Montana Impact Fee Class Action

This website contains information regarding a class action lawsuit. This website was created and is managed by the Class counsel and has not been endorsed by the City of Whitefish.
Beck, et al. v. City of Whitefish, Case No. CV 22-44-M-KLD

NOTICE OF CLASS ACTION SETTLEMENT
Beck, et al. v. City of Whitefish
Case No. CV 22-44-M-KLD
United States District Court for the District of Montana

THIS IS NOTICE OF A PROPOSED CLASS ACTION SETTLEMENT WHICH, IF APPROVED, WILL AFFECT YOUR RIGHTS AS A CLASS MEMBER.

The United States District Court for the District of Montana in the Missoula Division (the “Court”) authorized this notice. This is not a solicitation from a lawyer.

  • The City of Whitefish (the “City”) charges impact fees for development within Whitefish.  If applicable, these fees must be paid before a building permit is issued.
  • In 2022, several persons and entities (the “Plaintiffs”) who had paid impact fees to the City to develop their properties filed this lawsuit claiming that, from January 1, 2019, to December 31, 2023, the City charged excessive water and wastewater impact fees in violation of the United States Constitution and Montana law.  The City then joined its former impact fee consultant, Financial Consulting Solutions Group, Inc. (“FCS Group”), as a party to the lawsuit.
  • The Plaintiffs requested that this lawsuit be adjudicated as a class action.  On September 29, 2023, the Court entered an order certifying the lawsuit as a class action.  A class action is a case in which one or more persons sue on behalf of other people who have substantially similar claims.  Those people together are a “Class” and anyone within the Class is a “Class Member.”  Upon class certification, the Plaintiffs became the “Class Representatives” who are obligated to fairly and adequately represent the Class’s interests in this lawsuit.
  • In this lawsuit, initial class action notice letters were sent to identified potential Class Members in January of 2024, and potential Class Members were provided an opportunity to opt out of the Class and this lawsuit.  Those receiving notice were advised that any final judgment, whether favorable to the Class or against them, would be binding on all Class Members who do not opt out of the Class by requesting exclusion.
  • Before a Court decision on the merits in this case, the parties agreed to a proposed settlement of $1,400,000 (the “Settlement”) to resolve the lawsuit, of which $400,000 is to be paid by the City and $1,000,000 by FCS Group.  The Settlement cannot take effect without Court approval, after a hearing to decide whether the proposal is fair to the Class (the “Fairness Hearing”). 
  • The City and FCS Group deny all allegations of wrongdoing but are settling to avoid the expense and inconvenience of continuing to litigate the case.  The Plaintiffs, as Class Representatives, and the lawyers representing them (“Class Counsel”), believe the Settlement is in the best interests of the Class because it provides substantial compensation to the Class which Class Members would not receive if Plaintiffs lost the lawsuit or were only partially successful.  Additionally, the Settlement avoids any further expense and delay of pursuing the claims through trial and potential appeals.

Settlement Key Terms: 

Below is a summary of the Settlement’s key terms.  The full Settlement Agreement is available at http://montanaimpactfeeclassaction.com/settlement-agreement or by contacting Class Counsel.  The Settlement will not become effective unless the Court approves it after the Fairness Hearing.

Broadly speaking, the Settlement does three things: (A) provides each Class Member with payment if the Class Member takes action to deposit or cash their payment within a fixed deadline; (B) bars future Class Member lawsuits relating to the assessment and collection of impact fees in the City of Whitefish from January 1, 2019 to December 31, 2023; and (C) compensates Class Representatives for their service and Class Counsel for the fees, costs, and expenses incurred in this lawsuit.

  1. Payment to Class Members

If approved, the Settlement provides for payments to Class Members from the Settlement fund and sets forth how they will be determined and disbursed.  The process will be as follows:

  1. A portion of the $1,400,000 Settlement fund will first be disbursed or set aside to cover Class Representative service awards and attorneys’ fees and costs.
  2. A fixture count rebate will then be calculated for any Class Member with a development project that had been affected by a specific, admitted error in the way the City counted fixture units assigned to single-head standalone showers during the development permitting process.  These rebates will also be set aside from the rest of the Settlement fund.
  3. A pro-rata share of the remaining funds will then be calculated for each Class Member based upon the amount each Class Member paid the City in water and wastewater impact fees.
  4. Settlement payment checks will be issued to each Class Member and delivered to their last known mailing address via U.S. certified mail.  Each Settlement check amount will reflect the sum of the Class Member’s fixture count rebate, if any, and the Class Member’s pro-rata share of the Settlement fund.
  5. Class Members will be subject to a deadline for cashing/depositing their Settlement checks.

