Cayetano libel complaint

BICKERTON LEE DANG & SULLIVAN, LLLP
JAMES J. BICKERTON 3085
745 Fort Street, Suite 801
Honolulu, Hawaii 96813
Telephone: (808) 599-3811
Fax: (808) 533-2467
E-mail:bickerton@bsds.com;

MICHAEL J. GREEN 4451
Davies Pacific Center
Suite 2201
841 Bishop Street
Honolulu, Hawaii 96813
Telephone: (808) 521-3336
E-mail: michaeljgreen@hawaii.rr.com

Attorneys for Plaintiff
BENJAMIN J. CAYETANO

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

BENJAMIN J. CAYETANO, ))) CIVIL NO. ________________
))) (Other Civil Tort: Defamation)
Plaintiff, )))
) COMPLAINT ; DEMAND FOR JURY
vs. ) TRIAL; SUMMONS
)))
HAWAII CARPENTERS UNION )))
MARKET RECOVERY FUND dba )
PACIFIC RESOURCE PARTNERSHIP; )
JOHN D. WHITE, JR.; HAWAII )
CARPENTERS’ UNION; PACIFIC )
RESOURCE PARTNERSHIP PAC; )
HOAKEA COMMUNICATIONS LLC; )
BARBARA J. TANABE; JIM MCCOY; )
SEAN NEWCAMP; THALIA CHOY; )
ALAN SHINTANI; STEVEN HIDANO;
GERARD SAKAMOTO; MARK
KUPAHU; WILLIE MAGLINTI;
LEONARD HOSHIJO; LANCE
YOSHIMURA; KEN KAWAMOTO; BILL
WILSON; LANCE INOUYE; CRAIG
FUKUDA; DARREN HO; JOHN DOES
1-50; JANE DOES 1-50; DOE ENTITIES
1-50,
Defendants.

COMPLAINT

Comes now Plaintiff BENJAMIN J. CAYETANO, by and through his attorneys above-

named, and for complaint against Defendants HAWAII CARPENTERS UNION MARKET

RECOVERY FUND dba PACIFIC RESOURCE PARTNERSHIP; JOHN D. WHITE, JR.;

HAWAII CARPENTERS’ UNION; PACIFIC RESOURCE PARTNERSHIP PAC; HOAKEA

COMMUNICATIONS LLC; BARBARA J. TANABE; JIM MCCOY; SEAN NEWCAMP;

THALIA CHOY; ALAN SHINTANI; STEVEN HIDANO; GERARD SAKAMOTO; MARK

KUPAHU; WILLIE MAGLINTI; LEONARD HOSHIJO; LANCE YOSHIMURA; KEN
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KAWAMOTO; BILL WILSON; LANCE INOUYE; CRAIG FUKUDA; DARREN HO; JOHN

DOES 1-50; JANE DOES 1-50; DOE ENTITIES 1-50, alleges and avers as follows:

PARTIES, JURISDICTION AND VENUE

1. Plaintiff BENJAMIN J. CAYETANO (hereinafter “Cayetano” or “Plaintiff

Cayetano”) is and, at all times relevant hereto, was a resident of the City & County of

Honolulu, State of Hawaii. Plaintiff is a former Governor of the State of Hawaii, and he

is currently a candidate for election as the Mayor of the City and County of Honolulu,

in a run-off election campaign that will culminate with the general election of

November 6, 2012.

2. Defendant HAWAII CARPENTERS UNION MARKET RECOVERY FUND,

dba PACIFIC RESOURCE PARTNERSHIP (“PRP”) is a trust fund operated by the

HAWAII CARPENTERS’ UNION in concert with general contractors who are

signatory to contracts with said union, and does business under the name “Pacific

Resource Partnership” which is name not registered as a trade name or the name of any

entity registered with the Department of Commerce and Consumer Affairs. PRP is

funded with contributions from said general contractors. The acts of PRP described

herein were directed and controlled by its Board of Trustees, whose members are also

named herein as Defendants, and were executed by Defendant White, its Executive

Director.

3. Defendant JOHN D. WHITE, JR. (“Defendant White”) is and, at all times

relevant hereto, was a resident of the City & County of Honolulu, State of Hawaii and is

and was at all times relevant the Executive Director of PRP.

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4. Defendant HAWAII CARPENTERS’ UNION, also formally known as the

United Brotherhood of Carpenters and Joiners of America, Local 745, AFL-CIO, is a

labor union (“HCU”) is a labor union, with its principal place of business in the City &

County of Honolulu, State of Hawaii.

5. Defendant PACIFIC RESOURCE PARTNERSHIP PAC (“PRPPAC”) is a non-

candidate Political Action Committee organized under the laws of Hawaii and registered

as such with the Campaign Spending Commission of the State of Hawaii. It is funded

by PRP and others acting at the behest and direction of PRP and the Defendant Trustees

identified below.

6. Defendant HOAKEA COMMUNICATIONS LLC (“Hoakea”) is and at all times

relevant hereto was a Hawaii-registered limited liability company with its principal

place of business in the City & County of Honolulu.

7. BARBARA J. TANABE (“Tanabe”) is and, at all times relevant hereto, was a

resident of the City & County of Honolulu, State of Hawaii. Tanabe is a principal of

Hoakea.

8. JIM McCOY (“McCoy”) is and, at all times relevant hereto, was a resident of

the City & County of Honolulu, State of Hawaii. McCoy is a principal of Hoakea.

9. Defendants Hoakea, Tanabe, and McCoy are hereinafter referred to collectively

as “the Hoakea Defendants.” The Hoakea Defendants are an advertising, marketing and

public relations agency and its principals, respectively. The Hoakea Defendants were

retained by Defendants PRP, PRPPAC, and White to prepare advertising copy for PRP

and PRPPAC attacking Plaintiff and to arrange for the publication of such

advertisements with television, radio, cable, and newspaper media and by direct-mail

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advertising. Plaintiff is informed and believes that the Hoakea Defendants prepared

most, if not all, of the advertisements that are cited in this Complaint as containing false

and defamatory statements about Plaintiff, and caused them to be published in

television, radio, cable, and newspaper media and by direct mail. The Hoakea

Defendants knew or had a high degree of awareness of the probable falsity of the

advertisements that they prepared these advertisements.

