Hawaii Bar Journal - April 2023

Edward

Eaton

Lennes

HSBA OFFICERS President

Rhonda Griswold

President-Elect

Jesse Souki

Vice President

Mark M Murakami

Secretary

Lanson Kupau

Treasurer

Alika Piper

YLD OFFICERS President

Lisa Yang

Vice President/President-Elect

Kelcie Nagata

Secretary

Danica Swenson Treasurer

Andria Schumann

Cover Artwork: T h e C o n v e rs a t i o n by S u s i e A n d e r s o n A n d e r s o n h a s b e e n d e s c r i b e d a s a “ Pa c i f i c Colorist” with her own distinctive impressionistic style She is a devoted oil painter, and passionate about painting outdoors “ en plein air ” She was elected the Fellow for Hawaii for the Pacific Rim Institute of Marine Artists. Her paintings are found in galleries in Hawaii and in numerous private a n d c o r p o r a t e c o l l e c t i o n s w o rl d w i d e To s e e m o r e o f h e r w o rk a n d t o l e a r n t h e b a c k s t o r y o f “The Conversation” please visit her website: www susieanderson com

Notices and articles should be sent to Edward C Kemper at edracers@aol com, Cynthia

liability arising from reliance upon infor mation contained herein This publication is designed to provide general infor mation only, with regard to the subject matter covered It is not a substitute for legal, accounting, or other professional services or advice This publication is intended for educational and infor mational purposes only Nothing contained in this publication is to be considered as the rendering of legal advice

The Legal and Political Uncertainty of the Environmental, Social, and Governance (ESG) Landscape

by Christine Daleiden

The ter m “ESG” refers to a set of standards for a company ’ s behavior that a potential investor looks for when trying to target socially responsible companies for its investments

While there are many factors contributing to a company ’ s ESG framework, the “E” generally refers to how a company commits to minimize its own adverse environmental impact, the “S” involves workplace culture and how a company handles social issues such as diversity and inclusion, and the “G”1 generally refers to transparency in leadership, pay equity, and cor porate accountability

As ESG reporting is currently unregulated, companies may choose to voluntarily report data that highlights how they commit to an ESG framework. Not wanting to be the company called out by investors and shareholders for not reporting ESG, companies are increasingly reporting ESG data 2 As of 2021, 86% of S&P 500 companies included ESG data in their financial reports 3 However, due to a volatile political environment around ESG, lack of standardization in ESG reporting, and lack of settled law in this area, companies now find themselves in unknown territory. The lack of clarity has resulted in uncertainty about what to disclose and how to disclose it As litigation is largely still at the trial court level, few courts have yet to weigh in

o provide more clarity around ESG practices

As a result, companies are wary and more and more are seeking legal advice

The following presents a primer for a w ye r s o n w h a t E S G entails, how it has evolved, what uncertainties remain, and what attempts are being made to regulate it at both the federal and state levels Included also is a summary of the proposed Securities a n d E xch a n g e C o m m i s s i o n r u l e re l at e d t o c l i m at e ch a n g e disclosures that, if finalized, would provide more certainty in this very uncertain area of law

The Evolution of ESG

While social responsibility for businesses is not a new idea, ESG is a very recent movement. The ESG ter m was first used in March 2005, in a report entitled “Who Cares Wins-Connecting Financial Markets to a Changing World,” by Ivo Knoepfel

This report was written in response to an invitation by United Nations Secretary-General Kofi Annan to financial institutions challenging them to develop recommendations on how to combine environmental, social, and gover nance concer ns with asset management and securities brokerage services. The financial institutions contributing to the report believed that businesses perfor m better and increase shareholder value when they

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contribute to the communities in which they operate. The report c o n c l u d e d t h at t h e re w a s a n e e d fo r : ( 1 ) s t ro n g e r a n d m o re resilient financial markets, (2) contribution by companies to sustainable development, (3) awareness and mutual understanding by companies of involved stakeholders, and (4) improved trust in f i n

W

o C a r e s Wi n s ” report was published, a joint report was published by the United Nations Environment Programme Finance Initiative and the law fir m Freshfields Bruckhaus Deringer This report, since known as the “Freshfield Report,” was titled “A Legal Framework for the Integration of Environment, Social and Gover nment Issues into Institutional Investment ” The Freshfield Report analyzed whether integration of ESG issues into investments was legally per missible in the United States. The report deter mined that it was “clearly per missible ” These two reports published in the same year started the ESG movement in the United States

European countries, with France at the forefront, were a model for the United States. By implementing “responsible capitalism” in 2001, France was the first nation in Europe to a

related to greenhouse gases Responsible capitalism in France required companies to disclose every three years the amount of greenhouse gas emissions they are responsible for, and disclose plans to reduce scope 1 emissions (direct greenhouse gas emissions) and scope 2 emissions (indirect greenhouse gas emissions from purchased electricity and other for ms of energy) starting in 2012 See France’s Law No 2010-788, of July 12, 2010 Scope 3 emissions (indirect emissions from upstream and downstream activities) are required to be reported starting December 31, 2023 See France’s Law No 2015-992, of August 17, 2015

Every company in France must also identify and disclose financial risks related to climate change and the measures taken by the company to reduce these risks by implementing low-carbon producing strategies In 2011, France enacted another law requiring quotas for women on French boards

In the European Union, disclosure requirements related to ESG took effect in 2021. The Sustainable Finance Disclosure Regulation requires EU asset managers of investment funds to disclose on company websites how sustainability risks are being integrated into the investment decision-making process Larger companies are required to report on their websites what due diligence they follow regarding adverse impacts of investment decisions on sustainability factors. See ESG Trends-W hat the boards of all companies should know about ESG re gulator y trends in Europe, Harvard Law Forum on Cor porate Gover nance, November 1, 2022

ESG Reporting Requirements in the United States

As noted, ESG reporting in the United States is currently strictly voluntary. Although it is voluntary, publicly traded companies have huge incentives to practice and report ESG In a 2018 letter to the CEOs of companies in which BlackRock, the

world’s largest asset manager, has invested, BlackRock CEO Larry Fink encouraged cor porations to evaluate the societal impact of their businesses, consider how climate change affects their businesses, and embrace diversity See Larry Fink’s 2018 Letter to CEOs BlackRock used the power of proxy voting on behalf of the enor mous assets BlackRock manages to promote sustainable investment products. This pushed companies to adopt ESG reporting to entice BlackRock to invest in their stocks Other investment fir ms with large amounts of investments under management like Vanguard and State Street also adopted BlackRock’s vision of sustainable investing Stocks are now given an ESG score by Standard and Poor’s and other ratings companies, indicating to investors how socially and environmentally responsible a given company is according to their rating methodology

Following in BlackRock’s footsteps, Nasdaq, a private entity, enacted a rule about board diversity applicable to all companies listed on the Nasdaq exchange Under the NASDAQ Board Diversity Listing Rules, Nasdaq-traded companies are required to annually disclose board diversity statistics, including gender identity (in ter ms of male, female, and non-binary) and demographic background that includes race and ethnicity as well as board members who identify as LGBTQ+ The rule generally requires that Nasdaq-listed companies have at least one female and at least one minority or LGBTQ+ director on their boards or disclose why this is not possible. See Nasdaq Rule 5600 et al., Cor porate Gover nance Requirements.

In his 2020 letter to CEOs, BlackRock’s Larry Fink added more specificity to how companies can better disclose ESG Fink advised companies to publish their disclosures using standard Sustainability Accounting Standards Board (SASB) guidelines, to disclose data in a manner that makes sense for the company ’ s particular industry, and to disclose climate change risks in accordance with standard Task Force on Climate-Related Financial Disclosures (TCFD)

The market responded to BlackRock’s appeal, most notably because it had identified 244 companies in 2020 that were not making sufficient progress towards “integrating climate risk into their business models or disclosures.” See BlackRock, “Our Approach to Sustainability” (2020) BlackRock took voting action against 23% of these companies,4 and put the remaining companies on a watch list, with the threat of future voting action against those companies

BlackRock’s push to hold public companies accountable for social and environmental issues had a huge impact. As of 2020, 96% of the 250 largest companies in the world had reported on their ESG perfor mance See KMPG, T he Time Has Come: T he KPMG Sur vey of Sustainability Reporting, 2020

As ESG reporting became more mainstream, a new problem arose, and it remains a challenge: there is little consistency in ESG reporting among companies. This makes it very difficult for investors to compare ESG perfor mance The ter ms “environmental,” “social,” and “ gover nance ” are vague ter ms,

and until there is a common understanding of where the scope of ESG begins and ends, inconsistencies will remain Currently, public companies rely on a “materiality” standard for public disclosures designed by the U S Supreme Court decades ago. In TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 (1976), the Supreme Court was tasked with determining whether infor mation on a company ’ s proxy statement was incomplete and materially misleading, in violation of section 14(a) of the Securities and Exchange Act of 1934. The Court held that an omitted fact is material “if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote ” The Supreme Court in 1988 provided further guidance to public companies regarding disclosures in Basic Inc v Levinson, 485 U S 224 (1988) The Court in Basic held that any misleading statements that came out during merger discussions between two companies is material under Rule 10(b)(5) of

the SEC if the misstatements would have changed the view of the total infor mation by a reasonable investor With materiality as the only guide, companies exercise sizeable discretion in deter mining what to disclose and how to disclose ESG information. Without additional guidance, there is lack of unifor mity in disclosures across companies, which detracts from the usefulness and reliability of disclosures

