Farmer vs. Harmon - Witness: Sheryl Nicholson, Paul Johnson Park & Niles

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

SHERYL L. NICHOLSON

Paul Johnson Park & Niles
1001 Bishop Street, Ste 1300
American Savings Bank Tower
Honolulu, HI 96813

Fax: 808-528-1654 (Honolulu office)
Fax: 808-244-9775 (Maui office)

Email: snicholson@pjpn.com
Website: www.pjpn.com

Educational Background:

University of Hawaii, William S. Richardson School of Law, J.D.

University of Leeds, England, M.A., Medieval English Literature
and Language

University of Hawaii, B.A. with Distinction, English Literature

Professional Background:

Officer and director of Hawaii Women Lawyers from 1989-1990

Past President and Director of Hawaii Lawyers Care, 1990-1996

Chair and vice-chair of the Hawaii State Bar Association Committee for Delivery of Legal Services to the Public from 1990-1992

Member, Hawaii Commission on Judicial Conduct from 1992-1993

Member, Board of Directors of Hawaii Public Radio from 1992-1993

Member, Hawaii Access to Justice Commission since 1993

Member, Board of Directors of the Honolulu Zoological Society from 1995-2001, 2005-present

Member, Board of Directors of the American Civil Liberties Union of Hawaii from 2002, Vice-President 2004-present

Member, Hawaii State Bar Association, American Bar Association and National Asian Pacific American Bar Association, Hawaii Chapter

Recipient of the Hawaii State Bar Association Young Lawyers Division Justice Award in 1989

Faculty member of seminars sponsored by the Hawaii Institute of Continuing Legal Education and the National Business Institute on commercial leasing, civil motions practice and the Hawaii Rules of Appellate Procedure

Law clerk to then Associate Justice Herman T.F. Lum, Hawaii Supreme Court, 1981-1982

Publications:

Comment, “Hawaii’s Ceded Lands”, 1981 U. Haw. L. Rev 101

Emphasis:

Sheryl Nicholson has focused her practice on commercial litigation, counseling and dispute resolution. She has litigated in the federal and state courts in Hawaii in disputes involving real estate (including real estate developments, shopping center and other commercial leasing, title insurance, condominium management, Hawaiian land and water claims, and other real property matters), commercial transactions, construction, financing, commercial insurance, health benefits coverage, partnership and intra-corporate conflicts, receiverships, and other business matters.

She has also represented clients in arbitrations and mediations involving commercial and employment-related disputes, and regularly counsels clients on the matters described above.

Litigation:

Complex Litigation:

Ms. Nicholson has represented large hotel owners and developers in some of the largest and most complex commercial cases litigated in Hawaii, including lender liability litigation between a large hotel and resort owner and its Japanese lender consortium concerning loans exceeding $850 million. She has also litigated lawsuits between prominent hotel owners and their management companies over multi-million dollar management agreement disputes and termination issues, lender liability litigation between a prominent local developer and its Japanese lenders.

Practice:

Admitted to Practice Law: Hawaii and the federal courts

http://www.pjpn.com/

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NEW DISCOVERY (05-28-08): UNDISCLOSED CONFLICTS OF INTERESTS BETWEEN A NUMBER OF KEY WITNESSES WHO WERE WILLIAM S. RICHARDSON SCHOOL OF LAW GRADUATES OF THE CLASS OF 1981:

UNIVERSITY OF HAWAII

William S. Richardson
School of Law Alumni Assoc.

WSRSL Graduates

Class of 1981

James R. Aiona, Jr. • Lyn Anzai • Jan K. Apo • David Z. Arakawa • Canuto Bacal, Jr. • Josie Bayudan • Kurt R. Bosshard • Susan Barr Brandon • Alfred B. Castillo, Jr. • Robert L. Char • Gregory W.K. Chee • Steven J.T. Chow • Daniel E. Chur • Gail Odo Cosgrove • Beatrice K. Dawson • Michael M. Ebesugawa • Lahoma Fernandes-Nakata • Lawrence C. Foster • Dave Fukuoka • Lani Rae Garcia • Stephen Garcia • Nancy Gillette • Moya T. Davenport Gray • William A. Harrison • Susan Heftel-Liquido • Debra Heien • Clifford K. Higa • Naomi Hirayasu • Mark T. Ichiyama • Ashley K. Ikeda • Wesley Imamura • Valerie Uyehara Ito • Linda C.R. Jameson • Ward D. Jones • John G.S.H. Kanekoa • Lei Kihoi • Carol Kitaoka • Don S. Kitaoka • Karl K. Kobayashi • Kerry M. Komatsubara • Robyn Morimoto Kuwabe • Collin K.C. Lau • Denis Lee • James H.Q. Lee • Kimo Leong • Frances E.H. Lum • Michael Y.W. Lum • Linda C. McKenzie (V) • Rosemary McShane • Lee T. Miki • Jerry K. Muller • Ann Nakamoto • Brian Nakamura • Sheryl Nicholson • Carla M. Nishimoto • Ann M. Ogata-Deal • Cheryl K. Kakazu Park • Patrick Ribellia • Vernon Rivera • John B. Simpson • R. Erik Soderholm • Nancy T. Sugimura • Susan Tamanaha • Milton Tani • Dorothy A. Tom • Michelle Tucker-Friedheim • Jo Ann M. Uchida • J. Rodney Veary • Judy Weightman (deceased) • Thomas J. Wong • Paul T. Yamamura • Randal S. Yoshida •