10. SEAN NEWCAMP (“Newcamp”) is and at all times relevant hereto was a

resident of the City & County of Honolulu, State of Hawaii and is and was a trustee of

PRP at said times.

11. THALIA CHOY (“Choy”) is and at all times relevant hereto was a resident of

the City & County of Honolulu, State of Hawaii and is and was a trustee of PRP at said

times.

12. ALAN SHINTANI (“Shintani”) is and at all times relevant hereto was a resident

of the City & County of Honolulu, State of Hawaii and is and was a trustee of PRP at

said times.

13. STEVEN HIDANO (“Hidano”) is and at all times relevant hereto was a resident


said times.

14. GERARD SAKAMOTO (“Sakamoto”) is and at all times relevant hereto was a


PRP at said times.

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15. MARK KUPAHU (“Kupahu”) is and at all times relevant hereto was a resident


said times.

16. WILLIE MAGLINTI (“Maglinti”) is and at all times relevant hereto was a


PRP at said times.

17. LEONARD HOSHIJO (“Hoshijo”) is and at all times relevant hereto was a


PRP at said times.

18. LANCE YOSHIMURA (“Yoshimura”) is and at all times relevant hereto was a


PRP at said times.

19. KEN KAWAMOTO (“Kawamoto”) is and at all times relevant hereto was a


PRP at said times.

20. BILL WILSON (“Wilson is and at all times relevant hereto was a resident of the

City & County of Honolulu, State of Hawaii and is and was a trustee of PRP at said

times.

21. LANCE INOUYE (“Inouye”) is and at all times relevant hereto was a resident


said times.

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22. CRAIG FUKUDA (“Fukuda”) is and at all times relevant hereto was a resident


said times.

23. DARREN HO (“Ho”) is and at all times relevant hereto was a resident of the

City & County of Honolulu, State of Hawaii and is and was a trustee of PRP at said

times.

24. Defendants Newcamp, Choy, Shintani, Hidano, Sakamoto, Kupahu, Maglinti,

Hoshijo, Yoshimura, Kawamoto, Wilson, Inouye, Fukuda, and Ho are hereinafter

referred to collectively as “the Trustee Defendants”. They are sued herein personally for

their actions, acts, and omissions as trustees of PRP.

25. JOHN DOES 1-50; JANE DOES 1-50; DOE ENTITIES 1-50 (hereinafter

collectively referred to as “Doe Defendants”) are persons or entities whose names,

identities, and capacities are presently unknown to Plaintiff and who are or may be

liable to Plaintiff for actions alleged in this complaint and may be responsible for the

damages to Plaintiff alleged herein. They include those persons who (a) drafted and/or

authored the published statements at issue, (b) provided and/or arranged for the funding

of the publication of said statements, (c) planned and/or directed the publication and the

timing and scope thereof and (d) otherwise caused the defamatory statements at issue

herein to be published. Plaintiff has undertaken a diligent and good faith effort to

ascertain the names and identities of Doe Defendants, including interviews of witnesses,

review of court records, public media and other public records, and a review of the

records of businesses and trade entities at the Hawaii State Department of Commerce

and Consumer Affairs and the Department of Taxation, and Plaintiff will continue his

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efforts to try and determine their identities. Plaintiff prays leave to amend this

Complaint to insert their true names, identities, capacities, activities and/or

responsibilities when they are ascertained.

26. The Court has jurisdiction over Defendants and the claims set forth below

because this cause is a cause not given by statute to other trial courts and the amount in

controversy exceeds the jurisdictional minimum of this Court.

27. Venue is proper in this Circuit pursuant to Hawaii Revised Statutes (“H.R.S.”) §

603-36(5) because the named Defendants are subject to personal jurisdiction here and

regularly reside or conduct business in this Circuit, and because all or a substantial part

of the transactions, events, occurrences, or omissions giving rise to the claims asserted

herein occurred and continue to occur in this Circuit.

28. Defendants are parties who are taking advantage of recent court rulings

declaring the expenditure of large sums of corporate money to be “speech” entitled to

First Amendment protection. But free speech is always subject to the limits of the law

of defamation. Accordingly those persons who claim their expenditures are “speech”

must be held accountable when their “speech” enters an area that is not protected by the

First Amendment – false and defamatory speech made about a public figure with

knowledge of its falsity or a high a degree of awareness of its probable falsity. Thus,

Plaintiff herein sues not only those who wrote and published the speech, but also those

who have financed and funded it under the guise of a judicially-created “free speech”

exception to traditional campaign spending laws. The courts have permitted this new

system of “money as speech” to arise and Plaintiff now asks the Court to set the outer

limit of such “speech” and rule that it does not include financing the publication of false

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and defamatory statements that the financing parties know to be false and defamatory

and/or publish them with an actionable state of mind. Accordingly, those persons and

entities that fund such false and defamatory statements must face accountability in the

same way that authors and publishers of such false and defamatory statements have

traditionally been held accountable.

29. In February and March 2012, Plaintiff enjoyed an excellent reputation as a long-

serving public official of integrity and independence. As a result, as he campaigned for

the office of Mayor of Honolulu, a March 2012 poll by the Civil Beat online publication

showed Plaintiff with 53% of potential Honolulu voters indicating a preference for

Plaintiff over his two main rivals.

30. In March 2012, a federal judge ruled that Hawaii’s longstanding $1000 limit on

the dollar amounts of contributions to political action committees (“PACs”) was

unconstitutional under Citizens United and that the law could place no dollar limit on

such contributions, because they constitute “speech”.