There is also no single standard for how ESG data are reported. While BlackRock has stated that it will support companies that make ESG disclosures using both the SASB and TCFD frameworks, there are many other frameworks and standards for reporting ESG data, leading to difficulty in comparing how one company practices ESG principles compared to another

The complexity of the SASB and TCFD frameworks and the data reporting involved similarly drives these inconsistencies SASB developed sustainability

accounting standards and a framework that provides sector guidance for 77 industries on ESG issues For example, in the financial institution sector, reporting is required for: data breaches and security risks, number and amount of loans designed to promote small business and community development, number of nocost retail checking accounts provided to unbanked and underbanked customers, number of participants in financial literacy programs created by the financial institution, description of approach to incor poration of ESG factors in credit analysis, money losses resulting from lawsuits for fraud, insider trading, anti-competitive behavior, market manipulation, etc , description of whistleblower policies, and more. SASB combines data relating to these disclosures to quantify a Global Systemically Important Bank (G-SIB) score, by category, to compare across the specific industry Companies are required to report relevant data related to their respective industries, and the requirements

Judge Daniel R. Foley (ret.)

TCFD standards provide guidance only on climate-related topics, which include physical risks relating to climate change and climate-related opportunities, such as alter native energy implementation and energy efficiency. TCFD disclosures include gover nance, strategy, risk management, and metric and targets disclosures Gover nance disclosures include, for example, processes and frequency under which the board is infor med about climate-related risks, whether risks are considered in guiding strategy, and how the board monitors and oversees goals and targets addressing climate-related issues Strategy disclosures include a description of time horizons about the useful life of assets and infrastructure and how climate-related issues impact these, processes to deter mine climate risks, how climate-related issues serve as an input to financial planning processes, the time periods used, how risks and opportunities are prioritized, and disclosures about how resilient their strategies are to climate related risks Risk management disclosures describe risk management processes for identifying and assessing climate-related risks, whether existing and emerging regulatory requirement related to climate change are considered, and how these risks are integrated into overall risk management Metric and targets disclosures show key metrics used to measure and manage climate-related risks and opportunities, including Scope 1 and Scope 2 greenhouse gas emissions, and if appropriate, Scope 3 emissions, including historical trend data

As noted, other frameworks exist, and more frameworks are being created Other existing frameworks include, for example, the Global Reporting initiative (known as “GRI”), and an initiative promulgated by the Inter national Integrated Reporting Council (known as “IIRC”) The Inter national Sustainability Standards Board is creating a global baseline of sustainability disclosure standards that will include high quality, transparent, reliable and comparable reporting

by companies on climate, environmental and ESG issues. Based on the voluntary nature of ESG reporting and the various standards for reporting, companies choose one or a combination of frameworks

Non-standardized ESG Taxonomies and Ratings Systems

Another issue in ESG reporting is the lack of consensus around what industries or products should be classified as being supportive of ESG principles This issue came to the forefront in 2022 when Russia invaded Ukraine Due to the invasion, oil and gas prices increased and there was a new need for the defense industry. Previously though, in Europe many oil, gas, and defense companies had been blacklisted from investments for ESG concer ns See Milne, Richard, As Ukraine Tensions Mount, Concer ns Rise over Defence and ESG, Financial Times, February 12, 2022. As oil, gas, and defense stocks were outperfor ming ESG stocks, there was debate about whether these activities should now be considered ESG because the products were being used to defend “democracy, freedom, stability, and human rights.”

Steven Arons and John Ainger, Banks Change Course on Weapons Finance as Defense Spending Soars, Bloomberg, Mar 4, 2022

The Latvian deputy prime minister criticized a bank for not providing a loan to a Latvian defense company because of “ethical” issues as it went against environmental, social, and gover nance policies, stating, “Is national defence not ethical?” Id

In response, the EU published a report arguing that the defense industry should not be labeled as socially har mful unless companies were producing and deploying weapons for pur poses outside “inter national conventions ” Gerber, et al, H1 2022-ESG Trends and Expectations, July 28, 2022. The impact of a new need for oil, gas, and defense was also playing out in the U S In response to accusations by powerful oil and gas industries that

BlackRock had boycotted energy companies because of ESG, BlackRock stated that many of its clients invest largely in the energy industry, and that in the U.S., BlackRock invested $170 billion on behalf of its clients in energy pipelines and power generation facilities BlackRock, Energy Investing: Setting the Record Straight, 2022 BlackRock stated that it does not “ pursue divestment from oil and gas companies as a policy” and applauded “foresighted companies across a wide range of carbon intensive sectors” who are transfor ming their businesses to decarbonize Larry Fink’s 2022 Letter to CEOs, The Power of Capitalism, 2022. Until there is a consensus about whether certain stocks are appropriate for ESG funds, ESG ratings will also have less value Even before the Russia invasion of Ukraine, there was no consistent quantifiable standard for ESG rankings. There are currently as many as 20 ESG ratings agencies and “wildly different methods of calculating each company ’ s rating” for “E”, “S”, and “G” Wolinsky, Jacob, For the First Time, ESG Proponents are Starting to See Defense Stocks as ESG, October 31, 2022. The uncertainty in what is or should be considered ESG and what rating will be assigned increase the difficulty in making effective comparisons between companies and their ESG frameworks

Lack of Unifor mity Fuels Debate About ESG Perfor mance

Due to the lack of standard reporting, a need for a standard taxonomy, and lack of unifor m ratings systems, it is also nearly impossible to tell whether ESG funds outperfor m non-ESG funds The ESG movement was founded on the idea that it makes financial sense to invest in companies that have substantial environmental, social, and gover nance practices

BlackRock, “Larry Fink’s Annual Letter to CEOs” (2020) (“sustainability and climate-integrated portfolios can provide better risk-adjusted retur ns to investors”) With regard to the “S” in ESG, supporters cite to numerous studies evidencing that more diverse boards add a higher retur n on invested capital as compared to less diverse peers See, for example, McKinsey & Company, Diversity Wins: How Inclusions Matters, May 19, 2020 (“the relationship between diversity on executive teams and the likelihood of financial outperfor mance has strengthened over time ”) For the “E”, profitability is focused on long-ter m retur ns and the belief that companies are practicing ESG now to make the future better

As companies are necessarily comparing apples to oranges due to the inconsistency of reporting standards, the lack of standardization fuels debate about whether companies who do have substantial ESG practices actually outperfor m those companies who do not. Opponents of ESG argue that there is an ESG “ perfor mance ” penalty Bhagat, Sanjai, An Inconvenient Truth about ESG Investing, March 31, 2022 Proponents suggest that ESG funds do not put investors at a disa d v a n t a g e r e g a r d i n g r i s k o r r e t u r n s Iachini, How Well Has Environmental, Social, and Gover nance Investing Perunifor m reporting is implemented, this debate will continue.

State Law and ESG

Understanding that there is a need for consistent ESG standards across companies and industries, some states have taken it upon themselves to fill this gap with legislation Other states have determined that ESG considerations in investing should be prohibited altogether.

An example of pro-ESG lawmaking was introduced in Califor nia in January 2023 The Climate Cor porate Accountability Act (CCAA) was introduced as Califor nia Senate Bill 260 (2023). This bill, if passed, would require all companies ear ning $1 billion or more in annual revenue and doing business in the state of California to publicly disclose infor mation about their carbon footprint starting in 2026 The CCCA would be more sweeping than any other current proposal in that it would not only require disclosure of Scope 1 emissions (from direct operations) and Scope 2 emissions (from energy use), but it would also require disclosure of Scope 3 emissions from the supply chain If passed, this law would be even more stringent than the proposed SEC rule, discussed below

States that have declared themselves as “anti-ESG” have not yet passed legislation specifically prohibiting ESG considerations, but have banned the consideration of ESG in investments that their State controls Based on the perception that ESG places social goals over financial goals and causes detrimental financial impact to local economies, F lorida has enacted an ESG Resolution prohibiting state investments that consider ESG The Resolution mirrors the federal Department of Labor rule issued during the Trump administration that prohibits investments that consider ESG In signing this Resolution, Gover nor DeSantis stated that: “[t]he proliferation of ESG throughout America is a direct threat to the American economy, individual economic freedom, and our way of life ” Gover nor DeSantis News Release, Gover nor Ron DeSantis Further Prohibits Woke ESG Considerations from State Investments, January 17, 2023

Nine other states have adopted antiESG rules, some of which are in the for m

of investment resolutions, position statements, attor ney general opinions, state treasurer opinions, or state legislation 5 Eighteen states have adopted some for m of limitation on the state gover nment to do business with pro-ESG organizations or entities that have moved to “boycott” industries based on ESG concer ns. Dial, Goldberg, Mann, Update: Four More States

Move Toward Anti-ESG Re gulation, October 14, 2022.

