Post on 07-Jan-2017
transcript
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PLAINTIFFS CARA BARBER,MELISSA JONES, MELISSASTREETER, KATIE ECKROTH, BOBBARBER, TIM JONES, and RYANECKROTH On Behalf of Themselvesand All Others Similarly Situated,
Class Plaintiffs,
vs.
OHANA MILITARY COMMUNITIES,LLC, FOREST CITY RESIDENTIALMANAGEMENT, INC.; and DOEDEFENDANTS 1-10,
Defendants.
CIV NO 14-00217 HG-KSC
MEMORANDUM IN SUPPORT OFMOTION
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Page
I. INTRODUCTION ......................................................................................... 1
II. FACTUAL AND PROCEDURAL BACKGROUND .................................. 3
A. The Historical Use of OCPs on Oahu .................................................. 3
B. The Treatment of OCPs at MCBH ...................................................... 5
C. The Settlement Agreement .................................................................. 7
III. POST-SETTLEMENT PUBLICATIONS MADE BY CARABARBER...................................................................................................... 10
A. Ms. Barber's May 3, 2016 Blog Entry .............................................. 12
1. Ms. Barber Falsely Claims that "Contamination Levels"at MCBH "Remain at Least 20 Times Higher Than EPASafety Recommendations" ...................................................... 12
2. Ms. Barber Falsely Claims that Defendants Did NotRemove Soils Because it Was Too Expensive ........................ 14
B. Ms. Barber's and Her Former Attorneys' May 12, 2016 BlogEntry................................................................................................... 15
C. Ms. Barber's Second May 12, 2016 Blog Entry ............................... 16
D. Ms. Barber's May 13, 2016 Blog Entry ............................................ 18
E. Ms. Barber's May 16, 2016 Blog Entry ............................................ 21
F. Ms. Barber's May 29, 2016 Blog Entry ............................................22
G. In Addition to Her B1og Posts, Ms. Barber Has Also BeenMaking False and Misleading Statements on Social Media ..............23
IV. THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTIONREQUIRING THE IMMEDIATE REMOVAL OF ALL OFMS. BARBER'S POST-SETTLEMENT BLOG AND SOCIALMEDIAPOSTS ............................................................................................ 26
A. Defendants Are Likely to Prevail on the Merits Because ThereIs No Evidentiary Support for Plaintiffs' Statements ........................ 27
1
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TABLE OF CONTENTS(continued)
Page
B. There Will Be Irreparable Injury Because Ms. Barber IsHarming Defendants' Reputation and Encouraging BaselessLawsuits............................................................................................. 28
C. The Balance of Equities Favors Defendants ..................................... 30
D. The Public Interest Strongly Favors a Preliminary Injunction.......... 31
V. THE COURT SHOULD ENTER AN ORDER TO SHOW CAUSEWHY MS. BARBER SHOULD NOT BE SANCTIONED FORVIOLATING THE TERMS OF THE SETTLEMENT AGREEMENT..... 33
VI. CONCLUSION ............................................................................................36
ii
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•; ~ 1'
Pages)CASES
Baku v. Ku~itzky,95 F. Supp. 3d 52, 57-58 (D. Mass. 2015) ......................................................... 28
Beame~ v. Nishiki,66 Haw. 572, 670 P.2d 1264 (1983) .................................................................. 28
MySpace, Inc. v. Wallace,498 F. Supp. 2d 1293 (C.D. Cal. 2007) ....................................................... 28, 29
Rent A-Center, Inc. v. Canyon Television &Appliance Rental, Inc.,944 F.Zd 597 (9th Cir. 1991) .............................................................................. 28
Shell Offshore, Inc. v. G~eenpeace, Inc.,709 F.3d 1281 (9th Cir. 2013) ...................................................................... 26, 30
Smallwood v. NCsoft Copp.,730 F. Supp. 2d 1213 (D Haw. 2010) ................................................................ 27
Stuhlba~g Intl Sales Co. v. John D. Bush & Co.,240 F.3d 832 (9th Cir. 2001) .............................................................................. 28
Wilson v. Freitas,121 Hawaii 120, 214 P.3d 1110 (App. 2009) ................................................... 27
Winter v. Nat. Res. Def. Council, Inc.,555 U.S. 7 (2008) .........................................................................................26, 30
OT~IER AUTHORITIES
DOH, Evaluation of EnviYonmental Hazards at Sites with Contaminated Soiland G~oundwate~, Vol. 1, §§ 2.1, 2.4.1 (Fall 201 l; rev. Jan. 2012) ............... 4, 5
Restatement of Torts ......................................................................................... 27, 28
iii
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Pages)RULES
Federal Rules of Civil Procedure Rule 65 ............................................................... 26
Hawaii Rules of Professional ConductRule 7.1 .............................................................................................................. 31Rule 7.3 (c} ......................................................................................................... 32
iv
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,1' ~ i ','!' ~ t ~
'11 i
This motion seeks the immediate intervention of this Court to enjoin
a new smear campaign launched by Plaintiff Cara Barber against Defendants
Ghana Military Communities, LLC ("Ghana") and Forest City Residential
Management, LLC, successor by conversion to Forest City Residential
Management, Inc. (collectively, "Defendants"). While Ms. Barber has long made
a practice of posting exaggerated and disingenuous statements to social media, her
new campaign is dangerously untrue and misleading. Her new posts portray
Defendants as malicious entities engaged in a scheme to intentionally expose
military families "some of the most toxic ...chemicals known to man."
