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Archive for the ‘Civil Procedure and Trial Practice’ Category

Pro Hac Vice Admission Of Out Of State Counsel By A Hawaii Attorney-Part 2

Saturday, November 16th, 2013

As we wrote in our previous blog (found here), the procedure in U.S. District Court pro hac vice admission is different than in Hawaii State Court since, generally, the mainland attorney seeking pro hac vice admission is already admitted to a U.S. District Court in her home state.  The Local Rules of the District Court of Hawaii rule 83.1(e) control pro hac vice admission as follows:

(e) Pro hac vice. An attorney who is an active member in good standing in a bar of the highest court of any State or territory of the United States or the District of Columbia, who is of good moral character, and who has been retained to appear in this court, may, upon written application and in the discretion of this court, be permitted to appear and participate in a particular case subject to the conditions of this rule. An attorney who has been the subject of a criminal investigation known to the attorney or a criminal prosecution or conviction in any court in the past ten (10) years may, in this court’s sole discretion, be eligible to practice pursuant to this section provided the attorney satisfactorily explains the circumstances surrounding the criminal investigation, prosecution, or conviction. Unless authorized by the Constitution of the United States or Acts of Congress, an attorney is not eligible to practice pursuant to this section if any one or more of the following apply: the attorney resides in Hawaii; the attorney is regularly employed in Hawaii; or the attorney is regularly engaged in business, professional, or law-related activities in Hawaii.

The pro hac vice application and applicable fee shall be presented to the clerk and shall state under penalty of perjury:

(1) The attorney’s city and state of residence and office address;

(2) By what court(s) the attorney has been admitted to practice and the date(s) of admission;

(3) That the attorney is in good standing and eligible to practice in said court(s);

(4) Whether and under what circumstances the attorney:

(A) Is currently involved in disciplinary proceedings before any state bar, federal bar, or any equivalent;

(B) Has in the past ten (10) years been suspended, disbarred, or otherwise subject to other disciplinary proceedings before any state bar, federal bar, or its equivalent;

(C) Has been denied admission pro hac vice by any court or agency in the past ten (10) years; and

(D) Has been the subject of a criminal investigation known to the attorney or a criminal prosecution or conviction in any court in the past ten (10) years; and

(5) Whether the attorney has concurrently or within the year preceding the current application made any pro hac vice application in this court, and if so, the title and the number of each matter wherein the attorney made the application, the date of the application, and whether or not the application was granted. The attorney shall also designate in the application a member in good standing of the bar of this court who maintains an office within the district to serve as associate counsel. The application shall include the address, telephone number, and written consent of such associate counsel. The associated attorney shall at all times meaningfully participate in the preparation and trial of the case with the authority and responsibility to act as attorney of record for all purposes. The associated attorney shall participate in all court proceedings unless otherwise ordered by the court, but need not attend depositions or participate in other discovery. Any document required or authorized to be served upon counsel by the Federal Rules of Civil or Criminal Procedure, or by these rules, shall be served upon the associated attorney (local counsel), which shall be deemed proper and effective service. The pro hac vice application shall also be accompanied by payment to the clerk of any required assessment, which the clerk shall place to the credit of the Court Library Fund. If the pro hac vice application is denied, the court may refund any and all of the assessment paid by the attorney. If the application is granted, the attorney is subject to the jurisdiction of the court with respect to the attorney’s conduct to the same extent as a member of the bar of this court.

As with the pro hac vice application in Hawaii State Court, the pro hac vice applicant in U.S. District Court must be sponsored by local counsel.  Despite the lengthy rule listed above, the U.S. District Court provides a simple application for the pro hac vice applicant.  Like in Hawaii State Court, the U.S. District Court requires that the applicant pay a fee ($300 in 2013).

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Pro Hac Vice Admission Of Out Of State Counsel By A Hawaii Attorney

Friday, November 8th, 2013

Sometimes, a client who is involved in a Hawaii State court case would like his or her own mainland lawyer to be involved in the Hawaii case.  In such matters, with the permission of the Court, the mainland attorney can temporarily be admitted to practice in the state of Hawaii specifically to assist in the litigation of that particular case.  In this case, the attorney is referred to as being admitted pro hac vice.  The Hawaii Rules of the Supreme Court govern pro hac vice admission as follows:

1.9. Pro hac vice appearance of counsel.

Any attorney actively licensed to practice law by the highest court of a state or territory of the United States or the District of Columbia who is not a resident of Hawai‘i may be permitted to associate himself or herself with a member or members of the Hawai‘i bar (local counsel) in the presentation of a specific case at the discretion of the presiding judge or judges. The petition or motion for pro hac vice appearance and any subsequent documents submitted on behalf of a party must be filed by local counsel.

