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Posts Tagged ‘Hawaii’

Honolulu Magazine Lists Philip R. Brown Among the Best Lawyers in Hawaii

Friday, December 7th, 2012

Philip R. Brown was once again listed in Honolulu Magazine’s annual issue of The Best Lawyers in Hawaii.

Philip Brown is also listed in The Best Lawyers in America.  Mr. Brown also has the highest ethical/legal rating (AV) from Martindale Hubbell.  Mr. Brown is also listed by the National Trial Lawyers Association in the Top 100 Trial Lawyers.  Mr. Brown is listed in the Bar Register of Preeminent Lawyers under Civil Trial Practice, Commercial Litigation, and Personal Injury.  This is the third consecutive year that Mr. Brown has been recognized in Honolulu Magazine as one of the Best Lawyers in Hawaii.

This was also a banner year for firm attorney Effie Steiger.  In 2012, the National Trial Lawyers recognized Effie Steiger as one of the “Top 40 Under 40” trial lawyers in Hawaii.

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Hawaii Attorney Effie Steiger Named “Top 40 Under 40″

Wednesday, September 26th, 2012

The National Trial Lawyers Association has selected Hawaii attorney, Effie Steiger, of the Law Offices of Philip R. Brown, for inclusion in “Top 40 under 40” trial lawyers in Hawaii.

The National Trial Lawyers Top 40 Under 40 is a professional organization comprised of America’s top young trial lawyers.  According to the National Trial Lawyers Association, “Selection is based on a thorough multi-phase process which includes peer nominations combined with third-party research.  The result is a credible, comprehensive and impressive list of young attorneys chosen to represent their state.  Those lawyers selected have excelled in the court room, possess superior qualifications, and have displayed leadership as young trial lawyers.”

Ms. Steiger, a graduate of UNLV Law School, focuses on commercial litigation and personal injury matters.  Since her admission as a Hawaii attorney in 2007, Ms. Steiger has been involved in several trials, arbitrations and mediations.  Ms. Steiger was also recently sworn in as an arbitrator in the Hawaii Court Annexed Arbitration Program.

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Hawaii Attorney Philip R. Brown Rated AV Preeminent by Martindale Hubbell

Friday, February 3rd, 2012

Hawaii Attorney Philip R. Brown is proud to announce that he has once again received an AV Preeminent rating from his peers as recognized in the 2012 edition of Martindale Hubbell.  The AV rating is the “highest possible peer review rating for legal ability and ethical standards.”  According to Martindale Hubbell, the AV rating is the “pinnacle of professional excellence earned through a strenuous Peer Review Rating process that is managed and maintained by the world’s most trusted legal resource.”

Mr. Brown has been AV rated since 2000.  Below is a brief video about this achievement.

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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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An Employer May be Held Liable for an Employee in Hawaii

Friday, August 5th, 2011

There are several theories under which an employer may be held liable for the acts of an employee.  The most straightforward is called respondeat superior liability.  The elements of respondeat superior liability are (1) employee negligence (2) within the scope of the employee’s employment.  Id. (citations omitted). In defining the scope of an employee’s employment, the Hawaii Supreme Court reiterated its approval of Restatement (Second) of Agency §228 (1958) which states as follows:

(1) Conduct of a servant is within the scope of employment if, but only if:

        (a) it is of the kind he is employed to perform;

        (b) it occurs substantially within the authorized time and space limits;

        (c) it is actuated, at least in part, by a purpose to serve the master, and

        (d) if force is intentionally used by the servant against another, the use of  force is not unexpectable by the master.

Restatement (Second) of Agency §228 (1958) 

“An employer may be liable for the intentional torts of its employees as the law now imposes liability whether the employee’s purpose, however misguided, is wholly or in part to further the master’s business.”  State v Hoshijo ex rel. White, 102 Hawaii 307, 318, FN 27 (Hawaii, 2003).  In Wong-Leong v Hawaiian Independent Refinery, Inc., 76 Hawaii 433, 438 (1994).