Ms. Barber's new campaign was coordinated with her former attorneys in an
apparent attempt to solicit clients using means that would otiherwise violate the
Hawaii Rules of Professional Conduct ("HRPC"). Indeed, the purpose of the
campaign appears to be to spread false information and fear related to MCBH
housing in an attempt to drive new clients to Ms. Barber's former attorneys. This
conduct is dangerous and damaging to both MCBH residents and Defendants, and
it should be immediately enjoined.
As just one example, Ms. Barber has made numerous posts claiming
that Defendants refused to undertake the "incredibly costly proposition of having
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to remove 18 inches of highly contaminated topsoil from hundreds of acres of
MCBH and PH neighborhoods and subsequently replacing it with ̀ clean fill'
before they could begin building earning rental income from the thousands of
homes they had planned ...." Elsewhere Ms. Barber claims Defendants were
"[u]nable or unwilling to afford the costs of removing 18 inches of contaminated
topsoil from these neighborhoods (hundreds of acres) and replacing it with clean
fill[.]" This is simply not true for the neighborhoods built by Ohana. Ohana
removed and replaced two-feet of soil from nearly every one of the homes it built
at Marine Corps Base Hawaii ("MCBH") (totaling approximately 1,300 homes).
Detailed closure reports document this process, and they were provided to
Ms. Barber during the litigation. There is absolutely no evidence suggesting that
these closure reports were somehow faked or that this work was not performed by
Ohana. These statements—and numerous other false statements made by
Ms. Barber—violate the terms of the Settlement Agreement, which prohibit
Ms. Barber from making "
The Settlement Agreement also prohibits Ms. Barber and her
attorneys from making ̀
" (Emphasis
added.) Ms. Barber has violated this provision by using her blog and social media
2
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accounts to create the impression that all MCBH residents are "eligible" for
significant settlement amounts that they can collect by simply contacting her
former attorneys and filing a claim. Indeed, both Ms. Barber and her attorneys
state in their solicitation communications that they believe that all "military
families living at MCBH from 2006 to at least 2014 have valid legal claims for
return of their [basic allowance for housing]," which for many residents could
exceed $100,000.
Perhaps even more egregiously, Plaintiffs violated the confidentiality
provision by claiming that Defendants have "refused" to conduct "post-
construction or confirmation sampling/testing."
Ms. Barber's misinformation campaign should be immediately
enjoined to prevent substantial irreparable harm to Defendants and MCBH
residents.
A. The Historical Use of OCPs on Oahu
In the initial complaint, and in subsequent amended complaints,
Plaintiffs argued that when the Marine Corps transferred control of its family
3
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housing stock to Ohana in 2006, the soils around the homes contained the organo-
chlorinated pesticides ("OCPs") chlordane, heptachlor, heptachlor epoxide, aldrin,
dieldrin, and endrin in excess of the Hawaii Department of Health's ("DOH")
Tier 1 Environmental Action Levels ("EALs"). See Sec. Amend. Compl. ("SAC"),
¶¶ 28, 33 (Dkt. No. 76). These OCPs were widely used for termite control
throughout the United States from the mid-1940s to the late 1980s. See, e.g.,
Whattoff Deci., Ex. L. Because Hawai`i's climate is very conducive to ground
termite infestation, the use of these pesticides was ubiquitous throughout Oahu
until the 1980s, when they were banned by the EPA. Id.1
DOH has established atwo-tiered system for analyzing sites with
OCPs. Tier 1 EALs are screening levels that are so low that sites with
contamination at these levels are considered safe for all circumstances without any
further analysis or remediation. See DOH, Evaluation of Environmental Hazards
at Sites with Contaminated Soil and G~oundwate~, Vol. 1, §§ 2.1, 2.4.1 (Fa11201 l;
rev. Jan. 2012) available at http://eha-web.doh.hawaii.gov/eha-
cma/documents/8935e423-25fb-46b9-adaa-fc0a207d5518 ("Evaluation of
Environmental Hazards").
' In 1977 alone, _150,000 pounds were used on Oahu for pest control. WhattoffDecl., Ex. M at 386; Ex. N at 1, 4.
r.'
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The purpose of the Tier 1 EALs is to allow site owners to quickly and
easily screen sites in order to determine whether further investigation is necessary.
See id. at vii. Because the Tier 1 EALs are designed to be rapid evaluation criteria,
"[e]xceeding the Tier 1 EAL for a specific chemical does not necessarily indicate
that the contamination poses significant environmental concerns, only that
additional evaluation is warranted." Id. at vii.
If a site has a Tier 1 exceedance, DOH requires asite-specific
evaluation to determine whether there are environmental hazards and whether any
action is necessary. See id., §§ 1.6, 3. As part of this evaluation, DOH and the site
owner will often create new Tier 2 EALs as an alternative to DOH's generic Tier 1
EALs. See, e.g., Poma Decl., Ex. B at 10-14. The Tier 2 EALs take into account
the nature of the substance at issue, the geography of the site, and the proposed use
for the site (among other issues), in order to create screening levels that more
accurately reflect conditions on the site. Id.
