Case 1:24-cv-00259-JAO-WRP Document 61 Filed 10/31/24 Page 1 of 10 PageID.1569
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`7520
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`COX FRICKE LLP
`A LIMITED LIABILITY LAW PARTNERSHIP LLP
`
`JOACHIM P. COX
`
`jcox@cfhawaii.com
`RANDALL C. WHATTOFF 9487
`
`rwhattoff@cfhawaii.com
`800 Bethel Street, Suite 600
`Honolulu, Hawai‘i 96813
`Telephone: (808) 585-9440
`Facsimile: (808) 275-3276
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF HAWAI‘I
`
`
`In Re: Lahaina Wildfire Litigation
`
`1:24-CV-00259-JAO-WRP
`(Class Action)
`JOINT STIPULATION BY
`ALL PARTIES TO DISMISS
`UNDER F.R.C.P. 41(a)(1)(A)(ii)
`Trial:
`None set
`
`
`
`
`
`
`
`JOINT STIPULATION BY ALL PARTIES TO DISMISS UNDER F.R.C.P.
`41(a)(1)(A)(ii)
`
`The undersigned parties (“Parties”), by and through their respective counsel
`
`of record, stipulate as follows:
`
`
`
`WHEREAS, on August 2, 2024, the Parties entered into a Term Sheet
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`contemplating a global resolution of all Maui Fires Claims (as defined in the Term
`
`Sheet);
`
`
`
`
`
`7520
`
`COX FRICKE LLP
`A LIMITED LIABILITY LAW PARTNERSHIP LLP
`
`JOACHIM P. COX
`
`jcox@cfhawaii.com
`RANDALL C. WHATTOFF 9487
`
`rwhattoff@cfhawaii.com
`800 Bethel Street, Suite 600
`Honolulu, Hawai‘i 96813
`Telephone: (808) 585-9440
`Facsimile: (808) 275-3276
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF HAWAI‘I
`
`
`In Re: Lahaina Wildfire Litigation
`
`1:24-CV-00259-JAO-WRP
`(Class Action)
`JOINT STIPULATION BY
`ALL PARTIES TO DISMISS
`UNDER F.R.C.P. 41(a)(1)(A)(ii)
`Trial:
`None set
`
`
`
`
`
`
`
`JOINT STIPULATION BY ALL PARTIES TO DISMISS UNDER F.R.C.P.
`41(a)(1)(A)(ii)
`
`The undersigned parties (“Parties”), by and through their respective counsel
`
`of record, stipulate as follows:
`
`
`
`WHEREAS, on August 2, 2024, the Parties entered into a Term Sheet
`
`contemplating a global resolution of all Maui Fires Claims (as defined in the Term
`
`Sheet);
`
`
`
`
`
`Case 1:24-cv-00259-JAO-WRP Document 61 Filed 10/31/24 Page 2 of 10 PageID.1570
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`WHEREAS, the Term Sheet contemplated that the Parties would further
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`negotiate and memorialize a definitive set of Settlement Agreements (as defined in
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`the Term Sheet) (“Settlement Agreement”);
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`
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`WHEREAS, the Term Sheet contemplated that the Settlement Agreement
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`would include a class action settlement;
`
`
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`WHEREAS, the State of Hawai‘i, which is a defendant in other Maui Fires
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`litigation and party to the Term Sheet, is not a defendant in this action;
`
`
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`WHEREAS, Plaintiffs intend to file a new state action in the Second Circuit
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`Court of the State of Hawai‘i that will ultimately reflect the agreed-upon settlement
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`class in the Settlement Agreement and will name the State of Hawai‘i as a
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`defendant (the “State Class Action”);
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`
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`WHEREAS, this pending consolidated class action in federal court is
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`currently stayed;
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`
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`WHEREAS, the Parties have agreed to dismiss this action without a Court
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`order under Federal Rule of Civil Procedure 41(a)(1)(A)(ii);
`
`
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`WHEREAS, dismissal of this action to effectuate settlement is consistent
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`with the existing stay;
`
`
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`WHEREAS, although the Parties are dismissing this action in light of the
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`proposed class settlement to be filed in State court that will include the State of
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`
`
`2
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`Case 1:24-cv-00259-JAO-WRP Document 61 Filed 10/31/24 Page 3 of 10 PageID.1571
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`Hawai‘i as a party to the settlement, Defendants, Class Plaintiffs1, and Class
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`Counsel2 intend that, in the event that the Settlement Agreement is not effectuated