http://www2.hawaii.edu/~lawalum/Grads/1981.html

~ ~ ~

GOVERNOR LINGLE APPOINTS ROBERT PIPER AS DEPUTY DIRECTOR OF BUDGET AND FINANCE

For Immediate Release: January 3, 2007

HONOLULU - Governor Linda Lingle has appointed Robert N. E. Piper as deputy director of the state Department of Budget and Finance. Piper’s new position takes effect today.

Piper was a key part of Lt. Governor James R. “Duke” Aiona, Jr.’s staff in the Administration’s first term, most recently as his chief of staff.

Prior to joining the Administration in 2002, Piper was an associate attorney with the law firm of Paul Johnson Park and Niles, as well as the law firm of Tam O’Connor Henderson Taira and Yamauchi.

He also worked for Bank of Hawai`i in various capacities, including commercial loan officer and credit analyst, assistant branch manager and commercial portfolio officer.

“Robert is a strong manager who has provided valuable contributions to the Lt. Governor’s office for the past four years,” said Governor Lingle. “We are pleased that Robert is taking on a new position in our Administration’s second term to assist Budget and Finance Director Georgina Kawamura in managing the state’s finances as we continue to ensure fiscal strength now and in the years to come.”

Piper served as past president of the Native Hawaiian Chamber of Commerce, and past chairman of the board of Honolulu Community Action Program. He is also actively involved in the U.S. Navy League.

Piper received his juris doctorate from the University of Hawai`i William S. Richardson School of Law, a master of business administration from the UH School of Business, and bachelor’s degree from Seattle University. He is a graduate of Damien Memorial School.

Piper replaces Stan Shiraki, who retired in November after more than 30 years of service with the department under four different administrations.

“Stan was an outstanding public servant who was dedicated to ensuring the state’s finances were managed responsibly and with integrity,” said Governor Lingle. “I appreciate his contributions during our Administration’s first term and throughout his long career of public service.”

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NEW DISCOVERY (05-28-08): TRUSTEE DAVID C. FARMER AND AAA ARBITRATOR JUDITH NEUSTADTER FUQUA HAVE UNDISCLOSED CONFLICTS-OF-INTEREST WITH JAMES PAUL, OF THE LAW FIRM PAUL JOHNSON PARK & NILES:

www.lawyers.webdesigntops.com/Hawaii/Wailuku/Judith-Neustadter/

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IN THE SUPREME COURT OF THE STATE OF HAWAI`I

---o0o--

In the Matter of the Water Use Permit Applications,
Petitions for Interim Instream Flow Standard
Amendments, and Petitions for Water Reservations
for the Waihole Ditch Combined Contested Case
Hearing

NO. 21309

MOTIONS FOR ATTORNEYS' FEES

(CASE NO. CCH-OA95-1)

JUNE 18, 2001

MOON, C.J., LEVINSON, NAKAYAMA, AND RAMIL, JJ. AND
CIRCUIT JUDGE IBARRA, IN PLACE OF KLEIN, J. RECUSED

OPINION OF THE COURT BY NAKAYAMA, J.

