Woo vs. Harmon - Witness Kenneth Hipp

David C. Farmer, Successor-Trustee vs. Harmon

(Formerly Woo vs. Harmon & Nicholson vs. Harmon)

CV05-00030 DAE KSC

U.S. District Court For the District of Hawaii

Judges: David A. Ezra; Kevin S. Chang

—

DEFENDANT’S WITNESS

KENNETH B. HIPP, Esq.

Marr Hipp Jones & Wang (now Marr Jones & Wang)
1001 Bishop Street
Ste. 1550, Pauahi Tower
Honolulu, HI 96813

Fax: (808) 536-6700

Email: c/o Barry Marr bmarr@marrhipp.com

Website: www.marrhipp.com

Kenneth B. Hipp was appointed by President Clinton to the National Mediation Board in Washington, D.C., where he served from 1995-1998. Previously he was a partner and chairman of the labor and employment section of Goodsill Anderson Quinn & Stifel in Honolulu. He was formerly employed by the National Labor Relations Board in the Enforcement Litigation Division in Washington, D.C. He has taught labor and employment law courses on the faculties of several universities. He received his undergraduate degree from Duke University (B.A.) and his law degree from the University of North Carolina School of Law (J.D. with high honors). As a labor lawyer for more than 25 years, he has extensive experience in client counseling, collective bargaining, arbitration, mediation, administrative agency practice, and litigation in federal and state courts. He has served as lead negotiator, attorney, or mediator in collective bargaining in numerous industries. He has been selected for inclusion in The Best Lawyers in America and Who's Who in America.

http://www.labnetusa.com/firm-marrhipp.html

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Kenneth Hipp was a partner in Marr, Hipp, Jones & Wang (now listed as only Marr Jones & Wang - it is unknown to Defendant as to WHEN or WHY Kenneth Hipp may have left the firm); Former president, National Mediation Board; Purported attorney for Defendants Henry H. Peters, Richard S.H. Wong, Lokelani Lindsey, Gerard Jervis and Oswald Stender, in Harmon’s RICO lawsuit; attorneys for the County of Maui (Arbitrator Judith Neustadter Fuqua’s employer); and recipient of letters in Harmon’s so-called “letter-writing campaign”.

This firm’s website lists as Representative Clients: ALTRES, Inc.; Bank of Hawaii; Cendant; Delta Air Lines; Del Monte Fresh Produce (Hawaii); Dole Food Company; The General Contractors Association of Hawaii; Hawaii Employers Council; Hawaiian Airlines; Hawaiian Electric; Hilton Hotels; Kaiser Permanente Health Plan; Grand Wailea Resort, Inc.; Mandarin Oriental Hotel Group; Manele Bay Hotel; Matson Navigation Company; Northwest Airlines; Norwegian Cruise Line; The Queen’s Medical Center; Servco Pacific; Tesoro Hawaii; United Air Lines; Wilcox Memorial Hospital.

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NEW DISCOVERY (07-07-08): Kenneth Hipp has apparently left the firm. Defendant will ask for information regarding when and why Mr. Hipp is no longer with the firm in formal discovery proceedings.

www.marrhipp.com

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NEW DISCOVERY (07-07-08): Kenneth Hipp was the attorney for Hawaiian Airlines in CV 92-2058 - Hawaiian Airlines vs. Grant T. Norris, a whistleblower case in which Norris was fired because he refused to help hide airplane maintenance safety problems. The attorney for Mr. Norris in this case was Defenant’s witness Susan Oki Mollway.

512 U.S. 246
114 S.Ct. 2239
129 L.Ed.2d 203

HAWAIIAN AIRLINES, INC., Petitioner,
v.
Grant T. NORRIS. Paul J. FINAZZO, Howard Ogden, Hatsuo Honma, Petitioners, v. Grant T. NORRIS.

No. 92-2058.

Supreme Court of the United States

Argued April 28, 1994.

Decided June 20, 1994.

Syllabus

Respondent Norris was terminated from his job as an aircraft mechanic by petitioner Hawaiian Airlines, Inc. (HAL), after refusing to sign a maintenance record, as required by his collective-bargaining agreement (CBA), for a plane he considered unsafe, and reporting his concerns to the Federal Aviation Administration.

In separate state-court suits against HAL and its officers, also petitioners, he alleged, inter alia, that he had been wrongfully discharged in violation of the public policy expressed in the Federal Aviation Act and implementing regulations and in violation of Hawaii's Whistleblower Protection Act.