“In instances where an employer cannot be held vicariously liable for its employee’s torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision.  However, a necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which cause the injury.”  Kenneth R. v Roman catholic Diocese of Brooklyn, 229 A.D.2d 159, 161 (N.Y.A.D. 2 Dept, 1997)

Indeed, Hawaii recognizes an action for negligent supervision.  See Costa v Able Distributors, Inc., 3 Haw.App. 486, 490 (Hawaii App., 1982).  In Dairy Road Partners v Island Insurance, 92 Hawaii 398, 426-27 (Hawaii, 2000), the Hawaii Supreme Court looked to the Restatement (Second) of Torts § 317 for the standards for a claim of negligent supervision by an employer.  According to Restatement (Second) of Torts § 317, an employer may be liable for negligent supervision if its employee intentionally harms another when the employee (i) commits the harm on the employer’s property or with the use of the employer’s chattels, (ii) the employer knows or should have known that the employer has the ability to control its employee and (iii) the employer knows or should have known that the employee needed to be controlled. 

Under the theory of negligent supervision, “an employer’s duty to control the conduct of his employee may arise when the acts complained of are so connected in time and place with the employment as to give the employer a special opportunity to control the employee.”  Costa v Able Distributors, Inc., 3 Haw.App. at 490.  As previously mentioned, “in order for the plaintiff to recover, he must show that the employer knew or should have known of the necessity and opportunity for exercising control over the employee.”  Id.  For example in Costa, the Hawaii Court of Appeals stated that the employer’s duty would arise only if the employer knew or should have known that the employee had a “propensity for causing automobile collisions while driving under the influence of alcohol, and thus, [the employer] should have prevented [the employee] from consuming beer on its premises.” 

Unlike the theory of respondeat superior where the employer is vicariously liable for the acts of its employees “that occur within the scope of employment,” a claim for negligent supervision, requires that the employee acted “outside of his or her employment.”  See Dairy Road Partners v Island Insurance, 92 Hawaii 398, 426-27 (Hawaii, 2000).  Therefore, a complaint fails to state a claim for negligent supervision if the complaint fails to assert that the employee acted outside the scope of his employment.  Dairy Road Partners at 427.

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Honolulu Attorney Philip Brown Selected to American Trial Lawyers Association

Friday, February 15th, 2008

I am honored to have been selected to the American Trial Lawyers Association (ATLA). This honor is explained in the American Trial Lawyers Association’s website as follows:

The American Trial Lawyers Association, is a national organization composed of the Top 100 Trial Lawyers from each state. Membership is obtained through special invitation and is extended only to those attorneys who exemplify superior qualifications, leadership, reputation, influence, stature, and profile in the trial lawyer legal community.

http://www.theatla.com/about.html

Although ATLA typically selects 100 lawyers from each state, when I received notification of this honor, ATLA explained that because of the limited size of the Hawaii bar ATLA had only selected 50 qualified attorneys from Hawaii. Naturally, I was flattered to have been included on this list.

The American Trial Lawyers Association is a prestigious organization, dedicated to recognizing those trial lawyers who represent their clients vigorously and judiciously. I am humbled to have been named to ATLA.

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Theft of a Corporate Opportunity

Tuesday, November 6th, 2007

We have represented clients alleged to have been involved in a “theft of a corporate opportunity.” As most people know, “a corporate officer or director is under a fiduciary duty of individual loyalty, good faith and fair dealing in conducting corporate business.” Racine v Weisflog, 477 N.W.2d 326, 329 (Wis App., 1991). One of the primary duties is that a corporate officer cannot divert assets of the corporation and use them for the officer’s personal advantage.

In Hawaii, the “corporate opportunity” doctrine has been explained as follows:

If there is presented to a corporate officer or director a business opportunity which the corporation is financially able to undertake, is, from it nature, in the line of the corporation’s business and is of practical advantage to it, is one in which the corporation has an interest or a reasonable expectancy, and, by embracing the opportunity, the self-interest of the officer or director will be brought into conflict with that of his corporation, the law will not permit him to seize the opportunity for himself.

