Forest City OMC Preliminary Injunction

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PLAINTIFFS CARA BARBER,
MELISSA JONES,MELISSA
STREETER,KATIE ECKROTH,BOB
BARBER,TIM JONES,and RYAN
ECKROTH On BehalfofThemselves
and All Others Similarly Situated,
Class Plaintiffs,
vs.
OHANA MILITARY COMMUNITIES,
LLC,FOREST CITY RESIDENTIAL
MANAGEMENT,INC.;and DOE
DEFENDANTS 1-10,
Defendants.
CIV NO 14-00217 HG-KSC
MEMORANDUM IN SUPPORT OF
MOTION
Case 1:14-cv-00217-HG-KSC Document 278-1 Filed 06/15/16 Page 1 of 42 PageID #:
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Page
I. INTRODUCTION ......................................................................................... 1
II. FACTUAL AND PROCEDURAL BACKGROUND ..................................3
A. The Historical Use ofOCPs on Oahu..................................................3
B. The Treatment ofOCPs at MCBH......................................................5
C. The Settlement Agreement..................................................................7
III. POST-SETTLEMENTPUBLICATIONS MADEBY CARA
BARBER...................................................................................................... 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 EPA
Safety Recommendations"...................................................... 12
2. Ms.Barber Falsely Claims that Defendants Did Not
Remove Soils Because it Was Too Expensive........................ 14
B. Ms.Barber's and Her Former Attorneys' May 12,2016 Blog
Entry................................................................................................... 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 Been
Making False and Misleading Statements on Social Media..............23
IV. THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION
REQUIRING THEIMMEDIATE REMOVAL OF ALL OF
MS.BARBER'S POST-SETTLEMENT BLOG AND SOCIAL
MEDIA POSTS............................................................................................26
A. Defendants Are Likely to Prevail on the Merits Because There
Is No Evidentiary Support for Plaintiffs' Statements........................27
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TABLE OF CONTENTS
(continued)
Page
B. There Will Be Irreparable Injury Because Ms.Barber Is
Harming Defendants'Reputation and Encouraging Baseless
Lawsuits.............................................................................................28
C. The Balance ofEquities Favors Defendants .....................................30
D. The Public Interest Strongly Favors a Preliminary Injunction..........31
V. THE COURT SHOULD ENTER AN ORDER TO SHOW CAUSE
WHY MS.BARBER SHOULD NOT BE SANCTIONED FOR
VIOLATING THE TERMS OF THE SETTLEMENT AGREEMENT.....33
VI. CONCLUSION............................................................................................36
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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
RentA-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~gIntlSales Co. v. John D.Bush & Co.,
240 F.3d 832(9th Cir.2001)..............................................................................28
Wilson v. Freitas,
121 Hawaii 120,214P.3d 1110(App.2009)...................................................27
Winter v. Nat.Res.Def. Council,Inc.,
555 U.S.7(2008).........................................................................................26, 30
OT~IER AUTHORITIES
DOH,Evaluation ofEnviYonmentalHazards atSites with Contaminated Soil
and G~oundwate~,Vol. 1,§§ 2.1,2.4.1(Fall201l;rev. Jan.2012)...............4,5
Restatement ofTorts .........................................................................................27,28
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Pages)
RULES
Federal Rules ofCivil Procedure Rule65...............................................................26
Hawaii Rules ofProfessional Conduct
Rule 7.1 ..............................................................................................................31
Rule 7.3(c}.........................................................................................................32
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,1'~ i
','!' ~ t ~
'11 i
This motion seeks the immediate intervention ofthis Courtto enjoin
a new smear campaign launched by PlaintiffCara 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 ofposting 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 ofthe mosttoxic...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 ofProfessional Conduct("HRPC"). Indeed,the purpose ofthe
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.
Asjust one example,Ms.Barber has made numerous posts claiming
that Defendants refused to undertake the"incredibly costly proposition ofhaving
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to remove 18 inches ofhighly contaminated topsoil from hundreds ofacres 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 ofremoving 18 inches ofcontaminated
topsoil from these neighborhoods(hundreds ofacres)and replacing it with clean
fill[.]" This is simply not true for the neighborhoods built by Ohana. Ohana
removed and replaced two-feet ofsoil from nearly every one ofthe homes it built
at Marine Corps Base Hawaii("MCBH")(totaling approximately 1,300 homes).
Detailed closure reports documentthis 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—violatethe terms ofthe Settlement Agreement,which prohibit
Ms.Barberfrom 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
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accounts to create the impression that all MCBH residents are"eligible"for
