A private-public venture between the U.S. Navy and the country’s largest owner of privatized military housing has sued the wife of a retired Kaneohe Marine officer for defamation.
The lawsuit by Ohana Military Communities was filed Jan. 31 against Cara Barber, who lived in on-base housing while her husband was stationed at Marine Corps Base Hawaii from 2006 to 2011. Her husband retired from the Marines as a major four years ago and the couple now lives in Florida.
Barber has been in the front lines of military families questioning and challenging pesticide and chemical contamination found at MCBH and other installations.
Ohana Military Communities owns and manages the privatized housing on the Kaneohe base and several other island military facilities. It is a partnership between the Navy and Hawaii Military Communities, a subsidiary of Hunt Cos.
Hunt, a family owned and Texas-based conglomerate, describes itself as the largest owner and manager of privatized military housing in the country.
Also named as a plaintiff is Forest City Residential Management, which was the managing partner of Ohana Military Communities until February 2016, when it was purchased by Hunt.
OMC and Forest City allege Barber used Facebook in a “smear campaign” by knowingly or recklessly making repeated false statements about health hazards on the base posed by contaminated soil previously discovered in and around housing areas.
The companies say their reputations have suffered because of the unflattering exposure of information about pesticide residue through Barber’s Facebook group and, at least for some period of time, a separate blog. They claim to have lost clients and business opportunities, incurred substantial costs and legal fees, and suffered damage to their business reputation.
The lawsuit seeks unspecified “general, special, treble, and consequential damages,” attorneys fees, punitive damages, and fees and costs.
One key issue in the case will be ruling on the companies’ claim that they are not “public figures” for purposes of defamation and libel law. This will be a key issue because public figures have to meet a much higher standard in order to prove defamation.
Someone who is not a public figure only has to prove that false statements were made and that they were damaged as a result. But a public figure must not only show that the statements were false, but that they were either known to be false at the time they were made, or were made with “reckless disregard” of the truth.
Whether a company that holds monopoly control of most aspects of military base housing and the lives of its residents under the terms of a 50-year contract, in partnership with the U.S. Navy itself, can claim they should not be treated as a public figure will be an interesting legal issue to unravel if the case gets that far.
Ohana Military Communities was formed in 2004 as part of the Department of Defense’s plan to privatize its vast network of military housing. OMC was selected to take over the housing areas at Marine Corps Base Hawaii and several other local facilities, redevelop or renovate the housing, and manage the properties over an extended 50-year term.
Initially OMC was a public-private venture between the U.S. Navy and Forest City Residential Management, a subsidiary of Forest City Enterprises, another leading national real estate management firm.
In February 2016, the Hunt Cos. bought all of Forest City’s military housing assets in a deal valued at $209 million, giving Hunt control of Ohana Military Communities.
According to a corporate disclosure statement filed in the defamation case, Ohana Military Communities is managed by its two partners, Hunt and the U.S. Navy.
Barber’s real offense, it would appear, was being too effective as an organizer and advocate for a safe and healthy environment in military housing.
A decade ago, Cara Barber was living in on-base housing at MCBH and talking with other moms about sick kids and pets, worries that there might be mold in the older homes, and irritation at the amount of dust blowing through their homes from the demolition and construction of new houses nearby.
The women began comparing notes and using social media to solicit and share information.
“What developed was sort of a community of discontent among military spouses on how Forest City was dealing with issues on the base,” said Kyle Smith, one of Barber’s attorneys, in an interview several years ago.
They learned about the presence of pesticide contamination, not from Forest City or the Marine Corps, but from the local newspapers. When they sought more detailed information from housing managers, they were rebuffed.
So in 2014, Barber joined several other military wives in a class action lawsuit against OMC and Forest City for failing to properly disclose the pesticide contamination, and for refusing to enter into mediation over the issue as provided by their property leases.
Their suit asked that the companies be required to “investigate the actual risks to military families at MCBH posed by the known chemical contamination of residential housing,” and warn current and prior tenants “of the health risks they have been exposed to.”
After nearly two years in court, a settlement was reached in the case in early January 2016, about the time Hunt Cos. closed its purchase of Forest City Residential Management and took control of OMC.
But although the case was settled, it apparently left Barber in the crosshairs for continuing corporate retaliation.