On October 16, 2000, petitioners-appellants Waihole-Waikne Community Association, Hakipuu Ohana, and Ka Lhui Hawai i (collectively, WWCA) and intervenor-appellant/cross-appellee Hawaii's Thousand Friends (HTF) filed motions for attorneys' fees in connection with the instant appeal; WWCA filed an amended motion on October 20, 2000. SeegenerallyIn re Water Use Applications, Petitions for Interim Instream Flow Standard Amendments, and Petitions for Water Reservations for the Waihole Ditch Combined Contested Case Hearing, 94 Hawaii 97, 9 P.3d 409 (2000) [hereinafter Waihole Ditch I]. Both parties (collectively, the Windward Parties) seek attorneys' fees under the "private attorney general" doctrine, an equitable rule heretofore never considered by this court. WWCA requests a total of $183,419.00 in fees taxed jointly and severally against "all appellees" in this case. HTF seeks a total of $18,513.40 in fees against "each of the parties participating in the appeal" except WWCA, apportioned in the court's discretion. Numerous parties filed oppositions to the Windward Parties' motions: appellants City and County of Honolulu Planning Department and Board of Water Supply; appellee Commission on Water Resource Management (the Commission); appellee Department of the Navy; appellee/cross-appellant Dole Food Company Inc./Castle & Cooke, Inc.; appellee/cross-appellant Estate of James Campbell; appellee Hawaii Farm Bureau; applicant/petitioner-appellant Kamehameha Schools Bishop Estate; appellee/cross-appellant Land Use Research Foundation; applicant-appellee Nihonkai Lease Co., Ltd.; appellee/cross-appellant Robinson Estate; applicant-appellee Royal Oahu Resort; State of Hawaii Agribusiness Development Corporation; and appellee/cross-appellant State of Hawaii Department of Agriculture. Appellee/cross-appellant State of Hawaii Department of Land and Natural Resources joined in the memorandum submitted by State of Hawaii Department of Agriculture and Appellee/cross-appellant Puu Makakilo, Inc. joined in the memorandum submitted by the Estate of James Campbell.

In their submissions to the court, the parties advance various arguments for and against the adoption of the "private attorney general" doctrine. For the reasons stated below, we deny the Windward Parties' motions....

II. CONCLUSION

Accordingly, without deciding the merits of the "private attorney general" doctrine, or foreclosing its application in any future case, we hold that the doctrine does not apply here. The Windward Parties' motions are therefore denied.

On the motions for attorneys' fees:

Paul H. Achitoff (David L. Henkin,
D. Kapuaala Sproat, of Earthjustice
Legal Defense of Fund, and Alan T.
Murakami and Carl C. Christensen
of Native Hawaiian Legal Corporation
with him on the motion) for
petitioners/appellants

James T. Paul (Pamela W. Bunn with
him on the motion and reply) of
Paul Johnson Park & Niles for
intervenor/appellant/cross-appellee

In opposition:

Reid M. Yamashiro, Deputy
Corporation Counsel, for
appellants City and County of
Honolulu Planning Department
and Board of Water Supply

Sonia Faust, Deputy Attorney
General, for appellee Commission
on Water Resource Management

Paul M. Sullivan (Robert Klarquist,
Willia B. Lazarus, Andrew C. Mergen
and Cheryl L. Connett with him on
the memoranda) for appellee
Department of the Navy

Gary M. Slovin (Margaret Jenkins
Leong and Lisa A. Bail with him
on the memorandum) of Goodsill
Anderson Quinn & Stifel for
appellee/cross-appellant Dole
Food Company, Inc./Castle & Cooke, Inc.

Michel A. Okazaki (Alan M. Oshima
and Yvonne Y. Izu with him on the
memorandum) of Oshima Chun Fong &
Chung for appellee/cross-appellant
Estate of James Campbell

Gilbert D. Butson of Reinwald
O'Connor & Playdon on the
joinder for appellee/cross-appellant
Puu Makakilo, Inc.

James K. Mee of the Pacific Legal
Foundation for appellee Hawaii Farm
Bureau Federation

M. Uilani Pauole (Benjamin A. Kudo,
Wesley M. Fujimoto, Stacy E. Uehara
and Naomi U. Kuwaye with her on the
memoranda) of Imanaka Kudo & Fujimoto
for applicant/petitioner-appellant
Kamehameha Schools Bishop Estate

Kelly G. LaPorte (Gino L. Gabrio with
him on the memorandum) of Cades Schutte
Fleming & Wright for appellee/
cross-appellant Land Use Research
Foundation of Hawaii

Jon T. Yamamura (Kevin E. Moore with
him on the memorandum) of Carlsmith
Ball for applicant-appellee Nihonkai
Lease Co., Ltd.

Stephen K.C. Mau (Cheryl A. Nakamura
with him on the memoranda) of Rush
Moore Craven Sutton Morry & Beh for
appellee/cross-appellant Robinson Estate

Ronald R. Sakamoto for applicant-
appellee Royal Oahu Resort Golf Course
Presley W. Pang, (Diane Erickson with
him on the memorandum), Deputy Attorneys
General, for State of Hawai`i
Agribusiness Development Corporation

Haunani Burns, (Deborah Day Emerson
and Marjorie A. Lau with her on the
memorandum), Deputy Attorneys General,
for State of Hawai`i Department of
Agriculture