31. Following that ruling, Defendants initiated a plan [hereinafter “the plan”] to pay

for, author and publish, using a PAC, a barrage of advertisements in print media,

broadcast media and internet media to spread false statements about Plaintiff that they

know to be false or about which they harbor serious doubts. These statements stated or

implied that Plaintiff was and will continue to be a corrupt public official who has in the

past, and therefore likely will in the future, knowingly received and kept illegal

donations, kept those donations in disobedience of orders requiring him to return them,

and illegally and/or criminally, personally solicited and accepted bribes in the form of

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campaign contributions in quid pro quo exchange for government contracts, including

“no-bid contracts,” under what the Defendants label “an extensive pay-to-play scheme.”

32. The plan has been has been funded by Defendant PRP, which is claimed to be

the sole funder of PRPPAC according to the records of the Campaign Spending

Commission of the State of Hawaii (“Campaign Spending Commission”).

33. PRPPAC has in turn expended over $1.2 million publishing the advertisements

complained of herein since its creation earlier this year.

34. PRP and the actions of PRPPAC are directed on a day to day basis by Defendant

White and its overall strategy is overseen and controlled by the Trustee Defendants who

in turn are closely affiliated with and take their direction with respect to the plan from

the leadership of Defendant HCU.

35. The PRP funds that are given to PRPPAC and are used to fund publication of the

false and defamatory advertisements are given to PRP by certain Doe Defendants (“the

Funding Doe Defendants”) whose identity PRP has thus far concealed. The Funding

Doe Defendants have representatives among the Trustee Defendants. These Funding

Doe Defendants are aware of and make their contributions to PRP with the knowledge

that the contributions are and will be used to fund the publication of false and

defamatory speech harmful to Plaintiff, and as to which these Funding Doe Defendants

have the requisite wrongful and actionable state of mind.

36. Under this system, the Defendants other than Defendants HCU, PRP and the

Funding Doe Defendants are the agents of Defendants HCU, PRP and the Funding Doe

Defendants, and Defendants HCU, PRP and the Funding Doe Defendants are therefore

liable under the law of respondeat superior and agency law for the tortious conduct of

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the other Defendants. All Defendants named herein have engaged in a civil conspiracy

to commit the torts complained of herein and for that reason each also is liable for the

wrongful acts of the others.

37. In or about May 2012, PRP began to air a commercial about Plaintiff receiving

campaign contributions in his past gubernatorial campaign in which donors broke the

law. Although this commercial was described by a neutral observer in the press as

“vicious and misleading,” he also observed that “PRP's May argument was largely

ignored.” Accordingly, PRP decided to increase the impact of its advertisements by

publishing campaign advertisements accusing Plaintiff of illegal and criminal acts in

breaking election laws, knowingly keeping and refusing to repay over $500,000 in

illegal donations in violation of law, and acts of public corruption in exchanging cash

for government contracts.

The Push Poll Statements

38. Also in May 2012, PRP arranged for and conducted a “push poll” in which

potential voters are asked questions under the guise of a poll, but the questions contain

assertions of fact designed or intended to influence voter opinion rather than merely

solicit existing opinions. In the push poll questionnaire that was put to a substantial

number of voters on Oahu, PRP’s agents stated: “While governor, Cayetano accepted

nearly five hundred thousand dollars in illegal campaign contributions. Many of the

donors of these illegal contributions later received millions of dollars in no-bid contracts

from the state. When authorities discovered this illegal activity, they required Cayetano

to pay the money back, but he used a loophole in the law to avoid giving it

back.” (Hereinafter the “push poll statements,” emphasis added).

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39. The push poll statements, when read in the whole with their natural and ordinary

meaning and innuendo, have the meaning that Plaintiff, while serving as a public

official (a) accepted half a million dollars in political campaign donations knowing that

they were in excess of then-existing contribution limits or made by donors in false

names to avoid those limits, (b) was ordered to pay half a million dollars, (c) disobeyed

that order and kept half a million dollars in illegal donations for his own use and (d)

personally caused non-bid government contracts to be granted to such donors in quid

pro quo exchange for these and other campaign donations.

40. Meaning (a) was conveyed by the push poll statements read as a whole but in

particular by the words “Cayetano accepted nearly five hundred thousand dollars in

illegal campaign contributions,” with the word “accepted” implying to the ordinary

listener that Plaintiff was aware at the time of the donations that the conduct of the

donors was illegal.

41. Meanings (b) and (c) were conveyed by the push poll statements read as a

whole but in particular by the words: “When authorities discovered this illegal activity,

they required Cayetano to pay the money back, but he used a loophole in the law to

avoid giving it back.” (Emphasis added).

42. Meaning (d) was carried by the push poll statements read as a whole but in

particular by the immediate juxtaposition of the statement about accepting illegal

donations with the statement that these illegal donors received no-bid contracts,

implying a direct quid pro quo link between the two. The statements when read

together in context mean and imply that, when he was Governor, Plaintiff knowingly

and willfully personally arranged for a direct exchange of state contracts for campaign

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contributions. As such, the statements accuse Plaintiff of criminal conduct in violation

of state bribery laws, which make such conduct a crime.

43. Meanings (a), (b), (c) and (d), both separately and together, are (1) defamatory

as tending to harm Plaintiff’s reputation by lowering his estimation in the eyes of the

community and (2) defamatory per se because they impute criminal conduct, crimes of

dishonesty, and/or unfitness in Plaintiff’s chosen profession as a public official

(hereinafter “defamatory per se”, “libel per se” or “slander per se” as the case may be).

44. The push poll statements were and are false, and were published by Defendants

with knowledge of their falsity or with a high degree of awareness of their probable

falsity and without a good faith or honest belief in their truth.

45. In furtherance of Defendants’ plan, on or about June 1, 2012, Defendants PRP

and White formed and registered PRPPAC with the Campaign Spending Commission

for the purpose of allowing PRPPAC to accept funds from PRP and to expend such

funds as a “non-candidate committee” for the purpose of attacking Plaintiff in

widespread media publications falsely asserting that Plaintiff has engaged in illegal

conduct including the crime of bribery.