An attorney allowed to appear pro hac vice shall, for each year the order is effective, pay to the Hawai‘i State Bar an annual Disciplinary Board fee authorized by the supreme court, provided that if the attorney is allowed to appear in more than one case, only one fee shall be paid. The Hawai‘i State Bar may assess a reasonable fee to register and collect this fee on an annual basis.

Failure to file proof of such payment in the record, within 10 days after entry of the order and in January of each subsequent year in which the case is pending, voids the order allowing the appearance pro hac vice.

As a practice note, the application to admit a mainland attorney pro hac vice must be brought by local counsel.  Furthermore, the fee to the Hawaii State Bar ($760 in 2013) must be paid within 10 days after the entry of the order granting pro hac vice and in the January of each subsequent year.

Although each Hawaii Judge can impose their own restrictions to the pro hac vice admission of mainland counsel, we have found that the Courts typically require the following:

  1. Local counsel shall serve as lead trial counsel.
  2. Local counsel shall participate in a meaningful way in all aspects of the case.
  3. Mainland counsel shall comply with the Hawaii State Bar Association Guidelines of Professional Courtesy and Civility.
  4. Mainland counsel shall comply with all requirements of Rule 1.9 of the Rules of the Supreme Court.

Our office regularly assists mainland counsel admitted pro hac vice in Hawaii State Court.  We also assist mainland counsel with pro hac vice admission in U.S. District Court in Hawaii.  The procedure in U.S. District Court pro hac vice admission is different since, generally, the mainland attorney seeking pro hac vice admission is already admitted to a U.S. District Court in her home state.  Our next blog will address pro hac vice admission in U.S. District Court.

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A Hawaii Attorney’s Guide to Bifurcation of Trials

Saturday, November 2nd, 2013

Hawaii trial courts, in certain circumstances, will allow a litigant to divide his trial into two parts.  This is called “bifurcating” the trial.  Hawaii Rules of Civil Procedure (HRCP) Rule 42(b) governs bifurcation and provides as follows:

(b) Separate trials.  The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as given by the Constitution or a statute of the State or the United States.

HRCP Rule 42(b).

There are a number of scenarios in which a litigant would want a bifurcated trial.  One such scenario is where a plaintiff sues two or more defendants and each defendant disputes its liability to the plaintiff.  In a bifurcated trial, the first trial will proceed on the defendants’ liability to plaintiff and the plaintiff’s damages.  If at the first trial, the defendants are found not liable to the plaintiff, there is no second trial.  However, if at the first trial, the defendants are found liable, a second trial will occur only on the issue of apportionment of fault between the remaining defendants.  Furthermore, the second trial will occur without the involvement of the plaintiff.  Under such circumstances, the Court may permit bifurcation so that the issue of the apportionment of fault between the defendants will not delay the plaintiff’s ability to recover for his or her damages.

Although Rule 42(b) provides the means for a trial to be bifurcated, the trial court is the sole decision maker of whether the trial is bifurcated.  “[T]he decision to separate is within the sound discretion of the trial court and is properly granted where the court concludes that such act will prevent undue delay and otherwise promote the interests of justice.”  Sanders v. Point After, Inc., 2 Haw. App. 65, 70, (1981).  “[T]he moving party has the “burden of proving that the bifurcation will promote judicial economy and avoid inconvenience or prejudice to the parties.”  Clark v. IRS, 772 F. Supp. 2d 1265, 1269 (D. Haw. 2009) (quoting Spectra-Physics Lasers, Inc. v. Uniphase Corp., 144 F.R.D. 99, 101 (N.D. Cal. 1992)).

An example of bifurcation is Kaina v. Gellman, 119 Haw. 324, 326 (Haw. App. 2008), where the Court bifurcated a plaintiff’s trial against two defendants.  There, the plaintiff brought an action against a doctor for medical malpractice, and against the employer hospital for negligently hiring the doctor.  Id.  While the parties were ready for trial on the claims against the doctor, the parties were not ready for trial on the claims against the hospital employer.  The Court bifurcated the trial, reasoning that if the plaintiff lost her case against the doctor, “the likelihood of a second trial is nil since she would still – or the plaintiff would still have to prove the medical negligence and causation, and I think that will then at least permit this woman who has lost her son to have her day in court on the essential issue without a prolonged delay. . . .”  Id.