Ray S.T. Enos, (Heidi M. Rian with
him on the memorandum), Deputy
Attorneys General, on the joinder for
State of Hawai`i Department of Land
and Natural Resources

http://www.state.hi.us/jud/21309.htm

~ ~ ~

IN THE SUPREME COURT OF THE STATE OF HAWAI`I

DEOGRACIAS T. GARCIA, JR., and SHEILA J. GARCIA, Plaintiffs-Appellants/Cross-Appellees, v. KAISER FOUNDATION HOSPITALS; KAISER FOUNDATION HEALTH PLAN, INC.; HAWAII-PERMANENTE MEDICAL GROUP INC, Defendants-Appellees/Cross-Appellees; and KENT DAVENPORT, M.D., Defendant-Appellee/Cross-Appellant; and THE HONOLULU MEDICAL GROUP, Defendant-Appellee/Cross-Appellant, and JOHN DOES 3-10, Defendants

NO. 19714

APPEAL FROM THE FIRST CIRCUIT COURT

(CIV. NO. 92-3358)

JUNE 9, 1999

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, AND RAMIL, JJ.

OPINION OF THE COURT BY RAMIL, J.

After a work-related accident, plaintiffs-appellants/ cross-appellees Deogracias T. Garcia, Jr. (Deogracias) and Sheila J. Garcia (Sheila) brought a multicount complaint against defendants-appellees/cross-appellees Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc., and Hawaii-Permanente Medical Group, Inc. (collectively, Kaiser) for damages and injunctive relief in connection with the alleged improper failure to provide benefits under a health benefits plan (the health plan) provided by Deogracias's employer. Plaintiffs later identified defendant-appellee/cross-appellant Kent Davenport, M.D., and defendant-appellee/cross-appellant The Honolulu Medical Group (HMG) as defendants. The circuit court subsequently granted Kaiser's motion for summary judgment, and Dr. Davenport's and HMG's motions to dismiss.

On appeal, Plaintiffs contend that the circuit court erred in concluding that: (1) Plaintiffs' claims against Kaiser were preempted by the Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. § 1001, et seq.; and (2) it had no jurisdiction over Plaintiffs' complaint against Dr. Davenport and HMG because those claims were medical torts that needed to be submitted to the Medical Claims Conciliation Panel (MCCP) under HRS § 671-12 (1993) prior to the filing of the complaint. Because we hold that ERISA does not preempt count six of Plaintiffs' complaint insofar as it seeks equitable relief, we vacate the circuit court's judgment with respect to count six of Plaintiffs' complaint. We affirm the circuit court's judgment in all other respects.

I. BACKGROUND

In January 1988, Deogracias was employed by Holmes & Narver (Employer) as a carpenter on Johnston Island. Kaiser, a Health Maintenance Organization (HMO), is a provider of one of the three health benefit plans made available by Employer to its employees and their dependents. Pursuant to the terms of employment, Employer provided Deogracias with health benefit coverage through Kaiser. Under Deogracias's health plan, the monthly premiums for the health plan were paid by Employer to Kaiser for each group member. In exchange, Kaiser agreed to provide necessary medical services that are generally and customarily provided by an attending physician, subject to certain stated terms, conditions, and exclusions.

On January 18, 1988, while working on a project on Johnston Island, Deogracias twisted his back and immediately thereafter felt pain in his lower back and left hip. After he continued to experience these pains, Deogracias was sent to the Kaiser Hospital in Honolulu.

Following examinations and tests, Kaiser doctors determined that Deogracias was suffering from necrosis in both hips. The doctors also opined that Deogracias's low back pain resulted from a herniated lumbar disk. The doctors, however, concluded that the necrosis was not work-related and relayed that information to Employer's workers' compensation insurance carrier, Wausau Insurance Company (Wausau).

Because the necrosis was not found to be work-related, Wausau refused to pay for Deogracias's hip replacement surgery. After Deogracias made numerous office visits, Kaiser referred Deogracias to Dr. Davenport, an orthopedic specialist at HMG. After an examination, Dr. Davenport diagnosed Deogracias with necrosis in both hips and a herniated lumbar disc. Dr. Davenport determined that Deogracias would likely require replacement of both hips and a laminectomy to treat his herniated lumbar disc.

On September 23, 1988, Dr. Davenport submitted a formal report to Wausau for authorization to perform the hip replacement surgery and the laminectomy. In response to Wausau's inquiry thereafter, Dr. Davenport opined that Deogracias's back injury was the result of a work-related accident but that the necrosis of his hips was not. Thereafter, Employer and Wausau granted Dr. Davenport's request for authorization to perform a lumbar laminectomy but denied authorization for the hip replacement surgery.