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`and finally approved, 1) any rights Defendants may have to subsequently remove
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`the State Class Action and, generally, to a federal forum under the Class Action
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`Fairness Act or any other applicable statute, not be prejudiced or in any way
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`impaired by the Parties’ agreement to dismiss this action and allow the class
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`settlement to be effectuated in State court, and; 2) any right Class Plaintiffs may
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`have to object to any subsequent removal or seek remand not be prejudiced or in
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`any way impaired by the Parties’ agreement to dismiss this action and allow the
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`class settlement to be effectuated in State court, except as stated herein;
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`
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`WHEREAS, under Smith v. Mylan Inc., 761 F.3d 1042 (9th Cir. 2014),
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`timeliness requirements for removal are procedural and, thus, objections to
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`timeliness of removal may be waived by parties;
`
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`1 “Class Plaintiffs” refers to those individual plaintiffs purporting to represent
`classes in this action, including Nova Burnes; Maui Concierge Aesthetics, LLC;
`Lani Chadli, individually and as Trustee of the Aotaki Family Irrevocable Trust;
`Monica I. Eder; Rede S. Eder; Candace Faust; Peter Faust; David Heymes;
`Kathryn Llamas; Jennifer Lynn McNamee; Chardell Naki; Barrett Procell; and
`Rolland Williams, Jr.
`2 “Class Counsel” refers to all plaintiffs’ counsel of record in this action, including
`Lexi J. Hazam; Patrick I. Andrews; Nicholas W. Lee; Kelly K. McNabb; Terrance
`M. Revere; Paul V.K. Smith; Richard E. Wilson; Patrick Kyle Smith; Kenneth S.
`Kasdan; Christopher K. Hikida; Graham B. LippSmith; MaryBeth LippSmith;
`Jaclyn L. Anderson; Celene Chan Andrews; Robert A. Curtis; and Alexander
`Robertson, IV.
`
`
`
`3
`
`
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`Case 1:24-cv-00259-JAO-WRP Document 61 Filed 10/31/24 Page 4 of 10 PageID.1572
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`WHEREAS, Class Plaintiffs and Class Counsel, as a condition to this
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`stipulation of dismissal, shall waive any timeliness objection to any later removal
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`of the State Class Action in the event that the Settlement Agreement does not
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`become final, but do not intend for Class Plaintiffs and Class Counsel to waive any
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`other basis for objection to later removal;
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`
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`NOW, THEREFORE, it is hereby stipulated and agreed by and between all
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`Parties to this action, as follows:
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`1.
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`This action is hereby dismissed without prejudice pursuant to Federal
`
`Rule of Civil Procedure 41(a)(1)(A)(ii). No fees and/or costs are sought
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`by any party at this time; this dismissal applies to all claims in this case;
`
`and all parties who have appeared have signed this stipulation.
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`2.
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`Class Counsel will file the State Class Action in the Second Circuit Court
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`of the State of Hawai‘i, and it will be identical to the class action
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`currently pending in this Court save for the addition of the State of
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`Hawai‘i as a party defendant, subject to future amendment to conform to
`
`the settlement class definition agreed upon by the Parties in the executed
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`Settlement Agreement. Class Counsel agree they will not seek to amend
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`the State Class Action while the settlement is pending without agreement
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`of the Parties.
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`3.