~. The Treatment of OCPs at MC~H
Ohana began its construction efforts in 2006. Because of the presence
of OCPs, Ohana created a Pesticide Soil Management Plan ("PSMP") governing
the handling of soil. See Poma Decl., Ex. B. The PSMP was approved by DOH on
March 23, 2007. See Poma Decl., Ex. C. The PSMP established site-specific
Tier 2 EALs as an alternative to DOH's generic Tier 1 EALs. See Poma Decl.,
5
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Ex. B at 10-14. These Tier 2 EALs are based upon the specific OCPs found at
MCBH, the geography of MCBH, and the intended use of the homes. See id. The
PSMP required that soil exceeding Tier 2 EALs either be removed or covered with
sufficient amounts of clean soil or pavement, depending upon where the soil was
located. See id. at 21-24. The Tier 2 EALs in the PSMP were between 3.27 and 4
times greater than the default Tier 1 EALs then in place:
OCPTier 1 EALin 2007
Tier 2 EAL inPSMP
Aldrin .029 .095Chlordane 1.6 5.4DDD and DDE 2.4 8.1DDT 1.7 5.7Dieldrin .03 .10Endrin 18 1$Heptachlor .11 .3 6He tachlor Expoxide .053 .18
See id. at 14. Notably, DOH revised many of its EALs in 2012, and the current
Tier 1 EALs are in many cases hzgher than the Tier 2 EALs in the PSMP. For
instance, the current Tier 1 aldrin EAL is .92 (almost 10 times greater than the Tier
2 EAL in the PSMP); the current Tier 1 chlordane EAL is 16 (almost three times
greater than the Tier 2 EAL in the PSMP); and the current dieldrin EAL is 1.5
(almost 15 times greater than the Tier 2 EAL in the PSMP). See Evaluation of
Environmental Hazards, Vol. 2, Table B-l.
2 All measurements are in mg/kg.
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Ultimately, however, the differences between the Ties 1 and Tier 2
EALs in the PSNfP aye of limited relevance. As discussed in more detail below,
because each of the neighborhoods built by Ohana contained at least one Tier 2
exceedance, the soil beneath and within two feet of the slabs of all the homes built
by Ohana was excavated to a depth of two feet below ground surface and/or
covered with two feet of clean fill. See Poma Decl., Exs. G - I. Clean fill from on-
site was used to replace the soil removed from beneath and around the slabs. In
other words, Ohana did not use its higher Tier 2 EALs to avoid ~emediation in any
of the neighborhoods.
C. The Settlement Agreement
In the SAC, Plaintiffs contended that the PSMP was not sufficiently
protective of their health and that Defendants did not properly disclose the
condition of the soil at MCBH. In February 2016, after two settlement conferences
with the Court, the parties entered into a settlement agreement
7
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The Settlement Agreement contains at least three clauses that are
relevant to the instant motion. First,
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0
Thud,
Beginning in or around May 2016, Plaintiff Cara Barber began a new
campaign against Defendants that involved numerous social media outlets,
10
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including her blog, htt~s://militaryfamiliesdeservesafehousing.
wordpress.com/, her Facebook account, and her YouTube account. This new
campaign was carefully timed to coincide with a new client solicitation letter sent
on May 9, 2016 by the law firms that represented Plaintiffs in this lawsuit (the
"Solicitation Letter"). See Whattoff Decl., Ex. Q.
The Solicitation Letter's generic salutation— "Dear Sir or Madam"
suggests it was widely distributed to current and former MCBH residents,
regardless of whether they had a prior relationship with Mr. Smith or Mr. Revere.
See id. Indeed, one commenter on Facebook asked whether the e-mail he received
was "a scam email?!" Whattoff Decl., Ex. R. The Solicitation Letter encouraged
recipients to "act quickly" and stated that "we are writing to inform you that you
should contact an attorney if you wish to pursue your potential legal claims against
Forest City." Whattoff Decl., Ex. Q. Regarding the likely outcome of those
claims, the attorneys stated: "We believe that military families living at MCBH
from 2006 to at least 2014 have valid legal claims for return of their [basic
allowance for housing] because of Forest City's failure to adequately disclose
pesticide contamination at MCBH, which is why we filed this case as a class
action." Id.
11
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A. Ms. Barber's May 3, 2016 flog Entry
1. Ms. Barber Falsely Claims that "Contamination Levels" atMCBH "Remain at beast 20 Times Higher Than EPASafety Recommendations"
In her first post-settlement blog entry, dated May 3, 2016 and entitled
"Undisputed Facts," Ms. Barber states: "Forest City, the Navy, Marine Corps,
Hawaii Department of Health (HDOH) and Hunt Companies know contamination
levels in MCBH and Pearl Harbor neighborhoods remain at least 20 times higher
than EPA safety recommendations, exposing residents, their children and pets
to much higher lifetime rates of cancer and other diseases." Whattoff Decl.,
Ex. S at 29 (emphasis original). Ms. Barber repeats this allegation later in the
entry: "At best, contamination levels in and around MCBH and Pearl Harbor
homes and yards are 20 times higher than EPA safety recommendations, exposing
residents and their children to much higher lifetime rates of cancer and many other
diseases." Id at 34
These claims are untrue. First, and as discussed in more detail below,
the soils around and underneath all of the homes built by Ohana were removed and
replaced with clean soils. Poma Decl., Exs. E - I. Thus, even if there had been
OCPs at levels "20 times higher than EPA safety recommendations" prior to
Ohana's construction, there is no evidence that the soils remained at those levels
following construction. Other neighborhoods were simply never treated with
12
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OCPs because they were first built after the ban on OCPs, or had post-remediation
testing to confirm they were below appropriate levels. Poma Dec1., Exs. J - K.