significant settlement amountsthatthey can collect bysimply contacting her
former attorneys and filing a claim. Indeed,both Ms.Barber and her attorneys
state in their solicitation communications thatthey believe that all"military
families living at MCBHfrom 2006 to atleast 2014 have valid legal claims for
return oftheir[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 beimmediately
enjoined to prevent substantial irreparable harm to Defendants and MCBH
residents.
A. The Historical Use ofOCPs on Oahu
In the initial complaint,and in subsequentamended complaints,
Plaintiffs argued that when the Marine Corps transferred control ofits family
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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 ofthe Hawaii Department ofHealth'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.,
WhattoffDeci.,Ex.L. Because Hawai`i's climate is very conducive to ground
termite infestation,the use ofthese 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 atthese levels are considered safe for all circumstances without any
further analysis or remediation. See DOH,Evaluation ofEnvironmentalHazards
atSites with Contaminated Soiland G~oundwate~,Vol. 1,§§ 2.1,2.4.1 (Fa11201l;
rev. Jan.2012)available at http://eha-web.doh.hawaii.gov/eha-
cma/documents/8935e423-25fb-46b9-adaa-fc0a207d5518("Evaluation of
EnvironmentalHazards").
'In 1977 alone,_150,000 pounds were used on Oahu for pest control. Whattoff
Decl.,Ex.M at 386;Ex.N at 1,4.
r.'
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The purpose ofthe 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.
Ifa 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 ofthis evaluation,DOH and the site
owner will often create new Tier 2EALs as an alternative to DOH's generic Tier 1
EALs. See, e.g.,Poma Decl.,Ex.B at 10-14. The Tier2EALs take into account
the nature ofthe substance at issue,the geography ofthe 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 TreatmentofOCPs at MC~H
Ohana began its construction efforts in 2006. Because ofthe presence
ofOCPs,Ohana created a Pesticide Soil ManagementPlan("PSMP")governing
the handling ofsoil. SeePoma Decl.,Ex.B. ThePSMP was approved byDOH on
March 23,2007. See Poma Decl.,Ex.C. ThePSMP established site-specific
Tier 2EALs as an alternative to DOH's generic Tier 1 EALs. See Poma Decl.,
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Ex.B at 10-14. These Tier 2EALs are based upon the specific OCPsfound at
MCBH,the geography ofMCBH,and the intended use ofthe homes. See id. The
PSMP required that soil exceeding Tier2EALs either be removed or covered with
sufficient amounts ofclean soil or pavement,depending upon where the soil was
located. See id. at 21-24. The Tier2EALs in thePSMP were between 3.27 and 4
times greater than the default Tier 1 EALsthen in place:
OCP
Tier 1 EAL
in 2007
Tier 2EAL in
PSMP
Aldrin .029 .095
Chlordane 1.6 5.4
DDD and DDE 2.4 8.1
DDT 1.7 5.7
Dieldrin .03 .10
Endrin 18 1$
Heptachlor .11 .36
He tachlor Expoxide .053 .18
See id. at 14. Notably,DOH revised many ofits EALsin 2012,and the current
Tier 1 EALs are in many cases hzgher than the Tier 2EALsin thePSMP. For
instance,the current Tier 1 aldrin EAL is.92(almost 10 times greater than the Tier
2EAL in the PSMP);the current Tier 1 chlordane EAL is 16(almost three times
greater than the Tier2EAL in the PSMP);and the current dieldrin EAL is 1.5
(almost 15 times greater than the Tier 2EAL in the PSMP). See Evaluation of
EnvironmentalHazards,Vol.2,Table B-l.
2 All measurements are in mg/kg.
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Ultimately,however,the differences between the Ties1 and Tier2
EALs in thePSNfP aye oflimited relevance. As discussed in more detail below,
because each ofthe neighborhoods built by Ohana contained at least one Tier2
exceedance,the soil beneath and within two feet ofthe slabs ofall the homes built
by Ohana was excavated to a depth oftwo feet below ground surface and/or
covered with two feet ofclean 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 Tier2EALs to avoid ~emediation in any
ofthe neighborhoods.
C. The Settlement Agreement
In the SAC,Plaintiffs contended that the PSMP was not sufficiently
protective oftheir health and that Defendants did not properly disclose the
condition ofthe soil at MCBH. In February 2016,after two settlement conferences
with the Court,the parties entered into a settlement agreement
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The Settlement Agreement contains at leastthree clauses that are
relevantto the instant motion. First,
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Second,
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0
Thud,
Beginning in or around May 2016,PlaintiffCara Barber began a new
campaign against Defendants thatinvolved numerous social media outlets,
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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 May9,2016 by the law firms that represented Plaintiffs in this lawsuit(the
"Solicitation Letter"). See WhattoffDecl.,Ex.Q.
The Solicitation Letter's generic salutation—"Dear Sir or Madam"
suggests it was widely distributed to current and former MCBH residents,
regardless ofwhether 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?!" WhattoffDecl.,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 ifyou wish to pursue your potential legal claims against
Forest City." WhattoffDecl.,Ex.Q. Regarding the likely outcome ofthose
claims,the attorneys stated:"We believe that military families living at MCBH
from 2006 to at least2014 have valid legal claims for return oftheir[basic