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`In the event that (i) the Settlement Agreement does not become final and
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`
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`4
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`
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`Case 1:24-cv-00259-JAO-WRP Document 61 Filed 10/31/24 Page 5 of 10 PageID.1573
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`thus there is no class settlement with all of the Parties in the Second
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`Circuit Court, and (ii) any Defendant thereafter removes the State Class
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`Action to federal court; then Class Plaintiffs and Class Counsel shall not
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`and may not make—and expressly waive and forfeit—any argument for
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`remand:
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`(x) on the basis that removal is untimely under any applicable legal
`
`rule, statutory provision or otherwise, including, but not limited to, 28
`
`U.S.C. §§ 1446(a), 1446(b)(1), 1446(b)(2)(B), 1446(b)(3), 1446(c)(1),
`
`1446(c)(3)(A), 1446(c)(3)(B), 1446(g), and 28 U.S.C. § 1453(b); or
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`(y) on the basis that Defendants otherwise waived or forfeited their
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`right to remove because of any action they take or have taken to
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`effectuate dismissal of this case or to litigate or negotiate settlement in
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`the State Class Action.
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`4.
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`Other than as stated in Paragraph 3, Class Plaintiffs and Class Counsel do
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`not waive any other basis to object to removal or argue for remand if (i)
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`the Settlement Agreement does not become final and thus there is no class
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`settlement with all of the Parties in the Second Circuit Court, and (ii) any
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`Defendant thereafter removes the State Class Action to federal court.
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`5.
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`The Parties understand that Defendants are agreeing to dismissal of
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`the consolidated class action in federal court in reliance on the
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`
`
`5
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`
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`Case 1:24-cv-00259-JAO-WRP Document 61 Filed 10/31/24 Page 6 of 10 PageID.1574
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`enforceability of the waivers set forth in Paragraph 3 of this
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`Stipulation.
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`6.
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`Defendants’ agreement to this Stipulation shall not be construed to be
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`an admission that any class can or should be certified, under federal or
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`Hawai‘i law, or an admission as to the merits of the consolidated class
`
`action complaint or contemplated State Class Action.
`
`DATED: Honolulu, Hawai‘i, October 31, 2024.
`
`
`
`
`
`/s/ Patrick Kyle Smith
`TERRANCE M. REVERE
`PAUL V.K. SMITH
`RICHARD E. WILSON
`PATRICK KYLE SMITH
`Attorneys for Plaintiffs
`NOVA BURNES; MAUI CONCIERGE
`AESTHETICS, LLC; LANI CHADLI, individually
`and as Trustee of the AOTAKI FAMILY
`IRREVOCABLE TRUST; BARRETT [ALSO
`ERRONEOUSLY REFERRED TO IN THE
`COMPLAINT AS BARRET] PROCELL;
`KATHRYN LLAMAS
`
`
`
`
`
`
`
`
`
`6
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`
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`Case 1:24-cv-00259-JAO-WRP Document 61 Filed 10/31/24 Page 7 of 10 PageID.1575
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`
`
`/s/ Graham B. LippSmith
`GRAHAM B. LIPPSMITH
`MARYBETH LIPPSMITH
`JACLYN L. ANDERSON
`CELENE CHAN ANDREWS
`Attorneys for Plaintiffs
`MONICA I. EDER; REDE S. EDER; CANDACE
`FAUST; PETER FAUST; DAVID HEYMES;
`JENNIFER LYNN MCNAMEE; ROLLAND
`WILLIAMS, JR. [ALSO REFERRED TO IN THE
`COMPLAINT AS ROLLAND WILLIAMS JR.]
`
`
`
`
`
`
`/s/ Kenneth S. Kasdan
`KENNETH S. KASDAN
`CHRISTOPHER K. HIKIDA
`D. KAENA HOROWITZ
`SHARLA ANN MANLEY
`Attorneys for Plaintiff
`CHARDELL NAKI
`
`
`/s/ Paul Alston
`PAUL ALSTON
`NICKOLAS A. KACPROWSKI
`WENDY F. HANAKAHI
`MADISSON L. HEINZE
`NATHAN P. SHIMODOI
`Attorneys for Defendants
`TRUSTEES OF THE ESTATE OF BERNICE
`PAUAHI BISHOP
`
`
`
`
`
`7
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`Case 1:24-cv-00259-JAO-WRP Document 61 Filed 10/31/24 Page 8 of 10 PageID.1576
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`
`
`/s/ Eric H. Tsugawa
`ERIC H. TSUGAWA
`ALAN K. LAU
`TEDSON H. KOJA
`Attorneys for Defendants
`HAWAIIAN TELCOM, INC.; HAWAIIAN TELCOM
`COMMUNICATIONS, INC.; HAWAIIAN TELCOM
`FEDERAL, LLC3
`
`
`/s/ Gregory K. Markham
`GREGORY K. MARKHAM
`KEITH K. KATO
`Attorneys for Defendant
`SPECTRUM OCEANIC, LLC
`
`
`/s/ Wesley H.H. Ching
`WESLEY H.H. CHING
`SHEREE KON-HERRERA
`DARA S. NAKAGAWA
`JONATHAN L. ORTIZ
`CATHY S. JUHN
`ERIN I. MACDONALD
`Attorneys for Defendants
`PETER KLINT MARTIN; PETER KLINT
`MARTIN REVOCABLE TRUST
`
`
`
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`
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`
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`3 The Consolidated Complaint erroneously refers to “Hawaiian Telcom” and
`“Hawaiian Telecommunications, Inc.” (ECF No. 1 at 1). No such entities exist.