Second, there is no such thing as "EPA safety recommendations." Ms. Barber is
presumably referring to the United States Environmental Protection Agency's
("USEPA") Regional Screening Levels ("RSLs"). But referring to RSLs as "safety
recommendations" is dangerously misleading. Like the DOH EALs discussed
above, RSLs are used to determine whether a site warrants a second look, and they
are not "cleanup standards":
[RSLs] are used for site "screening" and as initialcleanup goals, if applicable. SLs are not de facto cleanupstandards and should not be applied as such. The SL'srole in site "screening" is to help identify areas,contaminants, and conditions that require further federalattention at a particular site. Generally, at sites wherecontaminant concentrations fall below SLs, no furtheraction or study is warranted .... CTiemicalconcentrations above the SL would not automaticallydesignate a site as "duty" or Nigger a response action;however, exceeding a SL suggests that further evaluationof the potential risks by site contaminants is appropriate.
SLs are generic screening values, not de facto cleanupstandards. Once the Baseline Risk Assessment (BLRA)is completed, site-specific risk-based remediation goalscan be derived using the BLRA results. The selection offinal cleanup goals may also include (Applicable orRelevant and Appropriate Requirements (ARARs) and tobe considered guidance (TBCs), as well as site-specificrisk-based goals.
13
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USEPA, Regional Screening Levels Frequent Questions, hops://www.epa•~ov/
risk/re~ional-screening-levels-frequent-questions-november-2015#FQl (Nov.
2015) (emphasis added); see also USEPA, Regional Screening Levels (RSLs),
hops://www.epa. Gov/risk/regional-screening-levels-rsls-users-wide-maw
(May 2016) ("It should be emphasized that SLs are not cleanup standards.")
(emphasis original). The USEPA guidelines state that RSLs should be modified to
meet site-specific conditions. See id.
2. Ms. Barber Falsely Claims that Defendants Did loot~2emove Soils Because it ~~6'as 'Too Expensive
Elsewhere in her first post-settlement blog entry, Ms. Barber states:
Unable or unwilling to afford the costs of removing 18inches of contaminated topsoil from these neighborhoods(hundreds of acres) and replacing it with clean fill, ForestCity, MCBH and the Navy asked Hawaii Department ofHealth (HDOH) to permit much higher contaminationlevels in MCBH and Pearl Harbor neighborhoods. ForestCity, the Navy and Marine Corps claimed they wouldinform all residents about the hazardous contaminationand serious health risks it posed and undertake manyother required precautions to protect human health andthe environment, if they were allowed to leavecontamination levels at least 20 times higher than EPAsafety recommendations. This is undisputed.
Ex. S at 33 (emphasis original). Not only is this statement "disputed," it is flatly
contradicted by the facts.
14
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Since construction activities began in 2006, Ohana demolished and
rebuilt approximately 1,300 housing units across three neighborhoods. Because at
least one home in each of these neighborhoods had a Tier 2 exceedance, Ohana
proceeded as conservatively as possible and removed the soil from beneath and
within two feet of the slabs of all homes to a depth of two feet below ground
surface, and replaced it with clean soil (or, in some areas, left the soil in place and
covered it with two feet of clean soil). See Poma Decl., Exs. G - I. In one
neighborhood, Ulupau, soil was excavated to a depth of four feet (rather than two)
and replaced with clean soil. See Poma Decl., Ex. H. There are detailed closure
reports that document this process, which Ms. Barber has had in her possession
since 2014. See Whattoff Decl., Exs. T - V.3 As with Ms. Barber's other
allegations, there is simply no evidence that supports Ms. Barber's claim that this
work did not take place.
B. Ms. Barber's and Her Former Attorneys' May 12, 2016 BlogEntry
The second post-settlement blog entry begins: "Attorneys Kyle
Smith and Terry Revere share this important legal update about the class
3 Defendants also rebuilt or renovated a small, ten-home neighborhood known asKapoho and a 23-home neighborhood with historic-preservation homes (Heleloa),both of which were reserved for the most senior officers. Because of the uniquenature of these two neighborhoods, soils for these 33 homes were handleddifferently. See Poma Decl., Exs. E - F.
15
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action lawsuit against Forest City (FC) and Ohara Military Communities
(OMC) for failing to disclose hazardous soil contamination fn MCB~I housing
..." Whattoff Decl., Ex. S at 25 (emphasis original). The blog then reposts, in its
entirety, the Solicitation Letter. The blog also includes contact information for
Mr. Smith, accompanied by a note from Ms. Barber stating that "All current and
former MCBH and Pearl Harbor residents who leased a home from Forest City are
welcome to contact the attorneys who represented us, Attorneys Kyle Smith and
Terry Revere." Id.
C. 1VIs. Barber's Second li~ay 12, 2016 ~ilog Entry
Ms. Barber made a second blog post on May 12, 2016 that begins:
"We've been fielding lots of great questions from residents who are learning about
the outcome of the class action lawsuit against Forest City and Ohara Military
Communities." Whattoff Decl., Ex. S at 17. Moreover, Ms. Barber requests
readers to contact her directly through private messaging. Id. at 27 ("If you have
any other questions we can help with, please feel free to PM the MCBH and Pearl
Harbor Housing Issues Facebook page or comment below."); Whattoff Decl., Ex.