Lussier v Mau-Van Development, Inc., 4 Haw.App. 359, 368 (Hawaii App., 1983)(Citing Guth v Loft, Inc., 5 A.2d 503, 511 (Del.Ch., 1939).

If an officer or director diverts a “corporate opportunity” for his or her own personal gain, then such action may constitute a breach of the officer or director’s fiduciary duty to the corporation (ie. the duty of loyalty). The damages for such breach may include, (i) recovery of any profits earned (usually with the imposition of a constructive trust on the property taken), (ii) compensatory damages, and/or (iii) injunctive relief.

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Amending a Complaint in Hawaii

Friday, October 5th, 2007

A case is started by filing by a Complaint. The party filing the Complaint is called the Plaintiff. In certain cases, a Plaintiff may decide to change his initial Complaint. There are many possible reasons that a Plaintiff may change or “amend” the Complaint (ie. the discovery of new evidence, a change in law, or even correcting a simple mistake). Hawaii Courts have specific rules for amending a Complaint. A Plaintiff may amend her Complaint once any time before an Answer or “responsive pleading” is served. Haw. R. Civ. P.15(a). However, if the amendment is sought after the Answer is filed, the Plaintiff must either obtain (i) written consent from the opposing party or (ii) permission from the Court.

Fortunately, that permission or “leave”, as it is referred to in the rules, is to be “freely given when justice so requires.” Haw. R. Civ. P.15(a). See also Hirasa v. Burtner, 68 Haw. 22, 26, 702 P.2d 772, 775 (1985) (stating same). A request for leave to amend may be made at any time. Kahalepauole v. Associates Four, 8 Haw. App. 7, 14, 791 P.2d 720, 724 (1990). Moreover, it is appropriate to grant the requested leave so long as there has been no undue delay, bad faith, or dilatory motive on the part of the movant, nor undue prejudice to the non-moving party. Bishop Trust Co. v. Kamokila Dev. Corp., 57 Haw. 330, 337, 555 P.2d 1193, 1198 (1976).

Both State and Federal Courts have recognized the generous standard in Rule 15 (a). In addition, the Ninth Circuit has held that the policy of favoring amendments should be applied with “extreme liberality.” United States v. Webb, 644 F.2d 977, 979 (9th Cir. 1981). The purpose of this policy is primarily because the Courts favor giving a Plaintiff the opportunity to “test his claim on the merits” Foman v. Davis, 371 U.S. 178, 182 (1962). In other words, a party should be given his “day in Court”, rather than limiting Plaintiffs claims through overly restrictive pleading rules.

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Six Million Dollar Award in Construction Litigation on Kauai

Friday, June 1st, 2007

Last month we received an arbitration award and judgment in excess of Six Million Dollars, against a mainland contractor on behalf of a mainland couple victimized while building their dream home on the island of Kauai. We persuaded the Arbitrator to award our clients treble damages pursuant to H.R.S. 480-2, the Hawaii Unfair and Deceptive Trade Practices Act. In awarding treble damages, the Arbitrator found that the contractor committed several Unfair and Deceptive Acts including the following:

a. At the time of the creation of the Agreement, the Contractors represented that they were licensed contractors. They were not.

b. Contractors collected $434,702.40 in unsubstantiated payments. The action of requesting payment for work that was not performed is both “unfair” and “deceptive.”

c. Contractors represented to the homebuilders that they would retain qualified subcontractors and staff the project with craftsmen qualified to construct a residence of this size and magnitude. Contractors did not.

d. Representing that the Kauai House would be built like a specific Scottsdale, Arizona Home that had been viewed by our clients, and that materials and craftsmen used on the Scottsdale Home would be used on the Kauai House. They were not.

e. Contractors did not disclose all information required under H.R.S. § 444-25.5 (Supp.2000) which is a per se violation of H.R.S. § 480-2.

In addition, the Arbitrator found that since an individual contractor acted in his personal capacity, he was “jointly and severally liable with the corporation.”