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A Lis Pendens Is A Powerful, But Limited, Tool For Hawaii Real Estate Litigation Lawyers

Friday, October 25th, 2013

In Hawaii, a Notice of Pendency of Action, or Lis Pendens, is a written notice, filed in the Bureau of Conveyances, stating that there is a pending lawsuit regarding the ownership of that specific real property.  Although seemingly simple, a Notice of Pendency of Action is an enormous encumbrance on a piece of property, and should be used sparingly.  In fact, once the lis pendens is filed, the property becomes nearly impossible to transfer because a buyer will not purchase property whose title is in question.  HRS § 634–51, which authorizes a Notice of Pendency of Action provides as follows:

Recording notice of pendency of action. In any action concerning real property or affecting title or the right of possession of real property, the plaintiff, at the time of filing the complaint, and any other party at the time of filing a pleading in which affirmative relief is claimed, or at any time afterwards, may record in the bureau of conveyances a notice of the pendency of the action, containing the names or designations of the parties, as set out in the summons or pleading, the object of the action or claim for affirmative relief, and a description of the property affected thereby. From and after the time of recording the notice, a person who becomes a purchaser or incumbrancer of the property affected shall be deemed to have constructive notice of the pendency of the action and be bound by any judgment entered therein if the person claims through a party to the action; provided that in the case of registered land, section 501–151 shall govern.

The Notice of Pendency of Action had such a potential for litigation abuse that in 1994, the Hawaii Supreme Court in S. Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 75 Haw. 480, 866 P.2d 951 (Hawaii 1994), clarified the limited use of the NOPA.  In Utsunomiya, the Hawaii Supreme Court wrote that “a lis pendens may only be filed in connection with an action (1) ‘concerning real property,’ (2) ‘affecting title’ to real property, or (3) ‘affecting … the right of possession of real property.’” (quoting Kaapu v. Aloha Tower Dev. Corp., 72 Haw. 267, 269–70, 814 P.2d 396, 397 (1991) (citing HRS § 634–51)).  Furthermore, the Court stated that, “a]lthough the lis pendens doctrine may be applied to actions other than foreclosures, application of the doctrine must be restricted ‘in order to avoid its abuse.'”  Utsunomiya, 75 Haw. at 513.  Finally, the court held that “the lis pendens statute must be strictly construed and … the application of lis pendens should be limited to actions directly seeking to obtain title to or possession of real property.” Id. at 510.


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A Hawaii Attorney Has An Ethical Duty To Return Inadvertently Produced Documents

Thursday, October 17th, 2013

Throughout a case, the parties exchange numerous documents.  Responsible attorneys take precautions to review every document that is produced to the opposing party to ensure that documents that are not supposed to be seen by the opposing party, such as attorney client communications or work product, are not produced.  However, since lawyers are human, even the most careful law office can make mistakes.  The Hawaii Rules of Professional Conduct contemplate for an attorney’s inadvertent production of a privileged or confidential document, and governs the conduct of an attorney who has received the inadvertently produced document.  Hawaii Rule Professional Conduct 4.4(b) provides as follows:

(b)       A lawyer who receives a document and knows or reasonably should know that the document was inadvertently sent shall:

  1. not read the document further than reasonably necessary to determine its privileged or confidential nature within the meaning of Rule 1.6 of these Rules, and shall not disseminate the document or information about its contents to anyone other than a supervisory lawyer and/or disinterested lawyer consulted to secure legal advice about the receiving lawyer’s compliance with this Rule;
  2. promptly notify the sending lawyer; and
  3. either reach agreement with the sending lawyer with respect to the disposition of the material or refrain from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court.

Furthermore, the Comments to HRPC 4.4(b) states as follows:

[2] Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender and then either reach agreement with the sending attorney as to the disposition of the document or seek a ruling from the court as to whether the attorney-client privilege or work product protection was waived by the disclosure. This Rule incorporates Formal Opinion No. 39, issued by Hawaii’s Office of Disciplinary Counsel on April 26, 2001, as well as provisions suggested in “The Future of Inadvertent Disclosure: The Lingering Need to Revise Professional Conduct Rules,” P. Schaefer, Vol. 69 Maryland Law Review 195, 258-259 (2010). For purposes of this Rule, “document” includes e-mail or other electronic modes of transmission subject to being read out or put into readable form.

