeal. That motion is pending in Jackson County.

However, not everyone who has sought an enhanced fee award in the last year has received it.

A federal jury in the Western District of Missouri awarded $4.9 million to Rosemary Salerno after she was terminated as manager of the Zona Rosa shopping center in Kansas City. Missouri Lawyers Media ranked as the fifth largest plaintiffs’ verdict of 2020, though the award was reduced to about $940,000 after trial due to a state cap on some of the damages.

Salerno’s attorneys at Siro Smith Dickson sought to recover their fees. In March, Judge Beth Phillips agreed to part of the request, turning aside complaints from Zona Rosa about the hourly rates but agreeing to reduce the award by 5 percent to account for claims on which they lost at trial.

Phillips also declined to apply any sort of modifier, writing that the fact that the firm took the case on a contingency fee basis wasn’t enough to justify an enhancement.

“The Court has no basis for concluding that an enhancement is necessary to encourage lawyers to take cases in this area of the law, and its experience suggests otherwise,” she wrote.

Still, the fee award totaled $518,000, plus more than $32,000 in interest and costs.

The cases are Westmoreland v. Midwest St. Louis, ED107787, Harrison v. Harris-Stowe State University, ED109012, Gray v. Missouri Department of Corrections, WD83739, and Salerno v. MPI Management LLC, 4:19-cv-00145.