46. A statement that a public official has engaged or intends to engage in an

“extensive pay-to-play scheme” is an allegation of the crime of bribery because it

asserts that the person, while a public official, accepted a pecuniary benefit with the

intent that the person’s actions as a public official would thereby be influenced.

47. Hawaii law provides in HRS Section 710-1040 that:

(1) A person commits the offense of bribery if: . . . .

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(b) While a public servant, the person solicits, accepts, or agrees to accept,
directly or indirectly, any pecuniary benefit with the intent that the person's
vote, opinion, judgment, exercise of discretion, or other action as a public
servant will thereby be influenced. . . .

(3) For purposes of this section, "public servant" includes in addition to
persons who occupy the position of public servant as defined in section
710-1000(15), persons who have been elected, appointed, or designated to
become a public servant although not yet occupying that position.

(4) Bribery is a class B felony. . . .

The PRPPAC Website “www.readbensrecord.com”

48. On or about June 19, 2012, PRP acting through PRPPAC set up a website at

www.readbensrecord.com (“the Website”). The Website is owned by certain Doe

Defendants who have elected to keep their ownership secret by registering the Website

through the use of a company called Domains By Proxy, LLC that keeps the owners’

identities secret. The Website states on its home page that it is “paid for” by PRPPAC,

which has disclosed PRP as its only donor. PRP has refused media requests to identify

its donors, so that the identities of the persons indirectly funding the Website through

PRPPAC are kept secret from the public and are consequently unknown to Plaintiff and

to the general public.

49. The Website contained and continues to publish statements that, when read in

the whole with their natural and ordinary meaning and innuendo, have the meaning that

Plaintiff, while serving as a public official (a) accepted half a million dollars in political

campaign donations knowing that they were in excess of then-existing contribution

limits or made by donors in false names to avoid those limits, (b) was ordered to pay

back half a million dollars, (c) disobeyed that order and kept half a million dollars in

illegal donations for his own use and (d) personally caused non-bid government

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contracts to be granted to such donors in quid pro quo exchange for these and other

campaign donations.

50. Meaning (a) was conveyed by the Website read as a whole but in particular by

the headline words “Cayetano accepted $543K+ in illegal contributions,” with the word

“accepted” implying to the ordinary reader that Plaintiff had awareness of the illegal

conduct of the donors.

51. Meanings (b) and (c) were conveyed by the Website read as a whole but in

particular by the words: “The Campaign Spending Commission ordered former Gov.

Ben Cayetano to pay $540,625 to the state's Election Fund to cover the illegal

contributions he accepted. However, he only repaid $8,655.68, leaving an outstanding

balance of $531,969.32.” (Emphasis added).

52. Meaning (d) was carried by the Website read as a whole but in particular by

Defendants’ use on the Website of the statement that Plaintiff’s actions were part of an

“extensive pay-to-play scheme involving firms with state contracts.” This statement

continues to appear on the Website and the same or similar statements about “pay-to-

play” have been repeated in other paid television, cable, radio, and newspaper

advertisements by Defendants.

53. The reference to an “extensive pay-to-play scheme involving firms with state

contracts” means and implies that, when he was Governor or running for re-election as

Governor, Plaintiff personally, knowingly and willfully, arranged for a direct exchange

of state contracts for campaign contributions. As such, the reference to a “pay-to-play”

scheme accuses Plaintiff of criminal conduct in violation of state bribery laws, which

make such conduct a crime.

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54. Meanings (a), (b), (c) and (d), separately and together, are (1) defamatory as

tending to harm Plaintiff’s reputation by lowering his estimation in the eyes of the

community and (2) libelous per se because they impute criminal conduct, crimes of

dishonesty, and/or unfitness in Plaintiff’s chosen profession as a public official.

55. The aforesaid statements at the Website were and are false, and were and are

being published by Defendants with knowledge of their falsity or a high degree of

awareness of their probable falsity and without a good faith or honest belief in their

truth.

56. Defendants’ awareness and lack of good faith or honest belief are reflected by

the facts that through their own research into the acts of the Campaign Spending

Commission and/or multiple public media accounts and reports analyzing the

statements by Defendants complained of herein, Defendants are and were at all relevant

times aware and made aware, among other things, that: (a) Plaintiff was unaware of any

contribution being made in excess of applicable limits when it was made and Plaintiff

was unaware of any contribution being made under a false name when it was made; (b)

persons who made such contributions made them to numerous candidates, many of

whom Defendants know or have acknowledged are not involved in “pay-to-play

schemes;” (c) Plaintiff did not keep or use any money after being advised of the nature

of the donations by the Campaign Spending Commission; (d) Plaintiff complied with all

campaign laws and paid back all of the funds remaining in his campaign treasury upon

being apprised by the Campaign Spending Commission that the donors had acted

illegally; (e) at least one Defendant (Defendant White) has publicly admitted that

Plaintiff complied with the campaign finance law with respect to his handling of the

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donations deemed illegal; (f) such donors received as many or more government

contracts from other administrations than they received from Plaintiff’s administration

when he was Governor; (g) persons who have admitted making such contributions as

part of plea agreements or sentencing proceedings have never implicated Plaintiff in any

“pay-to play” scheme even though such prosecutions ended the political careers of

others; and (h) several respected and neutral reporters, commentators and officials,

including Robert Watada, Richard Borreca, Dan Boylan, David Shapiro, Ian Lind and

Joe Moore have publicly stated that the statements by Defendants are false or “bogus”

or misleading yet Defendants have continued to repeat them after being so advised and

the Website remains in place with the statements described herein displayed as of the

date of filing of this suit.

The June Television Advertisement

57. On or about June 20, 2012, Defendants broadcasted the following television

advertisement: “ANNOUNCER: Excuse me. Have you seen the facts about Ben

Cayetano’s illegal contributions?” ON SCREEN: CAYETANO TOOK $500,000 IN

ILLEGAL CONTRIBUTIONS. “ACTOR A: (looks down at document) Half a

million in illegal contributions?” “ACTOR B: (looks down at document) It’s all here. In

black and white.” “ACTOR C: (looks down at document) That’s incredible. Did he

have to give it back? ON SCREEN: NOPE. CAYETANO FOUND A LOOPHOLE.