These rules are crystal clear and should be strictly followed.  If protected documents are inadvertently disclosed by a party’s attorney, the opposing attorney has the duty to refrain from reading the document and notify the disclosing party about the inadvertent disclosure.

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A Hawaii Attorney May Request An Award Of Costs For A Prevailing Party

Saturday, October 12th, 2013

We have previously written about the recovery of Attorney’s Fees in Hawaii.  Under the American Rule, parties to a lawsuit are responsible for paying their own expenses of litigation.  Certain statues, such as Hawaii Revised Statutes § 607-13, however, allow the prevailing party to recover his or her attorney’s fees from the non-prevailing party.

Hawaii law also provides for an award of costs.  Hawaii Rules of Civil Procedure Rule 54 states that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs.”  Thus, even if the parties are responsible for paying their own attorney’s fees, the prevailing party can still recover “costs” from the non-prevailing party.

Naturally, the next question is “what are costs?”  In Hawaii, costs awardable to a prevailing party are defined by Hawaii Revised Statutes § 607-9.  H.R.S. § 607-9 provides as follows:

Cost charges exclusive; disbursements.

No other costs of court shall be charged in any court in addition to those prescribed in this chapter in any suit, action, or other proceeding, except as otherwise provided by law.

All actual disbursements, including but not limited to, intrastate travel expenses for witnesses and counsel, expenses for deposition transcript originals and copies, and other incidental expenses, including copying costs, intrastate long distance telephone charges, and postage, sworn to by an attorney or a party, and deemed reasonable by the court, may be allowed in taxation of costs.  In determining whether and what costs should be taxed, the court may consider the equities of the situation.

H.R.S. § 607-9.

Hawaii courts have also opined on what costs are awardable to the prevailing party.  In fact, Hawaii courts have explicitly deemed some costs not recoverable.  Examples of costs that have been requested by litigants, but deemed not within the statute, are as follows:

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Hawaii Independent Medical Examinations Are Controlled By HRCP Rule 35

Thursday, October 10th, 2013

In Hawaii personal injury cases, an issue that is often in dispute is the existence and severity of the plaintiff’s physical injuries.  Often, the best source of evidence of the plaintiff’s injuries is the plaintiff’s own medical records.  In certain cases, a party will want to have an independent medical professional examine the plaintiff.  These examinations are called Independent Medical Examinations, or IMEs.  Rule 35 of the Hawaii Rules of Civil Procedure govern IMEs.  HRCP Rule 35 provides as follows:


(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

HRCP Rule 35(a).

In order for a defendant to obtain an order compelling a plaintiff to submit to an IME, the defendant must demonstrate (1) that the plaintiff’s mental or physical condition is “in controversy” and (2) that there is “good cause” for the Court to order the IME.  Schlagenhauf v. Holder, 379 US 14, 118 (1964).  Even where the party seeking the order compelling the IME has demonstrated (1) that plaintiff’s medical or physical condition is “in controversy” and (2) that there is “good cause,” “an order for the physical or mental examination of a party is not granted as of right and when the matter is contested, it is addressed to the sound discretion of the trial court.” Great West Life Assurance Co. v. Levithan, 153 F.R.D. 74, 76 (E.D. Pa. 1994).


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Recovery of Hawaii Attorneys Fees (Part 1)

Friday, February 24th, 2012

This is an updated version of a blog first published on September 19, 2006

Under Hawaii law, in certain commercial cases, the prevailing party may recover some or all of its attorneys fees from the losing party. HRS § 607-14, states as follows:

§ 607-14 Attorneys’ fees in actions in the nature of assumpsit, etc. In all the courts, in all actions in the nature of assumpsit . . . there shall be taxed as attorneys’ fees, to be paid by the losing party and to be included in the sum for which execution may issue, a fee that the court determines to be reasonable . . . . The court shall then tax attorneys’ fees, which the court determines to be reasonable, to be paid by the losing party; provided that this amount shall not exceed twenty-five per cent of the judgment.

* * * *

The above fees provided for by this section shall be assessed on the amount of the judgment exclusive of costs and all attorneys’ fees obtained by the plaintiff, and upon the amount sued for if the defendant obtains judgment.

Haw. Rev. Stat. § 607-14 (emphasis added).