In Hawaii, ESG reporting is not currently mandated While there have been bills introduced in the State Legislature,6 none have been enacted into law This is likely due to the saturation of ESG principles in current business practices and in current law For example,

§ 22

sustainability action plan and covers the “E” in ESG In this plan, which asserts “priority guidelines” for the State, sustainability is a key focus. Under the plan, priority guidelines to promote sustainability include:

(1) Encouraging balanced economic, social, community, and environmental priorities;

(2) Encouraging planning that respects and promotes living within the natural resources and limits of the State;

(3) Promoting a diversified and dynamic economy;

(4) Encouraging respect for the host culture;

(5) Promoting decisions based on meeting the needs of the present without compromising the needs of future generations;

(6) Considering the principles of the ahupuaa system; and

(7) Emphasizing that everyone, including individuals, families, communities, businesses, and gover nment, has the responsibility for achieving a sustainable Hawaii. H.R.S. § 226-108 (2022).

Even though this plan does not specifically include ESG reporting for public companies in Hawaii, it does include the spirit behind the movement and it would not be sur prising if mandatory ESG reporting does someday become law ESG data is already being reported by Hawaii’s largest public companies.7

Politics and ESG

In 2020 under the Trump administration, the federal gover nment required certain ERISA retirement investments to be chosen based only on “pecuniary factors” and specifically prohibited ESG to be considered as a factor. The Department of Labor ERISA rule, which became effective in 2021 (RIN 1210AB95), prohibits ESG factors from being considered by ERISA plan fiduciaries because of the increased emphasis on “ non-pecuniary objectives, particularly what have been ter med environmental, social, and cor porate gover nance (ESG) investing ” In issuing the rule, the Department noted that ESG considerations (1) would prompt ERISA plan fiduciaries to make investment

decisions for pur poses distinct from their responsibility to provide benefits to participants and beneficiaries and defray reasonable plan administration expenses; and (2) would lead to some investment products being marketed to ERISA fiduciaries on the basis of pur ported benefits and goals unrelated to financial perfor mance Under the final rule, plan investments “must be focused solely on economic considerations that have a material effect on the risk and retur n of an investment based on appropriate investment horizons, consistent with the plan’s funding policy and investment policy objectives ” Regulation Identifier Number 1210-AB95; 29 C F R 2550 404a-1

While the federal ERISA battle was playing out, the director of the State of Hawaii Employees’ Retirement System publicly supported ESG as a consideration in State ERISA investment decisions In a letter, this state office noted that “The ERS is committed to integrating environmental, social and gover nance (ESG) factors into our investment activities because we believe that ESG integration is essential to fulfill our fiduciary obligations to engage in appropriate risk management.” It also concluded that, “[a]s institutional investors, we have a duty to act in the best long-ter m interests of our beneficiaries In this fiduciary role, we believe the ESG factors may be financially material, and integrating ESG factors is core to investment decision-making ” Letter to John Canary, Director, Office of Regulations and Inter pretations from Director, State of Hawaii Employees’ Retirement System, July 10, 2020.

In November 2022, the Biden administration reversed the final rule enacted during the Trump administration The rule now allows ESG to be considered in selecting investments See Final Rule regarding “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights”, published in the Federal Register December 1, 2022 (87 FR 73822).

Standardization under a Proposed Securities and Exchange Commission Rule

Starting in late summer of 2020 and moving into 2021, the Securities and Exchange Commission (SEC) made it clear that it ESG was a priority for the agency. Based on the idea that diversity, climate change, and other components of ESG are material and should be disclosed, the SEC identified itself as the agency responsible for regulating ESG In support of these moves, SEC Commissioner Allison Herron Lee stated that “[i]t has never been more clear that investors need infor mation regarding, for example, how companies treat and value their workers, how they prioritize diversity in the face of profound racial injustice, and how their assets and business models are exposed to climate risk as the frequency and intensity of climate events increases ” Allison Herron Lee, Re gulation S-K and ESG Disclosures: An Unsustainable Silence, SEC Statement, August 26, 2020 Commissioner Lee also stated that leaving individual companies to deter mine what is material and what should be disclosed “has led to spotty infor mation that is not standardized, not consistent period to period, not comparable across companies, and not

necessarily reliable.” Diversity Matters, Disclosure Works, and the SEC Can Do More: Remarks at the Council of Institutional Investors Fall 2020 Conference, Sept 22, 2020

Despite the push by Commissioner Lee to for mally regulate diversity and inclusion, the SEC did not move this idea forward Instead, the SEC approved the Nasdaq’s proposed rule changes related to board diversity on August 6, 2021, applauding themselves for their “SEC-approved Nasdaq rules.” As discussed earlier, the NASDAQ Board Diversity Listing Rules require diversity disclosures and require two diverse directors for those companies trading on the Nasdaq exchange Nasdaq Rule 5600 et al , Cor porate Gover nance Requirements 8

The SEC, however, did move forward to regulate climaterelated financial data. In March 2022, the SEC announced its proposed climate disclosure ESG rule The proposed rule would require public companies to disclose climate-related financial data, including emissions they are directly responsible for and emissions from their supply chains and products (Scope 1 and 2 emissions).9

The public company disclosure proposed rule would require disclosure of the following, as summarized in the Securities and Exchange Commission Fact Sheet- Enhancement and Standardization of Climate-Related Disclosures:

• Infor mation about oversight and gover nance of climate-re-

lated risks by the company ’ s board and management;

• How any climate-related risks identified by the company have had or are likely to have a material impact on its business and consolidated financial statements, which may manifest over the short-, medium-, or long-ter m;

• How any identified climate-related risks have affected or are likely to affect the company ’ s strategy, business model, and outlook;

• The company ’ s processes for identifying, assessing, and managing climate-related risks and whether any such processes are integrated into the company ’ s overall risk management system or processes;

• If the company has adopted a transition plan as part of its climate-related risk management strategy, a description of the plan, including the relevant metrics and targets used to identify and manage any physical and transition risks;

• If the company uses scenario analysis to assess the resilience of its business strategy to climate-related risks, a description of the scenarios used, as well as the parameters, assumptions, analytical choices, and projected principal financial impacts;

• If a company uses an inter nal carbon price, infor mation about the price and how it is set;

Depar tment of Commerce and Consumer Af fair s

Mission: Ensure the safety and soundness of financial services industries to protect the rights of Hawaii’s citizens

Attorney (to) conduct research for DFI

i n t h e a r e a s o f f i n t e c h , e m e r g i n g products and services for the financial services industry, and emerging issues related to the financial services industry

See website for description and application:

https://cca hawaii gov/dfi/careeropportunity

-2020-team-dfi/

For more information, email dfi@dcca hawaii gov or call (808) 586-2820

Mission: Foster a fair and safe marketplace for consumers and assure that businesses conduct themselves honestly, ethically, and responsibly under the consumer laws of the State of Hawaii

A t t o r n e y s ( t o ) e n f o r c e s t a t e c o n s u m e r

p r o t e c t i o n l a w s , l i t i g a t e i n s t a t e a n d

f e d e r a l c o u r t s , a n d p r o t e c t t h e p u b l i c

f r o m u n f a i r a n d d e c e p t i v e a c t s a n d

p r a c t i c e s .

See website for description and application:

https://www.governmentjobs.com/careers/hawaii/ jobs/3930557/staff-attorney-iii-dcca

For more information, email ocp@dcca.hawaii.gov or call (808) 586-2636

• The impact of climate-related events (severe weather events and other natural conditions) and transition activities on the line items of a company ’ s consolidated financial statements, as well as the financial estimates and assumptions used in the financial statements;

• The company ’ s direct greenhouse gas emissions (Scope 1) and indirect greenhouse gas emissions from purchased electricity and other for ms of energy (Scope 2), separately disclosed;

• Indirect emissions from upstream and downstream activities in a company ’ s value chain (Scope 3), if material, or if the company has set a greenhouse gas emissions target or goal that includes Scope 3 emissions; and

• If the company has publicly set climate-related targets or goals, infor mation about:

○ The scope of activities and emissions included in the target, the defined time horizon by which the target is intended to be achieved, and any interim targets;

○ How the company intends to meet its climate-related targets or goals;

○ Relevant data to indicate whether the company is making progress toward meeting the target or goal and how such progress has been achieved, with updates each fiscal year; and

○ If carbon offsets or renewable energy certificates (“RECs”) have been used as part of the company ’ s plan to achieve climate-related targets or goals, certain infor mation about the carbon offsets or RECs, including the amount of carbon reduction represented by the offsets or the amount of generated renewable energy represented by the RECs

If finalized, the effective date of this rule would depend on SEC cor porate filing status (“Large Accelerated Filer” or “Accelerated Filer/Non Accelerated Filer”). The earliest effective date in the proposed rule is currently 2024.