On August 27, 1993, Plaintiffs filed a complaint against Kaiser, alleging: (1) breach of contract; (2) tortious breach of contract; (3) infliction of emotional distress; (4) fraud; (5) unfair and deceptive trade practices; (6) injunctive relief; (7) attorneys' fees; (8) loss of consortium; and (9) punitive damages. In short, Plaintiffs' complaint alleged that Kaiser failed to provide Deogracias with the reasonable and necessary medical treatment to which he was entitled to under the health plan.

On September 13, 1995, Plaintiffs sought leave of court to identify Dr. Davenport and HMG as doe defendants. The circuit court later granted Plaintiffs' motion. Plaintiffs' claims against Dr. Davenport and HMG included: (1) breach of contract; (2) tortious breach of contract; (3) infliction of emotional distress; (4) fraud; and (5) unfair and deceptive trade practices under HRS ch. 480 (1993).

On October 3, 1995, Kaiser filed a motion for summary judgment seeking a determination that Plaintiffs' claims were preempted by ERISA. Thereafter, Dr. Davenport and HMG moved to dismiss Plaintiffs' complaint due to lack of subject matter jurisdiction. Following a hearing on these motions on November 17, 1995, the circuit court granted: (1) Kaiser's motion for summary judgment; and (2) Dr. Davenport and HMG's motion to dismiss. Accordingly, judgment in favor of all defendants and against Plaintiffs was entered on February 12, 1996. From this judgment, Plaintiffs filed a timely notice of appeal....

IV. CONCLUSION

For the foregoing reasons, we vacate the circuit court's judgment with respect to count six of Plaintiffs' complaint and remand this case to the circuit court on the issue of equitable relief. We affirm the circuit court's judgment in all other respects.

On the briefs:

George W. Ashford, Jr.

of Ashford & Associates

for Plaintiffs-Appellants/

Cross-Appellees Deogracias

Garcia and Sheila Garcia

Allegra Hyte (William A.

Bordner with her on the

briefs) of Burke, Sakai,

McPheeters, Bordner,

Iwanaga & Estes for

Defendant-Appellee/Cross-

Appellant The Honolulu

Medical Group, Inc.

Daniel T. Kim (Arthur F.

Roeca and H. William

Goebert, Jr. with him on

the briefs) of Roeca, Louie

& Hiraoka for Defendant-

Appellee/Cross-Appellant

Kent Davenport, M.D.

Robyn B. Chun (Sheryl L.

Nicholson of Paul Johnson

Park & Niles, and George W.

Playdon, Jr. and M. Lorena

Uy of Reinwald, O'Connor,

Marrack, Hoskins & Playdon

with her on the brief) for

Defendants-Appellees/Cross-

Appellees Kaiser Foundation

Hospitals, Kaiser Foundation

Health Plan, Inc., and Hawaii-

Permanente Medical Group, Inc.

~ ~ ~

NEW DISCOVERY (05-28-08): TRUSTEES MARY LOU WOO, JAMES NICHOLSON AND DAVID C. FARMER; THE AMERICAN ARBITRATION ASSOCIATION AND THEIR APPOINTED ARBITRATOR JUDITH NEUSTADTER FUQUA; AND THE TRUSTEES’ ATTORNEY STEVEN GUTTMAN FAILED TO DISCLOSE DIANE PLOTTS‘ AND JAMES PAUL’S RELATIONSHIPS TO THE AMERICAN ARBITRATION ASSOCIATION, IN CLEAR VIOLATION OF THE AAA’S RULES FOR NEUTRALITY OF ARBITRATORS.

Exhibits:

www.kycbs.net/BH-Settlement-Chronology.htm

www.kycbs.net/AAA-Answer-5-13-3.htm

www.kycbs.net/AAA-8-5-3.htm

www.kycbs.net/AAA-8-8-3.htm

www.kycbs.net/AAA-Guttman-8-9-3.pdf

www.kycbs.net/AAA-8-18-3.htm

www.kycbs.net/AAA-8-19-3.htm

www.kycbs.net/AAA-8-23-3.htm

www.kycbs.net/AAA-Guttman-8-25-3.pdf

www.kycbs.net/AAA-8-26-3.htm

www.kycbs.net/AAA-9-19-3.htm

www.kycbs.net/AAA-9-23-3.htm

www.kycbs.net/AAA-10-9-3b.htm

www.kycbs.net/AAA-11-19-3.htm

www.kycbs.net/AAA-HarmonPosition.htm

www.kycbs.net/AAA-Witnesses.htm

www.kycbs.net/CV05-00030-Exhibits.htm

~ ~ ~

NEW DISCOVERY (05-28-08): Undisclosed conflicts of interest between Randall Wulff, Larry Silverstein, U.S. Attorney General Michael Mukasey, Joshua Gotbaum, David C. Farmer, Steven Guttman, Roy Hughes, Colbert Matsumoto, James Watanabe, J. Douglas Ing, Diane Hastert, Bert Kobayashi, Warren Price III, James Duca, Chubb Group, Marsh & McLennan, AIG, James T. Paul, and others:

April 21, 2004

Wulff Chosen to Head 9/11 Panel
on WTC Loss

Attorney was picked by judge in New York to help
on panel determining value of damages

By Josh Richman, STAFF WRITER, The Oakland Tribune

An East Bay attorney and mediator will play a pivotal role in determining the amount of loss resulting from the World Trade Center's destruction at the hands of terrorists Sept. 11, 2001.