W ("I tried to PM you, but it didn't give me that option. Please feel free to PM this
FB page or me (Cara Hooks Barber)."). These statements are telling for two
reasons. First, it further indicates that Ms. Barber is engaged in a coordinated
effort with her former attorneys to solicit new clients. Second, it strongly suggests
16
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that Plaintiffs are in violation of the confidentiality provision of the Settlement
Agreement, which requires that
Later in this same blog post, Ms. Barber contends that Defendants
should have conducted "post-construction or confirmation sampling/testing ... to
determine if their remediation was effective and the homes and neighborhoods
were safe before they began leasing these homes to military families. But
FC/OMC has never done this testing and has refused numerous requests. This is
just one example of how FC/OMC can get away without compliance or without
protecting human health in these contaminated neighborhoods." Id. at 20
(emphasis added). This statement, which Ms. Barber repeats throughout her blog
and other posts,4 misrepresents what occurred during the settlement negotiations,
4 Ms. Barber repeats her assertion that Defendants have refused testing later on inthe same blog post, as well as in her blog post dated May 3, 2016 and in herYouTube video. Whattoff Decl., Ex. S at 20, 33; "MCBH and Pearl HarborFamily Housing Contamination," https://w~vw.youtube.com/watch?v=iblD8tV-1xI
17
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Ms. Barber's current
allegation that it was Defendants who refused to conduct testing is a violation of
the confidentiality provision and is strongly disingenuous. Defendants have never
"refused" to perform post remediation testing; Defendants would consider post-
remediation testing if there was evidence to suggest it was necessary.
Later in this blog post, Ms. Barber again contends that Defendants
refused to undertake the "incredibly costly proposition of having to remove 18
inches of highly contaminated topsoil from hundreds of acres of MCBH and PH
neighborhoods and subsequently replacing it with ̀ clean fill' before they could
begin building earning rental income from the thousands of homes they had
planned ...." Whattoff Decl., Ex. S at 21. As discussed above, this is not true.
D. Ms. Barber's May 13, 2016 Blog Entry
Ms. Barber begins her May 13, 2016 blog entry by stating:
Beginning in 2005, Forest City (FC) and Ohana MilitaryCommunities (OMC) collected thousands of soilsamples from some MCBH and Pearl Harbor (I'H)neighborhoods and had them tested fororganochlorine pesticides, some of the most toxic andpersistent chemicals known to man. Results confirmedthese extremely hazardous chemicals and carcinogenswere present in neighborhood soils at levels that poseserious health and exposure risks to resident
I:
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families.
Ex. S at 10 (emphasis original). It is absolutely not true that the OCPs at MCBH
are "some of the most toxic ...chemicals known to man" or that they are
"extremely hazardous." As the DOH has explained:
Health effects from exposure to organochlorinepesticides have been documented in cases involvinghigh-level exposure, such as during pesticide application,or due to intentional or accidental poisoning. We aye notaware of any documented cases of health effects due toexposure at the low levels associated witho~ganochlorine pesticide residues in soil. In addition,the EALs have several conservative safety factors tofurther ensure that there will be no health risk to childrenwho maybe potentially exposed to residual pesticidelevels in soil. We therefore believe it is extremelyimprobable that residents' health concerns are linked toexposure to potential low-level residual pesticides in soil.Considering the extreme improbability of thisrelationship, we do not believe that the extensivecommitment of time and resources required for a formalhealth study would be justified.
Whattoff Decl., Ex. X (emphasis added). This makes sense, given that OCPs are
some of the most common chemicals found in Hawaii, and are present in
neighborhoods throughout Oahu. See Whattoff Decl., Exs. L - N.
at MCBH:
Ms. Barber also again claims that Defendants refused to remove soils
19
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To ensure new housing and neighborhoods developedwere safe for military families, 18 inches of highlycontaminated topsoil needed to be removed from theseneighborhoods spanning hundreds of acres. And all thesoil removed had to be replaced with "clean fill" beforethousands of new homes could be built. Apparently,FC/OMC deemed this means of resolution to thecontamination problem too costly and time consuming,as it would've cost tens of millions of dollars and likelycaused significant project delays.
Whattoff Dec1., Ex. S at 10. As discussed above, this is directly contradicted by
the facts.
Throughout this entry, Ms. Barber also repeatedly refers to her
allegation that OCP levels in MCBH are "20 times higher than EPA safety
recommendations", claiming:
IF we assume, just as FC/OMC, MCBH, the Navy,NAVFAC, the Navy and Marine Corps Public HealthCenter and HDOH have, that planned remediation inthese neighborhoods was effectively completed,then contamination levels are still around 20 timeshigher than EPA safety recommendations! That's perFC/OMC's own PLAN, as they never seriouslyconsidered removing or remediating ALL thecontamination. Instead, they only proposed to reducecontamination levels a little, but have never proved orconfirmed they actually did.
When FC/OMC, MCBH, the Navy, Hunt andlorHDOH say, "Remediation was completed and thehomes and neighborhoods a~^e safe," they're reallysaying, "All we know is ~^emediation was supposedlyattempted and, IF 100 %EFFECTIVE, contaminationlevels should not be more than 20 times higher than
20
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EPA safety recommendations. "
At best, current contamination levels in redevelopedneighborhoods are around 20 times higher than EPAsafety recommendations. At worst, contaminationlevels in any/all neighborhoods could be hundreds oftimes higher.