Next Steps

Despite the political controversy around ESG reporting in the United States, ESG is likely here to stay in one for m or another Investors have a financial incentive to invest in companies that have a plan for a future where environmental impacts can be minimized and diversity and inclusion can be maximized. ESG data will become even more important to identify companies that are better suited to adapt to consumer demands around ever-changing climate and social issues

The politics surrounding ESG are likely here to stay as well The American Bankers Association recently reported that Republicans on the House Financial Services Committee for med a working group to change the current ESG approach As stated by House Financial Services Committee Chair man Patrick

McHenry, “[t]his group will develop a comprehensive approach to ESG that protects the financial interests of everyday investors and ensures our capital markets remain the envy of the world ” According to the Committee Statement, this group ’ s goals are to address SEC overreach, hold market participants accountable who misuse the proxy process to impose ideological preferences, and to reinforce the materiality standard. ABA Banking Journal, House Republicans for m working g roup to counter ESG proposals, February 3, 2023 The ESG political battle also continues over the reversal of the Trump-era Department of Labor rule On March 1, 2023, President Biden announced that he would use veto authority over a Senate resolution that passed that would nullify the rule that would allow retirement plans to consider climate factors in their investment decisions.

Unfortunately, as companies seek some certainty over ESG practices, the politics surrounding ESG threaten more uncertainty As a result, lawyers should increase their familiarity with ESG reporting, disclosures, and data requirements, as more ambiguity is certainly on the horizon.

1 This article will largely focus on the “E” and the “S” of ESG

2 In a 2022 survey, employees stated that they want the companies they work for to have more engagement on social issues, concluding that businesses are not doing enough on ESG issues, particularly on climate change, economic inequality, and systematic injustice Among employees, 60% stated that when considering a job, they expect the CEO to speak publicly about controversial social and political issues that the employees care about See 2022 Edelman Trust Barometer

3 Rachel Layne, Are Companies Actually Greener-Or Are T hey All Talk?, Harvard Business School, January 13, 2023

4 Meaning BlackRock used its proxy powers to vote against management and/or management proposals up for vote

5 Arizona, Idaho, Indiana, Kentucky, Louisiana, North Dakota, Oklahoma, Texas, West Virginia

6 See, e g , Senate Bill 694 (2022); Senate Bill 801(2021); Senate Bill 3085 (2020)

7 Alexander & Baldwin, First Hawaiian Bank, Bank of Hawaii, Hawaiian Electric Industries, Hawaiian Airlines and Matson, to name a few. Hawaii Business Magazine, Environment, Social Justice, Gover nance and Your Business: What You Need to Know, August 12, 2021

8 After approving the Nasdaq listing rule and seemingly taking credit for the diversity requirements set out by Nasdaq, the SEC was forced to back peddle in the lawsuit Alliance for Fair Board Recruitment v SEC, 5th Cir , No 21-60626 (2022) currently pending before the 5th Circuit In this lawsuit, Appellants used Section 25(a) of the Securities and Exchange Act to seek direct review of the SEC’s final order that approved the Nasdaq listing rule Appellants claimed that the disclosures are not material to investors and that the rule violates the equal protection clause of the Fifth Amendment because it encourages discrimination based on race and gender In response, the SEC argued that it does not have enforcement powers of the rule, and because of that, the Constitutional arguments do not apply to Nasdaq, a private entity The SEC stated that is role in approving the Nasdaq rule was limited and that the SEC only ensured that Nasdaq was not violating any federal securities laws through the rule

9 In May 2022, another proposed rule was issued, which would require funds and firms like BlackRock and Vanguard to make more specific disclosures about their ESG strategies in their required fund prospectuses and reports

CHIEF JUSTICE Mark E. RECKTENWALD

State of the Judiciar y | Januar y 25, 2023

President Kouchi, Speaker Saiki, Gover nor Green and Fir st Lady Jamie Green, Lt Gover nor Luke and Second Gentleman Michael Luke, member s of the Senate and House, for mer Gover nor John Waihee and Ms. Lynn Waihee, for mer Gover nor Linda Ling le, member s of the Consular Cor ps and the Royal Order of K amehameha, distinguished guests, family, and friends, good mor ning and aloha.

After all the challenges of the pandemic, it is indeed a blessing to be back here in per son. Mahalo to President Kouchi and his team for

welcoming us into this beautiful chamber.

An event was held this past Sunday hat brought such pride and joy to our State – the running of the Eddie Aikau Big Wave Invitational I am honored that we are joined today by Eddie’s brother, Clyde Aikau, who organized this epic event, and his sister Myra. I’d like to ask them to please tand and be recognized

T he Judiciar y ‘ohana is made up of 1,700 dedicated and hard-working member s As Chief Justice, I am proud to be one them. I thank the Legislature for this opportunity to tell

our stor y, to explain how we are advancing the cause of justice, and serving our community

To Gover nor Green, we are eager to collaborate with your administration and are encouraged by your focus on homelessness and mental illness in our community

I wish to recognize my two friends and colleagues, Justice Paula Nakayama and Justice Michael Wilson. T hey are retiring this year after serving a combined total of over 50 year s in the Judiciar y. Would they please stand so we can recognize their outstanding contributions to our State.

On a sad note, I wish to acknowledge the recent passing of two beloved member s of the Judiciar y ‘ohana, my predecessor Chief Justice Ronald T Y Moon, and Judge Darolyn Lendio Heim

As the fir st per son of Korean ancestr y to serve as Chief Justice on any

American court, CJ Moon helped shape the Judiciar y into the institution it is today

Judge Lendio Heim made her mark in district court, by taking the court out into the community to reach those in need

We dearly miss them both

Public service is the lifeblood of the Judiciar y It defines who we are as an institution. T he Judiciar y ’ s role in our democracy is dif ferent from other branches of gover nment, but we share the common goal of serving the public.

Our core mission is to decide cases fairly and impartially in accordance with the law But our work doesn’t end when the g avel falls We implement prog rams to address the root causes of recidivism, such as drug use and mental illness, and to respond to other urgent community needs We embrace this expanded role

Like ever yone else, the pandemic

tested us, but we have emerged as a stronger, more resilient institution We have har nessed new technologies to make us more accessible. We are forging new partner ships to make our community safer. We are expanding prog rams to support vulnerable children and families And we are improving access to justice, nurturing diver sity, and promoting civic eng agement I look forward to sharing these priorities with you today.

Meeting Pandemic Challenges and Building on Lessons

Lear ned

T he pandemic created immense challenges to a court system accustomed to conducting business in-per son Despite per sonal hardships, our judges and staf f have always met those challenges and ke pt providing justice to our community. I want to thank our chief judges – Lisa Ginoza, Mark Browning, Peter Cahill, Bob Kim, and Randal Valenciano – for their leader ship. But it is

RICHARD W. POLLACK

Appellate Consulting Mediation & Arbitration

Former Associate Justice, Hawai’i Supreme Court and Circuit Court Judge.

Part-time Trial Court Judge, Republic of Palau

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truly a team ef fort, and I would ask all the member s of the Judiciar y ‘ohana here in attendance to stand and be recognized for kee ping the Judiciar y strong. We lear ned from the pandemic We could not meet in per son, so we harnessed new technologies to conduct proceedings remotely Instead of having to miss work, people can now appear in a traf fic infraction case by simply using their phone. Since the pandemic beg an, we have held more than half a million remote hearings, and this number is rapidly climbing. We also started an eReminder service and have sent more than 24,000 texts and emails to notify parties of upcoming court dates Guess what happened? T he appearance rate has significantly increased, and is now almost 90 percent in O‘ahu District Court.

We are also more transparent T he Supreme Court now livestreams all of our oral arguments, and more than 17,000 people have tuned in

And last A pril, we made electronic filing available 24/7 for all courts throughout our system, a huge milestone, by adding family court civil cases. In short, we have created moder n courts that use new technologies to meet the needs of a community accustomed to doing business online

Accomplishment During the Pandemic Through Partnerships For med

In his opening-day speech, Speaker Saiki said the Sesame Street word of the day was cooperation Indeed, the pandemic demonstrated the importance of partner ships working together with other s to achieve far more than we could do on our own.

When the pandemic hit, there were predictions that there would be thousands of evictions a literal tsunami but that didn’t happen One big reason why is because the Legislature enacted Act 57, which required eviction

Charles Crumpton

Under the Hawaii Public Procurement Code, Haw. Rev. Stat. Chapter 103D, and the Revised Charter of the City and County of Honolulu, the City Council of the City and County of Honolulu is responsible for securing legal services from licensed private attorneys to provide legal advice and representation as special counsel for the Honolulu City Council and its officers and employees. The Honolulu City Council invites attorneys licensed in Hawaii and practicing on Oahu to submit Statements of Qualifications and Expressions of Interest for evaluation. Those private attorneys who are deemed qualified will be included on a list which will be used by the Honolulu City Council to select attorneys to provide necessary legal services.

Following are the areas of law in which research and other legal services may be required by the Honolulu City Council during the period of Attorneys may list other areas of practice, but are limited to no more than four areas.