There are certain key points regarding this statute about which each client should be made aware, including the following:

1. Plaintiff’s recovery of attorneys fees is capped at twenty five percent (25%) of the judgment awarded. Thus, for example, if the plaintiff is awarded a judgment of $100,000, the plaintiff’s recovery is capped at 25% of $100,000 or $25,000.

2. The defendant’s recovery is capped at 25% of the damages unsuccessfully sought by plaintiff. Thus, for example, if the plaintiff seeks $100,000, the defendant’s potential award is capped at $25,000.

3. If the plaintiff doesn’t specify the amount that he is seeking and it is impossible for the Court to determine the damages sought by the plaintiff, the prevailing defendant may be awarded all of its reasonable attorneys fees. Thus, the plaintiff is highly encouraged to specify early in the case the damages that plaintiff is seeking to ensure that if the plaintiff is unsuccessful, the attorneys fees award is capped.

4. The Hawaii Supreme Court has held that the attorneys fees award under HRS § 607-14 is not discretionary. The Court must award attorneys fees to the prevailing party.

5. The statute only applies to cases concerning “assumpsit” damages. The Hawaii Supreme court has defined an “assumpsit” case as a claim “for the recovery of damages for the non performance of a contract . . . as well as quasi contractual obligations.” Schulz v. Honsador, Inc. 67 Haw. 433 (1984). Although this law only applies to matters of “assumpsit,” it has been applied to various types of litigation including breach of contract, breach of fiduciary duty, and legal malpractice so long as they concern (i) an attempt to recover damages and (ii) a contractual arrangement.

Unfortunately, Hawaii does not have a similar attorneys fee provision in personal injury cases. Moreover, although HRS § 607-14 is not the only Hawaii law that allows for the recovery of attorneys fees. Therefore, when analyzing a case, a Hawaii attorney should also explore other theories that may allow the recovery of attorneys fees. Those theories will be discussed in subsequent entries of this blog.

In part two of this blog, we will discuss recent decisions by the Hawaii Intermediate Court of Appeals and the Hawaii Supreme Court which have clarified when HRS § 607-14 applies to quasi contractual obligations.

Part three of this blog will address the case of Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC, 121 Hawai’i 110, 214 P.3d 1100 (Hawai‘i App. 2009), in which the Intermediate Court of Appeals clarified the collections of attorneys fees in arbitrations, which was affirmed by the Hawaii Supreme Court.

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Hawaii Personal Injury Attorneys Must Get Court Approval Of Settlements For Minors

Thursday, February 2nd, 2012

A Hawaii personal injury attorney must be mindful of special procedures he or she must follow when litigating a personal injury action on behalf of a minor or an incapacitated person.  Because a minor or incapacitated person cannot make an informed decision regarding his or her case, Hawaii law requires that any settlement or judgment received in a minor’s court case be approved by a judge presiding in probate and that a conservator is appointed on behalf of the minor or incapacitated person.  Rule 101 of the Hawaii Probate Rules makes it the Plaintiff’s Attorney’s responsibility to initiate a conservatorship action for the eventual settlement or judgment in favor of the minor or incapacitated plaintiff.  Rule 101 of the Hawaii Probate Rules states as follows:


When a minor or incapacitated person receives a settlement or judgment from any claim or action, a conservatorship action must be initiated by the plaintiff’s attorney and any settlement approved by the court insofar as it affects the protected person or respondent. The judge presiding in probate shall appoint a conservator for the minor or incapacitated individual and determine whether any settlement is reasonable. A flag sheet shall be presented pursuant to Rule 103 for any hearing on a petition that seeks compromise of a tort claim on behalf of a minor or incapacitated person.

Hawaii Rules of Probate Court R. 101.

The personal injury attorney’s responsibility to initiate conservatorship proceedings and obtain judicial approval of settlement or judgment extends to matters in Federal Court.  Indeed, Rule 17.1 of the Local Rules of the District Court of Hawaii requires that Federal Court litigants abide by state laws (i.e., HRP 101) as to court approval of settlements involving minors.  Rule 17.1 provides as follows:

Except as otherwise permitted by statute or federal rule, no action by or on behalf of a minor or incompetent shall be dismissed, discontinued, or terminated without the approval of the court.  When required by state law, court approval shall also be obtained from the appropriate state court having jurisdiction over such matters for any settlement or other disposition of litigation involving a minor or incompetent.

LR 17.1 (emphasis added).