allowance for housing]because ofForest City's failure to adequately disclose
pesticide contamination at MCBH,which is why we filed this case as a class
action." Id.
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A. Ms.Barber's May 3,2016flog Entry
1. Ms.Barber Falsely Claims that"Contamination Levels" at
MCBH"Remain at beast20 Times Higher Than EPA
Safety 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 ofHealth(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 ofcancer and other diseases." WhattoffDecl.,
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 ofcancer 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 ofthe homes built by Ohana were removed and
replaced with clean soils. Poma Decl.,Exs.E - I. Thus,even ifthere 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 atthose levels
following construction. Other neighborhoods were simply never treated with
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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"). Butreferring 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 initial
cleanup goals,ifapplicable. SLs are not de facto cleanup
standards and should not be applied as such. The SL's
role in site"screening"is to help identify areas,
contaminants,and conditions that require further federal
attention at a particular site. Generally,at sites where
contaminant concentrations fall below SLs,no further
action or study is warranted.... CTiemical
concentrations above the SL would notautomatically
designate a site as "duty"or Nigger a response action;
however,exceeding a SL suggests that further evaluation
ofthe potential risks by site contaminants is appropriate.
SLs are generic screening values,not de facto cleanup
standards. Once the Baseline Risk Assessment(BLRA)
is completed,site-specific risk-based remediation goals
can be derived using the BLRA results. The selection of
final cleanup goals may also include(Applicable or
Relevant and Appropriate Requirements(ARARs)and to
be considered guidance(TBCs),as well as site-specific
risk-based goals.
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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 ofremoving 18
inches ofcontaminated topsoil from these neighborhoods
(hundreds ofacres)and replacing it with clean fill,Forest
City,MCBH and the Navy asked Hawaii Department of
Health(HDOH)to permit much higher contamination
levels in MCBH and Pearl Harbor neighborhoods. Forest
City,the Navy and Marine Corps claimed they would
inform all residents aboutthe hazardous contamination
and serious health risks it posed and undertake many
other required precautions to protect human health and
the environment,ifthey were allowed to leave
contamination levels at least20 times higher than EPA
safety recommendations. This is undisputed.
Ex.S at 33(emphasis original). Not only is this statement"disputed,"itis flatly
contradicted by the facts.
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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 ofthese neighborhoods had a Tier 2exceedance,Ohana
proceeded as conservatively as possible and removed the soil from beneath and
within two feet ofthe slabs ofall homes to a depth oftwo feet below ground
surface,and replaced it with clean soil(or,in some areas,leftthe soil in place and
covered it with two feet ofclean soil). See Poma Decl.,Exs.G - I. In one
neighborhood,Ulupau,soil was excavated to a depth offour feet(rather than two)
and replaced with clean soil. See Poma Decl.,Ex.H. There are detailed closure
reports that documentthis process,which Ms.Barber has had in her possession
since 2014. See WhattoffDecl.,Exs.T - V.3 As with Ms.Barber's other
allegations,there is simply no evidence that supports Ms.Barber's claim thatthis
work did not take place.
B. Ms.Barber's and Her Former Attorneys'May 12,2016 Blog
Entry
The second post-settlement blog entry begins: "Attorneys Kyle
Smith and Terry Revere share thisimportantlegal update aboutthe class
3 Defendants also rebuilt or renovated a small,ten-home neighborhood known as
Kapoho and a 23-home neighborhood with historic-preservation homes(Heleloa),
both ofwhich were reserved for the mostsenior officers. Because ofthe unique
nature ofthese two neighborhoods,soils for these 33 homes were handled
differently. See Poma Decl.,Exs.E - F.
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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
..." WhattoffDecl.,Ex.S at 25(emphasis original). The blog then reposts,in its
entirety,the Solicitation Letter. The blog also includes contactinformation 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 ofgreat questions from residents who are learning about
the outcome ofthe class action lawsuit against Forest City and Ohara Military
Communities." WhattoffDecl.,Ex.S at 17. Moreover,Ms.Barber requests
readers to contact her directly through private messaging. Id. at 27("Ifyou 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."); WhattoffDecl.,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
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that Plaintiffs arein violation ofthe confidentiality provision ofthe 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 iftheir 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 ofhow 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 in
the same blog post,as well as in her blog post dated May 3,2016 and in her
YouTube video. WhattoffDecl.,Ex.S at 20,33;"MCBH and Pearl Harbor
Family Housing Contamination,"https://w~vw.youtube.com/watch?v=iblD8tV-1xI
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Ms.Barber's current