•Appellate Practice

•Bond Counsel

•Charter Authority

•City Charter

•Civil Rights

•Condemnation

•Constitutional Law

•Criminal Law

•Election Law

•Employment Law, including Employee Benefits

•Environmental Law

•Government Contracts and Procurement, including Bid Protests, and State and Federal Procurement

•Government Ethics

•Home Rule

•Housing and Planning

•Information and Computer Technology

•Insurance

•Labor

•Litigation, including Complex Civil Litigation and Class Actions

•Municipal Finance and Budget

•Public Benefits Law, including ADA

•Public Financing, including Bond Counsel and Financing Leases

•Real Property, including Financing, Development, Land Use Entitlements and Transactions

•Separation of Powers

•State and Federal Preemption

•Utilities

Hawaii licensed attorneys interested in providing legal services in one or more of these areas are invited to submit a Statement of Qualifications and Expression of Interest. Attorneys from the same law firm wishing to be considered must submit separate statements.

TO APPLY:

Statement of Qualifications and Expression of Interest forms are available for download at http://www.honolulu.gov/ocs/default.html and may also be requested by telephone at 808-768-3875 or email at ocs@honolulu.gov.

ALL MATERIALS must be emailed to ocs@honolulu.gov. Please indicate "Application for Attorney Services" in the subject line. HARD COPIES, CDs, or USBs WILL NOT BE ACCEPTED.

Completed forms will be accepted through and should be submitted no later than 4:30 p.m., to receive full consideration for the above-stated period. Late submittals that meet all applicable criteria will be accepted, but will only be available for consultant selections conducted after the submittals have been reviewed and the service category qualification(s) determined.

cases to go to mediation. It was a win-win for both landlords and tenants. It ke pt people in their homes, while treating landlords fairly. Statewide, over 85% of the 1,600 cases mediated were settled without going to court And here on O‘ahu, 85% of the settlements resulted in the tenants remaining in their homes.

Mahalo to Re presentatives Troy Hashimoto and Nadine Nakamura for crafting Act 57, and our district court judges, the bar, and mediation provider s for implementing it. Act 57 expired last year, but we look forward to working with the Legislature to re-establish a similar prog ram

Hale Hilina‘i is another example of a successful partner ship. If you ’ ve driven up Pi‘ikoi Street recently, you ’ ve seen it: a g leaming new 20-stor y tower

It provides both 200 af fordable rental units and critical resources for juveniles

We could not have completed this innovative project without the Legislature’s cooperation, and particularly that of Speaker Saiki, and our partner, the Hawai‘i Housing Finance & Development Cor poration. T his new facility symbolizes the Judiciar y ’ s commitment to prevention and healing for at-risk youth. It enables us to intervene earlier

and connect youth and heir families with meanngful, culturally responive, services. In short, it w i l l e m p o w e r a t - r i s k y o u t h t o f o r g e a b e t t e r uture

T he new Wahiawā Civic Center, which will house the Wahiawā Disrict Court and probation of fices, is another multiuse project that will provide much needed benefits to the community. Mahalo to Senator Donovan Dela C r u z f o r h a v i n g t h e v i s i o n f o r t h i s project

Beyond Adjudicating Cases –Treatment Courts and Measures to Address Homelessness, Mental Illness, and Substance Use

Our core mission is deciding cases. Last year, we resolved more than 92,000 criminal cases, 35,000 civil cases, and

13,000 family court cases, not to mention several hundred thousand traf fic and parking infractions

Deciding that many cases gives us unique insights into the challenges facing the community. We use these insights to find ways to help people, and identify broader solutions

We can kee p our community safer by addressing the root causes that bring people into the criminal justice system. T he rates of serious mental illness and substance use disorder s are four to seven times higher for those in jail than the general population, and many inmates suf fer from both conditions. Yet these individuals often cycle re peatedly in and out of incarceration without access to needed services and treatment. We must stop that revolving door

One answer is treatment courts. T hey use intense supervision and a team approach to break the cycle of recidivism. From our g round-breaking Girls Court to our Drug, Mental Health, and Veterans Treatment Courts, we have developed specialized prog rams that enable participants to overcome dee p-seated challenges and lead productive lives

Building on this success, the Legislature last session approved funding for Women’s Court It recognizes the simple fact that women experience ver y different pathways to criminal involvement than men Women in prison are 80 to 90% more likely to have extensive histories of trauma, such as sexual or physical abuse. In just six months, our Women’s Court team, led by Judge Trish Morikawa, has developed prog rams tailored to address women ’ s needs, collaborated with treatment provider s, and selected participants. We are excited to announce that Women’s Court will of ficially go live later this after noon

Mahalo to Judge Mark Browning for having the vision for Women’s Court

and to the Women’s Legislative Caucus for its support, and in particular,

Re presentative Linda Ichiyama and Lt. Gover nor Sylvia Luke

Mahalo also to the Women’s Prison Project, a g rass-roots g roup org anized by for mer Gov Linda Ling le, that supported Women’s Court and other legislation focusing on the special needs of women in the criminal justice system Homelessness. We see it around us ever y day People in makeshift tents lining the sidewalk, in parks, and at beaches Indeed, right outside this building I’d bet that for many legislator s here, it is the number one concer n voiced by constituents

We know there are no simple solutions, and no branch of gover nment can hope to address homelessness on its own. But the Judiciar y is committed to doing our part to find more ef fective solutions.

Our Community Outreach Court re presents a novel approach that has achieved positive results. T he Court focuses on non-violent individuals who are houseless or on the verge of becoming houseless and who have pending matter s for minor of fenses

Participants ag ree to perfor m community service to resolve those matter s and are matched with service provider s, who assist them in obtaining housing, mental health and drug treatment, and other services.

Community Outreach Court is unique in that teams go out into the community, sometimes tent to tent, to find participants to enroll, and the court itself travels to convene where those in need live

More than 465 individuals have completed the outreach court prog ram, 7,600 cases have been cleared, and 5,600 hour s of community service have been completed We are holding Community Outreach Court on O‘ahu in Wai‘anae, Kāne ‘ohe, and K aka‘ako, and on Maui in Kīhei, and we plan to expand the court to Waikīkī.

In 2019, we held a summit that

identified major shortcomings in how people suf fering from mental illness are treated in the criminal justice system It simply makes no sense to hold in custody for months non-violent petty misdemeanor defendants who are incompetent – only to release them back to the streets with no ongoing treatment or services. T he Legislature responded by passing Act 26, giving those of fender s the chance to obtain treatment, rather than having them languish in custody and we appreciate Re presentative Della Au Belatti and Senator Joy San Buenaventura for their work on Act 26 In the short time since it was enacted, the State has saved over $8 5 million due to reduced incarceration and state hospital costs, over 70 defendants have been discharged and linked to services, and more than 25 have received an extended commitment for treatment We should build on that success, and consider diverting other non-violent individuals with mental illness

All of us the Legislature, the Executive Branch, and the Judiciar y are strong ly committed to resolving the mental health emergency af f licting our community Let’s seize the opportunity and work together. Let’s invest in resources such as mental health drop-of f center s and crisis stabilization units successfully used in Arizona and Miami to get people appropriate treatment away from the criminal justice system. Let’s explore all options to get treatment for those who need it Let’s join forces to implement ef fective, comprehensive solutions

Protection of Children and Families

Family court is where hope, healing, and new beginnings occur It is where the profound impact of our expanding role in providing essential services can most clearly be seen

Reducing the detention of minor s has been a critical focus of the family

courts. Almost all the minor s in the juvenile justice system are themselves victims of abuse and trauma Research shows that placing them in detention often inf licts additional har m which can spiral into more serious of fenses. Our refor ms which have been underway for more than a decade focus on detaining youth only when necessar y for public safety and diverting the other s into appropriate supervision and treatment

T hese ef forts have been a resounding success. We have drastically reduced the number of juveniles held in detention, while enhancing public safety. In the last 15 year s, the number of juveniles admitted to secure detention or committed to the Hawai‘i Youth Correctional Facility has dropped by more than 80%. But juvenile crime did not go up – quite the opposite T here has been an 85% reduction in juvenile felony petitions. But there is one statistic that exemplifies the tremendous prog ress that we have made Last June, for the fir st time ever, there were no girls detained at the Hawai‘i Youth Cor rectional Facility. You cannot do better than zero

T he pandemic was particularly hard on our state’s students Many faced obstacles to participating meaningfully in classes. Our Truancy Court prog ram is helping students who aren’t attending school to get back on track

T he key is early intervention Our juvenile probation of ficer s eng age with students, parents, and counselor s to resolve the issues causing students to miss school T hese early interventions are highly successful in getting students back to attending classes and only rarely are for mal court proceedings required. From its start at Wai‘anae Inter mediate, the Truancy Court prog ram has expanded to other middle schools, with the goal of spreading further as resources allow. Family court is also targeting absenteeism in elementar y

schools, and is cur rently working with the families of 88 students at eight schools I thank Judges Matthew Viola, Rebecca Copeland, Jessi Hall, and Darien Nag ata for all their ef forts

Access to Justice; Diversity, Equity and Inclusion; Civic Engagement

To ensure the public’s trust, courts must be transparent and accessible, judges should ref lect the diver sity of the communities they serve, and the public must under stand the Judiciar y ’ s role in our democracy.