Obviously, we are very proud of the work that we performed to obtain this award for our clients.

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Posted in Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation | Leave a Comment »

Personal Jurisdiction Over Nonresidents in Hawaii

Wednesday, May 30th, 2007

We are frequently contacted by potential clients outside Hawaii who are curious if they can be sued in Hawaii. Whether or not you can be sued in Hawaii depends on “Personal Jurisdiction.”

The Plaintiff has the burden of establishing personal jurisdiction over a nonresident defendant. Ziegler v Indian River Country, 64 F.3d 470, 473 (9th Cir., 1995) However, “the Plaintiff need only make a prima facie showing of jurisdictional facts” to avoid dismissal. Schwarzenegger v Ford Motor Co., 374 F.3d 797, 800 (9th Cir., 2004). If Plaintiff is successful in making a prima facie showing on the motion to dismiss, Plaintiff “must eventually establish jurisdiction by a preponderance of the evidence either at a pretrial evidentiary hearing or at trial.” Hi-Pac. Ltd. v Avoset Corp., 980 F.Supp. 1134, 1137 (D.Haw., 1997).
“In determining whether [the plaintiff] has met this burden, uncontroverted allegations in [the] complaint must be taken as true, and ‘conflicts between the facts contained in the parties’ affidavits must be resolved in [the plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists.” AT&T; Co. v Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir., 1996)( quoting WNS Inc. v Farrow, 884 F.2d 200, 203 (5th Cir., 1989).

“To subject a nonresident defendant to suit, both the long-arm statute of the state in which the Court sits and constitutional due process requirements must be satisfied” Television Events & Marketing, Inc. v Amcon Distributing Co., 416 F. Supp.2d 948, 956-957 (D.Haw., 2006). “Because Hawaii’s long-arm statute reaches to the full extent permitted by the Constitution, the Court need only determine whether due process permits the exercise of personal jurisdiction.” Id. (citing Schwarzenegger, 374 F.3d at 800-801. “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations.” Burger King Corp v Rodzewicz, 471 U.S. 462, 471-472 (1985) In order to meet the due process requirement, the Court has to have “either general jurisdiction or specific jurisdiction” over the defendant. Doe v American National Red Cross, 112 F.3d 1048, 1050 (9th Cir., 1997); Robinson Corp v. Auto-Owners Ins. Co., 304 F. Supp.2d 1232, 1236 (D. Haw., 2003) (citation omitted).

General jurisdiction requires that defendant’s contact with the state be “continuous, systematic, and substantial.” Resnick v Rowe, 283 F.Supp.2d 1128, 1135 (D.Haw., 2003)(citing Helicopteros Nacionales de Columbia, S.A. v Hall, 466 U.S. 408, 414-416 (1984), Data Disc v Inc. v Sys. Tech. Assoc., Inc., 557 F.2d 1280, 1287 (9th Cir., 1977) In U.S. ex.rel. McCarthy v. Straub Clinic and Hosp. Inc., 140 F.Supp.2d 1062, 1702 (D.Hawaii, 2001), the United States District Judge, Honorable David Ezra, addressed the concepts of general and personal jurisdiction as follows:
“A defendant’s contacts with a state must be such that it “should reasonably
anticipate being haled into court there.” Sher, 911 F.2d at 1361. This could
arise in one of two ways. First, if the defendant’s contacts with the state are
“substantial,” or “continuous and systematic,” the court may exercise general
jurisdiction over it, regardless of whether the *1072 contacts is related to the
cause of action. Id. Second, if (1) the defendant takes some action to purposely
“avail himself ” of the privilege of conducting activities in the forum, thereby
invoking the benefits and protections of the forum’s laws,” (2) the cause of
action arises out of the defendant’s contacts with the state, and (3) it would
be reasonable to do so, the court may exercise specific jurisdiction over the
defendant.” Id. See also Sinatra v. National Inquirer, Inc., 854 F.2d 1191 (9th Cir.1988).

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