“ANNOUNCER: Nope. He found a loophole. He’s keeping the money.” (Emphasis

added). (Hereinafter “the June 20 Statement”). The June 20 Statement was republished

by Defendants on other dates. The June 20 Statement had the natural and ordinary

meaning that Plaintiff had been advised that half a million dollars of campaign

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contributions was illegal and that he had nevertheless thereafter decided to keep the half

million dollars for his own use.

58. The statement that Plaintiff has kept or is keeping substantial sums of money

that he knew were donated illegally is wholly false and defamatory. The statement is

defamatory per se in that it asserts Plaintiff engaged in illegal activity because the law

required a candidate to return campaign donations once he knew the donations were

illegal and Plaintiff allegedly failed and refused to do so. The statement was made with

knowledge of its falsity or a high degree of awareness of its probable falsity and a lack

of good faith or honest belief in its truth because Defendant White has admitted he

knew Plaintiff did not contravene the law in question, and Defendant White and PRP

were aware from public records, copies of which were in White’s possession, that

Plaintiff (a) had not kept any illegally donated campaign funds, (b) had not spent any

such funds after being advised by the Campaign Spending Commission of the illegality

of their donation and (c) had returned all such sums remaining in his possession to the

Campaign Spending Commission as required by law.

59. The June 20 Statement was and is (1) defamatory as tending to harm Plaintiff’s

reputation by lowering his estimation in the eyes of the community and (2) libelous and

slanderous per se because it imputed criminal conduct, crimes of dishonesty, and/or

unfitness in Plaintiff’s chosen profession as a public official.

60. The June 20 Statement was and is false, and was published by Defendants with

knowledge of its falsity or a high degree of awareness of its probable falsity and without

a good faith or honest belief in its truth.

The July and August Advertisements

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61. In July through October 2012, Defendants caused the publication of series of

radio and television advertisements that falsely asserted that Plaintiff was the organizer

of a bribery scheme while running for and holding public office, knowingly took illegal

campaign contributions, failed to pay back money to the Campaign Spending

Commission that he was required by law to pay back and kept $500,000 in illegal

donations for his own use. These statements were a planned whole and were designed

to be heard and understood together and to have an individual and cumulative impact of

creating a false impression of corruption, law breaking and greed by Plaintiff in the eyes

and mind of the community.

The July 12, 2012 Radio Advertisement

62. For example, on or about July 12, 2012 and at other times, Defendants caused a

radio advertisement to be aired on various Oahu radio stations and thereby be heard and

seen by a large segment of the public. That advertisement falsely asserted that Plaintiff

knowingly took illegal campaign contributions, had been charged with doing so by the

Campaign Spending Commission and had failed to pay back money to the Campaign

Spending Commission that he was required by law to pay back. The advertisement

stated about Plaintiff that: “[H]e’s been called out for taking $500,000 in illegal

contributions including thousands from fake donors. Ben Cayetano’s blood is boiling

because, when state authorities required him to return the illegal contributions, he used

a loophole to avoid giving the money back” (hereinafter “the July 12 Statement”).

63. The July 12 Statement, in particular the words that Plaintiff had been “called

out” and “required” to return funds and “avoid[ed] giving the money back,” placed

Plaintiff in a false light and falsely implied that the Campaign Spending Commission or

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other state authority had accused Plaintiff of wrongdoing, that Plaintiff had been

attempting to conceal the wrongdoing, that Plaintiff did not follow the requirements of

the law in handling the funds in question and that Plaintiff had kept $500,000 for his

own purposes even after being advised that the funds had been illegally donated and

should be returned.

64. The July 12 Statement was and is (1) defamatory as tending to harm Plaintiff’s

reputation by lowering his estimation in the eyes of the community and (2) slanderous

per se because it imputed criminal conduct, crimes of dishonesty, and/or unfitness in

Plaintiff’s chosen profession as a public official.

65. The July 12 Statement was and is false, and was published by Defendants with



The July 27, 2012 Statement

66. On or about July 27, 2012, with the primary election just two weeks away,

Defendant White told a news reporter the following oral statement with the intention

and knowledge that it would be widely re-published in the Star-Advertiser newspaper

and read by its readers: “Cayetano and his bag man are desperate to keep the pressure

on contractors and they will do whatever it takes to win, because they need Cayetano to

give them no-bid government contracts” (hereinafter the July 27 Statement”). The July

27 Statement was part of defendants’ overall plan to smear Plaintiff as a corrupt public

official and, whether read together with Defendants’ other statements about Plaintiff as

intended, or standing alone, falsely implied that Plaintiff had personally engaged in and

would engage in a corrupt quid pro quo scheme of trading government contracts for no-

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bid government contracts through the use of a “bag man,” a well-known label for a

person who assists a public official in committing acts of public corruption.

67. The July 27 Statement was and is (1) defamatory as tending to harm Plaintiff’s

reputation by lowering his estimation in the eyes of the community and (2) slanderous

per se because it imputed criminal conduct, crimes of dishonesty, and/or unfitness in

Plaintiff’s chosen profession as a public official.

68. The July 27 Statement was and is false, and was published by Defendants with



The August 1, 2012 Television Advertisement

69. On or about August 1, 2012, and at other times, Defendants caused a political

advertisement to be broadcast on various television stations and thereby be heard and


gave government contracts in exchange for illegal campaign contributions by using the

following language: “ANNOUNCER: Remember that Pay-to-Play Game? Government

contracts for campaign cash? Well, no-one played it better than Ben

Cayetano.” (Emphasis added). The advertisement went on to state: “And illegal donors

got no-bid contracts during Cayetano’s administration. Now we learn that Cayetano is

still playing.” (Emphasis added). The statements made in the August 1 television

advertisement are referred to hereinafter collectively as “the August 1, 2012 Statement”.