Additionally, even Hawaii personal injury attorneys obtaining settlements or awards in arbitration in favor of a minor or incapacitated person must initiate a conservatorship proceeding and have that settlement or award approved by a judge sitting in probate.  H.R.S. § 658A-22 states that a party receiving an arbitration award may ask the court to confirm the award.  H.R.S. § 658A-22 provides as follows:

After a party to an arbitration proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to section 658A-20 or 658A-25 or is vacated pursuant to section 658A-23.

HRS § 658A-22.

The confirmation of an arbitration award converts the award into an enforceable judgment, thus triggering Hawaii Probate Rule 101.  Mikelson v. United Services Auto. Ass’n, 122 Hawai’i 393, 396 (Hawai‘i App. 2010) (“Confirmation of an arbitration award is an ‘expeditious procedure for reducing or converting the arbitration award to a judgment which can be enforced by judicial writ.’”).  The Hawaii personal injury attorney who receives a favorable outcome for his or her minor or incapacitated client is cautioned not to forget these important special requirements in representing a minor or incapacitated client.

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Consumer Rights in Hawaii

Saturday, September 3rd, 2011

Consumers injured by deceptive marketing materials have recourse in the State of Hawaii.  We have previously written concerning the Hawaii Unfair and Deceptive Trade Practices Act.  H.R.S. § 480-2      

H.R.S. § 480-2 is a powerful tool to protect consumers and investors from advertisers whose marketing materials have a “tendency to mislead.”  Under H.R.S. § 480-2, an injured “investor or consumer” may be awarded treble damages, costs, and attorney’s fees under H.R.S. § 480-13.  The Hawaii Supreme Court has upheld this statute in multiple opinions. 

The United States Court of Appeals for the Ninth Circuit has also written an important opinion applying H.R.S. § 480-2 in the federal courts.  Yokoyama v. Midland Nat’l Life Insurance Co., 594 F.3d 1087 (9th Cir. 2010).  In Yokoyama, the Court affirmed that a person alleging a H.R.S. § 480-2 claim need not show that they were actually deceived.  Rather, the § 480-2 claimant need only establish that the advertising material in question had “the capacity to deceive.”  Yokoyama at 1093. 

The facts of Yokoyama illustrate the power of the Act.  In Yokoyama, the plaintiffs were a group of senior citizens living in Hawaii.  Yokoyama v. Midland Nat’l Life Insurance Co., 243 F.R.D. 400, 401 (D. Hawaii 2007).   Each purchased annuities sold by Midland National Life Insurance.  Id.  The plaintiffs did not purchase the annuities directly from Midland, but rather each plaintiff bought their annuities from an independent broker.  Id. at 403 The independent brokers were required to give a prospective purchaser a brochure created by Midland prior to selling the annuity.  Id.  Additionally, the independent brokers were allowed to “discuss, promote, or disparage” the annuities, as long as they were truthful.  Id.  The buyers claimed that the brochures provided by Midland, but given to them by the independent brokers, were deceptive.  Id.

The plaintiffs then brought a § 480-2 claim against Midland and asked the Court to certify their action as a class action.  Yokoyama, 243 F.R.D. at 405.  The District Court denied certification.  Id.  It reasoned that because each plaintiff was counseled by independent brokers, the individual plaintiffs would each have a different understanding of Midland’s brochure – some plaintiffs might not have even been deceived.  Id.  Thus, it determined that class certification would not properly serve the plaintiffs.  Id.

The Ninth Circuit disagreed.  On appeal, the Ninth Circuit determined that the District Court erred when it, in essence, required the plaintiffs to show that Midland’s brochure actually deceived them in order to state an H.R.S. § 480-2 claim.  Yokoyama v. Midland Nat’l Life Insurance Co., 594 F.3d 1087, 1092 (9th Cir. 2010).  Relying on Hawaii authority, the Ninth Circuit determined that a H.R.S. § 480-2 claim does not require that the plaintiff to actually be deceived.  Id.  The question is whether the brochure had “the capacity to deceive.”  Id.  The Ninth Circuit reversed the District Court’s decision and remanded for further proceedings.  Id. at 1093.

The Yokoyama case is a strong affirmation of Hawaii law and the Hawaii courts’ interpretation of H.R.S. § 480-2.  Both the Federal and State courts are clear.  A plaintiff does not need to demonstrate that they were actually deceived in order to sustain an H.R.S. § 480-2 claim – only that the marketing materials in question have the “capacity to deceive.”

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