For more information, a comprehensive description of the payment process can be found in the Settlement Agreement.

  1. Payment to Class Members

If approved, the Settlement will release the City and FCS Group from liability for all claims by Class Members relating to any impact fees assessed and collected pursuant to the City’s Resolutions 18-44 and 19-15, effective from January 1, 2019, to December 31, 2023.  This release encompasses all types of claims that could be made through the courts or directly with the City related to these impact fees.

  1. Class Representatives’ Service Awards and Attorneys’ Fees and Costs

From the Settlement fund, service awards are being requested in the amount of $3,500 per Class Representative in recognition of their time, efforts, and other contributions in litigating this class action.  These service awards will be funded from the $1,400,000 Settlement fund.  With four Class Representatives, the total amount in requested service award payments from the Settlement fund is $14,000.

Attorneys’ fees are being requested in the amount of $466,666.67—one-third (1/3) of the Settlement recovery.  All costs and expenses incurred by Class Counsel in litigating this class action are also being requested in an amount not to exceed $175,000.  These requested fees, costs, and expenses are consistent with the fee arrangement reached between the Class Representatives and Class Counsel at the outset of litigation and will be funded from the $1,400,000 Settlement fund.

The City and FCS Group do not oppose these requests for the Class Representatives’ service awards and Class Counsel’s fees and costs.  However, approval of the Settlement is not contingent upon Class Counsel receiving the exact fees and costs requested.  The Court, in its discretion, may choose to adjust these amounts which would impact the Settlement payment amounts ultimately received by each Settlement Class Member.

YOUR OPTIONS AND LEGAL RIGHTS WITH RESPECT TO THE PROPOSED SETTLEMENT:

  1. If you are not satisfied with the proposed Settlement, you may object and explain why you are dissatisfied by completely filling out and submitting a “SETTLEMENT OBJECTION FORM” on or before October 25, 2024.  Objections will be presented to and considered by the Court in deciding whether to approve the Settlement.  Any Class Member who does not file a timely and adequate objection waives the right to object to the proposed settlement or be heard at the Fairness Hearing and is forever barred from objecting to the Settlement.
  2. If you submit an objection to the Settlement, you or an attorney you have obtained to speak on your behalf can attend the Fairness Hearing on November 19, 2024, at 10:30 a.m. at the Russell Smith Courthouse, 201 E. Broadway St., Missoula, MT 59802, and make a statement in opposition to the Settlement.
  3. If you are satisfied with the proposed Settlement, you do not need to do anything at this time.  However, if you have not done so already, please fill out and submit a “CLAIM INFORMATION FORM” to ensure Class Counsel has accurate payee information and a current mailing address to which your Settlement payment can be sent if the Settlement is approved.
  4. If the Court approves the Settlement following the Fairness Hearing, whether you objected or not, a Settlement payment will be sent to your last known mailing address and you will be subject to the Settlement’s terms, including the liability release.  Settlement payment checks will expire if not cashed or deposited within ninety (90) days of their date of issue.  To the extent your Settlement payment is not cashed within ninety (90) days of the date of issue, Class Counsel will attempt to contact you regarding how to obtain a reissued check that will expire within sixty (60) days of the date of reissue.  After that point, any unrealized Settlement payment will no longer be available to you and will revert to the Montana Justice Foundation, a non-profit organization.

* * *

Objection Forms may be completed and submitted by:

(1)       Filling out an electronic version on the class action website (https://montanaimpactfeeclassaction.com/objection-form);

or

(2)       Filling out an enclosed paper version and emailing a scanned copy to info@montanaimpactfeeclassaction.comor mailing it to Class Counsel at P.O. Box 2325, Great Falls, MT 59403.


Class Action Administrator
Kovacich Snipes Johnson PC
P.O. Box 2325
Great Falls, MT 59403