The ordinary and usual meaning of the August 1, 2012 statement was that Plaintiff has

personally engaged in bribery and quid pro quo contracts for donations in the past as a

21

public official and therefore will exchange government contracts for cash if elected

Mayor.

70. The August 1 Statement is (1) defamatory as tending to harm Plaintiff’s

reputation by lowering his estimation in the eyes of the community and (2) libelous per

se and slanderous per se because it imputed criminal conduct, crimes of dishonesty,

and/or unfitness in Plaintiff’s chosen profession as a public official.

71. The August 1 Statement was and is false, and was published by Defendants with



The August 8, 2012 Television Advertisement

72. On or about August 8, 2012 and at other times, Defendants caused a political

advertisement to be published on various television stations and thereby be heard and


gave government contracts in exchange for illegal campaign contributions by stating:

“Remember that Pay-to-Play Game? Government contracts for campaign cash? Well,

now Ben Cayetano wants another turn.” (Hereinafter “the August 8, 2012 Statement,”

emphasis added). The usual and ordinary meaning of this statement was that Plaintiff

has personally engaged in bribery and quid pro quo contracts for donations in the past

as a public official and therefore will exchange government contracts for cash if elected

Mayor.

73. The August 8 Statement is (1) defamatory as tending to harm Plaintiff’s


22



74. The August 8 Statement was and is false, and was published by Defendants with



75. The Honolulu mayoral primary election took place on August 11, 2012.

Although Plaintiff finished with the highest vote total, the last minute barrage of false

advertisement had an impact on his reputation, and he garnered only 44% of the votes

cast, forcing him into a run-off with Kirk Caldwell.

76. Following substantial and harsh criticism by respected neutral observers

described in more detail elsewhere herein, in which several independent and impartial

observers pointed out the falsity of the statements about Plaintiff, and to avoid a

backlash from the public, Defendants temporarily stopped airing these false

advertisements for a period of time in August and September 2012. However, polls in

this period showed Plaintiff leading Caldwell substantially (an early October Civil Beat

polled showed Plaintiff ahead by 51% to 42%). Defendants realized that the

advertisements, despite their falsity, had had an impact in July and August and therefore

represented their last chance to defeat Plaintiff at the polls if published widely and

extensively enough. Thus, in the final six weeks of the 2012 election period,

Defendants resumed their media false advertisement assault, airing the advertisements

almost daily on television so that they were seen by a large segment of the public.

The September 26, 2012 Statement

23

77. On or about September 26, 2012, and at other times, Defendants caused a

political advertisement to be published on various television stations and thereby be

heard and seen by a large segment of the public. That advertisement falsely asserted

that Plaintiff gave government contracts in exchange for illegal campaign contributions

by using the following audio and visual elements: “ANNOUNCER: But Ben Cayetano:

Half a million in illegal contributions. Many donors got no-bid contracts. We don’t

need Pay-to-Play in Honolulu Hale.” (Hereinafter “the September 26 Statement”,

emphasis added). While the emphasized language was being played, the advertisement

displayed a text graphic that stated: CAYETANO Pay to Play. The plain and ordinary

meaning of the September 26 Statement was that Plaintiff has personally engaged in

bribery in the past as a public official and therefore will exchange government contracts

for cash if elected Mayor.

78. The September 26 Statement is (1) defamatory as tending to harm Plaintiff’s




79. The September 26 Statement was and is false, and was published by Defendants

with knowledge of its falsity or a high degree of awareness of its probable falsity and

without a good faith or honest belief in its truth.

The October 8, 2012 Television Advertisement

80. On or about October 8, 2012, and at other times, Defendants aired a television

advertisement and thereby be heard and seen by a large segment of the public. That

advertisement falsely asserted that Plaintiff gave government contracts in exchange for

24

illegal campaign contributions, stating: “WOMAN: Half a million in illegal

contributions? MAN: It’s all here in black and white. ANNOUNCER: And donors got

no-bid contracts during his administration. 2nd WOMAN: That’s Pay-to-

Play.” (Hereinafter “the October 8 Statement”). The usual and ordinary meaning of

this statement was that Plaintiff has personally engaged in bribery and quid pro quo

contracts for donations in the past as a public official and therefore will exchange

government contracts for cash if elected Mayor.

81. The October 8 Statement is (1) defamatory as tending to harm Plaintiff’s




82. The October 8 Statement was and is false, and was published by Defendants



83. Among other media outlets, the October 8 Statement aired on October 8, 2012

on KHON television. Immediately following the airing of the advertisement on

KHON, news anchor Joe Moore stated on air the following independent comment: “If

there were truth in advertising, there would be a disclaimer at the end of that

commercial, saying “Ben Cayetano was cleared of any wrong-doing in the illegal

contributions issue.”

84. Despite this comment from Joe Moore, Defendants caused the same or very

similar advertisement to be aired on Oahu television stations the very next day, October

9, 2012 and at other times and have continued to air this and similar statements falsely

25

asserting that Plaintiff gave government contracts in exchange for illegal campaign

contributions.

The October 12, 2012 Television Advertisement

85. On or about October 12, 2012 and at other times including October 16, 2012,

Defendants aired a television advertisement and thereby be heard and seen by a large

segment of the public. That advertisement falsely asserted that Plaintiff gave

government contracts in exchange for illegal campaign contributions, stating: “Ben

Cayetano received 1/2 million dollars in illegal contributions. And illegal donors got

millions in no-bid contracts during his administration. Now, Cayetano is back to his old

tricks.”

86. The usual and ordinary meaning of the October 12 Statement was that Plaintiff

has personally engaged in bribery and quid pro quo contracts for donations in the past

as a public official and therefore will exchange government contracts for cash if elected

Mayor.

87. The October 12 Statement is (1) defamatory as tending to harm Plaintiff’s


se and slanderous per se because it imputed criminal conduct, crimes of dishonesty, and/

or unfitness in Plaintiff’s chosen profession as a public official.