The court dismissed these tort claims as pre-empted by the Railway Labor Act's (RLA's) mandatory arbitral mechanism for so-called "minor" disputes, which grow "out of grievances or out of the interpretation and application of agreements concerning [pay rates], rules, or working conditions," 45 U.S.C. § 153 First (i).

The State Supreme Court reversed, concluding that § 153 First (i)'s plain language does not support pre-emption of disputes independent of a labor agreement, and interpreting the opinion in Consolidated Rail Corp. v. Railway Labor Executives' Assn., 491 U.S. 299, 109 S.Ct. 2477, 105 L.Ed.2d 250, to limit RLA pre-emption to disputes involving contractually defined rights.

The court rejected petitioners' argument that the claims were pre-empted because resort to the CBA was necessary to determine whether Norris was discharged for insubordination, pointing to Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410, in which this Court held that the Labor Management Relations Act, 1947 (LMRA), pre-empts state law only if a state-law claim is dependent on the interpretation of a CBA, and that purely factual questions about an employee's conduct and the employer's conduct and motives do not require interpreting such an agreement's terms.

Held: The RLA does not pre-empt Norris' state-law causes of action.....

74 Haw. 648, 847 P.2d 263 (1993) (first case), and 74 Haw. 235, 842 P.2d 634 (1992) (second case), affirmed.

BLACKMUN, J., delivered the opinion for a unanimous Court.

Kenneth B. Hipp, Honolulu, HI, argued for petitioners.

Susan Oki Mollway, Honolulu, HI, argued for respondent.

Richard H. Seamon, Washington, DC, argued for the U.S. as amicus curiae, by special leave of the Court.

Justice BLACKMUN delivered the opinion of the Court....

http://www.altlaw.org/v1/cases/1387472

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NEW DISCOVERY (07-07-08) - KENNETH HIPP’S CONNECTION WITH THE NATURE CONSERVANCY :

Obituaries

Thursday, June 22, 2000

Kenneth B. Hipp Jr., 28, a former scuba instructor and commercial diver in Hawaii Kai, died June 8 in Patterson, La. He was born in Chapel Hill. N.C. He is survived by father Kenneth B.; mother Ann B., and brother Andrew C. Services: 4 p.m. Saturday at Unity Church, 3608 Diamond Head Circle. Aloha attire. No flowers. Donations suggested to the Nature Conservancy of Hawaii for its work with the Ko'olau Mountains Watershed Partnership, 923 Nuuanu Ave., Honolulu 96817.

http://starbulletin.com/2000/06/22/news/obits.html

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NEW DISCOVERY (02-09-08): Kamehameha Schools made a “confidential” settlement agreement with the plaintiff in the John Doe vs. Kamehameha Schools case, which my former attorney, John Goemans, Esq., says, according to what he has learned from the IRS, violates the rules for a non-profit charitable trust:

February 9, 2008

$7M

An attorney involved in a challenge to Kamehameha Schools' Hawaiians-only policy reveals the amount of a settlement

By Ken Kobayashi, Honolulu Star-Bulletin

Kamehameha Schools made the first move to settle a legal challenge to their admissions policy giving preference to native Hawaiians and later agreed to pay $7 million, a lawyer involved in the case said yesterday.

John Goemans, an attorney for an unnamed non-native Hawaiian student who filed a lawsuit contesting the policy, said the charitable trust offered for the first time to talk about an out-of-court settlement last May, just days before the U.S. Supreme Court was to decide whether to hear the case.

Goemans, a former Big Island attorney recuperating in Florida from heart surgery, and Sacramento, Calif., lawyer Eric Grant, the lead attorney, represented the unnamed student and his mother.

"They (the schools) approached Eric and said we wanted to settle and we have to settle by Friday morning," when it was believed the high court was to make a decision about accepting the case, Goemans said.

He said it appeared the high court would accept their appeal of an 8-7 decision by the 9th U.S. Circuit Court of Appeals that upheld the policy.

"They (the schools) were worried about losing in the Supreme Court," Goemans said.

Goemans said he did not know how Grant and the Kamehameha Schools arrived at the $7 million figure.

The hotly disputed federal civil rights lawsuit caused a firestorm of controversy among Kamehameha Schools supporters who believed the challenge struck at the more than century-old admissions policy and the heart of the charitable trust's mission to educate children of Hawaiian ancestry.