Randall W. Wulff of Piedmont was selected Tuesday by U.S. District Chief Judge Michael B. Mukasey of New York to be chief umpire on a three-person appraisal panel that will address reconstruction costs as well as rental value and business interruption damages. Hearings are expected to begin later this year.

The battle over the monetary costs of the World Trade Center's destruction, and who will be paid how much for those costs, has become almost as twisted as the wreckage of the towers. And the battle has turned somewhat political, with New York officials touting the rebuilding of Ground Zero as crucial to the region's economic recovery.

World Trade Center leaseholder Larry Silverstein claims his insurers owe him almost twice their policy limits -- as much as $6.8 billion -- based on a switch in insurance forms that he believes recognizes the two impacts by two hijacked jet airliners as two separate losses. His claim went to a six-man, six-woman federal jury Monday after a 10-week trial.

After the jury -- and those in future proceedings involving other members of Silverstein's jury pool -- has determined the extent of the insurers' liability, it'll be up to Wolff's panel to determine what the actual losses are.

Wulff was with San Francisco's Farella, Braun and Martel from 1974 -- first as a trial lawyer, and from 1994 on as a "neutral" mediator -- until 2000, when he cofounded Oakland's Wulff Quinby Sochynsky, which exclusively provides mediation, arbitration and other alternative dispute resolution services.

He has helped settle almost 2,000 cases in the past 15 years, including the recent $1.1 billion settlement of the California class action against Microsoft. He also has helped resolve monetary disputes related to renovation of the Oakland Arena and construction of other high-profile projects from ballparks to Las Vegas casinos. And he has authored, edited or co-edited books on alternative dispute resolution.

His firm's Web site says his daily fee is $9,500 for cases in the Bay Area or Sacramento, $11,000 for cases elsewhere.

Wulff holds an undergraduate degree from the University of Oregon, attended the Netherlands Institute of International Business and holds a law degree from the University of California, Hastings College of the Law in San Francisco.

http://www.wqsadr.com/articles.html

REFERENCES

A sample of names follows here. A lengthier list of specific references from counsel and parties in cases where Mr. Wulff has acted as mediator is also available upon request....

Hawaii

Diane D. Hastert, Esq.
Damon Key Leong Kupchak Hastert
1600 Pauahi Tower, 1001 Bishop Street
Honolulu, HI 96813
Telephone: 808-531-8031

Bert T. Kobayashi, Esq.
Kobayashi, Sugita & Goda
First Hawaiian Center, Suite 2600
Honolulu, HI 96813
Telephone: 808-529-8700

Andrew Winer, Esq.
Winer Heheula & Devens
Pali Palms Plaza
970 North Kalaheo Ave, Suite A-300
Kailua, HI 96734
Telephone: 808-254-5855

David Schulmeister, Esq.
Cades Schutte Fleming & Wright
1000 Bishop Street, Suite 1000
Honolulu, HI 96813
Telephone: 808-521-9200

John T. Hoshibata, Esq.
Crabtree & Hoshibata
2300 Pauahi Tower
1001 Bishop Street
Honolulu, HI 96813
Telephone: 808-524-5644

Elton John Bain
Kessner Duca Umebayashi Bain & Matsunaga
19^th Floor, Central Pacific Plaza
229 South King Street
Honolulu, HI 96813

Warren Price III, Esq.
Price Okamoto Himeno & Lum
Ocean View Center
707 Richards Street, Suite 728
Honolulu, HI 96813
Telephone: 808-538-1113

Roy F. Hughes
Hughes & Taosaka
900 Pauahi Tower
1001 Bishop Street
Honolulu, HI 96813
Telephone: 808-526-9744

Brad S. Petrus
Tom Teetrus & Miller
The Arcade Building
212 Merchant Street, Suite 200
Honolulu, HI 96813
Telephone: 808-522-0800

Milton M. Yasunaga
Cades Schutte Law Firm
1000 Bishop Street, Suite 1200
Honolulu, HI 96813
Telephone: 808-521-9200

John T. Komeiji
Watanabe Ing & Komeiji
999 Bishop Street, 23^rd Floor
Honolulu, HI 96813
Telephone: 808-544-8300