88. The October 12 Statement was and is false, and was published by Defendants



Comments By Respected Public Figures

26

89. Multiple respected commentators, authors and public figures or public officials

have stated publicly at various times since June 2012 that that the advertisement

campaign by Defendants is false and without foundation in fact, thereby repeatedly

giving Defendants notice and awareness of the falsity of their statements that Plaintiff

knowingly accepted illegal contributions, refused and disobeyed an order to return such

contributions, kept them for his own benefit, and gave government contracts in quid pro

quo exchange for such donations, thereby engaging in bribery as a public official.

90. In May 2012, Hawaii Campaign Spending Commission General Counsel Gary

Kam told Civil Beat that the characterization by PRP of the Commission’s request for

repayment was not accurate and the law relied on by Cayetano was “not a loophole”,

noting that candidates were only required to refund whatever remaining unspent funds

they had on hand when they received notification that a donation had been made

illegally. This statement by Kam was reported by Civil Beat on its Website, and Plaintiff

is informed and believes that Defendants White, Tanabe, McCoy and others read that

report within a few days of its publication.

91. On June 20, 2012, respected investigative journalist Ian Lind, who writes the

widely-read blog www.ilind.net, published the following statement that Plaintiff alleges

on information and belief Defendants White, Tanabe, McCoy and others read:

White is the front guy for the Carpenters Union, PRP, and the major
contractors they have union agreements with, who have decided they need
to turn their guns on former governor Ben Cayetano, apparently because
straight-forward advocacy of Honolulu’s rail project has failed to sway
voters. So the Carpenters and PRP set up a new attack PAC, and launch a
grossly misleading attack on Cayetano based on allegations from the 1998
campaign season.
The claims are false.

27

Carpenters Union/PRP claim, in a huge headline: “Cayetano took
$500,000 in illegal contributions.”
Two big problems with this claim. The biggest problem is that the
Campaign Spending Commission never alleged that Cayetano’s campaign
solicited or knowingly accepted illegal contributions, which it could have
done had their extensive investigation turned up evidence of it. They did
not. They did find evidence of some political players laundering
contributions using the names of employees or relatives, or reimbursing
them for contributions made to candidates.
In other words, neither the Campaign Spending Commission nor
prosecutors found Cayetano’s gubernatorial campaign to have violated
campaign laws.
But that’s not the takeaway from the new Carpenters Union/PRP PAC. It
seeks to intentionally mislead voters.
The Carpenters Union and PRP make it sound like Cayetano was
personally receiving money and stuffing it in his pockets, this all involved
campaign contributions made to Cayetano’s campaign committee.
Then the Carpenters’ attack web site says Cayetano was order to pay back
over $540,000 “to cover the illegal contributions he accepted.”
Again, this is another false and misleading statement. Cayetano was not
found to have accepted illegal contributions. Cayetano’s campaign
committee, which was not found to have done anything wrong,
nonetheless was obligated to return any contributions found to have been
made in violation of state law, which they did until the bank account was
dry and the campaign committee disbanded.
That wasn’t a “loophole,” as the Carpenters would have us believe. It’s the
way the law works.
(Emphasis added).

92. On or about June 22, 2012, Richard Borreca (“Borreca”), senior political writer

for the Honolulu Star-Advertiser, wrote a Star-Advertiser column describing the

advertisements as “mysterious unsubstantiated attacks” and reported on an interview

with retired Executive Director of the Campaign Spending Commission Robert Watada

(“Watada”) whom he asked “if Cayetano did anything wrong.” According to Borreca’s

article, Watada said "No." Borreca’s article further quoted Watada as saying: “We

closed out the Cayetano account and there were no liabilities related to his campaign.

28

We would not have closed out the account if he owed money to someone or he owed

money to us” and “It is bogus to come back now and say he didn't pay back money or

something.” On information and belief, Plaintiff alleges that Defendants White, Tanabe,

McCoy and other Defendants were aware of these statements by Borreca and Watada

from that publication date or within a few days afterward.

93. In the same article Borreca quoted Della Au Belatti (“Belatti”), who was a

Commissioner of the Campaign Spending Commissioner during the time of the

Commission’s investigation into the illegal contributions to Plaintiff’s campaign.

According to Belatti as quoted by Borreca “Gov. Cayetano was never ever criminally

impacted.” (Emphasis added).

94. On July 4, Dan Boylan, a respected journalist writing for Midweek, commented

on the advertisements and the responsive statements by Watada and Belatti (who has

since been elected to the State House of Representatives), stating: “Watada and state

Rep. Bellati (sic) are upright public servants. So is Cayetano.” On information and

belief, Plaintiff alleges that Defendants White, Tanabe, McCoy and other Defendants

were aware of these statements by Borreca and Watada from that publication date or

within a few days afterward.

95. On July 10, 2012, Watada attended a public press conference where he was

quoted as saying that Plaintiff was the most honest politician he knows, that the

Campaign Spending Commission would not have closed Plaintiff’s campaign spending

account if he had done anything wrong, and that while there was a "pay to play culture"

in Hawaii, Plaintiff’s campaign was cleared of any criminal wrongdoing as were the

campaigns of many other prominent politicians who were investigated. Watada also

29

explained that candidates often don't know they have received illegal campaign

contributions because the person or company donating the money uses different names

to get the money to the candidate.

96.The media reported Watada’s statements widely, including his statement about

Plaintiff that: “I don’t think you’re going to find a more honest politician in this state.”1

Defendants were well aware of Watada’s statements as they used one of them out of context in

another advertisement within a few days after the press conference.