So how are we building trust? Fir st, we must ensure that ever yone ’ s voice is heard We have established self-help center s across the state where volunteer attor neys provide free leg al infor mation or assistance to people in civil cases who otherwise would have to navig ate the system alone Over the past decade, there have been more than 35,000 selfhelp consultations at little or no cost to the public, and remote consultations added during the pandemic have expanded the center s ’ reach We could not provide this critical resource without the steadfast support of the Access to Justice Commission, the Hawai‘i State Bar Association, the Leg al Aid Society of Hawai‘i, the County Bar Associations, and the hundreds of attor neys who have donated their time. Will all those who

I just mentioned stand to be recognized

We must ensure that ‘ōlelo Hawai‘i can f lourish in our courts We recently hired a Hawaiian Language coordinator and I thank Senator K arl Rhoads for his support of that position One of the fir st projects she will tackle is to make foundational leg al documents, our constitution, key cases and statutes, readily available in ‘ōlelo Hawai‘i

Public trust is also bolstered by a judiciar y that ref lects the diver sity of the communities we serve Here in Hawai‘i, our merit-based judicial selection system has enabled us to secure highly qualified

DEPUTY PROSECUTING ATTORNEY AND LAW CLERK VACANCIES

The Department of the Prosecuting Attorney, City and County of Honolulu, is looking to fill vacant deputy prosecuting attorney positions at all experience levels Applicants must be licensed to practice law in the State of Hawaii and in good standing before the Hawaii Supreme Court at the time of hire. Those waiting for bar exam results are encouraged to apply The ideal applicant should have strong analytical skills, be comfortable with both oral and written communications, exhibit high ethical standards, and show a commitment to public safety Salaries start at $81,744 Great benefits package including pension, health coverage, and defined-contribution plans.

The Department is also recruiting law clerks who intend to take the next bar exam or are awaiting bar exam results Law clerks would be in excellent position to be hired as deputy prosecuting attorneys upon passage of the bar exam. Salary is $50,880. Position comes with full benefits.

To apply, please visit our website at: https://www honoluluprosecutor org/employment-opportunities

Mediation & Arbitration

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judges from many different backgrounds. The Senate is a crucial component of the selection process and I thank President Kouchi and the members of the Senate for their commitment

Here’s one important sign of the prog ress we ’ ve made on diver sity I am pleased to re port, that as of today, 49 percent of our full-time judges are women.

And, our judges ref lect Hawai‘i’s rich diver sity of races, ethnicities, and backg rounds In cultivating the values of diver sity, equity and inclusion, our website contains demog raphic infor mation about our judges, and we require implicit bias training for all judges and staff.

Finally, trust requires public under standing of the importance of a strong and inde pendent judiciar y Our Courts in the Community prog ram promotes that awareness by holding supreme court oral arguments live, in actual cases, at high schools across the state. Over the past decade, more than 5,000 students have participated Just last month, we convened at Lahainaluna High School with over 300 enthusiastic high school students from Maui, Moloka‘i, and Lana‘i. T he energ y in that g ym was amazing! We are so g rateful to the lawyer s who volunteered their time to teach the students about the case

Courts in the Community is part of a much broader effort. T he Supreme Court has created the PACE Commission to “promote and advance civic education for students and citizens throughout Hawai‘i ” T he Commission, led by Chief Judge Lisa Ginoza and Re presentative Amy Per ruso, recently hosted a free, three-day academy for high school students on Maui. T hey lear ned about the leg al system, community involvement, and law-related career s Mahalo to the American Judicature Society, and its chair, Lar r y Okinag a, for supporting the PACE Commission, and to the William S Richardson School of Law, the Univer sity of Hawai‘i Maui College, and the Maui County Bar Association for making the Academy such a success

Funding Requests

Although we are proud of what we have accomplished, much remains to be done. We thank the Legislature for your past funding support As we move forward, we respectfully ask for funding that will enable the Judiciar y to provide justice and meet our community’s needs

For our operating budget, we are requesting a modest increase of 4.4% in the coming fiscal year, and 4% the year after Most critically, we are seeking restoration of funding for more than 30 positions statewide that were de-funded early in the pandemic We curtailed our budget requests during the pandemic, and did ever ything we could to stretch our limited resources. But without restoration of funding, our ability to provide needed services is severely compromised

We are also seeking a new district court judge in the Fir st Circuit to provide stability and continuity for rural courts on O‘ahu, funding for our prog rams in the community, including our new juvenile resource center at Hale Hilina‘i, and funding for court-appointed counsel, guardians ad litem, and to permit children to stay with their mother s undergoing residential treatment

Our capital improvement requests total $16 million

T hey include fixtures and equipment for the new Wahiawā District Court and funds for essential re pair and maintenance for our aging courthouses to kee p the roofs from leaking and elevator s working

T hese requests ref lect what we need to restore the services impaired by the pandemic, and to forge ahead with new initiatives to serve the community We sincerely appreciate the Legislature’s consideration.

Conclusion

In sum, the Judiciar y is moving forward from the pandemic a stronger and more resilient institution, applying the lessons we lear ned, and building on the partner ships we for med We have har nessed new technologies to make us more accessible We are expanding prog rams to reach and assist vulnerable children and families. And we are raising awareness of the Judiciar y ’ s critical role in our democracy We are doing ever ything in our power to provide justice and serve our community

T his past Sunday, in monster waves with 50-foot faces, the Eddie Aikau Big Wave Invitational was held at Waimea Bay T he contest honor s Eddie Aikau, the legendar y lifeguard and water man Eddie risked, and ultimately g ave his life, to help other s His leg acy is captured in the simple phrase: “Eddie would go ”

Just as Eddie would go, the three branches of gover nment must be bold and courageous in finding solutions to the daunting challenges facing our community Each branch must be faithful to the se parate roles we play in our democracy But we can still collaborate to find solutions On issues such as homelessness and mental illness, the ideas are out there, the resources are out there, the will is out there Let’s dive in and find the way forward, together

Once ag ain, thank you to the Legislature for inviting me to be here today, and best wishes for a productive session Mahalo and aloha.

2023 Suspensions

On March 1, 2023, the listed attorneys were administratively suspended for failure to file properly completed registration statement and/or nonpayment of dues, fees and charges under Supreme Court Rules 17

Lauren Elisabeth Andrade

Ron R. Ashlock

Anthony James Ayres

Vikram Ketty Badrinath

Timothy Dean Baltzer

Artemio C Baxa

Erin Michele Baxter-Haynes

Stephen G. Bess

Brian L. Boles

William Casey Bowen

Haunani K M Bush

Maria Criselda Calderon

Eric C Castro

Martin Chang

George Chang

Michele R Chavez-Pardini

Dean D. Choy

James C. Clay

Lawrence R Cohen

Kevin Shawn Conlogue

James M Cribley

William B Curry

Donna Maria Davis

Paula M Decker

Lawrence E. Doxsee

Robert Matthew Eger mayer

Donald Walter Fetherston

Mark Alan Funaki

Samantha Hokulani Gabriel

Patrick H Gardner

Larry L Gilbert

Kerry Glen

Elchonon Dovid Golob

Allen K. Goshi

Joe L. Heinzl

Brittany Thatcher Heyd

Kathy K Higham

Ed ward A Jaffe

Richard F Kahle, Jr

Myron Masao Kamihara

Lawrence E. Katz

Aadel Khandaker

Jay T Kimura

Daniel Patrick Kirley

John A Kodachi

Marcus Kosins, Jr

Bree Meiko Kurihara

Philip L. Lahne

Peter L. Lallas

Gayle J. Lau

Philmund Lee

Frances E Liu

Timothy I MacMaster

Terri N Marcus

William Albert Mark

Donna Carol Marron

Allen I. Marutani

John James McMahon

Jennifer A Minami

Michael Joseph Moloney

Monika Leigh Moore

Kathleen P Mott

Jacalene Motto

Cheri A Murdock

Francis M. Nakamoto

Andrew Viet Nguyen

Semira Noelani Nikou

Frances N Ogata

Gregorio Joao Olive

Randall Thomas Page

Robert D Palin

Stephen E Pike

Jane Slocum Preece

H. Mark Purdy

Chester A. Richardson

Cheryl Denise Richardson

Daniel Alan Ross

Jerry A Ruthruff

Sakae Samuel Sakai

Maryann Sasaki

Geraldo W. Scatena

Joyce Ann Seelen

Daniel W. Smoke

Rebecca Justine Iolani Soon

Stuart S Spring

Suzan L Stauffer

Amberlee Sutton

Mark R Tanaka

Claire M Tanoue

Kendra Laine Tietjen

Steven J. Trecker

Scott S Wallner

Ashlyn L Whitbeck

Gary L Wixom

Karen Wong

Herbert T Woolley

Richard C Wootton

Gregg T. Yamanaka

Mark J.C. Yee

Laurie J. Yoon

Richard A Young

Ver non Yu

Gary W Zakian

H S B A H A P P E N I N G S

HSBA Board Action

The HSBA Board took the following actions at its meeting in January:

• Deter mined that the Judiciary’s operating and CIP budget requests meet the Keller analysis (i e , is ger mane to the purposes of the unified bar and would generally be supported by HSBA members); and voted to submit testimony in support of the Judiciary’s operating and CIP budget requests for FY 2024-2025 when the bills (SB482/HB382) are scheduled for hearings at the Legislature;

• Deter mined that legislation relating to judges for the District Court of the First Circuit meets the Keller analysis; and voted to submit testimony in support of legislation which establishes one additional district court judgeship in the First Circuit when the bills (SB485/HB385) are scheduled for hearings at the Legislature;

• Deter mined that legislation relating to the safety of judges and certain Judiciary personnel meets the Keller analysis; and voted to submit testimony in support of legislation which prohibits the publication of personal infor mation of state and federal judges and other judicial staff whose duties put them at risk for acts of violence or threats when the bills (SB486/HB386) are scheduled for hearings at the Legislature;

• Approved the Executive Committee’s recommendation to set the 2023 per diem amount for meals during conference travel at $74;

• Approved the Executive Committee’s recommendation that: (1) a response be sent to the member who voiced concer ns over HSBA’s affiliation with the Christian Legal Society of Hawai‘I to explain that members’ dues are not being used to support CLSH activities; (2) a disclaimer be included on the annual attor ney renewal for m stating that HSBA does not endorse any specialty bar and member dues are not used to support them; and (3) a subcommittee be tasked with (a) studying how other bars manage/treat specialty bars, (b)

making a recommendation to the Board for developing a process to address future requests, and (c) applying that process to the specialty bars currently listed;

• Ratified President Rhonda Griswold’s 2023 committee chair appointments:

○ Attor ney/Client Relations - Charles Crumpton and Peter Lenhart

○ Awards – Ronette Kawakami and Emiko Meyers

○ Civic Education - Troy Andrade, Ryan Hamaguchi, and Ruth Oh

○ Consumer Protection - Paul Alston

○ CLE - Brian Black

○ DLSP - Micah Smith and Jenny Silbiger

○ Diversity Equality and the Law - Tricia Nakamura and Kaliko Fer nandes

○ Judicial Administration - Vladimir Devens and Justice Simeon Acoba (ret )

○ Legislation - Noah Gibson

○ Nominating - Calvin Young

○ Professional Responsibility and Risk Management - Hayley Cheng, Judge Kevin Morikone, and Judge Jill Otake

○ Publications - Cynthia Johiro and Carol Muranaka

○ Staff and Facilities Committee – Paul Naso

○ Transitioning Lawyers - Geraldine Hasegawa

○ Well-Being – Jasmine Wong

• Ratified President Rhonda Griswold’s appointment of the following individuals as 2023 HSBA Nominating Committee members: Calvin Young (chair), Trejur Bordenave, Judge Darien Nagata, Judge Michael Soong, Jesse Souki, Elmira Tsang, and Mark Valencia; and

• Ratified President Rhonda Griswold’s appointment of the following individuals as 2023 HSBA representatives to the Supreme Court Nominating Committee: P Gregory Frey, Leighton Hara, Levi Hookano, and Jodi Yi.

Member Benefits Spotlight

Mar riott Inter national Marriott Inter national – The Waikiki Collection extends discounted cor porate

rates to Hawaii State Bar Association. Participating properties:

• Moana Surfrider, A Westin Resort & Spa, Waikiki Beach

• The Royal Hawaiian, a Luxury Collection Resort, Waikiki

• Sheraton Waikiki

• Sheraton Princess Kaiulani

Discounted rates are on select room categories only, based upon availability, and subject to change/hotel blackout dates These rates are not valid for any groups or conventions

To book online, visit the direct booking link at https://bit ly/3HImSPp, or call (808) 921 4560 and ask for the “Local Companies” Cor porate Rates and provide Cluster Code “L6C ”

Priceline

NPP members save up to 25% on select hotels when packaged with a rental car, flight or additional booking Enroll with NPP at https://mynpp com/association/hsba/.

Hawaiian Airlines

HSBA members are eligible for a 5% discount on all transpacific web fares (round trip only) For reservation instructions, sign in to your HSBA member account and click on “My Account” > “Benefit-Hawaiian Airlines ” Baggage fees will apply to Preferred Affiliate Bookings

HEMIC

The HEMIC family of companies are pleased to offer a customizable suite of insurance products for HSBA members, with quality coverage at competitive prices. As a 100% local company, they appreciate that every customer they serve is a neighbor and member of their community. Their product offerings include:

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Association Member Benefits Advisors Life Insurance Program

Association Member Benefits Advisors Life Insurance Program offers HSBA members group rates on Group Ter m Life, Group Level Ter m Life, Personal Accident, and Senior Ter m Life Insurance.

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Association Member Benefits Advisors/Swiss RE Corporate Solutions

Lawyers Professional Liability Insurance – underwritten by Swiss Re Cor porate Solutions America Insurance Cor poration, a member of Swiss Re Corporate Solutions The program offers very broad coverage at affordable premiums. Contact the Association Member Benefits

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HSBA Newsstand

Get free timely updates from around the U S and the world about subjects that matter to your practice Newsstand is powered by Lexology, an innovative newsfeed service utilizing its global legal knowledge base to deliver essential know-how and market intelligence in concise digestible for m to keep you infor med across legal issues in your area

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Writing Legal Articles for CLE Credits

Did you know? A Hawaii-licensed attorney can earn two continuing legal education (“CLE”) credits annually for writing a legal article of 1,500 words As of January 1, 2015, Hawaii Supreme Court Rule 22 was amended to include a new activity that may be entitled to credits: “writing scholarly legal articles that comply with Regulation 3 of the Continuing Legal Education Regulations of the State Board of Continuing Legal Education and are published in a bar journal, law review, book, bar association or similar recognized journal, or other legal publication may qualify for 2 credit hours per 1500 published words per year ” RSCH Rule 22 (e)(4) CLE Regulation 3, inter alia, requires certain general standards:

(1) The course or activity is an organized program of lear ning with significant intellectual or practical content and deals with matters directly related to the practice of law;

(2) The course or activity’s primary pur pose is to improve the participant’s professional competence as an attor ney. Areas of professional competence include substantive legal issues, legal skills or practice, improving the attor ney ’ s delivery of legal services to clients, and improving the efficiency of the practicing attor ney.

Accordingly, the scholarly legal article should be of “significant intellectual or practical content” and relate to the practice of law and an attorney’s professional competence An article may also relate to an attorney’s ethical obligations, or professional responsibility such as (1) the Rules of Professional Conduct; (2) the professional obligations of the lawyer to the client, the judicial system, the public and other lawyers; (3) substance abuse and its effects on lawyers and the practice of law; or (4) client trust administration, bias awareness and prevention, and access to justice

A copy of an attor ney ’ s publication of a 1,500-word legal article in the Hawaii Bar Jour nal should be submitted to the CLE Administrator at the HSBA for approval of CLE credits.

C A S E N O T E S

Supreme Court

Criminal State v Moon, No SCAP-190000714, February 10, 2023, (Recktenwald, C J , with Wilson, J , dissenting) This case considered the application of Hawaii Revised Statutes § 327C-1 (2010), which defines the process for making “death deter minations in the State” in all “civil and criminal actions ” Haw. Rev. Stat. § 327C-1(d). On December 25, 2016, Dae Han Moon allegedly shot Steve Feliciano in the head during an altercation During a g rand jury proceeding on December 29, 2016, the Chief Medical Examiner of the City and County of Honolulu testified that the day prior, a doctor had pronounced Feliciano brain dead, and that the cause of his death was a gunshot wound to the head. Because Feliciano was an organ donor, he was “being kept alive artificially ” The g rand jury indicted Moon on four counts, including Murder in the Second Deg ree Subsequently, Feliciano’s organs and tissues were removed, and an autopsy was perfor med The case proceeded to a jury trial in the Circuit Court, where several witnesses testified to seeing Moon shoot Feliciano. The First Deputy Medical Examiner, who perfor med Feliciano’s autopsy, testified that the cause of Feliciano’s death was a gunshot wound to the head. The jury found Moon guilty on all counts Moon argued that the requirements of Haw Rev Stat § 327C-1 apply to all criminal cases involving death, including his case Thus, the State needed to fulfill these requirements to prove the element of “death ” The Hawaii Supreme Court disag reed. Based on its plain language and legislative history, this statute applies in cases where a “death deter mination” – that is, where a “generally medically recognized criteria of deter mining the occurrence of death” is

Appeal Pointer

A judgment certified under HRCP 54(b) is not appealable unless the certification language is included in the judgment. Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai‘i 115, 119-20, 869 P 2d 1334, 1338-39 (1994)

required or implicated. In contrast, there was ample evidence introduced at trial that Feliciano died as a result of a gunshot wound to the head As such, there was no need for a “deter mination of death” within the meaning of Haw Rev. Stat. § 327C-1.