The confidential settlement was announced on May 14. Those connected with the case repeatedly refused to disclose the terms.

Goemans said he was disclosing the amount because he said he recently learned from Internal Revenue Service officials that Kamehameha Schools, a tax-exempt charitable trust, cannot keep the figure confidential.

"Because exempt organizations operate in the public good, you got to report all your expenses with particularity, and you cannot keep information relative to those expenses confidential," he said. "It's in the public interest to have full disclosure."

Ann Botticelli, Kamehameha Schools spokeswoman, said yesterday the settlement contained a confidentiality clause.

"We intend to honor the terms, and we will not be discussing the settlement or John Goemans' assertions," she said.

Grant said yesterday he had no comment.

Kamehameha Schools, a multibillion-dollar charitable trust and the state's largest private landowner, was established under the 1883 will of Princess Bernice Pauahi Bishop. It educates more than 6,700 students at its flagship campus at Kapalama Heights, two other campuses on Maui and the Big Island, and 31 preschools throughout the state.

Senior U.S. District Judge Alan Kay upheld the school's Hawaiians-first policy, but a panel of the appeals court in San Francisco ruled 2-1 that the practice violated federal civil rights laws. That decision triggered statewide protests and marches by school supporters.

Later, a larger appeals court panel voted 8-7 to uphold the policy.

It was an appeal by Grant of that 8-7 ruling that was on the doorsteps of the U.S. Supreme Court when the settlement was announced.

At the time, school officials indicated that the settlement calling for the dismissal of the lawsuit leaves intact the appeals court's 8-7 decision upholding the admissions policy.

But the dismissal does not guarantee that another lawsuit might surface and make its way to the high court, although it would first have to go through the federal trial and appeals courts, where the 8-7 ruling would be considered to be binding on the issue. But even if those who file the new lawsuit lose on those two levels, they could still ask the high court to review the case.

Honolulu attorney David Rosen said he has plaintiffs for a lawsuit to challenge the admissions policy. He said the settlement does not affect his case. Rosen said he expects the suit will be filed this year.

Goemans said Grant received 40 percent, or $2.8 million of the $7 million. Goemans said he is preparing to file his own lawsuit seeking to recover a "reasonable percentage" of the $7 million for his work in the case.

Goemans said he found the unnamed student and arranged for Grant to be the attorney for the student and his mother.

"I put the whole thing together," Goemans said. "But for me there would not have been a $7 million payment."

The student never was admitted to Kamehameha Schools because his case was pending. He has since graduated from high school and had been attending college, Grant said last year.

http://starbulletin.com/2008/02/09/news/story02.html

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February 9, 2008

Amount of settlement
raises critical concern

By Robert Shikina, rshikina@starbulletin.com

Supporters and critics expressed surprise yesterday at the $7 million Kamehameha Schools paid a student to settle a lawsuit disputing its Hawaiians-first admission policy.

One Kamehameha Schools alumnus says disclosure of the settlement with the anonymous, non-Hawaiian student will prompt questions among Hawaiians.

"I'm not happy with $7 million," said Kamehameha Schools alumnus Jan E. Hanohano Dill. "Unfortunately, that's a lot of money, and it's going to create a lot of questions in the Hawaiian community whether it was right or wrong and to continue."

Dill, also a board member of Na Pua a Ke Ali'i Pauahi, a nonprofit group whose members include students, parents, and alumni of Kamehameha Schools, said he continues to support the school's decision.

"I don't know the details, and I think that's something that has to be cleared," he said. "You settle because you want to avoid costs that would be incurred as you go forward."

He added, "I have to believe that they understood that this was something good for the Hawaiian people. ... It will be clear as things unfold whether that was true."

Dill, who is also president of the nonprofit Partners in Development Foundation, said the admissions policy must eventually be addressed and that the settlement avoids this case but does not stop other cases.

Marion Joy, former vice president of Na Pua, called the settlement a "misuse of trust funds."

"The trust is continually going to be challenged," she said. "This is not going to be the last. ... As far as settling for the particular lawsuit, it's not in the best interests of the beneficiaries (of the 1883 will of Princess Bernice Pauahi Bishop)."

Kamehameha Schools declined comment.

Honolulu attorney David Rosen, who has sought potential clients to sue Kamehameha over its admissions policy after the settlement, sent out a statement yesterday that said the $7 million settlement was used to "buy off this case."