97. On July 23, 2012 the Star-Advertiser published a column in the “Island Voices”

section by Watada in which Watada said, among other things, that Cayetano had spearheaded

campaign finance reform and helped to end the practices that had been widespread before him:

In 1995, Gov. Ben Cayetano, along with Sens. Rey Graulty and Les Ihara, led
the charge to stop campaign finance corruption by signing into law Act 10
(Special Session SLH 1995), a far-reaching, 62-page bill that empowered an
independent, nonpartisan commission to end many of the system's rampant
problems.
Cayetano also made good government and transparency priorities by funding
the commission to invest in networked computers and begin development of the
nation's first electronic filing system so the public and media could easily
review reports and file complaints. Today, campaign spending reports are filed
on-line and are immediately available for review.
Cayetano's additional funding allocations empowered the commission to
investigate complaints with the hiring of an attorney and investigators who were
authorized to subpoena records, conduct audits and field investigations, and
levy administrative fines.
Because of Act 10, signed by then-Gov. Cayetano, numerous politicians went
to prison and more than 100 contractors were fined for making excessive
contributions. Today, state contractors are prohibited from giving donations to
any candidate committees.

1 See msnbc.com, July 11, 2012: http://www.msnbc.msn.com/id/48143854/ns/local_news-
honolulu_hi/t/former-campaign-spending-officials-lash-out-ad-campaign-targeting-cayetano/
#.UAJKLnA1GuU

30

Ironically, current misleading attack ads harken back to the days before
reforms signed by Cayetano. Donor lists are again secret, and the public is
again at a disadvantage of knowing who the donors are behind some of these
groups.
Ben Cayetano is one of the most honest persons I know. He was a steadfast
proponent for good government. He passed groundbreaking legislation that
helped recruit qualified, independent commissioners and staff, gave them the
tools to make long-overdue changes, allowed the commission to operate
without political interference, and ended politically corrupt practices in place
for decades.
On information and belief, Plaintiff alleges that Defendants White, Tanabe, McCoy and other

Defendants were aware of these statements by Watada from that publication date or within a

few days afterward.

98. On July 24, 2012, Borreca published an article in the Star-Advertiser describing

PRP’s May advertisement as “a vicious and misleading commercial against Cayetano.”

On information and belief, Plaintiff alleges that Defendants White, Tanabe, McCoy and

other Defendants were aware of this statement by Borreca from that publication date or


99. On August 1, 2012, Watada wrote an op-ed column that was published in the

Honolulu Weekly, in which he stated: “I have come forward to refute insinuations that

Cayetano acted improperly with regard to false name contributions that had been made

to his gubernatorial campaign. You can look at the records. His accusers are making

things up.” (Emphasis added). On information and belief, Plaintiff alleges that

Defendants White, Tanabe, McCoy and other Defendants were aware of this statement

by Watada from that publication date or within a few days afterward.

100. On August 3, 2012, Bob Watada was quoted in an online newspaper and

reported to have said that the Campaign Spending Commission investigators had

31

uncovered many interesting trends: Many of the Architects and Engineers were

donating but felt that they were not getting their share of contracts, and blamed the

Governor or Mayor. In other cases, contractors who did not give one cent to a

candidate, received contracts, and a number of firms did not want to even compete for

any State or County contracts, because of the perceived need to give. These statements

by Watada gave Defendants further awareness of the falsity of their statements that

Plaintiff personally engaged in an extensive “pay-to-play” scheme. On information and

belief, Plaintiff alleges that Defendants White, Tanabe, McCoy and other Defendants

were aware of these statements by Watada from that publication date or within a few

days afterward.

101. On October 3, 2012, columnist David Shapiro of the Star-Advertiser

(“Shapiro”) stated that Defendants’ effort “to falsely malign the honesty of anti-rail

mayoral candidate Ben Cayetano, has a new ad repeating bogus claims that Cayetano

ran a ‘pay to play’ scheme when he was governor.” (Emphasis added). On information

and belief, Plaintiff alleges that Defendants White, Tanabe, McCoy and other

Defendants were aware of these statements by Shapiro from that publication date or


102. On October 17, 2012, Shapiro again published an article stating that

Defendants were falsely accusing anti-rail mayoral candidate Ben Cayetano of running

a "pay to play" scheme when he was governor. On information and belief, Plaintiff

alleges that Defendants White, Tanabe, McCoy and other Defendants were aware of

these statements by Shapiro from that publication date or within a few days afterward.

32

103. On October 19, Civil Beat referred to Defendants’ publications as a “smear

campaign.” On information and belief, Plaintiff alleges that Defendants White, Tanabe,

McCoy and other Defendants were aware of these statements by Civil Beat from that

publication date or within a few days afterward.

104. On information and belief, Defendants, who pay for pollsters and public

relations professionals and who are experienced and sophisticated in political

campaigns, have read, seen or heard about all of the aforesaid comments by

independent and neutral professional journalists and past and present public officials,

and yet have continued to publish their statements, without making any attempt to

clarify or change the ordinary and usual meaning thereof, even after being told by

others that the statements were false and misleading.

105. The publications have caused actual harm to Plaintiff and his reputation. In

addition to damaging his good name, they have caused him embarrassment, distress and

sadness at the tarnishing of a reputation for independence and integrity built up over a

lifetime, and have required him to expend substantial time in responding to the

publications and attempting to restore his good name.

106. By virtue of the foregoing facts, Defendants are liable to Plaintiff jointly and

severally for the torts of libel and slander an Plaintiff is entitled to an award of

compensatory damages against Defendants in amounts to be proved at trial.

107. The conduct of defendants described herein demonstrates a willful and

conscious disregard for civil obligations and is wanton and oppressive, thus warranting

the imposition of punitive damages against Defendants in amounts to be proved at trial

but sufficient to punish defendants and deter them from repeating their conduct.

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REQUEST FOR RELIEF

WHEREFORE, Plaintiff Cayetano prays for relief as follows:

A. For compensatory general and special damages in amounts to be proved at trial;

B. For punitive damages in an amount to be proved at trial;

C. For pre- and post-judgment interest and costs; and

D. For such other and further relief as this Court deems just and equitable.

DATED: Honolulu, Hawaii, October 22, 2012.

____________________________
JAMES J. BICKERTON
MICHAEL J. GREEN
Attorneys for Plaintiff

34

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