Roger Moseley
Moseley Biehl Tsugawa Lau & Muzzi
1100 Alakea Street, 23^rd Floor
Honolulu, HI 96813
Telephone: 808-531-0490

James T. Paul, Esq.
Paul Johnson Park & Niles
Pacific Tower, 1001 Bishop St., Suite 1300
P.O.Box 4438
Honolulu, HI 96812
Telephone: 808-524-1212

James Lawhn
Oliver, Lau, Lawhn, Ogawa & Nakamura
707 Richards Street, Suite 600
Honolulu, HI 96813
Telephone: 808-533-3999

http://www.wqsadr.com/randallwwulff.html

~ ~ ~

August 9, 2003

VIA fax only @ (559) 490-1919

Ms. Julie A. Schermerhorn, Supervisor, and
Mr. Justin W. Schuck, Case Manager
American Arbitration Association
6795 North Palm Avenue, 2^nd Floor
Fresno, California 93704

RE: Mary Lou Woo, Trustee v. Bobby N. Harmon

Case No. 74 166 00491 03 JUSC

Dear Ms. Schermerhorn and Mr. Schuck:

This responds to Steven Guttman’s letter to you dated August 9, 2003, which he begins by saying:

“First, as to Mr. Harmon’s comments regarding the permanent injunction, we have repeatedly advised Mr. Harmon that his insistence on forwarding copies of correspondence relating to issues addressed in the Settlement Agreement to third parties constitutes a violation of the injunction. In fact, his breach of the confidentiality clause of the Agreement is one of the reasons this matter is before the AAA for resolution. Nevertheless, Mr. Harmon continues his behavior; i.e., transmitting copies of correspondence regarding the selection of an AAA arbitrator to the Internal Revenue Service, the Hawaii Attorney General’s Office, the Hawaii Governor’s Office, etc. We are not agreeable to a waiver of the permanent injunction and, in fact, reiterate our demand that Mr. Harmon immediately cease and desist from communicating with third parties concerning matters relating to the confidential Settlement Agreement.”

I continue to disagree with Mr.Guttman’s interpretation that my communications to the regulatory agencies he mentions is a breach of the confidentiality clause. However, my understanding is that this issue is to be decided with the Arbitration process, and not by the AAA. If this needs to be decided at this point, however, I would argue that a person’s right to report criminal activity to regulatory authorities cannot be prohibited under any legal contract. I would surmise that this would be especially true if the crimes were committed after the contract was signed.

Mr. Guttman continues:

“Secondly, the land appraisals and land use decisions referenced in Mr. Harmon’s comments objecting to the appointment of Ms. Neustadter have nothing whatsoever to do with her selection of an arbitrator in this proceeding. We have no idea why in his letter of August 7, 2003, he chose to share with the AAA the newspaper story concerning ‘Developer to clean up Maalaea Bay runoff’. Ms. Neustadter is not mentioned in the article; even if she had been mentioned, the story has no relationship whatsoever to this proceeding or to Ms. Neustadter’s role as the arbitrator.”

Again, I must disagree with Mr. Guttman. I chose this one particular article because it seemed to summarize fairly well just one of the many controversies and accusations of improper and illegal kick-backs to land use commissioners, and violations of EPA regulations, that have arisen over the years in Hawaii. As I have mentioned in previous letters, I feel there is too much public information available in court cases and media reports to include everything in these letters. However, if that is what it will take to convince you that there is, at the very least, a potential conflict-of-interest with Ms. Neustadter, I can fax you dozens, if not hundreds, of pages of additional material.

Mr. Guttman continues:

“Thirdly, Ms. Neustadter’s personal politics, whatever they may be, are not pertinent to the question of whether she can serve as the arbitrator in this matter. We don’t believe Mr. Harmon meant to imply that he has documents evidencing that Ms. Neustadter may have made an ‘illegal political contribution’ but, if he believes he has such evidence, he should expressly so state. At a minimum, he needs to clarify his statement on this specific point, which he can do without violating the injunction. As to whether Mr. Harmon has evidence that someone associated with the County of Maui may have made an ‘illegal political contribution’, quite frankly, such evidence has no relevancy to Ms. Neustadter’s appointment as the arbitrator in this case.”

Mr. Guttman is correct in that I did not mean to imply that I have documents evidencing that Ms. Neustadter may have made an “illegal political contribution.” To clarify my intent, in my testimony to the Attorney General’s office, and to the IRS, I did provide first-hand information about certain illegal political activities of Kamehameha Schools involving Gil Tam, Nathan Aipa, Nam Snow, Henry Peters, Milton Holt and others within this organization. The point is not that Ms. Neustadter was personally involved with any of these activities, but that her position on the Maui Land Use Commission places her in a position where she has influenced in the past, and can influence in the future, land use matters involving the vast land holdings of Kamehameha Schools. In my view, this should be sufficient cause to disqualify Ms. Neustadter.