Id. at 12-16 (emphases original). As discussed above, there is no basis for these
statements.
lE. Ms. Barber's 1VIay 16, 2016 Blog Entry
On May 16, 2016, Ms. Barber again encourages current and former
MCBH residents to contact her attorney, Mr. Smith, and includes links to his
biography and e-mail address:
An attorney can determine or confirm whether you areeligible to pursue these and/or other relevant legalclaims. You can contact our lead counsel, AttorneyKyle Smith, at Kyle c~,LynchHopperSmith.com todetermine if you're eligible. Although I cannot confirmyour eligibility, I can tell you that barring any unusualcircumstances or statute of limitation complications, mostwho leased a MCBH or Pearl Harbor home from ForestCity will likely have strong claims to pursueaccountability and justice.
If you are eligible to pursue these and/or other claims,even if you no longer live in Hawaii, it's very likely theattorneys who pursued our claims against Forest City willbe able to help your family do the same. You can contactour lead counsel, Attorney Kyle
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Smith at Kyle(a~L n~pperSmith.com.
Whattoff Decl., Ex. S at 1-3. Ms. Barber's repeated use of the term "eligible" is
one of the many ways she creates the impression that MCBH residents are entitled
to significant settlement amounts and they do not need to actually prove any claims
against Defendants to obtain recovery. The term "eligible" suggests there is
already an established settlement pool, and all that residents must do to obtain a
payout from that pool is determine whether they are "eligible." This approach is
indicative of the language and tone used throughout the blog entries.
F. Ms. Barber's May 29, 2016 flog Entry
In one of her most recent posts, Ms. Barber tried to further encourage
the filing of lawsuits by claiming that "HUNDREDS of MCBH and Pearl Harbor
families are pursuing accountability and justice for their families through the legal
system!" Whattoff Deci., Ex. Y. We are not aware of any evidence that could
support this claim, which seems manufactured to encourage other residents to file
lawsuits by suggesting that those who have not filed lawsuits are being left behind.
On the other hand, if this statement is somehow true, it shows the damage that
Ms. Barber's false and misleading statements are causing.
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G. In Addition to ~Ier Blog Posts, Ms. Barber ~Ias Also Been 1Vlakingwise and Misleading Statements on Social IVledia
In addition to her blog, Ms. Barber has used Facebook to publish
additional statements and to encourage residents to contact Mr. Smith and
Mr. Revere. Through the "MCBH and Pearl Harbor Housing Issues" Facebook
Page, Ms. Barber urges followers to pursue claims against Defendants and gives
them legal advice, such as which claims to make, how to obtain legal
representation, and how to avoid the statute of limitations.5 She makes sweeping
statements regarding alleged health issues, such as:
• "Hundreds have already reported developing serious healtheffects after moving to MCBH." Whattoff Decl., Ex. AA.
• "Just living in these contaminated neighborhoods exposesresidents, your children and pets to much higher lifetime ratesof cancer and many other diseases!" Whattoff Decl., Ex. BB.
• "The air and dust in your homes is expected to be more toxicthan the soil!" Id.
Ms. Barber also reposted the Solicitation Letter to her 1,692
followers, proclaiming in the introduction to the letter:
IMPORTANT LEGAL UPDATE FOR CURRENT ANDFORMER MCBH AND PEARL HARBOR
5 Ms. Barber clearly identifies herself as the author of the Facebook posts, tellingher followers to "[p]lease feel free to PM this FB page or me (Cara HooksBarber)." Whattoff Decl., Ex. W. In addition, Ms. Barber testified during herdeposition that she controlled the Facebook page. Whattoff Decl., Ex. Z at 16:10-14; 53:18 - 54:7.
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RESIDENTS! Attorneys Kyle Smith and Terry Revereshare this important legal update about the class actionlawsuit against Forest City (FC) and Ohana MilitaryCommunities (OMC) for failing to disclose hazardoussoil contamination in MCBH housing ...and, if eligible,your option to pursue these important legal claims.
VVhattoff Decl., Ex. CC. She has "pinned" this post to the top of the Facebook
page so that it is the first post displayed whenever anyone views the site. When
individuals posted comments or questions, Ms. Barber responded by encouraging
them to contact Mr. Smith and file a lawsuit.
In another Facebook post on May 9, 2016, which again included
contact information for Mr. Smith and Mr. Revere, Ms. Barber advised followers:
My understanding is most, if not all MCBHand PealHarbor Nesidents who leased a home from Forest City(maybe Hunt too) likely have very strong legal claimsbecause of their negligent failure to warn, violations ofHawaii Landlord Tenant Code, failure to disclose known
~ See, e.g., Whattoff Decl., Ex. DD ("Definitely contact Kyle. Pm glad youreceived the email. Our understanding is you can still pursue these claims even ifyou no longer live in Hawaii, just as we did while living in Florida. Keep in mind,there is no need for anyone in your family to have or prove health effects to pursueaccountability and justice. We believe ail who were deceived and put directly intoharm's way without any warning or notification have strong legal claims.") ("Yes,you and all others who've been deceived and put directly into harm's way withoutany warning or notification can email Atty Kyle Smith to ask a question or discusspursing these claims. You're welcome to work with any attorney you choose, butKyle is happy to help. You can also read the ̀ Answers to Frequently AskedQuestions' in the post above to learn more and get Kyle's email address.") ("Bestthing to do is to seek legal counsel, if you want to pursue these claims. Atty KyleSmith is happy to help all the families he can. Please don't hesitate to contacthim.").