`The correct names of these entities appear subsequently in the Consolidated
`Complaint (id. at 12) and are the entities on behalf of which counsel has appeared
`in this action.
`
`
`
`8
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`Case 1:24-cv-00259-JAO-WRP Document 61 Filed 10/31/24 Page 9 of 10 PageID.1577
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`
`
`/s/ Wesley H.H. Ching
`WESLEY H.H. CHING
`SHEREE KON-HERRERA
`DARA S. NAKAGAWA
`Attorneys for Defendants
`HOPE BUILDERS HOLDING LLC; HOPE
`BUILDERS INC.; HOPE BUILDERS LLC;
`KAUAULA LAND COMPANY LLC; KIPA
`CENTENNIAL, LLC; WAINEE LAND &
`HOMES, LLC; WEST MAUI LAND COMPANY,
`INC.; MAKILA RANCHES, INC. [ALSO
`REFERRED TO IN THE COMPLAINT AS
`MAKILA RANCHES INC.]; MAKILA LAND
`CO., LLC; JV ENTERPRISES, LLC
`
`
`/s/ James W. Geiger
`JAMES W. GEIGER
`Attorneys for Defendants
`JAMES C. RILEY TRUST; JEANNE A. RILEY
`TRUST
`
`
`
`
`
`
`
`/s/ Ralph J. O’Neill
`RALPH J. O’NEILL
`MATTHEW A. HEMME
`JOSEPH F. KOTOWSKI
`Attorneys for Defendant
`MAKILA RANCHES HOMEOWNERS
`ASSOCIATION, INC.
`
`
`
`
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`9
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`Case 1:24-cv-00259-JAO-WRP Document 61 Filed 10/31/24 Page 10 of 10 PageID.1578
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`
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`
`
`/s/ Jordan K. Inafuku
`VICTORIA J. TAKAYESU
`THOMAS KOLBE
`DAVID J. MINKIN
`JORDAN K. INAFUKU
`SARA M. HAYDEN
`KAMRIE J. KOI
`JENNIFER LAUREN RIGGS
`Attorneys for Defendant
`COUNTY OF MAUI
`
`
`/s/ Randall C. Whattoff
`JOACHIM P. COX
`RANDALL C. WHATTOFF
`Attorneys for Defendants
`HAWAIIAN ELECTRIC COMPANY, INC.;
`MAUI ELECTRIC COMPANY, LIMITED [ALSO
`ERRONEOUSLY REFERRED TO IN THE
`COMPLAINT AS MAUI ELECTRIC COMPANY,
`INC.]; HAWAII ELECTRIC LIGHT COMPANY,
`INC. [ALSO ERRONEOUSLY REFERRED TO IN
`THE COMPLAINT AS HAWAI‘I ELECTRIC
`LIGHT COMPANY, INC.]; HAWAIIAN
`ELECTRIC INDUSTRIES, INC.
`
`
`
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`
`
`
`
`In Re: Lahaina Wildfire Litigation, 1:24-cv-00259-JAO-WRP,
`Joint Stipulation by All Parties to Dismiss Under F.R.C.P. 41(a)(1)(A)(ii)
`
`
`
`10
`
`
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