allegation that it wasDefendants who refused to conducttesting 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 ifthere 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 ofhaving to remove 18
inches ofhighly contaminated topsoil from hundreds ofacres ofMCBH and PH
neighborhoods and subsequently replacing it with `clean fill' before they could
begin building earning rental income from the thousands ofhomes they had
planned...." WhattoffDecl.,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 Military
Communities(OMC)collected thousands ofsoil
samplesfrom some MCBH and Pearl Harbor(I'H)
neighborhoods and had them tested for
organochlorine pesticides,some ofthe mosttoxic and
persistent chemicals known to man. Results confirmed
these extremely hazardous chemicals and carcinogens
were presentin neighborhood soils atlevels that pose
serious 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 ofthe mosttoxic...chemicals known to man"or that they are
"extremely hazardous." As the DOH has explained:
Health effects from exposure to organochlorine
pesticides have been documented in cases involving
high-level exposure,such as during pesticide application,
or due to intentional or accidental poisoning. We aye not
aware ofany documented cases ofhealth effects due to
exposure at the low levels associated with
o~ganochlorinepesticide residues in soil. In addition,
the EALs have several conservative safety factors to
further ensure that there will be no health risk to children
who maybe potentially exposed to residual pesticide
levels in soil. We therefore believe it is extremely
improbable that residents' health concerns are linked to
exposure to potential low-level residual pesticides in soil.
Considering the extreme improbability ofthis
relationship, we do not believe that the extensive
commitment oftime and resources required for aformal
health study would bejustified.
WhattoffDecl.,Ex.X(emphasis added). This makes sense,given that OCPs are
some ofthe mostcommon chemicalsfound in Hawaii,and are present in
neighborhoods throughout Oahu. See WhattoffDecl.,Exs.L - N.
at MCBH:
Ms.Barber also again claims that Defendants refused to remove soils
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To ensure new housing and neighborhoods developed
were safe for military families, 18 inches ofhighly
contaminated topsoil needed to be removed from these
neighborhoods spanning hundreds ofacres. And all the
soil removed had to be replaced with"clean fill" before
thousands ofnew homes could be built. Apparently,
FC/OMC deemed this means ofresolution to the
contamination problem too costly and time consuming,
as it would've cost tens ofmillions ofdollars and likely
caused significant project delays.
WhattoffDec1.,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 Health
Center and HDOH have,that planned remediation in
these neighborhoods was effectively completed,
then contamination levels are still around 20 times
higher than EPA safety recommendations! That's per
FC/OMC's ownPLAN,as they never seriously
considered removing or remediating ALL the
contamination. Instead,they only proposed to reduce
contamination levels a little, but have never proved or
confirmed they actually did.
When FC/OMC,MCBH,the Navy,Hunt andlor
HDOH say,"Remediation was completedandthe
homes and neighborhoods a~^e safe,"they're really
saying,"All weknow is ~^emediation wassupposedly
attempted and,IF100%EFFECTIVE,contamination
levelsshould not be more than 20times higher than
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EPA safety recommendations."
At best,current contamination levels in redeveloped
neighborhoods are around 20 times higher than EPA
safety recommendations. At worst,contamination
levels in any/all neighborhoods could be hundreds of
times 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 are
eligible to pursue these and/or other relevantlegal
claims. You can contact our lead counsel,Attorney
Kyle Smith,at Kyle c~,LynchHopperSmith.com to
determine ifyou're eligible. Although I cannot confirm
your eligibility,I can tell you that barring any unusual
circumstances or statute oflimitation complications,most
who leased a MCBH or Pearl Harbor homefrom Forest
City will likely have strong claims to pursue
accountability andjustice.
Ifyou are eligible to pursue these and/or other claims,
even ifyou no longer live in Hawaii,it's very likely the
attorneys who pursued our claims against Forest City will
be able to help your family do the same. You can contact
our lead counsel,Attorney Kyle
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Smith at Kyle(a~L n~pperSmith.com.
WhattoffDecl.,Ex.S at 1-3. Ms.Barber's repeated use ofthe term "eligible"is
one ofthe many ways she creates the impression that MCBH residents are entitled
to significant settlement amounts and they do not need to actuallyprove 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
payoutfrom that pool is determine whether they are "eligible." This approach is
indicative ofthe language and tone used throughout the blog entries.
F. Ms.Barber's May 29,2016flog Entry
In one ofher most recent posts, Ms.Barber tried to further encourage
the filing oflawsuits by claiming that"HUNDREDS ofMCBH and Pearl Harbor
families are pursuing accountability andjustice for their families through the legal
system!" WhattoffDeci.,Ex.Y. We are not aware ofany evidence that could
support this claim, which seems manufactured to encourage other residents to file
lawsuits by suggesting thatthose who have not filed lawsuits are being left behind.
On the other hand,ifthis statement is somehow true,it shows the damage that
Ms.Barber's false and misleading statements are causing.
m
5061