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health and safety hazards, deceptive leasing practices,fraud, etc. With these claims, current and formerresidents maybe able to pursue 100% reimbursement ofall BAH or rent monies paid as well as potential punitivedamages.
Whattoff Decl., Ex. EE (emphasis added). She also states that "[s]imilar lawsuits
have been very successful!" Whattoff Dec1., Ex. FF.
Ms. Barber has also produced a 57-minute YouTube video which she
posted on April 1, 2016. See "MCBH and Pearl Harbor Family Housing
Contamination," https://www.youtube.com/watch?v=iblDBtV-1xI. In the video,
Ms. Barber makes many of the same allegations that she makes on her blog and on
Facebook, and compares OCPs to Agent Orange. See, e.g., id. at 12:09 ("Instead
of safely removed 18 inches of contaminated topsoil in these neighborhoods, they
proposed partial remediation thati would leave contamination levels 20 times higher
than EPA safety recommendations."). Like her other postings, the YouTube video
directs viewers to contact Mr. Smith and Mr. Revere. See id. at 54:13 ("If
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interested in pursuing your claims, contact an attorney today. Here we have the
names and contact information of the two law firms that represented MCBH
families." The video then shows contact information for Lynch, Hopper, Salzano
& Smith and Revere &Associates.).
~ ~ ~ ~; ~
~~.
Federal Rules of Civil Procedure Rule 65 authorizes this Court to
issue preliminary injunctive relief. To obtain a preliminary injunction, the movant
must establish that "he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest." Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Even if the movant can only show
that there are "`serious questions going to the merits'—a lesser showing than
likelihood of success on the merits—then a preliminary injunction may still issue if
the ̀ balance of hardships tips sharply in the [movant's] favor,' and the other two
Winter factors are satisfied." Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d
1281, 1291 (9th Cir. 2013). Here, all of the Winter factors favor entry of a
preliminary. injunction.
26
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A. Defendants Are Likely to Prevail on the Merits Because There IsNo Evidentiary Support for Plaintiffs' Statements
Ms. Barber's Facebook page, for instance, has 1,692 followers. Seehttps://www.facebook.com/MCBHHousingIssues.
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B. There Will Be Irreparable Injury Because Ms. Barber Is HarmingDefendants' Reputation and Encouraging baseless Lawsuits
"Harm to business goodwill and reputation is unquantifiable and
considered irreparable." N~ySpace, Inc. v. Wallace, 498 F. Supp. 2d 1293, 1305
(C.D. Cal. 2007); see, e.g., Rent-A-Center, Inc. v. Canyon Television &Appliance
Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) ("[W]e have also recognized that
intangible injuries, such as damage to ongoing recruitment efforts and goodwill,
qualify as irreparable harm."). Such harm frequently serves as a basis for granting
injunctive relief. See, e.g., Stuhlba~g Intl Sales Co. v..Iohn D. Brush & Co., 240
F.3d 832, 841 (9th Cir. 2001) ("Evidence of threatened loss of prospective
customers or goodwill certainly supports a finding of the possibility of irreparable
harm.").10 Here, it is undisputable that Ms. Barber's misstatements are harming
'o See also Bakes v. Ku~itzky, 95 F. Supp. 3d 52, 57-58 (D. Mass. 2015) (grantinginjunctive relief where the online, statements establish harm to the plaintiff's
Case 1:14-cv-00217-HG-KSC Document 278-1 Filed 06/15/16 Page 33 of 42 PageID #: 5067
Defendants' reputation, as demonstrated by numerous comments to Ms. Barber's
posts. See Whattoff Decl., Ex. HH.
In addition to the irreparable harm Ms. Barber is causing to
Defendants' reputations, Ms. Barber is also exposing Defendants to the threat of
numerous baseless lawsuits. Ms. Barber has carefully planned her smear campaign
to coincide with solicitation activities by her former attorneys, and she repeatedly
exhorts residents to file lawsuits against Defendants. As a result, Ms. Barber
claims:
MANY MCBH families are pursuing accountability andjustice, which can include reimbursement of allBAH/rents paid, punitive and other damages or demandsdeemed applicable and appropriate by yourattorney. MANY have already retained legal counsel andare beginning their pursuit, while MANY others tell usthey're just waiting to hear back from theattorney. We're so ,pleased to see SO MANY militaryfamilies taking a stand on this very important issue!
Whattoff Decl:, Ex. S at 1 (emphasis original). Forcing Defendants to respond to a
stream of baseless lawsuits represents another immense form of irreparable harm
that, in and of itself, should be sufficient to support injunctive relief. Together
reputation and business opportunities and where the frequency); MySpace, 498 F.Supp. 2d at 1305 (granting preliminary injunctive relied.
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with the reputational harm that Ms. Barber is inflicting on Defendants, this prong
of the Winter test is squarely met.
