Case Notes

• Jurisdiction: Hawaii,United States
• Citation: Vol. 17 No. 09
• Publication year: 2013

CASE NOTES

Appeal Pointers

A stipulation to dismiss an appeal or a motion for voluntary dismissal of an appeal will not be approved by the appellate court unless the stipulation or motion complies with the requirements of HRAP 42.

Supreme Court

Labor

Villon v. Marriott Hotel Servs., No. SCCQ-11-0000747, July 15, 2013 (McKenna, J.; Acoba, J. concurring and dissenting separately, with Chan, J.). The certified question from the United States District Court was this: may employees enforce Haw. Rev. Stat. § 481B-14 through Haw. Rev. Stat. §§ 388-6, 10, and 11. The Hawaii Supreme Court answered in the affirmative, holding that when a hotel or restaurant applying a service charge for the sale of food or beverage services allegedly violates Haw. Rev. Stat. § 481B-14: (1) by not distributing the full service charge directly to its employees as tip income, and (2) by failing to disclose this practice to the purchaser of the services, the employees may bring an action under Haw. Rev. Stat. §§ 388-6, - 10, and -11 to enforce the employees' rights and seek remedies.

Justice Acoba, joined by Judge Chan, agreed that the Plaintiffs could bring an action under Haw. Rev. Stat. Chapter 388, but would have held that, contrary to the majority opinion in Davis v. Four Seasons Hotel, Ltd., 122 Hawai'i 423, 228 P3d 303 (2010), when a hotel or restaurant does not distribute service charges directly to its employees or does not disclose that fact to consumers, a violation of Haw. Rev. Stat. § 481B-14 occurs and such employees and consumers may sue under Haw. Rev. Stat. §§ 480-2 and 480-13 and recover treble damages.

Pursuant to Haw. Rev. Stat. § 481B-4, any violation of Haw. Rev. Stat. § 481B-14 is deemed to be an unfair method of competition (UMOC). Under Haw. Rev. Stat. § 480-2(e), "any person" may bring an action based on a UMOC." As "person[s]", Plaintiffs were entitled to bring a UMOC action based on a violation of Haw. Rev. Stat. § 481B-14. Further, Haw. Rev. Stat. § 480-13 declares that any person injured by a violation of Haw. Rev. Stat. § 480-2 may receive threefold damages.

Under the majority opinion in Davis a plaintiff must allege the nature of the competition affected by a violation of Haw. Rev. Stat. § 481B-14. None of the authorities cited in Davis support this result. Hawai'i Medical Ass'n v. Hawai'i Medical Services Ass'n is distinguishable because it did not involve conduct that was deemed to be a UMOC. Federal authorities cited by Davis were inapposite...