He added that the trustees should open a campus on the Leeward Coast of Oahu and possibly Molokai where increased educational opportunities are needed.

H. William Burgess, a retired attorney and founder of Aloha for All, a group opposed to Hawaiian sovereignty, said the settlement raises questions about the proper use of the trust funds.

"Normally, trustees, if they're doubtful about doing something, they ask the court to give them instructions," he said. "Yet in this case, the biggest charitable trust, probably in the nation, instead of welcoming the opportunity to get the highest court in the land to settle it, they pay $7 million to leave it open. And it is very much open."

http://starbulletin.com/2008/02/09/news/story03.html

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From The Catbird Seat website:

The Wise Old Owl asks: How much of the settlement amount came from Kamehameha’s insurance companies, and how much came from the trust funds? How much did Kamehameha Schools (and/or their insurance company) spend for defense costs in this case before they decided to settle? Who is their insurance company? Their insurance broker? Who actually signed the Settlement Agreement?

http://www.kycbs.net/Bishop7.htm

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Kenneth Hipp is expected to testify as to why he claimed he was the authorized attorney for Kamehameha Schools/Bishop Estate, its Trustees and its employees named in Harmon’s RICO Lawsuit, when, in fact, the Court Records listing the Parties, and the Attorneys, indicate that these Trustees and employees were NOT REPRESENTED by any attorney.

Kenneth Hipp is also expected to testify as to the facts and circumstances of the settlement; to provide evidence (Attorney of Record letters) that he was authorized to represent Defendants Peters, Wong, Lindsey, Jervis and Stender in the settlement negotiations and agreement; and to explain why did not respond to Harmon’s letters requesting these documents and Defendant’s various Notices of Claims. Kenneth Hipp is also expected to produce evidence that his settlement negotiations on behalf of the trustees were approved, in advance of the negotiations, by KSBE’s liability insurance carriers, Federal Insurance Company (Chubb Group) and XL Insurance Company (Bermuda).

Kenneth Hipp is also expected to testify as to his, and his firm’s, personal, professional and business relationships with Bruce Bennett, Joshua Gotbaum, Carol Muranaka, James Nicholson, Mark Recktenwald, Ted Liu, Judith Neustadter Fuqua, Mary Lou Woo, Steven Guttman, Goodsill Anderson Quinn & Stifle, Cades Schutte, LLC, James “Kimo” Apana, City & County of Maui, Jeremy Harris, Mufi Hanneman, City & County of Honolulu, Linda Lingle, Cutter of Maui, Inc; Bob Awana, Kaanapali Beach Hotel, Kahala Mandarin Oriental Hotel, Manele Bay Hotel, Mauna Lani Resort, Outrigger Hotels and Resorts, Maui Land & Pineapple Company, Parker Ranch, Kaiser Permanente Medical Group, Robert K.U. Kihune, Gil Tam, Nathan Aipa, Louanne Kam, Colleen Wong, Lyn Anzai, Earl Anzai, Colbert Matsumoto, Barry Marr, William McCorriston, University of Hawaii, Evan Dobelle, Art Woolaway, UH Foundation, Hawaiian Airlines, Matson Navigation, Donna Tanoue, Bank of Hawaii, Larry Johnson, Summit Communications, City Bank, Island Insurance Company, Hawaiian Electric Company, Tesoro Hawaii, Faye Kurren, The Hawaii Nature Conservancy, Haunani Apoliona, Office of Hawaiian Affairs (OHA), Al Hee, Clayton Hee, Judge Susan Oki Mollway, Judge Barry Kurren, Judge Kevin Chang, Judge David Ezra, Judge Eden Elizabeth Hifo, Judge Robert Faris, Judge Rey Graulty, Rocco Sansone, Marsh & McLennan, St. Paul Travelers Insurance Co., First Insurance Company of Hawaii, J.P. Schmidt; AIG Hawaii, Hamilton McCubbin, Dee Jay Mailer, Clyde Mark, Edwina Clarke; Matt Tsukazaki, Robert Katz, Valerie Katz, Jeffrey Sia, Susan Tius, Guido Giacometti, Sukamto Sia, Bank of Honolulu, Milton Holt, Robert Herkes, Michael Nauyokas, Stanley Hong, Sabrina Toma, Jeffrey Portnoy, David Farmer, Benjamin Kudo, Margery Bronster, Dow Chemical, Dole Foods, and others to be named upon discovery.