With all the public information available on this subject, I, too, feel it should not be necessary to obtain a waiver of the permanent injunction, but Mr. Guttman seems to require an even greater, overwhelming abundance of evidence than is available to the general public. The only possible way I would be able to provide such a degree of evidence would be to have the injunction lifted.

Mr. Guttman continues:

“Fourthly, as noted above, this matter has come before the AAA for resolution due in significant part to Mr. Harmon’s ongoing breach of the confidentiality clause of the Settlement Agreement. A review of the issues pending before the AAA in this case establishes the fact that it concerns contract law and not employment law as Mr. Harmon settled all employment issues when he entered into the settlement agreement that is the subject of this arbitration. Therefore, it is not material whether the information disclosed in Ms. Neustadter’s resume addresses specific experience in the area of employment law.”

Again, I disagree with Mr. Guttman’s interpretation of the Settlement Agreement, and his statement that this case does not involve employment law. I have been guided in this case by the AAA’s published National Rules for the Resolution of Employment Disputes which states, “Arbitrators serving under these rules shall be experienced in the field of employment law.” If Mr. Guttman’s interpretation of these rules is correct, then should not the AAA have informed me of this fact before the selection process commenced? I ask the AAA to keep in mind that I am not an attorney, and not yet represented by an attorney, so I may not be aware of all the legal aspects regarding these issues.

I would also point out that Disputed Issue No. 2 reads, “Whether the payment of the settlement proceeds under the Agreement constitute wages from the Kamehameha Schools and are entitled to such treatment.” Also, Issue No. 5, which is the “letter writing campaign” issue, began with my initial request for my IRS W-2 and 1099-R forms, and the large majority of my letters have dealt with this issue. I continue to maintain that Social Security wages and Pension Plan benefits ARE employment issues which require experience in the field of employment law.

Mr. Guttman continues:

“Today I received a copy of a letter Mr. Harmon sent to United States attorneys apparently involved in litigation he describes as ‘UNITED STATES OF AMERICA, Plaintiff v. MAUI PLANNING COMMISSION, Defendant.’ Although Ms. Neustadter was the hearing officer involved in a church being denied a special use permit, it has nothing whatsoever to do with her appointment as the arbitrator in this case.”

What my letter stated was, “This is to report what may be an attempt to obstruct justice in the subject case,” and I refer you back to my earlier statement that I would argue that a person’s right to report criminal activity to regulatory authorities cannot be prohibited under any legal contract. I do not feel it is necessary or appropriate to comment further on this matter at this time. The simple, and obvious, point is that Ms. Neustadter’s position on the Maui Planning Commission creates, at the very least, a potential conflict-of-interest.

Finally, Mr. Guttman states:

“Ms. Neustadter has informed the AAA she is not aware of any conflict in her serving as arbitrator in this proceeding. The Trustee has no knowledge of a conflict. ... Nothing in Mr. Harmon’s communications concerning Ms. Neustadter evidences a conflict and much of his commentary, while interesting as to his theories regarding Hawaii politics, have no bearing on Ms. Neustadter serving as the arbitrator.”

In response to this I would say that what I have stated in my communications are not my “theories regarding Hawaii politics,” but are based on documented cases. As stated previously, I can provide you hundreds or thousands of pages of documents, or you can obtain them on the internet if you conduct a search of the various combinations of the keywords, “fraud, scandals, corruption, Kamehameha Schools trustees, Maui Planning Commission, land use controversies, illegal lobbying, Milton Holt, Henry Peters, Nathan Aipa, Colleen Wong, Louanne Kam, Hamilton McCubbin, Torkildson Katz, Richard Wong, Sukamto Sia, Bank of Honolulu”, etc.

Therefore, despite Ms. Neustadter’s statement to the contrary, it is still my belief that she does have at least a potential conflict of interest and I reaffirm my objections to her appointment as Arbitrator in this case. I would also repeat my suggestions that you consider Daniel Bent as a replacement for Ms. Neustadter, and formally query Trustee Mary Lou Woo if she would have any factual objections to his appointment.

Please advise if any of my arguments in this communication are unclear, or if further information is required before you can render a decision.

Sincerely,

Bobby N. Harmon

cc’s: Steven Guttman, Atty for Mary Lou Woo (via fax only @ 808-529-7177)

Trustees R. Kihune, J. Ing, C. Lau, D. Plotts, N. Thompson, Kamehameha Schools (via fax only @ 808-523-6313)