Wilson, J , dissented Wilson, J stated that at issue in this case was the legal protection afforded those whose organs are harvested while they are still alive albeit while they are kept alive by artificial means of support Feliciano did not receive that protection His organs were harvested in violation of the law B e c a u s e h e w a s n eve r d e c l a re d l e g a l l y d e a d b e fo re h i s o rg a n s we re h a r ve s t e d , t h e g ove r n m e n t c o u l d n o t p rove t h at h i s d e at h w a s c a u s e d by M o o n r at h e r t h a n by t h e h a r ve s t i n g o f h i s o rg a n s

Insurance

Pflue ger, Inc., v. AIU Holdings, Inc., No. SCWC-17-0000234, February 22, 2023, (Nakayama, J.). This was an insurance broker malpractice case spanning approximately fourteen years. Respondent/Plaintiff-A ppellant Pf lueger, Inc brought negligence and negligent malpractice claims against its insurance broker, Petitioner/Defendant-A ppellee

Noguchi & Associates, Inc (Noguchi)

In the first chain of proceedings (Pflue ger I), partial summary judgment was g ranted in favor of Pf lueger and a jury found in favor of Pf lueger After the

ICA remanded to the circuit court to include previously excluded testimony, the circuit court in the instant appeal g ranted summary judgment in favor of Noguchi, finding Noguchi’s evidence negated the causation element of Pf lueger’s claim and Pf lueger offered no evidence to the contrary The ICA then disag reed, holding summary judgment for Noguchi was improper in a Summary Disposition Order, with a majority and concurring opinion At issue before the Hawaii Supreme Court was what Noguchi must demonstrate on summary judgment to negate the causation element of the negligence and negligent malpractice claims against it Noguchi contended it need only show that Pf lueger’s insurer, National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National Union), would have denied coverage even if Pf lueger’s g rand jury subpoena matter were timely tendered in order to negate the causation element on summary judgment By accepting this argument, both the circuit court and the ICA majority erred The Hawaii Supreme Court clarified that to negate the causation element on summary judgment, Noguchi instead would need to demonstrate that even if the g rand jury subpoena matter were timely tendered to National Union, National Union would not have been legally obligated to advance Pf lueger’s defense costs

Intermediate Court of Appeals

Civil Procedure

Roy v. Gover nment Employees Ins. Co., No CAAP-18-0000613, January 23, 2023, (Wadsworth, J.). In 2013, Plaintiffs-A ppellees Stephen Keawe Roy (Roy) and Rebecca Roy (collectively, the Roys) sued Defendants-A ppellants Gover nment Employees Insurance Co and

GEICO Insurance Agency, Inc. (collectively, GEICO), as well as certain individuals, for alleged violations of the Hawaii Whistle Blowers’ Protection Act and other pur ported wrongdoing. The parties settled the case, and in January 2014, the Circuit Court entered an order approving the parties’ stipulation to seal the court’s case file (Sealing Order). The case was dismissed with prejudice In May 2018, Ed Wagner (Wagner), a GEICO policyholder who was not a party to the underlying case, filed a motion to unseal the case records The Circuit Court g ranted the motion and subsequently denied GEICO’s motion to reseal portions of the records GEICO appealed from the July 6, 2018 “Order on Motion to Unseal (Filed May 22, 2016 [sic])” (Unsealing Order) and the July 31, 2018 “Findings of Fact, Conclusions of Law and Order Denying GEICO’s Motion to Reseal Filed Documents” (collectively, Unsealing Orders), both entered by the Circuit Court On appeal, GEICO contended that the Circuit Court erred: (1) in g ranting Wagner ’ s motion to unseal the case file on the basis of the public right of access, because the court failed to give adequate weight to countervailing compelling interests; and (2) in denying GEICO’s motion to reseal selected portions of the case file, because the court failed to recognize the compelling interests in sealing those portions, the substantial har m to those interests from not sealing, and the lack of alter natives to sealing The ICA held that the Circuit Court properly evaluated the Sealing Order in light of the procedural and substantive requirements for sealing court records, as set forth in Gr ube v. Trader, 142 Hawaii 412, 420 P 3d 343 (2018) As to the substantive requirements, GEICO failed to demonstrate that there were no less restrictive alter natives to sealing the entire case file that would adequately protect any compelling interest asserted by GEICO The Circuit Court thus did not err in ordering the case file unsealed and

delaying implementation of the unsealing to allow GEICO to file a motion to reseal specific portions of the record The ICA further held that GEICO failed to meet its burden to prove that its request to reseal and redact portions of the record would serve a compelling interest GEICO asserted three pur portedly compelling interests that would be served by such resealing: protecting the attor ney-client privilege, work product, and trade secrets Based on the ICA’s review of the record, including the documents at issue, the ICA concluded that the Circuit Court did not err in deter mining that GEICO failed to meet its burden to prove that: (1) the pur ported attor ney-client communications it sought to reseal were made for the pur pose of facilitating the rendition of professional legal services by Roy to GEICO; (2) the materials it sought to reseal were protected by the work-product doctrine; and (3) the infor mation it sought to redact constituted trade secrets

Contracts

HC&D, LLC v. DCK Pac. Constr uction, LLC, No CAAP-17-0000582, February 23, 2023, (Leonard, J , with McCullen, J , concurring and dissenting) This case involved a dispute between a contractor and a subcontractor over payment for materials and services The contractor argued that its “pay-if-paid” provision does not conf lict with the “payment is due” provision added by the subcontractor The parties ag reed that in case of a conf lict, the subcontractor’s ter ms prevail The ICA held that, in light of all of the relevant contract language, the payment ter ms conf lict and the subcontractor’s ter m prevailed. The ICA further held that the contractor raised a genuine issue of material fact concer ning whether certain materials were defective when delivered.

McCullen, J , concurred and dissented. McCullen, J. stated that on its face, the contractor’s Pay-If-Paid Clause unambiguously provided that the seller

has no right to payment unless the buyer received payment from the client: “Receipt of payment from the Client to the Buyer for Seller’s work is an absolute condition precedent to the Seller’s right to payment ” More specifically, this PayIf-Paid Clause transferred the risk of the client’s nonpayment from the buyer to the seller. In this case, the State of Hawaii contracted with DCK for work at the Honolulu air port To do some of that work, DCK ordered concrete from HC&D (for merly Ameron), who then delivered the concrete The State, however, rejected the concrete and refused to pay DCK, who in tur n did not pay HC&D But HC&D wanted to get paid In short, the timing in which the payment is due (30- Day Clause) cannot occur until there is a right to receive that payment (Pay-If-Paid Clause) in the first place. So, the 30-Day Clause did not conf lict with the Pay-If-Paid Clause, but rather follows from it. Based on the foregoing, McCullen, J respectfully dissented from the majority’s resolution of the first point of error, but concurred in the majority’s resolution of the second point of error

Insurance

Krafcho w v Dongbu Ins Co , Ltd , Nos CAAP-21-0000513 and -517, February 17, 2023, (Hiraoka, J ) These consolidated appeals arose from first-party insurance claims made by PlaintiffsA ppellees Edmund Krafchow and Kathleen Krafchow (collectively, the Krafchows) under insurance policies issued by Defendant-A ppellant Dongbu Insurance Co., Ltd. (now known as DB Insurance Co , Ltd ) The issue before the ICA was whether the appraisers and umpire who were to appraise “the amount of loss” had the power to decide what amount was owed by Dongbu to the Krafchows under the insurance policies The ICA held they did not They were to decide the amount of the Krafchows’ loss irrespective of insurance coverage, not the amount of covered loss

Torts

Salas v EMP Medical Group, Ltd , No CAAP-19-0000616, January 31, 2023, (Leonard, J ) Plaintiff-A ppellant

Car mela S. Salas (Salas) appealed from the Final Judgment entered by the Circuit Court on June 9, 2020. Salas also challenged the Circuit Court’s Findings of Fact and Conclusions of Law filed on August 5, 2019 The Circuit Court concluded, inter alia, that Salas’s medical tort claims were barred by the applicable statute of limitations, Haw Rev Stat § 657-7 3 Salas contended that this action was not time-barred because any statute of limitations was tolled when she submitted an inquiry to the State of Hawaii Medical Inquiry and Conciliation Panel (MICP) Defendants-A ppellees EMP Medical Group, Ltd., Emergency Medicine Physicians of Honolulu Pali Momi, PLLC, Dr. Lily L. Gallagher, and Ed ward A Swensen PAC (A ppellees) successfully argued in the Circuit Court that the statute of limitations was not tolled in this case because they were not named as parties to the MICP inquiry filed by Salas. However, the Circuit Court did not find that A ppellees were known to Salas at the time that the inquiry was filed The ICA thus concluded that Salas’s lawsuit was not time-barred based on the record before the Circuit Court, because A ppellees did not establish that Salas failed to meet Haw Rev Stat § 671-12(a) requirements to submit an inquiry to the MICP sufficient to trigger the Haw Rev Stat § 671-18 tolling provision with respect to claims against A ppellees The ICA further concluded that the Circuit Court did not lack subject matter jurisdiction on the g rounds that Salas did not file an MICP inquiry specifically naming A ppellees prior to commencing this lawsuit. The Circuit Court’s judgment was vacated and this case was remanded.

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