G. In Addition to ~Ier Blog Posts,Ms.Barber ~Ias Also Been 1Vlaking
wise and Misleading Statements on SocialIVledia
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 oflimitations.5 She makes sweeping
statements regarding alleged health issues,such as:
• "Hundreds have already reported developing serious health
effects after moving to MCBH." WhattoffDecl.,Ex.AA.
• "Just living in these contaminated neighborhoods exposes
residents, your children and pets to much higher lifetime rates
ofcancer and many other diseases!" WhattoffDecl.,Ex.BB.
• "The air and dust in your homes is expected to be more toxic
than 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 AND
FORMER MCBH AND PEARL HARBOR
5 Ms.Barber clearly identifies herselfas the author ofthe Facebook posts,telling
her followers to "[p]lease feel free to PM this FB page or me(Cara Hooks
Barber)." WhattoffDecl.,Ex. W. In addition, Ms.Barber testified during her
deposition that she controlled the Facebook page. WhattoffDecl.,Ex.Zat 16:10-
14;53:18 - 54:7.
23
5062

RESIDENTS! Attorneys Kyle Smith and Terry Revere
share this important legal update aboutthe class action
lawsuit against Forest City(FC)and Ohana Military
Communities(OMC)for failing to disclose hazardous
soil contamination in MCBH housing...and,ifeligible,
your option to pursue these important legal claims.
VVhattoffDecl.,Ex.CC. She has"pinned"this post to the top ofthe 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,ifnotallMCBHandPeal
Harbor Nesidents who leased a homefrom Forest City
(maybe Hunttoo)likely have very strong legalclaims
because oftheir negligent failure to warn,violations of
Hawaii Landlord Tenant Code,failure to disclose known
~ See, e.g., WhattoffDecl.,Ex.DD("Definitely contact Kyle. Pm glad you
received the email. Our understanding is you can still pursue these claims even if
you 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 pursue
accountability andjustice. We believe ail who were deceived and put directly into
harm'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 without
any warning or notification can email Atty Kyle Smith to ask a question or discuss
pursing these claims. You're welcome to work with any attorney you choose,but
Kyle is happy to help. You can also read the `Answers to Frequently Asked
Questions'in the post above to learn more and get Kyle's email address.")("Best
thing to do is to seek legal counsel,ifyou wantto pursue these claims. Atty Kyle
Smith is happy to help all the families he can.Please don't hesitate to contact
him.").
m
5063