C. The Balance of Equities Favors Defendants
The balancing of equities also weighs heavily in favor of a
preliminary injunction. Courts have held that the balance of equities favors the
movant where (1) the conduct of the party to be enjoined unduly interferes with
legal business activities; and (2) the limitations on the speech of the party to be
enjoined are reasonable. See, e.g., Shell Offshore, Inc. v. G~eenpeace, Inc., 709
F.3d 1281, 1291 (9th Cir. 2013). As discussed above, Ms. Barber's conduct
plainly interferes with Defendant's lawful activities. The injunction sought by this
motion is strictly limited: Defendants merely seek to require Ms. Barber to remove
all of her post-settlement publications, public statements, blog posts, and social
media posts until the Court can issue and decide an order to show cause.
Defendants are not presently seeking to require Ms. Barber to remove her earlier
blog posts, nor are they seeking to enjoin future speech (to the extent it is not
defamatory or otherwise violates the Settlement Agreement). Under the
circumstances, the injunction sought by Defendants is narrowly tailored to address
the specific harms caused by Ms. Barber.
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D. The Public Interest Strongly Favors a Preliminary Injunction
Ms. Barber in engaged in a targeted campaign of objectively false and
strongly disingenuous statements in an effort to encourage unsupported litigation
against Defendants because she apparently carries a grudge against Defendants.
Under such circumstances, the public interest plainly does not favor Ms. Barber.
Indeed, Ms. Barber's conduct appears to be, in large part, a calculated
attempt by her and her atitorneys to engage in conduct that would otherwise be
barred by the HRPC. Under HRPC Rule 7.1, "A lawyer shall not make a false or
misleading communication about the lawyer or the lawyer's services. A
communication is false or misleading if it: (a) contains a material
misrepresentation of fact or law, or omits a fact necessary to make the statement
considered as a whole not materially misleading; (b) is likely to create an
unjustified expectation about results the lawyer can achieve[.]" The blog entries
and posts here violate both requirements. First, as discussed above, the
representations in the blog posts are strongly misleading, and do not contain any of
the facts that would need to be included in order to make them not materially
misleading. We have highlighted a few of the most easily disprovable allegations
in this Motion, but there are numerous other statements that are "materially
misleading" with respect to the conditiion of the soils at MCBH and the history of
the remediation at MCBH. Second, because of these material misstatements, the
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blog "is likely to create an unjustified expectation about results the lawyer can
achieve." Indeed, Ms. Barber explicitly tells residents:
My understanding is most, if not all MCBH and PearlHarbor residents who leased a home from Forest City(maybe Hunt too) likely have very strong legal claimsbecause of their negligent failure to warn, violations ofHawaii Landlord Tenant Code, failure to disclose knownhealth and safety hazards, deceptive leasing practices,fraud, etc. With these claims, current and formerresidents maybe able to pursue 100% ~eimbu~sement ofall BAH o~ gent monies paid as well as potential punitivedamages.
Whattoff Decl., Ex. EE (emphasis added).11
Under HRPC Rule 7.3 (c), "Every written, recorded or electronic
communication from a lawyer soliciting professional employment from anyone
known to be in need of legal services in a particular matter shall include the words
`Advertising Material' on the outside envelope, if any, and at the beginning and
ending of any recorded or electronic communication, unless the recipient of the
communication is a person specified in paragraph (a)." None of the
communications posted by Ms. Barber state that they are "`Advertising Material."
i i In addition, the Solicitation Letter itself explicitly states that: "We believe thatmilitary families living at MCBH from 2006 to at least 2014 have valid legalclaims for return of their [basic allowance for housing] because of Forest City'sfailure to adequately disclose pesticide contamination at MCBH, which is why wefiled this case as a class action." Whattoff Decl., Ex. Q.
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Ms. Barber's conduct as a surrogate for her attorneys is plainly not in the public
Interest.
V. THE COURT SHOULD ENTER AN ORDER TO SHOW CAUSEWHY MS. BARBER SHOULD NOT BE SANCTIOI~TED FORVIOLATING ~'IIE TERMS OF 'I'~IE SETTLEMENT r~GRE~M~NT
Under the terms of the parties' Stipulation for Dismissal with
Prejudice of All Claims and All Parties and Order (Dkt. No. 271 }, "[t]his Court
shall retain jurisdiction for six months (i.e., until August 25, 2016) to resolve any
disputes or actions related to the Settlement Agreement and Release between the
parties dated January 5, 2016." The conduct by Ms. Barber directly violated the
Settlement Agreement. This Court should issue an order to show cause requiring
Ms. Barber to appear for questioning in the United States District Court for the
District of Hawaii regarding her conduct, and to demonstrate why such conduct
does not violate the following provisions of the Settlement Agreement:
33
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VI. CONCL~ISION
For the foregoing reasons, Defendants respectfully request the Court
grant their motion and enter an order (1) requiring Plaintiff Cara Barber to remove
and/or retract all post-settlement publications, public statements, blog posts, and
social media posts related to soil issues at Marine Corps Base Hawaii; (2) ordering
Ms. Barber to appear for questioning in the United States District Court for the
District of Hawaii and to show cause why her publications, public statements,
blog posts, and social media posts should not be permanently removed and why
Ms. Barber should not be sanctioned; and {3) awarding Defendants their attorneys'
fees and costs in connection with this motion.
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DATED: Honolulu, Hawaii, June 6, 2016.
LISA WOODS MUNGERRANDALL C. WHATTOFFCHRISTINE A. TERADA
Attorneys for DefendantsOHANA MILITARY COMMUNITIES, LLCFOREST CITY RESIDENTIALMANAGEMENT, LLC
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