Less than four months later, the companies went back to court alleging Barber had violated a confidentiality clause in the settlement agreement, and seeking a court order requiring her to “remove and/or retract all post-settlement publications, public statements, blog posts, and social media posts related to soil issues at Marine Corps Base Hawaii.”
Most of the claims that are now part of the latest defamation lawsuit against Barber were initially raised at this time.
Barber was required to return to Hawaii from Florida at her own expense to testify in the proceedings, which included five days of hearings to consider evidence and testimony.
Following the hearings, Judge Helen Gillmor granted the requested preliminary injunction, at least in part. Her decision was immediately appealed to the 9th U.S. Circuit Court of Appeals, which overturned the injunction and remanded the case back to Gillmor’s court.
The appeals court held that while Barber may have violated the confidentiality agreement, those violations were “relatively mild.” Further, the 9th Circuit found “(most) of her online postings … did not appear to violate the confidentiality provision, and neither did her descriptions of publicly available information about the lawsuit.”
Parts of that decision are still being appealed, even after the new defamation suit has been filed.
The latest lawsuit targeting Barber says she “organized different resident groups and held herself out as a resource for military spouses” concerned about health and safety issues in military housing, eventually focusing on data regarding the presence of pesticide contaminated soil in housing areas. Barber “established a Facebook group of nearly 2,000 current and former residents of military housing,” the lawsuit states.
Barber has not yet had an opportunity to respond to the latest lawsuit. However, in court documents filed in the earlier proceedings involving the confidentiality clause and the same defamation allegations, attorneys representing her said the defamation charges were unfair and ungrounded.
Barber’s lawyers say the settlement agreement also contained a “free speech” clause that “expressly allowed Barber to communicate with other families about pesticide contamination at MCBH and preserving her free speech rights was a material term of the agreement.”
They argue the defamation allegations violated Barber’s “invaluable First Amendment right to engage in social media related to pesticide contamination at MCBH.”
They also noted for the record that Barber “voluntarily removed all social media postings which were cited by the Defendants in their motion and has refrained from posting any new information related to the settlement of her claims or alleged pesticide contamination.”
If she already had removed the social media posts that OMC objected to, then why this latest lawsuit?
One theme in the suit is OMC’s claim that Barber’s social media posts were designed “to drive clients to (her attorneys) and promote new lawsuits against Plaintiffs.” The claim was first raised in OMC’s earlier attempt to show Barber had violated the settlement agreement.
Barber’s attorneys in that earlier case argued she is essentially being held hostage in an attempt to compel her lawyers to turn away new clients.
Despite Barber’s voluntary deletion of the social media posts at issue, “all settlement overtures made to Defendants have been unsuccessful due to their insistence on linking the issue of Barber’s alleged violations of the settlement agreement with the unrelated issue of her attorneys’ representation of other parties with similar claims,” her attorneys wrote in an October 2017 memo.
They called the defamation claim “improper and abusive” because, they allege,” it was really “specifically calculated” to pressure them to withdraw from representing other families in further lawsuits against the company over the contamination issue.
The lawsuit, which which pits a multi-billion-dollar real estate and development conglomerate and its partner, the U.S. Navy, against the wife of a retired Marine officer, appears to be a classic SLAPP, a strategic lawsuit against public participation.
SLAPPs are “retaliatory lawsuits intended to silence, intimidate, or punish those who have used public forums to speak, petition, or otherwise move for government action on an issue,” according to an online legal dictionary. “SLAPPs have been directed against individuals and groups that have spoken in public forums on a wide variety of issues, particularly against real estate development, the actions of public officials, environmental damage or pollution, and unwanted land use.”
“SLAPP filers don’t go to court to seek justice,” according to the Public Participation Project. “Rather, SLAPPS are intended to intimidate those who disagree with them or their activities by draining the target’s financial resources.”
Like other SLAPPs, OMC’s defamation case appears aimed at silencing Barber’s voice on matters of public safety and health in military housing facilities. It’s a tactic that’s been used many times by corporations to stifle public opposition to their products or projects.
What’s unusual here, it seems, is that a federal government agency is a partner in the company that has filed the SLAPP. It isn’t clear whether the Navy had to approve or sign off on the lawsuit before it was filed.
However, by attacking a prominent advocate for the health and safey of military families, the lawsuit necessarily puts the Navy in an uncomfortable and politically awkward position.