health and safety hazards,deceptive leasing practices,
fraud,etc. With these claims,current and former
residents maybe able to pursue 100%reimbursement of
all BAH or rent monies paid as well as potential punitive
damages.
WhattoffDecl.,Ex.EE(emphasis added). She also states that"[s]imilar lawsuits
have been very successful!" WhattoffDec1.,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 ofthe same allegations that she makes on her blog and on
Facebook,and compares OCPsto Agent Orange. See, e.g., id. at 12:09("Instead
ofsafely removed 18 inches ofcontaminated 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
5064

interested in pursuing your claims,contact an attorney today. Here we have the
names and contactinformation ofthe two law firms that represented MCBH
families." The video then shows contactinformation for Lynch,Hopper,Salzano
& Smith and Revere &Associates.).
~ ~ ~ ~; ~
~~.
Federal Rules ofCivil Procedure Rule 65 authorizes this Courtto
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 ofpreliminary relief,thatthe balance ofequities
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 ifthe movant can only show
that there are"`serious questions going to the merits'—a lesser showing than
likelihood ofsuccess on the merits—then a preliminary injunction may still issue if
the `balance ofhardships 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 ofthe Winter factors favor entry ofa
preliminary.injunction.
26
5065

A. Defendants Are Likely to Prevail on the Merits Because There Is
No Evidentiary Supportfor Plaintiffs' Statements
Ms.Barber's Facebook page,for instance,has 1,692followers. See
https://www.facebook.com/MCBHHousingIssues.
27
5066

B. There Will BeIrreparable Injury Because Ms.Barber Is Harming
Defendants'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~gIntlSales Co. v..Iohn D.Brush & Co.,240
F.3d 832,841 (9th Cir.2001)("Evidence ofthreatened loss ofprospective
customers or goodwill certainly supports a finding ofthe possibility ofirreparable
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)(granting
injunctive reliefwhere the online,statements establish harm to the plaintiff's
5067

Defendants'reputation,as demonstrated by numerous comments to Ms.Barber's
posts. See WhattoffDecl.,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 and
justice,which can include reimbursement ofall
BAH/rents paid,punitive and other damages or demands
deemed applicable and appropriate by your
attorney. MANY have already retained legal counsel and
are beginning their pursuit,while MANY others tell us
they'rejust waiting to hear back from the
attorney. We're so,pleased to see SO MANY military
families taking a stand on this very importantissue!
WhattoffDecl:,Ex.S at 1(emphasis original). Forcing Defendants to respond to a
stream ofbaseless lawsuits represents another immenseform ofirreparable harm
that,in and ofitself,should be sufficientto support injunctive relief. Together
reputation and business opportunities and where the frequency);MySpace,498 F.
Supp.2d at 1305(granting preliminary injunctive relied.
29
5068

with the reputational harm that Ms.Barber is inflicting on Defendants,this prong
ofthe Winter test is squarely met.
C. The Balance ofEquities Favors Defendants
The balancing ofequities also weighs heavily in favor ofa
preliminary injunction. Courts have held thatthe balance ofequities favors the
movant where(1)the conduct ofthe party to be enjoined unduly interferes with
legal business activities; and(2)the limitations on the speech ofthe 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 ofher 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
5069

