Forest City OMC Preliminary Injunction

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

Case 1:14-cv-00217-HG-KSC Document 278-1 Filed 06/15/16 Page 1 of 42 PageID #: 5035

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


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


•; ~ 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


Pages)RULES

Federal Rules of Civil Procedure Rule 65 ............................................................... 26

Hawaii Rules of Professional ConductRule 7.1 .............................................................................................................. 31Rule 7.3 (c} ......................................................................................................... 32

iv


,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


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


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


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 Hawaiì'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.'


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


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.


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


The Settlement Agreement contains at least three clauses that are

relevant to the instant motion. First,


Second,


0

Thud,

Beginning in or around May 2016, Plaintiff Cara Barber began a new

campaign against Defendants that involved numerous social media outlets,

10


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


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


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


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


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


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


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


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:


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


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~ê safe," they're reallysaying, "All we know is ~êmediation was supposedlyattempted and, IF 100 %EFFECTIVE, contaminationlevels should not be more than 20 times higher than

20


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

21


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.

m


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.

23


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.").

m


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

25


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


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.

27


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


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.

29


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.

30


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

31


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

Àdvertising 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 "Àdvertising 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.

32


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


34


35


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.

36


jkoda

Typewritten Text

DATED: Honolulu, Hawaii, June 6, 2016.

LISA WOODS MUNGERRANDALL C. WHATTOFFCHRISTINE A. TERADA

Attorneys for DefendantsOHANA MILITARY COMMUNITIES, LLCFOREST CITY RESIDENTIALMANAGEMENT, LLC

37


jkoda

Typewritten Text

/s/ Christina A. Terada

jkoda

Typewritten Text

News & Politics

Forest City OMC Preliminary Injunction