D. The PublicInterest Strongly Favors a Preliminary Injunction
Ms.Barber in engaged in a targeted campaign ofobjectively false and
strongly disingenuous statements in an effortto encourage unsupported litigation
against Defendants because she apparently carries a grudge against Defendants.
Under such circumstances,the public interest plainly does notfavor Ms.Barber.
Indeed,Ms.Barber's conduct appears to be,in large part,a calculated
attempt by her and her atitorneys to engagein conduct that would otherwise be
barred bythe HRPC. Under HRPC Rule 7.1,"A lawyer shall not make a false or
misleading communication aboutthe lawyer or the lawyer's services. A
communication is false or misleading ifit: (a)contains a material
misrepresentation offact 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 afew ofthe most easily disprovable allegations
in this Motion,butthere are numerous other statements that are"materially
misleading" with respectto the conditiion ofthe soils at MCBH and the history of
the remediation at MCBH. Second,because ofthese material misstatements,the
31
5070

blog "is likely to create an unjustified expectation about results the lawyer can
achieve." Indeed,Ms.Barber explicitly tells residents:
My understanding is most,ifnot all MCBH and Pearl
Harbor residents who leased a homefrom Forest City
(maybe Hunttoo)likely have very strong legal claims
because oftheir negligent failure to warn,violations of
Hawaii Landlord Tenant Code,failure to disclose known
health and safety hazards,deceptive leasing practices,
fraud,etc. With these claims,current and former
residents maybe able topursue 100%~eimbu~sementof
allBAHo~ gent moniespaid as well as potential punitive
damages.
WhattoffDecl.,Ex.EE(emphasis added).11
Under HRPC Rule 7.3(c),"Every written,recorded or electronic
communication from a lawyer soliciting professional employmentfrom anyone
known to be in need oflegal services in a particular matter shall include the words
`Advertising Material'on the outside envelope,ifany,and at the beginning and
ending ofany recorded or electronic communication,unless the recipient ofthe
communication is a person specified in paragraph(a)." None ofthe
communications posted by Ms.Barber state that they are"`Advertising Material."
ii In addition,the Solicitation Letter itselfexplicitly states that:"We believe that
military families living at MCBH from 2006 to at least 2014 have valid legal
claims for return oftheir[basic allowance for housing]because ofForest City's
failure to adequately disclose pesticide contamination at MCBH,which is why we
filed this case as a class action." WhattoffDecl.,Ex.Q.
32
5071

Ms.Barber's conduct as a surrogate for her attorneys is plainly notin the public
Interest.
V. THE COURT SHOULD ENTER AN ORDER TO SHOW CAUSE
WHY MS.BARBER SHOULD NOT BE SANCTIOI~TED FOR
VIOLATING ~'IIE TERMS OF'I'~IE SETTLEMENT r~GRE~M~NT
Under the terms ofthe parties' Stipulation for Dismissal with
Prejudice ofAll Claims and All Parties and Order(Dkt.No.271},"[t]his Court
shall retainjurisdiction for six months(i.e., until August25,2016)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 ofHawaii regarding her conduct,and to demonstrate why such conduct
does not violate the following provisions ofthe Settlement Agreement:
33
5072

34
5073

35
5074

VI. CONCL~ISION
For the foregoing reasons,Defendants respectfullyrequest the Court
granttheir motion and enter an order(1)requiring PlaintiffCara 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 appearfor questioning in the United States District Courtfor the
District ofHawaii and to show cause why her publications,public statements,
blog posts,and social media posts should not be permanentlyremoved and why
Ms.Barber should not be sanctioned;and{3)awarding Defendants their attorneys'
fees and costs in connection with this motion.
36
5075

DATED: Honolulu,Hawaii,June 6,2016.
LISA WOODS MUNGER
RANDALL C.WHATTOFF
CHRISTINE A.TERADA
Attorneys for Defendants
OHANA MILITARY COMMUNITIES,LLC
FOREST CITY RESIDENTIAL
MANAGEMENT,LLC
37
5076
/s/ Christina A. Terada

Forest City OMC Preliminary Injunction

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